Legal opinion is split on whether prisons boss Arthur Fraser had the power to overrule a medical parole advisory board’s recommendations not to place former president Jacob Zuma on parole the way he did.
During a SABC interview with Vuyo Mvoko on Wednesday, Fraser admitted that, following the board’s recommendations against medical parole for Zuma who was found to be “stable” – he had “rescinded delegation”.
“I took the decision then to place him on medical parole,” he said, adamant he had provided “a host of reasons” and it was “legal and procedural”.
But Professor Lukas Muntingh of the University of Western Cape’s Dullah Omar Institute yesterday said the decision looked to fall foul of the latest correctional services regulations, which only provided for the national commissioner to step in and make a final decision if the board recommended parole.
In a statement announcing the decision on Monday, the department of correctional services relied on section 75(7)(a) of the Correctional Services Act, which provides that the commissioner “may place under correctional supervision or day parole, or grant parole or medical parole, to a sentenced offender serving a sentence of incarceration for 24 months or less”.
But Muntingh said the Act, read together with the regulations, made it “very clear” the commissioner’s power was qualified.
“The board has to recommend medical parole. If it does not, then he has no say on the matter,” Muntingh said.
The regulations in question require the medical parole advisory board to make a recommendation on whether a candidate for early release meets the criteria of being terminally ill or severely incapacitated.
But they state further that if the medical advisory board’s recommendation is that an offender should indeed be placed on parole, “then the national commissioner, the correctional supervision and parole board or the minister, as the case may be, must consider whether the conditions stipulated in section 79[b] and [c] are present”.
These sections of the Act state the risk of re-offending must be low and there must be appropriate arrangements for an offender’s care outside of prison.
For Muntingh, this was key.
“The national commissioner can only deal with those two issues if the board recommends medical parole. If it doesn’t, the issue becomes superfluous,” he said.
Advocate Paul Hoffman, who heads up anti-corruption lobby group Accountability Now, also said the decision didn’t appear to him rational or legal; and added that Fraser ought to have excused himself from the matter from the outset because of his relationship with the former president in his capacity as his one time State Security Agency head.
But Dr Llewelyn Curlewis, who lectures law at the University of Pretoria, said while the decision seemed to him “very concerning”, it was within Fraser’s power to make it.
“I do think there was likely some kind of preferential treatment based on the duo’s previous relationship.
“Many inmates would have loved to be considered for such parole and they have been incarcerated for way longer than Zuma and are still there,” Curlewis said, lamenting what he described as a lack of transparency in the process.
He took a different view of the board’s role, though, describing it as “merely there to make recommendations”.
“No-one said at any stage the national commissioner must actually follow it,” he said.
Curlewis said the regulations were subordinate legislation.
In the end, it looks like the courts will have the final say. The opposition party, the Democratic Alliance, is today expected to launch a legal challenge to the decision to grant Zuma parole.