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[2016] ZAGPPHC 103
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Walus v Minister of Correctional Services and Others (41828/2015) [2016] ZAGPPHC 103 (10 March 2016)
I
N
THE H
I
GH
COURT
OF
SOUTH
AFRICA
(GAUTENG
D
I
VISION,PRETORIA)
REPUBLIC
OF
S
OUTH
AFRICA
CASE
NUMBER: 41828/2015
DATE:
10/3/2016
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
I
n
the
matter
between:
JANUSZ
JAKUB
WALUS
Applicant
and
M
I
N
I
STER
OF
CORRECTIONAL
SERVICES
First
Respondent
CHAIRPERSON,
NATIONAL
COUNCIL
FOR
CORRECTIONAL
SERVICES
Second
Respondent
THE
SOUTH AFRICAN COMMUNIST PARTY
Third
Respondent
MRS
LIMPHO
HANI
Fourth
Respondent
JUDGMENT
JANSE
VAN N
I
EUWENHUIZEN
J
[1]
This review application pertains to a decision taken by the first
respondent, the Minister of Correctional Services ("the
Minister'') to refuse the parole application of the applicant, Janusz
Jakub Walus. The decision was taken on 10 April 2015.
[2]
The second respondent is the Chairperson, National Council for
Correctional Services, the third respondent, the South African
Communist Party and the fourth respondent is Mrs Limpho Hani.
Although all four respondents gave notice of their intention to
oppose the application, only the first and second respondents filed
an answering affidavit and were presented at the hearing of
the
application.
BACKGROUND
[3]
On 10 April 1993 the applicant murdered Mr Chris Hani, who was the
General Secretary of the South African Communist Party at
the time.
The applicant was convicted of murder and sentenced to death on 15
October 1993. On 7 November 2000, the applicant's
sentence was
commuted to life imprisonment.
[4]
The applicant has been serving his sentence for approximately 23
years and is 60 years of age.
LEGISLATIVE
FRAMEWORK
Review:
Promotion of Administrative Justice Act, 3 of 2000 (PAJA)
[5]
Section 6(2) of PAJA contains the jurisdictional framework within
which a court may review an administrative action, such as
the one
under consideration.
[6]
The relevant portion of the section reads as follows:
"(2)
A court or tribunal has the power to judicially review an
administrative action if-
(a)
the administrator who took it-
(i)
was not authorised to do
so
by
the empowering provision;
(ii)
acted under
a
delegation of power which was not authorised by the
empowering provision; or
(iii)
was biased or reasonably suspected of bias;
(b)
a
mandatory
and material procedure or condition
prescribed by an empowering provision
was not
complied with;
(c)
the action was procedurally unfair;
(d)
the action was materially influenced by an error of Jaw;
(e)
the action was taken-
(i)
or
a
reason not authorised by the empowering provision;
(ii)
for an ulterior purpose or motive;
(iii)
because irrelevant considerations were taken into .account or
relevant considerations were not considered;
(iv)
because of the unauthorised or unwarranted dictates of another person
or
body;
(v)
in bad faith; or
(vi)
arbitrarily or capriciously;
(f)
the action itself-
(i)
contravenes
a
law or is not
authorised by the empowering provisions; or
(ii)
is not rationally connected to-
(aa)
the purpose for which it was taken;
(bb)
the purpose of the empowering provision; (cc) the information before
the administrator; or
(dd)
the reasons given for it by the administrator;
(g)
the action concerned consists of
a
failure to
a
taken
decision;
(h)
the exercise of the power or the performance of the function
authorised by the empowering provision, in pursuance
of which the
administrative action was purportedly taken, is
so
unreasonable that no reasonable person could have
so
exercised the power or performed the function; or
(/)
the action is otherwise unconstitutional or unlawful.
Empowering
legislation: Correctional Services Act, 8 of 1959
[7]
In view of the date on which the applicant was sentenced, the
applicant's parole application must be considered in terms
of the
previous Correctional Services Act, Act No 8 of 1959 ("the
Act"). Section 65 of the Act is the empowering provision
and the
relevant sub-sections for present purposes reads as follows:
"(5)
Upon receipt of a report from
a
parole board regarding
a
prisoner who has been sentenced to life imprisonment, the
Minister shall refer the matter to the National Advisory Council,
which, after considering the report of the parole board, and
having regard to the interests of the community, shall make
a
recommendation to the Minister regarding the placement of the
prisoner on parole.
