Minister for Justice and Constitutional Development v Chonco and Others (CCT 42/09) [2009] ZACC 25; 2010 (1) SACR 325 (CC) ; 2010 (2) BCLR 140 (CC) ; 2010 (4) SA 82 (CC) (30 September 2009)

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Minister for Justice and Constitutional Development v Chonco and Others (CCT 42/09) [2009] ZACC 25; 2010 (1) SACR 325 (CC) ; 2010 (2) BCLR 140 (CC) ; 2010 (4) SA 82 (CC) (30 September 2009)

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CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case CCT
42/09
[2009] ZACC 25
MINISTER
FOR JUSTICE AND CONSTITUTIONAL DEVELOPMENT
…
...
Applicant
versus
MQABUKENI
CHONCO AND 383 OTHERS
…
...
Respondents
Heard
on : 25 August 2009
Decided
on : 30 September 2009
JUDGMENT
LANGA CJ:
Introduction
Mr Mqabukeni Chonco was
convicted of robbery, the unlawful possession of a firearm and
ammunition, attempted murder and murder
in 1989. He was sentenced
to death for murder. The carrying out of the death penalty was
later suspended in 1990 and Mr Chonco’s
sentence was commuted to
life imprisonment when the death penalty was removed as a judicial
punishment in South Africa because
of its inconsistency with the
Constitution.
1
He is still in prison and has now lodged an application for
presidential pardon in terms of the powers vested in the President

by virtue of section 84(2)(j) of the Constitution. The relevant
part of section 84 provides—
“
(1) The
President has the powers entrusted by the Constitution and
legislation, including those necessary to perform the
functions
of Head of State and head of the national executive.
(2) The
President is responsible for—
. . .
(j) pardoning or
reprieving offenders and remitting any fines, penalties or
forfeitures”.
Background
During the 1980s and in
the early years of democracy, a maelstrom of political violence
raged through our country between, amongst
others, the supporters of
the African National Congress (ANC) and the Inkatha Freedom Party
(IFP). Mr Chonco, a member of the
IFP, alleges that the murder for
which he was convicted, a murder that occurred during that era, was
a crime committed for a
political objective.
The Truth
and Reconciliation Commission (TRC), established under the Promotion
of National Unity and Reconciliation Act 34 of
1995 (Reconciliation
Act), provided a mechanism for the granting of amnesty to
perpetrators of gross human rights violations
in return for
disclosure of the horrors committed with a political objective. The
Reconciliation Act also made provision for
reparation to victims and
the closing of the book on the past.
2
The process provided an opportunity for Mr Chonco, and others in
his circumstances, to come forward, make a disclosure of what
they
knew regarding the gross violations of human rights that had taken
place and, if they qualified, be granted amnesty and
receive
absolution for the crimes for which they had been convicted. Mr
Chonco did not, however, apply for amnesty since, he
says, the IFP
chose not to participate in the TRC process and its members were
likewise instructed not to take part. Only in
early 2003, after the
TRC process had ended, did Mr Chonco apply to the President to be
pardoned for his crimes.
Mr
Chonco’s application was joined by 383 other convicted prisoners.
Their applications for pardon were assisted and supported
by the
IFP. They applied for pardon on the ground that the crimes for
which they had been convicted and imprisoned had been
committed for
political objectives. From the answering affidavit filed on behalf
of the Minister for Justice and Constitutional
Development (the
Minister) in the North Gauteng High Court (High Court), and Mr
Chonco’s reply to it, it appears that these
applications were
lodged in May 2002, after the President pardoned 33 members of the
ANC and the Pan Africanist Congress (PAC),
who had applied to the
TRC, wholly or partly unsuccessfully, for amnesty.
All the
applications were received by the Minister, who is the applicant for
leave to appeal. A considerable time passed without
a response from
the President or the Minister. Various members of the IFP raised
the matter in letters to the President, in
parliamentary debates and
in general speeches. In September 2005, in answering a question
posed to him in Parliament, the President
acknowledged that he had
not yet seen these applications for pardon. He stated, however,
that he had “urged” the Minister
to expedite the processing of
the applications.
