Walus v Minister of Correctional Services and Others (41828/2015) [2016] ZAGPPHC 103 (10 March 2016)

IN THE HIGH COURT OF SOUTH AFRICA (GAUTENG DIVISION,PRETORIA)

REPUBLIC OF SOUTH AFRICA

CASE NUMBER: 41828/2015

DATE: 10/3/2016

NOT REPORTABLE

NOT OF INTEREST TO OTHER JUDGES

In the matter between:

JANUSZ JAKUB WALUS Applicant

and

MINISTER OF CORRECTIONAL SERVICES First Respondent

CHAIRPERSON, NATIONAL COUNCIL

FOR CORRECTIONAL SERVICES Second Respondent

THE SOUTH AFRICAN COMMUNIST PARTY Third Respondent

MRS LIMPHO HANI Fourth Respondent

JUDGMENT

JANSE VAN NIEUWENHUIZEN J

[1] This review application pertains to a decision taken by the first respondent, the Minister of Correctional Services ("the

Minister'') to refuse the parole application of the applicant, Janusz Jakub Walus. The decision was taken on 10 April 2015.

[2] The second respondent is the Chairperson, National Council for Correctional Services, the third respondent, the South African

Communist Party and the fourth respondent is Mrs Limpho Hani. Although all four respondents gave notice of their intention to oppose the application, only the first and second respondents filed an answering affidavit and were presented at the hearing of the application.

BACKGROUND

[3] On 10 April 1993 the applicant murdered Mr Chris Hani, who was the General Secretary of the South African Communist Party at the time. The applicant was convicted of murder and sentenced to death on 15 October 1993. On 7 November 2000, the applicant's sentence was commuted to life imprisonment.

[4] The applicant has been serving his sentence for approximately 23 years and is 60 years of age.

LEGISLATIVE FRAMEWORK

Review: Promotion of Administrative Justice Act, 3 of 2000 (PAJA)

[5] Section 6(2) of PAJA contains the jurisdictional framework within which a court may review an administrative action, such as the one under consideration.

[6] The relevant portion of the section reads as follows:

"(2) A court or tribunal has the power to judicially review an administrative action if-

(a) the administrator who took it-

(i) was not authorised to do so by the empowering provision;

(ii) acted under a delegation of power which was not authorised by the empowering provision; or

(iii) was biased or reasonably suspected of bias;

(b) a mandatory and material procedure or condition prescribed by an empowering provision was not complied with;

(c) the action was procedurally unfair;

(d) the action was materially influenced by an error of Jaw;

(e) the action was taken-

(i) or a reason not authorised by the empowering provision;

(ii) for an ulterior purpose or motive;

(iii) because irrelevant considerations were taken into .account or relevant considerations were not considered;

(iv) because of the unauthorised or unwarranted dictates of another person

or body;

(v) in bad faith; or

(vi) arbitrarily or capriciously;

(f) the action itself-

(i) contravenes a law or is not authorised by the empowering provisions; or

(ii) is not rationally connected to-

(aa) the purpose for which it was taken;

(bb) the purpose of the empowering provision; (cc) the information before the administrator; or

(dd) the reasons given for it by the administrator;

(g) the action concerned consists of a failure to a taken decision;

(h) the exercise of the power or the performance of the function authorised by the empowering provision, in pursuance of which the administrative action was purportedly taken, is so unreasonable that no reasonable person could have so exercised the power or performed the function; or

(/) the action is otherwise unconstitutional or unlawful.

Empowering legislation: Correctional Services Act, 8 of 1959

[7] In view of the date on which the applicant was sentenced, the applicant's parole application must be considered in terms of the previous Correctional Services Act, Act No 8 of 1959 ("the Act"). Section 65 of the Act is the empowering provision and the relevant sub-sections for present purposes reads as follows:

"(5) Upon receipt of a report from a parole board regarding a prisoner who has been sentenced to life imprisonment, the Minister shall refer the matter to the National Advisory Council,

which, after considering the report of the parole board, and having regard to the interests of the community, shall make a recommendation to the Minister regarding the placement of the prisoner on parole.

