SA's 'tainted' parole process in the dock
Parole has, arguably, become somewhat of a dirty word in South Africa — and it really isn’t hard to see why.
Whether it was the release of President Jacob Zuma’s former financial adviser Schabir Shaik on medical parole or the multiple court cases brought by ageing apartheid-government killers to force the state to release them, South Africans may well be left with the impression that the parole system gets manipulated to help the politically connected and actively blocks the release of those on the margins of political power.
It is a system that, as the Oscar Pistorius saga has shown, does not really know what to do with itself when the world is watching.
Michael Masutha, the minister of justice and correctional services, is well aware of the damage caused by the Shaik medical parole controversy, which he admits “tainted” the parole system.
Masutha is also acutely conscious of the fact that, in a crime-ravaged society traumatised by violence, the public is not sympathetic to anyone convicted of violent crime being released prematurely.
He has, increasingly, become somewhat critical of a parole system that he describes as defined by administrative error and a lack of compassion for the victims of crime.
Masutha says he has turned down more than 90% of all the parole board recommendations he has received for inmates sentenced to life in prison — a stance decidedly different from that taken by previous ministers, who largely accepted the recommendations of parole boards.
“There have been shortcomings,” he says, “where it’s clear there’s no evidence of any effort to involve victims in circumstances where, clearly, given the nature of the offence, engaging the victims or their families should have been an imperative … Other profiles do not contain psychologist reports, social worker reports, reports that are critical in conducting risk assessment to determine whether the release of this -person will not compromise the security of the public.”
There are an estimated 12 000 offenders serving life sentences in South African prisons. Among those whose parole Masutha previously turned down were ANC and South African Communist Party leader Chris Hani’s killers Clive Derby-Lewis and Janusz Walus, and Ferdi Barnard, who murdered anti-apartheid activist David Webster.
He did, however, grant parole to apartheid security policeman Eugene “Prime Evil” de Kock after the high court ordered him to consider the death squad cop’s parole application.
Masutha’s refusals of parole for the apartheid state’s killers saw the minister at loggerheads with the National Council of Correctional Services, led by high court Judge Siraj Desai. After 16 years as the council’s head, Desai left the position a few months ago — a decision he says was not driven by tensions between himself and the minister.
“On one or two occasions the minister differed from the recommendations made by the council, but our relationship was never strained. My term of office ... expired … that is why I left,” Desai says.
Masutha has been outspoken about what he says are the shortcomings of the parole system and reveals that he is conducting a massive review of the more than 50 parole boards operating across the country.
So is the parole system dysfunctional, I ask him?
“Perhaps you could say because I have been declining applications bought by offenders serving life sentences at the rate that I have, that that is symptomatic of dysfunctionality. Remember that’s just 10% of all the parole applications and I hope that the other 90% are not fraught with the same kind of problems that result in me declining parole for inmates serving life sentences. I hope not.”
The minister’s refusal to act on parole board recommendations — and his reasoning for not doing so — has been met with significant resistance in the courts.
Derby-Lewis won his court bid for medical parole, securing his release in June this year after his lawyers convinced Judge Selby Baqwa that he had stage-four lung cancer and had only months to live. Masutha had refused to release Derby-Lewis on the grounds that he only had stage-three lung cancer, and was not actually as ill as he claimed.
Baqwa was not convinced by this, and also dismissed Masutha’s argument that Derby-Lewis had failed to show remorse for his role in Hani’s murder.
“[The] life of an individual includes dying,” said the judge in granting the medical parole. “Everyone has the right to die with dignity.”
Walus, now 62, has also taken Masutha to court for refusing to act on a parole board recommendation that he be released. Masutha says he believes Walus should be given the chance to apologise to Hani’s widow, Limpho, before he can be released.
Limpho Hani, however, has made it clear that she does not believe Walus or Derby-Lewis have told the full truth about her husband’s murder and has no desire to meet with them until they do.
‘They showed me the middle finger,” she told the eNCA news channel in April last year.
Some critics may argue that Masutha has used the resistance of victims’ loved ones as a convenient mechanism to block the release of some of the apartheid government’s most notorious killers.
His rationale appeals to a public that is rightfully outraged by violent crime and is nowhere close to having recovered from the cold-blooded and often perfunctory killing of anti-apartheid activists by the state.
But Masutha maintains his fight is not driven by politics or a desire to garner popularity. He says he is fighting to make the prison and parole system far more receptive to the trauma of crime victims.
“Correctional services should be keeping in touch with victims throughout the rehabilitation or correctional process of the offender, because as you deal with the offender, you should remember that the victim is also grappling with the incident. Many victims don’t really go past the incident,” he says.
“So you meet the victim 20 years down the line, you’ve worked with the offender, the offender has gotten somewhere, [but] the victim is still stuck where you left him or her 20 years ago … We take over as the state — and we leave the victim behind. It can’t be right, it can’t be just.”
That stance was supported by the Pretoria high court earlier this month when it dismissed a bid by Webster’s murderer, Barnard, to secure his release on parole.
As he had done in several other cases, Masutha raised concerns about the parole board’s apparent failure to consult with the family of one of Barnard’s other victims. The minister also raised concerns about Barnard’s lack of participation in self-development programmes.
The court found the minister had considered both the positive and negative factors in deciding not to approve the parole board’s recommendation that Barnard be placed on parole, finding his decision was not unreasonable.
Masutha is legally enabled to turn down or grant parole to inmates serving life sentences. But his decision to intervene in the Pistorius probation saga, even he admits, was extraordinary — the first of its kind by a correctional services minister in the history of democratic South Africa. He maintains, however, that he blocked Pistorius’s August release because it exposed long-standing systemic issues in the granting of certain forms of parole.
I ask him how he responds to criticism that he only got involved because of the high-profile nature of the case, and the vocal public outrage that surrounded its outcome.
Did you pick on Oscar Pistorius? I ask. No, he says.
“I didn’t go around looking for a file bearing the name Pistorius. I was approached a few days before he was due to be released in terms of a decision that had been made prior by the relevant parole board,” he says, adding that he knew that “ordinary parole” cases would “never normally reach my desk”.
But he maintains Pistorius was granted parole prematurely — a stance that was supported, albeit controversially, by the parole review board a few weeks ago.
“In light of some of these challenges that I’ve picked [with regards to the Pistorius probation issue], I’ve been contemplating to do some random checks and just see whether norms and standards are being upheld,” he says.
The reality is, though, that the minister would have had a difficult time defending his intervention in Pistorius’s probation, which was granted under a section of the Criminal Procedure Act that has seen 3 400 inmates released in the exact same way as Pistorius would have been. And parole board authorities were clearly aware of that. They fast-tracked Pistorius’s second parole hearing as soon as the Paralympian’s lawyers gave them notice that they were heading to court.
Staff at the Kgosi Mampuru prison also decided to spare Pistorius — and themselves — the public display of the disgraced athlete being led on a “walk of shame” from a prison van to the correctional services office where he would be processed, and then released. To the frustration of hundreds of journalists, they let him out a day early.
The department quickly distanced itself from the early release, stressing that the decision had not been made by national authorities.
It may be that Kgosi Mampuru staff were making a choice driven by real security concerns, but there’s also another distinct possibility: that this was push-back from a prison that had been ready to release Pistorius two months ago.
And that, perhaps, they chose to close down a circus they never wanted in town, and in whose spectacle they had never truly believed.