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.
Xholisa wants to know whether he can bring his application for judicial review in July 2015 as he needs to undergo some medical treatment in the interim. Advise him on the legal position.
[3 marks]
2.3 Xholisa wants the court to make an order granting him medical parole instead of referring the matter back to the Parole Board. Explain whether the court may grant such an order under these circumstances.
[6 marks]
2.4 Xholisa argues that he is entitled to parole as the chairman of the Parole Board is obliged to honour the promise that he made to him in March 2014. Advise him on the legal position. In answering this question do not discuss any aspects pertaining to procedural fairness (including the doctrine of legitimate expectations)
2.1 Three grounds of review upon which Xholisa can challenge the Board's decision to refuse him medical parole in December 2014 are:
1. Unreasonableness: Xholisa can argue that the Board's decision was unreasonable as they based their refusal on the fact that he had not yet been physically incapacitated by his illness, despite being terminally ill. Xholisa can argue that the criteria set out in s 79(1) does not specify that physical incapacitation is a requirement for medical parole, and therefore the Board's decision was unreasonable in this regard.
2. Failure to consider relevant information: Xholisa can argue that the Board failed to consider relevant information in making their decision, specifically the fact that he had already completed a rehabilitation program in May 2014 and was only informed in December 2014 that he needed to undergo a further program. Xholisa can argue that this information was not taken into account by the Board in their decision-making process.
3. Improper exercise of discretion: Xholisa can argue that the Board's decision to refuse his application for medical parole was an improper exercise of discretion. Xholisa can argue that the Board's decision to refuse him parole in order to send a message to society about heinous crimes is not in line with the criteria set out in s 79(1) and therefore amounts to an improper exercise of discretion.
2.2 Xholisa can bring his application for judicial review in July 2015 as he needs to undergo medical treatment in the interim. He can bring his application on the grounds of urgency, as his medical condition is deteriorating and he requires medical treatment. The court may grant him an urgent hearing for his application for judicial review to ensure that his medical needs are addressed promptly.
2.3 The court may grant an order granting Xholisa medical parole instead of referring the matter back to the Parole Board if they find that the Board's decision was irrational, unreasonable, or unlawful. If the court determines that the Board's decision was not in line with the criteria set out in s 79(1) and that Xholisa meets the requirements for medical parole, they may grant him medical parole without referring the matter back to the Board.
2.4 Xholisa is not necessarily entitled to parole based on the promise made by the chairman of the Parole Board in March 2014. The decision to grant or refuse medical parole ultimately lies with the Parole Board and is based on the criteria set out in s 79(1) of the Correctional Services Act. While the promise made by the chairman may be a relevant factor to consider, it is not a guarantee of parole and cannot override the legal requirements for eligibility for medical parole.