Albutt v Centre for the Study of Violence and Reconciliation and Others (CCT 54/09) [2010] ZACC 4; 2010 (3) SA 293 (CC) ; 2010 (2) SACR 101 (CC) ; 2010 (5) BCLR 391 (CC) (23 February 2010)

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Albutt v Centre for the Study of Violence and Reconciliation and Others (CCT 54/09) [2010] ZACC 4; 2010 (3) SA 293 (CC) ; 2010 (2) SACR 101 (CC) ; 2010 (5) BCLR 391 (CC) (23 February 2010)

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CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 54/09
[2010] ZACC 4
RYAN
ALBUTT
Applicant
and
CENTRE
FOR THE STUDY OF VIOLENCE AND RECONCILIATION
First
Respondent
KHULUMANI
SUPPORT GROUP
Second
Respondent
INTERNATIONAL
CENTRE FOR TRANSITIONAL JUSTICE
Third
Respondent
INSTITUTE
FOR JUSTICE AND RECONCILIATION
Fourth
Respondent
SOUTH
AFRICAN HISTORY ARCHIVES TRUST
Fifth
Respondent
HUMAN
RIGHTS MEDIA CENTRE
Sixth
Respondent
FREEDOM
OF EXPRESSION INSTITUTE
Seventh
Respondent
and
PRESIDENT
OF THE REPUBLIC OF SOUTH AFRICA
Eighth
Respondent
MINISTER
FOR JUSTICE AND CONSTITUTIONAL
DEVELOPMENT
Ninth
Respondent
GERHARDUS
JOHANNES TALJAARD
Tenth
Respondent
AREND
CHRISTIAAN DE WAAL
Eleventh
Respondent
WILLEM
JACOBUS PETRUS JACOBS
Twelfth
Respondent
HANS
JACOB WESSELS
Thirteenth
Respondent
RYNO
ADRIAAN ROSSOUW
Fourteenth
Respondent
JOHANNESS
BENJAMIN VAN DER WESTHUIZEN
Fifteenth
Respondent
Heard on : 10 November 2009
Decided on : 23 February 2010
JUDGMENT
NGCOBO
CJ:
Introduction
This case concerns
the power of the President to grant pardon under section 84(2)(j)
of the Constitution to people who claim
that they were convicted
of offences which they committed with a political motive. Section
84(2)(j) provides that the President
is responsible for “pardoning
or reprieving offenders . . .”. The question we are asked
to decide is whether
the President is required, prior to the
exercise of the power to grant pardon to this group of convicted
prisoners, to afford
the victims of these offences a hearing.
This case arises out of an application for leave to appeal
directly to this Court
and an application for direct access
brought to this Court by the applicant, Mr Albutt.
The application for
leave to appeal is directed at an order of the North Gauteng High
Court, Pretoria (High Court)
1
granting an interim interdict. That interdict prevented the
President from granting any pardon under section 84(2)(j) pursuant

to a special dispensation process for presidential pardon for
political offences, pending the finalisation of the main

application foreshadowed in Part B of the Notice of Motion.
2
The application for direct access is for an order declaring
invalid section 1 of the Promotion of Administrative Justice
Act,
2000 (PAJA).
3
This relief is sought in the event this Court finds that, upon
its proper construction, section 1 of PAJA
4
defines administrative action to include the exercise of the power
to grant pardon under section 84(2)(j).
The President and
the Minister for Justice and Constitutional Development (the
Minister) support both applications. For convenience
I shall
refer to the President and the Minister as “the state”.
A coalition of non-governmental organisations
(the NGOs) resists
both applications. In these proceedings they are the first to the
seventh respondents.
5
Factual
background
On 21 November
2007, former President Mbeki announced a special dispensation for
applicants for pardon who claimed that they
were convicted of
offences that were politically motivated. This dispensation was
aimed at dealing with the “unfinished
business” of the
Truth and Reconciliation Commission (the TRC).
6
This “unfinished business” included “the
question of amnesty for many South Africans who had not
participated
in the TRC process for a number of reasons”.
7
As the former President explained:
“
As a way forward and in
the interest of nation-building, national reconciliation and the
further enhancement of national cohesion,
and in order to make a
further break with matters which arise from the conflicts of the
past, consideration has therefore been
given to the use of the
Presidential pardon to deal with this ‘unfinished
business’.”
8
The former
President also announced the establishment of a multiparty Pardon
Reference Group (the PRG) which would assist
him in the discharge
of his constitutional responsibility to consider requests made for
pardons by offenders who fall within
the special dispensation
process. Persons who qualified for pardon under this process were
“[p]ersons who were convicted
and sentenced solely on
account of allegedly having committed politically motivated
offences before June 16, 1999”
and who had not applied for
amnesty by the TRC.
9
Originally, requests for pardons pursuant to this process had to
be made between 15 January and 15 April 2008, but this
period was
later extended to 31 May 2008. The PRG was formally constituted
on 18 January 2008. Pursuant to its Terms of
Reference, one of
its responsibilities was to “[c]onsider each application for
pardon and make recommendations to the
President.”
10
And the PRG had the power to develop its own rules and
procedures.
11
The PRG had a limited lifespan which did not extend beyond 30
November 2008.
In announcing the
special dispensation, the President also explained how he would
deal with applications for pardon, stating
that he would
“seriously consider the recommendations made to him by the
Reference Group”.
12
However, he emphasised that he would “form an independent
opinion on the basis of the facts/information placed before
him”
to decide whether to grant or refuse a pardon.
13
He stated that in so doing he would—
“
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”.
14
The Explanatory
Memorandum, which the Department of Justice and Constitutional
Development issued to explain the special dispensation
process,
reiterated that the President would be guided by these principles,
values, criteria and objectives in considering
applications for
pardon. Neither the statement by the former President, nor the
Terms of Reference for the PRG and the Explanatory
Memorandum,
dealt with the question whether the victims of offences in respect
of which a pardon was sought under the special
dispensation were
entitled to make representations.
Beginning in
February 2008, the NGOs made numerous attempts to secure the
participation of the victims in the special dispensation
process.
These attempts were finally rejected by the PRG during August 2008
when it told the NGOs that neither its Terms
of Reference nor any
law compelled it to call for input from the public, in particular,
from the victims. The PRG referred
the NGOs to the President as
the “custodian of the [pardon] process” who could take
such considerations into
account.
15
Subsequent approaches to the Minister and the President were also
unsuccessful. During March 2009, the Office of the President
in
effect declined the request for victim participation in the
special dispensation and refused to furnish any undertaking
in
this regard. Litigation ensued.
The NGOs launched
an urgent application in the High Court for an interdict
preventing the President from granting any pardons
in terms of the
special dispensation process until the finalisation of the main
application. The NGOs challenged the exclusion
of victims from
participating in the special dispensation process mainly on the
grounds that it was inconsistent with section
33 of the
Constitution,
16
the provisions of PAJA and the common law duty to act fairly. The
application was resisted by the state on various grounds,