(6) The Minister may, after considering such recommendation, authorize 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."

[8] The Policy and Guidelines applicable to the consideration of the applicant's application to be placed on parole, as envisaged in Chapter VI of Correctional Services B-Order, are contained in a Parole Board Manual.

[9] The following extracts from the Manual is instructive:

" VI (1A) (2) ACTIVITIES OF THE PAROLE BOARD

(a) The task of the Parole Board is directed at the responsible consideration of and recommendations in respect of the placement

of prisoners under correctional supervision/on day parole/parole and in specific cases the release of prisoners upon expiry of their sentence dates. This consideration /recommendatory function is performed throughout with due consideration to the

interests of the individual, but especially to the production of the community.

On the other hand the community's responsibility and involvement in terms of the reintegration of the prisoner into the community is continually taken into account and accomplished as far as possible.

(i) Purpose of consideration for placing I conversion I placement

I release The consideration of each individual case comprises a detailed investigation of information which is obtained from diverse sources and which could be an indication of success outside

of prison. A low risk level for the community is not the only consideration. The Parole Board must also consider whether the prisoner obtained the maximum benefit in terms of positive development from his imprisonment and whether his placing under/ conversion to correctional supervision/placement on day parole/ parole will lead to his further improvement/rehabilitation."

"VI (1A) (15)PLACEMENT ON PAROLE

(a) Parole is a form of conditional placement which is granted after a prisoner has served a certain period of his sentence. It pre-supposes careful selection, adequate preparation for placement and a certain degree of supervision while in the community for a period of time.

(b) The philosophy of parole is that:

• the prisoner has the opportunity to serve the rest of his sentence in the community;

• it is one phase of the treatment process;

• it is an internationally accepted method of placement;

• it is a legal method of conditional placement;

• it is an aid to the social control of an offender;

• it is an aid to the social re-integration of the prisoner;

• it is based on supervision and control;

• it is based on compassion; and

• It has a good prognosis as basis.

(c) Parole does not imply the following:

• acquittal of a sentence;

• mitigation, equation or reviewal of a sentence

• a method of controlling/administrating prisons; (emptying prisons)

• a reward;

• a right;

• a proof of rehabilitation"

"Vl(1A)(18) FUNCTION OF THE PAROLE SYSTEM

(a) The placement of prisoners with a good prognosis as soon as possible after reaching their consideration dates, taking the necessary penalisation into account.

(b) The protection of the community takes place by means of prevention, rehabilitation, control and supervision of parolees. Consequently, parole measures must be aimed at the prevention and help in community by means of the social re-integration of the parolee by different degrees of supervision

and control.

(c) The concept of placement of parole is based on the supposition that it is a just and rational manner of giving prisoners the opportunity to serve the remainder of their sentence form within the community."

"VI(1A) (19) CRITERIA FOR PAROLE SELECTION

(a) Introduction

(i) The criteria for selection for placement on parole is not meant to be used as the ultimate model. It should rather be seen as a predisposition according to which the Parole Board may serve the interest of the community on the one hand and those of the prisoner on the other hand to the best of their ability and in a responsible manner.

(ii) Thus the primary issue is that it should be attempted to evaluate

prisoners fairly and justly for parole, to submit well-considered recommendations and to effectuate the highest possible form of

professionalism.

(iii) A decentralised model is used for making recommendations for the placement of prisoners. A high premium is placed on the disposition and attitude of the Parole Board concerned in the light of inter alia

the following aspects:

• The aim of evaluating all prisoners under the control of the Parole Board, irrespective of persons.

• Continued consistency with regard to similar cases that appear before the Board.

• Maintaining a high level of integrity throughout with regard to

conduct and judgments and maintaining an impeccable image

toward prisoners irrespective of race or sex.

