Chris Hani’s murderer, Janusz Walus. (Reuters)
Janusz Walus, Chris Hani’s killer, is about to be set loose. This follows a unanimous decision by the constitutional court, penned by chief justice Raymond Zondo, to grant him parole.
The chief justice, as a result, has attracted unkind words from many unhappy quarters, including from South African Communist Party (SACP) leader Hani’s widow, Limpho Hani. Still pained by the brutal slaying of her husband, Mrs Hani lambasted the ruling as a failure for the country and hoped the judges wouldn’t last long on the bench. The general secretary of the SACP, Solly Mapaila, shared Mrs Hani’s disappointment: “We believe that indeed today in the court of justice an injustice has occurred, a very heavy injustice against our people.”
The fury at the thought of Walus going free is not only understandable, but is widely shared especially in the black community. Hani was a much adored figure. Stories about his military exploits and courage made him a legend long before some of us even set eyes on him. The stories were proved true when he returned to the country in the early 1990s.
The apartheid government would not give him indemnity. They seemed to fear him most. And they had reason to: “If the regime doesn’t surrender power, we must seize it,” he’d say, while sometimes sporting a cap emblazoned with the word “Rebel”. He was the most electrifying speaker at a rally. After listening to him, one always felt buoyed: “Anyile amabhulu!” (The boers are in shit!) That is why Walus remains one of the most hated creatures in South Africa and his pending parole has ignited rage.
That fury, however, is misdirected at the judges. This was a decision politicians forced the constitutional court to take because they lacked the courage to do it themselves. Like any inmate, Walus qualified to be considered for parole. That he was initially sentenced to death in 1993, only for his sentence to be commuted to life, did not mean he had to die in prison. Walus became eligible to be considered for parole in 2005, noted Zondo, after he had served 12 years and four months in jail.
He started applying for parole in 2011, thereby initiating a process that would culminate at the constitutional court 11 years later. In that intervening period, between the initial parole application and the case coming before the constitutional court, Walus submitted roughly five applications. A closer look at the handling of paperwork and the contradictory reasons for declining the repeated applications reveals a subjective reluctance to grant parole.
In 2011, for instance, the Parole Board recommended that he be released but the minister of justice and correctional services disagreed and declined the request. He reasoned, as Zondo writes, that “the victim’s family and other interested parties had not been given an opportunity to provide either a victim impact statement or a statement of opposition.”
Walus applied again in 2013. Before appearing before the Parole Board, he had written a book letter to Mrs Hani apologising for the murder of her husband. The apology was obviously meant to soften her attitude towards the application. It did not have the intended effect. Mrs Hani, who had attended the hearing, did not accept the apology and expressed her wish that Walus remain in prison.
The Parole Board was left to take the decision. But, Zondo writes, “It is not clear from the record what the Parole Board’s decision was on this occasion but the applicant was not placed on parole.” It is unimaginable that a Parole Board decision, arising from a formally constituted meeting about Hani’s assassin, and attended by lawyers and family members, would not be recorded but there are no records of it. The effect is that we don’t know what the board recommended, nor did it seem the minister cared to explain why Walus was denied parole.
The records of the third application, made in early 2015, are similarly silent on the Parole Board’s decision. Whether they declined it, or not, is not known. But Walus remained in prison nonetheless.
A record of the fourth application, made in April 2015, however, exists. The outcome was the same as the previous applications but the reasoning for the rejection was different from the initial one. Now the minister said, according to Zondo, “ … the nature of the crime and sentencing remarks of the trial court outweighed all the positive factors which counted in favour of the applicant”. This meant Walus would never qualify for parole. Both the crime and remarks of the trial judge happened in the past and would remain permanently unchanged. This meant that there was nothing else Walus could do to make himself eligible for parole.
Asked to review the minister’s decision, the north Gauteng high court quickly picked up the irrationality in the reasoning. Since Walus couldn’t undo the murder or the trial remarks, both of which were advanced as the primary factors for the rejection, the minister effectively meant him to die in prison. And, so the high court judge, Nicoline Janse van Nieuwenhuizen, rejected the minister’s reasons, set his decision aside and ordered him to parole Walus.
The supreme court of appeal (SCA), on being approached by the minister to review the ruling, affirmed Van Nieuwenhuizen’s decision. But, the SCA was less prescriptive in its ruling. Rather than order the minister to put Walus on parole, the SCA’s Mandisa Maya ordered him to reconsider the application. In doing so, she further noted, the minister must consider Mrs Hani’s victim impact statement as well Walus’s response thereto.
The minister was not persuaded, however. He reconsidered the applications but continued to reject them. Again Walus approached the high court. High court judges, first Selby Baqwa and later Jody Kollapen, on separate occasions, ruled that the minister’s decision was irrational. In a rare high court ruling, in 2022, the minister finally got a favourable decision. The judge decided to give the minister the benefit of the doubt, stating that it was up to him to decide how much weight he placed on each of the factors he took under consideration. If the minister decided the nature of the crime and the judge’s remarks at the sentencing weighed more than other factors, then that was his prerogative. That was a rare ruling, seeming to grant the minister a level of discretion that bordered on arbitrary powers.
By the time this case reached the constitutional court in February 2022, therefore, it had gone on what was effectively a merry-go-round. The ultimate court in the land, whose decision on the matter is final, had to be absolutely certain that Walus’s application had been considered fairly and objectively. This required the judge to look at both the process and compliance with the policy regime on paroles.
The handling of the process, especially the non-availability of records of some of the Parole Board’s meetings, smacked of unfairness intended to mislead. Without knowledge of what the board had recommended, it was difficult to evaluate the minister’s decision to refuse parole. It is safe to infer, based on the availability of some records and the mysterious disappearance of others, that the board had consistently recommended that Walus be placed on parole. Revealing that the board had recommended parole, only for the minister to disagree, would have required him to explain his decision. And, he didn’t want to have to do that, because the explanation had loopholes, as several rulings pointed out.
The fancy footwork did not escape Zondo. It betrayed an intent on the part of the government never to let Walus loose, to let him die in prison. The intent, however, flew in the face of the policy regime that governs consideration of paroles. As Zondo put it: “No matter how serious the crime is for which a person is sent to jail, the court has no power to say that he or she should not be considered for parole for a period after the expiry of 25 years imprisonment.”
Accordingly, Zondo elaborated, the remarks made by the trial judge when sentencing Walus, enunciating the brutality of the crime, were not meant to block the success of a future application for parole. Rather, and in light of the seriousness of the crime, the judge’s remarks were intended to underscore the absolute importance of having the assassin spend all the stipulated time behind bars before being considered for parole. They were meant to enable the maximum penalty, not to deny Walus of his rights — however despicable a human being he might be.
Zondo simply carried out the law as promulgated by politicians. While politicians declined to obey their own laws, Zondo displayed the courage and honesty required of a jurist in a constitutional democracy. He should be commended and his judgement held up as a constant reminder of who we are — law-abiding society, firmly entrenched in the righteousness of our foundational values. We don’t turn into brutes upon encountering one. The striving for a democratic South Africa, as Steve Biko told a judge at his own trial in the 1970s, was not so that blacks could mimic others but to “simply be the best we can be”. Zondo’s ruling is keeping us on course!
Mcebisi Ndletyana is a professor of political science at the University of Johannesburg and co-author of a forthcoming book on the centenary history of Fort Hare University.
The views expressed are those of the author and do not necessarily reflect the official policy or position of the Mail & Guardian.