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[2009] ZASCA 31
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Minister for Justice and Constitutional Development v Chonco and Others (159/08) [2009] ZASCA 31; 2009 (6) SA 1 (SCA) ; [2009] 3 All SA 149 (SCA) (30 March 2009)

THE
SUPREME COURT OF APPEAL
REPUBLIC
OF SOUTH AFRICA
JUDGMENT
Case No 159/08
THE MINISTER FOR JUSTICE AND
CONSTITUTIONAL DEVELOPMENT APPELLANT
and
MQABUKENI CHONCO AND 383 OTHERS RESPONDENTS
Neutral citation:
The
Minister for Justice and Constitutional Development v Chonco
159/08
[2009] ZASCA 31
(30 March 2009)
Coram:
FARLAM, NUGENT, VAN
HEERDEN, JAFTA et MLAMBO JJA
Heard:
16 FEBRUARY 2009
Delivered:
30 MARCH 2009
Summary:
Constitutional law –
applications for pardon under s 84(2)(j) of the
Constitution – whether Minister for Justice
and Constitutional
Development under constitutional obligation to process applications
before the President considers whether to
exercise his power under
the section.
______________________________________________________________
ORDER
On appeal from:
High Court
Pretoria (Seriti J sitting as court of first instance)
The following order is made:
The appeal is dismissed with costs, including those
occasioned by the employment of two counsel.
JUDGMENT
FARLAM JA ( Nugent, Van Heerden, Jafta et Mlambo JJA
concurring)
[1] In this matter the appellant, the Minister for
Justice and Constitutional Development, appeals against a judgment
delivered
by Seriti J in the Pretoria High Court in which he directed
the appellant's predecessor 'to do all the necessary within a period

of three months from [the date of the order] to enable the second
respondent [the President], to exercise the powers conferred
on him
in terms of s 84(2)(j) of the Constitution in an informed way with
regard to all 384 applications for Presidential pardon
referred to in
[the] application.' In the order appealed against the learned judge
also declared that the appellant's predecessor
had 'failed to
exercise with due diligence and without delay, the constitutional
obligation to process and do all the necessary
to enable the second
respondent to exercise the powers conferred on him in terms of s
84(2)(j) of the Constitution in an informed
way, with regard to the
applications for Presidential pardon by the applicant [the present
first respondent] and the 383 other
applicants for Presidential
pardon in whose interest and on whose behalf the applicant brought
this application.'
[2] As appears from the portion of the order which I
have quoted, the application before the court was brought by the
present first
respondent, Mqabukeni Chonco, on behalf of himself and
383 other persons. All of them are currently in prison, so it was
alleged,
serving lengthy gaol sentences for what they allege were
criminal offences 'committed . . . in the course of the political
struggle
of the past.' None of them applied for amnesty to the Truth
and Reconciliation Commission (to which I shall refer as 'the TRC')

because, so they say, their political party, the Inkatha Freedom
Party, 'did not support the TRC'. (In what follows I shall call
this
party the 'IFP'.) Their applications for pardon in terms of s
84(2)(j) of the Constitution were addressed to the second respondent,

the President, but were forwarded by the IFP on their behalf to the
then Minister for Justice, on the instructions of a senior
official
in the office of the Minister, during the period September to October
2003.
[3] It was common cause between the parties that, by the
time the application was heard in the court
a
quo
the applications submitted on behalf of
the applicants had not been sent to the second respondent for
consideration, nor have they
been sent since. This is despite the
fact that, by the time of the hearing, almost four and a half years
had elapsed since they
were sent to the then Minister.
[4] On 20 May 2005 Mr L K Joubert MP, a member of the
IFP, raised the matter in the National Assembly. In the course of his
speech
he said the following:
'The first issue that I wish to deal with is
applications for presidential pardon or reprieve that the IFP
submitted and on which
it is getting absolutely nowhere. We submitted
a total of 384 applications for presidential pardons, in terms of
section 84(2)(j)
of the Constitution, as long ago as September and
October 2003, and that is more than one and a half years ago.
Apart from acknowledging receipt of the applications,
nothing has transpired since that. My colleague, Mr Mzizi, wrote to
the Minister
for Justice and Constitutional Development on 13
February 2004 enquiring when he could expect a reply. Our Chief Whip
wrote to
the President on 11 November 2004 asking what progress had
been made. The President's Office replied on 23 November and assured