including that the NGOs lacked standing and that the victims had
no right to be heard when the President exercises the power
to
grant pardon under section 84(2)(j). The applicant and six other
convicted prisoners
17
sought, and were granted, leave to intervene. They resisted the
application on the same grounds as the state, but included

non-joinder of other applicants for pardon as an additional
ground.
High
Court
The High Court
found that the NGOs had standing because they were acting on
behalf of victims who could not act in their own
name, in the
interests of victims, and also in the public interest. On the
non-joinder issue, the High Court held that non-joinder
was not
fatal to the application. It reasoned that it was not necessary
to serve the papers on all applicants who had applied
for pardon
prior to the hearing of the matter. Only those applicants for
pardon who had been recommended for pardon had
to be served. As
the NGOs did not know the identity of those applicants, it was not
possible to serve the papers on them.
The High Court accordingly
ordered the government to provide the NGOs with a list of
applicants who had been recommended
for pardon; that the NGOs
serve the papers on those applicants for pardon; and that the
Minister make the other applicants
for pardon aware of the
proceedings.
18
On the central
issue of whether the victims had the right to participate in the
special dispensation process, the High Court
answered this
question in the affirmative. Its conclusion rests on at least
three legs: (a) upon a proper construction,
section 1 of PAJA
defines administrative action to include the exercise of the power
to grant pardon under section 84(2)(j),
19
and hence the President is subject to the procedural requirements
imposed by PAJA; (b) the effect of parole and pardon is
the same
and there is no justification for allowing victims of crime to be
heard prior to a prisoner being released on parole
but to deny
victims a hearing when a prisoner is being considered for pardon;
20
and (c) the President was bound by his commitment to be guided by
the principles of the TRC.
21
The Court reasoned:
“
[T]he
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 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 [pardon] application form.”
22
The High Court
concluded that the victims of crime have a right to be heard prior
to the exercise of the power to grant pardon
under section
84(2)(j).
The High Court
accordingly granted an order interdicting the President from
granting any pardons in terms of the special dispensation
pending
the finalisation of the main application. The state sought leave
from the High Court to appeal to the Full Court
of the High Court,
alternatively, to the Supreme Court of Appeal. This application,
which is apparently still pending in
the High Court, prompted the
applicant to seek leave from this Court to appeal directly to it.
As indicated earlier, the
applicant has also launched an
application for direct access to this Court.
23
These proceedings
are a sequel.
It is convenient to
consider first the application for leave to appeal.
Procedural
and preliminary issues
The central issue
presented in the application for leave to appeal is whether the
victims of the offences for which pardon
is sought under the
special dispensation process are entitled to be heard prior to the
exercise of the power to grant pardon.
However, to reach this
issue we must first decide whether—
condonation should
be granted to the applicant for the late filing of his application
for leave to appeal and to the NGOs
for the late filing of their
answering affidavit;
leave to appeal
directly to this Court should be granted;
the NGOs have
standing; and
the High Court
should have non-suited the NGOs for failure to join the applicants
for pardon under the special dispensation.
I propose to deal
with the procedural and preliminary issues first.
Should condonation be
granted?
The application for
leave to appeal was late by some nine days. The explanation for
this delay is that initially the applicant
was content to proceed
with the main application. However, when the President sought
leave to appeal to the Full Court of
the High Court or the Supreme
Court of Appeal, he became concerned about the delay this might
entail and decided to appeal
directly to this Court. The NGOs do
not persist with their objection to the granting of condonation to
the applicant. The
NGOs were late by one day in filing their
answering affidavit to the application for leave to appeal, and
their application
for condonation is not opposed by the applicant
and the state.
In the case of the
applicant, the period of delay is minimal, there is a satisfactory
explanation for the delay and there
is no suggestion of prejudice.
In the case of the NGOs, the delay is minimal. In these
circumstances, condonation should
be granted to both the applicant
and the NGOs. An order to this effect will therefore be made.
Should leave to
appeal be granted?
The question
whether leave to appeal should be granted depends upon whether (a)
the application raises a constitutional matter
and (b) it is in
the interests of justice to grant leave. The application raises
questions of considerable constitutional
importance concerning the
powers of the President to grant pardon under section 84(2)(j).
Indeed, the NGOs do not contest
that the application raises a
constitutional matter. However, the NGOs contend that it is not
in the interests of justice
to grant leave to appeal.
The NGOs made much
of the non-appealability of the High Court order, since it took
the form of an interim interdict. They
submit that it lacked the
three attributes of an appealable order, that (a) it must be final
in effect, and not susceptible
to alteration by the court of first
instance; (b) it must be definitive of the rights of the parties;
and (c) it must have
the effect of disposing of at least a
substantial portion of the relief sought in the main application.
24
The NGOs submit that it is well-established that the granting of
an interim interdict is not appealable under the Supreme
Court
Act, 1959.
25
While acknowledging that the test for leave to appeal to this
Court does not require the satisfaction of these criteria,
they
submit that this Court should not entertain appeals against orders
which have no final effect on the dispute between
the parties.
They submit that the order sought to be appealed against is such
an order.
What must be
emphasised at the outset is that the interim nature of the order
is not in itself determinative of whether it
is in the interests
of justice to grant leave to appeal. It is a factor that is
relevant to the overall enquiry into the
interests of justice.
This is so because section 167(6)(b) of the Constitution
prescribes the interests of justice as the
standard for granting
leave to appeal directly to this Court.
26
The question for determination, therefore, is whether it is in
the interests of justice to grant leave to the applicant
to appeal
against the order of the interim interdict pending the
finalisation of the main application.
What is in the
interests of justice must be determined in the light of the facts
of each case.
27
The policy considerations that inform the non-appealability of
interlocutory orders under the common law and section 20
of the
Supreme Court Act are relevant, but not decisive, in this
enquiry.
28
However, it will not generally be in the interests of justice for
this Court to entertain appeals against interlocutory
rulings
which have no final effect on the dispute between the parties.
29
There are sound policy considerations for this. It is indeed
“undesirable to fragment a case by bringing appeals
on
individual aspects of the case prior to the proper resolution of
the matter in the court of first instance.”
30
This consideration must of course be balanced against the fact
that a final determination of the main dispute between the

