Parole in South Africa-what went wrong?

The Shabir Shaik return from the grave was quite a stir. It did not only give Mapisa-Ngakula haunting sleepless nights, but also led to the mutilation of the primary piece of legislation governing parole in the Republic. In earnest, all expected the convicted fraudster to "...die a consolatory and dignified death...". Nine years on, albeit a decade, Jacob Zuma's former financial adviser, released on terminal illness grounds, is healthy and enjoys a game of golf.

Parole deals with persons who, having gone through the three stages of criminal justice system, viz, the investigative stage, trial stage and the post-trial stage are released before the end of the actual imprisonment. It also refers to the process of the prisoner's supervised re-integration into the community whilst the prisoner serves the remainder of his sentence. Thus during this provisional release the parolee must obey the law, refrain from drug and alcohol use, avoid contact with the parolee's victim, must not obtain employment and should maintain required contacts with the parole officer. A prisoner can be released on medical grounds, humanitarian grounds and on a credit system earned by the prisoner during his incarceration.

In South Africa, it is the medical parole that is has put the system into disrepute. It also begs the question: does a prisoner acquires an enforceable right to be released on parole?

Before 1 March 2012 the early release of inmates on medical grounds was regulated by section 79 of the Correctional Services Act 111 of 1998.The erstwhile law only permitted the release of inmates who were in the “final phase of a terminal illness.” Inmates, suffering from life-threatening illnesses, but who were not bedridden or noticeably terminally ill, were considered ineligible for early release on medical grounds. The resultant inroads to inmates’ dignity attracted heavy criticism from our courts which heavily relied on the residuum principle laid down as early as 1912 by the learned Innes J, in Whittaker and Morant v Roos and Bateman. In casu, the dictum was “…inmates were entitled to all the personal dignity not temporarily taken away by law, or necessarily inconsistent with the circumstances in which they had been placed”. This is a salutary reminder that in truth the prisoner retains all his personal rights save those abridged or proscribed by law. In legal circles, the joke is: it is inhumane to detain an inmate until such a time as he no longer physically capable of committing further crimes!

The old medical parole system requirement of the “final phase of a terminal illness” posed a lot of challenges to the Parole Board. Medical doctors were reluctant to recommend inmates for release on medical grounds as it is “difficult to certify” that an inmate is in the final phase of a terminal illness. Seriously ill and/or severely incapacitated inmates were detained in correctional centres despite the fact that the Department of Correctional Services did not have the financial and human resources to provide them with proper care. It was not until the release of Shabir Shaik, former financial adviser to President Zuma, on medical grounds after serving less than three years of his 15 year sentence. This triggered public debate on medical parole and in way has given impetus to Clive-Derby Lewis to exercise his inviolable common-law right.

On 1 March 2012 a new section 79 of the Correctional Services Act came into operation. The old section 79 Correctional Services Act had been amended by section 14 of the Correctional Matters Amendment Act 5 of 2011.The new section provides for a prisoner, his relatives or officials to apply for medical parole based on the list of incapacitating disease and not just terminal illness. The list is exhaustive and among others includes the following: Stage IV AIDS, severe cerebral malaria, methicillin-resistant Staphylococcus aureus and MDR/ XDR tuberculosis. Non-infectious conditions include malignant cancer with inoperable metastases and both radiotherapy and chemotherapy failure.

 The Act also provides that any offender with a condition that constitutes a terminal disease or an offender who is rendered physically incapacitated as a result of injury, disease or illness “so as to severely limit daily activity or inmate self-care”, should qualify for medical parole. Finally, Regulation 29A(7) provides that if the Medical Parole Advisory Board’s recommendation is positive, the National Commissioner, Correctional Supervision and Parole Board or the Minister, must consider whether the inmate indeed poses a low risk of reoffending and whether appropriate arrangements for his supervision, care and treatment had been made.

So how did the loopholes exist in the parole system?

 Recently the Democratic Alliance (DA) has blamed “well connected” convicts and politicians for the lacuna in the medical parole system. It is alleged that, the new Minister of Police,Nkosinathi Nhleko played a major role in the parole of Shaik.Minister Nhleko,as regional Commissioner of Correctional Service in the KwaZulu Natal, advocated the parole of Schabir Shaik on dubious grounds of medical parole. This curse of well-connected convicts who commit crimes on behalf of powerful politicians has resulted in an unfair parole system. If you are poor and a political nonentity you are sure to “die a consolatory and dignified death” whilst in prison. Minister Nhleko is seen as an obedient servant of the President, and has accordingly been rewarded for all his efforts in favour of the President. Also despite the fact that, Schabir Shaik had been discharged by the head of cardiology at Inkosi Albert Luthuli Hospital in Durban having been considered to be well, he remained in the ward until his parole! How amazing!

To avert such a situation, the new law on medical parole provides for a Medical Parole Advisory Board. This Board comprises of ten medical doctors whose primary role is to provide an “independent medical report to National Commissioner of Correctional Services, the Correctional Supervision and Parole Board or the Minister of Correctional Services, as the case may be.” It is thus hoped that all cases concerning medical parole will be fairly assessed without giving weight to the characters involved.

Two names then spring to mind…. Clive Derby-Lewis and who knows….Oscar Pistorius.

Time will tell.

Mutsvara Shepherd
LLB (Unisa) LLM (University of London)

 mutsvaras@gmail.com