3
Nothing happened, however,
after this statement by the President. After a substantial lapse of
time, during which the IFP lodged
a complaint against the Minister
with the South African Human Rights Commission on Mr Chonco and the
other prisoners’ behalf,
Mr Chonco commenced proceedings against
the Minister, as first respondent, and the President, as second
respondent, in the High
Court. The proceedings were supported by
the PAC, whose Member of Parliament, Mr Pheko, lodged a supporting
affidavit as part
of the founding papers.
High
Court
The order sought by Mr
Chonco before Seriti J in the High Court was one declaring that the
Minister, as the assignee of the President
or as a delegated member
of the national executive, had failed to exercise her constitutional
obligation to process, with diligence
and without delay, the
applications for pardon, and thus enable the President to consider
and decide upon the applications in
terms of section 84(2)(j). In
the alternative, Mr Chonco argued that the failure by the Minister
to take a decision regarding
each of the applications constituted
administrative action and was reviewable in terms of section 6(2)(
g
)
of the Promotion of Administrative Justice Act 3 of 2000 (PAJA).
4
Consequently, Mr Chonco requested the High Court to direct the
Minister to do everything necessary to enable the President to

exercise the powers conferred upon him by section 84(2)(j).
Although the President was joined in the High Court proceedings,
no
relief was sought against him and he did not participate in the
proceedings.
The High
Court noted that although the power to pardon was vested solely in
the President as Head of State, applications were
in practice
received, processed and commented upon within the Department of
Justice and Constitutional Development and subsequently
passed on to
the President for decision. He ruled that this practice was in
accordance with the law and therefore had legal
consequences. The
request for assistance by the President to the Minister created an
obligation on the part of the Minister.
He noted
further that more than four years had passed and none of the
applications had been processed and no recommendations had
been made
to the President. He held that the Minister had failed to perform
her functions diligently and without delay as required
by section
237 of the Constitution.
5
The
Minister was consequently ordered to do everything necessary, within
three months, to enable the President to act in terms
of section
84(2)(j). The Minister thereupon sought leave to appeal to the Full
Bench of the High Court, alternatively to the
Supreme Court of
Appeal, against the judgment of the High Court. Leave to appeal to
the Supreme Court of Appeal was granted.
The President did not join
in the appeal.
Supreme
Court of Appeal
In the Supreme Court of
Appeal, the Minister argued that there was no constitutional
obligation on the part of the Minister to
process applications for
pardon, since that function vested exclusively in the President as
Head of State in terms of section
84(2)(j).
In a
short, unanimous judgment delivered by Farlam JA, the Supreme Court
of Appeal dismissed the appeal and ruled that the Minister
bore
obligations stemming from section 85(2)(e) of the Constitution.
Section 85(2) provides in relevant part:
“
The
President exercises the executive authority, together with the
other members of the Cabinet, by—
. . .
(e) performing
any other executive function provided for in the Constitution or
in national legislation.”
The
definitive paragraph in that judgment reads as follows:
“
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”.
6
Issues
before this Court
The Minister now seeks
leave to appeal to this Court. The application is concerned with
the Minister’s failure to process applications,
the consideration
of which is an exclusive function of the President in terms of
section 84(2)(j). The question is whether this
failure amounts to a
breach of a constitutional obligation under section 85(2)(e) on the
part of the Minister in her capacity
as a member of the national
executive. Whether the High Court and the Supreme Court of Appeal
were correct in their characterisation
of the functions and
obligations under sections 84(2)(j) and 85(2)(e) thus arises for
determination.
Is a
constitutional issue raised and should leave to appeal be granted?
The first issue which
needs to be addressed is whether the appeal raises a constitutional
issue. If it does, I must consider
whether it is in the interests
of justice that leave to appeal be granted. In my view, both
questions must be answered in the
affirmative. In the first place,
the matter is principally concerned with the interpretation and
application of two sections
of the Constitution, namely, sections
84(2)(j) and 85(2)(e). The interpretation of the Constitution is
always a constitutional
issue.
