Why The Zuma Appeal Bid By IEC Is Ill-Advised and Ill-Fated

 Why The Zuma Appeal Bid By IEC Is Ill-Advised and Ill-Fated

           Paul Ngobeni - Legal Analyst with Juris Doctor degree from New York University

I have previously exposed the Independent Electoral Commission’s (IEC) bias against former President Zuma and his candidacy. See, DOES THE IEC’S PRONOUNCEMENT ON ZUMA RAISE AN ALARM ABOUT ITS CONSTITUTIONAL COMPETENCE AND INDEPENDENCE? https://www.blogger.com/blog/post/edit/7882783286736481979/3050180726690705023 . True to its track record, the IEC has lodged an urgent and direct appeal to the Constitutional Court relating to the order of the Electoral Court setting aside its decision following the appeal by the uMkhonto Wesizwe party. The IEC believes that taking the case to the Constitutional Court will assist in providing clarity on the interpretation of section 47(1)(e) of the Constitution. This law was at the centre of the case between the uMkhonto Wesizwe (MK) party and the IEC.  “Such clarity is important in the present matter because of a live issue but also for future elections. It is furthermore important that such legal clarification is obtained from the highest court in the land which has constitutional-matter jurisdiction. Hence, a direct appeal to the Constitutional Court,” the IEC’s statement reads. But that is actually bizarre justification for urgent appeal – if the objective is merely to seek “clarity” from the apex court why is the IEC compelled to expedite the matter as an “urgent appeal”?

The MK party challenged the interpretation of section 47(1)(e), which sets the conditions under which a convicted citizen may not take public office. But the MK did not end its argument there. It made a cogent and sophisticated argument about the interplay between Sections 165, 84(2) and 47(1)(e ) of South Africa’s constitution. Advocate Dali Mpofu SC argued that Zuma spent only three months in prison after he received a remission of sentence, which rendered his initial sentence of 15 months irrelevant. He also argued that the commission had no jurisdiction to implement section 47 against the former president.

The IEC’s statement explaining the basis of its urgent appeal raises even more suspicions. In  explains why it is important for the commission to take the matter to a higher court, the commission “stressed that it was in no way trying to interfere with political matters” even before anyone levelled such accusations against it. A guilty conscience need no accuser! The IEC stated: “The Commission wishes to emphasise that this appeal is not intended to involve itself in the political field of play, it is rather to ensure free and fair elections by ensuring that applicable constitutional provisions relating to elections are clearly understood by all role-players and applied evenly. We therefore wish for the matter to be determined before the date of the election.” 

The Electoral Court ruled this week that the MK party’s Jacob Zuma would remain on the parliamentary list, setting aside the commission’s decision to uphold an objection against the former president’s participation. There is a plethora of reasons why the envisaged appeal is likely to end in an ignominious defeat for the IEC.  

First, it is well-known that the Electoral Court has not yet issued the full judgment to outline the reasoning behind the decision. Ironically, the IEC issued a statement urging the court to release its judgment to reveal how it made its decision but is seemingly unwilling to await the court’s issuance of the judgment.  The same IEC which claims that “clarity is important in the present matter because of a live issue but also for future elections” is unwilling to await the issuance of the very judgment it is appealing against. 

Second, the IEC will fail on its claim that the matter is urgent. Ordinarily, the Constitutional Court is not suited to hear urgent matters, because of its composition and functions. The Court consists of eleven judges, who sit together en banc. Every matter must be heard by at least eight judges. Without a glimpse  into the reasons advanced by the Electoral Court for its judgment, the IEC is in no position to articulate any plausible basis for urgency. The record is devoid of anything that supports IEC’s claimed urgency.  It is clear that this matter is indeed not one of urgency and that it is not in the interests of justice that it be dealt with expeditiously. Even in the unlikely event that President Zuma is declared to be unqualified for election to Parliament after the elections his inclusion on the MK list for now does not warrant a court’s urgent consideration of that issue at this stage. 

Third, the Constitutional Court is unlikely to have a quorum in this matter as the majority of judges have a conflict of interest and are disqualified from presiding over the matter of President Zuma or interpreting their own judgment which sent him to prison without the benefit of a trial. In that regard, the Constitutional Court stated in Bernert v ABSA Bank Limited 2011 (3) SA 92 (CC) at paragraph [22] that the Concourt “as the ultimate guardian of the Constitution, has the duty to express the applicable law, in order to enhance certainty amongst judicial officers, litigants and legal representatives and, thereby, to contribute to public confidence in the administration of justice”. This is however said subject to the proviso that no person has a right of appeal to the Constitutional Court.  It is not irrelevant, that the IEC, well knowing that six of the eleven Judges (Chief Justice Zondo as Complainant, Madlanga J, Majiedt J, Mhlantla J, Tshiqi J and Theron J) were participants in the judgment which resulted in Zuma’s incarceration, approached the Court in its application for leave to appeal. This clearly cries out for a sua sponte recusal by the said judges. Clearly it can be assumed that Mr. Zuma  would have a reasonable apprehension that the same judges who sent him to jail will be biased in adjudicating this application. In this respect the presumption of impartiality of the Judges, who as judicial offices, are required by the Constitution to apply the Constitution and the law impartially and without fear, favour or prejudice, must not be given any weight in determining whether there is in fact a need for the majority of the Judges presiding over the matter, to recuse themselves.  The judges admitted in the original Zuma judgment that they took umbrage to what they perceived as personal insults directed at them by Zuma and imposed on him a prison sentence far in excess of sentences normally imposed in contempt of court cases. Moreover, Section 47 (e)  of the Constitution states that: “(e) anyone who, after this section took effect, is convicted of an offence and sentenced to more than 12 months imprisonment without the option of a fine, … but no one may be regarded as having been sentenced until an appeal against the conviction or sentence has been determined, or until the time for an appeal has expired.” But we all know that Zuma was never given any appeal rights as the Constitutional Court acted as the court of first and last instance.  If the Constitution says explicitly that “no one may be regarded as having been sentenced until an appeal against the conviction or sentence has been determined” what happens where a party is sentenced by the Concourt against which no appeal rights exist?  Can the same judges who imprisoned Zuma now decide that their abuse of judicial power to deny him these fundamental rights was harmless or should be excused?  

It is undeniable that at least six of the eleven members of the Court should consider themselves disqualified from determining the merits, with the result that only four Judges are available, there will not be compliance with section 167(2) of the Constitution which provides that a matter before the Constitutional Court must be heard by at least eight Judges. Unless those positions can be filled by Acting Judges, or if the doctrine of necessity is invoked, the Constitutional Court cannot determine the merits of the dispute between the parties, with the result that the judgment in the Electoral Court stands. Justice Zondo’s role as both a litigant and member and supervisor of the Court that sentenced Mr. Zuma to a determinate prison term have left a stench on the judiciary  that may not be sanitized for decades to come. In short, the Concourt has recently raised a similar recusal issue in the matter involving Judge President Hlophe.

By way of digression I must point out that It is also significant that the Concourt’s judgment sentencing Zuma was not unanimous. The dissenting minority judgment of Theron J(Jafta J concurring), pointed out that the majority was “creating precedent to punish Mr Zuma alone, Second judgment at [191].”  That suggest invidious discriminatory treatment and targeting of Mr. Zuma by the majority judges. The minority judgment further asserted that:

[191]     The extraordinary features of this matter are undeniable: a former President has very publicly refused to comply with an order of our country’s apex court, which was granted in order to secure his attendance at a commission of inquiry…The main judgment, by its own admission, has pushed the bounds of our law of contempt in order to meet these exceptional circumstances.  The danger of this approach is foreshadowed in the well-known aphorism quoted at the outset of this judgment.  It has led to the creation of bad law.  As I demonstrate, the law is not just bad; it is unconstitutional.

