The mother of all embarrassments

While Schabir Shaik, the former financial adviser to President Jacob Zuma, has been arrested by officers from Correctional Services this does not mean that the South African public should assume that his bail is about to be cancelled.

Minister Nosiviwe Mapisa-Nqakula confirmed on Monday that Shaik had been picked up and taken to the Durban Westville Prison allegedly following a weekend report in the Sunday Times that he had purportedly punched a man, Mohamed Ismail, outside a mosque in Durban.

Add the allegations of another police investigation — that Shaik choked and slapped a Sunday Tribune reporter on a golf course about two weeks ago — as well as his astounding longevity for someone released on medical parole and his other parole infractions and people would be justified in assuming that he’s a certainty for Schabir does Westville Part II.

It’s not so simple.

Let’s track back a bit.

On June 2 2005, Shaik was found guilty of corruption and fraud and sentenced to 15 years in jail. On March 3 2009, having served only two years and four months of his prison term, he was released on medical parole.

What is that?

Section 79 of the Correctional Services Act 111 of 1998 (Act) says: “79. 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 may be considered for placement under correctional supervision or on parole, by the Commissioner, Correctional Supervision and Parole Board or the court, as the case may be, to die a consolatory and dignified death.”

The matter has been debated so often in the media that everyone knows that the final phase of a terminal illness means that the patient is at death’s door and should last a few months before their passing.

As some will recall, much of Shaik’s prison term was spent in hospital and despite the head of cardiology at the Inkosi Albert Lutuli Hospital in Durban, Professor DP Naidoo, personally discharging him in December 2008 — because he was considered well enough to leave hospital — within three months he had been granted medical parole.

In light of subsequent events this made a total mockery of medical parole, the doctors who supported it and Correctional Services for allowing it.

Worse, as correctly pointed out by NewsTime‘s Siyabonga Ntshingila, instead of going to ground and keeping a very low profile, Shaik made a total mockery of the entire criminal justice system by playing golf and carrying on totally non terminally-ill-like activities while it remained powerless to stop him.

Yet in terms of our law, Shaik appeared before the Correctional Supervision and Parole Board in March of 2009 where he was granted parole based upon his medical condition.

That decision is final and may only be reviewed by the Correctional Supervision and Parole Review Board in terms of Section 75 (8) of Act.

The board consists of a judge as chairperson, a director or a deputy director of Public Prosecutions, a member of Correctional Services, a person with special knowledge of the correctional system and two representatives of the public.

The majority of the members of the board constitute a quorum for a meeting and a decision by a majority of members is the decision. If it’s a tie, the member presiding has the deciding vote.

Section 77 of the Act says that on consideration of a record submitted in terms of Section 75 and any submission which the minister, commissioner or person concerned may wish to place before the board, as well as such other evidence or argument as is allowed, the board must: (a) confirm the decision; or (b) substitute its own decision and make any order which the Correctional Supervision and Parole Board ought to have made.

The board must give reasons for its decision, which are to be made available to the minister, commissioner, the person and the Correctional Supervision and Parole Board concerned in a specific matter and all other Correctional Supervision and Parole Boards for their information and guidance.

It would, in my very very humble submission, be inconceivable for the board to make a decision on the Correctional Supervision and Parole Board’s finding in terms of Section 79 (medical parole) as a result of ordinary parole infringements based upon the events at golf or the mosque.

It would make a total mockery of the whole idea of medical parole.

If Shaik has been found to be “in the final phase of a terminal disease or condition”, ludicrous as this may seem, then any revocation of his medical parole must be dealt with in accordance with medical submissions in order to finalise that aspect first before deciding on other parole infractions.

The alternative is the ridiculous situation whereby Correctional Services submit that he is about to die but shouldn’t be purportedly strangling people at golf or attacking worshippers in the parking lot at a mosque.

Where would that leave medical parole in South Africa?

Don’t forget that it is there so that people who are terminally ill can spend their last few days at home. Presently anyone who picks up a splinter in the prison yard would seem to qualify, meaning that the pendulum will have to swing back, resulting in cancelling it altogether?

What about redefining “final phase of a terminal disease” to mean anyone who takes more than 10 000 breaths has to return to prison?

How the board deals with Shaik’s continued day to day movements — which is over to them — is important but not as much as getting Correctional Services back onside.

In the interest of restoring credibility the board needs to go about this in strict accordance with the law to avoid compounding what is already the mother of all embarrassments to our criminal justice system.