Centre for the Study of Violence and Reconciliation and Others v President of the Republic of South Africa and Others (15320/09) [2009] ZAGPPHC 35 (29 April 2009)

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[2009] ZAGPPHC 35
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Centre for the Study of Violence and Reconciliation and Others v President of the Republic of South Africa and Others (15320/09) [2009] ZAGPPHC 35 (29 April 2009)

IN THE HIGH
COURT OF SOUTH AFRICA
/ES
(
NORTH GAUTENG HIGH
COURT, PRETORIA
)
CASE NO: 15320/09
DATE: 29/4/2009
REPORTABLE
IN THE MATTER
BETWEEN
CENTRE FOR THE STUDY OF
VIOLENCE AND
RECONCILIATION
…......................................................
1
ST
APPLICANT
KHULUMANI SUPPORT
GROUP
…......................................................
2
ND
APPLICANT
INTERNATIONAL CENTRE
FOR TRANSITIONAL
JUSTICE
…......................................................
3
RD
APPLICANT
INSTITUTE FOR JUSTICE
AND
RECONCILIATION
…......................................................
4
TH
APPLICANT
SOUTH AFRICAN HISTORY
ARCHIVES
…......................................................
5
TH
APPLICANT
HUMAN RIGHTS MEDIA
CENTRE
…......................................................
6
TH
APPLICANT
FREEDOM OF EXPRESSION
INSTITUTE
…......................................................
7
TH
APPLICANT
AND
THE PRESIDENT OF THE
REPUBLIC OF
SOUTH AFRICA AND
OTHERS
…......................................................
RESPONDENTS
JUDGMENT
SERITI, J
1.
INTRODUCTION
This matter came to Court
by way of urgency.
In the
notice of motion, the Applicants in terms of Part A thereof, are
seeking an order in the following terms:
"(2) The first
respondent is interdicted from granting any pardon in terms of the
'Special dispensation for Presidential
pardons for political
offences' until such time as the proceedings described in Part B
below have been finally determined."
In Part B,
the Applicants are seeking for an order in the following terms:
"1. The first
respondent is interdicted from granting any pardon in terms of the
'Special dispensation for Presidential
pardons for political
offences'.
2. (Alternatively to
paragraph 1) The first respondent is interdicted from granting
any pardon in terms of the 'Special dispensation
for Presidential
pardons for political offences' unless and until the victims of
the offence(s) in question and other persons
who were affected by
such offence(s):
2.1 have been given
access to the relevant application for a pardon and the
proceedings and recommendations of the Pardons
Reference Group in
that regard; and
2.2 have
been given an opportunity to make representations in that regard
to the first respondent."
Initially,
there were only two Respondents, but during the last hearing
Messrs Ryan Albutt, Gerhardus Johannes Taljaard, Alexander

George Whitehead, Arend Christiaal de Waal, Willem Jacobus Petrus
Jacobs, Hans Jacob Wessels Reyno Adriaan Rossouw and Benjamin

