Despite grandiose complaints from some, Mr Zuma is not being “victimized and persecuted”. Something far more terrible is happening : he is being treated just like any other South African. Sometimes, there are valid reasons why a Law Court needs to consider the accused’s medical condition, in two main ways.
Firstly, in deciding whether he is fit to stand trial ; mentally well enough to be able to tell right from wrong, to understand what’s happening in Court, and to instruct his lawyers. And, despite his delight in finding any excuse to delay proceedings, Zuma does not seem so far to have claimed that he is mentally unfit. If one is not actually significantly mentally disturbed, some accused choose to simulate such impairment, hoping to avoid being pressed to answer difficult questions.
There have been hints from Zuma’s team that he may claim to have memory problems, so it wouldn’t at all surprise me if they did choose this extra tactic. But this does make it very difficult for him to claim selectively convenient memory : a complete blank for what he doesn’t want to reveal, yet to claim perfect memory for details that may be useful for his defence. And because such complaints are pathetically easy to fake, any sensible court would want them to be carefully assessed by a panel of relevant experts.
Secondly, there can be an issue of whether the medical state of an accused or witness, who is required to attend court, might make it impractical to expect them to attend at a particular time. And this is where Zuma, through others, has made barely credible claims that he is currently too sick to appear in court. If by any chance he is, his representatives are refusing to provide a shred of believable evidence that this is so.
Let’s be clear. Zuma is not entitled to any special privileges as an ex-President, and must be treated in court exactly like any other South African citizen. If he or his lawyer want to claim that he is too sick to attend court, there is a right way by which to do this, and the Judge was very wise to refuse to accept the excuse as it was presented. Despite the issue of a warrant for a potential arrest, it has been done in such a way as to only minimally inconvenience him, to excuse him for his failure to attend at the right time ( at very high cost to many other people ) and to allow him the delay he wanted, so long as he eventually satisfies the court that his medical excuse was objectively true and valid. It also gives him time to be able to claim a miraculous cure in time for the next session.
It is absolutely essential that a court is enabled to make such decisions only when based on genuinely expert, unbiased, objective and sufficiently detailed information. It is insulting to expect judges to simply accept a naked claim by the accused’s lawyer : that would lead to chaos. In one of my earliest court experiences, I was shocked to hear a lawyer lie shamelessly, and whispered this to the advocate next to me. He reminded me that the lawyers never take an oath to tell the truth in court.
At the very least there should be a detailed medical report, which must be made public, by one or more relevant specialists (a gynecologist, for instance, could probably not be helpful in Mr Zuma’s case).
In controversial cases or where the issue is very important, as in some of the cases where I have testified, it was common practice for a court to set up a panel of at least 3 experts : one nominated by the Defence, one nominated by the Prosecutor, and a third nominated by the Court, expected to be conspicuously neutral. But all the doctors involved, even though they may illuminate the particular arguments of one or other side, are expected to be objective, and to quote proper research and facts to support their arguments : their central role is to assist and inform the Court.
So what was wrong with Zuma’s sick note?
This was absolutely not a competent or sufficient medical report. It was less adequate than a mother’s sick note sent to school : ” Dear Teacher, Please excuse Johnny for arriving late today ; he had a stomach upset, so please excuse him from playing football today.” Indeed it was written on the form used in the Military medical services for exactly that purpose : to inform a junior soldier’s officer that he was unwell and should be excused duties for a few days !
Everything required in a medical report was absent. I would have been too deeply ashamed to allow such a report, had I anything to do with it, to be presented to court. It should tell us with detail who the doctor is ( and though he is not known in the profession for his clinical skills, he seems to be a politically very well connected administrator ). Grumbles that nobody should dare to question a medical certificate from a military hospital are deeply absurd.
Any honest and competent medical report to court must answer sensible questions. What basic medical and specialist qualifications and relevant experience does he have ? When did he qualify, and where ? On what is his report based ? Did he speak to and examine the accused ? If not, why not ? What were his specific findings ? What tests and investigations were done, with what results, and how are these interpreted ?
What was the diagnosis and it’s implications, especially as applied to the question of fitness to attend court and testify ? It is ludicrous to say the diagnosis was “Medical Condition” ; in decades of practice I’ve never seen such a silly example.
The accused cannot and should not claim confidentiality in this situation : if they value their privacy, then they can’t use their medical state as a strategy or excuse. It’s like claiming that you have an alibi proving you were not near the scene of the crime ; you would have to reveal all relevant details of where you claim you were, and prove it. You can’t expect the court to just take your word for it. Or to keep secret your claim of where else you were.
It has nothing at all to do with Ubuntu, or any other distracting term. It’s also an absurd exaggeration or invention, to claim that revealing the details of the illness of an ex-President would somehow endanger national security? How? Would enemies invade the country if they learned that a former President had ingrown toenails ?
Other aspects of claims about Zuma are hard to understand or believe, and no sensible court could accept them without proper evidence to prove their truth in cross-examination. It’s interesting that these claims seem to be made informally. We hear that Mr Zuma was poisoned at some time, but not what poison or what it’s effects ; and the police after investigating (surely they must have done so, diligently ?), declined to prosecute anyone.
We’re told that Mr Zuma has gone to Cuba for treatment, which is really odd. I’m not aware, and can I find no trace of, any poison which can’t be adequately treated in South Africa, but can be treated in Cuba. Cuban health-care has been good at basic primary care, but is not known as a world center of toxicology expertise. It seems odd that someone might be considered too sick to appear in court, but fit to travel halfway round the world. And odder that the court was not given a detailed report of his disorders and treatment from the Cuban doctors. Now we hear that he may have had two operations in South Africa ( not usually a treatment for poisoning ).
The Court has made a generally wise decision so far: let’s hope that the judge feels encouraged to be firm from here on, and to insist on the normal procedures as outlined above ; and the Zondo Commission should be as adamant about this. Let’s hope that after all the years of needless delay at public expense, the cases and inquiries can begin properly. Without some other variant on “the dog ate my homework” excuses.
Professor Michael Simpson is a South African psychiatrist who qualified in medicine and in psychiatry in Britain.