The minority justices further reasoned that:

(b)  It is not reasonable and justifiable under the Constitution for a court to make an order of unsuspended committal in civil contempt proceedings, where the successful litigant has no interest in compelling compliance with a court order or where compliance is no longer possible.  Such an order, when granted in civil proceedings, is unconstitutional to the extent that it limits sections 12 and 35(3) of the Constitution.

(c) Where relief is sought in civil contempt proceedings which is not aimed at enforcing compliance with a court order, the ordinary mechanisms of the criminal justice system should be employed to protect the dignity of the Court.

(d)  In the event that a private litigant approaches a civil court for a punitive order which is not allied with the remedial purpose of coercing compliance with the original court order, the proper approach is to refer the matter to the DPP.  Should the same litigant pray for coercive relief, it is within the power of the Court to adjudicate that claim and, in doing so, make an order of committal which vindicates the public interest and creates an incentive for the contemnor to comply with the original order.

 Justice Theron opined that she “…would have made a coercive order of suspended committal, conditional upon Mr Zuma complying with this Court’s order.  But because the Commission’s lifespan is at its end, I would order that the matter be referred to the DPP for a decision on whether to prosecute Mr Zuma for contempt of court.  Should the DPP refuse to prosecute, it would be open to the Commission to prosecute Mr Zuma privately in accordance with section 8 of the Criminal Procedure Act.” The IEC and its lawyers should be acutely aware of these legal issues. 

Fourth, there is very serious doubt concerning whether the Constitutional Court has jurisdiction to consider the IEC’s application for leave to appeal against a ruling of the Electoral Court. Section 96(1) of the Electoral Act explicitly provides: “The Electoral Court has final jurisdiction in respect of all electoral disputes and complaints about infringements of the Code, and no decision or order of the Electoral Court is subject to appeal or review.”  In Liberal Party v The Electoral Commission and Others [2004] ZACC 1; 2004 (8) BCLR 810 (CC) at para 15 the effect of section 96 on the Concourt’s jurisdiction was left undetermined. O’Regan J (for the majority of the Court) refrained from considering the effect of section 96(1) of the Electoral Act on the jurisdiction of the Court in relation to disputes arising from national or provincial elections. That matter dealt with local government elections to which section 96 is expressly not applicable. She held that “[l]egislation should not be presumed to have intended to oust this Court’s jurisdiction when it does not expressly state as such”, and concluded that section 96(1) does not oust this Court’s jurisdiction in disputes arising from municipal elections.

The case, African National Congress v Chief Electoral Officer of the Independent Electoral Commission (CCT 45/09) [2009] ZACC 13; 2009 (10) BCLR 971 (CC) ; 2010 (5) SA 487 (CC) (3 June 2009) involved the exclusion of someone from the ANC’s list of candidates because he was not registered to vote. While the factual basis of the exclusion was shown to be a mistake, the significance of the case lies in the preliminary argument that the Constitutional Court had no jurisdiction to hear the appeal, since the Electoral Act designates the Electoral Court as having ‘final jurisdiction in respect of all electoral disputes and complaints about infringements of the Code, and no decision or order of the Electoral Court is subject to appeal or review’. Refusing to accept the ouster of its jurisdiction, the Constitutional Court, in a per curium opinion, argued that, while the Electoral Act clearly designated the Electoral Court as the court of last resort for all electoral matters, this ouster could only be constitutional if it was read as not applying ‘where the dispute itself concerns a constitutional matter within the jurisdiction of this Court’.  The Court stated the following:

    7 The question we must consider now is whether section 96(1) ousts the jurisdiction of this Court in           this matter. Section 96(1) must be interpreted in a manner that is consistent with the Constitution.            Indeed, section 2 of the Electoral Act provides that any person interpreting or applying the Act must do so in a manner that “gives effect to the constitutional . . . guarantees”.8 It is clear that were section 96(1) to be interpreted to oust this Court’s jurisdiction to consider constitutional matters, it would be inconsistent with section 167(3)(a) of the Constitution which provides that this Court is the highest court in all constitutional matters. Accordingly, section 96(1) should in the light of section 2 of the Electoral Act be read in a manner consistent with section 167(3)(a). This can be achieved by reading section 96(1) to mean that no appeal or review lies against a decision of the Electoral Court concerning an electoral dispute or a complaint about an infringement of the Code, save where the dispute itself concerns a constitutional matter within the jurisdiction of this Court.

8. In this case, the applicant argued that Mr Maluleka had a constitutional right in terms of section 19(3)(b) of the Constitution to stand for election to the National Assembly and that the effect of the decision of the Electoral Court constituted an unjustifiable infringement of that right. Clearly this case raises a constitutional matter within the jurisdiction of this Court, a jurisdiction which section 96(1) of the Electoral Act does not oust.

9 Given that the case raises a constitutional matter, and given the prospects of success as shall emerge later in this judgment, it was clearly in the interests of justice for this Court to hear the matter and to grant leave to appeal.

It is significant that the IEC is not arguing that Zuma’s constitutional rights “in terms of section 19(3)(b) of the Constitution to stand for election to the National Assembly” were violated. It has not argued that the effect of the decision of the Electoral Court constituted an unjustifiable infringement of that right.  Rather it merely seeks “clarity” on its dispute with MK and the Electoral Court. The IEC has failed to articulate a clear basis for evading the principle that the Electoral Court has ‘final jurisdiction in respect of all electoral disputes and complaints about infringements of the Code, and no decision or order of the Electoral Court is subject to appeal or review’.

Fifth, the IEC is labouring under a profound confusion regarding the powers allocated to the judiciary and the President respectively under our constitutional scheme. Section 165(3) provides that ‘no person or organ of state may interfere with the functioning of the courts’, and section 165(5) provides that any order issued by a court ‘binds all persons to whom and organs of state to which it applies’. But there is allowable “interference” for the President under our constitution. Section 84 (2) of the same Constitution states that the President is both head of state and head of the national executive and provides that the President is responsible for:

    “(a) assenting to and signing Bills; …

                 (j) pardoning or reprieving offenders and remitting any fines, penalties or forfeitures; ...”

There is no contradiction between the provisions of the Constitution allocating judicial powers to the judiciary and those allocating powers to the President.  Consider in this regard the profound statement of the Constitutional Court in Law Society of South Africa and Others v President of the Republic of South Africa and Others (CCT67/18) [2018] ZACC 51; 2019 (3) BCLR 329 (CC); 2019 (3) SA 30 (CC) (11 December 2018) where the Court observed:

[2] More importantly, the effective leadership or stewardship of the State can never be undertaken by a weakened or lame duck President.  The magnitude of presidential responsibilities demands that the incumbent be clothed with sufficient governance-enabling authority to be the critical difference-maker and transformation-agent that national aspirations demand of the office.[2]  The President should, therefore, not be unnecessarily constrained in the exercise of constitutional powers.

The granting of pardon or remission of sentences may under certain circumstances signal the effective leadership or stewardship of the State by our President.  It may be a clear and unequivocal signal that our President is clothed with sufficient governance-enabling authority to be the critical difference-maker and transformation-agent that national aspirations demand of the office, especially in a moment of national crisis.

