BusinessDay.gif Astounding that judge refused leave to appeal Franny Rabkin, Business Day, 26 April 2016 Judge Nicoline Janse van Nieuwenhuizen has been on the receiving end of some blistering rebukes for her decisions in the parole application of Janusz Walus, the man who murdered struggle hero Chris Hani. The High Court in Pretoria set aside Justice Minister Michael Masutha's decision to refuse parole to Walus, and ordered his release within 14 days. And then, in a decision I found astonishing, refused leave to appeal. It was surprising because lower court judges are usually quite modest about their judgments, erring on the side of caution that another court may have a different view. More so in controversial cases. I am not, as others have, accusing the judge of being guided by an ideological predisposition or some other bias. I do think there is a special duty on judges in SA - black and white, male and female - to reflect on where they come from, and on the subconscious impulses that can affect their decision-making. And I do think that, in a case like this - an emotive one, where the gaze of the nation is on you - a white judge with less than three years on the bench could have shown a little more modesty. But even if Judge Janse van Nieuwenhuizen had introspected until the cows came home (as she may have), even if her judgments had been written by a black judge with 20 years on the bench, I would still be dismayed by them. Deciding whether to grant parole is not a mechanical process. It involves weighing up a number of competing considerations and, ultimately, making a value judgment. The law gives this job to the justice minister, not to the courts. Of course, a court may set aside the minister's decision on a number of grounds - including the ones Judge Janse van Nieuwenhuizen used. She found the decision unreasonable and irrational. But if a judge is going to order that a murderer, any murderer, be released on parole, she needs to explain her decision through a reasoned judgment. I have now read the earlier judgment four times and still cannot glean an explanation for how the minister's decision was "so unreasonable that no reasonable person could have" taken it. This is what is required by the Promotion of Administrative Justice Act to set aside a decision on that basis. At best, the judgment said the minister was meant to weigh up all factors "equally according to their merits". Instead, he had focused exclusively on the heinousness of the crime, said the court. So okay, if the judge had been in the minister's shoes, she would have weighed it all up differently. But that is different to saying no reasonable person could have done as he did. In her second judgment, refusing leave to appeal, Judge Janse van Nieuwenhuizen still did not really explain what was so desperately unreasonable about the minister's decision - despite quoting the Constitutional Court at length. Then, instead of sending the decision back to Masutha to be taken properly, the judge took the decision herself. A court is allowed to substitute its own decision for that of the decision maker, but only in exceptional circumstances. Again, although Judge Janse van Nieuwenhuizen spends a considerable portion of her judgment on this, I am left guessing as to why she decided that it was a foregone conclusion that the minister would only refuse parole again. The minister did not appeal this aspect of the judgment, but it is the part that troubles me the most. Like everyone else, judges can get it wrong. And judges can get it right, but for the wrong reasons, or with incoherent reasons, or with insufficient reasons. That is why we have an appeals system. Refusing leave to appeal is what I really do not understand. Wow. Plus, here we are talking about the murder of one of the most loved liberation heroes in SA, a murder that still rankles, a murder that took SA to the brink of civil war. Wow, wow, wow. It does not feel good to be so critical of a judge. But big things are at stake here. Judicial legitimacy depends on reasoned judgments. Judges have to take unpopular decisions sometimes. But when they do so, a carefully reasoned judgment means they can still hold the respect of the public. When a judgment is not properly reasoned, it opens the way for questions to be raised about the judge's ideological disposition, even if they are unfair. . Rabkin is law and constitution writer From: http://www.bdlive.co.za/opinion/columnists/2016/04/26/law-matters-that-judge -refused-leave-to-appeal-is-astounding -- -- You are subscribed. This footer can help you. Please POST your comments to [email protected] or reply to this message. 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