7
The
issues raised deal with the relationship between the powers and
functions of the President as Head of State, on the one hand,
and
those that are entrusted to the national executive, on the other, as
well as the obligations that accrue to each. Clarification
of these
respective, powers, functions and obligations is a matter of the
greatest importance. It is, in my view, clearly in
the interests of
justice that leave to appeal be granted.
It is
necessary at this stage to draw attention to the further directions
that were issued. This was after certain documents
had been lodged,
namely the founding affidavit by the Minister, a confirmatory
affidavit by the President and, later, the opposing
affidavit of Mr
Chonco. In relevant part, the directions read as follows:
“
The
parties and the President, if so advised, are required to make
written submissions in light of sections 84(2)(j) and 167(4)(e)
of
the Constitution on whether:
(a)
the High Court and the Supreme Court of Appeal were competent to
hear the matter;
(b)
only this Court is competent to hear the matter; and
(c)
is it permissible to determine these issues which arise without
joining the President as a party to these proceedings.”
Written
responses and submissions were received from the parties and from
the President. Mr Chonco then sought leave to seek
relief against
the President. Initially he brought a notice of amendment to his
original notice of motion in the High Court.
When the Minister
protested, he brought an application for direct access to this
Court. At the hearing, he abandoned this expansion
of the matter
and it was subsequently struck from the roll. This renders it
unnecessary to consider the direct access application.
Submissions
of the Minister and the President
The Minister and the
President filed written submissions jointly. They contend that the
process of verification, assessment and
evaluation of applications
for pardon is not a national executive function. Although the
procedure for the processing of pardon
applications is not
prescribed, it is a matter that falls exclusively within the
parameters of section 84(2)(j). Four reasons
are advanced in
defence of this proposition.
The first
reason is that it cannot be correct to divide the exercise of the
constitutional power to pardon into two, that being
the preparatory
preliminary stage and the making of the decision which is entrusted
to the President. This would have the effect
of shifting elements
of the President’s exclusive Head of State power to the Minister,
in her capacity as a member of the national
executive. Moreover, it
would result in uncertainty as to what constitutional obligation is
imposed upon whom and when it is
so imposed.
Second,
the power conferred on the Head of State by section 84(2)(j),
although an executive power,
8
is unrelated – both textually
9
and in its application – to the executive power given to the
national executive authority in terms of section 85(2)(e). The

former is exercised by the President alone whereas the latter is a
collaborative, collective venture between the President and
Cabinet.
The entitlement of the President to consult does not diminish this
responsibility nor parcel it out to those with whom
he consults.
This is particularly important given that such consultation may in
fact be desirable.
10
Third,
each Minister has a separate and specialist function,
11
and takes responsibility for that function.
12
Functions – and the legal obligations attendant – can, however,
be transferred by the President.
13
If a transfer is to be of legal effect, the Constitution prescribes
that it must be in writing,
14
otherwise the decision is of no effect. The Minister contends
that the lack of a written request from the President means that
no
responsibility with legal consequences passed to a member of the
national executive.
Last, in
response to the directions of this Court, the Minister and President
assert that the High Court and the Supreme Court
of Appeal lacked
jurisdiction to hear the matter. This is so because only the
Constitutional Court may decide that the President
has failed to
fulfil a constitutional obligation. Additionally, the President has
a direct and substantial interest in the matter
and should thus be a
necessary party to the proceedings.
The
Minister and the President accordingly contend that the former
cannot be held accountable under section 92(3)(a)
15
of the Constitution for failure to act in terms of the powers
conferred by section 85(2)(e). Therefore, relief against the
Minister is inappropriate. It is the President that must be
pursued.
Submissions
of Mr Chonco
Mr Chonco accepts that
executive powers and functions bestowed on the President under
section 84(2)(j) may be exercised only by
the President. However,
he argues that it follows from this that, if the Minister undertook
to process his application, she
did not do so pursuant to section
84(2)(j), since this Head of State power is reserved for the
President. Mr Chonco contends
that the Minister, in providing
assistance to the President’s exercise of this Head of State
power, was acting in terms of
section 85(2)(e). This is because the
principle of legality requires that a minister act pursuant to a
constitutional or statutory
grant of power.
Mr Chonco
contends that the Minister’s obligation and responsibility arose
from a source of power that is distinct from the
section 84 power
accorded to the President. Once the request had been made by the
President to process the applications, a legal
obligation upon the
Minister was generated.
