The Constitutional Court today found that the President had erred and had acted irrationally by not affording the victims of “politically motivated crimes” a hearing before making a decision on whether to pardon the perpetrators of those crimes. In Albutt and Others vs President of the RSA and Others Chief Justice Ngcobo, writing for a unanimous court, upheld the decision of the High Court. The High Court interdicted the President from pardoning these prisoners before affording the victims a hearing about the matter.
In this case the stated purpose of pardoning the prisoners for their “political crimes” was nation-building and national reconciliation. The court thus held that the participation of victims was crucial for the achievement of these objectives. It could therefore not be suggested that the exclusion of the victims from the special dispensation process was rationally related to the achievement of the objectives of the special dispensation process.
The court made it clear that the judgment only applied to the group of prisoners who were going to be pardoned as part of a special process to deal with the “unfinished business” of the Truth and Reconciliation Commission. What distinguished this category of prisoners from others not before the court was:
that the crimes in respect of which pardons are sought are alleged to have been committed with a political motive; the objective of these pardons is to promote national unity and reconciliation; and the crimes concerned were committed in a particular historical context. Different considerations may very well apply to other categories of applications for pardon. This judgment does not therefore decide the question whether victims of other categories of applications for pardon are entitled to be heard. That question is left open.
The judgment therefore makes it clear that it would not necessarily require the President to afford the victims of Eugene de Kock or Schabir Shaik a hearing before pardoning them. However, it confirms that the President does not have an unfettered discretion to pardon prisoners. The President is bound by the principle of legality, which is part of the rule of law, when exercising his power to pardon prisoners.
This means two things. First, the exercise of the power to grant pardons must be rationally related to the purpose sought to be achieved by the exercise of that power. In other words, there must be a rational link between the purpose that the President wishes to achieve by granting a specific pardon and the actual granting of that pardon. A President is therefore obliged to identify the purpose he wishes to achieve by granting a pardon and to make a case for why there is a rational relationship between that purpose and the granting of said pardon.
Thus, if the President were to pardon Shaik and De Kock, he will have to say why he did so. A court will then be allowed to determine whether the identified purpose is rationally related to the granting of the pardon.
If Shaik were to be pardoned for the purpose of advancing national reconciliation, say, it would be rather difficult to show that there was a rational connection between this pardon and the achievement of national reconciliation because Shaik was not convicted of a “political” crime. Shaik is an ordinary criminal who happened to have bribed the President, so pardoning him could not be said to have anything to do with the achievement of national reconciliation. Instead it would have everything to do with the granting of a political favour to a friend. As the Court explains:
The executive has a wide discretion in selecting the means to achieve its constitutionally permissible objectives. Courts may not interfere with the means selected simply because they do not like them, or because there are other more appropriate means that could have been selected. But, where the decision is challenged on the grounds of rationality, courts are obliged to examine the means selected to determine whether they are rationally related to the objective sought to be achieved.
What must be stressed is that the purpose of the enquiry is to determine not whether there are other means that could have been used, but whether the means selected are rationally related to the objective sought to be achieved. And if objectively speaking they are not, they fall short of the standard demanded by the Constitution.
This brings us to the second requirement for a valid granting of a pardon. The pardon must be granted for a constitutionally valid purpose. If the pardon was granted merely to do a friend a favour, or to prevent that friend from spilling the beans about your own involvement in criminality, or because that friend happened to have paid you bribes worth millions, it would not constitute a “constitutionally valid” purpose for pardoning the friend.
The judgment underlines the fact that the President does have a relatively wide – but not unfettered – discretion to pardon prisoners. But it also reminds us that the rule of law requires the President to act rationally when doing so. The President thus has a constitutional duty to state clearly what the purpose of the granting of the pardon might be. That purpose had to be a legitimate purpose. It could not have the purpose merely to advance the personal interests of the President himself or the party he happens to lead.
If De Kock and Shaik are pardoned, the presidency will therefore have to concoct a very good excuse – otherwise the decision could very well be set aside by a court.
