Walus not free until Lamola says so
LIMPHO Hani stepped up to the dock where Clive Derby-lewis, Gaye Derby-lewis and Janusz Walus were seated during the adjournment before judgment. She was calm, head held high.
She wore her demeanour in a serene, light-coloured dress.
Flanked by two senior ANC officials, she stood in front of each of the accused in turn and “stared hard at them without blinking”.
“[Clive] Derby-lewis, who at first did not know where to look, suddenly exploded,” reported The Independent, one of the international newspapers covering the murder trial. “‘Why does she have to do this? She has seen my pictures in the newspaper already’.” Hani was expressionless.
Not yet 16, her daughter, Nomakhwezi, was also in the room. She was the first to see her father, Chris, after Walus fired four shots at him, two pumped into the SACP leader’s head at close range as he lay bleeding in the driveway of his home.
“When told that the court had found Walus guilty, [Nomakhwezi] gave a tiny nod and stared into her lap.”
This was at the Rand Supreme Court in Johannesburg in late 1993. In March 2001, Nomakhwezi was laid to rest after she died, heartbroken, at a friend’s house not far from there (reportedly of a suspected asthma attack).
She wrote, “I want to be with him just one more time”, in a letter read out for the first time at her funeral. “What child should witness such a barbaric crime?”
The killers had no qualms, and her father had been clear about who was to be feared, saying in the weeks before his assassination that “[President FW] de Klerk and others … have done nothing about removing the forces they have created”.
This week, the Constitutional Court found for his assassin, Janusz Walus, in his application to be placed on parole after nearly three decades behind bars.
The Hanis were immediately foregrounded by South Africans. Walus was reviled. But the truth could still be out there.
A poll on Newzroom Afrika on Tuesday morning took our temperature, with viewers overwhelmingly opposed in response to the question: “What do you make of this?”
Some 41.8% said “it’s a great injustice”, and 32.7% said “the family were let down”. Only 25.5% felt “justice was served”.
The Concourt seemingly didn’t feel the vibrations of that nearly 75% when it made its decision. Allegations still abound that a wider conspiracy was involved in the assassination, which the killers admitted was aimed at regime change.
In the 1990s, it was thought the planning came from an “inner circle” of special forces set up by the apartheid government.
The former Transkei Intelligence Service claimed top generals in former Military Intelligence structures tasked agents to carry out such “operations”, but the Truth and Reconciliation Commission (TRC) was unable to find evidence that Walus and Derby-lewis took such orders.
“The judgment has far-reaching implications that compel us to analyse it deeper and look for a new way forward under the circumstances,” said the SACP in a statement.
Over the years the pattern around the assassin’s release has been the same.
The Parole Board would recommend it and successive ministers of justice and correctional services and the courts would refuse. Parole is, after all, supposed to be determined by the executive,
while sentencing is undertaken by the judiciary.
The tension between those state functions was highlighted in this week’s judgment, with the judiciary having perhaps encroached upon the executive in the matter.
Former Concourt Justice Edwin Cameron explained last year in a speech that the Correctional Services Act gives only the minister the power to make the ultimate decision on lifers’ parole.
The decision also left millions of us ordinary South Africans shocked. But we are probably too numbed by crime, corruption and disappointment as a nation to be able to do anything more about it.
What can we do, anyway, but rail against Justice Raymond Zondo and the other judges? We haven’t been able to force much change in our country over the past 20 years or so since apartheid legislation was struck from the roll in the 1990s.
Why would the Concourt process our zeitgeist?
The apex court has received mixed support for its rulings. It has, for instance, instructed government to fix broken-down schools – to little effect.
The Constitution’s demand of equality before the law – which is what Justice Zondo et al used in finding for Walus this week – is not borne out in the way women and children are treated. Is it all words?
Certainly, parole sounds textbook in the case of a hit man released from prison after 29 years inside. But does that explain why a highly influential young South African right-wing activist expressed himself like this on a messaging app on Monday night: “Janusz Walu is free! A massive congratulations to my friend and fellow warrior Roelof du Plessis SC, who has likely just won the most difficult case of this century.”
The activist (whose name we have withheld as we do not have his permission) said he was sitting in the advocates’ chambers with Du Plessis, who had “achieved one of the greatest triumphs of which any advocate could boast”.
He also praised advocate Leon Kellermann SC, who was Du Plessis’ partner in a matter he described as “a titanic struggle”.
If parole was “deserved”, why was it such a “titanic struggle”?
South Africans are troubled that the Concourt’s judgment could stir more fervour in white people who openly pronounce race hate and a longing for violence.
We like to pretend they’re not there, we ridicule them and offer that there must be “so few” of them left that we can ignore them.
That is foolish.
The TRC heard that Walus was used as a source by a National Intelligence Service agent until 1991, providing the agent with information on members of the South African Polish community who had links with intelligence agents back home.
Of course, to be on parole does not mean you have finished serving your sentence. Parole – a privilege, not a right – is part of the punishment, and Walus is among around 500 000 “lifers” worldwide expected to remain under the state until it decides otherwise.
This is why Justice Minister Ronald Lamola’s approach after Zondo’s judgment is so critical. Walus will not be free to go until the minister announces that he is free to go. And the reason he did not give Walus parole in the first place, was because of the “intended purpose of Hani’s murder, [which] could not be ignored”.
None of that helps Limpho Hani, who was so strong on that afternoon in court in 1993. Nor does it restore her family, and her hopes, which echo our own.
Walus doesn’t really matter. It’s what lies behind him that matters. That’s what killed Hani and that’s what the Concourt did not properly recognise in its judgment.