parties, which decisively contributes to its final resolution,
might be more expeditious and cost-effective.
Ultimately, when
determining whether it is in the interests of justice to grant
leave to appeal against an interim interdict,
the following
considerations, while not exhaustive, are relevant:
the
facts of the case;
the
nature of the interim order and, in particular, the effect of
upholding the interim order on the main application;
the
desirability of having the views of an appellate court on the
matter;
whether
the matter is appealable;
the
importance of a determination of the constitutional issues raised
in the interim order;
whether the issues raised by the interim order require urgent
resolution; and
the
prospects of success.
31
The NGOs submit
that the order of the High Court is clearly interlocutory and has
no final effect on the dispute between the
parties. Our courts
have held that, in determining whether an order is final in
effect, what matters is not only the form
of the order “but
also, and predominantly[,] its effect”.
32
An interim interdict has a final effect if it disposes of any
issue or portion of an issue in the main application; put

differently, if it “anticipates or precludes some of the
relief which would or might be given at the hearing”.
33
An examination of the issues raised in the interim interdict
proceedings and the manner in which they were dealt with may
help
to determine whether the court meant to express a final decision
on those issues, that is, whether it intended to dispose
finally
of those issues or any part thereof.
34
The order made by
the High Court rests mainly on two findings of law: (a) the
exercise of the power to grant pardon constitutes
administrative
action; and (b) the victims of crime have a right to be heard
prior to the President’s decision to grant
pardon under
section 84(2)(j). These definitive findings of law by the High
Court dispose of the issue whether victims have
a right to be
heard prior to the exercise of the power to grant pardon, an issue
foreshadowed in the alternative relief sought
by the NGOs in the
main application. The order of the High Court is therefore final
in effect; it is definitive of the rights
of the victims to be
heard prior to the decision whether to grant pardon; and it has
the effect of disposing of the alternative
relief claimed by the
NGOs in the main application, although in theory it remains
susceptible to alteration by the High Court.
35
There are further
considerations which weigh in favour of the granting of leave to
appeal. There is significant public interest
in determining
whether the President should hear victims of political offences
prior to granting pardon in relation to those
offences. This is
so because of the close relationship between the TRC process and
the special dispensation process. There
are some 2 114
applications for pardon in respect of political offences that are
pending. There are, no doubt, other applications
for pardon in
relation to other offences that are pending. The record indicates
that some of the applications for pardon
in respect of political
offences have been pending since 2002. While there is no right to
a pardon, the applicants for pardon
are at least entitled to have
their applications considered without delay.
36
In addition, the
decision of the High Court has cast grave doubt over the power of
the President to decide applications for
pardon without calling
for the views of victims. It is clear from the judgment of the
High Court that its conclusion on
section 84(2)(j) goes beyond the
special dispensation process and relates to the exercise of the
power under section 84(2)(j)
in general. It is desirable and in
the public interest that this issue be resolved as soon as
possible to enable the President
to carry out his constitutional
obligations without delay. While the views of the Supreme Court
of Appeal or the Full Court
of the High Court would no doubt have
been of benefit to this Court, delays caused by the appeal process
would be prejudicial
to the public interest.
Moreover, this is
not a case where the prospects of success are necessarily
determinative of the interests of justice.
37
The issue raised in the application for leave to appeal is of
considerable constitutional importance concerning the powers
of
the President to grant political pardon under section 84(2)(j).
It is an issue which goes to the “unfinished business”