us that the matter was receiving the President's attention.
Hearing nothing further from the President, our Chief
Whip, once again, wrote to the Minister for Justice and
Constitutional Development
on 19 January 2005 requesting an
appointment to see the Minister in this regard. Seeing that nothing
happened, our Chief Whip once
again wrote to the Minister on 8 March
2005 and insisted on an urgent interview to discuss this matter.
Nothing happened; there
was complete silence. We are simply being
ignored.
In the meanwhile, we have been very patient and did not
kick up dust when Dr Boesak received a pardon. We were hoping that
attention
would also, in due course, be given to our 384 applicants
but, until today, nothing has happened.
I, therefore, have to tell this House that 384
applications for pardons are simply lying somewhere and nobody seems
to be interested
in doing anything about them. This is nothing less
than a violation of human rights. Those 384 applicants and their
families have
been waiting for a very long time but all they have
received is silence.
I bring this matter to the attention of Parliament and
the public, and I today publicly request the hon Minister to kindly
and urgently
inform us what the status of these applications is so
that we can immediately inform the applicants about where they
stand.'
[5] It appears from the papers that the Minister then
promised to give her immediate attention to the matter.
[6] On 8 September 2005, Mr J H van der Merwe MP, the
IFP Chief Whip (and incidentally the respondents' attorney in this
matter),
directed a question in Parliament to the President with
regard to the progress that had been made. This question elicited a
reply
which contained the following:
'[T]he applications referred to by the hon member have
not yet been sent to the President, and are still with the Department
of
Justice. The matter has unfortunately been delayed in the
Department of Justice, which has received more than 1 000
applications
for pardons for crimes allegedly committed for political
reasons.
We've urged the Minister of Justice to ensure that the
processing of these and other applications is expedited. We will
consider
the appropriateness of a presidential pardon for each case
once the Ministry and the Department of Justice have completed the
processing
of the applications, and verified the facts of each case,
understanding very well the prerogatives granted to the President of
the Republic by section 84(2)(j) of the Constitution, to which the
hon member referred.'
[7] The President in the course of his reply explained
some of the difficulties which had been encountered in dealing with
the applications.
Amongst other things he said that the Ministry and
the Department of Justice had to ensure that their recommendations to
the President
were 'based on the application of a set of criteria
that are consistent with the spirit that inspired the establishment
of the
TRC. Apart from anything else', he continued, 'such criteria
would help us to avoid
ad hoc
and
arbitrary presidential decisions that would undermine the important
principle of equality of treatment of all our citizens and
the
necessary transparency in this regard.'
[8] The President also said that the applications were
being processed by the Ministry and the department and added that 'at
the
appropriate moment we shall come back to the people who have
applied for these pardons to indicate what decision should have been

taken.'
[9] Later the same day, in the discussion in the
National Assembly, the President said that he would speak to the
Minister and her
deputy so that they could interact with Mr van der
Merwe and with Dr S E M Pheko MP, of the Pan Africanist Congress (who
had also
raised the matter), and could indicate what was being done
and the particular problems they were experiencing with regard to the

processing of the applications.
[10] Eight months later, on 19 May 2006, Mr van der
Merwe raised the matter again in the National Assembly. He spoke of
what he
called the 'unbelievable lack of action by the hon Minister'.
After referring to the 384 applications for pardon which the IFP had

submitted towards the end of 2003, which he said had fallen on deaf
ears, he continued:
'I wish to give hon members an idea of the unbelievable
and almost impossible uphill battles we have fought to seek justice
and
to ensure that the Constitution is respected and that these
applications are processed.
For almost three years now, we have written letters to
the hon Minister and the hon President pleading with them to attend
to these
applications. Where did it get us? Nowhere. Absolutely
nowhere! The hon Minister ignored us. Twice in this very House we
called
this neglect a violation of human rights. Our very serious
accusation and the plight of 400 prisoners were simply ignored . . .'
[11] In her reply to Mr van der Merwe's speech, the
Minister pointed out that there were no guidelines for dealing with
these applications
and said that the President had decided 'to take
the issue to all the parties.'
[12] She continued:
'As the Department of Justice and Constitutional
Development, we are trying to get proposals, which we will table
before the cabinet;
an undertaking which is not easy but rather
difficult. We acknowledge that there are problems with regard to the
existing guidelines
as they state that when an individual applies for
a presidential amnesty, the issue will be treated separately. The
President actually
said that people seeking political amnesty should
appear before the TRC. And since they did not appear before the TRC,
they are
now faced with this issue. Hence it is important to ensure
that the guidelines are correct.
It should be noted that this undertaking is not an easy
one and it did not even start in 2003. Honestly speaking, this matter
forms
part of the outstanding issues. It was indicated during CODESA
that there were still problems that needed our attention. We should

