Walus v Minister of Correctional Services and Others (14694/19) [2019] ZAGPPHC 1029 (12 December 2019)

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

(1) REPORTABLE: YES/NO

(2) OF INTEREST TO OTHER JUDGES: YES/NO

(3) REVISED.

Case no: 14694/19

12/12/2019

Janus Jakub Walus

Applicant

And

The Minister of Justice and Correctional Services

1st Respondent

The South African Communist Party

2nd Respondent

Mrs Limpho Hani

3rd Respondent

The Minister of Home Affairs

4th Respondent

JUDGMENT

Kollapen J

Introduction

[1] The Applicant seeks to have reviewed and set aside the decision taken by the First Respondent on the 8 January 2019 when the Applicant's application for release on parole was refused.

[2] The grounds advanced by the First Respondent in refusing to grant the Applicant parole are stated as follows:-

"The placement of the offender on parole is not granted. It is directed that a further profile he submitted within 6 months of this decision for my consideration.

[2.1] In the light of the conflicting psychological report from Zelda Buitendag and Joel Mbhele, it is difficult for me to make a decision. I therefore direct that the two professionals jointly asses the inmate and file a joint report on the issues concerning risk and remorse

[2.2] The offender should undergo individual psychotherapy with the psychologist to assist in addressing challenges which have been highlighted on paragraph 5.2.5 of Zelda Buitendag's report dated 15 October 20I 8. These challenges include depression and explosive anger episodes.”

[3] In challenging the decision of the First Respondent the Applicant relies on the provisions of the Promotion of Administrative Justice Act No 3 of 2000 ("PAJA") and in doing so contends that the decision stands to be reviewed and set aside on a number of grounds which include :-

a) That the decision taken was irrational

b) That the decision taken was unreasonable

c) That relevant considerations were not taken into account in taking the decision

d) That the decision evidences a reasonable apprehension of bias

[4] The First Respondent opposes the relief sought, !'he second , third and fourth Respondents all tiled Notice of intention to Oppose but not any answering affidavits and indicated they will abide the decision of the Court.

Background facts and the litigation history

[5] The Applicant is a sentenced prisoner serving a life sentence at the Kgosi Mampuru ll Correctional Centre following his conviction on a charge of murder as well as illegal possession of a firearm on the 15 October 1993. The trial court had imposed the death sentence on the Applicant but this was commuted to life imprisonment on the 7 November 2000. The murder conviction followed the killing of the late Mr Chris Hani who was at the time the Secretary General of the South

African Communist Party.

[6] In his sentencing remarks the then Judge President of this Division said the following of the crime:-

"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/or the entire society in South Africa."

"The accused took it upon himself, as judge, to decide on the life of his victim, because , this subjective perception· regarding the deceased, and to take the law into his own hand ."

[7] It is common cause that the Applicant's eligibility for being considered for parole stands to be considered in accordance with the policy that found application at the time he was sentenced in October 1993. In terms of this policy an offender was required to serve 10 years of the sentence prior to consideration for parole, but that placement on parole would occur only in exceptional cases before the offender had served 15 years of the sentence. The Applicant was accordingly eligible for parole at the time his first application for parole was submitted in 2011 and remained so eligible since then.

[8] While these proceedings relate strictly to the decision of the First Respondent of the 8 January 2019. the Applicant's previous parole applications, their determination and the litigation that followed many of those decisions require recollection. The grounds of review place reliance on the total factual matrix that spans the history of

the Applicants' attempts to secure his release on parole.

The 2011 parole application

[9] The first parole application was considered in 2011 and followed a parole hearing at which the Third Respondent (the wife of the late Mr Hani) was not present nor invited to attend. The First Respondent refused to allow the placement of the Applicant and look the view 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'

[10] This Court in Clive Derby-Lewis vs Minister of Correctional Services (Case No 54507/08) GNP confirmed the right or victims of a crime to place their views before the parole board as well as the duty of the Board to consider the information placed before it. The Applicant did not challenge the decision of the First Respondent in respect of this application and appeared to accept the correctness of the decision in law and in fact.

