Question 2
Xholisa Zondi is in prison for raping and murdering a woman, Mrs Honey, fourteen years ago. Xholisa has been diagnosed with cancer and is terminally ill. In November 2014, Xholisa applies to the Correctional Supervision and Parole Board (‘Parole Board’) for medical parole but the Board refuses his application. In terms of s 79 (1) of the Correctional Services Act 111 of 1998, any sentenced offender may be considered for placement on medical parole by the Parole Board if:
‘(a) such offender is suffering from a terminal disease or condition or if such an 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.
In December 2014, the Parole Board decides to refuse Xholisa’s application on the basis that even though he is terminally ill, he has not yet been rendered physically incapacitated by his illness (you can accept for the purposes of this question that this information is factually true). The board also adopts the view that refusing him parole will send a strong message to society that heinous crimes especially against vulnerable members of society such as women will not be tolerated.
The Board also informs Xholisa that he must still undergo a further rehabilitation programme (he had already completed one rehabilitation programme before in May 2014) before he can be eligible for parole. This is the first time that Xholisa has been informed of the need to undergo a further rehabilitation programmme. When Xholisa first applied for medical parole in March 2014, the chairman of the Parole Board promised him that he would be granted parole the next time he applied provided he completed a rehabilitation programme.
2.1 Discuss THREE grounds of review upon which Xholisa can challenge the Board’s decision, made in December 2014, to refuse him medical parole. In your answer you must not discuss the grounds of review pertaining to procedural fairness (including the doctrine of legitimate expectations); reasonableness and rationality; action taken without authority; failure to consider or refusal to decide; action otherwise unconstitutional and unlawful; relevant and irrelevant considerations; and action taken in bad faith.
1. Unreasonableness in assessing physical incapacitation: Xholisa can challenge the Board's decision on the basis that their assessment of physical incapacitation was unreasonable. Despite being terminally ill, the Board determined that Xholisa had not yet been physically incapacitated by his illness. Xholisa can argue that the decision fails to take into account the severe limitations imposed on his daily activities and self-care by his terminal illness, making it unreasonable.
2. Failure to follow statutory requirements: Xholisa can argue that the Board failed to follow the statutory requirements set out in s 79 (1) of the Correctional Services Act. The Act clearly states that a terminally ill offender may be considered for medical parole if they meet certain criteria, which Xholisa arguably fulfills. By refusing his application on the basis of physical incapacitation when this is not a requirement under the Act, the Board may be seen as failing to adhere to the legal framework governing medical parole.
3. Breach of promise: Xholisa can challenge the Board's decision on the basis of breach of promise. The chairman of the Parole Board had promised Xholisa that he would be granted parole the next time he applied, provided he completed a rehabilitation programme. By now requiring Xholisa to undergo a further rehabilitation programme before being eligible for parole, the Board is arguably going back on their initial promise without valid justification. This could be seen as unfair and arbitrary treatment of Xholisa.