ConCourt gives reasons why it ordered Walus' parole

In ordering the placement of Chris Hani’s murderer Janusz Walus on parole, the Constitutional Court said it was in as good a position as the minister of justice and correctional services to make that decision.

The apex court on Monday made an order declaring the minister’s decision of March 2020 rejecting Walus' application for parole reviewed and set aside.

It said the next question was whether the court should remit the matter to the minister to consider Walus’ application after this judgment or order the minister to place him on parole.

“Ordinarily, this court would remit the matter to the minister and direct that he considers the applicant’s application for parole afresh and make a decision on whether the applicant should be placed on parole,” chief justice Raymond Zondo wrote in a unanimous judgment.

Zondo said that enabled the court to allow the functionary in whom the power to make a certain decision is vested to make the decision.

“However, it is not our law that a court will not under any circumstances either make the decision itself that was supposed to have been made by the functionary concerned or that it can never order such a functionary to make a particular decision.”

Zondo cited a judgment in the Constitutional Court which dealt extensively with the circumstances in which it would be justified for a court not to remit a matter to the relevant functionary but, instead, to itself make the decision of the functionary.

He said one of the exceptions recognised in another judgment was where the decision was a foregone conclusion.

“A period of more than 15 years has lapsed since [Walus] became eligible for consideration to be placed on parole. It was in 2005 that [Walus] became eligible to be considered for placement on parole,” Zondo said.

The minister accepted that Walus had shown remorse for the crime he committed.

“The evidence reveals that during his imprisonment all these years since 1993 [Walus] has had no negative disciplinary record in prison. The minister accepts that the applicant’s risk of reoffending if he were to be placed on parole is low. The applicant has apologised to [Hani’s widow Limpho] Hani and her family more than once.”

Zondo said Walus cannot do anything about the nature of the crime he committed, its seriousness, and nor can he do anything about the sentencing remarks the trial court made about him and the crime of which he was convicted.

For more than a decade Walus made numerous applications for parole and various ministers responsible for correctional services rejected his applications for one reason or another.

On a number of occasions Walus applied to the high court to challenge the decisions denying him parole and he succeeded in all of them except the one that was the subject of this judgment.

“In all those applications, except one, the court remitted the matter to the minister responsible for correctional services to consider the applicant’s application for parole afresh and each time the various ministers reached the same conclusion as they had reached before, namely, to reject his application for parole.”

Zondo said the one occasion when the high court did not remit the matter, the court ordered the minister to release the applicant on parole.

On that occasion the minister appealed that judgment in the Supreme Court of Appeal (SCA).

The SCA said the minister had erred in deciding Walus’ application for parole without considering the statement of the Hani family.

“When the minister reconsidered the applicant’s application for parole, as ordered by the Supreme Court of Appeal, he again reached the same conclusion as before, namely to reject the applicant’s application for parole.”

In opposing Walus' appeal, the minister, the South African Communist Party and Limpho Hani contended the minister’s decision not to grant him parole was justified and rational.

They said Walus's actions nearly plunged South Africa into civil war and he nearly prevented the attainment of democracy.

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