National Commissioner of Correctional Services and Another v Democratic Alliance and Others

Jacob Gedleyihlekisa Zuma, former President of South Africa, was sentenced by the Constitutional Court to 15 months’ imprisonment for contempt of court for failing to comply with an order to appear before the Judicial Commission of Inquiry into State Capture. After commencing his sentence in July 2021, he was examined by medical practitioners from the South African Military Health Services and later transferred to a private hospital. An application for medical parole was made. Although a member of the Medical Parole Advisory Board initially recommended medical parole, the Board itself ultimately decided on 2 September 2021 not to recommend parole, concluding that Zuma’s conditions were stable and did not meet the statutory threshold. Despite this, on 5 September 2021 the National Commissioner of Correctional Services released Zuma on medical parole. The Democratic Alliance, Helen Suzman Foundation and Afriforum challenged this decision in the Gauteng High Court under PAJA. The High Court reviewed and set aside the Commissioner’s decision, substituted it with a refusal of medical parole, ordered Zuma back into custody, and declared that only the Medical Parole Advisory Board may recommend medical parole. The Commissioner and Zuma appealed to the Supreme Court of Appeal.

The appeal was dismissed with costs, except that paragraphs 5 and 6 of the High Court’s order were set aside. The decision of the National Commissioner to place Mr Zuma on medical parole remained reviewed and set aside, and the order directing his return to custody stood.

This case is a leading authority on the interpretation of section 79 of the Correctional Services Act and clarifies the mandatory role of the Medical Parole Advisory Board in medical parole decisions. It affirms the principle of legality in administrative action, confirms that even high-profile offenders are subject to the same statutory constraints, and clarifies that offenders imprisoned for contempt of court are ‘sentenced offenders’ for purposes of correctional law.