In President of the Republic of South Africa v South African Rugby Football Union [1999] ZACC 11; 2000 (1) SA 1 (CC); 1999 (7) BCLR 725 (CC) the Constitutional Court engaged with the basis on which the courts may review the exercise of presidential powers and affirmed its judgment in President of the Republic of South Africa and Another v Hugo.   The Court gave historical content to presidential pardons at para 144 and explained that such powers originated from the royal prerogative and were enjoyed by the Head of State:

[144].  In President of the Republic of South Africa and Another v Hugo,11[1] this Court held that the powers conferred upon the President by section 82(1) of the interim Constitution, which are similar to those conferred by section 84(2) of the 1996 Constitution, were powers which historically originated from the royal prerogative and were enjoyed by the head of state. In neither the interim Constitution nor the 1996 Constitution, however, is there any reference to the prerogative. The powers conferred are limited to those expressly listed. They are conferred upon the President as head of state, rather than as head of the national executive. This conclusion is suggested not only by the historical antecedents of these powers, but also by the provision in section 84(2)(e) which empowers the President to make appointments required by the Constitution or legislation other than those appointments he must make as head of the national executive. The clear implication is that those appointments made under section 84(2) are made as head of state.

[145] All of the powers conferred by section 84(2) are original constitutional powers. They are concerned with matters entrusted to the head of state,

The judgment,  President of the Republic of South Africa v Hugo [1997] ZACC 4; 1997 (4) SA 1 (CC); 1997 (6) BCLR 708 (CC) (Hugo) dealt with the President’s decision to remit the sentences of a special category of prisoners.  There, the majority of the Court at paras 45-6 held that there were at least two situations in which the power to grant pardons or remit sentences may be important.  First, to correct a mistaken conviction and enhance justice within the legal system, and second, to provide an opportunity to release convicted persons when it is in the public interest, as in Hugo, where the exercise of the power to pardon was an act of mercy at a time of great historical significance.  See also President of the Republic of South Africa v South African Rugby Football Union [1999] ZACC 11; 2000 (1) SA 1 (CC); 1999 (7) BCLR 725 (CC) where this Court engaged with the basis on which the courts may review the exercise of presidential powers.  

So contrary to the IEC’s mistaken assumption, the historical content to presidential pardons or remission of sentences shows that such powers originated from the royal prerogative and were enjoyed by the Head of State for centuries.  Currently, all powers conferred by section 84(2) are original constitutional powers.  See also Minister for Justice and Constitutional Development v Chonco [2009] ZACC 25; 2010 (4) SA 82 (CC); 2010 (2) BCLR 140 (CC) (Chonco) at para 16 where the Concourt considered the relationship between the powers and functions of the President as Head of State, on the one hand, and those that are entrusted to the Executive, on the other, as well as the obligations that accrue to each in terms of section 84(2)(j).  See further Albutt v Centre for the Study of Violence and Reconciliation [2010] ZACC 4; 2010 (3) SA 293 (CC); 2010 (5) BCLR 391 (CC) where the Concourt determined the scope of the President’s power to grant pardons to people who were convicted of offences that were committed with a political motive as part of the special dispensation process.  Such powers can legitimately be used in the interest  national unity and national reconciliation.  They can also be used to mitigate the harshness of sentences imposed by the judiciary. 

The IEC sought to propagate the myth that the separation of powers doctrine is violated when the President uses his original Section 84 constitutional powers to pardon persons or remit their sentences.  So long as the President’s exercise of the pardon power stays within the confines of the law, he enjoys broad and unbridled powers to grant a pardon to deserving individual citizens. The US Supreme Court has held that pardon “…extends to every offense known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken, or during their pendency, or after conviction and judgment.” Brown v. Walker, 161 U.S. 591, 601–02 (1896) (internal citations and quotations omitted).  The US Supreme Court observed in Nixon v. United States that “the granting of a pardon is in no sense an overturning of a judgment of conviction by some other tribunal; it is ‘an executive action that mitigates or sets aside punishment for a crime.’” 506 U.S. 224, 232 (1993) (quoting Black’s Law Dictionary 1113 (6th ed. 1990)).

And finally, the IEC and its lawyers need to develop a proper understanding of the “remission’ or pardon phenomenon in our constitutional scheme.  Helpful examples can be gleaned from Indian Supreme Court jurisprudence.  In a recent case, Rajo @ Rajwa@ Rajendra Mandal, Write Petition (Criminal) No(s). 252 OF 2023 the Indian Supreme Court stated:

9. Sentencing is a judicial exercise of power. The act thereafter of executing the sentence awarded, however, is a purely executive function – which includes the grant of remission, commutation, pardon, reprieves, or suspension of sentence. See Gopal Vinayak Godse v. State of Maharashtra [1961] 3 SCR 440; Maru Ram v. Union of India [1981] 1 SCR 1196; Sarat Chandra Rabha v. Khagendranath Nath [1961] 2 SCR 133; Kehar Singh v. Union of India [1988] Supp. 3 SCR 1102.  This executive power is traceable to Article 72 and 161 of the Constitution of India, by which the President of India, and Governor of the State, respectively, are empowered to grant pardons and to suspend, remit or commute sentences in certain cases. Whilst the statutory (under Section 432 CrPC) and constitutional (under Articles 72 and 161 of the Constitution) powers are distinct the former limited power, is still an imprint of the latter (much wider power), and must be understood as such and placed in this context. This framework of executive power and how it is to be exercised, is lucidly explained, in the judgment of State of Haryana v. Jagdish [2010] 3 SCR 716: 

27. Nevertheless we may point out that the power of the sovereign to grant remission is within its exclusive domain and it is for this reason that our Constitution makers went on to incorporate the provisions of Article 72 and Article 161 of the Constitution of India. This responsibility was cast upon the executive through a constitutional mandate to ensure that some public purpose may require fulfilment by grant of remission in appropriate cases. This power was never intended to be used or utilised by the executive as an unbridled power of reprieve. Power of clemency is to be exercised cautiously and in appropriate cases, which in effect, mitigates the sentence of punishment awarded and which does not, in any way, wipe out the conviction. It is a power which the sovereign exercises against its own judicial mandate. The act of remission of the State does not undo what has been done judicially. The punishment awarded through a judgment is not overruled but the convict gets benefit of a liberalised policy of State pardon. However, the exercise of such power under Article

161 of the Constitution or under Section 433-A CrPC may have a different flavour in the statutory provisions, as short-sentencing policy brings about a mere reduction in the period of imprisonment whereas an act of clemency under Article 161 of the Constitution commutes the sentence itself.”

As the Indian Supreme Court sagaciously observed, sentencing is a judicial exercise of power. The act thereafter of executing the sentence awarded, however, is a purely executive function – which includes the grant of remission, commutation, pardon, reprieves, or suspension of sentence. Each repository of power under our Constitution has separate function in that the judiciary passes sentence but the execution of the same sentence is exclusively in the hands of the executive.  It is an exercise in idiocy to claim that a separation of powers principle is violated if the executive chooses to exercise the constitutional power to remit a sentence of a prisoner in Mr. Zuma’s position. As the Indian court recognizes, “ the power of the sovereign to grant remission is within its exclusive domain” and this means that a Court may not invalidate such powers simply because it disagrees with the grant of a remission to Zuma.  It is a “power which the sovereign exercises against its own judicial mandate. The act of remission of the State does not undo what has been done judicially. The punishment awarded through a judgment is not overruled but the convict gets benefit of a liberalised policy of State pardon.”  The IEC appeal is a political gimmick with no prospects of success.