[11] Following the decision of the First Respondent the Applicant sought to initiate some form of restorative justice offender/ victim mediation with Mrs Limpho Hani which did not achieve any outcome. The Applicant says that his apology to the Third Respondent was rejected as she considered it lo be self- serving. There was considerable focus in these proceedings on the attempts made by the Applicant to apologise to the Third Respondent and her refusal to accept his apology. It is important to place those events in a proper context and they include:-

a) The First attempt by the Applicant to apologise was in 2011 after the decision by the First Respondent that the victim's family be given the opportunity to make their views known. This was some 18 years after the conviction of the Applicant.

b) The question of forgiveness is an intensely personal matter and even in the context of our own history as a country where reconciliation was an integral part of the transition to democracy, it remained the election of individuals and families who were wronged to decide

whether they wished to forgive or not. Those who did had their reasons for doing so and those who did not equally so.

c) The view of the Third Respondent that the apology was self- serving and that of the Applicant that his apology was a sincere one and well intentioned continue to stand in stark contrast with each other.

The Second parole application in 2015

[12] In April 2015 the parole application of the Applicant came before the First Respondent again who did not support the placement of the Applicant on parole. In the decision taken by the First Respondent, the following is recorded:-

"DECISION

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

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

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

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 victim's family. In the light of this, I am of the view that it is crucial that he be afforded this opportunity to participate in !his restorative justice process. This process will, to an extent, restore the balance and the harm caused to the victim's family

hopefully, as well as the community as a whole. Furthermore, I am certain that this process will also assist the offender to come to terms with the crime committed as well as lo 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.

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] Aggrieved by the decision of the First Respondent the Applicant brought successful review proceedings in this Court which made an order that the Applicant be released on parole. On appeal to the Supreme Court of Appeal ('SCA’) the order was reversed and the SCA directed that the matter he remitted to the First Respondent for reconsideration and decision within 90 days and that in doing so the First Respondent was required to take into account the victim impact statement of Mrs Hani of the 30 October 2013 and any response the Applicant wished to offer thereto.

[14] Following the order of the SCA further representations were made by the Applicant as well as the Second and Third Respondents and what then followed was a further parole hearing and following that hearing the First Respondent in November 2017 refused the Applicant's release on parole.

[15] In refusing the application for placement on parole the First Respondent offered numerous reasons and they included:-

a) That the Applicant should undergo psychotherapy to assist in addressing ideologies which have been highlighted as risk factors

b) That the ongoing rationalisation by the Applicant of his conduct in committing murder still represents a potential risk

c) That the First Respondent has noted Mrs Hani's statement that the Applicant' does not disavow violence as a means to retaliate against communists'

d) That there were inconsistencies in the Applicants account of the circumstances that led to the commission of the offence.

e) That the Applicant should engage in further restorative justice processes

f) That the Applicant should undergo further programs to enhance his social functioning skills as well as his academic and vocational skills.

[16] The Applicant successfully challenged this decision in this Court on the 6 September 2018 and the court referred the matter back to the First Respondent for a new decision to be taken. ln reviewing and setting aside the decision of the First Respondent this Court found that there were procedural irregularities associated with the decision of the First Respondent and in particular that the Applicant was not afforded the opportunity to respond to his profile report before it was submitted to the First Respondent for a decision.

[17] Following this Court's decision of the 6 September 2018 and before the matter came before the First Respondent for a decision as contemplated in the order of this Court, the Applicant caused Lo be prepared a further psychological report by Ms Zelda Buitendag and placed this before the First Respondent. The Hani family made written submissions in response to the report of Ms Buitendag.

[18] On the 8 January 2019 the First Respondent after reconsidering the parole application of the Applicant made the following decision:-

1. In the light of the conflicting psychological report from Zelda Buitendag and Joel Mbhele, it is difficult for me to make a decision.

I therefore direct that the two professionals jointly asses the inmate and file a Joint report on the issues concerning risk and

remorse

2. The offender should undergo individual psychotherapy with the psychologist to assist in addressing challenges which have been highlighted 011 paragraph 5.2.5 of Zelda Buitendag's report dated 15 October 2018. These challenges include depression and explosive anger episodes. "

It is that decision that the Applicant seeks to have reviewed and set aside in these proceedings.

