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Justice Minister Michael Masutha acted in accordance with the law when he denied terminally-ill convicted killer Clive Derby-Lewis parole, the High Court in Pretoria heard on Monday.
“We submit that the decision by the first respondent [Justice Minister Michael Masutha] was a rational decision taken in accordance with the law in consistency with the requirements of the controlling legislation,” advocate Marumo Moerane SC, representing Masutha, told Judge Selby Baqwa.
Moerane was responding to an urgent motion launched by Derby-Lewis, who is seeking release on medical parole.
The lawyer said Masutha’s decision should not be reviewed or set aside through the judicial process.
“It is common cause the applicant is suffering from a terminal disease that is lung cancer, which is inoperable with marginal response to concurrent chemotherapy and radiotherapy,” said Moerane.
“We submit that however there is no failure of chemotherapy or radiotherapy. There is just marginal response.”
Among other reasons for denying parole, Moerane said Masutha was of the view that Derby-Lewis had not shown remorse “for his heinous act”.
Baqwa then asked Moerane to explain how Derby-Lewis’s repeated apologies could be discounted.
“At what stage does one say a person has been remorseful? He [Derby-Lewis] has said so and that is as much as he can say. On what basis does the minister discount the expressions put in front of him,” said Baqwa.
Moerane responded: “The first respondent was not satisfied that the applicant has shown remorse for the crime committed by him. The first respondent was accordingly not satisfied that the requirement in the [Correctional Services] Act was met for purposes of placement on medical parole”.
“Our broad submission is that the applicant was just paying lip service to remorse. To use a colloquilism, they say talk is cheap. The proof of the pudding is in the eating.”
Stage 3 cancer
Earlier on Monday, Derby-Lewis’s representative advocate Roelof du Plessis narrated his “dying” client’s condition.
“The recommendation of the medical parole advisory board refers to a stage 3b cancer of the right lung with probable or inconclusive spread to the left adrenal glands, is inoperable and there is marginal response to concurrent chemo and radiotherapy with poor prognostic features,” said Du Plessis.
“The medical aid parole advisory board took into consideration the age and gender of the patient because men die earlier than women currently, my lord. They took into consideration the history of the tumour and co-mobilities, hypertension, congestive cardiac failure, prostate cancer which is in remission, skin cancer and on the basis of that they eventually recommended medical parole.”
Derby-Lewis is currently serving a life sentence for his role in the assassination of SA Communist Party (SACP) leader Chris Hani in April 1993 and has repeatedly been denied parole.
“This case is about a terminally-ill man who wants to die among his family and friends,” said Du Plessis.
Du Plessis argued that Masutha should have implemented the recommendation of the board and released Derby-Lewis.
In January, Masutha had announced that there were several problems with a medical parole bid by Derby-Lewis.
“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,” Masutha said at the time.
Masutha told reporters in January that the medical parole board had recommended that Derby-Lewis be released.
“In making my decision [to decline parole] I took into account the applicable legislation, recommendations made by the board as well as the submission made by Mrs Hani and the SACP,” the minister said at the time.
Masutha said the parole board indicated that Derby-Lewis suffered from stage three b cancer of the lung.
“This finding and recommendation appears to be oblivious of the fact that in the Act, read with relevant regulations, it is an inmate with malignant cancer stage four with metastasis, being inoperable or with both radiotherapy and chemotherapy failure that qualifies,” he had said.
“The rationale of the board’s conclusion in this regard is, on the face of it, difficult for me to comprehend.”
Hani’s widow Limpho sat attentively in court, a row ahead of Derby-Lewis’ wife Gaye.
The matter continues on Tuesday. – ANA