The dust seems to have settled over the controversial medical parole that was granted to Schabir Shaik in March this year. The prosecution, trial and execution of the sentence, and subsequent release leave a trail of executive interference in the sphere of competence of the third branch of state power. Not only the fpower to prosecute (s 179 of the Constitution) but the constitutionally binding nature of judicial decisions (s 165(5) of the Constitution) has been severely compromised.

Review of the legality of Shaik's medicalf parole by the correctional supervision and parole review board has so far been blocked by the executive, but this does not automatically exclude judicial review of it. There are three options for judicial review, two of which are viable. In order to assess Shaik's medical parole, the facts are briefly recapitulated:

The prosecution of Shaik

Like in the case of Tony Yengeni, the tandem Ngcuka-Maduna featured prominently in the corruption charges against Jacob Zuma and his financial advisor, Durban businessman Schabir Shaik.

At first Bulelani Ngcuka, then NDPP, accused then deputy president Zuma and Schabir Shaik of bribery. Then strangely, on 23 August 2003, Ngcuka and Penuell Maduna, justice minister at that stage, called a press conference where Ngcuka announced that although investigations into Zuma's involvement in the arms deal had produced a prima facie case of corruption, the NPA decided not to charge him as they considered the case ‘unwinnable'. Two days later Shaik was arrested and charged (inter alia) with facilitating a bribe for deputy president Zuma from a French arms dealer amounting to R500 000 a year.

It was later claimed that the decision not to prosecute Zuma was apparently made on orders of former president Mbeki. Feinstein related that the charge sheet for the arrest of Schabir Shaik was drawn up to charge both Shaik and Zuma. When presented to Ngcuka, he is alleged to have responded: ‘I will charge the deputy president only if my president agrees.' Feinstein alludes to conversations with prosecutors, where they indicated that a ‘shadowy financier' close to Mbeki and Zuma who played an ongoing role in financing the ANC, ‘was off limits'.

It is difficult to establish whether this concession to the prosecutors was also calculated to eliminate Zuma as a rival or whether it was just a desperate attempt by Mbeki to buy time in the hope that the arms deal scandal would die a silent death. That story gained its own momentum.

Trial and conviction of Shaik

Shaik was convicted on two counts of corruption and one of fraud and sentenced to the minimum sentence of 15 years imprisonment by the Durban High Court on 2 June 2005. He then applied to appeal against the judgment. On 6 November 2006 the Supreme Court of Appeals (SCA) dismissed the appeal. Following that, Shaik sought leave to appeal against the decision of the SCA to the Constitutional Court. It is not necessary to go into the lengthy details of the litigation. Suffice it to say that Shaik used every possible legal remedy to get around serving the sentence but finally had to go to prison.

Circumstances surrounding the medical parole

Shaik served 28 months of his 15 year sentence, but was actually only 84 days in prison and the rest in diverse clinics and hospitals. Word leaked that he was discharged from hospital by the doctors four months before his release. He remained in hospital on orders of the prison authorities. Then astoundingly, on 3 March 2009 Shaik was released from prison on medical parole because he was ‘terminally ill'. Compromising evidence surfaced that Shaik tried to buy a R10-million home in one of Durban's prime suburbs just a week before he was released on medical parole - hardly something one expect of a dying man.

The medical doctors who supposedly certified that Shaik was ‘terminally ill' contested the truth of this allegation and said they did not. The aggrieved doctors called on the former correctional services minister Ngconde Balfour to release ‘the full details' of Shaik's parole information. The head of the cardiology department at Albert Luthuli Central Hospital, Professor DP Naidoo, who previously discharged Shaik from hospital, said that he feared reprisals because he spoke out and revealed the truth about Shaik's condition. The hospital then instituted a blanket ban on any further discussion of the matter by hospital personnel. The matter was to be handled only by the hospital's public relations department. Naidoo's word stands against that of Durban psychiatrist, professor A E Gangat, cardiologist dr Sajidah Khan and correctional services practitioner dr Ngenisile Mbanjwa. The parole board met with Mbanjwa and Gangat on 26 February, and Khan on 1 March. It is conspicuous that the parole board deliberately chose not to consult the cardiologist who treated Shaik in hospital and who discharged him.