In the
alternative, Mr Chonco argues that the Minister’s failure to act
constituted a failure to take a decision and is reviewable
in terms
of section 6(2)(
g
) of PAJA.
16
Sections
84 and 85 as sources of public power
This Court has repeatedly
held that the definite and proper sourcing of public power in law –
either in the Constitution or
in national legislation – is
fundamental to the principle of legality. In
Pharmaceutical
Manufacturers Association of South Africa and Another: In re Ex
Parte President of the Republic of South Africa
and Others
,
17
it was held that–
“
[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.”
18
This
Court expanded on this well-established principle in
Affordable
Medicines Trust and Others v Minister of Health and Others
:
19
“
The
doctrine of legality, which is an incident of the rule of law, is
one of the constitutional controls through which the exercise
of
public power is regulated by the Constitution. It entails that
both the Legislature and the Executive ‘are constrained
by the
principle that they may exercise no power and perform no function
beyond that conferred upon them by law’.”
20
(Footnotes omitted.)
This was
affirmed in
AAA Investments (Pty) Ltd v Micro Finance Regulatory
Council
,
21
in which it was held that—
“
[t]he
doctrine of legality, which requires that power should have a
source in law, is applicable whenever public power is exercised
. .
. . Public power . . . can be validly exercised only if it is
clearly sourced in law.”
22
It is
therefore necessary, first, to identify the source of the power to
carry out the preliminary process, prior to the Head
of State
decision and, second, to determine to whom that power accrues.
Sections
84 and 85 are sources of public power. They assign executive
functions to particular functionaries – the President
and the
national executive, respectively. A function is a tasked duty to
act in terms of the Constitution or legislation. A
functionary will
have the power necessary to fulfil a function that is assigned and,
naturally, the corresponding obligation
for its performance.
23
In
SARFU
,
24
this Court, affirming
Hugo
,
25
held that the powers section 84(2) confers on the President as Head
of State originate historically from the royal prerogative
and were
exercised by the Head of State rather than the head of the national
executive. The powers granted by section 84(2)
are now clearly
original constitutional powers. Section 84(2)(j) is the source of
the power, function and obligation to decide
upon applications for
pardon. Though there is no right to be pardoned, the 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,
26
diligently and without delay. That decision rests solely with the
President.
However,
the power to decide, though the principal focus of the section, is
not the only power it accords to the President. Section
84(1) gives
the President the powers ‘necessary’ to fulfil the functions
accorded to him or her. This indicates that the
President bears
powers that go beyond the principal decision-making power, and
include what may be described as ‘auxiliary
powers’. In
Fedsure
Life Assurance Ltd and Others v Greater Johannesburg Transitional
Metropolitan Council and Others
,
27
it was stated:
“
It
seems central to the conception of our constitutional order that
the Legislature and Executive in every sphere are constrained
by
the principle that they may exercise no power and perform no
function beyond that conferred upon them by law.”
28
Later,
the following appears:
“
Amongst
the powers vested in local governments . . . are powers which are
necessary for performing certain specific functional
competences
vested in councils. Where appropriate, these powers can be relied
upon . . . to justify legislative and executive
action necessary
for the implementation of the functional competences . . . .”
29
Accordingly,
the scope of these auxiliary powers is narrow – only those powers
reasonably necessary to properly fulfil the functions
in section
84(2) are endowed. These would include the power to request advice
30
as well as the power to initiate the processes needed to generate
that advice, such as receiving and examining applications for

pardon.
The
preliminary process at issue here is within the ambit of the
President’s auxiliary powers, implicit in section 84.
Relationship
between the preliminary process and the final decision
The final decision on a
pardon application, and the constitutional responsibility for that
decision, rests with the President
as Head of State. On that there
is no contest. Because in this case, however, the preliminary
process involves the Minister
as well, we must determine where
responsibility for this preliminary process lies. The answer lies
in the scope of the President’s
power to request assistance.
The
President assigns powers and functions to members of the national
executive in terms of section 91(2) of the Constitution.