Johannes van der Westhuizen, made an application to be joined as
Respondents and their applications were granted and there was
no
opposition to their applications.
2.
FOUNDING
AFFIDAVIT
It was attested to by
Mr Hugo van der Merwe, the Programme Manager of the First
Applicant.
He
alleges that he has authority to depose to the affidavit on behalf of
all the Applicants and the necessary confirmatory affidavits
are
attached.
The First
Applicant ("CSVR") is an association not for gain and
incorporated under section 21 of the Companies Act 61
of 1973. Its
purpose is to prevent violence in all its forms, heal its effects and
build sustainable peace and reconciliation
in South Africa.
The
Second Applicant is an unincorporated association and non profit
organisation registered under the Non Profit 0rganisations
Act
71 of 1997 – its purpose is to bring survivors and families of
victims together to create a collective presence within the
community
through the processes of the Truth and Reconciliation Commission, and
also to advocate on behalf of victims and survivors
of gross human
rights violations.
The Third
Applicant is an association not for gain incorporated under
section 21 of the Companies Act
supra
. It utilises the
experience gained by its staff during the South African Truth and
Reconciliation Commission process to assist
countries pursuing
accountability for past mass atrocity or human rights abuse.
The
Fourth Applicant is also an association not for gain incorporated
under section 21 of the Companies Act
supra
. It promotes
nation building within constitutional democracies and provide
solutions to problems that continue to undermine
peaceful transition
both in South Africa and elsewhere.
The Fifth
Applicant is a registered non profit organisation. It is an
independent human rights archive dedicated to documenting
and
providing access to archival holdings that relate to past and
contemporary struggles for justice in South Africa.
The Sixth
Applicant is a registered organisation dedicated to the compilation
of oral history that enables organisations and individuals
to tell
their stories to the public in a variety of media forms through
projects promoting human rights awareness.
The
Seventh Applicant was established in 1994 to protect and foster the
rights of freedom of expression and access to information
and to
oppose censorship.
He
further alleges that the President has established a "special
dispensation" for the granting of pardons to persons
who have
been convicted of offences allegedly committed in pursuit of
political objectives.
The
initial role in this process was performed by the Reference Group
which is a group consisting solely of members of political
parties.
The
Reference Group has received and considered applications for pardons,
and has made recommendations to the President. It has
operated
in secret and it has refused to identify who has made application for
a pardon, to disclose the contents and motivations
of the pardon
applications and to disclose which applications it has recommended.
It has refused to give the victims of or
other persons affected
by the offences in question an opportunity to make representations as
to whether or not a pardon should
be granted, and if so on what
conditions.
The
President has not disclosed and is refusing to disclose which
applications for pardon he is considering. He has refused to
give
the victims or other persons affected by the offences in question an
opportunity to make representations as to whether or
not a pardon
should be granted in the said applications.
The
decision of the President regarding the applications for pardon is
imminent.
The
victims or persons affected by the offences in question cannot
approach the Court for relief as it is not known who the Applicants

for pardon are.
It is
further stated that the Applicants seek a declaration that the
President is not entitled to grant pardons under such circumstances,

and an interdict preventing the President from doing so.
It is
further alleged that at a joint sitting of Parliament on 21 November
2007, then President Mbeki announced a special
process for the
handling of pardon requests made by "people convicted for
offences they claim were politically motivated and
who were not
denied amnesty by the TRC".
The
President then asked each political party represented in Parliament
to appoint a representative to serve on a Pardons Reference
Group
("RG") charged with considering pardon requests and
submitting recommendations to the President – President indicated

that he would not be bound by the advice of the Pardons Reference
Group but would give serious consideration to its recommendations.
The
President, in addition to observing the rationality obligation,
stressed the importance of dealing with pardon requests "in an

open and transparent manner, uniformly and in strict compliance with
predetermined procedures and criteria".
It was
determined that applications for pardons will be received from
15 January 2008 up to 15 April 2008. The latter
date was
later extended. Certain categories of prisoners were excluded from
the process. The President confined the ambit of
the pardons to
those prisoners who were convicted for political offences committed
before 16 June 1999.
The
multi-party Pardons Reference Group was formally constituted on
18 January 2008 and the Terms of Reference were adopted.

