What is that?

While Schabir Shaik, the former financial adviser to President Jacob Zuma, has been arrested

by officers from Correctional Services this does not mean that the South African public

should assume that his bail is about to be cancelled.

Minister Nosiviwe Mapisa-Nqakula confirmed on Monday that Shaik had been picked up and taken

to the Durban Westville Prison allegedly following a weekend report in the Sunday Times that

he had purportedly punched a man, Mohamed Ismail, outside a Mosque in Durban.

Add the allegations of another police investigation - that Shaik choked and slapped a Sunday

Tribune reporter on a golf course about two weeks ago - his astounding longevity for someone

released on medical parole and his other parole infractions and people would be justified in

assuming that he's a certainty for Schabir does Westville Part II.

Not so simple.

Let's track back a bit.

On June 2, 2005, Shaik was found guilty of corruption and fraud and sentenced to 15 years. On

March 3, 2009, having served only two years and four months of his prison term, he was

released on medical parole.

Section 79 of the Correctional Services Act 111 of 1998 (Act) says that : "79. Any person

serving any sentence in a prison and who, based on the written evidence of the medical

practitioner treating that person, is diagnosed as being in the final phase of a terminal

disease or condition may be considered for placement under correctional supervision or on

parole, by the Commissioner, Correctional Supervision and Parole Board or the court, as the

case may be, to die a consolatory and dignified death."

The matter has been debated so often in the media that everyone knows that the final phase of

a terminal illness means that the patient is at death's door and should last a few months

before their passing.

As some will recall much of Shaik's prison term was spent in hospital and despite the head of

cardiology at the Inkosi Albert Lutuli Hospital in Durban, Professor DP Naidoo, personally

discharging him in December 2008, because he was considered well enough to leave hospital,

within 3 months he had been granted medical parole.

In light of subsequent events this made a total mockery of medical parole, the doctors who

supported it and Correctional Services for allowing it.

Worse, as correctly pointed out by NewsTime's Siyabonga Ntshingila, instead of going to

ground and keeping a very low profile Shaik made a total mockery of the entire criminal

justice system playing golf and carrying on totally non terminally-ill-like activities while

it remained powerless to stop him.

Yet in terms of our law Shaik appeared before the Correctional Supervision and Parole Board

in March of 2009 where he was granted parole based upon his medical condition.

That decision is final and may only be reviewed by the Correctional Supervision and Parole

Review Board (Board), which panel must be headed by a judge, in terms of Section 75 (8) of

Act.

The Board consists of a judge as chairperson, a director or a deputy director of Public

Prosecutions, a member of Correctional Services, a person with special knowledge of the

correctional system and two representatives of the public.

The majority of the members of the Board constitute a quorum for a meeting and a decision of

a majority of members present is the decision. If it's a tie the member presiding has the

deciding vote.

Section 77 of the Act says that on consideration of a record submitted in terms of section 75

and any submission which the Minister, Commissioner or person concerned may wish to place

before the Board, as well as such other evidence or argument as is allowed, the Correctional

Supervision and Parole Review the Board must : (a) confirm the decision; or (b) substitute

its own decision and make any order which the Correctional Supervision and Parole Board ought

to have made.

The Board must give reasons for its decision, which are to be made available to the Minister,

Commissioner, the person and the Correctional Supervision and Parole Board concerned in a

specific matter and all other Correctional Supervision and Parole Boards for their

information and guidance.

It would, in my very very humble submission, be inconceivable for the Board to make a

decision on the Correctional Supervision and Parole Board's finding in terms of Section 79

(medical parole) as a result of ordinary parole infringements based upon the events at golf

or the Mosque.

It would make a total mockery of the whole idea of medical parole.

If Shaik has been found to be "in the final phase of a terminal disease or condition",

ludicrous as this may seem, then any revocation of his medical parole must be dealt with in

accordance with medical submissions in order to finalise that aspect first before deciding on

other parole infractions.

The alternative is the ridiculous situation whereby Correctional Services submit that he is

about to die but shouldn't be purportedly strangling people at golf or attacking worshippers

in the parking lot at Mosque.

Where would that leave medical parole in South Africa?

Don't forget that it is there so that people who are terminally ill can spend their last few

days at home. Presently anyone who picks up a splinter in the prison yard would seem to

qualify meaning that the pendulum will have to swing back resulting in cancelling it

altogether?

What about redefining "final phase of a terminal disease" to mean anyone who takes more than

ten thousand breaths has to return to prison?

How the Board deals with Shaik's continued day to day movements - which is over to them - is

important but not as much as getting Correctional Services back onside.

In the interest of restoring credibility the Board needs to go about this in strict

accordance with the law to avoid compounding what is the mother-of-all embarrassments to our

criminal justice system.