Parole decision on inmates Ferdi Barnard, Eugene Alexander de Kock and Clive Lewis

Members of the media
Fellow South Africans

Today I announce my decisions on the parole applications of Messrs Ferdi Barnard, Eugene de Kock and Clive Derby Lewis, inmates incarcerated in our correctional centres and serving sentences for various crimes. All these matters have attracted publicity here and abroad because of the severe impact caused by the crimes they committed which are well documented.

It is for this reason that we elected to communicate my decisions in this platform. In as much as the timing of these decisions is informed by court orders of the North Gauteng High Court which were based on an agreement between their legal representatives and my office, it is important to indicate that all their parole applications were under consideration by relevant structures within Correctional Services.

Ferdi Barnard

On 4 June 1998, after being found guilty of having committed serious crimes, including the murder of Dr David Webster, who was an anthropologist at the University of Witwatersrand, Mr Barnard was sentenced to 2 terms of life and 63 years imprisonment. That particular murder was committed whilst Mr Barnard was on parole for a previous murder. On 28 November 2014 he applied to be released on parole.

While his application was due to be considered by the relevant structures within Correctional Services, he approached the North Gauteng High Court in a bid to have his application considered and a decision made by me within a specified period of time. However, an agreement which became an order of court was reached by parties. The court order required the National Council for Correctional Services (NCCS) to consider the application on or before 19 December 2014 as required by the law.

In terms of the said order, I am required to make a decision on or before 31 January 2015. This meant that I could only make my decision once I had received the recommendation of the NCCS and the profile of Mr Barnard. The NCCS has written to me indicating that they needed more time to consider the application and the profile and are therefore unable to submit recommendations to me within the stipulated time frame.

This means that I am unable to make a decision in terms of the court order. In this regard, I am advised that arrangements have been made between the legal representatives of the parties to have the order varied and the dates extended. I am also advised that all concerned have agreed to such extension. In the circumstances, no decision has been made on Mr Barnard's parole application.

Eugene Alexander de Kock

In respect of Mr De Kock, you will recall that in July 2014 I declined to place him on parole as at the time the victims or their families had been consulted, as required by law. I had directed that a further profile be resubmitted not later than 12 months in order to afford victims, the offender and other relevant structures time to participate in and finalise all outstanding processes.

I have now reconsidered the matter and noted the various positive reports compiled by the relevant professionals and bodies. I have noted the progress he is reported to have made to improve his skills while in custody as well as the assistance Mr De Kock is said to have provided and continues to provide to the Missing Persons Task Team of the National Prosecuting Authority (NPA). I am also satisfied that comprehensive consultation with affected families has been done. My decision is therefore informed by all these important factors.

However, I need to remind all of us that parole does not reduce the sentence imposed by the court. Offenders who are placed on parole are expected to comply with set conditions and failure to comply with these may result in the offender, depending on the frequency and seriousness of the violations, having his/her parole revoked to serve the remainder of the sentence in a correctional facility.

Also in the interests of nation building and reconciliation, I have decided to place Mr De Kock on parole. He has requested that the actual date and conditions of his release should not be made public. I have acceded to his request and plead with members of the media to respect that.                                                      

Clive Derby Lewis

I will now deal with the medical parole application of Mr Clive Derby Lewis.

Mr Derby-Lewis is serving life imprisonment at Kgosi Mampuru II Correctional Centre, following his conviction of murder for the killing of former South African Communist Party (SACP) Secretary General, Mr Chris Hani in April 1993. On 9 July 2014 his application for placement on medical parole was considered by the Medical Parole Advisory Board (the Board). 

He was found to be suffering from lung cancer and undergoing chemotherapy. The Board could not agree on whether the cancer was spreading and therefore decided that he should continue with chemotherapy to assess the effect thereof. The Board also decided to engage other specialists to examine him and provide an independent opinion on the nature and extent of his ailment. 