Dr Tertius Delport was elected Chairperson.
Immediately
after the formation of the Pardons Reference Group, the First
Applicant together with other Non Governmental 0rganisations
made
efforts to engage with the Pardons Reference Group to address issues
of victim participation, transparency and public disclosure.
During
February 2008 he contacted Dr Delport via e mail offering
the assistance of the First Applicant to the Pardons
Reference Group
and also requested a meeting with the Group. Dr Delport advised
him that the Group is not willing to meet
with civil society
representatives but would consider written submissions.
0n 5 May
2008 he sent an e mail to Dr Delport requesting a list of
the applicants who had submitted pardon applications.
0n 6 May
2008 Dr Delport responded and stated that the Pardons Reference
Group has not decided whether to make
the list public or not, and he
indicated that he would raise the request at their meeting on 12 May
2008. His request was
formally refused. The list of pardon
applicants was only disclosed after an application under the
Promotion of Access to Information
Act had been launched by the Fifth
Applicant.
The list
of the applicants for pardon include Ferdi Barnard (former Civil
Co operation Bureau operative who murdered David
Webster),
former apartheid police chief General Johann van der Merwe and his
four co accused in the attempted murder of Rev
Frank Chikane,
Adriaan Vlok (former law and order minister), Chris Smit (former
police major general) and Gert 0tto and Manie van
Staden (former
police colonels).
0n
20 June 2008 a coalition of non governmental organisations,
including the Applicants, delivered letters to all the
Pardons
Reference Group members to express concerns over the difficulty of
discovering and engaging with the procedures of the
Pardons Reference
Group and they requested a meeting with them. The letter identified
five principal concerns, namely:
1. the failure to
disclose the Pardons Reference Group Rules and Procedures;
2. the failure to
clearly define the category of "politically motivated
offences" that may result in pardon recommendations;
3. the importance of
full disclosure by pardon applicants;
4. the Pardon Reference
Group's obligation to improve public disclosure and procedural
transparency; and
5. the glaring lack of
victim consultation.
No
response was received to the coalition letters – on 30 June
and 1 July 2008 he sent letters to Mr Gawula, a
member of
the Pardons Reference Group, and to Dr Delport requesting a
meeting.
0n
15 July 2008 the NGO coalition met with Dr Delport and
Messrs Gawula and Sibanyoni. Representatives from several
NGO's and
civil society organisations voiced concerns over the exclusion of
victims from the Pardons Reference Group's process,
the refusal to
disclose the names of pardon applicants and the general opacity of
the whole process.
During
the meeting mentioned above Dr Delport stated that they utilised
criteria from the Groote Schuur Minute, the TRC legislation
and the
Norgaard Principles when considering pardon applications, but did not
provide a definitive list of criteria. He further
advised them that
the Pardons Reference Group have considered 171 applications for
pardons of which 16 have been recommended to
the President for
pardon.
The
coalition suggested that given the relatively small number of
applications recommended to the President for pardon, victim

consultation in cases considered for recommendation to the President
would not be unduly cumbersome. Dr Delport requested
the
coalition to reduce in writing its request and informed them that the
Pardons Reference Group would consider the coalition's
requests at a
meeting to be held on 28 July 2008.
0n
17 July 2008 the coalition addressed and delivered its written
requests and recommendations to the Pardons Reference Group.
In the
letter it was mentioned,
inter alia
:
(a) that the coalition
was concerned that the Pardons Reference Group did not seek the
representations of victims;
(b) that
the Pardons Reference Group has considered the applications for
pardons, and since the President is likely to act
on such
recommendations when considering pardons, the interests of the
victims were manifestly implicated. Victims and organisations

representing victims should have been given an opportunity to make
representations in those cases where pardons are to be

recommended;
(c) there
might be certain cases before the Group which were of national
significance. In such cases there might be other
interested
entities who wish to place their submissions before the Group;
(d) victims
and victim groups could only make meaningful representations if
they were aware of the cases before the group
and the motivations
and endorsements put forward for pardon;
(e) Dr
Delport should approach the President and request him not to issue
any pardons in respect of the sixteen cases already
referred to
him pending the outcome of this process.
In a
letter dated 7 August 2008 Dr Delport informed the
coalition of NGDs of the Group's conclusion that neither the
Terms of
Reference nor any law compels the Group to "call for inputs by
the public (in particular the victims)", and
the Group would not
accede to requests to incorporate victim input into the process. The
coalition was advised to direct its concerns
to the 0ffice of the
President.
In a
letter dated 12 August 2008 addressed to Dr Delport, he, on
behalf of the coalition, expressed disappointment with
the Group's
unwillingness to consider victims' inputs and reiterated the
coalition's request for a list of pardon applicants and
the Group's
rules and procedures.
0n the
same date the coalition wrote a letter to the President expressing
its concerns and urging him not to issue pardons in terms
of the
special dispensation until such time that the dispute over the
process was resolved. 0n 19 August 2008 the President's
office
confirmed receipt of the letter and indicated that a response would
follow. No further response from the President was
received.
0n
19 August 2008 the South African Human Rights Commission wrote
to the President and raised almost similar concerns raised
by the
coalition. It stated,
inter alia
,
"The main thrust of
the concerns raised has been the lack of any participation of
victims in the process of considering the
numerous applications
received by the Reference Group. 0ur understanding is that
notwithstanding that the final decision on
any pardon application is
ultimately taken by the President, the process that generates a
recommendation is sufficiently important
that victims of serious
human right violations should at the very least have the opportunity
to engage with the pardons process."
0n 20
August 2008 the Applicants sent letters to all political parties with
representatives serving on the Pardons Reference Group
raising their
concerns over the lack of transparency of the process and lack of
request of victims' inputs, and requesting meetings
with the party
leaders.
Some of
the parties' representatives responded and stated that they support
the Pardons Reference Group's stance and none of them
were
sympathetic to the concerns of the coalition.
0n 8
September one of the Applicants received a response to its letter
addressed to the Democratic Alliance. The response was
from
Dr Delport who indicated that he was responding on behalf of the
Pardons Reference Group and he indicated amongst others
that:
(i) the Group is of the
opinion that the present process was not designed to be a judicial
or
quasi
-judicial enquiry and unlike the TRC, the Group is
not empowered to gather information, receive evidence and call
witnesses;
(ii) the
Group, by its nature, is clearly called upon to advise the
President from a political perspective, and particularly
in terms
of a quest for national reconciliation;
(iii) the
President does not, in the normal course of dealing with
applications in terms of section 84(2)(j) receive inputs
from the
victims and is under no obligation to do so and therefore also not
obliged to do so in the present instance;
(iv) the
Group is similarly under no obligation to hear the evidence of
victims, but if the President from a policy point
of view decides
that the Group ought to hear such evidence and instructs the Group
accordingly, the position will naturally
change.
0n
3 0ctober 2008 and 17 November 2008, the NGO coalition addressed
letters to the President and the Minister of Justice and