DOES THE IEC’S PRONOUNCEMENT ON ZUMA RAISE AN ALARM ABOUT ITS CONSTITUTIONAL COMPETENCE AND INDEPENDENCE?

 DOES THE IEC’S PRONOUNCEMENT ON ZUMA RAISE AN ALARM ABOUT ITS CONSTITUTIONAL COMPETENCE AND INDEPENDENCE?

By Paul Ngobeni – A legal analyst with a Juris Doctor degree from New York University.

 

All political parties and citizens who value the constitutional independence of the Independent Electoral Commission (IEC) must be alarmed by the IEC’s latest unwarranted and unsolicited pronouncement on the eligibility of former president Jacob Zuma for a seat in parliament and ultimately the position of president of the country. As reported in the newspapers, the IEC pronounced that “former president Jacob Zuma cannot be the president of the country after this year’s general elections because of his criminal record.”  The “electoral body cited Section 47(e) of the country’s Constitution, which bars anyone who was convicted and sentenced to more than 12 months imprisonment, without an option of a fine, from holding public office.” The IEC said the following:

Section 47 of the Constitution provides that:

(1) Every citizen who is qualified to vote for the National Assembly is eligible to be a member of the Assembly, except anyone who, after this section took effect, is convicted of an offence and sentenced to more than 12 months imprisonment without the option of a fine, either in the Republic, or outside if the conduct constituting the offence would have been an offence in the Republic.

 

Therefore, this provision renders Former President JG Zuma disqualified to be on   the list of any party contesting an election or to contest as an independent in the upcoming 2024 elections.

 

The IEC’s pronouncements are highly disconcerting for a number of reasons and are based on a misreading of existing laws, including the Constitution. For starters, the Constitution requires that a person is “convicted of an offense” before the disqualification kicks in.  Black's Law Dictionary defines conviction as follows: “In a general sense, the result of a criminal trial which ends in a Judgment or sentence that the prisoner is guilty as charged.”

 

It is incontestable that Zuma was never subject to a criminal trial. Further, contempt of Court is divided into two categories namely, civil contempt and criminal contempt.   The case which resulted in Zuma’s incarceration was a civil case of Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State v Jacob Gedleyihlekisa Zuma [2021] ZACC 2.  The state capture Commission approached the Constitutional Court in December 2020 on an urgent basis for an order that would compel Zuma to co-operate with the Commission’s investigations and objectives. The Constitutional Court ruled in favour of the Commission and ordered Zuma on 28 January 2021 to attend the Commission and to give evidence before it, compelling him to attend the Commission from 15 February 2021 to 19 February 2021. Zuma was incensed by the order and subsequently released a public statement harshly criticising both the Commission and the Constitutional Court, stating that they were victimising him through exceptional and harsh treatment, and were politicising the law to his detriment. Zuma. Through his legal representatives Zuma informed the Commission that he would not be appearing before the Commission as ordered by the Concourt.  In the Concourt there was no doubt or dispute about the civil nature of the proceedings.  Ordinarily, a person guilty of contempt of court is very rarely given a punitive order of direct committal, but is rather given a coercive order instructing them to comply with whatever order they failed to comply with initially.

 

In the Majority Judgment Khampepe J held that a coercive order would not be appropriate for Zuma and would likely be a “brutum fulmen” or an empty threat. Khampepe J took into account several aggravating circumstances such as the public statements made by Zuma in which he made several inflammatory statements perceived as intended to undermine the judicial system, the continuous disobeying of court orders, the attacks on the judiciary and its members, and the fact that he was not an ordinary litigant but the former President of the Republic. It is for these cumulative reasons that Khampepe J ultimately made the punitive unsuspended order of imprisonment against Zuma. But that begs the question – given that Zuma was never subjected to a criminal trial and was never “convicted” of an offense within the meaning of the Constitution can his incarceration resulting from civil contempt proceedings count as a “conviction” of an offense under Section 47 of the Constitution?

 

The answer is definitively in the negative. This is made clear by the Minority Judgment by Theron J which dealt mainly with the unconstitutionality of imposing a purely punitive order of unsuspended committal in the context of civil proceedings, without any remedial objective. As Theron J explicitly asked: “can the civil, remedial element of civil contempt proceedings be abandoned in favour of a wholly punitive approach?”. Theron J shared the view that Zuma was in contempt of court but she considered it unconstitutional to grant an order of unsuspended committal if the committal is not aimed at coercing the accused to comply with a court order, highlighting that such an order (of unsuspended committal) had never before been handed down by the court in respect of contempt.  Theron J explained that the ordinary remedy in civil contempt cases where a litigant is found guilty of civil contempt is always a period of suspended committal, which then provides the contemnor with a final opportunity to comply with the court order and to avoid imprisonment. In my view the basic constitutional requirement of being “convicted of an offense” within the meaning of Section 47 of the Constitution was never met. It is mind-boggling how the IEC reached the erroneous conclusion that Zuma was precluded by the committal from civil contempt proceedings from being a member of parliament or the president if elected.

 

The IEC was presumptuous in interpreting the Constitution without proper legal guidance or advise. In criminal law, there is a rule of lenity, also called rule of strict construction, which states that when a law is unclear or ambiguous, the court should apply it in the way that is most favorable to the defendant, or to construe the statute against the state. In Zuma’s case, the principle of strict construction applies and the word “convicted of an offense” must be confined to strictly criminal proceedings.  The IEC’s reference to Zuma’s “criminal record” is fallacious and meritless.

 

Our constitution created the IEC as a Chapter 9 institution "State Institution[ ] Supporting Constitutional Democracy."' Further, the constitution specifies three important features of the IEC. First, section 190 of the constitution, which defines the functions of the

IEC, gives the body an executive, rather than a judicial, role. Section 190 lists the functions of the IEC as managing elections, ensuring they are free and fair, and declaring results. Section 190 also allows national legislation to prescribe "additional powers and functions." By limiting the IEC to an administrative role, the constitution avoids the problem of the IEC having overbroad powers that allow the IEC to insinuate itself in party political contestation matters. It was both premature and presumptuous for the IEC to decide the issue of Zuma’s candidacy even before his party MK has submitted a list of its candidates it intends to send to parliament.

 

The IEC simply overlooked the judgment In Kham and Others v Electoral Commission and Another [2015] ZACC 37 where the Concourt ruled that “…the Constitution protects not only the act of voting and the outcome of elections, but also the right to participate in elections as a candidate and to seek public office.” Additionally, the IEC forgot that the Electoral Court’s jurisdiction to review any decision of the IEC relating to an electoral matter affords the Electoral Court a power of judicial oversight over the activities of the IEC.  The Electoral Court can examine any decision by the IEC and substitute it with its own.  Certainly all the issues arising in the Mk and Zuma case relate to electoral matters and are fundamental to the electoral process and the conduct of free and fair elections. In addition to this broad power of review, the Electoral Court may hear an appeal against any decision of the IEC insofar as that decision involves a question of law or is provided for in any law.  But the IEC has muddied the waters and upended the process by making a ruling before the MK party has even submitted a list with Zuma as its nominated candidate.

