National Commissioner of Correctional Services and Another v Democratic Alliance and Others (with South African Institute of Race Relations intervening as Amicus Curiae)

On 29 June 2021, the Constitutional Court sentenced Mr JG Zuma, former President of South Africa, to 15 months' imprisonment for contempt of court for failing to obey an order to appear before the Judicial Commission of Inquiry into State Capture. Mr Zuma started serving his sentence on 8 July 2021 at Estcourt Correctional Centre and was immediately transferred to the hospital wing. On 5 September 2021, the National Commissioner of Correctional Services (the Commissioner) released Mr Zuma on medical parole. This occurred despite the Medical Parole Advisory Board (the Board) having decided on 2 September 2021 not to recommend Mr Zuma's release on medical parole, concluding that he was "stable and does not qualify for medical parole according to the Act." The Democratic Alliance, Helen Suzman Foundation, and Afriforum separately challenged the Commissioner's decision in the Gauteng High Court under the Promotion of Administrative Justice Act (PAJA).

• Whether a person convicted of contempt of court is a 'sentenced offender' within the meaning of the Correctional Services Act 111 of 1998 and eligible for medical parole
• Whether section 75(7) of the Act creates an alternative pathway to medical parole independent of the requirements in section 79
• The proper interpretation of section 79(1)(a) of the Act and the role of the Medical Parole Advisory Board
• Whether the Commissioner is empowered to grant medical parole in the absence of a positive recommendation from the Medical Parole Advisory Board
• Whether the Commissioner's decision was lawful and constitutional
• The appropriate remedy where an administrative decision is set aside under PAJA

1. Paragraphs 5 and 6 of the high court's order were set aside. 2. Save for the above, the appeal was dismissed with costs. 3. The first and second appellants were ordered to pay the costs of the first, second and third respondents, jointly and severally, the one paying the other to be absolved. 4. The costs included the costs of two counsel where so employed. The effect was that Mr Zuma's medical parole was unlawfully granted and he was required to return to custody to complete his sentence.

The binding legal principles established are: (1) A person convicted and sentenced for contempt of court is a "sentenced offender" as defined in section 1 of the Correctional Services Act 111 of 1998, regardless of whether the proceedings were civil or criminal, or whether the order was coercive or punitive. Such persons are entitled to apply for medical parole and must be dealt with according to prison laws. (2) Section 75(7)(a) of the Act does not create an alternative pathway to medical parole independent of section 79. These provisions must be read together. Section 75(7) merely removes the involvement of the Case Management Committee and Correctional Supervision and Parole Board for inmates serving sentences of 24 months or less, allowing the Commissioner to consider applications directly, but the substantive and procedural requirements of section 79 still apply. (3) The Medical Parole Advisory Board, established under section 79(3), is a specialist expert body that serves as the ultimate decision-maker on whether an inmate suffers from a terminal illness or physical incapacity under section 79(1)(a). Its recommendation on this medical issue is not merely advisory but determinative. (4) The Commissioner's discretion to grant medical parole is only triggered if the Board makes a positive recommendation on the appropriateness of medical parole based on section 79(1)(a). Without such positive recommendation, the Commissioner has no power to grant medical parole. Once the Board has properly applied its mind and concluded that an inmate does not qualify medically, the Commissioner cannot override that determination. (5) The requirements in section 79(1) - terminal illness/physical incapacity, low risk of re-offending, and appropriate post-release arrangements - are jurisdictional facts that must all be met for medical parole to be granted. If any requirement is absent, medical parole cannot lawfully be granted.

The Court made several non-binding observations: (1) The Court expressed "disquiet" about the Department of Correctional Services releasing a media statement indicating Mr Zuma had completed his sentence while the appeal was still pending, noting this was "premature" and "potentially undermines the judicial process." (2) The Court noted that the question of whether time spent on unlawfully granted medical parole should count toward serving a sentence is a matter for the Commissioner to determine (if empowered by law), not for the courts - this implicates separation of powers principles. (3) The Court commented on the high court's declaratory orders under paragraphs 5 and 6, finding them inappropriate. Regarding paragraph 5 (time served not to count), the Court noted this improperly trespassed into executive domain regarding how sentences are served. Regarding paragraph 6 (declaring the Board's role), the Court noted this was not a "declaration of rights" under PAJA section 8 but merely a "re-statement of the law" that did not constitute a remedy and was unnecessary given the position was already articulated in the judgment. (4) The Court acknowledged that while factors like age, status, public unrest, and prison capacity might be relevant to ordinary parole applications, they "have no bearing at all in an application for medical parole." (5) The Court emphasized the constitutional value and promise of equality before the law applies to all inmates, "despite [Mr Zuma's] status as former President and Head of State."

This judgment is significant because it: (1) Clarifies that persons sentenced for contempt of court are "sentenced offenders" under the Correctional Services Act and subject to its parole provisions. (2) Definitively establishes the role and authority of the Medical Parole Advisory Board in the medical parole process, confirming it as the ultimate decision-maker on medical matters relating to terminal illness or physical incapacity. (3) Limits the National Commissioner's discretion in granting medical parole, holding that the Commissioner cannot override a negative recommendation from the Board on medical grounds. (4) Reinforces the principle of equality before the law, confirming that even a former President and Head of State is subject to the same correctional services laws as any other inmate. (5) Provides important guidance on the interpretation of sections 75(7) and 79 of the Correctional Services Act and their interrelation. (6) Demonstrates the courts' willingness to review and set aside executive decisions that fail to comply with statutory requirements, even in high-profile and politically sensitive cases. (7) Addresses the doctrine of separation of powers in the context of correctional services, clarifying the respective roles of the judiciary, executive, and specialist advisory bodies.