The killer of Bond University student Leigh Matthews, Donovan Moodley, has once again received a lifeline.
The Gauteng High Court, Johannesburg has ordered that he get another parole hearing, this time before a differently constituted parole board.
Judge Stuart Wilson said Moodley had not had a fair parole hearing earlier this year, when he was refused parole.
It had emerged that one of the parole board officers had fallen asleep for a significant portion of the hearing. The colonel’s phone had buzzed at least twice but that had not woken him, Moodley complained when he turned to court.
He said that eventually, after what must have been at least several minutes, the officer, one Colonel Van Straten, had woken up only when another board member had tapped him on the shoulder.
Moodley is serving a life sentence for killing Leigh in 2004. He had pleaded guilty to murder, kidnapping and extortion in 2005.
Judge Wilson noted that it was the second time Moodley has impugned the decision of the parole board before him (the judge).
A year ago, almost to the day, the judge set aside the board’s first decision to defer Moodley’s parole application. Moodley subsequently had another hearing at the end of March this year, where he was again refused parole.
Judge Wilson said that what the record of the latest parole hearing revealed was damning.
The judge said that based on the undisputed facts, Moodley’s legal representative had been treated so badly that he had been prevented from providing any meaningful assistance to his client at the hearing.
“If that were not enough to vitiate the board’s decision, it is necessary to point out, again on the undisputed facts, that a voting member of the parole board slept his way through a significant portion of the March 28 hearing. That, too, means that the decision (not to grant parole) cannot stand,” the judge said.
Judge Wilson said the lawyer who had appeared for correctional services had not attempted to dispute either of the facts or defend the “deplorable conduct” of the board.
That meant that, yet again, the parole board’s decision must be reviewed and set aside, the judge said.
He said the issue was whether the board should be afforded a third opportunity to give Moodley “the fair hearing to which he has now been entitled for several years”, or whether the court should order his release.
The judge said that from the start of Moodley’s parole hearing in March, the chairperson of the parole board had demonstrated no appreciation for the duties of Moodley’s lawyer.
“The chairperson’s attitude to Mr Moodley’s legal representative ranged from the high-handed to the belligerent. Mr Moodley was not allowed to sit with his legal representative. He was told that he may only consult with his legal representative during breaks. Mr Moodley’s legal representative’s attempts to intervene on his client’s behalf were summarily shut down. A fair hearing was impossible in these circumstances,” the judge said.
In turning to the napping parole board member, the judge said that according to Moodley, the man had been in such a deep sleep that he had not not even stirred when his phone had buzzed.
“Mr Moodley’s account of Colonel van Straten’s somnolence was not disputed in the respondents’ answering affidavit. Colonel van Straten did not himself depose to an affidavit to dispute it. The facts Mr Moodley alleges are accordingly uncontested,” the judge said.
Under the law, each parole board member had to vote for or against parole. Where it was demonstrated on the facts that a member of the board was absent or unconscious for any significant part of the hearing, the onus fell on the board to demonstrate that that had made no difference. In that case, that onus had not been discharged, the judge said.
The judge said the parole board could not yet again decide on Moodley’s fate.
“Having been given two opportunities to afford Moodley a fair hearing followed by a demonstrably rational decision, the board has shown itself incapable of doing so,” the judge said.
The board had shown itself to be incompetent to process Moodley’s case.
“I cannot say whether this bespeaks a more fundamental problem with the way the Johannesburg Correctional Supervision and parole board operates, or whether there is something about Mr Moodley’s case (its high profile, perhaps, or the deeply disturbing nature of Mr Moodley’s crime) that is just too much to handle.”
The judge added that whatever the truth, it would not be “just and equitable” for the court to subject Moodley, or the Matthews family, to the parole board’s “mismanagement of its functions once again”.
“The Matthews family, in particular, must look upon this process with anguish and disbelief. They, too, have a right to a rational and fair hearing before the parole board. They, too, have been victims of its failure to fulfil its most basic functions in this case,” Judge Wilson said.