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Pretoria - Clive Derby-Lewis's medical parole was denied partly because he missed one cancer stage, the High Court in Pretoria heard on Tuesday.
The dispute centres on how sick Derby-Lewis actually is, and whether he is remorseful for his part in killing SA Communist Party leader Chris Hani.
''With respect, he does not have Stage 4 cancer," said Graham Bester, counsel for Justice and Correctional Services Minister Michael Masutha, who had denied him parole on January 30 this year.
Derby-Lewis, who has served more than 20 years for the murder of Hani, wants to be allowed out on medical parole.
The court has been told that in December doctors said he had six months to live.
''There is a question mark, and a serious question mark I submit, with respect against Stage 4 diagnosis,'' said Bester.
‘No remorse’
When Masutha denied him parole in January, the minister said it was because he had not shown remorse, because he had Stage 3b lung cancer, and not Stage 4 and that it was not his name on a laboratory report regarding the cancer.
To be considered for medical parole, in terms of the prisons regulations, a prisoner must prove Stage 4 cancer.
Bester took Judge Selby Baqwa through the finer details of Derby-Lewis's medical report as interpreted by a nuclear medicine expert Dr Mike Sathekge. Sathekge was one of three independent highly qualified specialists, including Dr Umesh Lalloo and a Prof Wadee, who prepared a medical report on him.
Two found that he had Stage 4 lung cancer, and it had spread to the left adrenal gland. But Sathekge disagreed, and said that although he found evidence of Stage 3b cancer, he could not find evidence of its spread, which changes it from Stage 3b to Stage 4. The spread to another organ or bones ''outside the neighbourhood'' is what classifies cancer as Stage 4, Bester explained.
‘Not good enough’
Even if it was metastasis - a spread from the lung to an adrenal gland in the case of Derby-Lewis, this was not good enough. It had to be a ''distal or distant metastasis'' - spread to the brain or liver or other organs, or to the bones. To be ''considered'' for Stage 4, that was the level of cancer that had to be found, he said.
Derby-Lewis was first diagnosed in an ''incidental finding'' on his lung when he was taken to Eugene Marais Private Hospital to be treated for a stabbing in March 2014.
The report by the three was presented to the Medical Parole Advisory Board which is made up of 10 other medical specialists, and after some debate and deliberation, Derby-Lewis missed being considered for parole by one cancer stage.
Bester said that in terms of the regulations, his co-morbidities such as blood pressure and heart problems, prostate cancer which was in remission, and skin cancer which had been excised, did not count.
He said that if there was a dispute over this, Baqwa, who could set aside the denial of medical parole, could call the doctors to give oral evidence.
‘No unfairness’
Bester also denied that Derby-Lewis had been treated unfairly regarding the finding that he was not remorseful.
''This test of fairness, this test which underpins the ''Audi Alteram Partum'' principle has been satisfied, there is no unfairness. The applicant is not being taken by surprise,'' said Bester.
'Audi Alterum Partun’ is a Latin phrase for the right to be treated fairly in the justice system and to administrative justice. He said that Masutha had not received any documents from Derby-Lewis expressing his remorse, even though he knew that Hani's widow Limpho Hani would oppose his release.
On Monday, Derby-Lewis's lawyer Roelof du Plessis submitted reams of documents from a pastor, psychologists and social workers repeating that Derby-Lewis was remorseful for what he had done, and for the harm to the Hani family.
He also extended an invitation to Hani's widow Limpho to visit him at the Eugene Marais Private Hospital so that he could apologise to her face to face. But on Tuesday, Bester said it was not Masutha's fault that Derby-Lewis's previous lawyers may have let him down in not getting this information to Masutha.
Parole opposed
Mrs Hani had written an affidavit in 2009 opposing parole, and he had been told about this. He also got her submissions on him being placed on parole in 2011 and in January this year knew that Masutha was considering parole and that Mrs Hani would make a submission, but he did not send any information through. He denied that Masutha was biased when he turned down Derby-Lewis's applications for parole.
"The minister applied his mind,'' said Bester.
Derby-Lewis was arrested for providing the gun used by Janusz Walus, a Polish immigrant, to kill Hani in the driveway of his Boksburg home on April 10, 1993.
The Conservative Party Derby-Lewis belonged to was opposed to racial integration so it and the SACP opposed each other politically.
He was found guilty of conspiracy to murder and sentenced to death, but this was commuted to a life sentence after South Africa abolished capital punishment. At the time he said he was acting ''in defence of my people, who were threatened with a Communist takeover". He was also denied amnesty.
