What is the Law on Medical Parole?

Medical parole is one of the more contentious issues found within the judicial system today. Opinions are often divided over how we, as a society, should treat criminals who are suffering from severe medical issues. In cases involving terminal illnesses, it may seem cruel to force a person to spend their last days behind bars. That said, a feeling of injustice can crop up throughout the community if too much leniency is shown to serious offenders who happen to get sick. What is the Law on Medical Parole?

Medical Parole is a type of compassionate release from prison in which the offender is let out early (usually with stipulations/conditions) due to medical or humanitarian concerns. In South Africa, the details of, and requirements for, medical parole are set out in the Correctional Matters Amendment Act 5 of 2011. 

These talking points have led to heated conversations all around the country, but there are still a lot of people who don’t know the basics about medical parole in South Africa. With this in mind, it’s probably a good idea to consider a few simple questions and get a handle on the argument, for example – Who is eligible for medical parole in South Africa? Who makes the final decision? And what is a compassionate release?

What is the Law on Medical Parole?
What is the Law on Medical Parole?

What are the Requirements for Medical Parole?

There are four major factors that influence this release procedure. Medical parole may be granted to inmates when – 

  • They are suffering from a terminal disease or condition
  • They are rendered physically incapacitated by an injury, illness or disease so as to severely limit daily activity or inmate self-care. 
  • The risk of re-offending is low; and
  • There are proper arrangements made for the inmate in terms of their care, supervision and treatment once they are released. 

Those last two points should highlight just how circumstantial this process really is, and how some horrible illness isn’t guaranteed to get a person out of prison. The final decision will also consider things like the inmate’s crimes and the conditions that await them should they be released.

Who Decides Whether Medical Parole is Granted?

The decision to grant medical parole is left to different groups/individuals depending on the inmate in question and the nature of their conviction. In other words, a person sentenced to 1 year in prison would have their case reviewed differently from a person serving a life sentence. 

The decision process would end up looking like this – 

Sentence TypeDeciding Authority
Two years of lessThe case management committee and head of the prison
More than two years but not life imprisonment 
Inmates declared ‘dangerous criminals’ in terms of the Criminal Procedure Act are also excluded. 
Correctional Supervision and Parole Boards 
Life imprisonmentMinister of Justice and Correctional Services

The aforementioned Correctional Matters Act also allows the National Commissioner to grant medical parole to inmates serving a sentence of 24 months or less. 

What is a ‘Dangerous Criminal’?

Section 286A of the Criminal Procedure Act defines a dangerous criminal as a person who ‘represents a danger to the physical or mental well-being of other persons and that the community should be protected against him’. 

The basis for this evaluation is normally determined by courts when considering – 

  • The personal characteristics of the individual as shown by their psychiatric report
  • The facts and context of the case
  • The individual’s history involving violent behaviour
  • The individual’s previous convictions
What is the Law on Medical Parole?
What is the Law on Medical Parole?

What is an Example of Medical Parole?

Perhaps the most iconic example of medical parole in South Africa can be seen in the case of Schabir Shaik. On June 2nd 2005, the South African businessman was found guilty of corruption and fraud and was sentenced to 15 years in prison

All these years later, Mr Shaik has only spent around 2 years and 4 months in custody as he was released on the grounds of a terminal illness. Mr Shaik’s serious diagnosis allowed him to receive medical parole rather than having to spend his last days behind bars. 

What is the Difference Between Medical Parole and Compassionate Release?

The term Compassionate Release is sometimes used interchangeably with medical parole, although the former phrase is rarely used in South Africa. As the term ‘compassionate release’ refers to parole given on medical and humanitarian grounds, it normally includes what we would normally just refer to as ‘medical parole’.

That said, there is a difference between compassionate release and compassionate leave. Section 44(1)(a) of the Correctional Services Act 111 of 1998 notes that prisoners may be granted temporary ‘compassionate leave’ in certain scenarios.  Unlike medical parole which is usually permanent and requires the inmates to suffer from some kind of illness or injury, compassionate leave may be granted to healthy prisoners who require some time out of prison for humanitarian reasons. 

A good real-world example of this could be seen when former president Jacob Zuma was temporarily released from prison so that he could attend his brother’s funeral.  Unlike a case of medical parole, Zuma was expected to return to prison just a few hours later. 

Who Qualifies for Compassionate Release?

The requirements for compassionate release would be similar to those needed for medical parole as mentioned above.

On the other hand, those wishing to qualify for compassionate leave would have their application judged on a case by case basis by the Commissioner of Correctional Services. 

Can You Apply for a Sentence Reduction?

You can apply to have your sentence reduced, however, you can only do this in a court of law and not through prison. In other words, you will need to apply for temporary leave so that you can make an appeal in court. 

Or, if you are very well connected, you could have your sentence reduced by the president using his plenary powers as brought out in Section 84(2)(j) of the constitution. 

It should be noted, however, that this type of appeal can backfire. In some cases, the court may conclude that the original verdict was too lenient and that your sentence should be increased. 

What is the Law on Medical Parole?
What is the Law on Medical Parole?

In Conclusion – What is the Law on Medical Parole and When is it Granted?

Medical Parole in South Africa involves the compassionate release of an offender on the grounds of medical and humanitarian reasons. For the most part, the process is governed by the Correctional Matters Amendment Act.

Inmates may be eligible for medical parole if they meet the following requirements – 

  • They are suffering from a terminal disease or condition
  • They are rendered physically incapacitated by an injury, illness or disease so as to severely limit daily activity or inmate self-care. 
  • The risk of re-offending is low; and
  • There are proper arrangements made for the inmate in terms of their care, supervision and treatment once they are released. 

Simply put, a person suffering from stage 4 cancer who is expected to die in a few months may be granted medical parole so that they do not have to spend their last few days in a prison cell. Alternatively, a person who experiences a severe injury and becomes an invalid may also be released so long as an adequate system of care exists for them when they get home. 

Applications for medical parole are considered by different groups and committees depending on the nature of the inmate and their sentence. In other words, an appeal from a person serving a 6-month sentence will be judged by a different group than that of a person serving a 60-year sentence. 

An influential factor in these proceedings is whether or not the accused is considered to be a ‘dangerous criminal’. This classification is given to individuals who are determined to be dangerous to the mental and physical wellbeing of others and whom the community needs to be protected from. 

Courts decide whether or not a person should be labelled as a dangerous criminal after considering multiple factors ranging from the individual’s psychiatric report to the nature of their crime and their history of violent behaviour.  

Another type of process to note is called compassionate leave. This differs from medical parole (sometimes called compassionate release) as it is temporary and is primarily used for purely humanitarian reasons. In other words, an inmate may receive one day of leave from prison in order to attend his mother’s funeral, after which time he will need to return. 

Prisoners may also apply for a sentence reduction, although this appeal needs to be made to a court and not to any prison officials. In order to accomplish this, the prisoner will need to apply for temporary leave from prison in order to make their court date.

Disclaimer LAW101: All of our posts are for research purposes only. Law 101 aims to assist its readers with useful information on the laws of our country that can guide you to make decisions in line with the South African Governmental Laws currently in place. Although our posts cite the constitution in many instances, they are intended to assist readers who are looking to expand their knowledge of the law. Should you require specific legal advice we advise you to get in touch with a qualified legal expert.

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1 Response

  1. May 10, 2022

    […] Medical/humanitarian concerns […]

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