Case   CCT221/21
[2022] ZACC 39

Hearing Date: 22  February 2022

Judgement Date: 21 November 2022

Post Judgment Media Summary  

The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.

On Monday, 21 November 2022, the Constitutional Court handed down its judgment in an application that was brought by Mr Janusz Walus (applicant) for leave to appeal against the judgment and order of the Gauteng Division of the High Court, Pretoria (High Court), in the matter concerning a decision that was taken by the Minister of Justice and Correctional services to reject the applicant’s application for parole.

The applicant is Mr Janusz Jakub Walus, a sentenced prisoner currently incarcerated at Kgosi Mampuru II Correctional Centre. He is serving his sentence of life imprisonment. The first respondent is the Minister of Justice and Correctional Services (the Minister). The second respondent is the South African Communist Party (SACP). The third respondent is Mrs Limpho Hani (Mrs Hani). The fourth respondent is the Minister of Home Affairs. The first intervening party is the Families for Lifers NPO. The second intervening party is Tebogo Modise (Mr Modise). The first and second intervening parties are acting together for the purposes of this application. The third intervening party is the South African Prisoners’ Organisation for Human Rights (SAPOHR).

The applicant was convicted for the murder of Mr Chris Hani on 15 October 1993 on charge of murder and the illegal possession of firearm. He was sentenced to death for the murder, and given five years for the illegal possession of the firearm. The death sentence was commuted to life imprisonment on 7 November 2000. The applicant made numerous applications for parole which were all refused for various reasons. On 16 March 2020, the Minister made a new decision in accordance with the order of Kollapen J emanating from a review application of a previous parole application. The Minister’s reasons for refusing parole, were, inter alia, that the positive factors in favour of parole being granted to the applicant were outweighed by the negative factors. The negative factors were the nature and seriousness of the crime in that it was a cold-blooded assassination of a prominent political leader which had the potential to bring about civil war in the country at that time, and the sentencing remarks by the trial courts.

The Minister also considered the fact that, according to the parole regime applicable on the date the offence was committed should the applicant be placed on parole.

The applicant once again launched review proceedings in the Pretoria High Court against the Minister’s decision which was heard by Kubushi J. The applicant sought an order in terms of section 8(2) of the Promotion of Administrative Justice Act (PAJA) that the Minister’s decision of 16 March 2020 be reviewed and set aside, that he should be placed on day parole, alternatively parole, further alternatively that the matter be remitted to the Minister to make a fresh decision. The court held that, in understanding the remarks of the sentencing court, it is clear that the intention was to keep the applicant incarcerated for life. The court further held 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. The court in that sense cannot change the factors which the Minister considers to be weightier than the others. Leave to appeal was refused by the High Court and also by the Supreme Court of Appeal on the grounds that the matter has no reasonable prospects of success in an appeal and there is no other compelling reason why an appeal should be heard.

In this Court, the application was brought in terms of section 33 of the Constitution read with section 6 of PAJA. The applicant submitted that the rights enshrined in section 12(1)(e) of the Constitution have been infringed by the refusal to grant parole. He submitted that this constitutes a constitutional matter for purposes of establishing this Court’s jurisdiction. Furthermore, it was submitted that there are reasonable prospects that this Court will reverse or materially alter the judgment, with reference to the constitutional point, as well as the administrative law principles which the Minister had to apply when parole application was considered, namely rationality and reasonableness. The applicant asserted that the administrative law issues are constitutional issues in terms of section 33 of the Constitution.

The applicant submitted that he is entitled to parole in terms of the provisions of the Correctional Services Act of 1959 (1959 Act), as it was applicable at the date of commission of the crime. He argued that a prison sentence that is so long that a prisoner has no chance of being released at the expiry of the sentence or on parole amounts to cruel, inhuman and degrading punishment. He further submitted that life imprisonment without the option of parole makes it unconstitutional. He submitted that it denies an offender the possibility of returning to society, it robs the prisoner of all hope and that takes away their dignity and desire for living. Making reference to S v Bull; S Chavulla and Others, the applicant contended that a sentence for an indefinite and indeterminate period has been argued to infringe the right guaranteed by section 12(1)(e) of the Constitution. The applicant submitted that if a prisoner has properly and fully completed the punitive period of his or her imprisonment, and becomes entitled to parole thereafter, and their further incarceration is not necessary for the protection of society, the administrative and executive organs of the state will act wrongfully and unreasonably, should they insist on the perpetuation of such incarceration. He submitted that he cannot do anything to further and improve his chances of being placed on parole as the facts will not change in future.

The Minister submitted that it is common cause that the applicant is eligible for consideration for placement on parole, as provided for in section 136(1) of the 1998 Act and Chapter VI(1A)(19) of the B-Order. He further submitted that when considering to place an offender on parole, the decision-maker must take into account: the nature of the crime; crime and background history; behaviour and reaction to treatment; medical, psychological and psychiatric considerations; domestic circumstances and employment opportunities after placement; and, selection for placement on parole.

