The Constitutional Court order relating to a case involving former President Jacob Zuma has illuminated some of the flaws in the law governing medical parole in South Africa. This is despite amendments in 2012 to ensure equality before the law, uphold offenders' rights to dignity and healthcare when they suffer from serious physical health problems.
Zuma's case has cast doubts upon the efficacy of the law in achieving these objectives. In short, his parole tested the buoyancy of the law in facilitating the medical release of offenders without political or other interference. He eventually returned to jail on the morning of 11 August, but was immediately released on remission of sentence.
The Constitutional Court rejected the Department of Correctional Services' application for leave to appeal against the 2022 judgment of the Supreme Court of Appeal (SCA). The SCA had found that Zuma was unlawfully granted medical parole against the advice of the Medical Parole Advisory Board.
Zuma (81) was sentenced to 15 months' imprisonment for contempt of court after he failed to comply with the Constitutional Court's order requiring him to appear before the State Capture Commission, which probed mass corruption on his watch. Less than two months after his admission to prison, he was released on medical parole.
The NGOs, Helen Suzman Foundation, AfriForum, and the opposition Democratic Alliance brought separate urgent applications to the High Court to have the parole decision declared unlawful. The foundation also wanted Zuma to serve the full term of his sentence in prison, and that his time on medical parole not be counted as time served. For convenience, all three applications were heard together.
The High Court in Pretoria ruled in 2021 that Zuma was indeed granted medical parole unlawfully, as the Medical Parole Advisory Board did not recommend it in his case because he was not terminally ill as required by the law. He was therefore to return to prison. And the time he was out of prison on medical parole should not have been counted as time served. The correctional services department appealed against the High Court's order to the Supreme Court of Appeal, which dismissed the appeal.
It, however, also ruled that the question of whether or not the time Zuma spent on unlawful medical parole should count towards his time served must be determined by the correctional services department. The department applied to the Constitutional Court for leave to appeal against the supreme court's judgement. The apex court rejected this application. The judgement of the appeal court must therefore be enforced and Zuma would have to return to prison.
Medical parole in South Africa is governed by Section 79 of the Correctional Services Act, together with Regulation 29A of the Correctional Services Regulations.
Zuma's release on medical grounds in September 2021 highlighted at least three potentially fatal flaws in these laws. The first and second flaws relate to the role of the Medical Parole Advisory Board and the Commissioner of Correctional Services, respectively. The third defect concerns the question of what ought to be done about the time an offender spent outside prison if he was unlawfully granted medical parole.
As a law academic with a research interest in correctional issues, I have tracked developments in this area of the law. I believe that section 79 of the Correctional Services Act is open to political manipulation. In the main, the powers and functions of the Medical Parole Advisory Board require elaboration. Additionally, the principle that medical parole can only be considered by the commissioner if the board has confirmed the illness or incapacity of the offender, and if the correctional facility cannot provide the appropriate care, must be expressly included in the law.
The process and gaps in law
A medical parole application must be accompanied by a medical report which recommends placement on medical parole. This report must be submitted to the Medical Parole Advisory Board. The board comprises ten medical practitioners, who must provide an independent medical report to the commissioner.
In this regard their role is clear. They must determine if an
offender is suffering from a terminal disease or condition or if such offender is rendered physically incapacitated as a result of injury, disease or illness so as to severely limit daily activity or inmate self-care.
If the board finds that an offender is not terminally ill or incapacitated, as was the case with Zuma, that ought to be the end of the matter as the main requirement for medical parole does not exist. It is the absence of a statement to this effect in section 79, which may leads to exploitation.
Where the Medical Parole Advisory Board finds that an offender is terminally ill or incapacitated, this does not mean that medical parole must automatically be granted. The correctional regulations require the board to make a recommendation, on the "appropriateness to grant medical parole in accordance with section 79" and Regulation 29A (7) of the correctional services department.
It's not clear what "appropriateness" means. And it must be remembered that offenders ought not to be released due to ill health only. If an offender can be cared for in a dignified manner in prison, he should not be released. However, section 79 does not make this clear.
Logically, the board is in a position to decide the medical aspects of an application and to guide the commissioner on the care and conditions which are consistent with optimising the quality of life of offenders. The commissioner should then consider whether the prison facility has the means to follow such guidance in caring for an offender.
Unfortunately, the law does not require the board to offer such guidance. Nor does it require the commissioner to determine if the means to care for an offender exist in the prison. These gaps in the law are exacerbated by the omission to specify whether the commissioner has the power to ignore the recommendation of the board, as in Zuma's application.
Furthermore, section 79 tasks the commissioner with determining the risk of re-offending and if appropriate care is available in the community to which the offender will be released. If afforded medical guidance regarding the necessities to care for the offender, the determination of the availability of appropriate care may not be too onerous.
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The same can, however, not be said about determining the risk of re-offending. Section 79 provides a list of factors in assessing such risk. These factors, among other things, include the offence(s), sentencing remarks of the court and the criminal past of an offender. While they may all seem relevant in assessing future criminality, there is no indication as to how they should be weighed up. This is a task which should involve clinical evaluations by forensic psychiatrists, but the legislation does not require this.
Unfortunate omission
The weaknesses in section 79 may explain the low number of successful medical parole applications in recent years. For example, if an offender is lawfully released on medical parole, but their health improves or even if they are cured, they cannot be forced to return to prison.
Contrarily, if an offender was unlawfully released on medical parole, they must return to prison to serve their time, as became clear in Zuma's case. However, the question of whether the time spent outside prison on unlawful medical parole should be regarded as time served, still looms.
It is unfortunate that the Supreme Court of Appeal referred this question back to the Department of Correctional Services - the very department that flagrantly violated the law. In this regard the High Court's finding that it has the power to enforce the sentence term should have been confirmed by the SCA to ensure equality before the law.
Chesne Albertus, Senior Lecturer in Criminal Justice and Procedure, University of the Western Cape