of nation-building and national reconciliation. It is an issue
which calls for an early and definitive decision of this
Court.
For all these
reasons, I am satisfied that it is in the interests of justice
that leave to appeal be granted to the applicant
to appeal
directly to this Court. An order to this effect will therefore be
made.
There are two
additional preliminary issues to address before considering the
main issue in the appeal. The one relates to
standing, and the
other relates to the non-joinder of other applicants for political
pardon.
Standing
The applicant makes
a qualified concession in relation to standing. While accepting
that the NGOs have standing, he nevertheless
contends that they
were only entitled to seek declaratory relief and were not
entitled to seek an order preventing the President
from granting
pardons. In support of this contention, the applicant submits
that each application for pardon must be considered
individually
to determine whether it should be allowed to proceed. This is
necessary, so the argument goes, because certain
victims and
perpetrators may well have become reconciled and victims might
want their perpetrators to be pardoned. The applicant
submits
that in these circumstances it would be unfair to prevent all
special dispensation pardons from being granted.
The concession that
the NGOs have standing was properly made. Our Constitution adopts
a broad approach to standing,
38
in particular, when it comes to the violation of rights in the
Bill of Rights.
39
This is apparent from the standing accorded to persons who act in
the public interest. This ground is much broader than
the other
grounds of standing contained in section 38.
40
The NGOs have standing on at least two grounds.
41
First, they are
litigating in the public interest under section 38(d) of the
Constitution. The NGOs contend that the exclusion
of victims from
participation in the special dispensation process violates the
Constitution, in particular, the rule of law.
They submit that,
as civic organisations concerned with victims of political
violence, they have an interest in ensuring
compliance with the
Constitution and the rule of law. Second, they are litigating in
the interest of the victims under section
38(c). The victims
whose interests the NGOs represent were unable to seek relief
themselves because they were unaware that
applications for pardons
affecting them were being considered. The process followed by the
President made no provision for
the victims to be made aware of
the applications for pardons, nor to be given the opportunity to
make representations.
The primary purpose
of the litigation is to safeguard and vindicate the asserted right
of the victims of the offences in respect
of which pardons are
sought to have an opportunity to be heard. A declaratory order
without an interdict would not have
been effective in protecting
the rights of victims, in particular, those who might want to
oppose the granting of a pardon.
Having regard to the interests
which the NGOs seek to protect, and the basis for their standing,
there is simply no reason
for limiting the relief they could seek
to a declaratory order. I conclude that the NGOs have standing to
seek the interim
order interdicting the granting of pardons.
Non-joinder
The applicant does
not pursue the issue of non-joinder. He properly conceded that
the interests of other applicants seeking
pardon, who are not
before this Court, were adequately looked after. Indeed, the
interest that the applicant has in this
case is identical to that
of other applicants for pardon who are not before this Court.
With these
preliminary issues out of the way, I now turn to consider the
central question presented in this appeal, namely,
whether the
victims of political offences in respect of which pardons may be
granted under the special dispensation are entitled
to a hearing
prior to the exercise of the power to grant pardon.
The
contentions of the parties
The NGOs contend
that the victims of the offences in respect of which pardons are
sought under the special dispensation process
are entitled to be
heard. They challenge the decision to exclude the victims from
participating in the special dispensation
process on three main
grounds. First, they contend that the decision to exclude the
victims from participating in the special
dispensation process is
irrational. They submit that it is not rationally related to the
objectives which the dispensation
seeks to achieve, namely,
national unity and national reconciliation. Second, they contend
that the context-specific nature
of the special dispensation
process requires the President to give the victims an opportunity
to be heard prior to making
a decision to grant a pardon. Third,
they contend that the exercise of the power to grant pardon
constitutes administrative
action under section 1 of PAJA and that
this attracts the duty to afford the victims a hearing.
The applicant and
the state challenge the right of victims to be heard when the
President exercises the power to grant pardon.
First, they deny
the charge of irrationality pointing out the differences between
the amnesty process and pardon. Second,
they contend that the
exercise of the power under section 84(2)(j) is executive action