(b) Nature of crime

The nature of crime or crimes for which the prisoner had been found guilty and sentenced for his current imprisonment should be known. A police report (SAP 62) which briefly describes the circumstances surrounding the crimes, as well as any remarks by the person who imposed the sentence, must be available. . It is of primary importance that the Parole Board must have a clear image of what the prisoner has done and as far as possible what was the cause of his offence.

(c) Crime and background history ,

The police report (SAP 69 (c) contains a list of the previous convictions of the prisoner. It is the duty of the secretary of the Parole Board to obtain a concise social background report of the prisoner as well as an employment history of the prisoner. Where possible, the pre-sentence report must be obtained and thoroughly studied for any important facts regarding the suitability of the prisoner for parole. This information gives a background to the last offence of the prisoner and will indicate whether the offence was part of a previous criminal behavioural pattern. If not, this may indicate the cause of the current crime. It is relevant to the question of whether the Prisoner will easily relapse into crime after his release and if so, what type of crime he will commit. It is obvious that previous convictions

indicate a higher probability with regard to relapse into crime

(d) The prisoner's behavioural and reaction to treatment

The Parole Board must obtain and study reports of members and training officials who know the prisoner well, as well as a report from a member of the nursing profession, social workers, psychological /spiritual worker, educationist, religious workers, etcetera. Other reports regarding transfer and detention in hospitals, or an asylum, as well as reports on disciplinary offences and educational progress are also of importance. These reports should form a picture of how the prisoner had progressed since being sentenced. The importance of these reports is that they contain information which was not previously known to the court during sentencing. From this

information it may be deducted whether the prisoner reacted as the court had expected and whether the prisoner is appearing in a more favourable light than before.

(e) Medical, psychological and psychiatric considerations

(i) A prisoner's crime may be associated with the mental illness, abnormal sexual tendencies, alcoholism or drug dependency. In this instance the medical and psychological reports are of great importance in order to determine what the odds are that the prisoner may relapse into a similar crime and the possible seriousness of further offences.

(f) Domestic circumstances and employment opportunities after placement

(t) The social reports must normally contain information on the residence of the prisoner (where it can be located) or the lack thereof and his care. Background report should be studied wherever available in order to determine to which circumstances the prisoner will return after his placement.

(g) Selection for placement on parole

(i) A Parole Board that has considered all the facts may often still

experience difficulty in maintaining a balance in making a recommendation With paroling, the emphasis falls on safety, not only in the interests of the community, but also to prevent serious parole violations form taking place and in so-doing detrimentally affecting the credibility of the parole system.

FACTS

[10] The covering letter accompanying the referral of the applicant's application to the Minister, succinctly summarises the facts that were available when the application was considered. The relevant portions read as follows:

"3. PREVIOUS CONVICTIONS

Offender is a first offender. No previous convictions recorded against his name.

4. Accomplices

One accomplice according to SAP62 was involved by the name of Clive John Derby Lewis, Registration number 93673417 sentenced to Life imprisonment.

5. Offending behaviour

The offender's SAP62 is available and according to same the current offence was committed in Dawnpark Boksburg on the 10 April 1993 at 10:00. The offender shot and killed Martin Thembisile Hani with a fire­ arm. According to the sentence remarks. The offender assassinated Chris Hani who at that time was SACP General Secretary and former

Chief Staff of the ANC's armed wing Umkhonto we Sizwe; a very

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, extract from sentence remarks page-721

"They 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." Extract from sentence remarks.

6. Offending behaviour addressed

The Offender attended the following rehabilitation programmes:

a. Anger-in-anger-out

b. Attention deficit disorder

c. Group Therapy & Capacity building

d. Personal Skills Development

e. Self-assessment and Development

f. Leadership skills

g. Communication skills

h. Debate Society

7. Unit Manager's report (page 67)

Unit Manger's report is available and attached. This report; is positive concerning his behaviour and adaptation and recommends day parole for the offender.

8. Support system (page 68)

Offender's support system in positive and monitorable offender will be staying with his brother in Walmansdal-Pretoria.