Don’t you just love a functioning constitutional democracy
Problem is our executive hates having its wings clipped and ultimately they determine the make up of the bench in the CC and SCA via the JSC and we can already see which way they are leaning. Big thumbs up to Ngcobo.
spoiler says:
February 23, 2010 at 14:31 pm
“Don’t you just love a functioning constitutional democracy
Problem is our executive hates having its wings clipped and ultimately they determine the make up of the bench in the CC and SCA via the JSC and we can already see which way they are leaning. Big thumbs up to Ngcobo.”
The inference that the “executive” has placed judges who are sympathetic to it and will rule in their favour has to be wrong – judgment was unanimous.
The decision creates a challenge to JZ, if I am correct. One of many challenges which he may or may not be up to.
Prof: first you say the judgment says the Prez erred. Then you state that: the Prez has an unfettered discretion to pardon prisoners. Then: “The judgment therefore makes it clear that it would not necessarily require the President to afford the victims of Eugene de Kock or Schabir Shaik a hearing before pardoning them.
Then: However, it confirms that the President does not have an unfettered discretion to pardon prisoners.
Then: Shaik is an ordinary criminal who happened to have bribed the President
Then: The judgment underlines the fact that the President does have a relatively wide – but not unfettered – discretion to pardon prisoners.
Then: But it also reminds us that the rule of law requires the President to act rationally when doing so.
So I’m confused. Would you consider advancing further argument on this.
Sirjay, no I think you misread. I did not say the President has an unfettered discretion. He has a wide – but not unfettered discretion. He must act rationally. This means he can only pardon someone for a legitimate purpose – not for a purpose not endorsed by the Constitution. This means if he pardons someone for an ulterior purpose that pardon would be unlawful. Even if he pardons someone for a legitimate purpose there must be a rational connection between the pardon and the achievement of that purpose.
All comments basically seem to agree with the judgement and wisdom of the Constitutional Court. I concur. I also agree that it is wonderful to live in a constitutional democracy. So shouldn’t we also give plaudits to the political leadership, in particular the President, who appointed the current Judge President. Also shouldn’t we recognise that those who flew of the handle during the whole Hlophe fiasco, and determined that the President would be the leader of undermining our Constitution and Constitutional structures were way off the mark, indeed, we can surmise they were wrong.
‘And the Judges informed the King, that no King after the Conquest assumed to himself to give any judgment in any cause whatsoever, which concerned the administration of justice within this realm, but these were solely determined in the Courts of Justice … ’
Prohibitions Del Roy (1607) 12 Co Rep 63
It is my humble opinion that Chief Justice Ngcobo has done well when he wrote this judgement. For me it came unexpected, and I actually thought that the CC was moving in the direction of the “political questions doctrine”.
Donovan! Well half and half herewith. However, are you a devotee of Mikhail Dworkin Fassbinder? Otherwise you can’t be serious, right?
I agree that the President should be given praise for appointing Ngcobo (if I remember well, this praise he did receive at the time of the appointment) but I can’t help thinking about the mood of the country in those days prior to Ngcobo being appointed.
The question still lingers though whether Zuma would not have appointed Hlophe had the opposition been weak?
Praise should also go to the High Court whose decision the Constitutional Court upheld.
Dumisani Mkhize says:
February 23, 2010 at 21:19 pm
“The question still lingers though whether Zuma would not have appointed Hlophe had the opposition been weak?”
The public outcry probably influenced the outcome.
That’s the glory of our constitutional democracy – it works!
@ Maggs – I didnt mean that the executive has done that already. Rather that we still have a functioning constitutional doemocracy but that I am concerned at the trend we are seeing in the way the JSC does its job, the appointment of Mr Mpshe as an acting judge and the like.
Will we still have a bench willing to make judgments that uphold the constitution rather than support the executives agenda down the line?
Now all we can do is pray & hope that the trendy H.C (court a quo) CC judgment & constitution would significantly, should a pardon be granted & it`s forseeably irresponsible , irrational , illegitimate & without merit endorse their own rationale>>
When pigs Fly>>
oh yes they do Only business class
I get the feeling from this blog that if the CC should judge against the executive then its constitutional. Don’t you thing that sometimes the executive will be right or there is no room for the executive to be right in our constitution. The CC is forced to judge against it.
spoiler says:
February 24, 2010 at 8:02 am
My understanding is that acting judges are appointed by the Minister not the JSC.
