EDITORIAL | Rule of law means Zuma must return to jail and Janusz must be freed

“His conduct nearly plunged this country into civil unrest.” And: “He seemed to have been intent on derailing the attainment of democracy.” It would be easy to mistakenly assume these two statements made in court on Monday referred to former president Jacob Zuma, whose imprisonment led to treasonous riots last July that killed about 300 people and cost the economy tens of billions of rand.

But Zuma’s parole was not the only high-profile parole matter in court on Monday. In a highly controversial ruling a unanimous judgment of the Constitutional Court found Chris Hani’s killer Janusz Walus should be released on parole. The quotes were from chief justice Raymond Zondo, speaking about the impact of Walus’ actions when he executed Hani in cold blood, callously taking South Africa to the brink of civil war just before the first democratic elections.

At first glance the only aspect Zuma and Walus’ parole applications seem to have in common is their court judgments were handed down on the same day. But in a strange way there is a shared lesson to take from the two cases. A parole decision should not be based on emotion or political pressure; it should be based on what the law says. Also, in both these matters, the minister or commissioner deciding parole did not do their jobs properly, hence it ended up in court.

Monday started with the Supreme Court of Appeal (SCA) hitting out at the decision by former national commissioner of correctional services Arthur Fraser to release Zuma on medical parole — despite it not being recommended by the medical parole board. Zuma was sent to jail for 15 months by the Constitutional Court for contempt after he breached an order to obey a summons to testify before the commission of inquiry into state capture. But he was released on medical parole after serving less than two months.

Arguing against this decision in court, the DA and the Helen Suzman Foundation at the time said medical parole could only be granted to an offender suffering from terminal illness or a physical incapacitation that severely limits daily activity or self-care while in prison. Zuma has made several public appearances since his release on medical parole, dancing energetically and himself recently boasting: “Look at me, am I in the bed lying in a hospital?” This is him showing complete disregard for the parole system.

Incidentally, a good example of how medical parole should be applied involved the second person jailed for Hani’s murder, Clive Derby-Lewis, who was released on medical parole with terminal lung cancer in mid-2015 and died the next year. 

But Zuma, like his former financial adviser Schabir Shaik, made a mockery of the system and should not be allowed to get away with it. The SCA ruling is a small victory, however; he can continue stalling the matter by taking it to the Constitutional Court and remain as free as a bird in the meantime.

This while his daughter Duduzile Zuma-Sambudla has already taken to social media in a public dare to our law enforcement authorities, saying “Oksalayo ... We are not going back.” This is the same person who, during the deadly July unrest, tweeted: “We see you,” in what many believe to have been in support of the rioters.

It is a known fact that our police and safety and security structures did not predict or try to prevent the waves of brutality sweeping through our country; neither did they act fast enough to stop it. Her taking to social media again on Monday was her speaking on behalf of pro-Zuma groupings, a not so veiled threat that July 2021 could easily be repeated. Our leaders know we are still not prepared for such a disaster, a realisation that could sway a decision on whether Zuma will indeed see the inside of a jail cell again.

But potential political implications or other emotions should not influence a determination on whether someone gets released on parole. Political pressure and public opinion are not a court’s concern when it comes to reviewing parole decisions. Even the SCA acknowledged that while the July unrest was a factor that may well be taken into consideration in an application for normal parole, it had no bearing on Zuma’s medical parole.

In Walus’ case, it will be excruciating to see him walk free. However, the unanimous Constitutional Court judgment was correct in law. And if our decision-makers cannot act within the law, it is the beginning of the end of law and order — a scenario that plays right into the hands of the Zuma gang.

Explained: The Janusz Waluś judgment is based on solid legal reasoning

What would Hani want the country to do? Keep his killer in jail in violation of the democratic laws he dedicated his life to attaining? Or to free his killer, understanding that adherence to democratic tenets is more important than keeping his killer in prison perpetually? We believe the latter. It may be hard seeing Hani’s widow, Limpho, seething with anger outside the Constitutional Court, calling the decision “diabolical”. But our democracy requires that we treat everyone equally before the law and this, sometimes, will mean releasing those who perpetrated hate-filled crimes against those who fought for freedom. That it’s a difficult pill to swallow for the country does not mean it’s a wrong decision. Tears and all, democracy triumphed in our courts on Monday.