How the ConCourt judgment on Walusz was reached

how the concourt judgment on walusz was reached


The Constititional Court this week ordered the release of one of South Africa’s most infamous murderers – Janusz Walus – on parole.

Walus is the man behind the murder of SACP leader Chris Hani in 1993, which almost sent the country into civil war.

And the ruling has resulted in widespread outrage from the Hani family, the SACP, politicians, struggle veterans, and ordinary South Africans alike.

They have described it as “diabolical,” “sickeningly disappointing” and having “opened a wound” – with Chief Justice Raymond Zondo, who penned it, bearing the brunt of the backlash.

The ruling was, however, a unanimous one which saw all eight Constitutional Court justices who presided over the case in agreement.

And several experts and analysts have given it the thumbs up from a legal perspective.

So why exactly was Walus granted parole?

The starting point is that the Constitutional Court emphasised throughout the judgment that “an important objective of imprisonment in our correctional facilities is aimed at rehabilitating the prisoner so that he or she can lead a crime-free life after being released from prison and rejoining society”.

In support of this, it relied on Section 36 of the Correctional Services Act, which reads: “With due regard to the fact that the deprivation of liberty serves the purposes of punishment, the implementation of a sentence of imprisonment has the objective of enabling the sentenced prisoner to lead a socially responsible and crime-free life in the future.”

It also relied on Section 37(2), which reads: “The Department must seek to provide amenities which will create an environment in which sentenced prisoners will be able to live with dignity and develop the ability to lead a socially responsible and crime-free life”.

It then looked at Justice Minister Ronald Lamola’s reasons for initially refusing Walus parole in 2020 – which is what prompted the current court actions.

The guiding policy laid out various factors which the minister had to consider in terms of the guiding legislation and policies, the majority of which he – himself – conceded were in Walus’ favour.

These included:

  • His “behaviour and adjustment” during his incarceration;
  • The rehabilitation programmes he had attended in prison;
  • Whether he had “support systems” outside prison;
  • Whether he had a fixed address “which can be monitored”;
  • His “scholastic or technical achievements” during his incarceration; and
  • The risk of recidivism.

In fact, there were only two which he said were not in Walus’ favour and formed the basis for his decision to refuse him parole: “The remarks made by the court in imposing sentence” and “the nature and seriousness of the crime and the consequence thereof”.

In terms of the former, the minister relied on remarks made by the trial court which include the following:

  • “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”;
  • “The murder was a deliberate, cold-blooded one”; and
  • “[The murder] was preceded by weeks of planning”.

Lamola also relied on remarks made by the Supreme Court of Appeal when it dismissed Walus’ appeal against his sentence, such as: “Few crimes can be regarded by a court as more atrocious, or as being more calculated to arouse the revulsion of decent members of society, than the sort of murder of which the appellants were duly convicted”.

But, the Constitutional Court found these were not the type of remarks envisaged by the guiding policy.

“Are these the types of remarks made by a trial court at the time of imposing a sentence that the Department’s policy contemplates should be taken into account? In my view, they are not,” it said.

Section 276B(1)(a) of the Criminal Procedure Act provides that “if a court sentences a person convicted of an offence to imprisonment for a period of two years or longer, the court may, as part of the sentence, fix a period during which the person shall not be placed on parole.”

And the Constitutional Court found that these were the kind of remarks the policy referred to.

“The sentencing remarks to which the policy document refers can only be remarks about the minimum period of imprisonment that a convicted person or offender should serve before he or she can be considered for parole,” it said.

This, it explained, is because the kinds of remarks the minister had relied on related to the seriousness and cold-bloodedness of the crime, and this was dealt with separately in the policy.

When it came to the minister’s consideration of the “nature and seriousness of the crime,” Walus had attacked Lamola’s decision as irrational – arguing that these were factors that would never change in the future.

“[He] then went on to submit in his founding affidavit in the High Court that, because these two matters on which the Minister relied to justify denying him parole will never change in the future, the Minister will never release him on parole which, therefore, meant that he would serve a full life sentence of imprisonment,” explained the Constitutional Court.

The Minister had argued that this wasn’t his position. But, as the court pointed out, he didn’t take it any further than this.

“What the Minister says in effect is that in 2020 he was prevented by the nature and seriousness of the crime and the trial court’s and Supreme Court of Appeal’s sentencing remarks from releasing [Walus] on parole but sometime in the future he could release him on parole despite the fact that the nature of the crime, its seriousness, and the court’s sentencing remarks would not have changed,” it said.

“If more than 26 years after the applicant was sentenced for the crime he committed, it was appropriate for the Minister not to release the applicant on parole in 2020 because of the nature of the crime, the seriousness thereof, and the Court’s sentencing remarks, why would it be appropriate for the Minister to release him one or two or three or five years thereafter? These three factors are immutable. They will not change one or two or three or five years later”.

As a result, the court found it had to vitiate the Minister’s decision.

“If it were not to do so, it would in effect be giving its approval to the proposition that in future it would be appropriate for the Minister to deny the applicant parole even when he may have served 30 or 35 or even 40 years of imprisonment. That, simply on the basis of the nature of the crime, the seriousness thereof, and the trial court’s and Supreme Court of Appeal’s sentencing remarks – despite the fact that [Walus] has complied with all other requirements for him to be placed on parole which the Minister concedes”.

The standard for rationality was laid out in Pharmaceutical Manufacturers, in which the Constitutional Court said:
“It is a requirement of the rule of law that the exercise of public power by the Executive and other functionaries should not be arbitrary. Decisions must be rationally related to the purpose for which the power was given, otherwise, they are in effect arbitrary and inconsistent with this requirement. It follows that in order to pass constitutional scrutiny, the exercise of public power by the Executive and other functionaries must, at least, comply with this requirement. If it does not, it falls short of the standards demanded by our Constitution for such action”.

In this instance, the Constitutional Court ultimately found that all factors considered, Lamola’s decision was “not rationally connected to the purpose of the power conferred upon him” and, as a result, fell to be reviewed and set aside.

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