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[2021] ZAGPPHC 96
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Walus v Minister of Justice and Correctional Services and Others (28221/2020) [2021] ZAGPPHC 96 (12 February 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER
JUDGES: NO
DATE:
12-02- 2021
Case
Number:
28221/2020
In
the matter between:
JANUSZ
JAKUB
WALUS
Appellant
and
MINISTER
OF JUSTICE & CORRECTIONAL SERVICES
First
Respondent
THE
SOUTH AFRICAN COMMUNITY PARTY
Second
Respondent
MRS
LIMPHO
HANI
Third
Respondent
THE
MINISTER OF HOME
AFFAIRS
Fourth
Respondent
JUDGMENT
KUBUSHI
J
This
judgement is handed down electronically by circulating to the
parties’ representatives by email and by uploading on
Caselines.
INTRODUCTION
[1]
On 15 October 1993, the applicant,
JANUSZ
JAKOB WALUS (“Mr
Walus”),
was
convicted of one charge of murder [having shot and killed Mr
Martin Thembisile Chris Hani (“Mr Hani”)] and
one charge
of illegal possession of a firearm.
[2]
Mr Walus was on such convictions sentenced to death for the murder
and given five
(5) years’ imprisonment for the possession of
the illegal firearm. The death sentence was on 7 November 2000
commuted to
life incarceration, the court ordering that the sentence
be
ante
dated to the date of sentence, 15
October 1993.
[3]
Mr Walus is currently incarcerated at Kgosi Mampuru II Correctional
Centre (formerly
Pretoria Central Prison) and has accordingly been
serving sentence since 15 October 1993 and, at the time of the
hearing of this
application, he had already served approximately
twenty-seven (27) years of his sentence, in incarceration.
[4]
The purpose of this application is to have the decision of the first
respondent, the
Minister of Correctional Services (“the
Minister”), dated 16
March 2020, whereby Mr Walus’ application for parole was
refused, reviewed and set aside (“the review application”).
[5]
The review application is brought in terms of section 33 of the
Constitution of the
Republic of South Africa Act, 1996 ("the
Constitution") read with section 6 of the Promotion of
Administrative Justice
Act,
[1]
("PAJA").
THE
RELIEF SOUGHT BY THE APPLICANT
[6]
In the application, Mr Walus seeks an order in terms of the
following:
6.1
that the decision of the Minister dated 16 March 2020 annexed to the
founding affidavit
as annexure 'JW1' whereby Mr Walus was refused
parole, be reviewed and set aside;
6.2
an order in terms of section 8 (2) of PAJA that Mr Walus be placed on
day parole,
alternatively
parole with immediate effect on such conditions as the court,
alternatively
the Department of Correctional Services (“the Department”)
may deem fit in terms of section 65 of the Correctional
Services Act
(“the 1959 Act”),
[2]
further
alternatively
that the matter be referred back to the Minister in order to make a
fresh decision within sixty (60) days of the granting of this
order;
6.3
that Mr Walus’ continued incarceration be declared to be
unlawful discrimination as
provided for in section 9 (1) of the
Constitution read with section 1, 5 and 6 of the provisions of the
Promotion of Equality and
Prevention of Unfair Discrimination Act.
[3]
[7]
The relief sought is opposed by the Minister, together with the
second respondent,
the South African Communist Party (“the
SACP”) and the third respondent, Mrs Limpho Hani (“Mrs
Hani”).
[8]
At the time of his death, Mr Hani was the General Secretary of the
SACP. Mrs Hani
is the spouse of Mr Hani. No relief is sought against
her but she is cited in these papers by virtue of the direct and
substantial
interest she has in the current application.
[9]
The SACP and Mrs Hani are represented,
pro bono
, by the same
counsel and have filed a composite answering affidavit. The answering
affidavit has been filed out of time but there
seem to be no
opposition to the condonation applied for and consequently, on
consideration, the condonation application ought to
be granted. For
ease of reference I shall, as also indicated in their heads of
argument, refer to both the SACP and Mrs Hani collectively
as the
SACP.
[10]
The composite affidavit is deposed to by Mrs Hani who sets out the
basis of her opposition as
well as that of the SACP to the relief
claimed by the Applicant. Mr Walus’ counsel placed the
authority of Mrs Hani to represent
the SACP in these proceedings, in
dispute. I find it not necessary to delve into this dispute because
no specific relief is sought
against the SACP. In any event, even if
I can rule in favour of Mr Walus on this point, I still have to
consider the affidavit
in respect of Mrs Hani.
[11]
As
per
the prayers in the notice of motion, the relief sought
against the fourth respondent, the Minister of Home Affairs, was
conditional
upon the granting of the main relief sought by Mr Walus,
but was abandoned at the hearing of the application.
THE
SALIENT FACTUAL MATRIX
[12]
As earlier stated, Mr Walus was convicted and sentenced on 15 October
1993. At the time of his
conviction and sentence, the law that
applied to the application for placement on parole of offenders, was
the Correctional Services
Act
[4]
(“the1959 Act”) together with the Departmental policy
that applied then.
[13]
In terms of the policy of the Department, which applied during the
period August 1987 to 1 March
1994, like the other offenders who were
sentenced to life incarceration, the minimum period which Mr Walus
had to serve before
he became eligible to be considered for placement
on parole was 13 years and 4 months. This period was also advanced by
credits
in terms of s 22 (A) (1) of the 1959 Act, as well as
Presidential amnesties granted to him during his period of
incarceration.
The effect of which was that Mr Walus became
entitled to be considered for placement on parole after serving 12
years and 4 months
of his sentence of life incarceration, that is in
2005.
[14]
It is common cause that Mr Walus has applied for placement on parole
on several occasions, but
such applications have been repeatedly
refused by the Minister. This application, as such, is heralded by a
long history of such
applications. In order to place the current
application into perspective it is necessary that Mr Walus’
previous parole applications,
and the reasons for the Minister’s
decisions in respect thereof, be highlighted.