 

The IEC gives the unfortunate impression of de-campaigning the MK p[arty and Zuma as its potential candidate. That is contrary to Section 195 of the Constitution and the IEC Code of Conduct which require IEC employees to be apolitical, impartial and that they take reasonable steps to avoid conflicts of interest. In the context of the statutory functions given to the IEC in relation to the conduct of elections, the IEC and its employees must be, and must be seen to be, impartial and politically neutral and must, at all times, behave in a way that upholds both the Constitution and Code of Conduct. This means the IEC must always

ensure that its staff are politically neutral and help all voters in a fair and unbiased manner. The IEC must also avoid any actions that could make the IEC appear biased in any way. It must also ensure all of its employees are competent and act in line with their Code of Ethical Conduct at all times. Unfortunately, the IEC appears to be faltering and has opened itself up for criticism for playing to the public gallery and seeking media celebrity status at the expense of the constitutional rights of our citizens. Above all else, the erroneous interpretation by the IEC also reflects the flaws in the original court judgment where the justices appear to have based their judgment on their own anger and malice without regard to the criminal laws of this country.

 

The Executive and the Judiciary To Blame for the Hani Murderer Parole

 

The Blame For the Unmitigated Disaster in the Hani Murderer Parole Ultimately Lies with Both the Executive and the Judiciary, which Ignored Sisulu's Warning.

 

By Paul Ngobeni

 

The recent Constitutional Court judgment, Walus v Minister of Justice and Correctional Services and Others (CCT 221/21) [2022] Z.A.C.C. 39 (21 November 2022) which, ordered that Chris Hani's killer, Janusz Waluś, be placed on parole is an unmitigated disaster. It is a cruel reminder of the subservient and second-class citizenship status that black people are confined to and is an insult to national heroes like Chris Hani, who sacrificed limbs and, ultimately, lived for the cause of black freedom. Not surprisingly, the judgment has sparked outrage, grief, and consternation amongst the black majority. Predictably, this country's apex court and judiciary have been criticised and lambasted publicly by all and unprecedentedly. Members of the tripartite alliance have called angry public demonstrations, including the South African Communist party, the ruling African National Congress, and the largest trade union federation, the South African Congress of Trade Unions (C.O.S.A.T.U.). The bitter irony is that all these organisations now so concerned with injustice and the politics of the judiciary all ganged up to attack Minister Lindiwe Sisulu for raising the alarm about the ever-declining quality of our judiciary and its failure to effect substantial and far-reaching transformation in our jurisprudence. This is the best indicator of the corrosion of public confidence in the judiciary.

 

It is equally significant that Mrs. Limpho Hani blamed Chief Justice Raymond Zondo for the decision, which she rightly called a miscarriage of justice. Referring to January 2022 remarks by Minister Lindiwe Sisulu that the judiciary was untransformed and captured, Mrs. Hani said the judgment had vindicated Sisulu. "Lindiwe Sisulu, I give it to you, my sister. You are vindicated today. Listen to black people when they tell you about justice in this country. We are in the shit," she added. Notwithstanding the current misogynist backlash in the A.N.C. against the election of women in leadership, visionary leaders and intellectual giants such as Sisulu will eventually succeed in leading us to a just and equal society fostering sustainable development, protecting human rights,  and promoting the rule of law. Lest we forget, Zondo and Justice Minister Lamola joined an orchestrated and well-planned systematic attack on Sisulu for daring to raise issues about the vacuous promises of the Constitution and the abject failure of our judiciary to transform not just in demographics but in ideological mindset as well.

 

In these times, I am compelled to recall the wisdom of former Chief Justice Conteh of Belize, who once remarked in George Meerabux v The Attorney General of Belize [2005] U.K.P.C. 12, that "that society attributes honour, if not veneration, learning if not wisdom, together with detachment, probity, prestige, and power to the office of a judge." I must sadly confess that I have searched in vain for the "learning if not wisdom, together with detachment, probity, etc," in the judgment of Zondo. It is also significant that the judgment was authored by Judge Zondo, who was elevated to Chief Justice by President Ramaphosa after the Judicial Services Commission collectively rejected Zondo's bid for the position. In the process, Ramaphosa revealed his own misogynist attitude towards women by rejecting the J.S.C. recommendation to appoint Justice Maya as the first Chief Justice of South Africa. By outperforming male candidates during the J.S.C. interviews, Justice Maya demonstrated success in her leadership role, but she was penalized because she presumably violated unspoken gender-prescriptive norms existing in the president's head. As a woman who put herself forward for leadership positions, she faced a  backlash that undermined her status. Just like Sisulu, the devaluation of women leaders is more pronounced when they occupy male-dominated roles or challenge conventional wisdom. 

 

Throughout his litigation of the Walus case in all the courts, Minister Lamola abjectly failed to articulate a straightforward, defensible, and legitimate reason for denying Waluś parole. The pivotal question is as follows: as a young democracy and developmental state, are we not entitled to deny parole to those prisoners whose crimes reflect permanent corruption or deep-rooted incorrigibility because they are violent, ideologically motivated extremists? The simple answer is absolute – we have that right. 

 

The United Nation's "Handbook on the Management of Violent Extremist Prisoners and the Prevention of Radicalization to Violence in Prisons;" Criminal Justice Handbook Series, United Nations, New York, 2016 states the following:

 

Violent extremism is an affront to the purposes and principles of the United Nations. It undermines peace and security, human rights, and sustainable development. No country or region is immune from its impacts  ...  Violent extremism is a diverse phenomenon without a clear definition. It is neither new nor exclusive to any region, nationality, or system of belief ... Definitions of "terrorism" and "violent extremism" are the prerogative of Member States and must be consistent with their obligations under international law, in particular international human rights law   ...   Violent extremism undermines our collective efforts towards maintaining peace and security, fostering sustainable development, protecting human rights,  promoting the rule of law and taking humanitarian action.

Plan of Action to Prevent Violent Extremism– Report of the United Nations  Secretary-General,  A/70/674  (2015),  paras. 1, 2, 5, and 12.

 

The U.N. Handbook further identifies political ideologues such as nationalist,  neo-Nazi groups,  white supremacists, or hate groups that advocate the use of violence as part of their philosophy. The stage is then set to view Walus not just as an ordinary murderer but as a raving, committed rightwing anti-communist ideologue who remains unrepentant about his racist philosophy. Why did the rudderless Minister Lamola not argue before the Court that Walus' ideological commitment as an anti-communist and racist are factors militating strongly against his release on parole at this stage? As recently as two years ago, Waluś told Polish Journalist Cezary Lazarewicz that "in 1993, there was a war in South Africa, and he felt like a soldier... He still believes in the system of racial segregation and that whites and blacks should live apart." See "Janusz Walus: Why far-right Polish football fans idolise a murderer in South Africa ."B.B.C. News. 19 September 2020.

 

It is well known that the Polish immigrant, after moving to South Africa, became involved in pro-apartheid and far-right movements, including the white supremacist Afrikaner Resistance Movement of Eugene Terre'Blanche. His claims of remorse and of being reformed are belied by his most recent confirmation that he "still believes in the system of racial segregation and that whites and blacks should live apart." As reported in the Independent Online, the Communist Party of Poland has warned the S.A.C.P. about an alleged new plot "to kill communists" - a plot allegedly orchestrated in Poland, the birthplace of Chris Hani's killer, Walus. S.A.C.P. senior leaders received an e-mail on Monday, 21 November 2022, alerting them about the plot and "included were details of a fund-raising function allegedly organised by a rightwing publishing house in Poland, allegedly to benefit Walus." See, https://www.iol.co.za/news/communists-should-be-shot-polish-extremists-raise-funds-to-help-janusz-walus-39466535 

Why should these alarming and new material facts not be presented to the Constitutional Court in a new application to reconsider its outrageous decision?

