As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.
When the Minister of Correctional Services, Ncondo Balfour, said in his statement last week that “three medical practitioners’ collective submission shows a unanimous conclusion that Mr [Schabir] Shaik is in ‘the final phase of his terminal condition’”, I was rather skeptical. With good reason, as it turns out.
Business Day reports this morning on one of the three medical reports that Balfour referred to and also links to a copy of the report. If these doctors are to be believed (and at this stage we do not know whether they are honest doctors or whether they are doctors with the same kind of ethics as those who treated Steve Biko) Schabir Shaik really is ill. But striking is the fact that nowhere in the report does it say – as section 79 of the Correctional Services Act requires – that Shaik is in the final stages of a terminal illness. So the report states:
Despite our best efforts, Mr Shaik’s pressure remains refractory to medication. The target organ damage, including progression in the severity of organ damage, has been objectively documented. He remains at risk for a stroke, heart attack and blindness.
We cannot keep him in hospital indefinitely, and since the prison authorities are reluctant to manage him at the prison hospital, where conditions are suboptimal, we recommend that he be considered for medical parole.
If Business Day is therefore correct that this was one of the three reports on which the parole board relied to release Shaik, then the Minister lied to the nation when he said all three reports concluded that Shaik was in the final stages of a terminal condition. It would then also mean that the parole board illegally recommended that Shaik be released on medical parole, as the medical reports then failed to establish the factual basis for a release.
Minister Balfour said that he would only refer this matter to the parole review board if hard evidence is provided to show that there might have been a problem with the decision to release Shaik. This medical report seems to provide just such hard evidence.
We will have to wait and see whether the Minister will keep his word and will now refer the matter to the parole review board. Given the fact that he has already lied about this matter, I am not holding my breath that Minister Balfour will now keep his word. He seems to have a troubled relationship with honesty and truth.
Section 1(d) of the Constitution states that South Africa is a democratic states founded on the values of “[u]niversal adult suffrage, a national common voters roll, regular elections and a multi-party system of democratic government, to ensure accountability, responsiveness and openness“. The kind of democracy established by our Constitution therefore requires public representatives to be open, to be responsive and to give account of their actions – especially when those actions seems on its face to have been dishonest and misleading
Given the emergence of this new information, it would therefore be imperative that the Minister now accounts to us – whom he is supposed to serve – and do the necessary explaining. If he had any respect for our Constitution and for the electorate, he would have to explain to us why he seemed to have misled the public. At the very least, he will have to explain why he got it wrong and why he told us that all three reports stated that Shaik was in the final stages of a terminal condition, when this was not the case.
I fear, though, that the Minister will not show the requisite respect for our democracy and for the electorate and that he will try and ignore the facts in an attempt to ride out the storm. We have such short memories and who knows what scandal or crisis will detract our attention from this scandal.
But luckily the ANC has recently again reiterated its firm commitment to the Constitution and to clean government . This means the ANC will surely call on the Minister to explain himself and will request the President to instruct the Minister to come clean. The ANC will also surely now call on the Minister to refer this matter to the parole review board, because surely it is a party of its word.
If the ANC fails to make any statement on this issue, it will suggest that when it speaks abour respect for the Constitution and clean government, it is just joking and telling us what it thinks we want to hear without necessarily believing a word of what it is saying.
But I am sure the ANC is an honorable party, so poor Minister Balfour must be in deep trouble. Yeah.BACK TO TOP