The Parole
Applications
[15]
Mr Walus’ first parole hearing was held in 2011. There appears
to be a dispute as to whether
or not the Parole Board recommended
that Mr Walus be considered for placement on parole. However, due to
Mrs Hani’s absence
at the parole hearing, the erstwhile
Minister (Minister Mapisa-Nqakula) on 22 June 2011 declined Mr Walus’
application for
placement on parole providing the following reasons:
"
The
placement of the offender on parole is not approved at this stage.
The victim's family and another interested party must be
given an
opportunity to provide either a victim impact statement or a
statement of opposition
."
[16]
When Mr Walus next appeared before the Parole Board in November 2013,
Mrs Hani and her daughter
were, together with their legal
representative, present at the hearing, to make representations to
the Parole Board. The Minister
declined to approve his placement on
parole.
[17]
On 10 April 2015, Mr Walus was again considered for placement on
parole by the erstwhile Minister
(Adv TM Masutha) which was also
declined. In his decision, the Minister recommended the following:
"
DECISION
1.
The placement of the offender on parole is not recommended at this
stage.
2.
A further profile of twelve (12)
months is hereby approved.
3.
In the interim, the Department is to
assist the offender in the following: -
3.1
Restorative Justice Process
:
It
appears from the various reports that the offender has indicated a
willingness to be afforded an opportunity to personally apologize
to
the victim's family. In the light of this, I am of the view that it
is crucial that he be afforded this opportunity to participate
in
this restorative justice process. This process will, to an extent,
restore the balance and the harm caused to the victim's family
hopefully, as well as the community as a whole. Furthermore, I am
certain that this process will also assist the offender to come
to
terms with the crime committed as well as to accept responsibility
for the crime and thereby contribute towards his own healing
and
rehabilitation pathway. This can be achieved either through the VOD
and/or VOM process or whichever process is deemed appropriate
by the
qualified professionals.
3.2
Security
The
Department, together with other relevant structures should advise on
the security threats, if any, that might exist should the
offender be
released out on parole.
[18]
In essence the Minister recommended further steps to enhance the
Restorative Justice Process
which, in his view would restore the
balance for the harm caused to the victim's family as well as the
community as a whole. He
recommended further that the Department or
other relevant structures advise on the security threats that might
exist should Mr
Walus be released on parole.
[19]
Mr Walus, not satisfied by the decision, launched a review
application against the Minister’s
decision during which Janse
van Nieuwenhuizen J ordered that Mr Walus be released on parole
within fourteen (14) days of the order.
The Minister conceded at the
hearing of this review application that in essence his reason for
refusing to place Mr Walus on parole
was the nature of the crime
committed and the sentencing remarks of the trial court.
In
upholding the review application, the court was of the view that the
Minister’s decision overemphasised the nature of the
crime
committed by Mr Walus and the remarks of the sentencing court (which
harshly criticised it) and failed to balance, fairly
and equally, all
the criteria for parole selection, which it was satisfied Mr Walus
met.
[20]
The Minister appealed Janse van Nieuwenhuizen J’s judgment and
order, to the Supreme Court
of Appeal which made a finding on the
procedural irregularities based on the Minister’s omission to
consider the victim impact
report that was submitted by Mrs Hani to
the Parole Board.
Consequently,
the matter was remitted to the Minister for a fresh decision
within
ninety (90) days of the order, to consider
whether
Mr Walus should be placed on parole, taking into account Mrs Hani’s
victim impact statement dated 30 October 2013
and Mr Walus’
response, if any, thereto.
[21]
It is important to note that the Supreme Court of Appeal was
silent on the reasons advanced
by the Minister and/or Janse van
Nieuwenhuizen J’s findings on such reasons, in respect of the
sentence remarks of the sentencing
court, but limited its judgment to
the failure of the Minister to afford Mr Walus proper and due
procedural rights.
[22]
Following the decision of the Supreme Court of Appeal, a new parole
hearing was held on 26 October
2017 where Mrs Hani and members of the
SACP were present and made submissions to the Parole Board. The
Parole Board made new recommendations
to the Minister. On 17
November 2017, the Minister by way of a press release announced that
he had refused Mr
Walus’ application for release on parole. The reasons proffered
this time by the Minister were that the offender should undergo
individual psychotherapy with the psychologist to assist in
addressing his political ideologies, which have been highlighted as
a
risk factor in the psychologist report.
[23]
Following this decision, Mr Walus again launched successful review
proceedings before Baqwa J
raising a number of procedural
irregularities. In the main, Mr Walus complaint about the Minister’s
failure to comply with
the directions of the judgment of the Supreme
Court of Appeal of 18 August 2017; the failure by the Parole Board to
afford Mr Walus
the right of reply prior to filing the record of the
parole proceedings with the Minister; the failure to consider the
reports
furnished to him on 3 November 2017 and to include these
reports in the profile report furnished to the Minister.
[24]
Baqwa J in upholding the review application, remitted the matter to
the Minister for a fresh
decision regarding Mr Walus’ placement
on parole taking into account a response (if any), to the profile
report filed by
the Chairman of the Parole Board to the Minister
prior to the reconsideration of the matter together with other
relevant information.
A new decision was to be taken by the Minister
within one hundred and twenty (120) days of the order being granted.
[25]
On 16 January 2019, the erstwhile Minister, (Adv Masutha), again
reconsidered Mr Walus’
parole application following on the
judgment of Baqwa J. This time, the Minister
again refused to place
Mr Walus on parole on the following grounds:
"
The
placement of the offender on parole is not granted. It is directed
that a further profile be submitted within six (6) months
of this
decision for my consideration.
1.
In the light of the
conflicting psychological reports from Zelda Buitendag and Joel
Mbhele it is difficult for me to make a decision. I therefore direct
that the two professionals jointly asses the inmate and file
a joint
report on the issues concerning risk and remorse.
2.
The offender should
undergo individual psychotherapy with the psychologist to assist
in
addressing challenges which have been highlighted on paragraph 5.2.5
of Zelda Buitendag's report dated 15 October 2018. These
challenges
include depression and explosive anger episodes.
