Who says South Africa’s political parties cannot all agree on something (apart from agreeing on the need for higher salaries for MP’s)? Responding yesterday to the decision of the North Gauteng High Court in the case of Centre for the Study of Violence and Reconciliation and Others v The President of the RSA and Another, the Centre’s Director, Hugo van der Merwe, said it was “astounding” and “bizarre” that all 15 political parties represented in the past Parliament were prepared to sanction a secret pardon process for supposedly politically motivated crimes committed after the cut-off date for amnesty granted by the TRC.
In the judgment Seriti J granted an interdict against the President prohibiting him from granting any pardon in terms of the “Special dispensation for Presidential pardons for political offences” until such time as the Applicants have been given access to the relevant application for a pardon and the proceedings and recommendations of the Pardons Reference Group and have been given an opportunity to make representations in that regard to the first respondent.”
The Pardons Reference Group – consisting of representatives of all political parties represented in the third Parliament – was set up by the President to advise him on the granting of these political pardons and agreed to do its work in secret and refused to hear representations from representatives of the victims of the crimes for which pardons were being sought. The President indicated that he would not be bound by the recommendations of this Group and that he would make an independent decision about the granting of each pardon in terms of section 84(2)(j) of the Constitution.
For constitutional law nerds like myself this is a facinating case. It is obvious that it would have been morally and politically more correct to give the victims an opportunity to make representations about the pardons. Granting political pardons is a highly emotive issue and has not always been dealt with in a consistent and morally tenable manner and giving the voiceless victims an opportunity to have their say might have helped to legitimise this process.
But having said that, I am conflicted about whether the judgment by Seriti J is correct.
He argued – quite plausibly – that the Promotion of Administrative Justice Act (PAJA) did apply to the decision of the President to pardon or reprieve offenders. This is because PAJA did not exclude such decisions (as well as decisions by the President to make appointments in terms of the Constitution and the law in terms of section 84(2)(e)) from the definition of administrative action. This meant that when the President pardoned or reprieved offenders he was engaging in administrative action and had a duty to hear representations from those affected by the decision.
This made sense, said Sereti, because even when a parole board makes a decision on granting parole to a prisoner the victims of the prisoner had a right to be heard before such a decision was made.
In my view, the President prior to releasing a prisoner on pardon, must have considered all the relevant information relating to the said prisoner. The said information should include, inter alia, the prisoner’s application, the inputs of victims and/or families of the victims of that particular crime and any other relevant information which might come from any interested party. The inputs from the other interested parties will enable the President to verify the facts stated by the applicant in the parole application form. This view accords with the basic values and principles enshrined in section 195 of the Constitution and give effect to the right contemplated in section 33 of the Constitution.
This reasoning seems sound – until one recalls the judgment of the Constitutional Court in President of the RSA v Hugo. In that case – dealing with similar provisions in the interim Constitution – the Constitutional Court stated that while the exercise of the head of state powers by the President would always be subject to the discipline of the Constitution and could therefore be reviewed by a court, it would only be in extraordinary circumstances that a court would be able to set aside a decision by the President to pardon individuals. Writing for the majority Goldstone J said:
In cases where the President pardons or reprieves a single prisoner it is difficult, (save in an unlikely situation where a course of conduct gives rise to an inference of unconstitutional conduct), to conceive of a case where a constitutional attack could be mounted against such an exercise of the presidential power. Even the provisions of section 8 of the interim Constitution – the equality clause – would have only limited application. No prisoner has the right to be pardoned, to be reprieved or to have a sentence remitted. The interim Constitution places such matters within the power of the President. This does not mean that if a president were to abuse this power vested in him or her under section 82(1)(k) [s 84(2)(j) in the 1996 Constitution] a court would be powerless, for it is implicit in the interim Constitution that the President will exercise that power in good faith. If, for instance, a president were to abuse his or her powers by acting in bad faith I can see no reason why a court should not intervene to correct such action and to declare it to be unconstitutional. For example, a decision to grant a pardon in consideration for a bribe, could no doubt be set aside by a court. So, too, if a president were to misconstrue his or her powers I can see no objection to a court correcting such an error, though it could not exercise the discretion itself.
The reason for this hands off approach was that the power to pardon was a head of state power (previously a prerogative power) and the president therefore had to have a wide discretion to exercise this power as he saw fit. If the president had to invite victims to make representations every time he was considering a pardon, it would make the job of granting pardons very cumbersome indeed.
But given the fact that one of the founding values of our Constitution is a system “of democratic government, to ensure accountability, responsiveness and openness”, and given the explicit provisions of PAJA, one may well argue – like Sereti did – that the president had a duty to listen to the victims before making a decision on pardoning any individual. Perhaps the Hugo case was too sweeping in the granting of powers to the president?
