As pressure mounts on Correctional Services Minister Ngconde Balfour to order a review of convicted fraudster Schabir Shaik’s medical parole, unanswered questions about the release are piling up.
Prominent legal and prisoners’ rights academics have added their voices to calls by opposition parties and the Human Rights Commission for Balfour to refer Shaik’s file to Judge Siraj Desai, chairperson of the parole review board, for review.
This comes after Shaik, former financial adviser to ANC president Jacob Zuma, was released on Tuesday after serving just over two years of his 15-year sentence, most of it in hospital. Shaik was released on medical parole after the parole board of Durban’s Westville prison received a report from his doctors describing him as terminally ill.
Balfour and his department have not clarified all the issues surrounding Shaik’s release. Three unanswered questions remain:
Is Shaik dying?
If Shaik has rare drug-resistant hypertension that after two years can’t be treated, then he is a very sick man who would need to be hospitalised and monitored and his diet strictly controlled. Shaik has been at home since his release.
A number of doctors agree that in 2009 it is extremely rare to suffer from drug-resistant hypertension. The condition itself would not result in his death. But if it is not controlled, it could result in kidney failure or a heart attack. With a low-sodium diet and proper care, he could have a long life.
Did Shaik receive preferential treatment?
According to legislation, prisoners who are ”in the final phase of any terminal disease or condition” may be released on parole. But numerous anecdotes emerged this week of prisoners claiming to be worse off than Shaik, but not being successful with their parole applications.
Although the parole board made the final decision to release Shaik, they were informed by a medical report, signed off by three doctors who examined his condition.
To determine whether their report was accurate, Desai’s review board will have to present it to an expert on Shaik’s condition.
Constitutional law expert Pierre de Vos finds it odd that all three doctors, according to Balfour, concluded Shaik is terminally ill, but only one ”went as far as saying that his condition has reached an irreversible condition”.
The two other doctors ”were supposed to agree that Shaik is in the final phases of a terminal illness, yet they do not agree that his condition is irreversible and could therefore not agree that the illness is terminal either”.
Can Shaik go back to prison?
If Shaik recovers, it seems unlikely that he would have to go back to prison. According to Balfour’s spokesperson, Manelisi Wolela, the Correctional Services Act makes no provision for prisoners on medical parole to return to jail should they recover.
But there are discrepancies. A parole board chairperson the Mail & Guardian spoke to said medical parole is strictly granted on the fact that the person is dying. ”If that person recovers, his parole is no longer valid,” he said.
”The circumstances have changed and he could be a danger to society again.” Wolela dismissed this interpretation, saying it comes from ”uninformed” people.
Balfour has persistently refused to refer Shaik’s file for review, urging people with evidence of irregularities to bring it forward. His calls were repeated by Justice Minister Enver Surty at a media briefing on Thursday. Asked about the secrecy shrouding Shaik’s release, Surty said it was a question of balancing the constitutional rights of Shaik against the public interest. Because it was a medical issue, Shaik’s rights to privacy must prevail.
Wolela told the M&G the minister had read Shaik’s medical report and applied his mind. ”He found that all proper procedures were followed and that there was nothing to indicate anything untoward. If the minister had found regulations were not followed, he would have sent the Shaik matter to be reviewed,” he said. ”But until anyone brings anything else to his attention, he is happy that all procedures were followed.”
This view was challenged by De Vos, who wrote on his blog that Balfour was either ”really, really stupid” or lying. De Vos based his comments on Balfour’s statements about Shaik’s medical reports. The minister was quoted in Business Day saying: ”The three medical practitioners’ collective submission shows a unanimous conclusion that Mr Shaik is in ‘the final phase of his terminal condition’. One even went as far as saying that his condition has reached an irreversible condition.
Having studied the contents of the report as submitted to me by the said parole board, I am of the view that the decision they made is correct.”
This, according to De Vos, ”does not make sense and seems like a clear and quite absurd contradiction”. He has called for a full disclosure of facts.
