Janusz Walu? (plotting with Clive Derby Lewis) came close to sabotaging South Africa’s transition from an authoritarian regime to a democratic state. Walu? murdered SACP and ANC struggle hero Chris Hani in an attempt to derail negotiations and stop the advent of democracy in South Africa. It was a monstrous crime. On both a political and a personal level, it must surely be close to impossible to forgive his actions.
However, from a legal perspective, the issue is not only whether Walu? could ever be forgiven for what he did. The legal question is much narrower: did the Minister of Correctional Services act unlawfully when he declined to grant Walu?’s parole last year? More pertinently, did the minister exercise his discretion in either an unreasonable or an irrational manner when he declined to grant parole?
The High Court concluded, after reviewing the factors that led the minister to deny granting parole, that the decision by the minister was “not reasonable or rational”. The judge then set the decision aside and ordered Walu? should be realised within 14 days.
I respectfully submit that this decision was wrong. Given that I am normally a strong supporter of the granting of parole, I have considered the possibility that my legal analysis is clouded by my emotions in this case. But after studying the judgment and doing more background research, I believe my initial dismay with the High Court judgment was justified.
In what follows I attempt to show why.
The High Court judge (Janse van Nieuwenhuizen J) seemed to have conflated an appeal (where a judge reconsiders the merits of a case) with a review (where the judge considers whether the decision was either unreasonable or irrational — regardless of whether the judge would have made a different decision).
Instead of asking whether the minister’s decision was irrational or unreasonable, the court wrongly seemed to have overturned the decision because it believed the decision to be wrong.
This was not an appeal (one cannot appeal an administrative decision by the minister). This was a review of the minister’s decision. To be successful Mr Walu? and his lawyers would have had to show that the minister acted in either an irrational or an unreasonable manner.
The judgment is badly argued and fails to make a logical and coherent legal argument in favour of setting aside the decision by the minister to refuse the granting of parole.
Inexplicably, the judgment failed to identify the specific subsection of the Promotion of Administrative Justice Act (PAJA) it purported to rely on. The judgment further made no attempt to distinguish between an “unreasonable” decision and an “irrational” one. It also failed to analyse the legal requirements that must be met before a court could review and set aside an administrative decision on the grounds of either unreasonableness or irrationality.
The judge seemed to have been unaware that these grounds for review are conceptually distinct. Constitutional Court jurisprudence makes clear rationality is generally a less stringent standard of review than reasonableness. It would not be easy for an applicant seeking to review a decision to convince a court the decision was irrational.
It would have been far-fetched for the judge to conclude that the refusal to grant parole to Walu? was irrational.
This is why I will assume the judge conducted the review on the basis of reasonableness — despite the judgment failing to make this clear. Although the judge fails to identify the section of PAJA relied on, I assume the decision was based on section 6(2)(h) of PAJA which allows the court to review an administrative decision if it is “so unreasonable that no reasonable person could have so exercised the power”.
In Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism the Constitutional Court explained that this section means an administrative decision would be reviewable on this ground “if … [the decision] is one that a reasonable decision-maker could not reach”.
The Constitutional Court specifically warned courts in Bato Star that “the distinction between appeals and reviews continues to be relevant [when dealing with reasonableness]. The court should take care not to usurp the functions of the administrative agencies”. I would suggest that in this case the High Court erred because it usurped the functions of the minister, instead of sticking to reviewing his decision in accordance with the specific provisions of PAJA.
As the High Court judgment noted, the minister was empowered to make a decision on parole in terms of the legislation in existence when Mr Walu? was sentenced. This meant the minister exercised his powers in terms of section 65(6) of the Correctional Services Act 8 of 1959. This section states that: “The minister may, after considering such recommendation [from the parole board], authorise 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.”
The minister is not bound by the recommendations made by the parole board. What the minister had to do was to weigh up all the relevant factors required by law before deciding whether this warrants the release of a prisoner on parole.
The factors listed are: the purpose of parole, the nature of the crime, background history, behaviour in jail, medical and psychological considerations, domestic circumstances, and the recommendations of the parole board or advisory council. Added to this was the recommendation by the parole board.
After considering the relevant factors the minister decided not to grant the request for parole, because he decided that the crime committed was of such a magnitude that its seriousness (and by implication the need to punish the perpetrator appropriately) outweighed other considerations that might have favoured the granting of parole to Walu?.
Walu? assassinated Chris Hani who at that time was SACP General Secretary and former Chief of Staff of the ANC’s armed wing Umkhonto we Sizwe. Hani was a 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.”
The minister referred to the remarks of the court that convicted Walu? of murder in 1993: “They [Walu? and Clive Derby-Lewis] 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.”
The High Court clearly believed that the minister had erred by giving too much weight to this factor while not giving equal weight to the other factors that might have favoured the granting of parole. Judge Janse van Nieuwenhuizen argued:
“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. 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.”
But this was not an appeal in which a court could overturn the decision taken by the minister because the presiding judge believed the decision to be wrong. This was a review in which the court could only overturn the minister’s decision if it found that no reasonable person who had considered all the relevant factors could have come to the same decision.
If the minister had completely failed to take into account some factors, the decision would be unreasonable. The court could also have set aside the decision if it had found that the minister’s decision did not weigh the relevant factors in a proportional manner.
When making a decision about whether to grant parole to a murderer sentenced to life imprisonment, the minister is called upon to weigh a range of competing interests. When weighing the interests the court must consider the reasons why parole is granted and make a value judgment taking account of all relevant circumstances. (It is not for the country that reviews such a decision to replace the minister’s value judgement with that of the presiding judge reviewing the decision.)
In this case the minister was called upon to weigh the interests of the killer to be let out on parole against other interests, including: considering the need not to bring the criminal justice system into disrepute; considering the attitude and feelings of the victim’s family; considering the views of the community, and considering the seriousness of the crime committed and the real or potential impact of the crime.
People may well differ on whether the minister’s decision was correct. In fact, the parole board seemed to have recommended to the minister that Walu? does merit being released on parole and may therefore have supported the granting of parole.
But that does not mean the High Court was permitted to review and set aside the minister’s decision on the grounds that the decision was either irrational or unreasonable. By doing so, it went beyond an inquiry of whether the decision was reasonable and in effect found that the decision was mistaken.
It is for this reason that I believe there are credible legal grounds to appeal the decision of the Pretoria Division of the Gauteng High Court. The Supreme Court of Appeal (SCA) or the Constitutional Court may well decide that the High Court erred when it set aside the minister’s decision and ordered the release of Walu? on parole. DM