The Supreme Court of Appeal (SCA) has found that former prisons boss Arthur Fraser had no legal power to override the Medical Parole Advisory Board and release Jacob Zuma – and slammed him for using the July unrest as justification for his "unconstitutional decision".

In a ruling written by Judge Tati Makgoka, the SCA on Monday morning confirmed that the medical parole granted to Zuma by Fraser was unlawful and set it aside. The unanimous Bench stressed that the effect of this order was that "Mr Zuma, in law, has not finished serving his sentence".

"He must return to the Estcourt Correctional Centre to do so. Whether the time spent by Mr Zuma on unlawfully granted medical parole should be taken into account in determining the remaining period of his incarceration, is not a matter for this Court to decide," the court ruled.

"It is a matter to be considered by the Commissioner. If he is empowered by law to do so, the Commissioner might take that period into account in determining any application or grounds for release."

The Department of Correctional Services said it was still studying the ruling, which effectively put the decision about Zuma's future incarceration in its hands – with the caveat that the commissioner must be "empowered by law" to make a call on the impact of Zuma's time on medical parole on his 15-month sentence for contempt of the Constitutional Court.

That will put significant pressure on the department to make sure that any decision it makes in regard to Zuma can withstand legal scrutiny.

Zuma was jailed by the apex court after he defied its ruling to appear before the State Capture Inquiry to answer questions that did not implicate him in specific crimes and then launched scurrilous attacks on its justices. His imprisonment was followed by eight days of deadly unrest and looting in KwaZulu-Natal and Gauteng, which left 350 people dead and resulted in billions of rands in damage to businesses and properties.

Fraser had tried to use the unrest to justify his decision to grant Zuma medical parole, which he granted despite the Medical Parole Advisory Board – which is made up of doctors and medical experts – finding that the former head of state did not qualify for it.

While stressing that Fraser did not have the legal power to override the board after it recommended against medical parole being granted, Makgoka found that – even if he was "the ultimate decision-maker" on medical parole – the former Zuma administration spy chief's decision "does not pass muster".

The judge said Fraser "took into account factors which are totally irrelevant in the enquiry of whether Mr Zuma qualified for medical parole", including the former president's age, his "status as former Head of State" and "the riots which occurred in parts of KwaZulu-Natal and Gauteng in July 2021, allegedly as a result of Mr Zuma's incarceration".

Fraser had also claimed that the Department of Correctional Services had "no capacity to give Mr Zuma the specialised care that he requires".

"While these factors may well be taken into consideration in an application for normal parole, they have no bearing at all in an application for medical parole. To that extent, the Commissioner acted irrationally," Makgoka said.

Makgoka said Fraser also failed to make any mention of a crucial requirement for the granting of parole: the risk of re-offending. Following his release on medical parole, Zuma has continued his unsubstantiated attacks on the courts that have ruled against him.

"Thus, on any conceivable basis, the Commissioner's decision was unlawful and unconstitutional," Makgoka said. 

"The High Court was correct to set it aside."

Crucially, the SCA's ruling has confirmed that the commissioner of correctional services cannot grant medical parole to an inmate "unless the [Medical Parole Advisory] Board makes a positive recommendation on the appropriateness to grant medical parole".

The "upshot", Makgoka said, was that, "once the Board has properly applied its mind and concluded that an inmate does not suffer from a terminal illness or physical incapacity so as to severely limit daily activity or inmate self-care, the Commissioner is not entitled to grant medical parole".

"Thus, in the absence of a positive recommendation by the Board, the Commissioner had no power to release Mr Zuma on medical parole," he added.

That ruling will make it close to impossible for an inmate who is not terminally ill or physically incapacitated to the point of not being able to care for him or herself to be released on medical parole – and blocks the potential for political concerns to override medical realities.