9. Employment Offer (Page 75)

Employment letter is available and attached. Offender's brother who will be staying with him whilst on parole has offered him employment in his own Trucking Business.

10. Social Worker's Report (Page 76)

Offender completed grade 12 in Poland in 1977. He worked as a glass cutter and had a business with his father. Offender keeps himself busy in the Centre by exercising in the gym. He attended individual therapy with

the Social Worker. He was intensively involved in an individual Social Work intervention programmes. Offender shows no sign of

Psychological disorders or disabilities. Offender expressed his feeling of remorse about the victim as well as about the family of the victim. He showed remorse by appearing before the truth and Reconciliation Committee and wrote a letter requesting to be involved in victim offender mediation stating that he would like to apologise to the victim's family. Offender has accepted the responsibility of the consequences of his crime and has compiled with the expectations of Correctional Services in terms of good behaviour participation and involvement in compulsory programmes.

11. Psychological Report (Page 83)

Psychological report is available and attached. In 1981 offender moved to South Africa and in 1985 met his co-accused. He committed this crime in April 1993 and was arrested. Offender immigrated to South Africa in 1981 and was employed by a private company, working as a heavy-duty Truck Driver. Offender is well educated in History and Philosophy. He has no disciplinary offences recorded

against him. Offender has a healthy psychiatric record.

12. In 2011-07-12 Offender's Profile was referred to the Minister for parole consideration. After considering the offender the then

Minister of Correctional Services gave him further profile for 2013-06-20 so that "The victim's family and any other interested

party must be given an opportunity to provide either a victim impact statement or a statement of opposition".

13. Profile is referred to The Honourable Minister for a decision.

On the 31st October 2013 victim's family were invited and they submitted a victim impact statement and a statement of opposition which is attached to the Offenders profile.

The CSPB of Kgosi Mampuru II has come to a decision to recommend the profile to The Honourable Minister for a decision.'.'

[11] Although the applicant's application was forwarded to the Minister on 31 October 2013, the Minister took almost 18 months to reach a decision.

[12] Be that as it may, the decision reads as follows:

“

DECISION

1. The placement of the offender on parole is not recommended at this stage.

2. A further profile of twelve (12) months is hereby approved.

3. In the interim, the Department is to assist the offender in the following:-

3.1 Restorative Justice Process:

It appears from the various reports that the offender has indicated a willingness to be afforded an opportunity to personally apologize to the victims' family. In the light of this, I am of the view that it is crucial that he be afforded this opportunity to participate in this restorative justice process. This process will, to an extent, restore the balance and the harm caused to the victims' family hopefully, as we// as the community as a whole. Furthermore, I am certain that this process will also assist the offender come to terms with the crime committed as we// as to accept responsibility for the crime and thereby contribute towards his own healing and rehabilitation pathway. This can be achieved either through -the VOD and/or VOM process or whichever process is deemed appropriate by the qualified professionals.

3.2 Security

The Department, together with other relevant structures should advise on the security threats, if any that might exist should the offender be released out on parole."

[13] No reasons for the decision were given. The Minister, however, indicated in his answering affidavit that the nature of the crime and the remarks by the sentencing court informed his decision not to recommend the placing of the applicant on parole. It is not clear from the Minister's affidavit to what extent he considered the other applicable considerations. Although the factors to be taken into account are mentioned in the Minister's affidavit, the facts pertaining to each of the factors were neither mentioned nor discussed. It is therefore difficult to determine whether all the factors were duly taken into account.

GROUNDS OF REVIEW

[14] Mr Du Plessis SC appearing with Mr Kellennan on behalf of the applicant, submitted that having regard to all the positive factors contained in the applicant's application, the emphasis placed by the Minister on the nature of the crime and the sentencing remarks in reaching his decision is not reasonable nor rational.

DISCUSSION

[15] The only logical conclusion to be drawn from the Minister's view that the nature of the crime and the sentencing remarks outweighs the other positive factors, is that the Minister considers the time spend by the applicant in prison as inadequate punishment for the crime he has committed.

