Court’s power to order the minister to place a prisoner on parole in South Africa: Walus v Minister of Justice and Correctional Services and Others 2023 (2) BCLR 224 (CC)

• Citation: (2023) 36 SACJ 42
• DOI: https://doi.org/10.47348/SACJ/v36/i1a3
• Published date: 31 July 2023
• Pages: 42-57
• Author: Mujuzi, D.J.
• Date: 31 July 2023

Court’s power to order the

minister to place a prisoner

on parole in South Africa:

Walus v Minister of Justice and

Correctional Services and Others

2023 (2) BCLR 224 (CC)

JAMIL DDAMULIRA MUJUZI*

ABSTRACT

Section 78 of the Correc tional Services Ac t (the Act) empowers the Minister

of Justice and Correctiona l Services (the mini ster) to grant parole to an

offender serving a li fe sentence (lifer). Between 2004 and 2 008, a court h ad

the power to place a lifer on parole. However, this power was transferr ed

from the court to the m inister in 20 08. In Walus v Minister of Justice an d

Correctional Services, t he Constitutional C ourt relied on the pre-20 08

version of s 78 of the Act to hold that a court has t he power to release a

lifer on parole. The cour t ordered the minis ter to place the offender on

parole after ndi ng that the decision to decline h is parole application was

irrational. It is arg ued that although the court correc tly invoked the principle

of rationality to order t he minister to place the of fender on parole, it erred

when it held that s 78 of the Correctiona l Services Act empowered it to order

the minister to place t he offender on parole. It is also argued t hat the court

erred when it equated the non-pa role period with a sentencing rem ark. It

is argued fur ther that since rehabilit ation is the most impor tant factor in

deciding whether an offender should be g ranted parole, the Corr ectional

Services Act may have to be amended to prov ide for the offender’s right to

access effective rehabilit ation programme s.

1 Introduction

On 21 November 2022, the Constitutional Court, t he court, ordered

the Minister of Justice and Correc tional Services to place a high-prole

prisoner, Mr Walus, on parole within ten days. Mr Walus was serving

a life sentence for the murder of a prominent South African politician,

Chris Hani. Although, according to the court, he had met all the

requirements for placement on parole, his parole applications were

* LLB (Makerere) LLM (UP) LL M (UFS) LLD (UWC). Professor, Facult y of Law,

University of the Wester n Cape. Email: djmujuz i@gmail.com

https://doi.org/10.47348/SACJ/v36/i1a3

42

(2023) 36 SACJ 42

© Juta and Company (Pty) Ltd

rejected by different ministers responsible for justice and for different

reasons. The court’s order attracted wide media coverage in South

Africa1 and abroad.2 In ordering the minister to release Mr Walus on

parole, the court held, inter alia, that the reasons given to reject his

parole applications were irrational and that the cour t had power, on

the basis of s 78 of the Correctional Ser vices Act,3 to order the release

of a prisoner serving a life sentence on parole when such an offender

has been rehabilitated. The cour t also held that when considering the

remarks by the sentencing court as a ground to decide whether or

not to release an offender on parole, the minister is only restricted to

considering the non-parole period. In this article, it is argued, inte r

alia, that a court does not have power under s 78 to place a prisoner

serving life imprisonment on parole; that the non-parole period

should not be considered as a ‘remark’ by a sentencing court for the

purpose of sentencing, and that since the placement of an offender is

parole is mainly determi ned by their rehabilitation, the Correc tional

Services Act should be amended to provide for the offender’s right to

access effective rehabilitation programme(s). The author will start by

highlighting the facts of the case.

2 The facts and decision of the court

In 1993, the applicant was convicted of the murder of a prominent

South African politician and sentenced to death. When the death

penalty was abolished in South A frica, his sentence was commuted to

life imprisonment.4 Since 2011, his applications for parole had been

rejected by ‘various Ministers responsible for correctional services’

based on ‘various reasons.’5 He argued that ‘the goalposts were moved

each time he applied to be placed on parole.’6 The court outlined

the different reasons given by different ministers at different times

1 See, for example, S Mlambo ‘EFF block s N1 North in protest over Janusz Walus parole,

wants court r uling reversed’ IOL, 1 December 2022 , available at https://www.iol.co.za/

news/south-africa/gauteng /eff-blocks-n1-north-in-protest -over-janusz-walu s-parole-

wants-court-r uling-reverse d-47c2bc37-8b12-4151-96bc-11173c17a289; B Ndaba ‘ANC,

SACP members try to st orm Kgosi Mampur u Correctiona l Centre baying for Janusz

Walus’s blood’ IOL, 1 December 2022 , available at https://www.iol.co.za /pretoria -

news/news/anc-sacp-members-try-to-storm- kgosi-mampuru-corr ectional-centre-

baying-for-janusz-walu ss-blood-1733b90b-16ad-4a47-a0a2-28d51354fbb1.

2 See, for example, F Chothia ‘South A frican cour t orders release of Ch ris Hani’s

killer Janusz Walus’ BBC,21 November 2 022, available at https://www.bbc.com/news/

world-africa-63700284.

3 Act 111 of 1998.

4 Walus v Minister of Justice and Correc tional Services 2023 (2) BCLR 224 (CC) paras

[4]-[6] .

5 Walus supra (n4) at para [7[.

6 Walus supra (n4) at para [7].

Court’s power to order the minister to place a

prisoner on parole in South Africa 43

https://doi.org/10.47348/SACJ/v36/i1a3

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