As I said, I am conflicted. It is curious though that Sereti did not mention the Hugo case in his judgment and this might give lawyers for the president scope to appeal the judgment to the Constitutional Court. Maybe the legal boffins out there has an enlightening take on this perplexing question?
Thought this has already been in progress Prof for quite some time. When the killers of Hani were about to have their application for Presidential pardon determined, the Hani family was invited to make representations. In fact Prof. I am not sure as to whether this was done to the Steve Biko family only or to both families.
However, the fact of the matter is that this is something that has been in progress in South Africa. For all the political parties to be secretly ad idem that these representations must not be done is quite a shocker to me.
P.S: May someone please advise me as to which family was actually asked to make representations between the Hani and Biko families?
Prof – it would appear on face value (like you argue) as if the Hugo case and the recent judgment by Seriti J conflict and, therefore, that the recent judgment might not stand constitutional scrutiny by the CC. However, one needs to take a few other aspects into account. (1) The Hugo case was decided under the Interim Constitution, and PAJA had ot yet been signed into law at the time. (2) The Hugo case pertinently states that “no PRISONER has a RIGHT to be pardoned”, because there it was all about disgruntled (male) prisoners not falling in the scheme of pardon. The case before Seriti J concerned VICTIMS’ RIGHTS (like the case last week where Legodi J decided that the NPA cannot just act like the TRC and effectively “pardon” offenders under apartheid by neglecting to prosecute them without first checking with the victims (or their families).
Sne – As far as the Derby Lewis Dimpho hani matter is concerned – there is a true conflict between prisoners’ rights to be placed on parole (not pardoned) and victims’ rights to be heard on the matter. Thing is there, if the parole policy is applied to all similar prisoners, on equal footing, without fear, favour or prejudice, the law concerning parole actually indicates that Derby Lewis had to be released on parole, even if the Hani family felt left out and did not want his release. … But then again, there is Shabir Shaik’s release on medical parole, and he is still alive and well.
See what I mean Mouse? I am glad the judge has been considerate in applying the law. Some judges just dogmatically apply the law as though they are not really thinking about the effects of their judgments, about the people who will be affected by their judgments. They make decisions like they come from this perfect world where people would really consider the provisions of the law, where criminals are really people with a view to changing their lives, people who regret what they have done. Mercy in sentencing convicts should not be forgotten but the over-emphasis on the effects of the sentence on the convict should not be allowed to always outweigh the damage done to the victims of crime who have only the law to look up to. When the law fails law abiding citizens then we live them with nothing but to “take the law into their own hands”. This cannot be allowed!
Yes, the distinction between Hugo and the present case in that no prisoners are demanding parole, so the quote has limited relevance.
As an aisde, did all the Judges attend an Administrative Law course recently? All we hear is PAJA PAJA PAJA, even in cases where PAJA is explicitly excluded (do you hear Nicholson? Excluded!) Has Admin Law suddenly got sexy? Impossible I would have thought.
I have not read the 2 cases(Hugo prabably read it long ago), but i am willing to give my 2 cents worth
Although the decision of the president can be viewed as an executive decision, for me it seems as if the process consist of two parts
firstly the decision of the president to grant a pardon and
secondly the process for granting of the pardon.
Decision to grant the pardon
Here i feel the discretion come into play. This is for me would be the discretion to determine whether he would grant a pardon for the a specific groupe/type of prisoners. This certainly would not be subject to administrative action. there has been no decision to pardon a specific prisoner and therefore it does not affect the rights of anyone, whether it is the prisoner or the victim. this discretion for me is general.
The process of granting a pardon.
This however for me would be subject to adminstrative action. this is where the decision can have a detrimentious effect.
administrative power is defined as any decision taken, or any failure to take a decision,which adversely affects the rights of any person and which has a direct, extemai legal effect.
Section 84(2)(j) have however been excluded from the definition.
However even if the decision of the president is not subject to administrative action, other processes dealing with it cannot also be automatically excluded. these proper processes however are subject to administrative review.
If i understand the sacking of Vusi Pikoli correctly:
The decision of the presiodent is defined as an executive decision, however this did not mean that the proper processes did not need to be followed.
For me before the decision to pardon a specific prisoner a hearing should be afford to the parties affected by the decision.
I would therefore conclude that when the president came to a decision to pardon a specific prisoner, a fair process leading up to his decision should have been followed, as i (would like to) believe that the decision and exercise of discretion need to be rational.
( I after writing the above, i think i need to revise my thoughts, because administratively the rights of the prisoner is more important in being afforded the fair opportunity to be heard and be given a fair opportunity to raise reasons why he should be pardoned,rather than the victims families, which may form part of submissions why he should not he given pardon)
Thanks for the interesting comments OC Moses. The more I think about it the more I lean towards the Sereti judgment. Not because it is “correct” legally, but because it seems to have resulted in a fair and just outcome.