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.