"
[26]
Following the refusal of the application, Mr Walus had to approach
court again in order to set
aside the decision of the Minister. In
setting aside, the Minister’s decision, Kollapen J found that
the Minister's decision
was not rational nor reasonable in the
circumstances
on the basis that the
characterisation by the Minister of 'conflicting psychological
reports’ was an overstatement of the
position, as the
difference in opinion expressed [in the three psychologists’
reports] was largely on a peripheral issue
that had clearly been
attended to and resolved. The matter was again remitted to the
Minister for a fresh reconsideration to place
Mr Walus on parole.
[27]
In essence, Kollapen J was of the view that the decision of the
Minister would not pass the test
of rationality nor reasonableness on
the grounds provided and stands to be reviewed and set aside in
particular on the basis that
on the information before the Minister
it could not be said that the refusal of parole was justified by the
contents of the totality
of the reports before him or that it was a
decision that given the nature of the information before him no
reasonable decision
maker would have taken. He found that
t
he
requirement by the Minister that Mr Walus undergo individual
psychotherapy would not serve as a basis for the Minister’s
refusal of placement on parole but rather as one of the conditions to
be complied with pre-release and would not have the effect
of
salvaging the Minister’s decision under review as it stood on a
different footing.
[28]
Having reviewed and set aside the decision of the Minister of the
16
January 2019, Kollapen J was of the view that there would accordingly
be no requirement for a joint assessment as contemplated
in the
Minister’s decisions.
On
the matter of risk, the Minister was required to accept that all
three experts placed the risk of re-offending as low and that
on the
matter of remorse all the experts conclude that the expression of
substantial and significant remorse and empathy by Mr
Walus and that
the limited dissent as it were by one of the psychologists was
properly explained in the later reports. It was within
that framework
on risk and remorse that the Minister was then required to consider
those aspects and make a fresh decision.
[29]
On 16 March 2020, the present Minister (Mr Lamola) made a new
decision in accordance with the
judgment and order of Kollapen J.
This time, the Minister’s decision to refuse parole were
essentially based on the
nature of the crime and the sentence remarks
of the trial court. It is this decision of the Minister that Mr Walus
now challenges
by way of judicial review, in these proceedings.
[30]
Against this background I deem it necessary to set out, hereunder, an
overview of the applicable
statutory instruments and some of the
important court judgments that regulate parole applications in
respect of the offenders who
have been sentenced to life
incarceration before 1 October 2004.
THE
LEGAL FRAMEWORK GOVERNING PAROLE APPLICATIONS
[31]
The law governing parole applications is contained in the
Correctional Services Act (“the
1998 Act”),
[5]
which repealed the Correctional Services Act (“the 1959
Act”).
[6]
[32]
The salient provisions pertaining to parole applications are
contained in section 136 of the
1998 Act. The s
ection
provides that an offender serving a sentence of incarceration before
the commencement of Chapters IV, VI and VII of the 1998
Act, is
subject to the provisions of the 1959 Act relating to her or his
placement under community corrections, and is to be considered
for
such placement in terms of the policy and guidelines applied by the
former Parole Boards prior to the commencement of those
Chapters.
[33]
Chapter IV of the 1998 Act came into operation on 31 July 2004 whilst
Chapters VI and VII came
into operation on 1 October 2004. The
operative date for purposes of section 136 of the 1998 Act (by way of
an offender being considered
for placement under community
corrections in terms of the 1959 Act, and the policy and guidelines
applied by the former Parole
Boards) is accordingly 1 October 2004.
[34]
The Constitutional Court has held that offenders sentenced to
incarceration prior to the commencement
of Chapters IV, VI and VII of
the 1998 Act are eligible to be considered for placement on parole in
terms of the policy and guidelines
of the Department of Correctional
Services that were applicable at the date of commission of the crime
for which such offenders
were sentenced (rather than at the date of
sentence);
[7]
[35]
It follows that in terms of the 1998 Act, all the provisions of the
1959 Act regarding parole
for persons serving life sentences were
repealed, however, in accordance with the provisions of section 136
of the 1998 Act the
provision of the 1959 Act together with the
policy and guidelines applied by the former Parole Boards prior to
the repeal
of the provisions of the 1959 Act dealing with parole,
[8]
remained intact.
[9]
[36]
Consequently, offenders (like Mr Walus), who were convicted for
offences committed prior to the
coming into operation of the parole
provisions under the 1998 Act (which provision with regard to parole
came into operation on
1 October 2004), are to be dealt with in terms
of the parole provisions of the 1959 Act. This being the case, the
provisions of
the 1959 Act concerning parole (in particular section
65 [6]), are and remain of application to offenders who were
sentenced to
life imprisonment prior to the coming into operation of
the parole provisions in of the 1998 Act.
[37]
In terms of section 65 (6) of the 1959 Act, the Minister may, after
considering recommendations
from the Parole Board, authorize the
placement of an offender on parole subject to any condition which
she/he may determine and
as from a date determined by her/him, up to
a date of such prisoners' death. It is, however, important to note
that in the event
Mr Walus is placed on parole he would be required
to serve only two (2) years of his sentence on parole. This is so
because prior
to the coming into operation of section 65 of the 1959
Act, that is on 1 March 1994, the period to be served on parole was
governed
by Chapter VI (5) (k) (v) of the Correctional Services
B-Order. The said B-Order, provided that offenders sentenced to
incarceration
for crimes committed prior to 1 March 1994 including
offenders sentenced to life incarceration, the parole of such
offenders is
not to exceed three (3) years, less any period of
amnesty or special remission of sentence which falls to be deducted
from the
parole period of three (3) years. Mr Walus has received the
benefit of two (2) Presidential amnesties on 31 May 2005 and 27 April
2012, in each case being amnesty of six (6) months.
[38]
The policy and guidelines dealing with day parole or parole applied
by the former Parole Boards
prior to the repeal of the provisions of
the 1959 Act are contained in Chapter VI of the Correctional Services
B-Order, colloquially
referred to as the “Parole Board Manual”.
