Defend Truth

Opinionista

Zuma and Waluś judgments are flipsides of the same legal coin, but inevitably invite critical scrutiny

mm

Professor Dr Omphemetse S Sibanda is a Professor of Law and the Executive Dean of the Faculty of Management and Law at the University of Limpopo. He holds a Doctor of Laws (in International Economic Law) from North West University, a Master of Laws from Georgetown University Law Centre, US; and an LLB (Hon) and B Juris from the then Vista University, Soweto Campus.

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.

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

Gallery

Comments - Please in order to comment.

  • Sydney Kaye says:

    I don’t see how these two decisions are examples of bad or suspect law. As far as the Zuma matter the law does not allow one person to unilaterally and irrationally over rule the law that controls medical parole, which was specifically enacted after Shabir Shaik humliated the system by avoiding the sentance passed on him after being found guilty at trial.
    The Hani matter is more difficult because of the subjectivity. However the law is intended to take emotion, such as exhibited by the family, out of the parole decision. It maybe that he shouldn’t be released but then that should apply to all intentional killers.

  • Willem Boshoff says:

    I don’t really see the point of this article. There’s the law, which can be changed by parliament, and judges must apply the law, without fear or favor. No matter how odius one may think Walus is as a human being, he too should be treated equally under the law. Of far greater concern should be the the way powerful and politically connected individuals undermine the law, as well as a general lack of law enforcement. In the 3 months ending September this year at least 7004 people were murdered. How many of the murderers will be apprehended, tried and sent to jail? How many of those will get parole far earlier than what they should? How many of those will commit crimes again? The racial and political undertones of the current Hani/Walus discussion detracts from what’s really broken in our society.

  • Cunningham Ngcukana says:

    This is judicial and legal plumbing if not outright thuggery by the author and how the article has escaped the scrutiny of the editors boggles one’s mind. Firstly, there is an issue of medical parole appeal by Jacob Zuma that went to the SCA which is different from an ordinary parole. Arthur Fraser had disregarded the advice of the parole board and claimed that he has the legal authority on the basis of information of Zuma’s medical doctors not a body that is competent to make such recommendations.
    The Walus case is about ANC Ministers making an irrational decision to satisfy the fascists of the SACP and a disorderly Mrs Limpho Hani who wrongly thinks that whatever she says or the communist quacks of the SACP say must go. Here, the Minister admits that the person has met all the legal requirement for parole but denies it for a political reason using the comments of the judge at the time
    of sentencing. He even acknowledges that Walus apologised to Limpho something that is not afforded to many victims of parolees by the very Minister despite patent lies by one Nxumalo with regularity!
    Now, to compare Zuma and Walus cases is legal delinquency if not illiteracy. Zuma is in an unrepentant Constitutional delinquent who showed a middle finger to the Zondo Commission and the Constitutional Court and continues to do so. He is a present danger to the Constitutional and legal order of the country just like Trump. However, the issue were powers of the commissioner to release him.

  • Kanu Sukha says:

    How unfortunate that the author conjures up a ‘debate’ about the law (for which he proposes yet another ‘indaba’) ! Having acknowledged that an extremely competent (for the most) group of judges are trying their level best to promote justice, this is an attempt to create a ‘debate’ where none is essential. The most tragic aspect of this analysis is the introduction of “the discourse we have about where blacks and whites are before the criminal justice system.” – how did the issue of ‘colour’ get into this get into this ? If Januz had a black skin, would the issue apparently highlighted, be any different ?

Please peer review 3 community comments before your comment can be posted

Become a Maverick Insider

This could have been a paywall

On another site this would have been a paywall. Maverick Insider keeps our content free for all.

Become an Insider

Every seed of hope will one day sprout.

South African citizens throughout the country are standing up for our human rights. Stay informed, connected and inspired by our weekly FREE Maverick Citizen newsletter.