[16] Punishment, however, has various purposes. In Guide to Sentencing in South Africa, SS Terblanche, 2nd edition, the purposes of punishment are listed as deterrence, prevention, rehabilitation and retribution [p 155 and further].

[17] Deterrence, prevention and retribution will no doubt play an important role during the initial years of the serving a sentence,

This is evident from the fact that prisoners sentenced to life imprisonment only qualify for parole after having served 15 years of their sentence.

[18] During this time the prisoner have an opportunity. to rehabilitate. The various factors taken into account when parole is considered confirms the importance of rehabilitation during the years of imprisonment.

[19] The philosophy of parole [Vl(1A)(15)(b)] set out supra, confirms that the focus of punishment shifts with the passing years and ultimately more weight is attached to rehabilitation. It is, inter alia, an internationally accepted method and based on compassion. Although parole does not imply proof of rehabilitation [Vl(1A)(15)(c) supra] , it is certainly a step in the rehabilitation process.

[20] It is, however, important to bear in mind that parole is still a form of punishment. Strict conditions are imposed on a prisoner on parole and parole will be withdrawn should the prisoner not adhere to such conditions. In a nutshell, parole is a means of serving the remainder of the sentence outside prison. In the present instance the applicant will serve his sentence until death.

[21] The criteria for parole selection [V1(1A)(19) supra] entails an attempt "to evaluate prisoners fairly and justly for parole, to submit we/I-considered recommendations and to effectuate the highest possible form of professionalism." (own emphasis).The report by the second respondent is an excellent example of the application of the aforesaid criteria. 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.

[22] 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.

[23] The decision of the second respondent to recommend the applicant's application to the Minister should also be taken into account. Mr M Moerane SC appearing with Mr Bester SC on behalf of the first and second respondents, submitted that the word "recommendation" contained in section 65(5) of the Act, does not, in the context of the subsection, indicate a positive recommendation. According to Mr Moerane SC, all applications pertaining to prisoners who has been sentenced to life imprisonment, must be recommended to the Minister.

[24] I struggle to find the logic in this contention. A recommendation could be either positive or negative. The second respondent stated quite clearly in the

Memorandum, supra, that it has come to a decision ''to recommend the profile to The Honourable Minister for a decision.”

[25] If the second respondent was of the view that the applicant does not qualify for parole, its decision would surely have been not to recommend the profile. It will be nonsensical to refer the matter in terms of the provisions of section 65(5) to the second respondent to make a recommendation, if it is not at liberty to decide what the recommendation should be. If the subsection envisages a mere referral back to the Minister without considering whether a positive or negative recommendation should be made, the subsection would have been worded differently to clearly indicate this intention. The wording is, however, unambiguous, to wit "shall make a recommendation to the Minster regarding the placement of the prisoner on parole." (own emphasis)

[26] I deem the decision by the second respondent to recommend the profile to the Minister for a decision as a further positive factor. If one have regard to the activities of the parole board [Vl(1A)(2)supra], it is evident that the parole board applies its mind responsibly after having considered detailed information from diverse sources.

[27] In the premises, I agree with Mr du Plessis SC that the decision taken by the Minister is not reasonable and rational and stands to be set aside.

APPROPRIATE REMEDY

[28] The applicant submits that a referral of the matter to th Minister will cause unnecessary delay and requests this court to make an order for the placement of the applicant on parole. In terms of the provisions of section 8(1)(c)(ii)(a) of PAJA a court will only consider a substitution -Order in exceptional circumstances.

