Could Waluś sue for unlawful incarceration? Maybe, but he just wants to get on with life

Though Janusz Waluś has, in theory, reasonable grounds to sue the state for unlawful detention, his lawyer has indicated that Chris Hani’s assassin has no desire to get involved in a lengthy lawsuit.

Proving that his continued detention beyond the period after which he became eligible for parole was unlawful has a very slim prospect of success, and would likely be an impractical and daunting exercise, according to legal experts.

The Polish immigrant who assassinated SA Communist Party leader Hani outside his Boksburg home in 1993 had served 29 years of the life imprisonment term for the crime.

Janusz Waluś’ parole

There has been widespread public outcry and attacks on the Constitutional Court, particularly Chief Justice Raymond Zondo, for releasing Waluś on parole.

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Waluś was convicted in October 1993 and sentenced to death for killing Hani, but his sentence was later commuted to life imprisonment after the death penalty was abolished. 

He became eligible for parole in 2005, but several attempts to secure parole have been unsuccessful.

The Constitutional Court this week ruled that Justice Minister Ronald Lamola’s March 2020 refusal to grant Waluś parole was “irrational and it falls to be reviewed and set aside”

Grounds for damages

Because he had been incarcerated for longer than it is required by the law, University of North West political science professor André Duvenhage believes Waluś has grounds to sue the state.

“The reality of [Waluś] situation is that his parole is up to 15 years overdue, if we followed the normal legal process. So, the Constitutional Court decision was the right one. In fact, I think he has grounds to sue government,” he said.

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Constitutional law expert Dr Llewelyn Curlewis agreed, but said Waluś’ potential claim for damages for unlawful detention was possible in theory, but probably not in practice.

He explained that Waluś’ was incarnated rightly, for the crime he committed and that the only question is whether he was imprisoned longer than he should have been.

Waluś’ potential claim, he said, could only be that a reasonable court would have given him parole and his freedom.

“He was eligible for possible parole 15 years ago and in terms of rules, regulations and legislation, he was incarcerated for more than 25 years. He was incarcerated for 29 years, more than what was considered life imprisonment in those days. So, I think it is on those bases that there is a possibility, in theory at least, for such a civil law suit,” Curlewis said.

He said Waluś could argue that various ministers and commissioners over the years did not properly apply their minds, nor granted him the same indulgences in comparison to similar inmates.

Impractical

Curlewis said this was, however, the legal theory, yet he doubts there is a reasonable prospect of success.

“The reason I doubt this would happen, it might be one of the parole requirements that would be forced upon him in the next 10 days when he is released, that he undertakes to indemnify the state from civil lawsuit. I would have included that in the parole requirements if I were commissioner,” he said.

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Secondly, Curlewis said Waluś was a foreigner, so if he is deported immediately upon his release, that will take care of a whole lot of problems regarding a possible lawsuit against the state.

He said not only would it be costly, but also impractical for Waluś to conduct a civil lawsuit from another country.

Curlewis said also there was no amount of money that would bring back all the time he spent in prison and that the lawsuit could drag on for up to 10 years.

“… it will be opposed by the state, make no mistake, everybody will appeal the matter to the highest court. Does he really want to pursue a matter for 10 years in South Africa, from another country? Not to mention the legal expenses, the time, the effort and the trauma. From a practical point of view, it will not be [an] easy procedure to follow. I would advise him against it if I were his legal advisor.”

Waluś cannot prove malice

Waluś’ lawyer Julian Knight agreed, saying there were no reasonable prospects of success for a civil damages claim, as he would have to prove malice.

He explained that his client was sentenced to life and that until he was released by the parole board, the minister or the court, his incarceration could not be deemed unlawful.

“It would be difficult to prove malice in this case. He cannot argue that his incarceration was unlawful. If he had been given a release date but kept in prison, then he could argue unlawful incarceration,” Knight said.

He said in any case Waluś was not interested in pursuing civil damages against the state as he now simply wants to continue with his life.

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