The DA submitted an application in terms of the Promotion of Access to Information Act on Thursday to obtain access to the details or summary of the reasons for Shaik’s release.
Lukas Muntingh of the Civil Society Prison Reform Initiative also called on Balfour to refer Shaik’s file to Desai. ”It would be extremely prudent of the minister to refer the case to the review board. It is not in the interest of the department to refrain from referring the case. It will only continue to fuel speculation that something was done that was not entirely correct.”
The parole review board was established in May 2006 by Balfour who, at the time, said it was tasked to ”review parole decisions and also receive and deliberate on complaints received from the public or offenders regarding issues related to parole”.
‘are you seriously phoning me about hamburgers?’
The ”terminal” hypertension Schabir Shaik apparently suffers from is a condition that does not seem to exist.
The Mail & Guardian spoke to a range of physicians who confirmed that hypertension, in its primary form, can’t be terminal. When asked about the lack of evidence for the existence of ”terminal” hypertension, Shaik’s brother, Moe, replied that he was actually suffering from drug-resistant hypertension.
Drug-resistant hypertension is a rare secondary form of hypertension. According to Brian Rayner, associate professor of hypertension and nephrology at Groote Schuur Hospital in Cape Town, an estimated one in 10 000 hypertension sufferers can develop severe drug-resistant hypertension.
If uncontrolled, it can be fatal, but this is because it can lead to a heart attack or a stroke. A patient would be under constant monitoring and diet would be strictly controlled.
A patient with severe drug-resistant hypertension – the kind that would get you parole – would be kept on a strict, low-sodium diet, said Rayner. Foods high in salt increase the risk of a stroke or heart attack, all of which are concerns when a patient has severe drug-resistant hypertension.
Tani Lombard, a dietician from the Nutrition Information Centre at the University of Stellenbosch, agreed. She said that with hypertension, in which obesity is a major risk, takeaway foods should specifically be avoided, because of their high sodium as well as fat content.
The Citizen reported on Thursday that Shaik had refused to eat hospital food and opted instead for takeaway hamburgers and pizzas.
When the M&G asked Moe Shaik about this, he said: ”Are you seriously phoning me about hamburgers? How am I supposed to know if someone was eating hamburgers?”
According to Lombard, patients with drug-resistant hypertension should consume no more than 3 000mg of sodium a day or their blood pressure would increase dangerously.
The amount of sodium in an average takeaway hamburger is 950mg and in a basic takeaway margherita pizza 500mg.
According to a number of doctors who spoke to the M&G, the only specialists who could safely diagnose severe drug-resistant hypertension would be nephrologists or endocrinologists.
By the time the M&G went to print, Correctional Services Minister Ngconde Balfour’s spokesperson Manelisi Wolela had not clarified whether any of the three doctors who sanctioned Shaik’s medical parole was such a specialist.
Paroled in a coffin
Nathula (not her real name), an HIV-positive inmate in Johannesburg’s female prison in her late 20s, desperately wanted to see her daughter before she died. But her medical parole was rejected time and again.
Two weeks before she died, she finally got medical parole.
But her wish was never granted. The young mother died on her way to KwaZulu-Natal last year.
According to attorney Brenda Wardle, Nathula’s case illustrates just how difficult it is to get medical parole.
The struggles she and other lawyers have to wage to get their clients released raise serious questions about Shaik’s seemingly quick release from prison.
Wardle said the department of correctional services’ doctors have to recommend that prisoners be released on medical parole.
”And these doctors are extremely strict about recommending release.”
According to a parole board chair, a lot rests on the sincerity of the doctors involved.
”It is practical and possible for a doctor to cook a medical report, and the board would not know it,” he said.
But even if the doctors recommended that a patient be released, the parole board could still decline the recommendation because of other worries they might have.
A client of Wardle’s at Leeuwkop prison was recommended for medical parole, but when he showed signs of improvement, correctional services immediately withdrew his parole.
Two of her clients have died in prison while waiting for medical parole.
Additional reporting by Sello S Alcock