The purpose of the manual is to serve as a consistent
guideline/directive
for Parole Boards when considering an offender’s
placement on day parole or parole. This is the document that
ought
to be applied by the Parole Board when assessing and/or
recommending offenders for parole and consequently the Minister as
well
when she/he considers the Parole Board's recommendation that an
offender be placed on parole.
[39]
As the eligibility for parole of an offender should be determined by
the parole provisions which
were in effect at the time of the
commission of the offence it means that, since
Mr
Walus committed the crime of murder on 10
April 1993
for which he is serving a sentence of life incarceration,
the provisions of the 1959
Act and the policy and guidelines applicable then should,
accordingly, be applicable to Mr Walus’
parole application.
[40]
The salient provisions of the Parole Board Manual applicable when
considering placement of offenders
on parole contain various factors
that are to be taken into account when a case is being considered.
The following
, inter alia
, are to be considered:
40.1
any remarks made by the court during the imposition of sentence.
40.2
the sentence imposed by the court;
40.3
placement policy, community interests and public interest;
40.4
crime prognosis as it manifests in physical/psychological abilities
to commit crime again;
40.5
behaviour and adjustment in the prison (as, inter alia, reflected by
allocated credits);
40.6
the degree to which a prisoner participates in the multi-disciplinary
programme and benefits
from it; custodial and privilege
classification;
40.7
achievements that were obtained in prison (scholastic, academic,
technical and so forth);
40.8
the crime pattern of a prisoner (present and previous) and the threat
that it imposes to
community after release;
40.9
the degree which a prisoner has shown that opportunities granted to
him/her were utilized,
for example with regard to suspended
sentences, postponed sentences and previous placements;
40.10
the probability of recidivism viewed against the background of
criminal history, crime rate, time
lapse since previous
placements/release, the number of previous convictions; and
40.11
previous non-compliance with conditions of parole provisions.
THE
GROUNDS OF REVIEW
[41]
It is worthy to note that this is an application for review and not
an appeal against the Minister's
decision. Sight should not be lost
of that distinction, which is very important and should be kept in
mind at all material times
during the consideration of this
application. The court is not called upon to decide whether the
Minister was wrong or right in
reaching the decision but to determine
whether he complied with the relevant legal prescripts in reaching
the decision.
The
focus is on the process, and on the way in which the decision-maker
came to the challenged conclusion.
[10]
[42]
The parties agreed that this matter does not concern any procedural
irregularities as beset the
other applications before it. It is,
thus, common cause that what is to be determined in this matter are
the merits, based on the
grounds of review raised by Mr Walus.
[43]
The grounds of review upon which Mr Walus relies in support of the
relief sought for setting
aside the decision of the Minister is that
43.1
the decision is not rationally connected to the information which was
before the Minister and the reasons
given by him for the decision
(section 6(2)(f)(ii) of PAJA)
alternatively
that the decision
is so unreasonable that no person in the position of the Minister
could have made such a decision (section 6(2)(h)
of PAJA).
43.2
The decision is arbitrary and capricious
43.3
The decision is unlawful and discriminatory
I
deal hereunder with the grounds of review in turn.
The
decision taken is irrational alternatively that it is so unreasonable
that no reasonable decision-maker would reach such a decision
[44]
While the test for rationality and reasonableness differ, they also
overlap and it thus convenient
to deal with these grounds of review
together.
[45]
The court in
Rustenburg
Platinum Mines
,
[11]
had this to say about a review application:
“
In
a review, the question is not whether the decision is capable of
being justified…but whether the decision-maker properly
exercised the powers entrusted to him or her. This is not to lose
sight of the fact that the line between review and appeal is
notoriously difficult to draw. This is partly because process-related
scrutiny can never blind itself to the substantive merits
of the
outcome. Indeed, under PAJA the merits to some extent always intrude,
since the court must examine the connection between
the decision and
the reasons the decision-maker gives for it, and determine whether
the connection is rational. That task can never
be performed without
taking some account of the substantive merits of the decision
.”
[46]
What the court is required and permitted to do in the application of
this nature, is merely to
ask itself whether the decision-maker acted
rationally in making the decision she or he made, and for that
purpose one looks at
the reasons given by the decision maker for the
decision she or he made.
[47]
Mr Walus’ eligibility for placement on parole, under the
transitional provisions of section
136 of the 1998 Act,
is
common
cause between the parties. It is also not in dispute that the
guidelines contained in Chapter VI of the Correctional Services
B-Order, commonly referred to as the Parole Board Manual,
particularly the ‘Criteria for Parole Selection’ set out
in Chapter VI (1A) (19) thereof, should be applied in the
consideration of the placement on parole of offenders in Mr Walus’
position. The essential issue is whether the Minister applied these
criteria properly when he made the decision.
[48]
As stated in paragraph [40] of this judgment, it is important for the
decision maker, in this
instance the Minister, who is faced with the
task of deciding whether or not to grant the placement on parole of
an offender who
is serving a sentence of life imprisonment, to
consider both the positive and negative factors provided for in the
Parole Board
Manual.
[49]
In essence, when
considering
whether the decision of the Minister was rationally connected to the
reasons he provided alternatively whether it was
reasonable,
the
question for determination is whether the decision was an irrational
decision which a reasonable authority could make by way
of achieving
a reasonable equilibrium between the positive factors in favour of
the placement of Mr Walus on parole and the negative
factors which
militates against his placement on parole.
[50]
The reasons for the Minister’s decision have been stated
before. The placement on parole
of Mr Walus is refused because of the
nature of the crime and the remarks of the sentencing court. The said
remarks have been extensively
set out in the parties’
respective papers, as such, there is no need to repeat them here.