Constitutional Development respectively. In the said letter,
the concerns of the coalition regarding the Group's process
were
raised. In the letter to the President, the latter was urged to
refrain from any action on the pardon applications until
the concerns
of the coalition were resolved.
0n
9 December 2008 the Applicants' attorney addressed a letter to
the President wherein the President was urged not to pardon
any of
the perpetrators who had applied for pardon prior to considering
submissions from relevant victims.
After
several exchange of correspondence between their attorney and the
office of the President and the Minister of Justice and

Constitutional Development, the latter, on 10 March 2009 advised
their attorney that he has made certain recommendations to
the
President. The Minister further advised them that the remaining
applications and recommendations of the Pardon Reference Group
were
expected to be submitted to the President by Friday 13 March
2009.
0n the
same Friday, a letter from the President's office was received by
their attorney. In the said letter, it was stated,
inter alia
,
that the victim's submissions were not necessary.
3.
ANSWERING
AFFIDAVIT
It was attested to by
Mr K M Motlanthe, President of the Republic of South
Africa.
He
alleged that he now has the information and capacity to finalise the
pardon application referred to herein.
None of
the applicants have adduced evidence to show that they are victims of
conflicts of the past in their own rights.
When he
exercises his powers in terms of section 84(2)(j) of the
Constitution, the victims and/or third parties have no right to
a
hearing.
His
predecessor, when establishing the Pardons Reference Group,
contemplated
inter alia
that he had to deal with each
application for pardon individually, taking into account
recommendations made to him by the Pardons
Reference Group. The
Pardons Reference Group was established to assist the President in
the consideration of applications for
a pardon. Its primary function
was to consider applications for pardon that were submitted to the
Department of Justice and Constitutional
Development. Thereafter, it
was required to make recommendations in regard to each of the
applications.
He
intends to deal with applications for pardon which have been placed
before him. He also intends to consider recommendations
made to him
by the Pardons Reference Group.
The
rights and interests of victims of offences for which pardon is
sought have already been taken into account in the process
which led
to the trial, conviction and sentencing.
He
further stated that-
"It is worth
mentioning that the fact that the Reference Group did not take into
account any representations from victims
of crimes or their families
which they may have wished to place before them, does not
necessarily mean that I am precluded from
taking these
representations into account."
4.
ANSWERING
AFFIDAVIT OF FIRST INTERVENING PARTY
The affidavit was attested
to by Mr Paul Snaid, an attorney for Mr Ryan Albutt, the
first intervening party.
The first
intervening party is an applicant for a presidential pardon pursuant
to the special dispensation process which the Applicants
are
challenging.
He
described in some detail the offence for which Mr Albutt was
convicted and sentenced. The latter was alleged to have been
a
member of AWB, when he, together with other people, attacked and
assaulted people who were on strike in their area.
He
further alleges that he assisted Mr Albutt to complete the
pardon application and to meet and discuss with some of the
people
who were affected by the events for which Mr Albutt was
sentenced.
The
meeting between Mr Albutt and the victims was facilitated with
the assistance of the local ANC officials.
An
affidavit attested to by Mr Neville Mompathi, Secretary of the
African National Congress, Northern Cape was attached.
In the
said affidavit, Mr Mompathi,
inter alia
, confirms a
meeting that took place between Mr Albutt and some of the
victims at prison. He also supports that Mr Albutt's

