Letter from ZI Modise, Acting National Commissioner, Department of Correctional Services, to Wessel Basson, Front Nasionaal, October 20 2014:

Department of Correctional Services

REPUBLIC OF SOUTH AFRICA

Mr Wessel Basson
Front National/Nasionaal

Dear Mr Basson and members of Front National

RE: PETITION FOR RELEASE ON PAROLE OF CLIVE DERBY-LEWIS AND JANUSZ WALUS

Kindly refer to your petition dated 12 April 2014, 30 May 2014 as well as a follow-up enquiry dated 19 September 2014 regarding the release on parole of offenders Clive Derby-Lewis and Janusz Waluz.

The Department considered the matter and the following comments are made in response to your petition:

1. He already served an effective 21 years in prison. In terms Of South African law a sentence of 15 years is generally regarded as having served such a sentence.

Since the coming into force Of the 1998 Correctional Services Act inmates sentenced to life incarceration before 1 October 2004 had to serve a minimum detention period of 20 years before being eligible for consideration for placement on parole.

On 30 September 2010, the Constitutional Court made a ruling in the case of Van Vuuren vs Minister of Correctional Services and Others. This ruling has brought about a change in the manner in which inmates sentenced to life incarceration before 1 October 2004 must be considered for placement on parole.

Mr Derby-Lewis was sentenced in 1993-10-15, and as such falls into the category of offenders who benefitted from the Van Vuuren Judgment.

The effect of the judgment is that this category of offenders qualifies to be considered for placement on parole after having served at least 10 years, but placement on parole can only take place in exceptional cases before completion of 15 years.

On 15 April 2014 offender Clive Derby-Lewis had already served 20 years and 6 months of his sentence.

On a few occasions during his incarceration, the offender was considered by the Case Management Committee (CMC) and Correctional Supervision and Parole Board (CSPB) for possible placement on parole. However, it is important to note that in respect of offenders serving life sentence CSPB only has recommendation powers and the prerogative to either place an offender on parole or not rests with the Minister.

The mere fact that an offender is eligible for consideration for parole placement does not mean that conditional placement will be granted automatically.

Placement on parole/under correctional supervision is not a right an offender can lay claim to. However, such qualifying offenders have the right to be considered for possible placement on parole.

In determining whether to approve or not approve placement/release below mentioned factors are taken into consideration (Order 1 Chapter 26, paragraph 13):

Pre-sentence factors

• Crime history: The nature and extent of the current crime is therefore a determining factor in the consideration of the conversion of the sentence. The age at which the first crime was committed and his/her present age are also factors to be considered.

• Current imprisonment:

Remarks of sentence imposers (Presiding Officers):

In terms of Section 42 of the Correctional Services Act, the Correctional Supervision and Parole Board must thoroughly take the remarks into account which were made by the court at the time of sentencing, when it comes to the consideration of correctional supervision/day parole/parole. These remarks in the case of Magistrates on form J24 are of particular importance in the consideration of placement on/day parole/parole/conversion of sentence into correctional supervision.

Other aggravating factors which can be taken into account in the consideration process are, for extremely:

o The murder was committed with explosives or a dangerous weapon.

o The offender poisoned the victim with intent (planned crime).

Post-sentence factors:

The acquisition of purposeful skills which will greatly eliminate the chances of lapsing into crime again. For instance, the attainment of an artisan's certificate which will facilitate his/her appointment in a permanent position.

Meaningful improvement in self-control, as demonstrated by good behaviour over a long period Of time, sound working habits and sound human relationships,

Outstanding service rendered while in detention.

Acceptance of new responsibilities is an indication of a greater and improved ability to lead a life devoid of crime.

Making a contribution to a good community life in the Correctional Centre.

Constructive use of leisure time.

Positive support systems as shown by visits and support by family and/or friends;

Rendering exceptional service to the community.

Positive efforts to develop the community's auxiliary resources.

Study and the attainment of academic qualifications while in detention.

Diligent performance of work assignments.

Meaningful participation and visible progress with psychiatric/ psychological, social and self-help programmes.

Meaningful improvement in the personal circumstances which caused the crime.

A change in the circumstances for instance, the personal, economic and social factors or environment which gave rise to the crime.

2. He has been receiving medical treatment for skin cancer, prostate cancer, hypertension and a gangrenous spot in his leg for almost 5 years now. He underwent life-saving operations on more than one occasion.

Release on Medical Parole is subject to the recommendations by Medical Parole Advisory Board and the approval by Minister (if the MPAB examined the offender and recommended release on Medical Parole),

The MPAB considered one application for medical parole for offender Derby-Lewis but did not recommend medical parole release, based on its findings.

