Johannesburg - The need for restorative justice, the discretion of a minister and the independence of a judge are being raised in a court case arising from the failed parole application of an apartheid assassin.
Ferdi Barnard, a former member of the apartheid military’s covert Civil Co-operation Bureau hit squad, is heading back to court to try again for parole.
In February, the National Council for Correctional Services recommended that Barnard be granted parole, but a week later, Justice and Correctional Services Minister Michael Masutha refused him parole.
Barnard applied to the high court in Pretoria to overturn Masutha’s decision, but last month lost the case.
He is now bringing an application for leave to appeal against that judgment.
Barnard was sentenced in 1998 to two life sentences plus 63 years for the May 1989 murder of Wits academic David Webster, the 1991 murder of his business acquaintance Mark Francis and the 1989 attempted murder of activist lawyer Dullah Omar.
He had been on parole at the time, having been jailed for two murders in 1984. The application is being brought by Pretoria attorney Julian Knight on behalf of Barnard.
The application outlines the grounds for appeal, raising a number of issues with Acting Judge Raylene Keightley’s judgment.
The issue of restorative justice was raised in the appeal papers, arguing that the court was wrong to regard this as an inherent part of the parole process and that it was contrary to a 2009 judgment which found restorative justice wasn’t legally required.
Restorative justice involves finding and consulting with the victims or their families before parole is granted; in Barnard’s case, some of these couldn’t be found.
The minister’s discretion is under scrutiny, focusing on the reasons for his refusal and whether those reasons were recorded in a document at the time of the decision or only later in his affidavit to the court.
The appeal also argues that the minister acted in bad faith and “shifted the goalposts with reference to the reasons for the refusal of parole”. It also says the court had allowed him to “raise new and different reasons for refusal of parole and make different recommendations to those that have been made by the previous minister on the same facts and the same application”.
The judge’s own independence was also challenged.
The appeal papers argue that Judge Keightley “did not disclose before the commencement of the hearing that her current husband was a member of the End Conscription Campaign, an anti-apartheid movement in 1985, of which organisation Dr David Webster was a founding member in 1983” and, if Barnard had known this, would have called for her recusal.
No date was set for the matter.