(6)
The Minister may, after considering such recommendation, authorize
the placement of the prisoner on parole subject to any conditions
he
may determine and as from
a
date
determined by him up to the date of such prisoner's death."
[8]
The Policy and Guidelines applicable to the consideration of the
applicant's application to be placed on parole, as envisaged
in
Chapter VI of Correctional Services B-Order, are contained in a
Parole Board Manual.
[9]
The following extracts from the Manual is instructive:
"
VI (1A) (2) ACTIVITIES
OF
THE PAROLE
BOARD
(a)
The task of the Parole Board is directed at the responsible
consideration of and recommendations in respect of the placement
of prisoners under correctional supervision/on day parole/parole and
in specific cases the release of prisoners upon expiry of
their
sentence dates. This consideration /recommendatory function is
performed throughout with due consideration to the
interests of the individual, but especially
to the production of the community.
On the other hand the community's
responsibility and involvement in terms of the reintegration
of the
prisoner into the community is continually taken into account and
accomplished
as
far
as
possible.
(i)
Purpose of consideration for placing I conversion I placement
I
release The consideration of each individual case comprises
a
detailed investigation of information which is obtained from
diverse sources and which could be an indication of success outside
of prison. A low risk level for the community is not the only
consideration. The Parole Board must also consider whether the
prisoner
obtained the maximum benefit in terms of positive
development from his imprisonment and whether his placing under/
conversion to
correctional supervision/placement on day parole/
parole will lead to his further improvement/rehabilitation."
"VI
(1A)
(15)PLACEMENT ON
PAROLE
(a)
Parole is
a
form of
conditional placement which is granted after
a
prisoner has served
a
certain period of his sentence. It pre-supposes careful
selection, adequate preparation for placement and
a
certain degree of supervision while in the community for
a
period of time.
(b)
The
philosophy
of parole
is that:
•
the
prisoner has the opportunity to serve the rest of his sentence in the
community;
•
it
is
one
phase of the treatment process;
•
it
is an internationally accepted method of placement;
•
it
is a legal method of conditional placement;
•
it
is an aid to the social control of an offender;
•
it
is an aid to the social re-integration of the prisoner;
•
it
is based on supervision and control;
•
it
is based on compassion; and
•
It
has
a
good prognosis as basis.
(c)
Parole does
not imply
the following:
•
acquittal
of
a
sentence;
•
mitigation,
equation or reviewal of
a
sentence
•
a
method of controlling/administrating prisons; (emptying
prisons)
•
a
reward;
•
a
right;
•
a
proof of
rehabilitation"
"Vl(1A)(18)
FUNCTION
OF
THE
PAROLE SYSTEM
(a)
The placement of prisoners with
a
good prognosis
as
soon
as
possible after reaching
their consideration dates, taking the necessary penalisation into
account.
(b)
The protection of the community takes place by
means
of prevention, rehabilitation, control and supervision of
parolees. Consequently, parole measures must be aimed at the
prevention
and help in community by means of the social
re-integration of the parolee by different degrees of supervision
and
control.
(c)
The concept of placement of parole is based on the supposition that
it is
a
just and rational manner of giving prisoners the opportunity
to
serve
the remainder of
their sentence form within the community."
"VI(1A)
(19)
CRITERIA FOR PAROLE SELECTION
(a)
Introduction
(i)
The criteria for selection for placement on parole is not meant
to be
used
as
the ultimate model.
It should rather be
seen
as
a
predisposition according to which the Parole Board may serve
the interest of the community on the
one
hand and those of the prisoner on the other hand to the best
of their ability and in
a
responsible manner.
(ii)
Thus the primary issue is that it should be attempted to evaluate
prisoners fairly and justly for parole, to submit well-considered
recommendations and to effectuate the highest possible form of
professionalism.
(iii)
A decentralised model is used for making recommendations for the
placement
of prisoners. A high premium is placed on the disposition
and attitude of the Parole Board concerned in the light of inter alia
the following aspects:
•
The
aim of evaluating all prisoners under the control of the Parole
Board, irrespective of persons.
•
Continued
consistency with regard to similar
cases
that appear before the Board.
•
Maintaining
a
high level of integrity throughout with
regard to
conduct
and judgments and maintaining an
impeccable
i
ma
g
e
toward
prisoners irrespective of
race
or
sex.