[51]
The submission by the counsel for Mr Walus is that the Minister has,
in making the decision sought
to be reviewed, disregarded all the
previous reasons given by his predecessors and, in particular, the
import of the judgment of
Kollapen J, and now seeks to place reliance
upon the sentence remarks and the nature of the crime made by the
trial Judge some
twenty-seven (27) years ago. According to counsel,
this reasoning is fatally flawed for the following reasons:
51.1
He contends that in principle Mr Walus will never be eligible for day
parole or parole as the sentence remarks
and nature of the crime will
never change;
51.2
the Minister failed to properly apply the equilibrium principle by
failing to assign the correct weight to the
factors he relied upon
and similarly failing to assign the correct weight to the positive
factors influencing Mr Walus’ rehabilitation;
51.3
the Minister relies on the reasons which will never change
Mr
Walus’ release on day parole or parole and which depends
entirely on the capricious exercise of the Executive's (Minister)
discretion leaving him free to consider such a possibility at a time
which pleases the Executive.
[52]
The submission is that, having regard to the fact that the ground
relied upon by the Minister
in refusing to place Mr Walus on parole
will never change, the Minister clearly incorrectly applied the
equilibrium principle regarding
the weighing up of the various
applicable factors and, therefore, there is no rational basis for his
decision. Accordingly,
it is argued, the Minister's decision
stands to be reviewed and set aside in terms of section 6(2)(f)(ii)
of PAJA on this ground.
[53]
I am not in agreement with counsel for Mr Walus when he says that the
Minister has ignored all
the
previous
reasons given by his predecessors and, in particular, the import of
the judgment of Kollapen J.
[54]
Even though it would appear that the Minister in refusing Mr Walus’
placement on parole
provided different reasons on each application,
however, t
he litigation history
that follows such decisions demonstrates that all the Minister’s
decisions, until now, were effected
by procedural irregularities and
would have in any event not passed master. The Minister had
to
deal with those procedural irregularities, as well, and correct them.
[55]
On the other hand, the judgment of Kollapen J was never ignored by
the Minister. The matter was
referred back for a fresh decision on
the issue of risk and remorse. The Minister’s papers,
particularly the replying affidavit,
are replete with his concession
of risk and remorse. He has on a number of times admitted that he has
accepted that Mr Walus has
shown remorse and that he is no longer at
risk of reoffending.
[56]
The reason why the Minister and the SACP continues relying on the
nature of the crime and the
remarks of the sentencing Judge even
after the passage of some twenty-seven (27) years of Mr Walus’
incarceration, is because
they consider the time spent by Mr Walus in
prison to be inadequate punishment for the crime he committed. Even
though the Minister
has accepted the positive factors favouring the
placement of Mr Walus on parole, he together with the SACP insists
that the nature
of the crime and the sentencing remarks of the trial
court and subsequently the remarks by Supreme Court of Appeal
outweighs the
positive factors in favour of placing Mr Walus on
parole.
[57]
According to the Minister’s counsel, on considering Mr Walus’
placement on parole,
the Minister was enjoined to have due regard to
the nature and seriousness of the crime of murder committed by Mr
Walus and the
remarks made by the court at the time of sentencing.
The crime of murder is said to have involved the coldblooded
assassination
of a prominent political leader for which careful
preparations were made in advance and Mr Walus was convicted of
murder with no
extenuating circumstances.
[58]
Conversely, the SACP’s counsel argues that the crime committed
by Mr
Walus was unlike many others in South
Africa in that it shook the very core of society at the time when
South Africa was trying
to build a democratic and free society. The
society was put at the brink of war. As such the public’s
perception of how the
prisoner was dealt with must come to the fore
when parole is considered. A further argument was that the death of
such a prominent
leader demands retribution and deterrence and the
offender must therefore serve his whole life in jail.
[59]
The crux, in both arguments of the Minister and the SACP, is that on
being granted parole, Mr
Walus will spend only two years on parole
unlike other lifers who under the 1998 Act will spend the rest of
their lives as parolees.
Serving only two years of his remaining life
sentence, is according to them inadequate punishment particularly in
the light of
the nature of the crime he committed and the remarks of
the sentencing court.
[60]
Without having to reinvent the proverbial wheel, I am inclined to
agree with the reasoning of
Janse van Nieuwenhuizen J when dealing
with this point in her judgment, where she remarks as follows:
[12]
“
[16]
Punishment, however, has various purposes. In Guide to
Sentencing in South Africa, SS Terblanche,
2
nd
edition,
the purposes of punishment are listed as deterrence,
prevention, rehabilitation and retribution [p
155 and further].
[17]
Deterrence, prevention and retribution will no doubt play an
important role during the initial years of serving
a sentence.
This is evident from the fact that prisoners sentenced to life
imprisonment only qualify for parole after having
served 15 years of
their sentence.
[18]
During this time the prisoner have an opportunity to
rehabilitate. The various factors
taken into account when
parole is considered confirms the importance of rehabilitation
during the years of imprisonment.
[19]
The philosophy of parole [Vl (1A) (15) (b)] set out supra, confirms
that the focus of punishment
shifts with the passing years and
ultimately more weight is attached to rehabilitation. It is, inter
alia, an internationally accepted
method and based on compassion.
Although parole does not imply proof of
rehabilitation [VI (1A) (15) (c)
supra], it is certainly a step in
the rehabilitation process.
[20]
It is, however, important to bear in mind that parole is still a
form of punishment. Strict conditions are imposed on a
prisoner on parole and parole will be withdrawn should the prisoner
not adhere to such conditions. In a nutshell, parole
is a means of serving the remainder of the sentence
outside prison.
In the
present instance the applicant will serve
his sentence until death.
[21]
The criteria for parole selection [V1(1A) (19)
supra] entails an attempt "to
evaluate
prisoners
fairly and justly
for parole, to
submit well-considered recommendations and to effectuate the highest
possible form of professionalism." (own
emphasis). The
report by the second respondent is an excellent example of the
application of the aforesaid criteria.
If one has regard to the
policy considerations applicable to a decision to place a prisoner on
parole, the applicant complies overwhelmingly
with all the criteria.
[22]
I am mindful of the fact that the nature of the crime and the
sentencing remarks is a factor to be taken
into account when
considering an application for parole. This is, however, one of seven
factors and to my mind, all factors should
be weighed up equally
according to their merits.