and does not constitute administrative
action. They submit that,
properly construed, the definition of administrative action in
section 1 of PAJA excludes the
power to grant pardon. Third,
confronted by what was described as incoherence in section 1 of
PAJA, and, in the event of
this Court finding that, upon a proper
construction, section 1 of PAJA defines administrative action to
include the exercise
of the power to grant pardon, counsel for the
applicant submit that PAJA is unconstitutional. This submission
forms the
basis of the application for direct access. The
argument advanced by the state was substantially the same.
In the course of
oral argument the applicant also advanced two contentions which it
will be convenient to dispose of before
addressing the main
questions presented in the case. The first concerned compliance
with section 101(1)(b) of the Constitution,
42
and the other raised the question whether the President had in
fact taken a decision to refuse to afford the victims a hearing.
The argument based on
section 101(1)(b)
The applicant
submits that we should not pay any attention to what the former
President said in Parliament because it was
not in writing and,
accordingly, has no legal consequence under section 101(1)(b).
For purposes of disposing of this argument,
it is not necessary to
explore the meaning and scope of section 101(1)(b). Suffice it to
say that, after announcing the
special dispensation process, the
President took concrete steps to give effect to this process.
He established the
PRG; its terms of reference were adopted in writing; the PRG
adopted its criteria and procedures for making
recommendations to
the President; an Explanatory Memorandum was issued to inform the
public of the special dispensation process,
its objectives and the
criteria, principles and the values that would guide the President
in considering the applications;
and the PRG has indeed made
recommendations to the President. Apart from this, neither the
President nor the Minister has
taken up this point. On the
contrary, former President Motlanthe, who deposed to an affidavit
in these proceedings, declared
under oath that he “intend[ed]
to deal with applications for pardon . . . in line with
the approach outlined
by the then President [Mbeki].”
In these
circumstances, it can hardly be suggested that this Court should
ignore what the President not only said, but also
did to give
effect to his speech. Whatever the meaning and scope of section
101(1)(b), I am satisfied that this Court can
rely on what the
President said in order to determine the issues raised in this
case. The argument of the applicant based
on section 101(1)(b)
must therefore be rejected.
Did the President
take a decision to deny the victims a hearing?
In the course of
oral argument, there was some assertion by the applicant, albeit
in a faint tone, that the President had
not taken a decision to
deny the victims a hearing. As I understand the argument, it was
based on a statement in the affidavit
of former President
Motlanthe to the effect that although the PRG had refused to
receive representations from the victims,
this did not mean that
the President would not allow representations from the victims.
This statement, which was argumentative
in tone, was not
accompanied by an offer to afford the victims the opportunity to
make representations.
This argument faces
two insurmountable hurdles. The first is that it ignores the
tenor of the letter dated 13 March 2009
from the Office of the
President. That letter was in response to a request to allow
victims to participate in the special
dispensation process. It is
clear from this letter that the victims were not going to be
allowed to make representations.
Were it to be otherwise, it
would have been an easy matter for the Office of the President to
inform the victims that they
would be allowed to make
representations. This did not happen. On the contrary, and this
is the second hurdle, both in
the High Court and in this Court,
the state took the stance that the victims were not entitled to
make representations.
The matter must
thus be approached on the footing that the Office of the President
took the decision that the victims would
not be allowed to make
representations. It is this decision which the NGOs are
challenging.
Questions
presented
This decision is
challenged on three main grounds, namely that—
the decision to
exclude the victims from participating in the special dispensation
process is irrational;
the
context-specific features of the special dispensation process
requires the President to give the victims a hearing; and
the exercise of the
power to grant pardon constitutes administrative action and
therefore triggers the duty to hear people
affected.
I will consider
each of these issues in turn.
Is the decision to
exclude the victims from participating in the special dispensation
process irrational?
It is by now
axiomatic that the exercise of all public power must comply with
the Constitution, which is the supreme law,
and the doctrine of
legality, which is part of the rule of law.
43
More recently, and in the context of section 84(2)(j), we held
that although there is no right to be pardoned, an applicant

