In Democratic Alliance v National Commissioner of Correctional Services and Others  2 All SA 134 (GP), urgent applications were brought by the Democratic Alliance (DA) and the Helen Suzman Foundation (HSF) for a declaration of unlawfulness against the decision of the then National Commissioner of Correctional Services, Mr Arthur Fraser, to grant the third respondent (Mr Zuma) medical parole under s75(5) of the Correctional Services Act 111 of 1998 (the Act). The parole decision followed the Constitutional Court’s sentencing Mr Zuma to 15 months imprisonment for contempt of court after he failed to comply with an order of that court, requiring him to appear before a Commission of Enquiry. Although the Medical Parole Advisory Board decided not to recommend medical parole, the Commissioner decided to place Mr Zuma on medical parole, without considering the grounds listed in ss 79(1)(b) and (c) of the Act.
Medical parole is a parole system granted on medical or humanitarian conditions. It is governed by the Correctional Services Act. Since its inception, it has been amended to broaden the circumstances under which medical parole can be granted. Medical Parole extends to physically disabled offenders and those suffering from an illness that limits their daily activity or self-care. The Medical Parole Advisory Board is an independent body, that impartially and independently decides whether an offender is terminally ill or is suffering from an illness that severely limits his daily activity or self-care. Further, it must be noted that it is the Board, and not the doctors treating the offender, which decides if an offender is terminally ill or severely incapacitated.
Section 79(1)(a) of the Correctional Services Act provides that an inmate may be considered for placement on medical parole if he is suffering from a terminal disease or condition or rendered physically incapacitated because of injury or illness to severely limit daily activity or inmate self-care. Additionally, it requires appropriate arrangements for the inmate’s supervision, care, and treatment within the community to which the inmate is to be released.
Section 79(2) requires that every application for medical parole be accompanied by a written medical report recommending placement on medical parole. Further, it stipulates that the medical report must include-
- complete diagnosis and prognosis of the terminal illness or physical incapacity from which the prisoner suffers;
- a statement by the medical practitioner indicating whether the offender is so physically incapacitated as to limit daily activity or prisoner self-care; and
- reasons as to why placement on medical parole should be considered. The rules regarding such laws are clear-cut and straightforward.
The recommendations of the Board are generally decisive and binding on the Commissioner, who does not have the medical expertise to overrule the recommendation of the Board. Medical Parole can’t be used as an alternative means to get out of jail. The law is strict and specific in this regard. Therefore, in the premise of this matter, the impugned decision was reviewed, declared unlawful, and set aside and Mr Zuma was required to return to prison to serve out the remainder of his sentence.
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