JOHANNESBURG – After nearly 30 years behind bars, Janusz Walus, the man who killed South African Communist Party (SACP) chief Chris Hani, goes to be a free man.

The Constitutional Court on Monday handed down a ruling which successfully noticed Walus granted parole.

“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,” the unanimous judgment penned by Chief Justice Raymond Zondo read.

“However, I have also borne in mind that, when the fathers and mothers of our constitutional democracy drafted our Constitution and included in it the Bill of Rights, they 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. They drafted a Bill of Rights that conferred fundamental rights on everyone, including those who had supported apartheid with all their hearts.”

Hani was gunned down outside his Boksburg home on 10 April 1993, as he was getting out of his car.

Walus was arrested shortly afterwards, after a woman who was driving past saw him and contacted the police.

Former South African Conservative Party MP Clive Derby-Lewis, who provided Walus with the firearm he used to kill Hani, was subsequently also arrested.

Both Walus and Derby-Lewis applied for amnesty during the Truth and Reconciliation Commission (TRC) and claimed they were acting at the behest of the South African Conservative Party. Both their applications were, however, denied, with the commission finding that this was not the case.

Derby-Lewis suffered from lung cancer and was granted medical parole in May 2015. He died in November the following year.

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Walus, meanwhile, has made several unsuccessful applications for parole, with Justice Minister Ronald Lamola having refused his latest one (the subject of the current court proceeding) in 2020.

He tried to take this decision on review in the Pretoria High Court but Judge Elizabeth Kubushi dismissed his application. He subsequently approached the Supreme Court of Appeal (SCA) but was again unsuccessful. He then turned to the country’s apex court, where the case was argued in January and judgment handed down on Monday.

In refusing Walus parole in 2020, Lamola found all the factors he had to consider were in Walus’ favour – save for two. The two that he said counted against Walus included remarks made by the trial court during sentencing and those made by the SCA when it dismissed Walus’ appeal against his conviction and sentence.

But the court found these were, in fact, not relevant.

These factors counting against Walus also included the nature and seriousness of the crime.

In court, Walus had argued that there was nothing he could ever do to change either of these and that if the minister’s decision stood, that meant he would never get parole.

Zondo agreed.

“In his answering affidavit, all the minister said was in effect that it was not his position that the applicant would never be released on parole. He never explained how he could release the applicant on parole in the future when the reasons that prevented him from releasing the applicant on parole in 2020 would still be present and would not have changed,” the Chief Justice said.

“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 reach the conclusion 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 will he justify his two conflicting conclusions on the same facts?”

Zondo stated Lamola had not explained any of this to the court docket.

“His failure to explain this renders his decision to deny the applicant parole inexplicable,” he stated.

“If it’s inexplicable, it follows like night time follows day that it’s irrational. There is not any connection between the train by the minister of his energy and the goal for which the laws conferred that energy on him. If there isn’t any connection between the minister’s train of the energy and the goal of the energy conferred upon him, his determination is irrational.”

The minister’s decision was reviewed and set aside and he was ordered to release Walus on parole within 10 days “on such terms and conditions as he may deem appropriate”.

The minister was additionally ordered to pay prices.