The review grounds

That the decision was motivated by bias on the part of the First Respondent.

[19] The stance of the Applicant in advancing the case for review is that the conduct of the First Respondent over the period within which the Applicant's parole applications were considered suggested a constant shifting of the goalposts by the First Respondent which demonstrated bias. In support of this argument the Applicant seeks to compare the changing nature of the reasons offered from time to time by the First Respondent for refusing to place the Applicant on parole.

[20] While the reasons in support of the decisions of the First Respondent has changed over time, there has also been some consistency in the issues identified by the First Respondent as being obstacles and they include the matter of restorative justice as well as the matter of the Applicant constituting a security risk. Without at this stage suggesting that they offer cogent justification for the decisions of the First Respondent (a matter I will return to), I am not convinced that they demonstrate a shifting of the goal posts and the presence of bias as the Applicant has suggested.

[21] The litigation history which has been outlined above demonstrates that even in those instances when the Courts reviewed and set aside the decisions of the First Respondent, it was effected on procedural grounds without any suggestion of the presence of bias. One would need to be careful in embracing a conclusion of bias as the Applicant has urged this Court to do in the absence of clear evidence to that effect.

That the decision taken was irrational alternatively that it was so unreasonable that no reasonable decision maker would reach such a decision

[22] While the test for rationality and reasonableness differ they also overlap and it may be convenient to deal with these grounds of review together. Mindful that a review is distinctly different from appeal proceedings and that a Court in review proceedings is not primarily focussed on whether the decision was the correct one, the test for rationality does require some rational connection between the decision taken and:-

a) ''The purpose for which it was taken,·

b) The purpose of the empowering provision;

c) The information before the administrator;

d) The reasons given for it the administrator.”

[23] Hoexter in Administrative Law in South Africa 2nd Edition p340 defines rationality as follows:-

"This means in essence that a decision must be supported by the evidence and information before the administrator as well as the reasons given for it. It must also he objectively capable of furthering the purpose for which the power was given and for which the decision was purportedly taken. The question lo be asked is the following: ‘Is there a rational objective basis justifying the conclusion made by the administrative decision-maker between the material properly available to him and the conclusion he or she eventually arrived at. "

[24] Thus while the bar for rationality has been correctly described as a low one to meet coupled with the approach of Courts not to second guess the expertise of decision makers, a Court will nevertheless exercise its power of review where rationality or reasonableness is found wanting. In Bato Star Fishing (Pty) ltd v Minister of Environmental Affairs 2004 (J) SA 490 (CC), the court remarked:-

"In treating the decisions of administrative agencies with the appropriate respect, a court is recognising the proper role of the executive within the Constitution.

In doing so a court should be careful not to attribute to itself superior wisdom in relation to matters entrusted to other branches of government. A court should thus give due weight to finding of fact and policy decisions made by those with special expertise and experience in the field. The extent to which a court should give weight lo these considerations will depend upon the character of the decision itself, as well as on the identity of the decision-maker. A decision that requires an equilibrium to be struck between a range of competing interests or considerations and which is to be taken by a person or institution with specific expertise in that area must be shown respect by the courts. Often a power will identify a goal to be achieved but will not dictate which route should be followed to achieve that goal. In such circumstances a court should pay due respect to the route selected by the decision-maker. This does not mean however that where the decision is one which will not be reasonably supported on the facts or not be reasonable in the light of the reasons given for it, a court may not review that decision. A court should not rubber-stamp an unreasonable decision simply because of the complexity oft he decision of the decision or the identity of the decision­ maker."

[25] It is against these legal principles that the decision of the First Respondent stands to be considered and in doing so to consider the reasons advanced by the First Respondent in support of that decision. While the reasons advanced over time by the First Respondent in dealing with the parole applications of the Applicant have changed, fairness and certainty also require that some finality be brought to the process. As a matter of principle it could hardly be acceptable for a decision maker to advance new and different reasons for a decision when the fact before him or her remains largely the same. On the other hand a decision maker will have justification in having to consider new material placed before him or her even if that results in the principle of certainly being offended. The requirement in PAJA that a decision maker must take into account all relevant

considerations must mean that new material, irrespective when it emerges in the decision making process, must be given consideration.