(b)
Nature of crime
The
nature of crime or crimes for which the prisoner had been found
guilty and sentenced for his current imprisonment should be
known. A
police report (SAP 62) which briefly describes the circumstances
surrounding the crimes,
as
well
as
any remarks by
the person who imposed the sentence, must be available.
.
It is of primary importance that
the
Parole Board must have
a
clear image of what the prisoner has done and
as
far
as
possible what
was the cause of his offence.
(c)
Crime
and
background
history
,
The
police report (SAP
69
(c)
contains
a
list of the
previous convictions of the prisoner. It is the duty of the secretary
of the Parole Board to obtain
a
concise social background report of the prisoner
as
well
as
an employment
history of the prisoner.
Where
possible, the pre-sentence report must be obtained and
thoroughly studied for any important facts regarding the suitability
of the
prisoner for parole. This information gives
a
background to the last offence of the prisoner and will
indicate whether the offence was part of a previous criminal
behavioural
pattern. If not, this may indicate the cause of the
current crime. It is relevant to the question of whether the Prisoner
will
easily relapse into crime after his release and if so, what type
of crime he will commit. It is obvious that previous convictions
indicate
a
higher probability
with regard to relapse into crime
(d)
Th
e
prisoner's
behavioural
and reaction
to
treatment
The
Parole Board must obtain and study reports of members and training
officials who know the prisoner well, as well
as
a
report from a member of the nursing profession, social
workers, psychological /spiritual worker, educationist, religious
workers,
etcetera.
Other reports regarding transfer and detention in hospitals,
or an asylum,
as
well
as
reports on disciplinary offences and educational progress
are
also of importance. These reports should form
a
picture of how the prisoner had progressed since being
sentenced. The importance of these reports is that they contain
information
which was not previously known to the court during
sentencing. From this
information
it may be deducted whether the prisoner reacted
as
the court had expected and whether the prisoner is appearing
in
a
more
favourable light than before.
(e)
Medical,
psychological and
psychiatric
considerations
(i)
A prisoner's crime may be associated with the mental illness,
abnormal
sexual tendencies, alcoholism or drug dependency. In this
instance the medical and psychological reports
are
of great importance in order to determine what the odds
are
that the prisoner may relapse into
a
similar crime and the possible seriousness of further
offences.
(f)
Domestic circumstances and employment opportunities after
placement
(t)
The social reports must normally contain information on the residence
of the prisoner (where it can be located) or the lack
thereof and his
care. Background report should be studied wherever available in order
to determine to which circumstances the prisoner
will return after
his placement.
(g)
Selection for placement on
parole
(i)
A Parole Board that has considered all the facts may often still
experience difficulty in maintaining
a
balance in making
a
recommendation With paroling, the emphasis falls on
safety, not only in the interests of the community, but also to
prevent
serious parole violations form taking place and in so-doing
detrimentally affecting the credibility of the parole
syste
m
.
FACTS
[10]
The covering letter accompanying the referral of the applicant's
application to the Minister, succinctly summarises the facts
that
were available when the application was considered. The relevant
portions read as follows:
"3.
PREVIOUS
CONVICTIONS
Offender
is
a
first offender. No
previous convictions recorded against his name.
4.
Accomplices
One
accomplice according to SAP62 was involved by the name of Clive John
Derby Lewis, Registration number 93673417 sentenced to
Life
imprisonment.
5.
Offending
behaviour
The
offender's SAP62 is available and according to same the current
offence was committed in Dawnpark Boksburg on the 10 April 1993
at
10:00. The offender shot and killed Martin Thembisile Hani with
a
fire arm. According to the sentence remarks. The offender
assassinated Chris Hani who at that time was
S
ACP
General Secretary and former
Chief
Staff of the ANC's armed wing Umkhonto we Sizwe;
a
very
powerful
political figure at that time. The accused performed an Act of
Assassination on
a
person who had attained prominence in Public Affairs in South
Africa, whose killing was likely, to the knowledge of the accused,
to
cause far-reaching, highly emotive reactions with very
damaging,
serious consequences and extremely harmful effects for the entire
society in South Africa, extract from sentence remarks
page-721
"They
simply arrogated themselves the right to destroy the life of the
person because of their own political perceptions and
for that they
must pay. This assassination was premeditated. Deceased was
defenceless and unprotected when he was shot. The killing
was
cold-blooded." Extract from sentence remarks.
