The credibility of South African medical parole system has been cast into the spotlight once again, after Justice and Correctional Services Minister Michael Masutha recently announced his decision on the parole applications of three apartheid assassins, Eugene de Kock, Clive Derby-Lewis and Ferdie Barnard.
Project co-ordinator of the Civil Society Prison Reform Initiative at the University of the Western Cape (UWC), Lukas Muntingh said that within an average of 1000 and 1200 applicants roughly 10% of applicants are successfully granted parole.
Following the controversy in recent years around the granting of medical parole to Jackie Selebi and Schabir Shaik a review of how the regulations would be applied was undertaken.
We can only speculate whether there was meddling in the Schabir Shaik case or not. But the end result is one that raised a lot of suspicion, and brought the system into disrepute. Whatever the reasons were; stricter and clearer guidelines were developed in order to prevent the re-occurrence of that situation.”— Lukas Muntingh, Project co-ordinator of the Civil Society Prison Reform Initiative at UWC
What is medical parole?
Medical parole is a parole system granted on medical or humanitarian conditions. The parole system in South Africa is governed by the Correctional Services Act. In March of 2012 the Act was amended to simultaneously broaden the circumstances under which medical parole can be granted and tighten up the process undertaken for it.
So the quality of medical parole decisions that we will take from now onwards will be decisions that can stand up to scrutiny by the South African society.— Former Justice and Correctional Services Minister, Nosiviwe Mapisa-Nqakula on the new medical parole system
Who can apply?
According to Muntingh, the purpose of medical parole is for the person ‘to die a dignified and consolatory death’.
The legislation prior to the 2012 amendment stipulated that the applicant must be in the final stages of their terminal illness. The new amendment, however, omits the terms “final stages” and it is in the regulations to the Act that the decision-makers are listing the illnesses and stages of illness which begin to define the degree of sickness an applicant must be in.
The regulations also say that the medical parole review board can take any other factor into consideration, granted that it is in line with Section 79 of the Correctional Services Act. This means that the board, to a certain extent, is able to exercise their own discretion.
The issue of what kind of criminal applies is a contentious issue, but according to Muntingh, ultimately, the kind of offence should play no part in a medical parole verdict. It is however, complicated by the list of regulations.
The Correctional Services legislation changes affect the sentence calculations and parole applications for offenders. Though there are variations, there is a rule of thumb that those sentenced after 2004 are required to serve at least half their sentence before applying for parole. Whilst those sentenced prior to 2004, generally have to serve one third of their sentence before they can be considered.
How is the outcome decided?
As of 2012, a prisoner may be released on medical parole under the three following conditions:
- The 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 risk of re-offending is low; and
- There are appropriate arrangements for the inmate’s supervision, care and treatment within the community to which the inmate is to be released.
It could be that with these amendments in place there will be many disparities in applying the laws on medical parole simply based on socio-economic status, but Muntingh cautions generalizing as the exact profile of medical parole refusals is unknown.
It is very often the case that the person meets the requirement because of their health condition. They do not pose a risk of re-offending, but very often there are no support structures on the outside such as family or access to healthcare …where, if they were to be released, they would be in a poorer state of care than they would be in prison.— Lukas Muntingh, Project co-ordinator of the Civil Society Prison Reform Initiative at UWC
Who decides the outcome?
The sentence length determines who makes the decision to grant regular parole. If an inmate is serving a sentence of two years or less, then the responsibility lies with the head of the prison. Instead of being seen by the parole board, they are seen by the case management committee and the head of the prison makes the decision.
If the sentence is longer than two years, but not life imprisonment, it is the parole board that decides. However if a person is sentenced to life imprisonment it then becomes the Minister of Justice and Correctional Services who makes the final parole decision.
If the decision is challenged and taken on judicial review, ultimately the Minister must justify in court, that the decision taken was “rational decision based on facts”.
Medical parole, however, must come from a recommendation by the parole board, to the medical parole review board.