Mrs Derby-Lewis and her Legal representative recently submitted another application for medical parole on behalf Of Mr Derby-Lewis, but the application form was not completed correctly and they had a meeting with the Area Commissioner of Kgosi Mampuru II on 06th May 2014 during which the correct completion of medical parole application documents were explained to them, as soon as the application is received it will be referred to the MPAB for consideration.

3. He indicated at least twice that he would want to meet with the widow of Mr Hani to express his regret for his action, thereby indicating that his rehabilitation is complete. These requests Mrs Hani refused.

Restorative Justice Policy aims at promoting healing and restoration of relationships amongst offenders, families, victims and communities, whilst at the same time correcting offending behaviour.

It should also be noted that Restorative Justice Intervention is a voluntary participation and shall be offered with consent of offender and victim, and in an instance where the victim refuses, it cannot take place, but offenders' attempts will be taken into account during consideration.

It is imperative to indicate that it is not only Restorative Justice process that will have an influence on the decision of the Parole Board and Minister. The balance Of the outcome of Restorative Justice process and the following factors will direct the decision of the Parole Board and Minister:

The offender's response to development and treatment programmes associated with rehabilitation and correcting offending behaviour:

The existence and quality of support systems in the community;
The probability of re-offending;

The risk that the Offender may pose to the community at large; and

The risk to complainants,

All other factors mentioned on paragraph 1 above.

4. He was attacked by fellow inmates with sharp weapons on two occasions in February and March of 2014. Such an attack could prove to be extremely harmful to his mental and physical health, seeing that he is already 78 years old and in ill health.

Correctional Services Act No. 111 of 1998 Section 73 (6) (a) (vi) - Length and form of sentences: "any term of incarceration, excluding persons declared dangerous criminals in term of section 284A of the Criminal Procedure Act, may be placed on day parole or parole reaching the age of 65 years provided that he or she has served at least 15 years of such sentence.

The mere fact that an offender is 78 years old and eligible for consideration for parole placement, it does not mean that conditional placement will be granted automatically. Placement on parole/under correctional supervision is not a right an offender can lay claim to.

In respect of any sentenced offender serving a sentence of life incarceration, the Parole Board makes recommendations to the Minister on granting day parole, parole or medical parole. In terms of Section 78 (1) of the Correctional Services Act 111 of 1998, the Minister of Correctional Services may, having considered the record of the recommendation Of the Parole Board, grant parole or day parole and prescribes the conditions of community corrections in terms of section 52.

All reported cases of attacks and assaults by an offender to another are investigated and based on the outcome of the investigation appropriate actions are taken.

5. The Truth and Reconciliation Commission stated that the crime which he was punished for had no political motive. The prisoner thus qualifies for medical parole as was with the case with Mr Jackie Selebi and Mr Schabir Shaik, who were released on a short time span after their respective sentences were delivered based on medical reasons.

Release on Medical Parole is subject to the recommendations by Medical Parole Advisory Board and the approval by Minister (if the MPAB examined the offender and recommended release on Medical Parole).

The MPAB considered one application for medical parole for offender Derby-Lewis but did not recommend medical parole release, based on its findings.

6. The legal representative of Mr Derby-Lewis already lodged 6 applications for Medical parole, to no avail.

Release on Medical Parole is subject to the recommendations by Medical Parole Advisory Board and the approval by Minister (if the MPAB examined the offender and recommended release on Medical Parole).

The MPAB considered one application for medical parole for offender Derby- Lewis but did not recommend medical parole release, based on its findings.

7. The Government of South Africa made Human Rights part of the legacy of a Democratic state. We urge the Government to prove that they are serious about exercising the citizen's right to humane treatment as protected by the Human Rights Charter.

The Department treat all offenders in a human manner and any reported cases of human rights violations are investigated and an appropriate action is taken based on the outcome of the investigation.

8. In 2008 his application for parole was approved by the Parole Board. It was never executed.

On a few occasions during his incarceration, the offender was considered by the Case Management Committee (CMC) and Correctional Supervision and Parole Board (CSPB) for possible placement on parole. However, it is important to note that in respect of Offenders serving life sentence CSPB only has recommendation powers and the prerogative to either place an offender on parole or not rests with the Minister.

9. DEMAND

9.1 Release of a sentenced offender is subject to procedures mentioned above.

9.2 VIP Protection is not within the mandate of the Department of Correctional Services.

It is trusted that the above information will put the matter into a better perspective.

ZI MODISE

ACTING NATIONAL COMMISSIONER

20 October 2014

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