The murder of Chris Hani, a South African liberation struggle hero, by Janusz Walus on 10 April 1993 almost derailed the country’s transition from apartheid to democracy. Now, almost 30 years later, the constitutional court has ruled that Walus (69) must be released on parole. The move has been met with anger by many in the country, including some in the governing African National Congress alliance. Law professor Jamil Mujuzi explains the country’s parole system for prisoners on life sentence, and what he considers to be the weaknesses and strengths of the court’s decision.
Parole in South Africa
Section 73(1) of the Correctional Services Act (the Act) (1998) provides that
(a) a sentenced offender remains in a correctional centre for the full period of sentence; and (b) an offender sentenced to life incarceration remains in a correctional centre for the rest of his or her life.
However, the Act also provides for circumstances in which offenders may be placed on parole. This explains why there are also thousands of parolees in South Africa.
In some countries, such as the US, an offender sentenced to life imprisonment (lifer) spends the rest of his or her life in prison. In South Africa, section 73(6)(b)(iv) of the Correctional Services Act provides that a lifer
may not be placed on day parole or parole until he or she has served at least 25 years of the sentence.
In terms of section 73(5)(a)(ii) of the Act, it’s the minister responsible for correctional services who has the power to determine the date on which a lifer is to be placed on parole. Thus, section 78 of the Act provides for the “powers of the minister in respect of offenders serving life sentences”. These powers include refusing or granting parole to a lifer.
However, when the minister refuses an application for parole, he or she is empowered to make
recommendations in respect of treatment, care, development and support of the sentenced offender which may contribute to improving the likelihood of future placement on parole or day parole.
The case of Janusz Walus
There were lifers in South Africa before the commencement of the Correctional Services Act in 1998, and their placement on parole is governed by section 136 of the Act.
Under sections 78 and 136 of the Act, it is only the minister who has the power to grant parole to a lifer. However, in the case of Walus v Minister of Justice and Correctional Services, the constitutional court has ordered the minister
to place the applicant (a lifer) on parole on such terms and conditions as he may deem appropriate and to take all such steps as may need to be taken to ensure that the applicant is released on parole within ten calendar days from the date of this order.
The court made that order after finding that the minister’s decision to reject Walus’ parole application was irrational. This was so because, among other things, the applicant had served the minimum period he had to serve – 13 years and four months before being considered for parole. His 1993 death sentence was commuted to life in prison in 2000.
The court also observed that Walus could do nothing to change the two grounds on which his parole application was rejected – the comments made by the sentencing court and the seriousness of the offence.
In justifying its order, the constitutional court referred to, among others, sections 78 and 136 of the Correctional Services Act (CSA) and held that it
is quite clear that under the CSA a court has the power to grant parole to prisoners who are sentenced to life imprisonment.
The court reached that conclusion because it relied on the 2004 version of section 78. Between October 2004 and September 2009, section 78 of the Act empowered a court to grant parole to lifers.
In my view, however, the court erred in holding that the Act gives it power to grant parole to lifers. With the commencement of the Correctional Services Act 25 of 2008 on 1 October 2009, it is only the minister who has the power to grant parole to lifers. It can only make an order if it finds that the minister’s decision was irrational – as it did – but only under the Promotion of Administrative Justice Act, 2000.
The court held that Walus’ sentence is governed by the 1959 Correctional Services Act. But, both in the 1959 Act and in the 1998 Act, the court does not have the power to release a lifer on parole.
Since Walus was not sentenced between 2004 and 2008, the court does not have power to grant him parole under section 78 of the 1998 Act. His death sentence was commuted to life in 2000, and not 2004 when section 78 came into force.
Section 136 is a transition provision. It does not change the law that governs the release of Walus on parole (and that is what the court recognises).
The second weakness of the judgement is that it equates a non-parole order to a remark at sentencing. A non-parole period is an order which the Department of Correctional Services must comply with. It is not a mere remark. It is part of the sentence. That is why in the 2016 case Jimmale and Another v S, the constitutional court held that a non-parole order must be made in exceptional circumstances “because the imposition of that kind of an order has a drastic impact on the sentence to be served”.
The court also held that the minister (and by implication the parole board) should not make parole decisions based on the remarks of a sentencing court, and the seriousness of the offence. This is because these are conditions over which the offender has no control. Any future parole decisions should be made based on conditions over which an offender has control.
The decision also shows that the offender’s rehabilitation is the most important factor that should be considered in deciding whether or not he or she should be granted parole. Therefore, any offender who is not rehabilitated is likely to have his or her parole application rejected. This then imposes a duty on the Department of Correctional Services to ensure that effective rehabilitation programmes are available in every correctional facility.
This decision is likely to be relied on by courts to order the Department of Correctional Services to grant offenders parole. However, an inmate has to remember he or she does not have a right to parole. As the supreme court has reiterated, inmates have
the privilege to be released on parole if they so qualify.
If an inmate breaches the parole conditions, his or her parole will be cancelled. It has to be emphasised that a sentence of life imprisonment means that an offender has to be in prison for life.
Granting him parole means that he or she serves part of the sentence outside the correctional facility. This means that an offender sentenced to life imprisonment has to be on parole for the rest of his life unless he or she is pardoned, or the sentence is commuted by the president under section 84 of the constitution.
In the case of foreign offenders, there may be a need for South Africa to enact prisoner transfer legislation, or to ratify prisoner transfer treaties such as the Convention on the Transfer of Sentenced Persons (1983), or the Southern African Development Community Protocol on the Inter-State Transfer of Sentenced Offenders (2019) so that these offenders are transferred to serve their sentence in their countries of nationality.