application for pardon be granted.
5.
ANSWERING
AFFIDAVIT BY MR GERHARDUS JOHANNES TALJAARD MADE ON HIS BEHALF AND
ON BEHALF OF MESSRS ALENDER GEORGE WHITEHEAD, AREND
CHRISTIAAL DE
WAAL, WILLEM JACOBUS PETRUS JACOBS, HANS JACOB WESSELS AND REYNO
ADRIAAN ROSSOUW, THE SECOND TO SIXTH INTERVENING
PARTIES
It was attested to by
Mr Gerhardus Johannes Taljaard.
He
alleges that on 4 April 2008 he, together with the other intervening
parties, duly submitted their applications for Presidential
pardon to
the Department of Justice and Constitutional Development. They
believe that their applications are in the process of
being
considered by the Pardons Reference Group.
They
expect the Reference Group to make recommendations to the State
President shortly.
Together
with the other intervening parties they were found guilty on
12 January 2005 on charges of culpable homicide and
public
violence and they were each sentenced to eight years imprisonment.
They appealed their convictions and sentences and their
appeals were
dismissed. As they were out on bail, they started serving their
sentences during January 2008.
Victim
participation is not a prerequisite in a Presidential pardon process.
They have notified the widow and family members of
the deceased in
the culpable homicide charge that they have applied for the
Presidential pardon. There are no valid reasons for
interdicting the
President from finalising the Presidential pardon process.
He
further alleged that-
"The remedy now being
relied on is premature as, at this stage, it is not clear that there
was indeed no victim participation
in the pardons that are
considered and about to be finalised. That will only become clear
once specific pardons had been granted
and it appears that the
victims concerned had not been informed."
There is
a further respondent who joined the proceedings, but his answering
affidavit is basically the same as the ones of Respondents
three to
nine and I will not deal specifically with his affidavit.
6.
REPLYING
AFFIDAVIT : RE FIRST TO NINETH INTERVENING PARTIES
It was attested to by
Mr Hugo Van der Merwe, the Programme Manager of the First
Applicant.
He
pointed out that Mr Ryan Albutt is a supporter of the Afrikaner
Weerstandsbeweging who has applied for Presidential Pardon.
In his
application for pardon, he did not disclose in full his participation
in the offences for which he, together with other
intervening
parties, were convicted for.
He
referred to the remarks of the Supreme Court of Appeal in the matter
of
S v Whitehead and 0thers
2008(2) All SA 257 (SCA), in
which remarks the activities of the intervening parties are set out.
He
further alleges that since the Special Dispensation was shrouded in
secrecy and since the Pardons Reference Group, with the
approval of
the President, refused to disclose the contents of political pardon
applications or seek out the views of victims or
other interested
persons, nobody was able to highlight the aspects of the crimes
committed by Mr Albutt and the other intervening
parties for the
benefit of the Pardons Reference Group.
In reply
to the other intervening parties' allegations, he stated,
inter
alia
, that there were some 2 300 applicants for political
pardons. The Pardons Reference Group refused to disclose who had
applied
for pardons, in respect of what crimes pardon had been
applied for, the motivations for the pardon applications and who the
Group
had recommended for pardon.
After the
Fifth Applicant had launched an application under the Promotion of
Access to Information Act, a list containing names
of the political
pardon applicants was supplied some two working days before the
expiry of the mandate of the Pardons Reference
Group. The Applicants
do not know who the Group have recommended for pardon, and
consequently Applicants do not know which victims
will potentially be
affected by the Special Dispensation on Political Pardons.
The
framework for the Special Dispensation outlined by President Mbeki in
a joint sitting of Parliament on 21 November 2007,
specifically
called for openness and transparency. The President further stated
that the process will be guided by values and
principles enshrined in
the Constitution as well as the "principles, criteria and
spirit" of the Truth and Reconciliation
Commission ("TRC").
7.
FINDINGS
7.1
Locus standi
Section 1(a) of the
Constitution of the Republic of South Africa, 1996 ("The
Constitution") reads as follows:
"1. The Republic
of South Africa is one sovereign, democratic state founded on the
following values:
(a) human dignity, the
achievement of equality and the advancement of human rights and
freedoms."
Section
84(2) reads as follows:
"The President is
responsible for …
(j) pardoning or
reprieving offenders and remitting any fines, penalties or
forfeitures."
Section
38 provides that
"Anyone listed in
this section has the right to approach a competent court, alleging
that a right in the Bill of Rights
has been infringed or
threatened, and the court may grant appropriate relief, including
a declaration of rights. The persons
who may approach a court
are:
(a) anyone acting in
their own interest;
(b) anyone acting on
behalf of another person who cannot act in their own name;