seeking pardon has a right to have his application “considered
and decided upon rationally, in good faith, [and] in
accordance
with the principle of legality”.
44
It follows therefore that the exercise of the power to grant
pardon must be rationally related to the purpose sought to
be
achieved by the exercise of it.
All this flows from
the supremacy of the Constitution. The President derives the
power to grant pardon from the Constitution
and that instrument
proclaims its own supremacy and defines the limits of the powers
it grants.
45
To pass constitutional muster therefore, the President’s
decision to undertake the special dispensation process, without

affording victims the opportunity to be heard, must be rationally
related to the achievement of the objectives of the process.
46
If it is not, it falls short of the standard that is demanded by
the Constitution.
The executive has a
wide discretion in selecting the means to achieve its
constitutionally permissible objectives. Courts
may not interfere
with the means selected simply because they do not like them, or
because there are other more appropriate
means that could have
been selected. But, where the decision is challenged on the
grounds of rationality, courts are obliged
to examine the means
selected to determine whether they are rationally related to the
objective sought to be achieved. What
must be stressed is that
the purpose of the enquiry is to determine not whether there are
other means that could have been
used, but whether the means
selected are rationally related to the objective sought to be
achieved. And if objectively speaking
they are not, they fall
short of the standard demanded by the Constitution. This is true
of the exercise of the power to
pardon under section 84(2)(j).
The applicant very
properly concedes that this Court has the constitutional authority
to examine whether the means adopted
by the President are
rationally related to the objective sought to be achieved by
granting pardons to those convicted prisoners
who claim to have
committed offences with a political motive. I did not understand
the state to contend otherwise. Nor
is there any issue about the
constitutional authority of the President to exercise his power to
grant pardon as contemplated
in the special dispensation process.
Indeed under section 83(c) of the Constitution, the President has
a duty to promote
“the unity of the nation and that which
will advance the Republic.” The question for determination
is reduced
to whether the decision to exclude victims from
participating in the special dispensation process is rationally
related to
the objectives that the President set out when he
announced the process.
When former
President Mbeki announced the special dispensation process, he
outlined its objectives and the criteria and the
principles that
would guide the decision making process. The objectives that
the special dispensation sought to achieve
were national unity and
national reconciliation. These objectives were to be achieved
through the application of the “principles
and values which
underpin the Constitution”, including 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”.
47
But what are the principles, criteria and spirit that inspired
and underpinned the amnesty process?
These emerge from
the fundamental philosophy of our negotiated transition to a new
democratic order. It was recognised early
on, during the
negotiation process, that the task of building a new democratic
society would be very difficult because of
our history, and that
this could not be achieved without a firm and generous commitment
to reconciliation and national unity.
The epilogue to the interim
Constitution expresses this philosophy:
“
The pursuit of national
unity, the well-being of all South African citizens and peace
require reconciliation between the people
of South Africa and the
reconstruction of society. . . . In order to advance such
reconciliation and reconstruction, amnesty
shall be granted in
respect of acts, omissions and offences associated with political
objectives”.
48
It is apparent from
both the address by former President Mbeki and the Explanatory
Memorandum that the special dispensation
process had the same
objectives as the TRC, namely, nation-building and national
reconciliation. While the TRC process sought
to achieve this
through amnesty, the special dispensation seeks to achieve these
objectives through pardons. As former President
Mbeki explained
when he announced the special dispensation process: “consideration
has therefore been given to the
use of the Presidential pardon to
deal with [the] ‘unfinished business’ [of the TRC].”
49
The submission on behalf of the state that the NGOs are mistaken
when they contend that the special dispensation was designed
to
deal with the “unfinished business” of the TRC cannot,
therefore, be sustained.
The participation
of victims was fundamental to the amnesty process. The process
encouraged victims and their dependants
“to unburden their
grief publicly, to receive the collective recognition of a new
nation that they were wronged, and,
crucially, to help them to
discover what did in truth happen to their loved ones”.
50
But the truth of what really happened could only be known if
those who were responsible for gross violations of human rights