 

Shortly after the Constitutional Court judgment, journalist Lester Kiewit interviewed Polish political scientist, Rafal Pankowski, to give insight into the release on parole of Janusz Waluś.  Pankowski told him, "69-year-old Janusz Waluś represents a symbol for rightwing conservatives in his home country with his face branded on anything from coffee mugs to banners brandished with slogans such as 'Free Janusz Walus." See https://www.capetalk.co.za/articles/460239/hani-killer-s-release-sees-neo-nazi-explosion-of-joy-analyst . Pankowski, the spokesperson for the polish anti-racism group, Never Again Association, said the judgment had emboldened racists and neo-Nazis around the world. He said: "I know what it means for the racists and the neo-Nazis in Poland and internationally. I would say that we can see an explosion of joy on social media on the part of the far right … those people who see Janusz Waluś as a role model." Further, Pankowski said: "If he is to return to Poland, for some on the far right, he is to be welcomed as a hero. He will be seen as a model for Europe's violent far-right extremist movement."

   

 Contrary to the naïve assumption of the Constitutional Court judges, it is not unusual for state authorities to deny parole to prisoners convicted of severe terrorism-related offenses where there is a paucity of evidence that they have abandoned their extremist ideas. For instance, in Australia, the New South Wales government states that "community safety is the State Parole Authority's (S.P.A.) paramount consideration when making parole decisions. The S.P.A. can: Refuse parole for terrorism-related offenders unless satisfied that the offender will not engage in, incite or assist others to engage in terrorist acts or violent extremism." See, https://www.justice.nsw.gov.au/Pages/Reforms/parole.aspx 

 

In 2020 the United Kingdom introduced emergency legislation designed to end the automatic early release of terrorist offenders, as the government took "decisive action to protect the public and keep our streets safe." https://www.gov.uk/government/news/end-to-automatic-early-release-of-terrorists  These were emergency laws passed in the wake of the 2019's London Bridge attacks that blocked the automatic early release of jailed terrorists.

 

In a similar vein, during the coronavirus pandemic in 2022, the Indian Ministry of Home Affairs (M.H.A.) ordered that "the release of prisoners on parole and furlough is not an absolute right and should be based on well-defined norms of eligibility, and directed states that those involved in terrorism and other heinous crimes should not be allowed to go out of jails." https://economictimes.indiatimes.com/news/politics-and-nation/parole-furlough-not-absolute-right-not-to-be-given-to-terrorists-hardened-criminals-mha/articleshow/77933619.cms

 

 

It is not illegitimate for a responsible Minister to use an inmate's terrorist risk profile or behaviour as a basis to defer or deny parole taking into account all other factors. By this, I mean behaviour that is neither an offence nor terrorism-related activity but which fosters or legitimizes terrorist violence on release. Walusz has blatantly informed the public that the 28 years of his immurement have done nothing to change his racist views – he "still believes in the system of racial segregation and that whites and blacks should live apart." Minister Lamola abjectly failed to articulate to the Court the abecedarian concept that terrorism offenders such as Walus are welcomed by fellow rightwing extremists rather than ostracised like paedophiles and that rehabilitating such ideologically driven terrorism offenders and persuading them against further terrorist activity is a daunting, if not an impossible task. After all, Walus is simultaneously enjoying a high cult-hero status because of his brazen act of murdering the most prominent African leader on the eve of our new democracy.

 

Gaping Flaws in the Judgment

 

To appreciate the most alarming flaw in Zondo's judgment, we must start with his observations about the Bill of Rights. He claims that "in considering whether or not the applicant should be released on parole, I have been mindful of the fact that, in assassinating Mr. Hani, the applicant sought to derail the attainment of democracy in this country and nearly plunged South Africa into a civil war." Paragraph 96. But he assiduously avoids mentioning that Walus has publicly declared that he is still a racist, and his substantially long imprisonment has done nothing to change his views.   Zondo descends into the pits of reactionary jurisprudence by claiming that the founders of our constitutional democracy "did not draft a Bill of Rights that would confer fundamental rights only on those who fought for democracy and not on those who had supported apartheid or who were opposed to the introduction of democracy in this country." In short, he commiserates with the murderer and places a committed racist ideologue who murdered for political reasons on the same moral plane as the freedom fighters, notwithstanding Walus' unrepentant stance. Further, Zondo claims that the founders "drafted a Bill of Rights that conferred fundamental rights on everyone, including those who had supported apartheid with all their hearts." He waxes lyrical about the phrase "South Africa belongs to all who live in it, united in our diversity" and claims that this is evidence that Walus deserves a free pass to freedom. Incredibly, Zondo anchors his views on the fact that "most of the sections in our Bill of Rights start with the phrase "Everyone has a right…" That is because the fundamental rights conferred in those sections are conferred on everyone." Paragraph 97.   But that is all unsustainable argument – section 36 of the same Constitution has its own limitation clause, which enables constitutional rights to be partially limited to a  specified extent and for specific limited and democratically justifiable purposes.

 

Zondo's bizarre interpretation is refuted by the United Nations document cited in this article which states: "Violent extremism undermines our collective efforts towards maintaining peace and security, fostering  sustainable development, protecting human rights,  promoting the rule of law   and taking humanitarian action." It is simply perverse to place victims of a murderous rampage by political extremists on the same moral plane as the terrorists who murder for political ideologies. As Sisulu would see it, a constitution that was designed to further our collective efforts towards maintaining peace and security, fostering sustainable development, protecting human rights, promoting the rule of law, and taking humanitarian action is being reinterpreted to give succour and comfort to racists who are still hell-bent on bringing back the odious apartheid system of yesteryear. This is consistent with the collective post-apartheid national psychosis where the victims of apartheid have been required to make apologies and grant forgiveness to perpetrators who never asked for such indulgences in the first place.

 

Zondo lowers both the legal standard and moral tone of the debate with his claim that the "Minister has considered all the factors that should be considered in deciding whether to place a prisoner on parole and concluded that, except for two, they all supported the conclusion that the Applicant should be released on parole. The two factors that the Minister considered to count against the Applicant are the ones discussed above, which I have concluded can no longer stand in the way of the release of the Applicant. I have reached this conclusion against the background that the Applicant served more than 25 years of his sentence of life imprisonment, during which he has kept a clean disciplinary record and has complied with every requirement that he has been told by the prison authorities he should comply with in order to improve his prospects of placement on parole. In the circumstances, I am of the view that it is just and equitable that this Court should order the Minister to place the Applicant on parole." Since when has a clean disciplinary record while incarcerated been the dominant or determinative criterion in parole decisions? Why does Zondo not believe that a person who is unrepentant and still proudly proclaims his racist views about black people must be released simply because he spent 25 years in prison?

 

Before everyone starts baying for Zondo's blood, we must consider the contributory incompetence of the Minister of Justice as described in the Court judgment. For starters, Zondo highlights the contradictions in the compendium of reasons Lamola advances for his decision to deny Walus parole. Zondo states, "there are two features in respect of which there is a difference in what he said in his decision document and what he said in his affidavit that may need to be highlighted. Therefore, I propose to reflect here what he said in his affidavit. The Minister said:

 

"13.1 For purposes of my decision dated 16 March 2020, I took into account as positive factors in favour of his placement on parole:

 

13.1.1 the commendable behaviour and adjustment of the Applicant during his incarceration (as attested by his clean disciplinary record within the correctional centre);

 

13.1.2  the multidisciplinary programmes completed by the Applicant within the correctional centre aimed at his rehabilitation;

 

13.1.3  the availability of support systems to the Applicant and his favourable employment prospects in the event of his being placed on parole;

 

13.1.4 the fact that the Applicant is a first offender;

 

13.1.5 the remorse on the part of the Applicant for the crime;

 

13.1.6 the risk of the Applicant re-offending being low."

