Courts must take Zuma’s doctors’ word about his illness, even without full record, Mpofu argues
The issue around the redacted parts of Zuma’s medical records came into sharp focus during his appeal application to the SCA.
Advocate Dali Mpofu. Picture: Gallo Images.
The terminal illness or medical condition that former president Jacob Zuma allegedly suffers from has not been disclosed in public or in the courts, in order to protect his privacy and human rights.
Zuma’s lawyer, advocate Dali Mpofu, made the argument in the Supreme Court of Appeal (SCA) on Monday, during the former president’s appeal of a high court ruling that set aside his release last year on medical parole.
Zuma’s medical parole
The issue around the redacted parts of Zuma’s medical records came into sharp focus as his lawyers squared off with the Democratic Alliance (DA), the Helen Suzman Foundation and AfriForum, over the decision by the then prisons boss, Arthur Fraser, to release him on medical parole in September.
In December, the Pretoria High Court set aside Zuma’s release on parole and ordered him to return to jail, after it found that Fraser’s decision to release him was unlawful and irrational.
This after Fraser went against the Medical Parole Advisory Board’s recommendation that Zuma should not be released because he was stable and did not suffer from a terminal illness.
Medical records ‘naturally classified’
Mpofu argued that Zuma’s medical records were redacted because he was a former head of state, and therefore the information was “naturally classified”.
He said this was done because the former president’s medical records contained information that is “most sensitive”.
“Common sense, in fact, more than common sense, should inform us that those parts that are redacted are the most sensitive and confidential [parts which] clearly make specific references to the terminal illness that Dr Mafa [Zuma’s doctor] says exists,” he said.
Mpofu contended that Zuma’s terminal illness or medical condition was determined by his doctors who are registered with the Health Professions Council of South Africa (HPCSA), and therefore their conclusions could not be questioned.
“How can a court of law know better than medical experts? Nobody has said they were bribed or belonged to some faction or what what.
“They are experts in respect of whom we must assume that they have discharged their professional duty and they say the man is suffering from a terminal disease.”
He argued that if the DA, the Helen Suzman Foundation and AfriForum wanted access to Zuma’s full medical records, they should have fought for them in order to determine whether Fraser’s decision was unlawful or not.
This is despite the fact that the organisations had initially sought access to Zuma’s health records on a confidential basis, but when they tried to get them – the former president’s lawyers refused to grant them that limited access.
The respondents ended up agreeing to accept the redacted record of Fraser’s decision.
Mpofu said the absence of Zuma’s medical records before the SCA could only prejudice the three organisations.
“It is completely wrong to say that the absence of that information, which is redacted to protect the confidentiality [and] human rights of a patient, must now be visited against us to set aside a decision. That is just wrong.
“Why is that wrong? Because the absence of that information surely must prejudice the onus-bearing parties who have come to court to say a particular decision is unlawful.
“They, not us, must then say: ‘given the record; the decision is unlawful’. They, not us, made an election with their eyes open not to enforce the rights provided in our law to compel discovery,” he argued.
The case continues.