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 Schabir Shaik (the crook who became famous after being convicted of soliciting a bribe on behalf of President Zuma and also of bribing Zuma), was released from prison on medical parole because he was supposedly “terminally ill” and had to be released so that he could “die a dignified death”, everyone – apart from the few sad and many scary ANC sycophants and Commissars who would claim the earth is flat if that was the official government line – knew that this was a lie and that Shaik was released unlawfully.
When Shaik later appeared as fit as a fiddle playing golf and insulting and assaulting journalists left right and centre, this just confirmed what we already knew – that he was unlawfully released on fake grounds because he had bribed the President and needed to be kept happy so that he would not embarrass our President by telling all to the expectant world.
Although this is not a popular statement to make, the fact is that, legally, the situation with the release of former Police Commissioner Jackie Selebi on medical parole is fundamentally different. No one is disputing the fact that Selebi is ill. But perhaps because of the shameless flouting of the law by the Parole Board in the Schabir Shaik case, people are jumping to the conclusion that Selebi was either released unlawfully or that he received preferential treatment. The simple fact is that the law provides a Parole Board with a wide discretion to grant medical parole and Selebi almost certainly qualify for release in terms of the newly amended section of the Correctional Services Act.
Section 79 of the Correctional Services Act has been amended to increase the discretion of the National Commissioner of Correctional Services, the Correctional Supervision and Parole Board or the Minister of Correctional Services, to release prisoners on medical parole. Section 79(1) now states that a prisoner may be considered for medical parole if:
(a) such offender is suffering from a terminal disease or condition or if such offender is rendered physically incapacitated as a result of injury, disease or illness so as to severely limit daily activity or inmate self-care;
(b) the risk of re-offending is low; and
(c) there are 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 any application for medical parole be supported by a written medical report recommending placement on medical parole. The written medical report must include, amongst others, the provision of a complete medical diagnosis and prognosis of the terminal illness or physical incapacity from which the sentenced offender suffers; a statement by the medical practitioner indicating whether the offender
is so physically incapacitated as to limit daily activity or inmate self-care; and reasons as to why the placement on medical parole should be considered.
Section 79(5) state that several factors may be taken into account when making a decision on granting medical parole, including whether the judge was aware of the medical condition for which medical parole is sough; any relevant sentencing remarks of the trial judge or magistrate; the type of offence committed by the prisoner and the length of the sentence outstanding; the previous criminal record, if any, of the prisoner; or any other relevant factors such as the conduct, disciplinary record, adaptation, training, aptitude, industry, physical and mental state of the prisoner.
In terms of the amendments, which were passed last year and came into effect earlier this year, the Minister is supposed to promulgate Regulations within six months (to be approved by Parliament) on the process to be followed when releasing a prisoner on medical parole, but this has not yet been done.
Unfortunately many commentators, politicians and outraged members of the public have not studied the relevant provisions of the Act before making idiotic statements about the matter. On the one side one finds somebody like ANC Chief Whip, Mathole Motshekga, who is quoted as saying that not releasing terminally ill prisoners would be a serious violation of the Constitution. “The Correctional Matters Amendment Act… ensures that the rights of offenders who are seriously and terminally ill are protected, and that they can request release on medical grounds,” Motshekga said.”To not release terminally ill prisoners would not only be a serious violation of the Constitution, but a morally repugnant abuse of human rights.”
This is not true. The Act does not grant anyone the right to be released from prison on medical parole – no matter how ill he or she might be. Neither does the Act limit the granting of medical parole to terminally ill prisoners. The Act grants discretion to the relevant authority to grant medical parole if a prisoner is terminally ill or if that prisoner is physically incapacitated by an illness to the extent that it limits the ability of the prisoner to take care of him or herself and to be active in prison. But even if a prisoner complies with these criteria, medical parole will not automatically be granted to a prisoner who applies. Other factors, such as the previous criminal record of the prisoner, the seriousness of his or her crime and his or her behaviour in prison will also play a role in making a decision on granting medical parole. Motshekga, as is often the case, got the law terribly wrong, so everyone should please ignore any comments he ever makes about the law and the Constitution.
Given the wide discretion provided in the Act for the granting of medical parole, the comparison between the situations of Jackie Selebi and Clive Derby-Lewis is also spurious. Derby-Lewis was convicted of murdering a human being. Jackie Selebi was convicted of taking a R100 000 bribe. Neither of them have a right – in terms of the Act – to be granted medical parole, but the seriousness of the crime can be considered when deciding on exercising the discretion. There is legally nothing wrong with the exercise of this discretion in different ways, based on the fact that one applicant is a murderer and the other one is not.
The Constitutional Court has made no finding on whether any rights in the Constitution grants a right to a terminally ill or very sick prisoner to be released and,a s I have pointed out, neither is such a right granted by section 79 of the Correctional Services Act. This means that Derby-Lewis, like any other prisoner, has no right to be released from prison because he is very ill. I would argue that the law should be changed to limit the discretion of parole boards so that they are required to release terminally ill prisoners on medical parole unless pressing and substantial reasons exists for not doing so. For example, unless a terminally ill prisoner is found to remain a highly dangerous and a continued threat to the community, I can see no reason why a that prisoner should not be released if he or she is really going to die soon. It is the humane and compassionate thing to do. (I am not talking of a situation like that of Schabir Shaik where a perfectly healthy person was released from prison for political reasons.)
On the other hand there have been many people stating as fact that Selebi was released because he is politically connected. Some also claim that the release was a flagarnt flouting of the law. These statements have no basis in the known facts.
Although the question does arise from the release of Selebi whether he received special treatment because he knew the right people, this is not a legal, but an ethical issue. If other prisoners who are just as ill as Selebi and was committed of similar crimes as Selebi applied for medical parole and was not granted such parole, while Selebi was purely because he is Jackie Selebi and not any other criminal, this would be unfair. In order to establish that this was indeed the case, it would be necessary to obtain the detailed statistics about which applicants have been released on medical parole and which ones have not been released since the new provision on medical parole came into effect. As far as I know, no such statistics are available, so it is not possible to say for certain – as it was with Schabir Shaik – that the medical parole was granted in a manner that displayed unfair favouritism to a politically connected criminal.
Of course, it might well be that Selebi received preferential treatment, but at this point there is no evidence for this. And in the absence of clear proof that he was only released because he knew friends in high places, there is no way in which one could argue that the release was unlawful. Some people might not support his release, and they have every right to punish the governing party at the next election by voting for another party if they dislike the parole decisions taken under its auspices. But that is – in the absence of more evidence – a purely political and not a legal issue.BACK TO TOP