The Minister argued that in terms of the provisions of section 63(1) of the 1959 Act, the decision-maker is enjoined to have regard “to the nature of the crime and the remarks made by the court at the time of imposition of sentence” for purposes deciding whether or not to place an offender on parole. The importance of the nature of the crime and the remarks made by the court at the time of sentencing was further stressed in the matter of Derby-Lewis v Minister of Correctional Services and Others where it was stated that “the judgment of the trial court, not only on the merits, but also on sentence, is of utmost importance for a proper decision on the placement of the applicant on parole”. It was submitted that the remarks made by the trial court and the Supreme Court of Appeal influenced the decision of the of the Minister to not place the applicant on parole. The Minister highlighted that, his predecessor also refused to place the applicant on parole for the same reasons.

The Minister argued that the murder committed by the applicant involved cold-blooded assassination of a prominent political leader, for which careful preparations were made in advance. Regarding the nature of the decision and the range of factors relevant to it, he argued that “parole decisions are notoriously difficult in reconciling differing interest and imperatives”. For those reasons, the applicant’s parole application was refused despite the factors in favour of the parole. The Minister argued that the decision not to place the applicant on parole was in no way irrational and unreasonable. The Minister further argued that his decision to not place the applicant on parole was rationally connected to the information before him and the reasons for the decision. He further argued that his decision achieved a reasonable equilibrium between the positive factors in favour of the placement of the applicant on parole, and the negative factors militating against placement on parole. The Minister submitted that he took a reasonable decision in accordance with the law and consistently with the requirements of the controlling legislation.

The SACP and Mrs Hani jointly opposed this application. They submitted that the application is without merit and should thus fail as it would not be in the interests of justice to grant leave to appeal. They argued that the crime committed by the applicant was a crime unlike any other in South Africa in that it shook the very core which South Africa was trying to build at the time – a democratic and free society, its motive was to a throw South Africa into a monumental political catastrophe. They argued that the Minister’s decision was neither irrational nor unreasonable, and it did not constitute an error of law or evidence of executive bias.

They submitted that the decision that this Court will take should be viewed in light of the nature of the crime. It was further argued that the fact that the Truth and Reconciliation Commission did not see the applicant fit to be granted amnesty is itself telling of the gravity of his crime and its impact. They submitted that the Minister was entitled to take into account the seriousness of the crime and the context within which it occurred, as well as the sentencing remarks. They argued that the gravity of the seriousness of the crime and the potentially catastrophic effects it would have on the democracy outweigh the other positive factors to be considered by the Minster in determining whether to grant parole. They submitted that the decision was well-considered, rational, and lawful.

Families for Lifers NPO applied for admission as an intervening party in this matter. It is a non-profit organisation which seeks to protect the interests of prisoners who serve life sentences and their families. The reading of its affidavit revealed that they are dissatisfied with not only the parole system but also, generally speaking, with the manner in which the Minister and other Correctional authorities delay in taking decisions on prisoners’ applications for parole. They also complained that the Minister often arbitrarily overrides recommendations made to him by the Parole Board on applications for parole. Families for Lifers NPO sought a review of the whole parole system. Mr Tebogo Modise also applied for leave to be admitted as an intervening party. His case is the same as that of Families for Lifers NPO and he also sought the same relief as the Families for Lifers NPO. This Court held that both applications fall to be dismissed because the issues they raise fall outside of the ambit of the issues in this matter.

In respect of jurisdiction, this Court held that, as the decision of the High Court in respect of which the applicant applies for leave to appeal relates to a review application under the Promotion of Administrative Justice Act (PAJA) – which gives effect to section 33 of the Constitution – this is a constitutional matter. Accordingly, this Court has jurisdiction. In respect of leave to appeal, this Court held that the issues that this matter raises are issues that do not only affect the applicant, but will affect many other prisoners who serve life imprisonment sentences. This is because this matter raises the issue of whether there is a point in the life sentence of a prisoner beyond which the nature and seriousness of the crime and the sentencing remarks of the trial court cannot be used to justify denying him or her parole. In the result, this Court held that this matter has reasonable prospects of success, and it found this matter to be in the interests of justice – it therefore granted leave to appeal.

In the result, the majority of the Constitutional Court ordered that leave to appeal be granted and that the appeal be upheld. The decision of the Gauteng Division of the High Court High Court of South Africa, Gauteng Division, Pretoria, dismissing the applicant’s application is set aside and replaced. The decision of the Minister of Justice and Correctional Services made in March 2020 rejecting declining the applicant’s application for parole is reviewed and set aside. The Minister of Justice and Correctional Services is ordered to place the applicant on parole on such terms and conditions as he may deem appropriate and to take all such steps or cause all such steps as may need to be taken to ensure that the applicant is released on parole within ten (10) calendar days from the date of this order. The Minister of Justice and Correctional Services is ordered to pay the applicant’s costs including the costs of two counsel."

The Full judgment  here