The doctors who treated Shaik were subject to a probe by the Health Professions Council of South Africa to determine if there was ‘any misconduct' on their part that resulted in the controversial granting of medical parole to Shaik. They were formally cleared from any misconduct. The Council announced its committee of preliminary inquiry, consisting of ‘independent medical experts' (still excluding professor Naidoo), was satisfied ‘that the medical reports by various doctors were not exaggerated, misrepresented or falsified.' The condition of Shaik as a ‘gravely serious condition' was backed up by Professor Gangat and Dr Mbanjwa. The graveness of Shaik's condition was confirmed by an independent specialist outside of KwaZulu-Natal, based in the University of Cape Town, who wished to remain unnamed.

This hardly enables one to form a clear picture for a reliable assessment of the facts. However the record of Shaik's medical condition since his incarceration reveals a picture that lends credibility to the version of professor Naidoo. It is clear that the circumstances surrounding the release of Shaik on medical parole is more than suspect.

Executive footwork

The Parole Board of Durban Westville steadfastly countered that in terms of s 75(8) of the Correctional Services Act the ‘decision of the board is final' and can only be reviewed by the correctional supervision and parole review board led by judge Desai.

There was considerable public pressure on former correctional services minister Balfour to order a review of Shaik's medical parole, but he refused to do. There were also several requests from opposition parties, many interests groups and the South African Human Rights Commission that former president Motlanthe should investigate possible irregularities and subject the medical parole decision for scrutiny to the review board - all to no avail.

The pattern in the case of Shaik's parole shows some similarities to that of Boesak's parole and subsequent pardon. In both cases an executive solution as last resort to avoid serving the sentence was already considered during appeal procedures. The alarm bells should have started to ring in January 2007, when the idea of a medical parole for Shaik was floated for the first time. Although Shaik's brother Yunus denied that the family would be seeking a ‘medical pardon', there were several reports the Shaik family actively lobbied the prison authorities for a medical parole.

The events indicate that this option might have been contemplated all along. The length of Shaik's sentence barred him from parole or a release under correctional supervision until he served at least half of the sentence (s 73(6)(a) Correctional Services Act of 1998). His sentence could therefore not so easily be ‘converted' into a more lenient one by the department of correctional services like in the cases of Boesak and Yengeni. The only exception to this rule would be when Shaik were diagnosed as terminally ill and in the final phase of dying (s 79 of the Correctional Services Act). Only then a placement under correctional supervision or parole would be possible.

A helping nudge

At the time when Shaik was granted medical parole, the Damocles sword of having to stand trial for corruption, fraud, money-laundering and racketeering was still hanging over the ANC president's head. During the Shaik trial the presiding judge rebuked the prosecutors for not having charged Zuma as well since bribery is a bilateral crime and perpetrators ought to be charged together. The intertwinement of Shaik and Zuma's fate can hardly be overlooked.

A short while before the controversial release of Shaik, ANC president Zuma said in an interview with The Weekender that Shaik should receive a pardon on medical grounds (see video at bottom of page). Shaik's release sparked off an intense public protest, to which Zuma reacted by lashing out at South Africans ‘for wanting his former financial adviser Schabir Shaik dead.' He stated that, given Shaik's health, he should have been released long ago.

The ANC claimed that it was not involved in Shaik's parole and that the decision was taken independently by the parole board. However, it is known that Shaik bankrolled the ANC and Zuma. Apparently he also sponsored Zuma's fourth wedding the year before.

The release of Shaik in March 2009 also had the distinct advantage for an embattled Zuma that he could avoid pardoning Shaik himself after he came to power. Such an act simply might have been too brazen given the context of the close symbiosis of Shaik and Zuma.