(c) anyone acting as a
member of, or in the interest of, a group or class of persons;
(d) anyone acting in
the public interest; and
(e) an association
acting in the interest of its members."
The
Respondents' Counsel in their written submissions and during oral
argument submitted that the Applicants have no
locus standi
to bring this application. In
Lawyers for Human Rights v
Minister of Home Affairs
[2004] ZACC 12
;
2004 4 SA 125
(CC) at 135E F
(paragraph 15) YACOOB, J when dealing with the question of
standing said:
"Subsection (d)
expressly allows court proceedings by individuals or organisations
acting in the public interest. Public
interest standing is given
in addition to those provisions that allow for actions to be
instituted on behalf of other persons
and on behalf of a class.
Subsection (d) therefore connotes an action on behalf of people on
a basis wider than the class
actions contemplated in the section."
See
also
Centre for Child Law v MEC for Education, Gauteng
2008 1
SA 223
(T) at 225B C and
Campus Law Clinic, University of
KZN v Standard Bank of SA
[2006] ZACC 5
;
2006 6 SA 103
(CC) at 112C E para
20.
All
the Applicants in the founding affidavit allege that they are acting
in the public interest. Their founding documents allow
them to act
in the public interest.
Section
38(c) allows a person or organisation to approach a Court if the
latter is,
inter alia
, acting on behalf of a group or class
of persons.
In
this case the Applicants brought this application on behalf of a
group of victims who might have a right to be heard (as alleged
by
the Applicants) by President prior to President considering pardons.
Applicants
might also act on behalf of other persons as provided for in section
38(b) mentioned above.
I am
of the view that the Applicants have standing in this matter as
provided for in one or more of the subparagraphs of section
38.
7.2
Non-joinder
The Respondents' Counsel
submitted that the application is flawed on account of non-joinder.
It was further submitted that all
the applicants for pardon should
have been joined by the Applicants in this action.
Apparently
over two thousand prisoners, who are serving their sentences at
different prisons, have applied for pardon.
A
list of the said prisoners was made available to the Applicants, but
not a list of those that the Pardon Reference Group has
recommended
that they should be released on pardon was not given to the
Applicants in this matter.
I do
not believe that it was necessary to serve these papers on all the
pardon applicants prior to the hearing of this application.
It
was, in my view, necessary to serve these papers on the pardon
applicants who have been recommended for release on pardon,
but that
was not possible as the Reference Group failed to provide the
Applicants with such a list.
Failure
to serve these papers on the prisoners recommended for release
cannot be fatal to this application.
7.3
Powers
of the President
The next question I would
like to consider is the power conferred on the President by section
84(2)(j) of the Constitution mentioned
above.
The
Respondent's Counsel submitted that the President has unfettered
discretion to carry out his constitutional obligations as
he deems
fit. President's discretion is not limited.
0n
the other hand, the Applicants' counsel submitted that the granting
of a pardon constitutes an "administrative action"
and is
subject to review in terms of
Promotion of Administrative Justice
Act 3 of 2000
.
Section 1
of the latter Act contains a definition of an "administrative
action", and also mentions powers or functions which
are
excluded from the definition of an administrative, and in that
regard it reads as follows:
"… but does not
include-
(aa) the executive
powers or functions of the National Executive, including the
powers or functions referred to in sections
79(1) and (4),
84(2)(a), (b), (c), (d), (f), (g), (h), (i) and (k), 85(2)(b),
(c), (d) and (e) …"
Section
84(2)(j) is not mentioned as one of the powers excluded from the
definition of "administrative action".
There
is a rule of construction in our common law called
unius inclusio
est alterius exclusio
, which loosely translated means the
express mention of the one is the exclusion of the other. The said
rule can be of assistance
in interpreting contents of a document or
provision in a statute. In
Consolidated Diamond Mines v
Administrator SWA
1958 4 SA 572
(AD) at 648H, STEYN, JA when
discussing the said rule said-
"It affords, I
think, no more than a
prima facie
indication of the
legislature's intention."
In
Makholiso and 0thers v Makholiso and 0thers
1997 4 SA 509
(TkSC) at 517D E PICKERING, J said:
"Furthermore,
although I am mindful of the fact that the maxim
inclusio unius
est alterius exclusio
is not a rigid rule of statutory
construction and that it must at all times be applied with great
caution. [See
Administrator, Transvaal and 0thers v Zenzile and
0thers
1991 1 SA 21
(A) at 37H.” See also
Minister of
Health NO v New Clicks SA (Pty) Ltd
2006 2 SA 311
(CC) at
p373A H (paras 124, 125 and 126).]
My
view is that the application of the above-mentioned rule of
statutory construction in this case will not offend any of the