”
[61]
I must however hasten to mention that although parole itself is a
form of punishment which in
terms of the 1998 Act, is a means of
serving the remainder of the sentence outside prison,
however, in the circumstances
of this matter Mr Walus
would only be on parole for two years. This is actually the Minister
and the SACP’s main
bone of contention which Janse van
Nieuwenhuizen J failed to take into consideration.
[62]
As stated in the remarks of Janse van Nieuwenhuizen J,
the criteria for parole selection entails
an attempt "to evaluate prisoners fairly and
justly for parole, to submit well considered recommendations
and
to effectuate the highest possible form of professionalism."
[63]
In circumstances where the decision-maker is given a discretion that
is dependent on the consideration
of a range of competing factors,
like in this case, the Constitutional Court in
Bato
Star,
[13]
speaking of the Marine Living Resources Act,
[14]
provided some direction as to the approach to be adopted on what is
to be done by the court in a judicial review of an administrative
action when a variety of factors are to be considered by a
decision-maker, as follows:
“…
That
decision must strike a reasonable equilibrium between the different
factors but the factors themselves are not determinative
of any
particular equilibrium. Which equilibrium is the best in the
circumstances is left to the decision-maker. The court’s
task
is merely to determine whether the decision made is one which
achieves a reasonable equilibrium in the circumstances.”
[64]
It follows that firstly, none of the factors placed before the
decision-maker are determinative
of any equilibrium. Secondly, which
equilibrium is best under the circumstances of each case, is left to
the decision-maker to
determine. The court's task is merely to
determine whether the decision made is one which achieves a
reasonable equilibrium in
the circumstances.
[65]
The Minister concedes that when considering the placement of
Mr
Walus on parole, he took into account all the positive factors that
are in his favour. He also accepted that through the various
programmes Mr Walus has undergone in prison, he has rehabilitated, he
has shown remorse and is no longer at risk of re-offending.
He is
also satisfied that there is no longer any opportunity of a
restorative process that can be undertaken.
[66]
Nevertheless, in addition to those favourable factors he also had to
consider the negative factors
that militates against the placement of
Mr Walus on parole. Those factors, that he considered, are the
heinous crime Mr Walus committed
and the scathing remarks of the
sentencing court and the fact that Mr Walus will serve only two (2)
years of his sentence on parole.
In applying the equilibrium
principle, he concluded that the negative factors outweigh the
positive factors, hence his refusal
to place Mr Walus on parole.
[67]
I am satisfied that the Minister has applied the equilibrium
principle correctly and has applied
the correct weight to the factors
he relied upon for refusing Mr Walus’ placement on parole as
well as on the positive factors
influencing Mr Walus’
rehabilitation. In understanding the remarks of the sentencing court,
it is clear that the intention
was to keep Mr Walus incarcerated for
life. Of course he is entitled to be placed on parole but parole is
not a right but a privilege
and can only be granted by the Minister
on consideration of all the facts before him.
[68]
Mr Walus’ actual complaint is that the Minister in applying the
equilibrium principle,
placed more weight on the negative factors
which will never change, than the positive factors.
Sight
should, however, not be lost of the fact that what weight is attached
to what factors, is for the Minister as the decision-maker
to
determine. And once such determination has been made it is not for
the court to replace it with one that it is favourable to
it.
[15]
[69]
In
Clairison’s
[16]
,
the Supreme Court of Appeal held that the determination of the weight
to be applied to each factor lies with the decision-maker
and not the
court.
“
What
constitutes a reasonable decision on the part of the decision-maker
will depend on the circumstances of each case. In making
determinations on reasonableness, the courts “should take care
not to usurp the functions of administrative agencies”
by way
of the review of administrative decisions “to prefer their own
views as to the correctness of the decision, and thus
obliterate the
distinction between review and appeal.”
[70]
It means therefore that what constitutes a reasonable decision on the
part of the decision-maker
will depend on the circumstances of each
case and in making the determination on reasonableness, the courts
should take care not
to usurp the functions of administrative
agencies. I, in that sense cannot change the factors which the
Minister considers to be
more- weighty than the others.
Does
the Minister’s refusal to place Mr Walus on parole infringes
his right not to be subjected to inhuman or degrading treatment
or
punishment?
[71]
Mr Walus’ counsel argues that in view of the reasons provided
by the Minister, in the face
of the facts which confirms that Mr
Walus has rehabilitated, Mr Walus’ sentence potentially
constitutes a life-long imprisonment,
which infringes his right not
to be subjected to cruel, inhuman or degrading treatment or
punishment, in terms of section 12 (1)
(e) of the Constitution, which
infringement is not justifiable in terms of section 36 of the
Constitution and in terms of international
law.
[72]
The contention is that this conduct of the Minister is
unconstitutional and unlawful and, therefore,
falls to be reviewed
and set aside in terms of the provisions of section 6 (2) (i) of
PAJA.
[73]
The Minister’s counsel in argument contends that Mr Walus’
averment that the decision
of the Minister amounts to cruel, inhuman
and degrading punishment is unsubstantiated.
[74]
It is trite that the possibility of parole saves an offender’s
sentence of life imprisonment
from being inhuman and degrading
punishment. That the decision amounts to cruel inhuman and degrading
punishment is equally misplaced.
It is indeed so that parole is a
non-custodial measure and a form of supervision in the community
which is less burdensome than
incarceration. The placement on parole
or refusal of parole falls within the ambit of punishment as was held
recently in
Phaahla
. The test to be applied in determining
whether implementation of a sentence of incarceration amounts to
cruel inhuman or degrading
punishment is;
“
Whether
the punishment prescribed is so excessive as to outrage standards of
decency. The effect of that punishment must not be
grossly
disproportionate to what would have been appropriate and I underline
the words grossly disproportionate. In this regard
it is not mere
disproportionality between the sentence legislated and the sentence
merited by the offence which would lead to elimination
of the section
12(1)(e) right but only gross disproportionality.”