6.
Offending
behaviour
addressed
The
Offender attended the following rehabilitation programmes:
a.
Anger-in-anger-out
b.
Attention deficit disorder
c.
Group Therapy
&
Capacity
building
d.
Personal Skills Development
e.
Self-assessment and Development
f.
Leadership skills
g.
Communication skills
h.
Debate Society
7.
Unit Manager's report (page 67)
Unit
Manger's report is available and attached. This report; is positive
concerning his behaviour and adaptation and recommends
day parole for
the offender.
8.
Support system (page 68)
Offender's
support system in positive and monitorable offender will be staying
with his brother in Walmansdal-Pretoria.
9.
Employment Offer (Page 75)
Employment
letter is available and attached. Offender's brother who will be
staying with him whilst on parole has offered him employment
in his
own Trucking Business.
10.
Social Worker's Report (Page 76)
Offender
completed grade 12 in Poland in 1977. He worked as
a
glass cutter and had
a
business with his father. Offender keeps himself busy in the
Centre by exercising in the gym. He attended individual therapy with
the Social Worker. He was intensively involved in an individual
Social Work intervention programmes. Offender shows no sign of
Psychological disorders or disabilities. Offender expressed his
feeling of remorse about the victim as well as about the family
of
the victim. He showed remorse by appearing before the truth and
Reconciliation Committee and wrote
a
letter requesting to be involved in victim offender mediation
stating that he would like to apologise to the victim's family.
Offender
has accepted the responsibility of the consequences of his
crime and has compiled with the expectations
of
Correctional Services in terms
of
good behaviour participation and involvement in compulsory
programmes.
11.
Psychological Report (Page 83)
Psychological
report is available and attached. In 1981 offender moved to
South Africa and in 1985 met his co-accused. He
committed this crime
in April 1993 and was arrested. Offender immigrated to South Africa
in 1981 and was employed by
a
private company, working as
a
heavy-duty Truck Driver. Offender is well educated in History
and Philosophy. He has no disciplinary offences recorded
against him. Offender has
a
healthy psychiatric record.
12.
In 2011-07-12 Offender's Profile was referred to the Minister for
parole consideration. After considering the offender the then
Minister of Correctional Services gave him further profile for
2013-06-20 so that "The victim's family and any other interested
party must be given an opportunity to provide either
a
victim impact statement or
a
statement
of
opposition".
13.
Profile is
referred to The
Honourable
Minister for
a
decision.
On
the 31st October 2013 victim's family
were
invited and they submitted
a
victim impact statement and
a
statement of opposition which is attached to the Offenders
profile.
The
CSPB of Kgosi Mampuru II has
come
to
a
decision to recommend the
profile to The Honourable Minister for
a
decision.'.'
[11]
Although the applicant's application was forwarded to the Minister on
31 October 2013, the Minister took almost 18 months to
reach a
decision.
[12]
Be that as it may, the decision reads as follows:
“
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 victims' 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 victims' family
hopefully,
as we// as
the
community
as
a
whole. Furthermore,
I am certain that this process will also assist the offender come to
terms
with the crime committed
as
we//
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
d
eemed
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."
[13]
No reasons for the decision were given. The Minister, however,
indicated in his answering affidavit that the nature of the
crime and
the remarks by the sentencing court informed his decision not to
recommend the placing of the applicant on parole. It
is not clear
from the Minister's affidavit to what extent he considered the other
applicable considerations. Although the factors
to be taken into
account are mentioned in the Minister's affidavit, the facts
pertaining to each of the factors were neither mentioned
nor
discussed. It is therefore difficult to determine whether all the
factors were duly taken into account.
GROUNDS
OF REVIEW
[14]
Mr
Du
Plessis
SC
appearing with
Mr
Kellennan
on
behalf
of
the
applicant,
submitted that having regard
to all
the positive
factors
contained in
the
applicant's
application, the emphasis
placed by the Minister on the nature of
the
crime and
the
sentencing
remarks
in
reaching his decision
is not
reasonable nor rational.
DISCUSSION
[15]
The only logical conclusion to be drawn from the Minister's view that
the nature of the crime and the sentencing remarks outweighs
the
other positive factors, is that the Minister considers the time spend
by the applicant in prison as inadequate punishment for
the crime he
has committed.
