Release on Medical Parole: A Review of the South African Correctional Services Act

The terms and conditions of medical parole in South Africa were highlighted and much debated since the release of convicted fraudster Shabir Shaik (picture) from prison on 3 March 2009. Shaik, a former financial advisor of President Jacob Zuma, was sentenced to 15 years in prison on 2 counts of corruption and 1 of fraud.

Published on 17 July 2009 in ISS Today

The terms and conditions of medical parole in South Africa were highlighted and much debated since the release of convicted fraudster Shabir Shaik (picture) from prison on 3 March 2009. Shaik, a former financial advisor of President Jacob Zuma, was sentenced to 15 years in prison on 2 counts of corruption and 1 of fraud. He served 2 years and 4 months of his sentence, much of this in private hospitals. There was an outcry that this was preferential treatment. At issue, though, has been the adequacy of the Correctional Act itself, more specifically, section 79 of the Act.

Release on medical parole in South Africa is defined in terms of section 79 of the Correctional Services Act 111 of 1998 as “any person serving a sentence in a prison and who, based on the written evidence of the medical practitioner treating that person, is diagnosed as being in the final phase of any terminal disease or condition may be considered for placement under correctional supervision or on parole, by the Commissioner, Correctional Supervision and Parole Board or the court, as the case may be, to die a consolatory and dignified death.” It should also be noted that in terms of Section 75 (8) of the Correctional Services Act the “decision of the board is final and can only be reviewed by the Correctional Supervision and Parole Review Board led by a Judge.”

The Judicial Inspectorate of Prisons has recommended that section 79 of the Act be revised. The intention of the review would be to ascertain the following:

According to the 2007 Annual Report of the Judicial Inspectorate of Prisons, between 1996 and 2006, on average 72.8 prisoners were released on medical parole per year, with the highest and lowest number being 117 and 49 respectively. In 2007, 58 prisoners were released on medical parole, and 25 released between April 2008 and March 2009.

In his speech addressing the release of Shaik on 4 March 2009, former Minister Nconde Balfour announced that he had reviewed the application as is his right according to section 75 (8) of the Act, and is of the view that the decision of the parole board was in fact correct. He went on to explain how he arrived at this conclusion and stated that there was a “unanimous decision of 3 medical doctors that Shaik is in the final stage of his terminal condition, and that one of the medical practitioners even went so far as saying that his condition has reached an irreversible condition”.

By contrast, Jacob Kgatlane was denied release on medical parole in June 2009, despite having been advised by doctors that he has less than 18 months to live. Kgatlane has full-blown Aids as well as malignant lymphoma (lymph cancer). The reason for this denial was that the doctor who examined him declared him to be "as strong as a horse". The media has had varying and many opinions about the Shaik case. Much of this relates to the suspicion that the terminality of the illness in Shaik’s case may have been prematurely diagnosed whilst in the case of those with readily identifiable terminal conditions, of those prisoners with less political stature, the wheels of the application of the Correctional Services Act may turn much slower.

Penal reform seeks to promote the operation of a more effective and efficient prison institution, which includes issues of governance. What this case, and that of the recently highlighted conditions of the Zimbabwe prisons indicates is that we need to be paying much more attention to penal reform and its standardization across the continent. There appears to be a high number of fatalities in prisons across Africa. A review of the parole conditions, inclusive of medical parole, should be part of the penal reform process. Parole conditions, that satisfy both the need to protect society and the rights to a dignified death of prisoners, can go a long way in alleviating overcrowding, as well as preventing the spread of communicable diseases within these institutions. Part of the penal reform should emphasize practices such as thorough medical inspection of newly admitted prisoners as well as continued/follow-up visits from medical staff. In the case of South Africa, it is necessary for the Correctional Services Act to more clearly define the word terminal, by possibly adding a time stipulation to the definition.

Penal reform should form part of broader processes of security sector reform (SSR). The Organisation for Economic Co-operation and Development – Development Assistance Committee (OECD-DAC) has defined SSR as: “seeking to increase partner countries’ ability to meet the range of security needs within their societies in a manner consistent with democratic norms and sound principles of governance, transparency and the rule of law. SSR includes, but extends well beyond, the narrower focus of more traditional security assistance on defence, intelligence and policing.” In order to strengthen and improve the quality of a country’s security sector, focus needs to be placed on all spheres of security sector reform, and this needs to include issues of penal reform. Penal reform is usually the last agenda item on the list of issues to be addressed by SSR. The safety of the community is an important concern for SSR. Part of creating that safety is the necessity for an adequate penal system. However, this system also has to address the needs and rights of the prisoners themselves. It is this latter aspect that often shifts penal reform to the last slot on the SSR agenda.

Tarrin-Rae Oxche, Junior Researcher, Security Sector Governance, ISS Tshwane (Pretoria)