were encouraged to disclose it with the incentive that they would
not be punished. Thus, the participation of both the victims
and
the perpetrators was crucial to the achievement of the twin
objectives of rebuilding a nation torn apart by an evil system
and
promoting reconciliation between the people of South Africa.
Indeed, as this
Court observed in
Azanian Peoples Organisation (Azapo) and
Others v President of the Republic of South Africa and Others
:
“
With [the] incentive
[that the perpetrator will not receive punishment] what might
unfold are objectives fundamental to the
ethos of a new
constitutional order. The families of those unlawfully tortured,
maimed or traumatised become more empowered
to discover the truth,
the perpetrators become exposed to opportunities to obtain relief
from the burden of a guilt or an anxiety
they might be living with
for many long years, the country begins the long and necessary
process of healing the wounds of the
past, transforming anger and
grief into a mature understanding and creating the emotional and
structural climate essential
for the ‘reconciliation and
reconstruction’ which informs the very difficult and
sometimes painful objectives of
the amnesty articulated in the
epilogue.”
51
In its report, the
TRC emphasised the importance of the participation of victims and
perpetrators in the achievement of national
reconciliation:
“
By telling their
stories, both victims and perpetrators gave meaning to the
multilayered experiences of the South African story.
These
personal truths were communicated to the broader public by the
media. In the (South) African context, where value continues
to be
attached to oral tradition, the process of story telling was
particularly important. Indeed, this aspect is a distinctive
and
unique feature of the legislation governing the Commission, setting
it apart from the mandates of truth commissions elsewhere.
. . .
The stories told to the Commission were not presented as arguments
or claims in a court of law. Rather, they provided
unique insights
into the pain of South Africa’s past, often touching the
hearts of all that heard them.
By providing the environment
in which victims could tell their own stories in their own
languages, the Commission not only helped
to uncover existing facts
about past abuses, but also assisted in the creation of a
‘narrative truth’. In so doing,
it also sought to
contribute to the process of reconciliation by ensuring that the
truth about the past included the validation
of the individual
subjective experiences of people who had previously been silenced
or voiceless.”
52
The participation
of victims is not only crucial to establishing the truth of what
happened, but is also crucial to the twin
objectives of
nation-building and national reconciliation. In this regard, the
TRC makes the following comment in its report:
“In some
cases . . . the Commission assisted in laying the foundation for
reconciliation. Although truth does not
necessarily lead to
healing, it is often a first step towards reconciliation.
”
53
What is plain from
what I have said above is that the victims of gross human rights
violations were at the centre of the TRC
process. As the TRC
observed:
“
One of the unique
features of the Act was that it provided guiding principles on how
the Commission should deal with victims.
These principles
constituted the essence of the Commission’s commitment to
restorative justice. The Act required that
the Commission help
restore the human and civil dignity of victims ‘by granting
them an opportunity to relate their own
accounts of the violations
of which they are the victim’. Through the public
unburdening of their grief – which
would have been impossible
within the context of an adversarial search for objective and
corroborative evidence – those
who were violated received
public recognition that they had been wronged.”
54
(Footnote omitted.)
Excluding victims
from participation keeps victims and their dependants ignorant
about what precisely happened to their loved
ones; it leaves their
yearning for the truth effectively unassuaged; and perpetuates
their legitimate sense of resentment
and grief. These results are
not conducive to nation-building and national reconciliation. The
principles and the spirit
that inspired and underpinned the TRC
amnesty process must inform the special dispensation process whose
twin objectives
are nation-building and national reconciliation.
As with the TRC process, the participation of victims and their
dependants
is fundamental to the special dispensation process.
Counsel for the
state sought to justify the exclusion of victim participation on
the grounds that there are important differences
between the
amnesty process and the special dispensation process. Much effort
and time was spent on this aspect. One of
the differences that
was drawn to our attention is that in the case of a pardon,
victims already had the opportunity to participate
in the criminal
proceedings. By contrast, the TRC process by and large dealt with
individuals who had neither been tried
and convicted nor sentenced
in respect of the offences for which amnesty was sought. The
state argues that there was therefore
no prior victim
participation, and precisely for this reason, the amnesty process
required the participation of victims.
There are
difficulties with this submission. First, it is premised on the
assumption that the amnesty process dealt only
with perpetrators
who had not been convicted. This premise is false. The amnesty
process dealt with both persons who had
not been tried and those
who had been convicted and sentenced. One need only look at the
provisions of the
Promotion of National Unity and Reconciliation
Act, 1995
55
(the Truth and Reconciliation Act) that deals with convicted
persons.
56
Indeed, once it is accepted, as it must be, that the amnesty
process also dealt with persons who had been convicted and

sentenced, the submission loses its force.
Second, it does not
pay sufficient attention to the fundamental difference between
criminal proceedings and the pardon process.
The question in a
criminal trial is whether the accused is guilty of the crime
charged and, if so, what sentence should
be imposed. By contrast,
in the pardon process the question is whether, notwithstanding the
conviction and sentence, the
applicant should be granted a pardon.
In particular, the question in the context of the special
dispensation process is
whether the offence in respect of which a
pardon is sought was committed with a political motive.
Third, it
misconceives the rationale for victim participation in the TRC
amnesty process. Victims participated in the amnesty
process not
because they did not have a prior opportunity to participate in
any criminal proceedings, but because their participation
was
fundamental to the objectives of the TRC process, namely,
nation-building and national reconciliation. Indeed, it is

difficult to fathom how these objectives could be achieved if the
victims of gross violations of human rights were excluded
from the
amnesty process. The amnesty process encouraged victims to come
forward to tell their stories and to help them
to discover the
truth by encouraging the perpetrators, in return for amnesty, to
disclose the truth of what they did. This
was crucial to
“creating the emotional and structural climate essential for
the ‘reconciliation and reconstruction’
which
inform[ed] the very difficult and sometimes painful objectives of
the amnesty articulated in the epilogue [to the interim

Constitution]”.
57
Finally, the
argument based on the differences between the amnesty process and
the special dispensation process misconceives
the argument
advanced by the NGOs. The NGOs do not contend that the amnesty
process and the special dispensation are similar.
They contend
that the President made a commitment to apply the principles,
criteria and spirit that inspired and underpinned
the TRC process,
especially as they relate to amnesty, including the principles and
objectives of nation-building and national
reconciliation. They
submit that the President must be held to these principles which
former President Mbeki said would
guide him in deciding whether to
grant or refuse pardons. The NGOs submit that it is these
principles which require victim
participation in the special
dispensation process.
Apart from these
difficulties with their argument, the differences identified by
the applicant and the state do not explain
why, having undertaken
to apply the principles and values which underpinned the amnesty
process, it was decided to disregard
those principles and values.
The differences between the amnesty and pardon processes were
known at the time when the former
President made his speech in
Parliament. Despite these differences, the President decided that
the principles and values
that underpinned the amnesty process
would be applied to the special dispensation process. These
differences therefore provide
no basis for disregarding the values
and the principles that the former President had stated would be
applied to the special
dispensation process.
Once it is
accepted, as it must be, that the twin objectives of the special
dispensation process are nation-building and national