 Judgment in paragraph 66.

 

The articulated reasons are a dead giveaway that the incompetent Lamola went through the motions, and his incompetent decision-making is the actual reason why Walus was granted parole. How does any right-thinking minister endorse the view that the "risk" of Walus' reoffending was "low" when he had access to newspaper reports in which Walus confirmed he still believes in apartheid many decades after his initial immurement? Given that Walus has not, by his own admission, been weaned off his extremist and racist views, the risk of reoffending and re-establishing old ties with extremist white racists at home and abroad remains astronomically high. The only difference now is that he would enjoy elevated cult-hero status.

 

Zondo is equally remiss in that he conjures up an excuse without any factual basis to support the decision granting parole to Walus. He states in paragraph 36 that: "…section 36 of the C.S.A. tells us that the objective of the implementation of a sentence of imprisonment is to enable the sentenced prisoner to "lead a socially responsible crime-free life in the future ."On the face of it, this seems to suggest that, where, on all the evidence, the risk of a prisoner re-offending, if he or she were released on parole, is low, the relevant authorities should seriously consider releasing such a prisoner on parole because the objective of the implementation of a sentence of imprisonment would have been achieved." That begs the question again – on what basis does he ground his belief that a self-confessed adherent of apartheid presents a low risk f reoffending? What makes Zondo think that a dyed–in–the–wool racist would "lead a socially responsible crime-free life in the future," as he claims?.

 

Zondo further goes astray when he deals with the 'rationality" test. It is a well-established general principle of constitutional law that every exercise of public power should not be arbitrary but instead should be rational. The Court's obligation when applying this constitutional principle of rationality to an exercise of public power is to decide whether the provision or conduct is irrational or arbitrary and, if the Court so chooses, to declare it unconstitutional and invalid. That being said, it is crucial to remind ourselves that judges are not elected democratically, and the judiciary does not have to account for an electorate. Inevitably, the judges rely on the other organs of the state, which are accountable to the citizenry, to ensure obedience to and enforcement of the law. As former Deputy Chief Justice Moseneke remarked in his inaugural Griffiths and Victoria Mxenge Memorial lecture, "Judges are not elected democratically, and yet the Constitution itself entrusts them with authority to invalidate any law or conduct that is unconstitutional. This authority to upset a legislative or executive choice must be exercised sparingly and in a clear case of unconstitutionality.    The judicial officer must decide according to the facts and the law and not according to subjective predilection." Justice Moseneke further asserted that "courts are bound by the democratic will of the people as expressed in legislative instruments that are constitutionally compliant ."While he cautions that public opinion should not be a deciding factor in adjudication, he is aware that court decisions that go against public opinion place the courts at risk of losing public support. He wisely admonishes that "above all, a decision on the unconstitutionality of the conduct of another arm of the state must be clear, strongly  motivated, and  accurate  on  the  nature  and  extent  of the impugned unconstitutional conduct." There is nothing wrong with judges making unpopular decisions in their judgments. However, they must always be aware that judgments such as the Walus appeal will eviscerate the institutional legitimacy and the stellar reputation the Constitutional Court built over more than twenty-five years.

 

Zondo's reasoning for ordering that Walus be released on parole  was that "the decision was irrational because there was no connection between the Minister's exercise of power given to him in this regard and the purpose for which that power was conferred." He concludes:

 

[61]       In attacking the Minister's decision as irrational, the Applicant relied on, amongst others, the fact that the nature and seriousness of the crime of which he was convicted, and the sentencing remarks of the High Court and the Supreme Court of Appeal will never change in the future. The Minister did not dispute this, nor could he. The Applicant then went on to submit in his founding affidavit in the High Court that, because these two matters on which the Minister relied to justify denying him parole will never change in the future, the Minister will never release him on parole, which, therefore, meant that he would serve a full life sentence of imprisonment.

 

Zondo proceeded to dismiss or minimize the Minister's reliance on the seriousness of the crime and the judicial remarks made at the time of sentencing. He stated:

 

[72]  It will have been seen from the above what types of remarks of the trial court and the Supreme Court of Appeal the Minister took into account in deciding not to place the Applicant on parole. The courts' remarks he took into account relate to the seriousness of the offence that the Applicant had committed or the fact that the offence was well-planned and was committed in cold blood. The question arises: should these the types of remarks made by a trial court at the time of imposing a sentence that the Department's policy contemplates be considered? They are not, and the Minister misconceived the policy's remarks. The sentencing remarks to which the policy document refers can only be remarks about the minimum period of imprisonment that a convicted person or offender should serve before he/she can be considered for parole. Sometimes Judges and Magistrates make remarks to such effect when they impose a sentence of imprisonment. If the reference to the Court's sentencing remarks referred to in the Department's policy document is understood to be a reference to such remarks, the requirement in the policy document makes sense.

 

Zondo is effectively inventing a new artificial standard for rationality of a Minister's parole decision. How can Zondo conceivably claim that remarks by a court recognising the seriousness of an offense must be discounted by a minister charged with the responsibility to decide a parole matter? After all, the very nature of the crime and the risk of recidivism is among the factors that the Minister must include in his decisional calculus.   Zondo went further to articulate a non-sequitur argument in support of his unjustifiable decision to release Walus in the following paragraphs:

 

[81]    The question that immediately arises then is this: if, in the future, the Minister can or will release the Applicant on parole on the same facts as those which prevailed in 2020 when he denied him parole, does that mean that he will have reached two different and mutually exclusive conclusions on the same facts? If he could decide to release the Applicant on parole on these facts in the future, why is it that he did not release him in 2020 on the same facts? If the Minister were to release the Applicant on parole on the same facts in the future, how would he justify his two conflicting conclusions on the same facts? The Minister did not explain any of this in his answering affidavit. His failure to explain this renders his decision to deny the applicant parole inexplicable. If it is inexplicable, it follows like night follows day that it is irrational. There is no connection between the exercise by the Minister of his power and the purpose for which the legislation conferred that power on him. If there is no connection between the Minister's exercise of the power and the purpose of the power conferred upon him, his decision is irrational.

 

[82]       One can put what I have said in the preceding paragraph differently. That is that, if more than 26 years after the Applicant was sentenced for the crime he committed, it was appropriate for the Minister not to release the Applicant on parole in 2020 because of the nature of the crime, the seriousness thereof, and the Court's sentencing remarks, why would it be appropriate for the Minister to release him one or two or three or five years after that? These three factors are immutable. They will not change one, two, three, or five years later. The Minister has not explained this, notwithstanding that it cried out for an explanation because the Applicant clearly put it in the issue. Therefore, this Court must vitiate the Minister's decision. If it were not to do so, it would, in effect, be giving its approval to the proposition that in the future, it would be appropriate for the Minister to deny the applicant parole even when he may have served 30 or 35, or even 40 years of imprisonment. That is based on the nature of the crime, the seriousness thereof, and the trial court's and Supreme Court of Appeal's sentencing remarks, despite the Applicant having complied with all other requirements for him to be placed on parole which the Minister concedes. The Minister's decision is not rationally connected to the purpose of the power conferred upon him. Therefore, his decision is irrational and fails to be reviewed and set aside.

