(John McCann/M&G)
‘He must rot in jail!” This vulgarly brutal cry for revenge, from ancient days gone by, is more than bloodthirsty. It calls for a human being not to be executed, but to “rot” in a state institution controlled by the government in a constitutional democracy.
Having seen photographic evidence of victims in murder cases, I know that rotting is a messy process. Hopefully, the term is mostly used symbolically.
When I heard political leaders protesting against the constitutional court judgment that Janusz Walus had to be released on parole, loudly calling for him to rot in jail, I was shocked. The very next day my shock was overtaken by more depressing (even though not entirely surprising) news about the Phala Phala report by former chief justice Sandile Ngcobo and his panel.
Again, I heard and saw a bizarre remark, this time by a senior cabinet member: the report was “badly written”. This may or may not be the case, but the explanation as to why it was regarded as badly written, according to the speaker who claimed to be knowledgeable on judicial matters, was that the word “may” was used. It left a discretion, the minister said, instead of giving clear guidance. Eish! I explain below.
In my previous article in this space under the heading “Must judicial independence trump all?”, I asked to what extent judges must take the consequences of decisions into account. I argued that judicial independence required integrity and immunity against undue influences, but not ignorance about the nature and needs of the society in which courts function. The examples mentioned included the supreme court of appeal’s (SCA’s) reserved judgment on former president Jacob Zuma’s parole and the possibility that he might have to return to prison; and the pending Phala Phala report.
Since then the SCA ruled on Zuma and Ngcobo reported. The Walus judgment I did not anticipate at the time. Some brief thoughts on each of these follow.
Zuma’s return to prison is on hold because the department of correctional services filed an appeal to the constitutional court. As to possible rioting, the intelligence and security agencies must do their work. As we should expect from them, the SCA judges were not intimidated.
On the unanimous constitutional court decision to order the department to release Walus on parole, written by Chief Justice Raymond Zondo, Mcebisi Ndletyana wrote convincingly in this newspaper. He narrated the history of Walus’ numerous applications for parole, summarised from the judgment.
Ndletyana points out how the department’s bungling and fancy footwork over years betrayed their intention to keep Walus in prison until his death. As argued by Ndletyana, Zondo should be commended for upholding the country’s laws while the politicians who promulgated them declined to do so. Politicians often do not uphold the laws they make. Examples may follow on another occasion.
But I commend not only the chief justice, but all the judges of the court. All judgments are thoroughly debated, based on several drafts. The judges did not try to protect themselves against criticism and abuse. Their job demands courage.
Capital punishment was abolished in our constitutional democracy. We also do not have the sentence of “life without parole”, which is popular in the United States. Our most severe sentence is life in prison. In terms of legislation, “lifers” may apply for parole after 25 years and must be dealt with according to requirements for parole at that stage. No crime is excluded, although expert views such as that serial killers can never be rehabilitated must be kept in mind.
Judges should consider the nature and consequences of the crime committed in the reasoning behind a sentence. But no judge should be able to dictate to parole boards and experts how to deal with someone a quarter of a century after seeing them in prison. People change, for better or for worse.
Namibian and South African courts have found that a prison sentence without any light at the end of the tunnel amounted to cruel and inhuman punishment. One of the aims of imprisonment is rehabilitation. Why would anyone work hard to rehabilitate if you can never see the light of day again? Why should angry inmates refrain from committing further crimes that could temporarily improve their miserable life behind bars? In the Angola correctional facility in Louisiana in the US I experienced the extreme hopelessness of lifers who will never get parole, even when they try to help others.
The Hani murder was deplorable. It was planned and could have caused a civil war. Anger in the liberation movement and the wider black community, especially, is certainly understandable. So is the grief of his widow.
But equality before the law is a constitutional right agreed on by those for and against whom Hani fought and died.
Should the life-long deep dark painful hole in the heart of a mother whose 12-year-old daughter was gang-raped, mutilated and left on a street to die the most horrible of deaths forever block the parole of the perpetrators several decades later?
She may also dedicate her life to seeing the perpetrators “rot in jail”, as stated about Limpho Hani (Sunday Independent, 4 December). She may also feel that her baby girl is raped, mutilated and killed “a second time” when parole is granted. Does she matter less, because she is poor and without a strong political voice?
People have the right to criticise judgments. Emotion deserves a space. But there is a difference between the pain of a mother or wife and the populist irresponsibility of leaders.
An application for rescission of the judgment has been promised by some leaders. The use of this mechanism, never intended for the purpose of getting rid of a judgment one does not agree with, was made fashionable in Zuma’s case in 2021. Please spare us a repetition of that embarrassment.
Keeping up with developments in the Phala Phala saga is hard. At the time of writing, the Ngcobo report is being taken on review to the constitutional court. Initial rumours indicated that President Cyril Ramaphosa was advised against a review application because no court would set aside the findings of a former chief justice.
Nonsense. Courts must do their work. Ngcobo is no longer their boss — and would agree that he never was the boss of independent judgment-writing. The fact that a successful review may embarrass a former chief justice is irrelevant.
I trust Ngcobo’s labelling by young black academics as a “Zulu nationalist” and the fact that he wrote a minority judgment in favour of Zuma, was appointed by Zuma as chief justice and left the office after a constitutionally invalid attempt by Zuma to extend his term, played no role in the findings of his panel.
Academics disagree on whether the report is fatally flawed. Zumites argue that it found Ramaphosa “guilty as hell” (for example, Sipho Seepe in the Sunday Independent, 4 December). In this newspaper, Richard Calland stated that it was “flawed in both law and fact, and … poorly written and constructed”. Sloppy and perhaps over-hasty work is not typical for the very meticulous Ngcobo.
Given the purpose of the panel’s preliminary inquiry to assist parliament in its decision whether to embark on an impeachment investigation, the mere use of the word “may” in the finding that the panel’s investigation “discloses, prima facie, that the president may have committed serious violations of the Constitution and the law” does not indicate poor writing, as stated by the minister referred to above. It is a legal attempt to stay within their mandate. But in the review application it is argued that the panel misunderstood its mandate and that the report is seriously flawed and irrational.
It could surely not be a finding of guilt, or a conviction. The panel did not sit as a criminal court. The procedures and safeguards of a fair criminal trial did not apply. The political ramifications of the report are something else.
As to the role of judges, it is good that we still turn to the Constitution and law, rather than to mob rule and violence, to resolve disputes. But our apex court is again in the firing line of an essentially political war, with the rule of law itself at its centre. If the report is set aside on review, the Ngcobo panel might, ironically, have done Ramaphosa a favour, at least for the time being.
My previous article concluded with a reference to the view of Mbekezeli Benjamin, of judicial watchdog group Judges Matter, that it would not be prudent to include judges in this panel. I said: “We shall see.”
We saw. That “hard cases make bad law”, is an old saying. Do hard cases also make embattled or embarrassed judges? The judges of the constitutional court now need more courage than in the Walus case. But then again, nurses, doctors, police officers, soldiers and firefighters often put life, limb and family on the line in the service of us all.
Johann van der Westhuizen, who assisted in drafting South Africa’s Constitution, is a retired justice of the constitutional court.
The views expressed are those of the author and do not necessarily reflect the official policy or position of the Mail & Guardian.
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