I do not believe in ghosts and hobgoblins, but Monday, 21 November 2022 was one of those days in the history of the criminal justice system in South Africa on which we suddenly found ourselves on simultaneous and juxtaposed precipices.
The two senior courts in the country, the Supreme Court of Appeal (SCA) and the Constitutional Court, made rulings independent of each other that made everyone hot under the collar. It was a classic Tale of Two Cities.
In the City of Johannesburg, a cold-blooded killer was given a get-out-of-jail card by the Constitutional Court. And in Bloemfontein on the same day the SCA declared that Jacob Zuma must go back to prison because he was out based on an illegal parole decision by Arthur Fraser.
Prominent legal commentator Professor Pierre de Vos stated that it “should have come as no surprise that the Supreme Court of Appeal earlier this week confirmed that the granting of medical parole to former president Jacob Zuma by the erstwhile Commissioner of Correctional Services, Arthur Fraser, was unlawful and invalid because Zuma did not meet the medical criteria for the granting of this kind of parole”.
The SCA decision in the Zuma case, particularly an order that he must return to the Estcourt Correctional Centre to complete his sentence, may be a potential nightmare evoking tumultuous events of the past linked to the imprisonment of the former president.
The Constitutional Court, in the judgment penned by Chief Justice Raymond Zondo, ordered the freeing of Janusz Waluś, the Polish immigrant who in 1993 almost brought South Africa to civil war and political violence by assassinating South African Communist Party general secretary Chris Hani in cold blood. The country nearly did not see a peaceful transition from apartheid South Africa to a new and first-ever non-racial, democratic country.
The baby-faced Waluś will be given a hero’s welcome in his home country Poland, according to some reports. The man idolised by the far right for nearly bringing South Africa into a race war is soon to be free, and at the centre of his freedom is our parole system.
Chief Justice Raymond Zondo ordered Minister of Justice and Correctional Services Ronald Lamola to place Waluś “on parole on such terms and conditions as he may deem appropriate” within 10 calendar days from Monday. It was fourth-time lucky for Waluś, having previously failed in his parole bids in November 2013, April 2015 and October 2017.
Tensions are high, and some may say that Hani was killed all over again. According to Limpho Hani, it was as if Chief Justice Zondo was saying that Waluś did well to kill her husband. Her rebuke of the judgment says a lot: “I have been in and out of court, and Waluś lost all the cases. Now these ones, because in South Africa they are gods, what they say goes. I wish them the best, you know about karma, watch the space all of them, I give them two years... This judgment is diabolical.” Her response is understandable because her family sacrificed a lot through his death.
Worth repeating are the words of Ms Hani to the Constitutional Court justices: “I wish them the best, you know about karma, watch the space all of them, I give them two years… This judgment is diabolical.”
But in Waluś’s case the Chief Justice had his hands tied by the Correctional Services Act which straitjacketed his decision and reasoning and ultimately led to the release of Hani’s killer.
Read in Daily Maverick: “Outcry over ConCourt order to parole Chris Hani’s killer Janusz Walus”
In Zuma’s case, it is again the provisions of the Correctional Services Act that tied Judge Tati Makgoka’s hands behind his back. Be that as it may, the two decisions may historically be the uppermost decisions that will come back to haunt us.
For Chief Justice Zondo the ghost of the past will be in the form of an appeal to the Constitutional Court by Zuma against the decision of the SCA; and also the Constitutional Court, inevitably in hearing the appeals, having to confront in context the nature and the decision that came in his favour while he was at the State Capture Commission to have Zuma imprisoned in the first place.
Visit Daily Maverick's home page for more news, analysis and investigations
Concerns are being raised about whether parole law can positively affect people’s beliefs regarding the irrationality in sentencing and punishment, and how the factors around the Zuma and Waluś cases influence such beliefs. Both the SCA and the Constitutional Court rulings are mired in suspicions of antiquity and irrationality.
Irrespective of how pressed the two different courts were in trying to provide non-political and impartial reasons for their respective judgments, it would seem that the perception keeps growing that South African law has ceased to be good law and the reputation of the courts is on a downward spiral.
“We want good laws. Generally, we presume – though certainly, it is not always true – that the law will serve to make society better, that it will be guided by the consideration of the effects of its decisions… on social welfare,” writes Richard A Posner in his 1990 book Cardozo: A Study in Reputation.
For the moment, of course, the excitement and anxiety about insecurity in the country following the Zuma and Waluś cases is something of a cautionary tale. Nevertheless, these two rulings, no matter how good they are in law, are prompting something of a nationwide discussion and reassessment of how justice is administered in the courts, and if the rainbow of our nation still has all its colours. The cases force us to confront how race relations and differences continue to pivot any discourse we have about where blacks and whites are before the criminal justice system.
Until proven otherwise, we have an extraordinary group of dedicated judges doing their level best to avoid any appearance of bias and to promote equal rights for those appearing before them.
Read in Daily Maverick: “Ramaphosa’s Zondo Commission response is superficial and his implementation plan lacks clarity”
For their part though, our judges must not rest on their laurels and should hope that their judgments will be those that galvanise South Africans. The waning reputation of the judiciary and the perception that it is captured by private interests should not be lightly dismissed. Perhaps a justice and law indaba is needed.
I am not saying that the credibility of the SCA and the Constitutional Court is on life support, nor am I denying the possibility of the waning reputation of these superior courts – rightly or wrongly so perceived. DM