The Amendment Act

In the flurry of reporting around the release of Shaik there was also claimed that Shaik was released on medical parole ‘just weeks before a change in the law kicked in that would have given the inspecting judge of prisons the power to refer the decision for review.' This is misleading. Apart from the fact that the legislation has not taken effect yet, it would not have changed anything material with regard to Shaik's release. It merely would have made it easier and less risky.

Section 79 dealing with medical parole in the 1998 version of the Act reads:

"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 any 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." (Emphasis added.)

The amendment exchanged the words ‘the court' with ‘the Minister' (s 55 of the Correctional Services Amendment Act 25 of 2008). The provision thus scraped the option that courts can also grant medical parole. This in itself however does not affect the route taken by the Durban Westville parole board. It simply would have opened another route which would have enabled the minister to grant Shaik medical parole directly. This might have been a consideration when this statute was initiated and adopted in November 2008 when things became critical for Shaik after professor Naidoo discharged him from hospital.

The legislation undeniably strengthened the executive's grip on procedures to exclude review mechanisms regarding parole and correctional supervision. Section 75(8) stipulates that unless the minister or commissioner refers a matter for review to the review board, ‘the decision is final'. Although review of such a parole decision is formally possible, the watchdogs who decide whether a matter would be passed on for review are all members of the executive branch. Compared to the current legislation, the new legislation would make it possible that the minister can personally grant medical parole and also decide whether the review board may review his decision. Under these circumstances the constitutionally binding force of judicial sentences has become a farce.

Judicial review of Shaik's medical parole

So far the executive blocked all requests to refer the medical parole decision of Shaik to the review board, but even so the matter can be taken directly to court for judicial review.

The only constitutional authorisation for pardons and remissions of sentences is section 84(2)(j) of the Constitution. This provision conferred the former prerogative of mercy, which used to be exercised by the neutral nominal head of state, on the executive president in his capacity as head of state. This used to be ‘judicial prerogative' under the former Westminster system and the exercise of this power was limited by convention. The state president could only grant a pardon or remission of sentence on the recommendation of the minister of justice. This was a ‘quasi-judicial' function and not an executive power.

The Constitutional Court confirmed the constitutionality of this provision in two cases on the premises that the concurrent offices of the president as head of state and head of the executive would not affect the separation of powers. Although the Constitutional Court considered British precedent on the review of the prerogative of mercy, it failed to make the traditional distinction between the various categories of prerogative powers. Instead of distinguishing between the so-called ‘executive' and ‘judicial' prerogatives, the Court simply assumed that all prerogative powers are automatically executive powers. This misconception dates back to a dictum in Sachs v Dönges (1950) where the Appellate Division assumed that all prerogatives are executive in nature even though the nominal head of state was not a member of the cabinet.

Furthermore, in The President v Hugo (1996) the Constitutional Court also did not contemplate the implications of its decision for the separation of powers. In the mean time, the power of pardon and reprieve has been turned into an executive discretionary power with administrative character by the courts in the two Chonco cases (2008). The lack of clear conceptual distinction between criminal law and administrative law has therefore turned the former quasi-judicial prerogative into an administrative power. The consequence of this untenable position is that criminal law and administrative law are mixed with regard to the execution of sentences. If this is consistently applied, prisoners would soon be able to claim ‘a right' to be pardoned or to have their sentences converted in terms of s 33 of the Constitution (administrative justice).

But the situation is actually far more dramatic. In the early 1990s the old department of justice was split in two and the execution of sentences was transferred to a new department of correctional services.  When the executive initiated legislation in 1998 to get the state prosecutors back under the control of the executive, it launched another legislative project, which culminated in the Correctional Services Act. This Act casted the department of correctional services as part of the executive branch (s 2 and 3 of Act 111 of 1998). Previously sentences were executed by the department of justice on behalf of the judiciary since they have no own infrastructure, but it was a sui generis power because it is actually quasi judicial in nature. With this move the executive also transformed parole into an executive power, which legitimates the right to impose ‘alternative sentences' to those which were meted out by the courts. Previously the granting of parole was part of the prerogative of mercy, and although it had been statutorily delegated to the minister of justice, it was no executive power.