[26] That being said the factual material relevant to the parole applications of the Applicant has not changed substantially since the submission of the Applicant's first application in 1011. While the restorative justice processes were new and there were new reports submitted, they did not in my view substantially change the factual landscape against· which the parole application fell to be considered. This is a matter I will return to the extent that the First Respondent contends that some of the reports raised new issues for consideration.

[27] Under those circumstances the proper starting point would then be the reasons offered in support of the decision that stands to be reviewed and they are:-

The matter of risk and remorse

[28] The stance of the First Respondent is that the existence of conflicting psychological reports make it difficult for him to make a decision and that a joint assessment be conducted by the two psychologists in question to assess the Applicant and file a report on issues concerning risk and remorse.

[29] In his report of the 200 May 2017, the clinical psychologist Mr Mbhele expresses the following view on the question of remorse and empathy:-

"Regarding empathy, it can he said that he expressed remorse for the fact that the victim's children are fatherless and wife is a widow, however he showed no remorse for murdering Chris Hani the communist leader. He still rationalises his actions and insists that they were politically motivated. His ideas about communism still stand."

[30] It appears that the Applicant still holds anti-communist views which I hasten to add he is entitled to, the only question being whether those views taken with other factors represents a risk of re-offending. Importantly on the matter of the risk of re-offending Mr Mbhele characterises the present risk as being low and so do all the other experts who have seen and prepared reports that cover this area of his profile.

[31] In the report of the psychologist Ms Buitendag dated the 5th October 2018 the following is stated:

"From a psychological perspective, it can be concluded that Mr Walus is sufficiently rehabilitated for the crime he committed, and shows sincere remorse,

The same can be said regarding the risk he poses for the society. The risk for re-offending is low, and there are more risk decreasing

factors than risk increasing factors."

[32] Thus both Mr Mbhele and Ms Buitendag are in agreement that the risk of re­ offending is low but differ on whether the Applicant has shown remorse, Mr Mbhele concluding that the Applicant showed what can be described as partial remorse and not full remorse. It is only on this narrow issue that the experts differ but for the sake of completeness it may be useful to have regard to the report of the psychologist Mr Shane Govender which was prepared in about October 2018 after he held

about 19 sessions with the Applicant as well as that part of the report of Ms Buitendag that deals with the conclusion of Mr Mbhele on the question of remorse.

[33] In Mr Govender's report the following conclusion is drawn:-

"Based on all the information that psychologist had available at the time of formulating this report and the interaction with Mr Walus over the course of therapy, it appears that Mr Walus has thought about the murder of 'Mr Chris Hani and the ramification that this has fad on multiple levels which includes the untimely death of a human being, who like himself had a family, and was a father who has responsibilities. Mr Walus appeared to demonstrate remorse and empathy for the victim and that of the victims family. In terms of his political ideologies, Mr Walus stated that he maintained these views but he asserted that !he difference now is that he does not consider violence as a means to achieve any political or personal objectives. He added that he had denounced violence when he ignited his religious beliefs and practices. He stated that that he could no longer the murder of a human being whether it is for politics or personal gain or motive. Mr Walus did not report or display any desire to actively engage in politics and instead stated that he is now more concerned with being reunited with his family in Poland."

[34] Finally in Ms Buitendags report she says that the Applicant denies saying he was not sorry for murdering Mr Hani the communist leader. She then goes on to say that:-

"He is in fact remorseful for killing Mr Hani and developed insight into the matter. He realises killing a person is a mortal sin "

[35] The report of Mr Mbehle was compiled in May 2017 while those of Ms Buitendag and Mr Govender in October 2018. The Applicant argues that given the totality of the reports that all quantified the Applicants risk of re-offending as low the only remaining issue is that of remorse and that the reports of Buitendag and Govender both deal with this comprehensively and conclude that he is genuinely remorseful and does not rationalise the murder of the late Mr Hani as being justified. In addition it is argued that Ms Buitendag had the opportunity to deal with Mr Mbhele's conclusion on remorse with the Applicant and offers an explanation to the extent that the Applicant denies that he said what Mr Mbhele ascribes lo him but in any event her conclusion on the matter is that the Applicant is remorseful, has developed insight and realises that killing a person is a mortal sin.