[16]
Punishment, however, has various
purposes. In
Guide to Sentencing in South Africa,
SS
Terblanche, 2
nd
ed
i
tion,
the
purposes
of
pun
i
shment
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 the 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.
[
1
8
]
During this time the
prisoner
have an opportunity.
to rehabilitate.
The various
factors taken into account
when parole
i
s
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
u
l
timately
more
weight
i
s
attached
to
rehabilitation.
I
t
i
s,
inter
al
i
a,
an
i
nternationally
accepted
method and
based
on
compassion.
Although
parole
does
not
i
mply
proof of rehabilitation
[Vl(1A)(15)(c)
supra] ,
i
t
is
certain
l
y
a
step
in the
rehabilitation process.
[20]
I
t
is, however,
i
mportant
to bear
i
n
mind
that
parole
i
s
still
a form
of punishment.
Strict conditions are
i
mposed
on a prisoner on parole and parole will
be
withdrawn
should
the
prisoner not
adhere
to
such
conditions.
I
n
a nutshell,
parole is a means of serving
the
remainder
of the sentence outside
prison. In
the present
i
nstance
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 we/I-considered recommendations and to effectuate the
highest possible form of professionalism."
(own
emphasis).The report by the second respondent
i
s
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
overwhelming
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.
[23]
The
decision
of the
second
respondent
to
recommend
the applicant's
application to the
Minister should
also be taken
i
nto
account. Mr M Moerane SC
appearing
with
Mr
Bester
SC
on
behalf
of
the
first
and
second
respondents, submitted that
the word
"recommendation" contai
ned
in section
65(5)
of the Act, does not, in the context of the subsection,
i
ndicate
a positive recommendation. Accord
i
ng
to Mr Moerane SC, all applications pertaining to
prisoners
who
has been sentenced to
l
i
fe
i
mprisonment,
m
u
st
be recommended to
the
Minister.
[24]
I
struggle
to find
the
logic
in this contention.
A
recommendation
could be
either
positive
or
negative.
The
second respondent
stated
quite
clearly
in
the
Memorandum,
supra,
that
i
t
has come to a decision
''to recommend the profile to The
Honourable Minister for
a
decision.”
[25]
If the second respondent was of the view that the applicant does not
qualify for parole, its decision would surely have been
not to
recommend the profile. It will be nonsensical to refer the matter in
terms of the provisions of section 65(5) to the second
respondent to
make a recommendation, if it is not at liberty to decide what the
recommendation should be. If the subsection envisages
a mere referral
back to the Minister without considering whether a positive or
negative recommendation should be made, the subsection
would have
been worded differently to clearly indicate this intention. The
wording is, however, unambiguous, to wit
"shall
make
a
recommendation to
the
Minster
regarding
the
placement
of
the
prisoner
on
parole
.
"
(own emphasis)
[26]
I deem the decision by the second respondent to recommend the profile
to the Minister for a decision as a further positive
factor. If one
have regard to the activities of the parole board [Vl(1A)(2)supra],
it is evident that the parole board applies
its mind responsibly
after having considered detailed information from diverse sources.
[27]
In the premises, I agree with Mr du Plessis SC that the decision
taken by the Minister is not reasonable and rational and stands
to be
set aside.
APPROPRIATE
REMEDY
[28]
The applicant submits that a referral of the matter to th Minister
will cause unnecessary delay and requests this court to
make an order
for the placement of the applicant on parole. In terms of the
provisions of section 8(1)(c)(ii)(a) of PAJA a court
will only
consider a substitution -Order in exceptional circumstances.
[29]
In this
regard,
I
have
been
referred
to
the
recent
judgment of
the
Constitutional
Court in
Trencon
Construction
(Pty) Ltd v
Industrial
Development Corporation
of
South
Africa
Ltd
and
Another
2015
(5)
SA
245
CC,
i
n
which
the
test
for
exceptional
circumstances
as
envisaged
i
n
section 8(1)(c)(ii)(a)
of PAJA,
was considered.
[30]
Having considered both the
pre- and post-Constitutional test that was utilised
to
determine whether
a
substitution order should be granted, the following is
stated
at
para
[47]:
"To
my mind, given the doctrine of separation of powers, in conducting
this enquiry there, are certain factors that should
inevitably hold
greater weight. The first is whether
a
court is in as good
a
position as the administrator to make the decision. The second
is whether the decision of the administrator is
a
foregone conclusion. These two factors must be considered
cumulatively.