It appears that the motivation for these legislative endeavours had been the desire to escape legal consequences of the government's embroilment in the arms deal. This way the cabinet could control whom the prosecutors may prosecute, and in case somebody got convicted, they could convert the sentence afterwards. This constitutes a grave inroad upon the sphere of judicial and prosecuting powers and a course correction is of utmost importance.

One should therefore bear this in mind when considering review possibilities of Shaik's medical parole.

Given the fact that the granting of parole is currently cast in the form of administrative action the controversial grant of medical parole to Shaik would technically be reviewable by a court on that basis. Whether it is sensible to contest Shaik's medical parole on the basis of administrative review - even if the law construes it like that - is doubtful. In reality it is not administrative action but a quasi-judicial function. It would therefore be more appropriate to contest the validity of the medical parole on the basis of its statutory legality and the constitutional tenability of it.

The courts have the duty to uphold the rule of law and constitutionalism. A court will therefore be able to examine whether the legislation was correctly applied - not only procedurally, but also in a material sense:

In terms of section 75(8) of the Correctional Services Act, the minister or the commissioner has the power to refer a medical parole decision taken by the parole board to the review board. The statute does not provide that they may review the decision themselves. The discretion is therefore limited to a mere procedural formality. In other words, if there appears to be malfeasance involved in the granting of medical parole, the minister practically has no leeway but to refer the matter to the review board.

In this regard the minister clearly exceeded his powers. In a press release correctional services spokesman Manelisi Wolela stated that: ‘The minister has looked at the report [ie the report of the Durban Westville parole board], applied his mind, and decided the matter is correct.' This goes beyond the powers conferred upon the minister and constitutes a procedural error.

A further procedural mistake was that for all practical purposes a review power was granted to the medical council, although the statute does not provide for that. The medical council has no power to decide whether a medical parole was in order.

Furthermore, the court has the power to examine whether the statutory requirements for the release of Shaik on medical parole have been met. This means that a court has the power to double check the medical condition of Shaik. Grave illness is not a sufficient ground for medical parole. In fact, the provision stipulates that even terminal illness can only be considered as a reason to grant medical parole once such a condition ‘is diagnosed as being in the final phase'. Only a dying person can be released on medical parole.

The about-turn of the minister that Shaik was not ill and should return to prison just months before to him suddenly being satisfied that Shaik was about to die, is not convincing.

Apart from these considerations, which is based strictly upon the current applicable law, constitutional review would also be possible. The certification of the Constitutional Court that section 84(2)(j) of the Constitution is compatible with the state organisation of a constitutional state is open to serious critique. There are also other problems relating to the open-ended and unrestricted formulation of this provision. This is only provision in the Constitution which authorizes pardons and remissions of sentences. In its current form, it is a power which must be exercised by the president in his capacity as head of state and not as head of the executive. The Constitution has not mandated a delegation of these powers. In other words, he can exercise these powers only in his personal capacity and cannot delegate that to the executive branch. There is no constitutional basis to transform the power of pardon and remission into a power that would allow the executive to convert constitutionally binding sentences of the courts as they please. Exactly this is happening. This is obviously in conflict with section 165(5) of the Constitution which stipulates that an order or decision by a court ‘binds all persons and organs of state'. That includes the minister of correctional services and the parole board.

Loammi Wolf specialises in constitutional law and has a special interest in transitional democracy, constitutionalism and state organisation law. She obtained an LLM at the University of Virginia and a doctorate in constitutional law at Unisa. She also studied at the Karl Ruprecht University in Heidelberg and qualified in taxation law and chartered accountancy in Frankfurt, Germany. She is currently running the initiative Democracy for Peace.

Click here to sign up to receive our free daily headline email newsletterff