21 June 2022 14:00 by Merilyn Kader
In Democratic Alliance v National Commissioner of Correctional Services and Others  2 All SA 134 (GP), urgent application for a declaration of unlawfulness against the decision granting Mr Zuma medical parole under s 75(5) of the Correctional Services Act.
By Merilyn Rowena Kader LLB (Unisa), Legal Editor at LexisNexis South Africa.
Criminal law and procedure - Release of prisoner on medical parole: 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 s 75(5) of the Correctional Services Act 111 of 1998 (the Act). The parole decision followed the CC’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 took the decision to place Mr Zuma on medical parole, without considering the grounds listed in ss 79(1)(b) and (c) of the Act.
The DA and HSF sought to have the medical parole decision reviewed and set aside and replaced with a decision refusing medical parole and requiring Mr Zuma to return to prison to serve out the remainder of his sentence. According to the applicants, Mr Zuma did not satisfy the requirement for medical parole as set out in s 79(1) of the Act.
It was held that the alleged abuse of power in the present proceedings, if proven, would impact the rule of law, and the matter was accordingly urgent.
The placement on medical parole extends to physically incapacitated offenders and those suffering from an illness that severely limits their daily activity or self-care. The Medical Parole Advisory Board, an independent expert body, must impartially and independently make a medical determination whether an offender is terminally ill or is suffering from an illness that severely limits his daily activity or self-care. It is the Board, and not the doctors treating the offender, which decides if an offender is terminally ill or severely incapacitated. If its recommendation is positive, the Commissioner must then decide whether s 79(1)(b) and (c) are satisfied. The recommendations of the Board are ordinarily decisive and binding on the Commissioner, who does not have the medical expertise to overrule the recommendation of the Board.
The Commissioner’s decision to grant Mr Zuma medical parole was an administrative exercise of public power and, therefore, had to be lawful, rational, reasonable, and procedurally fair. In its expert assessment, the Board had already considered medical reports, which the Commissioner then reconsidered and relied on to overturn the recommendation of the Board. In so doing, the Commissioner impermissibly usurped the statutory functions of the Board, and his conduct was irrational, unlawful and unconstitutional. The reasons given by the Commissioner to release Mr Zuma on medical parole were not connected with the requirements for medical parole and were not authorised by the empowering provision.
The effect of the Commissioner’s decision was to unlawfully mitigate the punishment imposed by the CC, thereby rendering the Constitutional order ineffective, which undermined respect for the courts, the rule of law and the Constitution itself.
In the premises, 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.
Merilyn Rowena Kader
Legal Editor at LexisNexis