Thereafter,
a
court should still consider other relevant factors. These may
include delay, bias or the incompetence of an administrator. The
ultimate
consideration is whether
a
substitution order is just and equitable. This will involve
a
consideration of fairness to al implicated patties. It is
prudent to emphasise that the exceptional circumstances enquiry
requires
an examination of each matter on
a
case-by-case basis that accounts for all relevant facts and
circumstances. "
[31]
In
respect
of
the
first
factor, Mr
du
Plessis
SC
submitted
that
the
admin
i
strative
process was concluded by the second respondent and all
facts
i
nforming
the decision of the Minster
i
s
before court.
I
n
the premises, the court
is in as good a position as the
Minister to make a decision. I agree.
[32]
The question whether the decision by the Minister is a foregone
conclusion, should be evaluated in view of the facts. The Hani
family
made submissions to the second respondent and clearly stated that
they oppose the application. Notwithstanding various endeavours
to
personally apologise to the Hani family, as far back as 2011, the
Hani family refuse to accept an apology form the applicant
and
further refuse to meet with him. Their stance is simply that they
will not forgive the applicant. The Hani family's decision
in this
regard must be respected.
[33]
The second respondent was well aware of these sentiments, considered
the
submissions
and
still
decided to
recommend the
placing of
the applicant
on
parole.
For
some unknown reason, the submissions of the Hani family did not
form
part
of the
documentation
studied
by the
Minister
prior to
reaching his
decision.
The
applicant
attached
the
submiss
i
ons
to
his
answering affidavit and
i
n
reply thereto, the Minister made
the following
remarks:
"Had
the victim representations of Mrs Hani served before me for purposes
of my decision (which I reiterate was not the case),
this would only
fortified
my decision not to place the Applicant on parole.•
(own emphasis)
and
"In
the premises, had the victim representations on behalf of the Hani
family served before me for purposes of my decision
regarding the
placement of the Applicant on parole, such representations would have
further militated against his placement on
parole."
[34]
One should bear in mind that the applicant's previous parole
application in 2011 was declined by the Minister's predecessor.
On 22
June 2011 the then Minister made the following recommendation:
"The
placement of the offender on parole is not approved at this stage.
The victim's family and any other interested party
must be given an
opportunity to provide either a victim impact statement or a
statement of opposition."
[35]
The applicant states that after the recommendation, he attempted to
liaise with the prison authorities to attempt to arrange
for a Victim
Offender Dialogue. His attempts, however, failed.
[36]
On 15 October 2012, the applicant addressed a letter to the Centre
Coordinator Pretoria Central-Correctional Centre, the Case
Management
Committee, P.C.C.C and The Parole Board P.C.C.C. The relevant
portions of the letter read as follows:
"Herewith
my formal request to meet and reconcile in an amicable way with the
victims of the crime that I committed 19 years
ago.
In
accordance with the formalities issued by The Honourable Minister
Nisiviwe N Mapisa
-
Nqakula on the
5
th
August
2011
, as an Internal Communication
memo,
and due to the fact that I was sentenced before the 1st October 24, I
wish to reconcile and talk to my victims and in this
case
the following people:
1.
The wife of the late Mr Chris Hani
2.
The children of the late Mr Chris Hani
The
contact addresses and particulars of the victims is not known to me
and thereof I request the Centre Coordinator to assist me
in this
matter to provide and or communicate with the victims in order for
me
to have an
eye
to
eye
reconciliation consultation,
after
the possible approval of this application.
Due
to the fact that my remorse for killing their husband and father,
reaches further than just
a
letter and
a
consultation I wish to appeal to you as the facilitators in
this respect to help
me
if. I the formalities that must be followed in future.
My
appeal is for the principals of Restorative justice to be implemented
as prescribed by Legislation as well as my sincere condolences
to the
family, which I have wished to convey since my amnesty hearing in
1998.
My
true belief is that Victim Empowerment is at this stage, after 19
years
the only route to be
followed in order to reconcile with the wrongs of my deed (crime),
and I can only hope that my victims do share
this believe.
This
application, in co-operation with
a
prescribed victim empowerment and restorative justice program
as laid down by the Department of Social Development.
The Department of Correctional Services and Multi party
Facilitators in this regard.