[75]
Factors to be taken into account in determining whether punishment or
treatment is cruel, inhuman
or degrading for purposes of Section
12(1)(e) of the Constitution includes:
“
Its effect
which must not be grossly disproportionate, the gravity of the
offence, the personal circumstances of the offender and
the
particular circumstances of the case.”
[76]
I am inclined to agree with the proposition by the Minister’s
counsel that regard being
had to the nature of the crime committed by
Mr Walus; the scathing sentence remarks of the trial court taken
together with the
fact that when placed on parole, Mr Walus would
only be required to serve a period of two years of his sentence of
life incarceration
on parole, the Minister’s decision cannot be
described as punishment which is so excessive as to outrage standards
of decency,
or punishment which is grossly disproportionate to what
would have been appropriate. That Mr Walus has not been placed on
parole
yet, does not mean that he will never be placed on parole, and
his illegibility for parole alleviates the sentence of life
imprisonment
and makes it not inhuman and degrading punishment.
The
decision is arbitrary and capricious
[77]
The argument by the Minister’s counsel is that the Minister’s
decision does not fall
to be reviewed and set aside on the basis that
it is arbitrary and capricious. According to counsel the contention
by Mr Walus
is the fact that the Minister cannot undo the decision of
the trial court and thus resulting in Mr
Walus never qualifying for parole, has no merit. According to
counsel, it is not the Minister’s stance that Mr Walus will
never qualify for parole. The Minister’ stance is that in the
light of the sentence remarks of the court at the time of the
imposition of the sentence, it is not appropriate that Mr Walus be
placed on parole presently, that is, not now.
[78]
Fact is, as argued by Mr Walus’ counsel, the negative factors
will never change. However,
that does not mean that Mr Walus would
never be placed on parole. The Minister’s argument is that Mr
Walus will be considered
for parole but cannot be placed on parole
just yet. In placing more weight on the negative factors, the
Minister considered the
fact that the twenty-nine (29) years (the
twenty-seven (27) years already spent incarcerated and the two (2)
years on parole, if
granted) that Mr Walus will serve as his
sentence, is inadequate punishment for the crime he committed and can
therefore never
be outweighed by the positive factors – in
particular by the fact that he has rehabilitated.
[79]
Janse van Nieuwenhuizen J, who had the opportunity to consider the
merits of the review application
and in particular the same reasons
of the Minister as pertains in this application, when granting Mr
Walus placement on parole,
erroneously took into account that Mr
Walus will spend the rest of his life on parole, which is not
correct. Mr Walus will be on
parole for only two years and after that
he shall have served his entire sentence.
[80]
As found by Kollapen J
[17]
there is no set period prescribed within which an applicant for
parole must be released. It all depends on the facts and
circumstances
of each case and on the rationality and reasonableness
of the decision maker, in this case the Minister.
The
decision is discriminatory
[81]
According to Mr Walus’ counsel, the decision by the Minister to
place reliance upon the
sentence remarks to the exclusion of positive
factors in favour of Mr Walus’ release and ignoring his
rehabilitation, constitutes
bias and unfair discrimination,
especially in light of other offenders with similar sentence remarks
who have been released on
parole such as Juan Van Wyk, Ferdie
Barnard, Eugene De Kock, Casper Greeff, Zhu Hong, Jin Wang and
Gabriel Makoe who all committed
heinous crimes including murder and
who were released, some serving only 13 years and 4 months being the
minimum sentence period
which also applies to Mr Walus.
[82]
The submission is that the application of the parole policy by the
Minister is clearly at odds
with the application in respect of other
similar offenders referred to above.
[83]
The contention is that the reasons and the inconsistent application
of the parole policy by the
Minister with the resultant effect as set
out above clearly disadvantages Mr Walus and undermines his human
dignity. To this end
the decision of the Minister is said to be
clearly discriminatory in nature without any justification and it
constitutes unfair
discrimination in accordance with provisions of
the
Promotion of Equality and Prevention of Unfair Discrimination Act
4 of 2000
. Counsel concludes his argument by saying that he can
safely state that the court in respect to the offenders who were
released,
also made scathing remarks as to the conduct of these
prisoners in respect to the various crimes committed.
[84]
Counsel for the Minister submits that the decision not to place Mr
Walus on parole does not amount
to unfair discrimination. According
to counsel it does not avail Mr Walus to compare his case to those of
other offenders sentenced
to life incarceration and who have been
placed on parole because each case is dealt with on its own
individual merits
[85]
The merits of the cases of the persons Mr Walus’ counsel is
referring to do not from part
of the papers before me, nor are the
reasons on which the court decided to release them on parole. I
cannot, therefore, in earnest
comment on whether the refusal by the
Minister to place Mr Walus on parole is discriminatory as I cannot
make a comparison.
Executive
Bias
[86]
The contention by counsel for the Minister is that the averment by
Mr
Walus
that the Minister’s decision falls to be reviewed and set aside
ostensibly in terms of the relevant section of PAJA
on the basis of
executive bias because Mr Walus is treated as the person who
committed a political assassination of a prominent
and revered
leader, is without merit.
[87]
The submission by Mr Walus that there is substantial institutional
pressure on the Minister not
to disappoint or betray the executive
and specifically the partners in the tripartite alliance; and that
the manifest bias sways
judgment and the Minister is thus unable to
exercise his function impartially in this particular case; and that
no Minister is
prepared to accept political fallout by the release of
Mr Walus and thus fortifies Mr Walus’ apprehension of executive
bias,
is unsubstantiated and at best is just mere speculation.
[88]
There are no facts in the papers which bear these averments. The
statement of the National Executive
Committee of the African National
Congress, on which Mr Walus seeks to rely for this argument has no
bearing on the averments.
It is clear from the reading of that
statement that it was made merely as a comment in relation to a
judgment of the court that
was granted in a matter that related to
one of the cases of Mr Walus. It cannot be said that the statement
was made as a threat
to the Minister not to exercise his functions.