[36] The first Respondent's stance is that once there was a conflict in the reports, which on the face of it there was, the Minister had various possible options open to him and one of them was to request a joint report and having done so it could not be said that his conduct was irrational or unreasonable and that it was not open to the Minister lo attempt to reconcile the differing versions or to choose the most attractive or viable of them.

Analysis

[37] While on the face of it there appears to have been some differing views on the part of Mr Mbhele on the one hand and Ms Buitendag and Mr Govender on the other, it is important to place this in its proper context. All of the experts including Mr Mbhele's are in agreement that the Applicant represents a low risk of re-offending and none of them raise in any significant manner that his release on parole will represent a risk to this or any other community. Accordingly on that score there is no conflicting reports that need to be reconciled and it is accordingly difficult to see what outcome a joint assessment of the Applicant will achieve given the consensus reached by the experts.

[38] All of the experts are in agreement that the Applicant has shown empathy and remorse for the killing of the late Mr Hani, the father, the husband, the family man and the individual. It is only on a very narrow and limited area where Mr Mbhele in his 2017 report qualities the remorse and empathy shown by the Applicant when he says that the Applicant showed remorse for killing the late Mr Chris Hani the father and not the late Chris Hani the politician and that the Applicant continued to rationalise the killing as a politically motivated act.

[39] This is the only area where the experts appear to differ following their assessment of the Applicant. However what is relevant is that the reports of Ms Buitendag and Mr Govender were compiled in October 2018, sometime after the report of Mr Mbhele and that there was the opportunity to deal with this aspect of the assessment by Mr Mbhele in those later reports. Both reports express a different view on the matter of remorse and on the rationalisation of the killing of Mr I Jani and in the case of the report of Mr Govender , it will be recalled that it followed some l 9 sessions he held with the Applicant.

[40] Under these circumstances and while it may not be expected of the Minister to have reconciled what came across as conflicting positions in the reports before him, it would however have been evident that the position ascribed to the Applicant in the report of Mr Mbhele was comprehensively dealt with in the reports of Mr Govender and Ms Buitendag and this should have been factor to consider. It would also have been evident given the contents of the reports of Ms Buitendag and Mr Govender that any further joint assessment of the Applicant was not likely to produce anything other than what the reports of Ms Buitendag and Mr Govender contain. Finally and of importance is that if ultimately the question of rationalisation is important to what end is it important? Mr Mbhele does not say that the lack of full remorse as it were and the ongoing rationalisation presents a heightened risk of the Applicant re-offending. On the contrary he, like Ms Buitendag and Mr Govender categorises the risk of re-offending as low.

[41] Accordingly it does appear that the characterisation by the Minister of 'conflicting psychological reports 'may be an overstatement of the position as clearly the difference in opinion expressed is largely on a peripheral issue; that the later reports appear to have dealt with and resolved whatever conflict may have existed and finally even if the conflict remained unresolved it did not contribute to a higher level of risk in re­offending.

[42] Under these circumstances the decision by the Minister to refuse parole on the basis of 'conflicting psychological reports' cannot be said to be rational when regard is had to the totality of the information before the Minister, On the material before the Minister , there was no conflict of the nature that would have warranted a joint assessment given the timeline in the various assessments as well as the Applicant's denial that he told Mr Mbhele that he continued to rationalise the murder of Mr Chris Hani.

[43] As all three psychologists had concluded that the Applicant had substantially demonstrated remorse and empathy and presented a low

risk of re-offending, it is difficult to rationalise how Mr Mbhele's contested conclusion which was in any event dealt with in later assessments could then constitute the basis for a conclusion of conflicting psychological reports' and being offered as the primary reason for the refusal of parole.

