Phando Jikelo/African News Agency (ANA) - Members of the ANCYL joined by MK veterans like Fumaneklile Booi picketing outside the Cape High court, demanding Janusz Waluś not to be released.
By Bheki Mngomezulu
The date of 21 November 2022 will go down in history as an indictment on the judiciary in South Africa. Something profound happened on this day which is hard to comprehend. The Supreme Court of Appeal (SCA) ruled in favour of both the Democratic Alliance (DA) and the Hellen Suzman Foundation that the decision by Arthur Fraser to release Former President Jacob Zuma was unlawful.
The collective of the judges then instructed that Zuma has to go back to jail to complete his sentence.
What remains a mystery is how does one get punished twice for the same offence? In 2021, Justice Sisi Khampepe sentenced Former President Zuma to go to jail for 15 months, which was less than the two years that had been proposed by Justice Raymond Zondo. This was a controversial decision on many fronts. Firstly, Zuma was sentenced without trial.
Secondly, instead of giving him a suspended sentence or instructing him to pay a fine, she sent Zuma directly to jail. Her judgement was riddled with emotions, which I will not go back to. That sentence ended on 7 October 2022 after Zuma successfully completed his parole period.
Now, the judges say that he must go back to jail.
The question is: at what cost? Many lives were lost in July 2021. Several businesses closed down, resulting in the loss of many jobs. Some businesses and malls have not yet been rebuilt. The country’s economy is yet to recover from that incident. Are we ready to travel that road again? Have we not learnt?
On the same day that the SCA ruled that Zuma must go back to jail, the Constitutional Court (the apex court in the land) took a unanimous decision to release Yanusz Walus, a Polish citizen who killed SACP leader, Chris Hani in cold blood. This terrible and barbaric incident almost saw this country descending into a civil war and bloodbath.
To this day, we don’t know who sent Yanusz Walus and Clive Derby-Lewis to assassinate Hani. As a result, neither the Hani family nor South Africa as a nation has healed from that unfortunate incident.
These two decisions (sending Zuma back to jail while releasing Walus) reminded me of the Biblical story where the crowd was asked to decide on one person to be released between Jesus Christ and a well-known criminal called Barabbas. Intriguingly, out of emotions, the crowd decided that the life of Barabbas should be sparred and that Jesus should be the one facing the music. Indeed, Barabbas was set free and Jesus was nailed. Something similar has happened regarding the two cases referred to above. The only difference is that two separate courts took their decisions independently from each other.
After a cogent analysis of these two incidents, a number of questions beg for attention.
Among them are the following: Were the judges who unanimously agreed that Walus should be released oblivious to the history of this case? Did they consider the excruciating pain felt by Limpho Hani and her family since this incident happened on 10 April 1993? Did they consider the fact that Hani’s murder almost turned this country upside down? Are they aware that both Walus and Clive Derby-Lewis never divulged the truth about Hani’s assassination?
Did they consider the political impact of their decision? Importantly, did these judges consider the impact of their decision on the on-going processes in the country that are meant to promote social cohesion and nation building?
Some of these questions are given substance by a number of developments that have happened in the country since the unanimous decision that was made by the SCA. Firstly, the widow of Chris Hani (Limpho) did not hide her outrage about this decision. This was understandable given the fact that she still does not have the whole truth about the assassination of her husband.
The SACP has also taken issue on this decision. This could be seen from the utterances made by the party’s leadership expressing their anger and dismay about the judges’ decision. This judgement opened old wounds which were beginning to heal. Following the death of Clive Derby-Lewis, Walus was the only hope for the SACP to get the truth as to who orchestrated the assassination of this prominent SACP leader who was vocal on many issues?
Broadly, the Tripartite Alliance which includes the SACP, ANC and COSATU has been organising marches against the SCA’s decision. They are doing this because they consider the bigger issue than being fixated on the constitutional right of the Polish inmate – Walus.
The Umkhonto Wesizwe Military Veterans Association (MKMVA) has also expressed its serious concern about this judgement. Speaking through its former spokesperson, Carl Niehaus, the structure brought back the view that some within the liberation movement know who planned the assassination of Chris Hani. By all accounts, this is a serious allegation.
However, in the absence of the absolute truth about this assassination, it is difficult to refute the view that Derby-Lewis and Walus are not the only two people who were behind Hani’s gruesome assassination.
Some members of the general public are equally concerned about this judgement. The timing of the assassination of Hani and subsequent commotion in the country at the time (in 1993) mean that there is general interest in Hani’s assassination which transcends party politics. It does not come as a surprise, therefore, that even South Africans who are neither SACP nor ANC members have vested interest in Hani’s case. In fact, even people who do not belong to any political party in South Africa still want to know who was involved in Hani’s assassination. With Walus being set free, their dream will never be fulfilled!
What does the SACA’s decision do to the social cohesion and nation building projects? Can the nation be united when questions such as the ones listed above remain unanswered? The fact that to this day Black people are being shot at by their white counterparts who claim that they mistook them for monkeys, hippos, etc. makes this case more pertinent. In a way, Hani’s assassination and the killings of other Black people many years after his demise derail all the processes meant to promote social cohesion and nation building.
Even President Cyril Ramaphosa has weighed in on the SAC’s decision. Commenting on this issue while completing his state visit to the UK, Ramaphosa referred to the SCA’s decision as ‘disappointing’. That in itself means that those who are opposed to the decision are not only driven by irrational emotions. On the contrary, they are being rational and are driven by their patriotism. The reality is that it will be difficult to build this country and promote social cohesion for as long as decisions such as the one which forms the subject of this article are made.
Social cohesion and nation building need all hands on deck – judges included!
The concerns raised above should not be misconstrued to mean that judges should not be given the space to do their job. Chapter 8 of The Constitution of the Republic of South Africa (Act 108 of 1996) focuses on courts and administration of justice. Sect. 165(i) states that “The judicial authority of the Republic is vested in the courts.” Building on this, Sect. 165(2) provides more detail by stating that “The courts are independent and subject only to the Constitution and the law, which they must apply impartially and without fear, favour or prejudice.”
Surely, the content of the Constitution outlined above cannot be contested. But the reality is that judges cannot apply the law in a vacuum. First and foremost, judges are human beings.
As such, they also do make mistakes in their interpretation of the law. It is for this reason that different courts pass different judgements on the same matter after having looked at the same evidence and after having referred to the same sections of the Constitution.
Given this line of thought, it would be erroneous at best and foolhardy at worst to assume that all the decisions made by judges are correct and should thus be taken at face value. The two cases referred to above (that of Zuma and the one concerning Walus) and the subsequent reactions to the judges’ decisions buttress the view that judges cannot act out of context. Had judges removed emotions from some of their decisions in 2021, the country would have averted the looting that engulfed KZN and Gauteng.
Now, should society forgo social cohesion and nation building just because it wants to let judges do their job uninterrupted? I don’t think so. The reality is that the SCA’s decision to release Walus without divulging the truth is legally sound but failed to consider the context and the likely impact it would have on social cohesion and nation building. What is preventing Walus from healing the Hani family and the nation by speaking the truth about those who planned Hani’s assassination?
Bheki Mngomezulu is Professor of Political Science and Deputy Dean of Research at the University of the Western Cape.
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