In November 2014, the offender brought a court application for placement on medical parole.  Mr Hani's widow, Mrs Limpho Hani, and the SACP joined the court proceedings as interested parties. On 2 December 2014 the court made an order in terms of which I was directed to make my decision on the matter on or before 31 January 2015. The order also required the Board to consider his medical parole application and make written recommendations to me on or before 15 December 2014.The Board has made a recommendation that I should place the offender on medical parole.

I have now considered the offender's application.  In making my decision, I took into account the applicable legislation, recommendations made by the Board as well as the submission made by Mrs Hani and the SACP. 

Our country is a constitutional democracy which is governed by the rule of law. Therefore, in reaching my decision, I have taken into account the relevant laws and prescripts that regulate the medical parole process, in particular, the provisions of the Correctional Services Act 111 of 1998 and the Regulations promulgated thereunder. This legislative framework guides the Medical Parole Advisory Board and me in considering an offender's application. 

Section 79(1) of the Act provides that a sentenced offender may be considered for placement on medical parole by, among others, the Minister, if: 

(a)  such offender is suffering from a terminal disease or condition or if such offender is rendered physically incapacitated as a result of injury, disease or illness so as to severely limit daily activity or inmate self-care;

(b)  the risk of reoffending is low; and

(c) there are appropriate arrangements for the inmate's supervision, care and treatment within the community to which the inmate is to be released. 

Regulation 29A of the Correctional Services Regulations GNR 323 of 25 April 2012 published in Government Gazette 35277 of the same date, provides for medical conditions for which an offender can be considered for placement on medical parole. Sub-regulation 5 provides as follows: 

In the assessment by the Medical Parole Advisory Board, the Board must consider whether the offender is suffering from:

(b) non-infectious conditions
(i) malignant cancer stage IV with metastasis being inoperable or with both radiotherapy and chemotherapy failure; 

In its recommendation, the Board states that Mr Derby-Lewis is suffering from stage lll b cancer of the lung and this serves largely as a basis upon which it recommends his placement on medical parole. This finding and recommendation appear to be oblivious of the fact that in terms of the Act, read with the relevant regulations, it is an inmate with malignant cancer stage lV with metastasis being inoperable or with both radiotherapy and chemotherapy failure that qualifies for placement on medical parole. The rationale of the Board's conclusion in this regard is on the face of it difficult for me to comprehend.

There is nothing to suggest that Mr Derby-Lewis' condition is such that he is rendered physically incapacitated as a result of injury, disease or illness so as to severely limit daily activity or self-care as provided for in the Act.

Upon further perusal of the medical reports, I established that the name on the Pathologist's report is not that of offender Clive Derby Lewis. In an affidavit he submitted to the Board he states that he used a different name for security reasons. It also appears from his affidavit that, coincidentally another patient, bearing the name used by the offender was admitted at the same hospital during his admission for treatment for a similar medical condition. This prompted him to revert to an earlier pseudo name that he had used when he was first admitted. It must be stated that there are no supporting documents attached from the Department in support of these name changes. This raises uncertainty on the identity of the patient whose samples informed the recommendations of the Board.

I am also not satisfied that requirements of Section 79(1)(b) have been complied with as there is no indication on the profile as to whether the offender has shown remorse for the crimes committed.

In the circumstances, The Board's recommendation to place the offender on medical parole is not approved. This decision will be communicated to his legal representative as required by the court order.

Political Pardons Process

You will recall that a Special Dispensation was adopted in 2007 in order to facilitate the granting of Presidential pardon for alleged political offenders in terms of section84(2)(j) of the Constitution of the Republic of South Africa, 1996

After consultation with the office of the President we have resuscitated this process and it is now at an advanced stage. We shall announce details of this process in due course. In the meantime the Department of Correctional Services is finalising the processing of parole applications for all the remaining offenders who were identified for consideration under the said Dispensation in order to expedite their possible release on parole.

I thank You.

Statement issued by Mike Masutha, Minister of Justice and Correctional Services, January 30 2015

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