The
members act collectively with the President in fulfilling the
national executive functions set out in section 85(2) for
which they
are collectively and individually accountable to Parliament under
section 92(2) of the Constitution. No such complex
matrix attaches
to the Head of State powers and functions under section 84 – they
are assigned to the President alone.
What
separates the exercise of powers and functions under section 84 from
those under section 85 is that the former are performed
exclusively
by the President, while the latter are performed collectively by the
President and members of the Cabinet.
In the
present matter, collective action has not occurred, nor can it be
presumed that it will occur. As with his or her unrestricted
power
to initiate the preliminary process, the President has the power to
make a final decision that need not bear any reference
to the
recommendation made during the preliminary process. Were the
preliminary process to be considered a collective action,
the result
would be that a failure to take preliminary action would prevent the
President from exercising a function and power
accorded solely to
him or her, so frustrating his or her powers as Head of State. The
President must accordingly retain the
sole ability to remove his or
her instructions, bypass the process initiated by him or her or
transfer the preliminary consideration
elsewhere.
Advice
rendered, be it by request or standing practice, does not transform
the solo character of Head of State powers and functions
into
national executive powers characterised by their collective
exercise. The preparatory steps to be taken by the Minister
and her
department fall within the auxiliary powers of the President in the
decision-making process. They are neither separate
from, nor
external to, that process.
The
President retains full powers and functions – and is therefore the
bearer of all obligations â€“in the greater pardons
process
under section 84(2)(j). In short, Mr Chonco has pursued the
incorrect party to obtain the legal relief that he seeks.
That this
pursuit may have been part of a litigation strategy crafted by Mr
Chonco and his advisors, in order to break the seeming
logjam in the
process of ministerial consideration, does not detract from this
conclusion. On the other hand, nothing in this
judgment must be
read to suggest that there could be no adverse consequences for a
minister’s inactivity or failure to fulfil
a discrete function
legitimately allocated by the President. After all, it is the
President who has the power to appoint, dismiss
or demote ministers
or to allocate them to particular portfolios. Ministers are,
furthermore, accountable to Parliament for
the performance of their
functions,
31
even though, in this case, concerted attempts by the applicants and
their advisors to engage this sphere proved unavailing.
I am
alert to the fact that the Supreme Court of Appeal, in finding that
the Minister was performing “preliminary executive
functions”
here ,was concerned that there should not be a field of conduct by
the administration for which there is no legal
accountability. But
the approach adopted in this judgment does not entail that there is
no accountability in relation to pardons.
It merely locates it in
the President alone. In fulfilling this and other constitutional
obligations the President is accountable
to Parliament. In
addition, the Constitution empowers this Court to determine whether
the President “has failed to fulfil
a constitutional obligation”.
32
The
alternative argument raised by Mr Chonco – administrative action
In the alternative, Mr
Chonco argued that the flaws in the preliminary process constituted
a failure to take a decision for which
the Minister should be held
accountable under PAJA. However, I have already found that the
relevant powers, functions and obligations
rest with the President
alone. Hence the requirement within subsections 1(
a
)(i) and
(ii) of PAJA that there be an exercise of public power in order to
create administrative action is not met. The Minister
did not fail
to exercise a public power. There was a public power, but it was
the President’s, not the Minister’s, to exercise.
The Minister
therefore cannot be held accountable for any unjust administrative
action that may have occurred. Whether or not
the preliminary
process may be deemed administrative action for which the President
could be held directly accountable, was not
argued, and need not be
decided upon in these proceedings.
Jurisdiction
and joinder
The finding that the
powers, functions and obligations vest solely in the President,
leads to the conclusion that this matter
should properly have come
directly before this Court. Section 167(4)(e) provides that
presidential obligations, as functions
exclusively of the Head of
State, are reviewable by this Court only.