[89]
As regards the question of bias. I align myself with the view taken
by Kollapen J, in his judgement
when he expressed himself as follows
on this point:
“
That
the decision was motivated by bias on the part of the First
Respondent.
[19]
The stance of the Applicant in advancing the case for review is that
the conduct of the First
Respondent over the period within which the
Applicant's parole applications were considered suggested a constant
shifting of the
goalposts by the First Respondent which demonstrated
bias. In support of this argument the Applicant seeks to compare the
changing
nature of the reasons offered from time to time by the First
Respondent for refusing to place the Applicant on parole.
[20]
While the reasons in support of the decisions of the First Respondent
has changed over time,
there has also been some consistency in the
issues identified by the First Respondent as being obstacles and they
include the matter
of restorative justice as well as the matter of
the Applicant constituting a security risk. Without at this stage
suggesting that
they offer cogent justification for the decisions of
the First Respondent (a matter I will return to), I am not convinced
that
they demonstrate a shifting of the goal posts and the presence
of bias as the Applicant has suggested.
[21]
The litigation history which has been outlined above demonstrates
that even in those instances
when the Courts reviewed and set aside
the decisions of the First Respondent, it was effected on procedural
grounds without any
suggestion of the presence of bias. One would
need to be careful in embracing a conclusion of bias as the Applicant
has urged this
Court to do in the absence of clear evidence to that
effect.
”
[18]
[90]
Janse van Nieuwenhuizen J in her judgment had made a finding of bias
against the Minister on
the basis that the Minister had shown bias by
stating that representations made by the deceased’s family
opposing the respondent’s
release, which had not been placed
before him when he made the decision, would have only fortified his
decision not to grant parole.
This finding was in a way set aside by
the appeal court when it referred the matter back to the Minister for
a fresh decision taking
into account the deceased’s family
representations.
IRRELEVANT
MATTERS
[91]
I am inclined to agree with counsel for the Minister that the
interview on Radio 702 with Mr
Chrison Phiri (“Mr Phiri”),
the spokesperson of the erstwhile Minister, is irrelevant for
purposes of these proceedings.
Mr Walus’s reliance on this
interview in support of his argument that the Minister’s
decision was influenced by this
interview, is misplaced.
[92]
Firstly, the comments made by Mr Phiri during the interview were his
own views, perhaps it might
be said that they were the views of the
Minister at the time but certainly they cannot be attributed to the
current Minister. Secondly,
at the time of the interview the present
Minister was not in office. To say that he was influenced by what was
said in that interview
or to attribute what was said in that
interview to him, is far-fetched.
THE
CONCLUSION
[93]
I have to conclude that based on the aforementioned reasons, Mr
Walus’ review application
has no substance and falls to be
dismissed.
[94]
The Minister’s counsel argued for costs which costs should
include costs of two counsel,
in case the matter is decided in the
Minister’s favour. As the successful party, the Minister is
entitled to costs of this
application. In my opinion the costs of two
counsel are justified in the circumstances of this matter and should
be granted.
THE
ORDER
[95]
Consequently, the following order is made:
1.
Condonation for the late filing of the second and third respondents’
answering
affidavit is granted.
2.
The application is dismissed.
3.
The applicant is ordered to pay the costs of the first respondent
which costs
must include the costs of two counsel.
E.M KUBUSHI
JUDGE OF THE HIGH
COURT
Appearance
:
Applicant’s
Counsel
: Adv. R. du Plessis SC
Adv L.
Kellermann SC
Appellant’s
Attorneys
:
Julian Knight and Associates
Inc.
1
st
Respondent’s Counsel
: Adv. M T K Moerane SC
Adv. G Bester
SC
Adv. N Mteto
1
st
Respondent’s Attorneys
:
The State Attorneys, Johannesburg.
2
nd
& 3
rd
Respondents’ Counsel
: Adv. G. Malindi
SC
Adv. N.
Nyembe
2
nd
& 3
rd
Respondents’ Attorneys
: Thaanyane Attorneys
4
th
Respondent’s Counsel
:
No appearance
4
th
Respondent’s Attorneys
: The State Attorneys, Pretoria
Date
of hearing
: 10 November 2020
Date
of judgment
: 12 February 2021
[1]
Act 3 of 2000.
[2]
Correctional Services Act 8 of 1959.
[3]
Act 4 of 2000.
[4]
Act 8 of 1959.
[5]
The
Correctional Services Act No. 111 of 1998
.
[6]
See fn. 7. .
[7]
Phaahla v Minister of Justice and Correctional Services and Others
2019 (7) BCLR 795
(CC); Cornelius Johannes Van Wyk v Minister of
Correctional Services & Others 40915/10 date of judgment 15 July
2011; Van
Vuuren v Minister of Correctional Services & Others
2010 (12) BCLR 1233 (CC).
[8]
Namely, the Parole Board’s Manual set out in Chapter VI of
Correctional Services B Order, referred to as the Parole Board
Manual.
[9]
See Derby-Lewis v Appellant of Correctional Services and Others 2009
(6) SA 205 (GNP).
[10]
Rustenburg Platinum Mines (Rustenburg Section) v Commission for
Conciliation, Mediation and Arbitration
2007 (1) SA 576
(SCA) para
31.
[11]
Rustenburg Platinum Mines (Rustenburg Section) v Commission for
Conciliation, Mediation and Arbitration
2007 (1) SA 576
(SCA) para
31.
[12]
Walus v Minister of Correctional Services and Others (41828/2015)
[2016] ZAGPPHC 103 (10 March 2016).
[13]
Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and
Tourism and Others
[2004] ZACC 15
;
2004 (4) SA 490
(CC), para 49.
[14]
Act 18 of 1998.
[15]
MEC for Environmental Affairs and Development Planning v Clairison’s
CC
2013 (6) SA 235
(SCA), paras 20 to 23.
[16]
Ibid
[17]
Walus v Minister of Correctional Services and Others (14694/19)
[2019].
[18]
Walus v Minister of Correctional Services and Others (14694) [2019]
ZAGPPHC 1029 (12 December 2019).