[44] In my view the decision of the Minister would not pass the test of rationality nor reasonableness as described earlier in this judgment and stands to be reviewed and set aside in particular on the basis that on the information before the Minister it could not be said that the refusal of parole was justified by the contents of the totality of the reports before him or that it was a decision that given the nature of the information before him no reasonable decision maker would have taken.

[45] The requirement that the Applicant undergo individual psychotherapy would not in my view serve as a basis for his refusal of placement on parole but rather as one of the conditions lo be compiled with pre-release. It therefore would not have the effect of salvaging the decision under review as it stands on a different footing.

The remedy

[46] Beyond seeking the reviewing and setting aside of the decision of the Minister, the Applicant has sought relief that this Court grants an order in terms of Section 8(2) of PAJA placing him on day parole. Section 8 (1)(c) of PAJA provides that a Court may in exceptional circumstances substitute or vary the administrative action or correct a defect resulting from the administrative action even though it was accepted that generally speaking remittal is at most times the most prudent and proper course to take.

[47] It is however also accepted that under certain limited and defined circumstances a Court may well substitute its decision for that of the administrator where the end result is a foregone conclusion, where further delay would cause unjustifiable prejudice to the applicant and where the original decision maker has exhibited bias or incompetence to such a degree that it would be unfair to ask the applicant to submit to it's jurisdiction again.

See .Johannesburg City Council v Administrator, Transvaal J 969(2) SA 72 (T) at 76 D­ E as well as Hoexter Administrative Law 2nd Edition p 553.

[48] The rationale for favouring a remittal in cases such as these is that the administrator is generally the best equipped by experience as well as access to resources and information to make such decisions. It also accords with the principles that underpin the separation of powers doctrine.

[49] When I have regard to the circumstances that will generally trigger the Courts power to substitute then I am not convinced that any of them find application here. It cannot be said that the decision will be a foregone conclusion. Parole decisions are notoriously difficult in reconciling differing interests and imperatives. I have already dealt with the allegations of bias earlier in this judgment I cannot conclude that there was bias or incompetence in how the matter has been dealt with to date that would stand in the way of a remittal and while it may be argued that the incarceration of the Applicant will continue, it is so that given that the decision is not a forgone conclusion it cannot follow that his right to freedom and liberty become compromised. I le is serving a life sentence and while he is eligible for consideration for release on parole it must equally be so that a life sentence does not create an automatic entitlement to release after a designated period of incarceration.

[50] For these reasons the remittal of the matter lo the Minister for a decision would be the most appropriate relief to grant. Having

reviewed and set aside the decision of the Minister of the 16 January 2019, there would accordingly be no requirement for a joint

assessment as contemplated in that decisions.

[51] Rather on the matter of risk, the Minister is required to accept that all three experts place the risk of re-offending as low and that on the matter or remorse all there experts conclude the expression of substantial and significant remorse and empathy by the Applicant and that the limited dissent as it were by Mr Mbhele is properly explained in the later reports of Ms Buitendag and Mr Govender. It is within this framework on risk and remorse that the Minister is then required to consider those aspects and make a , fresh decision.

[52] Given that that the Minister was willing to make such a decision within 6 months from the date of his decision of the 16 January 2019, my view is that a period of60 days may be appropriate for the Minister to consider the matter afresh as well as in the terms of this judgment to render a new decision.

[53] I make the following order:-

1. The decision of the First Respondent of the 16 January 2019 refusing to place the Applicant on parole is reviewed ad set aside.

2. The matter is referred back to the First Respondent to take a fresh decision regard being had to the conclusions in this judgement as well and to do so within 60 days from date hereof.

3. The First Respondent is ordered to pay the Applicants costs of this application which costs are to include the costs of two Counsel.

N.J. KOLLAPEN

JUDGE OF THE HIGH COURT,

PRETORIA

APPEARANCES

DATE OF HEARING

: 7 OCTOBER 2019

DATE OF JUDGMENT

: 12 DECEMBER 2019

APPLICANT

: Adv R DU PLESSIS SC

Adv L KELLERMAN SC

1ST RESPONDENTS COUNSEL : ADV M MOERANE SC

ADV T BESTER SC

ADV MTETO

2ND AND 3RD RESPONDENTS COUNSEL :ADV M SEKHETHELA