values and principles enshrined in our Constitution, and it is
appropriate to utilize the said rule of construction.
To me
it appears that the legislature did not intend to exclude the
President's power of Pardon from the definition of an
"administrative
action". 0therwise, the legislature would
have included section 84(2)(j) in
section 1(a)(a)
of the
Promotion
of Administrative Justice Act,
>supra
.
7.4
Does
victims of crime have a right to be heard prior to President
exercising powers in terms of
section 84(2)(j)
3>7.4
.1 The Respondents'
Counsel submitted that the victims of crime are not entitled to be
heard prior to the President exercising
his powers in terms of
section 84(2)(j).
0n
the other hand, the Applicants' Counsel
submitted that the victims of crime, their families and other
interested parties
have a right to participate in the pardon
process and make inputs.
7.4.2 In
South Africa, the Service Charter for Victims of Crime makes
provision for the victim's inputs when a prisoner is
to be
considered to be released on parole. This accord with the United
Nations' Declaration of Basic Principles of Justice
for Victims of
Crime and Abuse of Power 1985.
In
Derby-Lewis v Minister of Correctional Services and 4 0thers
case no 54507/08 Northern Gauteng High Court, (unreported full
bench decision) it was held that in parole hearings, the victim
or
relatives of the victim have a right to be heard before a prisoner
is released on parole. 0n p25 the Court said:
"Before a prisoner
can be placed on parole all possible relevant information should
be considered. 0ne cannot argue,
as the applicant now does, that
the fifth respondent's representations will be of a political
nature and nothing else.
Any person, including the applicant,
may put relevant information before a Board. It is the duty of
that Board to weigh
and consider all information placed before it
and to exclude information that may be irrelevant."
The
practical effect of a parole and pardon are the same. I cannot
find any justification for allowing victims of crime
to be heard
prior to a prisoner being released on parole, but to deny the same
right to a victim in the case of a pardon.
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.
7.4.3
President's
address to the joint sitting of Parliament
0n 21 November 2007 the
President addressed the joint sitting of Parliament. He dealt
with the need to deal with political
prisoners who are still in
detention and did not apply for amnesty through the TRC process.
He further said that consideration
has been given to the use of
Presidential pardon to deal with the "unfinished business".
He
requested political parties represented in Parliament to appoint
representatives who would serve on a Pardon Reference
Group that
would consider each of the requests for pardon which the President
would refer to the Group, and make recommendations
to the
President. In the said speech the following are also stated:
"Further, the
President will, with regard to each application placed before
him-
seriously consider the
recommendations made to him by the Reference Group-
- form an independent
opinion on the basis of the facts/information placed before
him, to arrive at a decision whether
to grant or refuse pardon;
and
in so doing, the
President will be guided by the principles and values which
underpin the Constitution, including the
principles and
objectives of nation building and national reconciliation; and
- uphold and be
guided by the principles, criteria and spirit that inspired and
underpinned the process of the Truth
and Reconciliation
Commission, especially as they relate to the amnesty process."
It
is common cause between the parties that the Amnesty Process of
the TRC was transparent and allowed full participation
by the
victims and their families.
The
President made a public commitment about the process that he would
follow in order to consider the pardon applications.
In
the Heads of Argument the Applicant's Counsel referred the Court
to the case of
Johannesburg Municipal Pension Fund and 0thers v
City of Johannesburg and 0thers
2005 6 SA 273
(W), at 290B-C
MALAN J said:
"Public
administrators must be accountable; act lawfully and fairly and
not arbitrarily; act honestly and ethically
and be bound by their
lawful undertakings."
I agree
with the sentiments expressed above.