33
It
follows that the joinder of the President as a party was the proper
course to follow. Clearly, he had a direct and substantial
interest
in the matter. Mr Chonco has pointed out that the President was
kept abreast of all developments in the matter. He
has indeed gone
so far as to join the Minister in preparing and submitting written
submissions on both the procedural questions
asked by this Court and
on the merits. By this, Mr Chonco suggested that the President had
been effectively joined. Given my
conclusion, however, that only
the President could be held accountable for the consideration of Mr
Chonco’s application for
pardon, this suggestion has no merit. It
was the President who should have been the sole target of the
litigation, and since
that was not done, Mr Chonco’s litigation
cannot be successful. In my view, the respondents were quite
correct in deciding
not to persist with this approach and the
belated attempt to rectify the non-joinder of the President was,
accordingly, abandoned
and consequently struck off the roll.
The
conduct of the Minister and the President
One more matter deserves
mention. Six years have passed since Mr Chonco posted his
application for pardon to the Minister. Yet,
despite public
undertakings made by the President and the Minister to expedite a
response to the applications, the respondents
have waited in vain.
This is unacceptable. The Constitution requires that all
constitutional obligations, wherever they lie,
“must be performed
diligently and without delay.”
34
Good governance and social trust are premised at least partly on
reasonable and responsive decision making. It is however not
clear
from the papers who precisely is to blame for the delay. It may
well have been the President’s failure to authorise
or expedite
the drawing up of a framework to facilitate consideration of
applications for pardon. One thing is certain, though
– this kind
of delay is out of kilter with the vision of democratic and
accountable governance.
Costs
No costs order was sought
by the Minister. This follows the practice in this Court whereby no
costs awards are made against private
litigants who have
unsuccessfully raised a substantial constitutional issue against the
state.
35
However, as I have pointed out already, Mr Chonco targeted the
Minister in this litigation because of the President’s indication

in Parliament, in September 2005, that he would “consider the
appropriateness of a presidential pardon for each case” only
once
the Ministry and the Department of Justice had “completed the
processing of the applications”. On the same day, Mr
Chonco’s
attorney wrote to the Minister requesting an urgent appointment to
discuss the President’s signification that “[the
Minister] and
the Deputy Minister will give attention to these applications”.
No response to this urgent request is recorded
in the papers.
Indeed, in response to a further parliamentary question from Mr
Chonco’s attorney, who is also a Member of
Parliament, in October
2006, the Minister indicated that the applications had still not
been processed and that, at that stage,
there were no reasonable
prospects of finalising the process. And, as indicated earlier,
more months of further seeming inaction
followed before Mr Chonco
initiated these proceedings at the end of May 2007.
In these
circumstances, it was understandable that Mr Chonco and his legal
advisors would seek to hold the Minister accountable
through
litigation. Although we reverse the finding in law of the High
Court and the Supreme Court of Appeal, the circumstances
in which
the application was brought, together with the unacceptable delay in
dealing with Mr Chonco’s and the other applications
for pardon,
justify a singular approach to the costs of the case. In my view,
justice requires that Mr Chonco, the 383 other
applicants for pardon
and their legal advisors should not be out of pocket because of
their recourse to legal proceedings. The
successful applicant for
leave to appeal, the Minister, should pay the costs of Mr Chonco and
the 383 other applicants for pardon.
Conclusion
The appeal succeeds. Mr
Chonco, though litigating for reasons to which the Court is
sympathetic, has sued the wrong party to
obtain the legal relief he
seeks. I express no view as to the prospects of a future challenge
that may be brought directly against
the President.
Order
The following order is
made:
The application for leave
to appeal is granted.
The appeal is upheld.
The order of the Supreme
Court of Appeal is set aside and replaced by the following order:
“
(a)
The appeal is upheld.
(b) The application in
the High Court is dismissed
(c) The appellant is
ordered to pay the costs of the appeal.”
The applicant is ordered
to pay the respondents’ costs in this Court.
Moseneke
DCJ, Cameron J, Mokgoro J, Ngcobo J, Nkabinde J, O’Regan J, Sachs
J, Skweyiya J and Van der Westhuizen J concur in
the judgment of
Langa CJ.
For the
Applicants:
For the
Respondents:
Advocate
MTK Moerane SC and Advocate L Gcabashe instructed by the State
Attorney, Pretoria.
Advocate
TJ Kruger SC and Advocate C van Jaarsveld instructed by JH van der
Merwe Inc.
1
S v Makwanyane and Another
[1995] ZACC 3
;
1995 (3) SA 391
(CC);
1995 (6) BCLR 665
(CC).