put our heads together, apply our minds and throw some ideas around
as to how we are going to move forward. We will bring the President's

response to Parliament soon. It will be taken to the cabinet, as I
will not be the first person to receive it.'
[13] In October 2006, in reply to a question on the
matter in the National Council of Provinces, the Minister said:
'There are 1107 applications for pardons which were
received by the Department from prisoners who allege that their
offences are
politically motivated. These include the submission by
the IFP in respect of 385 of their members. These applications are
complex
in nature:
The sentences that the applicants are serving vary from
12 years to death. With respect to the latter, a separate process was
completed
to convert all death sentences to alternative sentences, in
most cases, life sentences. The applicants also indicate in their
applications
that they did not apply for amnesty with the TRC because
they either did not know that they could do so and when they did find
out, it was too late as they were out of time, or that the TRC
process was not supported by their political parties. In some cases

the offences were allegedly committed after the cut-off date of the
TRC process itself.
Due to the complexity of the applications I have deemed
it necessary to approach Cabinet to give guidance on the matter.'
[14] Thereafter up to the date when the first respondent
deposed to the founding affidavit, viz 28 May 2007, no indication of
whatsoever
nature had been given by either the Minister or the
President as to whether any progress had been made regarding the
applications
for presidential pardon brought by the respondents, and,
if so, what that progress was.
[15] The main answering affidavit filed on behalf of the
Minister was deposed to by Mr Menzi Simelane, the director general of
the
department.
[16] In his affidavit Mr Simelane set out the legal
framework informing the subject matter of these proceedings, and
emphasised
the need for a new approach. He stated that the Minister
was currently engaged in a process involving what he called the
construction
of an appropriate framework for considering applications
for pardon in respect of politically motivated offences.
[17] Mr Simelane listed the following questions which
were included, as he put it, in the matters that the Minister 'would
like
to infuse into the current debate concerning politically
motivated pardons':
'1. Post 1994 and given the TRC process, who can be
regarded as an offender incarcerated because of having committed a
politically
motivated offence or one associated with a political
objective?
2. What would be considered to be the most appropriate
cut off date for a definition of an offence that was politically
motivated
or associated with a political objective?
3. What is a politically motivated offence, given the
advent of democracy in 1994?
4. Are there circumstances under which an offence
committed in 2000 or 2007 could be considered to be politically
motivated or associated
with a political objective?
5. Was the post 1994 violent conflict that occurred in
KwaZulu Natal and the East Rand political in nature? All of it?
6. Should rape be considered as an offence committed
with a political motive or associated with a political objective? If
so, under
what circumstances?
7. Would offences committed by former members of the
security forces be considered alongside those committed with a
political objective?
8. Who is to verify the particulars furnished in the
applications and how is that verification to be done?
9. Should victims of the crimes committed be
accommodated and if so in what manner?
10. What would be the most appropriate and effective
manner of dealing with a large number of applications?'
[18] He then provided a précis of the individual
applications, set out the department's stance and responded to the
averments
in the founding affidavit.
[19] In the section dealing with the construction of an
appropriate framework, Mr Simelane said the following:
'[O]ther than internal operational procedures that
assist the
Department
in
the assessment and evaluation of applications for the pardon of minor
offences, dealt with below, there is no established process
for
assessing and evaluating applications for the pardon of more serious
offences, and in particular those motivated by way of
a political
objective.'
[20] He proceeded to refer to pardons granted by
President Mbeki on 6 May 2002 to 33 African National Congress and Pan
Africanist
Congress members in the Eastern Cape who had all, wholly
or in part unsuccessfully, gone through the amnesty process of the
TRC.
Although it appears that Dr Maduna, the then Minister, had, as
it was put in a later explanatory note to the President, 'argued
the
cases of some [of the 33 and contended] . . . that pardon should not
be granted to them', he later (after some of those covered
by his
original letter had been released from prison) reconsidered the
matter and recommended that the 33 should be granted pardons.
He
motivated this advice as follows:
'He [ie, Dr Maduna] is of the view that public opinion,
inside as well as outside politics, requires the 33 to be pardoned in
terms
of s84(2)(j) of the Constitution of the Republic of South
Africa, 1996. Accordingly he recommends that the 33 persons on the
list
be pardoned in respect of the convictions for which they are
currently serving or for which they have already served a term of
imprisonment. All the information regarding their conviction and
sentences, however, [is] not available at this stage. Every effort