The
President made a lawful public commitment. The said commitment
accords with the basic values and principles enshrined
in our
Constitution.
In
order to act in accordance with his public commitment, my view is
that the President should allow the victims, and/or their
families
and interested parties to be heard prior to releasing any prisoner
on parole.
8.
IMPACT
OF DECISION OF SUPREME COURT OF APPEAL IN
MINISTER OF
CONSTITUTIONAL DEVELOPMENT v CHONGO
159/08
(2009) ZASCA
31
(30 MARCH 2009)
.
In the above-mentioned
case, the Supreme Court of Appeal confirmed an order of this Court
which required the Second Respondent
to do what is necessary within
a period of three months from date of order to enable the President
to exercise powers conferred
upon him in terms of section 84(2)(j)
of the Constitution in an informed manner with regard to certain
pardon applications.
The
Respondents' Counsel submitted that there is an urgent need on the
part of the President to make relevant decisions on applications
for
pardon that have now been submitted to him.
The
Respondents' Counsel further submitted that the effect of the orders
sought by the Applicants in these proceedings will be
to delay and
also deprive the President of his constitutional responsibility.
In
my view, the effect of the above-mentioned judgment has no effect on
the question of how does the President should go about
in exercising
his powers to decide on granting a pardon or not.
The
question of victim participation was not raised in the said case.
The decision did not suggest that victim participation
should be
excluded nor did it imply that.
If
victim participation is allowed that does not mean that the
President is deprived of his constitutional responsibility.
The
Applicant’s Counsel has submitted, correctly so, that the
Applicants have made out a case for the relief contained in Part
A
of the notice of motion.
9.
CONCLUSION
The other Respondents,
namely third to tenth Respondents, have had some contact with some
of the victims.
I do
not intend to deal with the said contact because that does not mean
that the victims of the offences they committed had
an opportunity
to make proper representation to the President nor the Pardon
Reference Group. 0ther interested parties, like
the Applicants in
this case, might want to make inputs if given an opportunity to do
so.
I do
not believe that there are any bases for exempting them from the
interim relief I intend granting. I intend granting the
interim
relief because I am of the view that the Applicants have made out a
case for the relief sought in Part A of the
notice of motion.
I
believe that it is necessary that prisoners who might be affected by
orders sought in these proceedings, should be made aware
of these
proceedings.
At
the same time, the Court should recognise that it might be difficult
for the Applicants to serve papers on all the pardon
applicants, but
I believe that they might be able to serve the papers on those
applicants for pardon who have been recommended
for release by the
Pardon Reference Group.
The
Court therefore makes the following interim order:
(a) The First Respondent
is interdicted from granting any pardon in terms of the "Special
dispensation for Presidential
pardons for political offences"
until such time as the proceedings described in Part B is
finalised.
(b) The
First and/or the Second Respondent are to provide the Applicants
with the list of prisoners recommended for release
by the Pardon
Reference Group.
(c) Applicants
must serve the papers in this matter on the applicants for pardon
mentioned in (b) above.
(d) The
Second Respondent must make other applicants for parole [except
those mentioned in (b) above], aware of these proceedings.
(e) Costs
of this application to be costs in the proceedings mentioned in
Part B of the notice of motion.
W L
SERITI
JUDGE OF THE NORTH
GAUTENG HIGH COURT
15320/2009
HEARD
ON
: 6 April 2009
FOR THE
APPLICANTS
: G Budlender SC, K Pillay, H Varney and L Kubukeli
INSTRUCTED
BY
: Legal Resources Centre
FOR THE
1
ST
& 2
ND
RESPONDENTS
: M Moerane SC, V Maleka SC and L Gcabashe
INSTRUCTED
BY
: State Attorney
FOR THE 3
RD
RESPONDENT
: N B Tuchtem SC and N Riley
INSTRUCTED BY
: Shaid
& Edworthy Attorneys
FOR THE
4
TH
-10
TH
RESPONDENTS
: B C Bredenkamp SC
INSTRUCTED BY
:
Fourie Fismer Inc.