2
For a discussion on the TRC and the granting of
amnesty, see
Azanian Peoples Organisation
(
AZAPO) and
Others v President of the Republic of South Africa and Others
[1996]
ZACC 16
;
1996 (4) SA 671
(CC);
1996 (8) BCLR 1015
(CC); and
Du
Toit v Minister for Safety and Security and Another
[2009]
ZACC 22
, Case No. CCT 91/08, 18 August 2009, as yet unreported.
3
The President is recorded in
Hansard,
8 September 2005,
pages 22–5, as stating:
“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 .
. . .
However,
I’d like to draw the attention of the hon member to some of the
difficulties that attend the application for presidential
pardons
submitted by the IFP. I am informed that some of the people
concerned are serving sentences for offences that include
murder,
robbery, housebreaking, theft and rape.
The
IFP says these offences were committed in the context of the
terrible political violence that engulfed KwaZulu-Natal, Gauteng

and Mpumalanga during the years of transition from apartheid to
democracy. None of the applicants took advantage of the Truth
and
Reconciliation Commission process to apply for amnesty. The
Ministry and Department of Justice must therefore go through
the
complex process of deciding the basis on which to make any
recommendations to the President, whether for or against each

individual application.
For
instance, it’s difficult to understand how the IFP and the
applicants concerned can explain that defenceless women were
raped
in order to advance a political purpose of the IFP. I am sure that
the IFP wouldn’t argue that. I am sure the IFP
wouldn’t argue
that, and thus transform the heinous crime of rape into a
pardonable political offence.
. .
.
They
must also ensure that their recommendations to the President are
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, 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.
I’d
also like to remind the hon member that when we tabled the report
of the TRC in Parliament, we indicated that those who
had committed
political offences within the meaning of the TRC Act and had not
taken advantage of the TRC process would have
the option to engage
the National Prosecuting Authority.
Government
made the suggestion precisely to minimise the intervention of the
President of the Republic in the manner requested
by the IFP when
it asked the President to pardon serving prisoners, basing himself
on claims made by prisoners and political
parties that rape,
housebreaking and robbery have been committed to advance a
legitimate political cause.
Nevertheless,
as I have already indicated, we will in due course respond to the
applications lodged by the IFP. However, I
would plead with the
hon member to understand that what his party has asked the
President of the Republic to do carries extremely
serious
implications for what our country has been striving to achieve over
the last 11 years, relating to such important issues
such as
national reconciliation, respect for the rule of law and the
promotion of safety and security for everybody within
our borders .
. . .
Faced
with the challenge to make decisions that bear on such grave
matters, I believe that we must make haste slowly.”
4
Section 6(2) of PAJA reads in relevant part:
“
A
court or tribunal has the power to judicially review an
administrative action if—
. .
.
(g)
the
action concerned consists of a failure to take a decision . . . .”
Section
1(i) of PAJA defines “administrative action” in part as

“
.
. . any decision taken, or any failure to take a decision, by—
(a)
an
organ of state, when—
exercising
a power in terms of the Constitution or a provincial constitution;
or
exercising
a public power or performing a public function in terms of any
legislation;
.
. .
which
adversely affects the rights of any person and which has a direct,
external legal effect . . . .”
5
Section 237 of the Constitution reads:
“All
constitutional obligations must be performed diligently and without
delay.”
6
Minister for Justice and Constitutional Development v Mqabukeni
Chonco and 383 Others
Case No. 159/08 Supreme Court of Appeal,
30 March 2009, as yet unreported, at para 42.
7
Section 167(7) of the Constitution reads:
“
A
constitutional matter includes any issue involving the
interpretation, protection or enforcement of the Constitution.”
8
See
President of the Republic of South Africa and Another v Hugo
[1997] ZACC 4
;
1997 (4) SA 1
(CC);
1997 (6) BCLR 708
(CC) at
para 11; and
Ex parte Chairperson of the Constitutional Assembly:
In re Certification of the Constitution of the Republic of South
Africa,
1996
[1996] ZACC 26
;
1996 (4) SA 744
(CC);
1996 (10)
BCLR 1253
(CC) at para 117.
