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.
Someone at the Correctional Services Department must have been taking a course in creative fiction writing. How else to explain their most recent press statement which argues there is no basis to review the decision to free fraudster Schabir Shaik on medical parole?
Shaik – who was released because he was supposedly in the last stages of a terminal illness because he allegedly suffers from high blood pressure – was reportedly seen driving around Durban in his fancy BMW this weekend. His usually garrulous family declined to comment on his health, giving a little more credence to the report that a DA councilor spotted Shaik this weekend buying party balloons and looking in excellent health. The DA councilor claims he then followed Shaik to his house, but the security allowed Shaik to enter for a well deserved rest without the DA councilor getting the opportunity to inquire after Shaik’s health.
Perhaps this medical miracle was the result of Shaik taking part in a medical trial in Melbourne. The Science Daily reports that the clinical trial showed significant improvement in blood pressure of participants who were given a new catheter-based treatment where blood pressure lowering medication had failed. I can only hope that if Shaik is not on this treatment yet, he would immediately get access to this treatment to save his life. Driving when one is terminally ill must surely be very dangerous to one’s health!
In any case, the Department said despite the reports of Mr Shaik’s miraculous recovery, there was no basis for a review of the decision. According to a report in the Mail & Guardian the Department said:
“It must be remembered that Mr Shaik was examined by three medical doctors who concurred that he qualified for placement on parole in terms of Section 79 of Correctional Services Act,” the department said in a statement.
In terms of the Act, offenders who were in the final phases of a terminal illness could be placed on parole to die a consolatory death. The decision of the three medical doctors was also subjected to scrutiny by the Health Professions Council of South Africa, which actually cleared them of any wrong doing, the department said.
It was also crucial to note that the Act made no provision for re-incarceration of parolees who might have recovered or not died within a given period of time.
Now, this statement is, I am sad to say, untrue. First, three doctors did not – I repeat NOT – concur that Shaik qualified for placement on parole in terms of Section 79 of Correctional Services Act. It is worth recalling that section 79 states as follows:
Any person serving any 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 a terminal disease or condition maybe considered for placement under correctional supervision or on parole… to die a consolatory and dignified death.
We know that the doctors did not diagnose Shaik as being in the final phase of a terminal illness or condition. Instead what the doctors did say was that:
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.
Although the doctors recommended Shaik for medical parole, they did not do so in accordance with section 79 as they did not find that he was in the final stages of a terminal illness as required by section 79. Legally, the effect of the doctors reports and recommendation was therefore utterly irrelevant and cannot be used to justify Shaik’s release. It had the same legal effect as a recommendation from a doctor to release Shaik because Shaik was a swell fellow, had a mean taste in cigars and was a friend of the President.
The factual basis for the recommendation did not conform to the requirements of section 79 and the Board was legally required to ignore the recommendation as it did not provide the factual basis required by section 79 for release. The fact that it nevertheless released Shaik, means that the Board did not act in terms of section 79 when it ordered Shaik’s release and hence, the Board most probably acted unlawfully.
That decision can be reviewed by a Court and set aside as it was not a legally valid decision. The principle of legality requires a public body exercising power in terms of legislation to act in accordance with that legislation. Where a public body ignores the requirements of the law when exercising a discretion it acts unlawfully and as such the unlawful decision can be reviewed and set aside by a court, which would mean Shaik was unlawfully released and that he should immediately be returned to prison where he belongs with the other 100 000 criminals duly convicted of terrible crimes.
In any case, the Minister has decided not to refer the matter the Parole Review Board despite the overwhelming evidence that the decision to release Shaik was taken unlawfully. The decision by the Minister can therefore also be taken on review on the basis that it was irrational or taken in bad faith, given the fact that the Minister was appointed by Shaik’s old friend and a benefactor of Shaik’s considerable (corrupting) generosity, President Jacob Zuma.
To be fair, if I was the Minister I might not have referred the matter to the Parole Review Board either. Driving a R1 million car and enjoying the other perks of being a Minister must surely weigh more heavily than any duty to adhere to the law. Who cares about the law? After all, the law is for poor people; for strikers and teachers and other sods who have not managed to ingratiate themselves with the powers that be.
If the matter had been referred to the Parole Review Board – as it should have been – and the Board had overturned the unlawful decision by the Parole Board, Shaik would have had to go back to prison where he belongs. The Department of Correctional Services are therefore not sticking to the truth when it says there is nothing to be done now that we seem to have come close to confirming that Shaik is not terminally ill and that he was released from prison because he happens to be a friend of the First Dude.
From Shaik’s perspective this is not a bad thing. After all, he is finally getting a return on his considerable investment in President Zuma. All those “loans” to Zuma, the sucking up, the payment of school fees and the soliciting of a bribe on behalf of Zuma is finally paying off! Who says crime does not pay – eventually.BACK TO TOP