will be made to submit [it] to the President as soon as possible.'
[21] As has been said, the President accepted this
advice and pardoned the 33 offenders concerned.
[22] Mr Simelane stated that there had been 'much debate
and a divergence of views, both within and outside of Parliament,
with
regard to how best to deal with these applications, given the
termination of the indemnity and then the TRC processes [ie, the
processes under the Indemnity Act of 1990 and the
Promotion of
National Unity and Reconciliation Act 34 of 1995
].' According to Mr
Simelane, the Minister had directed her department to look into ways
in which a framework for the evaluation
of the applications could be
formulated. He expressed the considered view 'that the draft
framework would be finalised inside a
period of approximately six
months [ie, from 27 July 2007, the date he deposed to his
affidavit].'
[23] In dealing with the averments in the founding
affidavit he enjoined the first respondent 'to furnish full and
further particulars
of the circumstances of each of the offences that
were committed in respect of the 383 applicants for whom he purports
to act'.
He urged the respondents 'to exercise greater tolerance,
patience and deference to the process necessary to formulate an
appropriate
framework'. He continued:
The question of pardon is a discretionary exercise of
mercy and does not come as a right. None of the applicants can claim
prejudice
arising out of their incarceration. The incarcerations were
a consequence of due process.'
[24] He admitted that the practice was to have the
applications processed by the department but denied that that conduct
constitutes
'administrative action' within the meaning of the
Promotion of Administrative Justice Act 3 of 2000 (commonly known as
'PAJA').
[25] In his replying affidavit the first respondent
states that the department must have been aware as long ago as 2000
of the deficiencies
in its own internal processes and internal
criteria as regards the assessment of applications with a 'political
element'. He also
stated that, if there is no room within the current
parameters used by the department to make a positive recommendation
regarding
any of the applications, this position is due to the lack
of action on the part of the department itself. He contended further
that the Minister gave no acceptable reason for the delay in doing
what he called the 'necessary' since 2000.
[26] He also stated that all that he called for was that
the precedent set in 2000 by Dr Maduna (and subsequently by President
Mbeki)
in the case of the 33 persons who were granted presidential
pardon, be followed. No reasonable explanation, he submitted, was
forthcoming
from the M
inister as to why this precedent should not be followed.
[27] Before the judgment of the court
a
quo
is summarised, it is appropriate to set
out the relevant provisions of the Constitution.
[28] Section 84, which deals with the powers and
functions of the President, reads as follows:
'84 (1) . . .
(2) The President is responsible for –
. . .
pardoning or reprieving offenders and remitting any
fines, penalties or forfeitures . . . '
[29] Section 85 deals with the executive authority of
the Republic. It provides:
'85 (1) The executive authority of the Republic is
vested in the President.
(2) The President exercises the executive authority,
together with the other members of the Cabinet, by –
(a) implementing national legislation except where the
Constitution or an Act of Parliament provides otherwise;
(b) developing and implementing national policy;
(c) co-ordinating the functions of state departments and
administrations;
(d) preparing and initiating legislation; and
(e) performing any other executive function provided for
in the Constitution or in national legislation.'
[30] Section 92 deals with accountability and
responsibilities. It reads:
'92. (1) The Deputy President and Ministers are
responsible for the powers and
functions of the executive assigned to them by the
President.
(2) Members of the Cabinet are accountable collectively
and individually to Parliament for the exercise of their powers and
the
performance of their functions.
(3) Members of the Cabinet must –
(a) act in accordance with the Constitution; and
(b) provide Parliament with full and regular reports
concerning matters under their control.'
[31] Section 101 deals with executive decisions.
Sub-section (1) reads as follows:
'101. A decision by the President must be in writing if
it –
(a) is taken in terms of legislation; or
(b) has legal consequences.'
[32] Section 237 of the Constitution provides:
'237. All constitutional obligations must be performed
diligently and without delay.'
[33] In his judgment Seriti J referred to the fact that,
in the answering affidavit filed on behalf of the Minister, it was
stated
that the department was processing the applications for pardon
as a matter of practice. The judge considered a submission which
had
been advanced before him by counsel for the appellant to the effect
that there was no legal duty on the Minister to process
the
applications for presidential pardon as the first respondent had
failed to demonstrate that s 101(1) of the Constitution has
been
complied with.
[34] He held that the President's request to the
Minister to process the applications for pardon was in accordance
with the law
and had legal consequences. If the request of the
President did not comply with the law, he pointed out, Mr Simelane
'could have
said so in no uncertain terms.'
His failure to do so and the fact that the department
was in the process of carrying out the request of the State President
justify
'the conclusion that the President's request to the
Minister has legal consequences.
Section
237 of the Constitution provides that all constitutional obligations
must be performed diligently and without delay. When
processing the
applications under consideration, the Minister is exercising a public
function and she is bound to perform the said
function diligently and
without delay.'
[35] Later in his judgment he stated that, in his view,
'the processing of the applications of the [respondents] has taken an
unduly
long time and the Minister has failed to perform her function
as required by section 237 of the Constitution.'
[36] He accordingly held that the respondents had made
out a case for relief and made the order summarised in para 1 above.
[37] Counsel for the appellant submitted that the court
a quo
had erred in
holding that the Minister had a constitutional obligation to process
the applications for pardons. It was contended
that, as the power to
grant pardons vests exclusively in the President as Head of State, he
has the sole discretion to determine
how he exercises that power.
[38] According to counsel, the practice which had
developed in the department, even before the current constitutional
dispensation,
of the department assessing and evaluating applications
for pardon and thereafter making recommendations to the President,
did
not create a legally enforceable obligation on the Minister to
process the applications. It was submitted further that though the