 

The above preceding two paragraphs provide clear evidence of why it is improper for the judiciary to usurp the powers meant to be exercised by other branches of government. For starters, in the context of parole decisions, it is asinine to ask "if, in the future, the Minister can or will release the applicant on parole on the same facts as those which prevailed in 2020 when he denied him parole, does that mean that he will have reached two different and mutually exclusive conclusions on the same facts?" Releasing Walus at his advanced age, say ten years from today, would be based on substantially different facts which would be entirely justifiable and rational. For instance, South African jurisprudence accepts mero motu that once an offender has reached an advanced age,  it may be regarded as a  mitigating factor in the sentencing of such an offender. See, S v Munyai 1993 1 SACR 252 (A); S v Du Toit 1979 3 SA 846 (A); S v Heller 1971 2 SA 29 (A) and S v Zinn(1969 2 SA 537 (A)).

 

It has been said that the rationale for the reduction in sentences based on age is compassion. It "evokes a note of compassion in considering the bleak recompense of imprisonment in the afternoon of his years" (S v Hellersupra 55C-D). "The significance of old age as a mitigatory factor, particularly when combined with ill health, is that it constitutes a basis on which the court, in the exercise of mercy, may impose a sentence significantly shorter than otherwise might be the case" (S v Henderson [2005] W.A.S.C.A. 89 par 23.

 

Concerning deterring the elderly from offending, there is generally no need for such deterrence as there are very few potential offenders. The argument is that imprisoning an elderly person for retributive purposes would be pointless, and the concept of special deterrence would be irrelevant (Fox and Freiburg par 11.408). The Court cannot overlook the fact that each year of the sentence represents a substantial portion of the period of life left to the offender (S v Tasmania supra par 14 with reference to R v Hunter(1984) 36 SASR 101 103; Kaye v The Queen [2004] WASCA 227 par 21; and Braham supra 41) and as such mercy is afforded to the elder offender (Braham supra 51). In Australia, maturity alone may be mitigating depending on the circumstances of the case, as long as it does not downgrade the seriousness of the offence to the detriment of the general deterrence objective (S v Braham (1994) 116 FLR 38 43). 

 

Old age is of special importance when deciding whether the offender should be imprisoned, as the effects of prison are especially harsh on the elderly, challenging to adjust to or tolerate. Imprisonment for the elderly raises specific practical problems for prison services. Three issues should be noted: it is more costly to incarcerate the elderly, mainly as a result of increased health problems and victimisation.

 

The United States courts have also considered old age even in severe criminal offences where heavy sentences are mandatory. In United States v. Collins, 122 F.3d at 1307, the defendant was sixty-four (64) years old and suffered from "heart disease, high blood pressure, ulcers, arthritis, and prostatitis." In light of Collins's "old age and ill health," the Court sentenced him to forty months of incarceration for the distribution of cocaine rather than the one hundred and fifty-one to one hundred and eighty-eight months recommended by the Sentencing Guidelines. In United States v. Hildebrand, 152 F.3d 756(8th Cor. 1998) overruled in part by Whitfield v. United States, 543 U.S. 209 (2005), the Court sentenced the seventy-year-old defendant to five years of probation with six months in a community correctional facility for mail fraud and money laundering instead of the fifty-one to sixty-three months recommended by the Sentencing Guidelines. The Court did so even though "the Bureau of Prisons could manage Zucker's [the defendant's] conditions." Id. In United States v. Jackson, 14 F. Supp.2d 1315, 1316 (N.D. Ga. 1998), the Court sentenced the seventy-six-year-old defendant to eighteen months of imprisonment for eighty-three counts of mail fraud rather than the thirty-three to forty-one months recommended by the Sentencing Guidelines. The defendant suffered from severe osteoarthritis, a torn rotator cup, and chest pains. 14 F. Supp. 2d at 1318-1319. Even though the Court recognized that the Bureau of Prisons would be able to accommodate the defendant's needs, 14 F.Supp, 2d 1315 at 1321, it concluded that the "combination of ailments" justified the departure. 14 F.Supp. 2d 1315 at 1322. In United States v. Barbato, No. 00 CR 1028, 2002, WL 31556376(S.D.N.Y. 15 November 2002)(unpublished), the eighty-one-year-old defendant suffered "from a variety of serious medical ailments, including hypertension, carotid artery disease, and coronary artery disease." Instead of sentencing the defendant to the twenty-four to thirty months the Guidelines had recommended for his loan sharking conviction; the Court sentenced the defendant to twelve months of home confinement and two years of supervised release. The Court justified the departure because of the defendant's "medical condition and his advanced age." Id. In United States v. Willis,322 F. Supp. 2d 76, 78 (D. Mass. 23 June 2004), the Court sentenced the sixty-nine-year-old defendant to probation with six months of home detention for income tax offenses. The Court imposed that sentence rather than the twenty-one to twenty-seven months recommended by the Sentencing Guidelines, 322 F. Supp. 2d at 78, after, in part, considering the cost of home detention versus jail:

The issue is one of degree. Willis has an inordinate number of potentially serious medical conditions. It seems imminently logical that Willis is at an age where these medical conditions will invariably worsen. It seems logical that being away from his support structure, family, and doctors will invariably exacerbate his situation. It seems logical that if he went to jail for three years between the ages of 69 and 71, he would emerge in substantially worse shape than he is now if he did not die before completing his sentence. It seems logical that while the B.O.P. can care for him, the costs of that care are bound to escalate. Finally, it seems logical that his conditions at least put him in the zone that enables me to balance the cost of home detention vs. jail, whether home confinement will be "equally efficient as and less costly than incarceration," U.S.S.G. § 5H1.1, or whether "home detention may be as efficient as, and less costly than, prison" as it is described in U.S.S.G. § 5H1.4

322 F. Supp. 2d at 84-85.

 

Zondo's reasoning is fallacious in that a Minister may rationally release Walus on parole ten years from now when he is most likely to be at an advanced age with attendant illnesses. Releasing an aged and weaker Walus at that future time does not by any stretch of the imagination suggest that the Minister would be releasing Walus "on parole on the same facts as those which prevailed in 2020 when he denied him parole," as Zondo erroneously suggests. Nor does it indicate that the Minister would have "reached two different and mutually exclusive conclusions on the same facts," as Zondo falsely implies.

 

The morass of the Walus decision illustrates perhaps a critical thing about the tragedy of our failed leadership in this society: we have a weakened S.A.C.P. which has abandoned its glorious role as the intellectual leader of society and is now reduced to staging eye-catching vacuous demonstrations instead of providing leadership by seriously analyzing the weaknesses in our judiciary as Sisulu suggested. Equally tragic is C.O.S.A.T.U., whose leaders were amongst the first attack dogs deployed to savage Sisulu for innocuously suggesting that the judiciary deserved a critical re-evaluation in the overall context of our transformation project. As for the ruling A.N.C., it failed the Hani family, betrayed the hopes and aspirations of the millions of our people who are convinced that Hani would have made a massive difference in their social and economic circumstances - he would undoubtedly have averted the current situation where the poor are falling more and more into an abyss of despair. As for the judiciary, we must struggle for the day when our judges will commiserate with the victims of social injustice instead of being captured by well-resourced and connected N.G.O.s under white tutelage.