9
See
President of the Republic of South Africa and Others v
Quagliani; President of the Republic of South Africa and Others v
Van Rooyen
and Another; Goodwin v Director-General, Department of
Justice and Constitutional Development and Others
[2009] ZACC 1
,
Case No. CCT 24/08 (
Quagliani
) and CCT 52/08 (
Goodwin
),
21 January 2009, as yet unreported, at paras 21-2; and
Hugo
above
n 8 at para 12.
10
See
President of the
Republic of South Africa and Others v South African Rugby Football
Union and Others
[1999] ZACC 11
;
2000
(1) SA 1
(CC);
1999 (10) BCLR 1059
(CC) (
SARFU
)
at para 41.
11
Section 91(2) of the Constitution reads:
“
The
President appoints the Deputy President and Ministers, assigns
their powers and functions, and may dismiss them.”
12
Section 92 of the Constitution reads:
“
(1) The
Deputy President and Ministers are responsible for the powers and
functions of the executive assigned to them by
the President.
Members
of the Cabinet are accountable collectively and individually to
Parliament for the exercise of their powers and the
performance of
their functions”.
13
Section 97 of the Constitution reads:
“
The
President by proclamation may transfer to a member of the Cabinet—
the
administration of any legislation entrusted to another member; or
any
power or function entrusted by legislation to another member.”
Section
98 of the Constitution reads:
“
The
President may assign to a Cabinet member any power or function of
another member who is absent from office or is unable
to exercise
that power or perform that function.”
14
Section 101(1) of the Constitution reads:
“A
decision by the President must be in writing if it—
is
taken in terms of legislation; or
has
legal consequences.”
15
Section 92(3) of the Constitution reads in relevant part—
“Members
of the Cabinet must—
(a) act
in accordance with the Constitution . . . .”
16
Given their conclusion that the Minister was to be accountable under
section 85, neither the High Court nor the Supreme Court
of Appeal
found it necessary to decide whether this contention was sound.
17
[2000] ZACC 1; 2000 (2) SA 674 (CC); 2000 (3) BCLR 241 (CC).
18
Id at para 20.
19
[2005] ZACC 3
;
2006 (3) SA 247
(CC);
2005 (6) BCLR 529
(CC).
20
Id at para 49.
21
[2006] ZACC 9
;
2007 (1) SA 343
(CC);
2006 (11) BCLR 1255
(CC).
22
Id at para 68.
23
Currie and De Waal
The New Constitutional and Administrative Law
Volume 1: Constitutional Law (Juta, Cape Town, 2002) at 235.
24
Above
n 10 at para 144.
25
Above n 8 at paras 6–8.
26
SARFU
above n 10
at para 148.
27
[1998] ZACC 17
;
1999 (1) SA 374
(CC);
1998 (12) BCLR 1458
(CC).
28
Id
at para 58 in the judgment by Chaskalson P together with
Goldstone and O’Regan JJ, with Ackermann and Madala JJ concurring.
29
Id
at para 138 in the judgment by Kriegler J with Langa DP,
Sachs, Yacoob and Mokgoro JJ concurring.
30
SARFU
above n 10 at para 41.
31
See section 92(2) of the Constitution, above n 12.
32
Section 167(e) of the Constitution reads in
relevant part:
“Only
the Constitutional Court may―
.
. .
(e) decide
that Parliament or the President has failed to fulfil a
constitutional obligation”.
33
This develops the observations made in
Women’s Legal Centre
Trust v President of the Republic of South Africa and Others
[2009]
ZACC 20
, Case No. CCT 13/09, 22 July 2009, as yet unreported, at
paras 16 and 20.
34
Section 237 of the Constitution, above n 5.
35
Biowatch Trust v Registrar, Genetic Resources and Others
[2009]
ZACC 14
, Case No. CCT 80/08, 3 June 2009, as yet unreported, at
paras 21–5;
Affordable Medicines
above n 18 at para 138;
and
Motsepe v Commissioner for Inland Revenue
[1997] ZACC 3
;
1997 (2) SA 898
(CC);
1997 (6) BCLR 692
(CC) at para 30.