[29] In this regard, I have been referred to the recent judgment of the Constitutional Court in Trencon Construction (Pty) Ltd v Industrial Development Corporation of South Africa Ltd and Another 2015 (5) SA

245 CC, in which the test for exceptional circumstances as envisaged in section 8(1)(c)(ii)(a) of PAJA, was considered.

[30] Having considered both the pre- and post-Constitutional test that was utilised to determine whether a substitution order should be granted, the following is stated at para [47]:

"To my mind, given the doctrine of separation of powers, in conducting this enquiry there, are certain factors that should inevitably hold greater weight. The first is whether a court is in as good a position as the administrator to make the decision. The second is whether the decision of the administrator is a foregone conclusion. These two factors must be considered cumulatively.

Thereafter, a court should still consider other relevant factors. These may include delay, bias or the incompetence of an administrator. The ultimate consideration is whether a substitution order is just and equitable. This will involve a consideration of fairness to al implicated patties. It is prudent to emphasise that the exceptional circumstances enquiry requires an examination of each matter on a case-by-case basis that accounts for all relevant facts and circumstances. "

[31] In respect of the first factor, Mr du Plessis SC submitted that the administrative process was concluded by the second respondent and all facts informing the decision of the Minster is before court. In the premises, the court is in as good a position as the Minister to make a decision. I agree.

[32] The question whether the decision by the Minister is a foregone conclusion, should be evaluated in view of the facts. The Hani family made submissions to the second respondent and clearly stated that they oppose the application. Notwithstanding various endeavours to personally apologise to the Hani family, as far back as 2011, the Hani family refuse to accept an apology form the applicant and further refuse to meet with him. Their stance is simply that they will not forgive the applicant. The Hani family's decision in this regard must be respected.

[33] The second respondent was well aware of these sentiments, considered the submissions and still decided to recommend the placing of the applicant on parole. For some unknown reason, the submissions of the Hani family did not form part of the documentation studied by the Minister prior to reaching his decision. The applicant attached the submissions to his answering affidavit and in reply thereto, the Minister made the following remarks:

"Had the victim representations of Mrs Hani served before me for purposes of my decision (which I reiterate was not the case), this would only fortified my decision not to place the Applicant on parole.• (own emphasis)

"In the premises, had the victim representations on behalf of the Hani family served before me for purposes of my decision regarding the placement of the Applicant on parole, such representations would have further militated against his placement on parole."

[34] One should bear in mind that the applicant's previous parole application in 2011 was declined by the Minister's predecessor. On 22 June 2011 the then Minister made the following recommendation:

"The placement of the offender on parole is not approved at this stage. The victim's family and any other interested party must be given an opportunity to provide either a victim impact statement or a statement of opposition."

[35] The applicant states that after the recommendation, he attempted to liaise with the prison authorities to attempt to arrange for a Victim Offender Dialogue. His attempts, however, failed.

[36] On 15 October 2012, the applicant addressed a letter to the Centre Coordinator Pretoria Central-Correctional Centre, the Case Management Committee, P.C.C.C and The Parole Board P.C.C.C. The relevant portions of the letter read as follows:

"Herewith my formal request to meet and reconcile in an amicable way with the victims of the crime that I committed 19 years ago.

In accordance with the formalities issued by The Honourable Minister Nisiviwe N Mapisa - Nqakula on the 5th August 2011, as an Internal Communication

memo, and due to the fact that I was sentenced before the 1st October 24, I wish to reconcile and talk to my victims and in this case the following people:

1. The wife of the late Mr Chris Hani

2. The children of the late Mr Chris Hani

The contact addresses and particulars of the victims is not known to me and thereof I request the Centre Coordinator to assist me in this matter to provide and or communicate with the victims in order for me to have an eye to eye reconciliation consultation, after the possible approval of this application.

Due to the fact that my remorse for killing their husband and father, reaches further than just a letter and a consultation I wish to appeal to you as the facilitators in this respect to help me if. I the formalities that must be followed in future.

My appeal is for the principals of Restorative justice to be implemented as prescribed by Legislation as well as my sincere condolences to the family, which I have wished to convey since my amnesty hearing in 1998.

My true belief is that Victim Empowerment is at this stage, after 19 years the only route to be followed in order to reconcile with the wrongs of my deed (crime), and I can only hope that my victims do share this believe.

