Without commenting on the desirability of granting Clive Derby-Lewis parole on medical grounds, I wish to comment on why I believe the Minister erred in law in an attempt to justify his decision, and why I believe it will head to court, and is likely to be successful.
The simple test, in my view, is whether the Minister was correct in claiming that Derby-Lewis and his condition did not satisfy the requirements of the regulations in terms of granting parole on medical grounds, and specifically that his lung cancer was at stage 3 and not at stage 4 as stipulated in the regulations.
Section 79 of the Correctional Services Act (No. 111 of 1998, as amended in 2011) provides the statutory framework for medical parole.
Section 79(1) in particular lays out the grounds on which medical parole may be considered.
It reads as follows:
Any sentenced offender may be considered for placement on medical parole, by the National Commissioner, the Correctional Supervision and Parole Board or the Minister, as the case may be, if—
(a) such 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; (b) the risk of re-offending is low; and
(c) there are appropriate arrangements for the inmate’s supervision, care and treatment within the community to which the inmate is to be released.
It is worth noting that all three criteria must be satisfied for parole to be considered (as indicated by the ‘and’ after subsection (1)(b)).
Section 79(2) requires that a medical report support a recommendation, and Section 79(3) requires that the independent Medical Parole Advisory Board (consisting of medical practitioners appointed by the Minister) provide an independent recommendation to the Minister.
Section 79(4) further states that placement on medical parole must take place under Chapter IV of the Act, which basically just governs the conditions and principles of sentenced offenders in general.
Section 79(8) then compelled the Minister (S’bu Ndebele at teh time) to make regulations within six months after promulgation of the Act regarding “the processes and procedures to follow in the consideration and administration of medical parole”. Noteworthy here: the processes and procedures to follow, and not the conditions.
The regulations (or subordinate legislation / delegated legislation) does not and cannot override the principle Act, and gives operational effect to the statutory framework laid down by Section 79, and specifically 79(1).
The Medical Parole Advisory Board recommended that Clive Derby-Lewis be placed on medical parole because, in their view, his condition satisfied the three requirements laid down by Section 79(1)(a-c), in particular, that he “is rendered physically incapacitated as a result of injury, disease or illness so as to severely limit daily activity or inmate self-care”.
Regulation 29A item 5 states:
“In the assessment by the Medical Parole Advisory Board, the Board must consider whether the offender is suffering from:
(b) Non-Infectious conditions-
(i) Malignant cancer stage IV with metastasis being inoperable or with
both radiotherapy and chemotherapy failure.
The Minister used this to, among other non-statutory criteria, justify his decision not to release Clive Derby-Lewis.
However, there are two things to be said about this.
First, Regulation 29A item 5 merely requires that the Medical Parole Advisory Board consider whether an offender is suffering from, in this case, malignant cancer Stage IV. It does not mean that if an offender is not suffering from those conditions s/he may not be considered at all, or is not eligible.
This is, secondly, supported by Regulation 29A item 6 which states:
The Medical Parole Advisory Board may consider any other condition not listed in sub-regulation (5)(a) and (b) if it complies with the principles contained in Section 79 of the Act.
Finally, Regulation 29A item 7 states that:
The Medical Parole Advisory Board must make a recommendation to the … Minister, on the appropriateness to grant medical parole in accordance with section 79(1)(a) of the Act. If the recommendation of the Medical Advisory Board is positive, then the … Minister must consider whether the conditions stipulated in section 79(1)(b) and (c) are present.
The Minister relied solely on Regulation 29A item 5, and ignored item 6.
Secondly, Minister argued that because it was not Stage IV lung cancer, he is not eligible and, relying on this, claimed that in terms of section 79(1)(a) he was not “rendered physically incapacitated as a result of injury, disease or illness so as to severely limit daily activity or inmate self-care”.
Finally, the Minister read into Section 79(1)(b) a criteria / qualification which does not exist, namely that “the risk of re-offending is low” includes, as he argued, “there is no indication on the profile as to whether the offender has shown remorse for the crimes committed”.
A court application will require the Minister to indicate why he ignored Regulation 29A item 6, how he read provisions into Section 79(1)(b) which do not exist (and as a result acted ultra vires), and finally, how and on what basis he came the conclusion that, contrary to the finding of the independent Medical Parole Advisory Board, the offender is not “rendered physically incapacitated as a result of injury, disease or illness so as to severely limit daily activity or inmate self-care”.
Comment by Marius Redelinghuys