Zuma’s parole on very Shaiky ground, but likely to go unchallenged

There is ample ammunition to challenge the decision to grant former President Jacob Zuma medical parole, but the National Prosecuting Authority (NPA) may have no interest in doing so, according to experts.

After weeks of the NPA’s fight to get Zuma to provide a medical report proving that he isn’t fit to stand trial, the former president has successfully convinced a Parole Board to grant him parole, after serving just a fraction of his sentence for contempt of court. The decision apparently based on a medical report which deemed him too sick to serve the 15-month prison sentence handed down to him.

NPA spokesperson advocate Mthunzi Mhaga says the body will not comment on whether it will challenge Zuma’s parole until the matter of his fitness to stand trial appears before court on Thursday.

Were the correct processes followed?

The Centre for the Advancement of the South African Constitution (Casac) says until the department of correctional services (DCS) divulges more information about how Zuma’s parole decision was made, the decision raises far more questions than there are answers. “… we do not have sufficient information from the department of correctional services to determine whether a proper process was followed in granting medical parole to Mr Zuma,” says Casac director Lawson Naidoo. He says questions that arise include:

• Who requested the parole – Mr Zuma, his medical team or the department itself?
• What are the conditions attached to the granting of parole?
• Did the department follow the process as outlined in the law properly, and was Mr Zuma treated as any other prisoner would?

“I am not sure that the NPA would have any interest in challenging this decision – they were not the prosecutors in the contempt charge,” he says.

Also Read: Mockery of SA law’: Zuma’s medical parole in violation of Act, says DA

A legal expert close to the case who does not want to be named claims that the department appears to have ignored Section 79 (3) of the Correctional Services Act which was amended in 2011 to include a stricter process to grant medical parole.

Concurring with this is another legal expert, Dr Delano Cole van der Linde, senior lecturer in the department of public law at Stellenbosch University. He argues that a decision to place a prisoner on medical parole must occur within the framework of the Section 79 of the Act.

Moreover, a decision to place someone on medical parole is an administrative decision, subject to review by a court under the Promotion of Administrative Justice Act 33 of 2000. The latter compels government to enact administrative action that is lawful, reasonable, and procedurally fair and to the right to written reasons for administrative action as contemplated in section 33 of the constitution.

“Section 79(3) of the Correctional Services Act provides that the minister ‘must establish a medical advisory board to provide an independent medical report to the national commissioner, correctional supervision and parole board or the minister, as the case may be, in addition to the medical report referred to in subsection 2(c)’ (my own emphasis),” Cole points out.

“The wording of this provision is peremptory and in other words compulsory. This has also been confirmed by the the High Court in Johannesburg in Derby-Lewis v Minister of Justice and Correctional Services 2015 (2) SACR 412 (GP) (29 May 2015), where it was held that ‘an independent medical report must be provided in terms of section 79(3)’.”

Cole therefore believes there could be strong argument that the provisions of the Correctional Services Act were not followed if the medical advisory board was not established, and an independent report was not provided and considered.

The public concern exists, he continues, that the provisions allowing for medical parole can be abused. The original intent of the provision for medical parole is to provide prisoners with terminal illness a dignified death outside of the prison. The public therefore has a legitimate interest in wanting those who have contravened the laws of the land to serve their sentences out, Cole says.

DA and Afriforum to bring challenges

The Democratic Alliance (DA) and civil rights group AfriForum are planning to legally challenge Zuma’s medical parole.

DA leader John Steenhuisen has indicated the party will argue on the grounds that the DCS did not follow the proper channels before making the decision.

AfriForum policy head Ernst Roets has called the event a violation of justice that cannot merely be accepted.

“AfriForum views the announcement that former president Jacob Zuma was released on medical parole as a violation of justice. The civil rights organisation is currently in consultation with its legal team about the possibility to apply for an urgent review application,” the group says in a statement.

Shaikey Grounds

The DA links its planned legal challenge to Zuma’s business associate Schabir Shaik, who was granted medical parole in 2009, after he was convicted on corruption charges involving Zuma who was a former KwaZulu-Natal MEC at the time.

The opposition party suggests that the NPA has violated the Correctional Matters Amendment Act of 2011, which made it mandatory after this event for the justice and correctional services minister to convene an independent medical parole board before coming to such a decision.

After Shaik’s medical parole was granted in 2009, parliament’s portfolio committee on correctional services unanimously supported the amendment of Section 79 of the Act to stipulate that in addition to the medical report obtained by the parolee, the minister of correctional services must establish a medical advisory board to provide an independent medical report to the national commissioner, correctional supervision and parole board, or the minister.

The DA points out that this amendment was made to specifically ensure that officials could not be manipulated into granting parole on medical grounds to any prisoner not deserving of it, as was ostensibly done for Shaik.

“A report on the health status of any prisoner must be subject to recommendation by an independent board to confirm, in truth, that a prisoner is indeed deserving of medical parole. Given that Jacob Zuma publicly refused to be examined by an independent medical professional, let alone a medical advisory board, this decision is a violation of the Act and therefore unlawful,” the DA’s John Steenhuisen says.

Simnikiweh@citizen.co.za