What the Doctor Ordered: Lessons From Abroad to Strengthen South Africa’s Medical-Parole System

Abstract

Certain outcomes of South Africa’s medical-parole system in recent years have raised questions about the adequacy of the legislation governing the system, particularly in respect of eligibility criteria and cancellation of parole should the offender recover. Cases in point include the to-ing and fro-ing on compliance with criteria in the Derby-Lewis matter, Jacob Zuma’s near-immediate release on medical parole, and the granting of medical parole on grounds of terminal illness to Zuma’s former advisor Shabir Shaik, who served barely two and-a-half years of his fifteen-year sentence and has since been spotted out and about. To ascertain how the medical-parole regime in South Africa compares with other jurisdictions, this article juxtaposes it with the systems in Canada and the American states of Mississippi, New York and California. The comparison takes into account the type of parole available, illnesses that would typically qualify a prisoner for medical parole, the minimum period of imprisonment to be served, types of conviction excluded from medical parole, as well as the option to cancel medical parole. A comparative strength of the South African system appears to be the delineation of a clear, transparent application process, which not unimportantly includes the provision of a comprehensive, well-defined list of eligible illnesses and conditions. South Africa should also be commended for not relying on the type of conviction as a deciding factor in granting medical parole, thereby adhering to the nation’s founding value of human dignity enshrined in the Constitution. Yet there is also ample room for improvement. Requiring prisoners to serve a minimum period of imprisonment before they can apply for medical parole could help prevent abuse of the system as a quick escape route. In addition, arguably the most important step South Africa could take to strengthen the system would be to provide for the cancellation of medical parole where the parolee recovers.