What the bench may or may not do “down the line” will no doubt be the subject of much speculation.
For now, despite concerns that the sky is falling on our heads, the CC (and our high courts generally) seems to be doing just fine.
I have no doubt that there will always be posturing for CC appointments, but I do not believe, having achieved the esteemed office and status, that judges will not do the right thing.
I do not believe that the President ought to be congratulated for the appointment of Justice Ngcobo. We all know why he chose him – it was because of that other fellow that he was not going to choose. And we all know why he was not going to be chosen.
ANC Uber alles…
Mike Atkins says:
February 24, 2010 at 11:14 am
“I do not believe that the President ought to be congratulated for the appointment of Justice Ngcobo. We all know why he chose him – it was because of that other fellow that he was not going to choose.”
Of course the President should not be congratulated for making sensible decisions – that is expected of him.
BTW how did it come to pass that “the other fellow” was appointed ahead of those who were there before him??
@ Maggs
“I do not believe, having achieved the esteemed office and status, that judges will not do the right thing.”
Maggs, are you sure you are not a Catholic?
Mikhail Dworkin Fassbinder says:
February 24, 2010 at 12:56 pm
“Maggs, are you sure you are not a Catholic?”
For the right incentives I could be – name some and let’s see.
Until then I will contemplate our President being between many rocks and many very hard places.
@Thomas: for every case against an executive ecision that comes before CC, there are hundreds of executive decisions that are constitutional and don’t warrant further investigation / litigation.
A call to everyone: what legitimate reasons could there be for granting pardons? Already mentioned in the article is national reconcilliations for political motivate violence. National security? Change in law & associated punishments (e.g. death penalty cases dating from pre-1994)? What else??
Is the exercise of pardon not in the category of actions for appointment of ministers. These are constitutional executing powers not susceptible to review by the courts under PAJA. This the court declined to deal with as it was merely academic.
At this stage the president is not prohibited by any legal impediment to pardon Shaik. Unless some earth shattering case is made that the President had received a bribe from Shaik.
It would be difficult to climb such a mountain especially when evidence in that direction will be inconclusive. The case that saw shaik go to jail was how he made certain damaging admissions which in all probabilities will not stand in the way of Zuma granting a pardon if approached.
How does the doctrine of legality, a property of the Rule of Law constrain Zuma to pardon Shaik ?
Ishmael is right.
Cmd Shaik was lynched by liberal racist judges.
I demand that he be pardoned!
I have just read the judgement of the SCA in The Citizen v McBride. Interesting, especially the judgement of Mthiyane JA, in my humble opinion better reasoned than that of the other judges.
http://www.saflii.org.za/za/cases/ZASCA/2010/5.html
as a matter of interest, should the president grant shaik the pardon and the decision is then attacked as being unconstitutional, on what grounds could the president argue the constitutionality of the decision (aside from the provisions contained in S 84) ?
Kawther Khan says:
March 2, 2010 at 18:16 pm
I think this is more or less what the President will have to argue:
“[T]he function conferred on the President to make a decision entails a corresponding right to have a pardon application considered and decided upon rationally, in good faith, in accordance with the principle of legality, diligently and without delay.” – Minister for Justice & Constitutional Development v Chonco & 383 others [2009] JOL 24299 (CC) in para 30.
“[T]he exercise of all public power must comply with the Constitution, which is the supreme law, and the doctrine of legality, which is part of that law.” – Pharmaceutical Manufacturers Association of South Africa and Another: In re Ex Parte President of the Republic of South Africa and Others, 2000 (2) SA 674 (CC) in para 20.
ISHMAEL MALALE says:
February 25, 2010 at 19:07 pm
“At this stage the president is not prohibited by any legal impediment to pardon Shaik. Unless some earth shattering case is made that the President had received a bribe from Shaik.”
It sure sounds like you are suggesting that there is a legal impediment to the president pardoning Shaik.
The entire matter is about Shaik having bribed the president. Or am I missing something?
Get well soon Flowers for Shabby from The Citizen:
http://www.citizen.co.za/index/article.aspx?pDesc=117803,1,22