practice was permissible and desirable it did not, in the absence of
a provision in the Constitution or in a statute, impose an
obligation
on the Minister.
[39] Counsel for the appellant also argued that Seriti J
had erred in finding that the President had requested the Minister to
process
the applications as there was no evidence to that effect. If
there had been such a request, the argument proceeded, it would have

had to have been in writing if it were to have any legal consequences
in terms of s 101 of the Constitution. Even if there had
been such a
request, no rights or interests of the respondents would have been
affected thereby. Moreover, such a request and the
resultant
compliance therewith would not amount to administrative action which
is actionable in terms of PAJA.
[40] In counsel's submission, Seriti J had also erred in
finding that, in processing the applications for pardons, the
appellant's
department was acting in terms of s 85(2) or s 92(3) of
the Constitution. It was submitted that the executive powers or
functions
of the National Executive referred to in s 85(2)(e) of the
Constitution are excluded from the definition of 'administrative
action'
in PAJA and that what the Minister or her department was
doing was not the exercise of an executive function provided for in
the
Constitution or in national legislation as set out in s 85(2)(e)
of the Constitution. Furthermore, so it was argued, s 92(3) of
the
Constitution is of no application.
[41] In my opinion, counsel for the appellant's
submissions cannot be accepted. I think that Seriti J was clearly
correct in coming
to the conclusion that the President's request to
the Minister to process the applications was in accordance with the
law and has
legal consequences.
[42] In my view the Minister had a constitutional
obligation to process and to do what was necessary to enable the
President to
exercise the powers conferred upon him by s 84(2)(j) of
the Constitution. A prisoner clearly has the right to apply for a
pardon
and someone has the obligation to give an answer. The fact
that the President performs Head of State functions in terms of

s 84(2) of the Constitution in pardoning offenders does not mean
that executive functions are not performed beforehand. It
is not
implied in the Constitution that the President himself or through the
office of the Presidency must perform all preparatory
steps before
the power to decide whether to grant a pardon or not is exercised.
These steps (which may be called preliminary executive
functions
because they are steps required for laying the foundation for the
ultimate decision to be made by the President) by clear
implication
fall within the ambit of the normal executive functions conferred by
the Constitution on the executive and are therefore
covered by s
85(2)(e) of the Constitution. In cases involving applications for
pardon the appropriate department to perform these
functions is the
department. The Minister's failure to perform these functions is a
breach of s 92(3)(a) of the Constitution. (It
follows from this
conclusion that the respondents were not obliged to make out a case
under PAJA in order to succeed and, accordingly,
arguments based on
PAJA do not have to be considered.)
[43] I am accordingly satisfied that Seriti J was right
in holding that the Minister was obliged to process the applications
and
to do what was required to enable the President to exercise the
powers conferred on him by s 84(2)(j) of the Constitution in an

informed way and that that obligation was a constitutional one.
[44] It was not contended before us – nor could it
have been so contended with any cogency – that the Minister, if she
was so
obliged, had performed her duties in this regard with due
diligence and without delay. Nor was it argued that the period for
compliance
contained in para 1 of the order of the court
a
quo
could be faulted.
The following order is made:
[45] The appeal is dismissed with costs, including those
occasioned by the employment of two counsel.
……………
.
IG FARLAM
JUDGE OF APPEAL
APPEARANCES:
FOR APPELLANT: M T K MOERANE
SC
L GCABASHE
Instructed by STATE ATTORNEY
PRETORIA
STATE ATTORENY BLOEMFONTEIN
FOR RESPONDENT: T J KRUGER SC
C VAN JAARSVELD
Instructed by JH VAN DER MERWE
INCORPORATED PRETORIA
BEN VAN DER MERWE ATTORNEYS
BLOEMFONTEIN