Quote of the week
Although judicial proceedings will generally be bound by the requirements of natural justice to a greater degree than will hearings before administrative tribunals, judicial decision-makers, by virtue of their positions, have nonetheless been granted considerable deference by appellate courts inquiring into the apprehension of bias. This is because judges ‘are assumed to be [people] of conscience and intellectual discipline, capable of judging a particular controversy fairly on the basis of its own circumstances’: The presumption of impartiality carries considerable weight, for as Blackstone opined at p. 361 in Commentaries on the Laws of England III . . . ‘[t]he law will not suppose possibility of bias in a judge, who is already sworn to administer impartial justice, and whose authority greatly depends upon that presumption and idea’. Thus, reviewing courts have been hesitant to make a finding of bias or to perceive a reasonable apprehension of bias on the part of a judge, in the absence of convincing evidence to that effect.
Livesey v The New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288
Jacob Zuma may have to serve at least another two months behind bars before being considered for parole
It should have come as no surprise that the Supreme Court of Appeal earlier this week confirmed that the granting of medical parole to former president Jacob Zuma by the erstwhile Commissioner of Correctional Services, Arthur Fraser, was unlawful and invalid because Zuma did not meet the medical criteria for the granting of this kind of parole.
Although the Supreme Court of Appeal (SCA) did not mention this, Mr. Zuma had in effect admitted there were no valid medical grounds to release him on medical parole, when he denied at a media briefing last month that there was anything seriously wrong with his health.
Mr. Zuma bristled when he was asked at the briefing whether his alleged health problems did not disqualify him from standing for a leadership position in the governing ANC:
What’s wrong with the health… just tell me, what’s wrong with the health? Looking at me, am I in the bed lying in a hospital?
With this statement, Zuma seemed to confirm the findings of the independent report of the Medical Parole Advisory Board — a panel consisting of 10 medical doctors — that he did not comply with the requirement in section 79(1)(a) of the Correctional Services Act which states that:
Any sentenced offender may be considered for placement on medical parole, by the National Commissioner, the Correctional Supervision and Parole Board or the Minister, as the case may be, if 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.
The SCA confirmed this week in its judgment in National Commissioner of Correctional Services and Another v Democratic Alliance that medical parole can only be granted if the Medical Parole Advisory Board confirms that the prisoner is either terminally ill or physically incapacitated.
Medical parole cannot be granted on the say-so of the prisoner, his doctors or his legal representatives. Nor is the Commissioner of Correctional Services — normally not a medical practitioner — permitted to second-guess the finding of the board, as Arthur Fraser did with Zuma.
As the SCA pointed out, before the Correctional Services Act was amended in 2011, there was no Medical Parole Advisory Board; the Commissioner had the sole power to decide whether a medical condition was one that qualified in terms of the act for the granting of medical parole.
As the SCA pointed out: “This was open to abuse, as there was no provision for an independent medical opinion to verify the diagnosis by the inmate’s treating doctor”. Not only was it open to abuse, it was abused — at least in the case of Schabir Shaik.
Readers might recall that the act was amended after the controversy surrounding the release of Schabir Shaik on medical parole on 3 March 2009.
It was claimed at the time that Shaik, who had just started serving his 15-year prison sentence for being in a “mutually symbiotic” corrupt relationship with Jacob Zuma and for soliciting a bribe on Zuma’s behalf from a French arms company, was being released to allow him “to die a dignified death” because he was in the last stages of a terminal illness.
Shaik was released from prison less than a week after Zuma, who was then the president of the ANC and would soon be elected president of the country, had said publicly that as national president he would pardon Shaik on medical grounds. Of course, Shaik is still alive and well today, more than 5,000 days after his release.
Zuma will almost certainly approach the Constitutional Court to ask for leave to appeal against the judgment of the SCA. Assuming that leave to appeal will be refused because there is little prospect that the appeal will be successful, Zuma will have to go back to prison.
As the SCA explained, the invalidation of the medical parole means that: “Mr Zuma’s position as it was prior to his release on medical parole will be reinstated. In other words, Mr Zuma, in law, has not finished serving his sentence. He must return to the Escourt Correctional Centre to do so.”
Here, the SCA is merely confirming the well-established position that when a court invalidates a decision, it is as if the decision was never taken, with the situation returning to what it was on the day on which the decision was taken — unless a court explicitly rules otherwise.
This means that in terms of calculating the length of his remaining sentence, Zuma is now in the exact position he was in on the day he was unlawfully released on parole.
The legal position is, therefore, that Zuma has only served two months of his 15-month prison sentence. He will have to serve approximately two more months in prison before he would qualify for release on ordinary parole or correctional supervision.
This is because section 73(6)(aA) of the Correctional Services Act states that offenders serving a sentence of less than 24 months “may not be placed on parole or day parole until such offender has served either the stipulated non-parole period, or if no non-parole period was stipulated, a quarter of the sentence”.
Because the SCA declined to express an opinion on whether the time spent by Zuma on unlawfully granted medical parole should be taken into account in determining the remaining period of his incarceration, some of his supporters wrongly interpret the decision as giving the Commissioner of Correctional Services an unfettered discretion to allow Zuma not to serve the rest of his sentence.
But, as the SCA made clear, the commissioner can only do what he or she is legally empowered to do in terms of the relevant legislation.
As the relevant legislation prohibits the release of an offender serving a sentence of less than 24 months before an offender has served at least a quarter of their sentence, this must mean that once Zuma has served a quarter of his sentence, the commissioner will be able to consider any application for parole, and at this point the commissioner may arguably take into account the time spent by Zuma on unlawfully granted medical parole.
Whether this would favour Zuma or count against him when he applies to be released on parole, remains an open question.
I have not been able to find any other provisions in the Correctional Services Act that would allow the commissioner to deduct the period in which Zuma was on invalidly granted medical parole from his overall sentence.
Had Parliament not amended the Correctional Services Act in 2011 in an attempt to limit the abuse of medical parole (at a time when Zuma was serving his first term as president of the country), the SCA might not have been in a position to invalidate the sham medical parole.
This is because, before 2011, the act did not provide for a mechanism to test the veracity of claims made by the prisoner’s physician that the offender suffered from a terminal illness. One would normally expect physicians to act in the best interest of their patient, without making claims about their health that may not be true.
However, in the present case, Zuma’s personal physician, Dr QSM Mafa from the South African military, as well as the Surgeon General, had supported the application for medical parole.
Dr Mafa seemed to have done so by making claims about Zuma’s health that may not have been entirely accurate.
As the SCA noted, Mafa responded to the question of whether the offender suffered “from a terminal disease or condition” by answering “yes”, a claim that was obviously not true.
This raises questions about the reliability of medical certificates provided by members of the SANDF medical services in other court proceedings, as well as to the Zondo Commission of Inquiry, about Zuma’s health where he sought to be excused from proceedings on grounds of ill health.
It will be interesting to see how credible courts will consider future sick notes of this kind to be.
Hopefully, SANDF doctors who treat Mr. Zuma will in future continue to provide him with the best medical care available, while making sure that they do not imperil their own future by making claims about his health that may not be factually accurate.