I
am willing to face the facts and my victims, I feel, that a sincere
apology is the least I owe them. I do believe that I cannot
repair
the damage which I had caused them, but I am prepared to do the
utmost best in order to ease their pain, which depth I can
only try
to understand and I will respect their decision in regard, to eye to
eye reconciliation, consultation.”
[37]
This request was ignored by the prison authorities.
[38]
The applicant states further that Mrs Hani,
her daughter and their legal representatives were
present at his
parole hearing that forms the subject matter of this application.
Representations were made on their behalf to the
Parole Board.
According to the applicant, the following transpired during the
parole hearing:
"During
the parole hearing I apologised to Mrs Hani. She stated clearly that
she did not accept any apology, but that if I
would like to approach
her through her legal representatives, we were welcome to do this."
[39]
On 6 October 2014 the applicant addressed a letter to Mrs Hani
through her attorneys. The letter reads as follows:
"Mrs
Limpho Hani
Greetings
Mrs Hani.
I
do owe this apology to you very long time. Mrs Hani I do know that
whatever
I
would do, will not compensate for what I have done to you. The
only thing
that
I can do is to say I am deeply sorry for what I have subjected you to
through all those years. Losing beloved person and bringing
up
children alone without the father. As I do regret passing away of one
of your daughters for whose death I do feel responsible
to certain
extend as well (because it could haven the consequence of Jack
of the father in the house). If forgiveness is
impossible I will
fully understand and respect your decision.
However
I do appreciate most deeply and sincerely Mrs Hani if you would
prefer to hear this apology directly from me, I would be
most obliged
(to you), if not; please believe that this Jetter expresses my true
feelings. (Mrs Hani)."
[40]
Similar letters were addressed to the two daughters of the late Mr
Hani.
[41]
The applicant did not receive any response to these letters.
[42]
The Minister was fully aware of these facts when he deposed to the
answering affidavit. On what basis the Hani family's refusal
to
engage with the applicant, could strengthen the Minister's decision
to refuse the applicant's application for parole is difficult
to
grasp. The applicant has no control over their decision. It is
furthermore disconcerting that the Minister attaches so much
weight
to this issue whilst it is not, in terms of the applicable policies,
a factor to be considered when evaluating the application
for parole.
[43]
In view of all the aforementioned facts, the intimation by the
Minister that the representations by the Hani family would
have
fortified his decision not to grant parole, does not only indicate
that his decision, should the matter be referred back to
him, is a
foregone conclusion, but is also indicative of the fact that he would
in all probability not be able to apply his mind
in an unbiased
manner.
[44]
I am satisfied that the facts support the second factor to be taken
into account when considering a substitution order.
[45]
Lastly,
an
undue delay
would
be caused
by
referring
the
matter
back
to the
Minister.
As
set
out
supra,
the
Minister
took almost
1
8
months
to
reach
a decision in
the
present
matter.
A
further delay
would
be
prejudicial
to
the
applicant and would not be
fair to him.
[46]
On an examination of all the relevant facts and circumstances, I am
of the view that a substantiation order will be just and
equitable.
[47]
The parties
were
ad idem
that
the matter
should
be
referred
back
to
the
parole
board to
i
mpose
the
necessary
parole conditions.
Section
65(6), however, provides that
the Minister
may
determine
the
conditions of parole.
Should
the
Minister require any guidance
from the parole board, their services
is no doubt to his disposal.
ORDER
I
n
the
premises,
I
make
the
following order:
1.
The decision of the first
respondent dated
1
0
April 2015 is set aside.
2.
The applicant
is to be placed on parole
within
1
4
days from date of this order.
3.
The
application
i
s
referred
back
to
the
first
respondent
to
i
mpose
the necessary
parole
conditions within
1
4
days from date of this order.
4.
The
first
and
second
respondents
are
ordered
to
pay
the costs
of
the appl
i
cation,
which costs
include
the costs of two counsels.
__________________________
JANSE
VAN NIEUWENHUIZEN
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GA
UTENG
D
I
VISION,
PRETORIA
Appearances:
Counsel
for the Appellant
: Advocate R Du Plessis SC
Advocate
Kellerman
I
nstructed
by
:Julian Knight and
Associates
Inc.
Counsel
for the state
: Advocate TWG Bester SC
Advocate
MTK
Moerane
SC
Instructed
by
: The State Attorney