This application, in co-operation with a prescribed victim empowerment and restorative justice program as laid down by the Department of Social Development. The Department of Correctional Services and Multi party Facilitators in this regard.

I am willing to face the facts and my victims, I feel, that a sincere apology is the least I owe them. I do believe that I cannot repair the damage which I had caused them, but I am prepared to do the utmost best in order to ease their pain, which depth I can only try to understand and I will respect their decision in regard, to eye to eye reconciliation, consultation.”

[37] This request was ignored by the prison authorities.

[38] The applicant states further that Mrs Hani, her daughter and their legal representatives were present at his parole hearing that forms the subject matter of this application. Representations were made on their behalf to the Parole Board. According to the applicant, the following transpired during the parole hearing:

"During the parole hearing I apologised to Mrs Hani. She stated clearly that she did not accept any apology, but that if I would like to approach her through her legal representatives, we were welcome to do this."

[39] On 6 October 2014 the applicant addressed a letter to Mrs Hani through her attorneys. The letter reads as follows:

"Mrs Limpho Hani

Greetings Mrs Hani.

I do owe this apology to you very long time. Mrs Hani I do know that whatever

I would do, will not compensate for what I have done to you. The only thing

that I can do is to say I am deeply sorry for what I have subjected you to through all those years. Losing beloved person and bringing up children alone without the father. As I do regret passing away of one of your daughters for whose death I do feel responsible to certain extend as well (because it could haven the consequence of Jack of the father in the house). If forgiveness is impossible I will fully understand and respect your decision.

However I do appreciate most deeply and sincerely Mrs Hani if you would prefer to hear this apology directly from me, I would be most obliged (to you), if not; please believe that this Jetter expresses my true feelings. (Mrs Hani)."

[40] Similar letters were addressed to the two daughters of the late Mr Hani.

[41] The applicant did not receive any response to these letters.

[42] The Minister was fully aware of these facts when he deposed to the answering affidavit. On what basis the Hani family's refusal to engage with the applicant, could strengthen the Minister's decision to refuse the applicant's application for parole is difficult to grasp. The applicant has no control over their decision. It is furthermore disconcerting that the Minister attaches so much weight to this issue whilst it is not, in terms of the applicable policies, a factor to be considered when evaluating the application for parole.

[43] In view of all the aforementioned facts, the intimation by the Minister that the representations by the Hani family would have fortified his decision not to grant parole, does not only indicate that his decision, should the matter be referred back to him, is a foregone conclusion, but is also indicative of the fact that he would in all probability not be able to apply his mind in an unbiased manner.

[44] I am satisfied that the facts support the second factor to be taken into account when considering a substitution order.

[45] Lastly, an undue delay would be caused by referring the matter back to the Minister. As set out supra, the Minister took almost 18 months to reach a decision in the present matter. A further delay would be prejudicial to the applicant and would not be fair to him.

[46] On an examination of all the relevant facts and circumstances, I am of the view that a substantiation order will be just and equitable.

[47] The parties were ad idem that the matter should be referred back to the parole board to impose the necessary parole conditions. Section 65(6), however, provides that the Minister may determine the conditions of parole. Should the Minister require any guidance from the parole board, their services is no doubt to his disposal.

ORDER

In the premises, I make the following order:

1. The decision of the first respondent dated 10 April 2015 is set aside.

2. The applicant is to be placed on parole within 14 days from date of this order.

3. The application is referred back to the first respondent to impose the necessary parole conditions within 14 days from date of this order.

4. The first and second respondents are ordered to pay the costs of the application, which costs include the costs of two counsels.

__________________________

JANSE VAN NIEUWENHUIZEN

JUDGE OF THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

Appearances:

Counsel for the Appellant

: Advocate R Du Plessis SC

Advocate Kellerman

Instructed by

:Julian Knight and Associates Inc.

Counsel for the state

: Advocate TWG Bester SC

Advocate MTK Moerane SC

Instructed by

: The State Attorney