reconciliation and that the participation of victims is crucial to
the achievement of these objectives, it can hardly be
suggested
that the exclusion of the victims from the special dispensation
process is rationally related to the achievement
of the objectives
of the special dispensation process.
In my view, the
address of former President Mbeki to Parliament itself evidenced
and indeed recognised that, given our history,
victim
participation in accordance with the principles and the values of
the TRC was the only rational means to contribute
towards national
reconciliation and national unity. It follows therefore that the
subsequent disregard of these principles
and values without any
explanation was irrational. On this basis alone, the decision to
exclude the victims from participating
in the special dispensation
process was irrational.
Do
the special features of the special dispensation process require
the President to hear the victims?
Before the
President decides whether to grant pardon, he must establish the
facts in accordance with the criteria set out
in the special
dispensation process, namely, whether the offence was committed
with a political motive. To establish the
facts the President
must hear both the perpetrators and the victims of the crimes in
respect of which a pardon is sought.
It is difficult to fathom
how the President can establish the truth about the motive with
which a crime was committed without
hearing the victim of that
crime. Decisions based on the perpetrators’ versions and
their supporting political parties
are more likely to be
arbitrary, considering the President’s objective of
determining whether a pardon applicant qualifies
for a pardon for
an allegedly politically motivated crime. It is not inconceivable
that a victim may want to make representations
to demonstrate that
the crime committed was not of a political nature, but due to
other motives.
A process which
permits political party representatives and their members, to the
exclusion of the victims, to consider whether
a pardon should be
granted in an offence with a political motive is entirely
inconsistent with the principles and values
that underlie our
Constitution. Some of the principles and values that underpin our
Constitution are the principles of accountability,
responsiveness
and openness.
58
And one of the principles that underpinned the amnesty process
was the participation of victims in seeking to achieve national

unity and national reconciliation. It is these principles and
values that must underpin the special dispensation process
as
former President Mbeki stated. To do otherwise is to undermine
the TRC process and is contrary to the objective of promoting

national unity and national reconciliation.
In these
circumstances, the requirement to afford the victims a hearing is
implicit, if not explicit, in the very specific
features of the
special dispensation process. Indeed, the context-specific
features of the special dispensation and in particular
its
objectives of national unity and national reconciliation, require,
as a matter of rationality, that the victims must
be given the
opportunity to be heard in order to determine the facts on which
pardons are based.
The NGOs also
advance an attractive argument for the proposition that, having
regard to the objectives of the special dispensation
process, the
common law duty to act fairly requires the President to afford the
victims of crimes in respect of which a pardon
is sought a hearing
before a decision to grant a pardon.
59
In the light of the conclusion that I have already reached, it is
not necessary to deal with this argument.
For all these
reasons, I conclude that the decision to exclude victims of the
crimes in respect of which pardons were sought
under the special
dispensation process was irrational. The victims of these crimes
are entitled to be given the opportunity
to be heard before the
President makes a decision to grant pardon under the special
dispensation.
Lest there be a
misunderstanding of the scope of this conclusion, I had better
stress the obvious. This case is concerned
with applications for
pardon under the special dispensation. What I have said in this
judgment therefore applies to this
category of applications for
pardon only. What distinguishes this category from others not
before us is that the crimes
in respect of which pardons are
sought are alleged to have been committed with a political motive;
the objective of these
pardons is to promote national unity and
reconciliation; and the crimes concerned were committed in a
particular historical
context. Different considerations may very
well apply to other categories of applications for pardon. This
judgment does
not therefore decide the question whether victims of
other categories of applications for pardon are entitled to be
heard.
That question is left open.
It is this category
of pardons that was before the High Court. The High Court does
not appear to have paid attention to the
fundamental difference
between the category of pardons in issue in this case and other
categories of applications for pardon.
Its conclusion, as I have
pointed out above, went beyond this category and purported to deal
with applications for pardon
in general. In doing so, the High
Court erred. So too, when it relied upon the provisions of PAJA
to hold that the victims
of the crimes in respect of which pardons
are sought are entitled to a hearing before the decision whether
to grant a pardon
is made. These findings by the High Court were
not necessary and cannot be allowed to stand.
Finally, the
applicant contends that, if the NGOs obtained the relief they
sought, the resulting procedural requirements would
impractically
encumber the special dispensation process. This is incorrect.
This judgment does not imply or entail that,
in affording a
hearing to the victims of those applying for pardon under the
special dispensation process; the President
is bound to replicate
the procedures, investigations and hearings of the TRC.
The
final relief the NGOs sought was merely “an opportunity to
make representations”.
60
Their counsel expressly concede that, after the names of those
pardon applicants who had been recommended for approval were
made
known, a general notice inviting submissions to the President from
victims of the offences in question might suffice.
It is
abundantly established that what the opportunity to make
representations requires depends on the context,
61
and it is not necessary to try to signify in advance what the
opportunity for representations will require. It is enough
to say
that cumbersome impediments to the due despatch of the pardon
process are not entailed.
The next question
is whether, in the light of this conclusion, it is desirable that
we should reach the question whether the
exercise of the power
under section 84(2)(j) constitutes administrative action.
Should
we reach the argument based on PAJA?
One of the grounds
upon which the NGOs urge us to find that the victims are entitled
to a hearing is that the exercise of
the power to pardon
constitutes administrative action. This is one of the bases upon
which the High Court made its order.
The applicant and the state
challenge this finding by the High Court, contending that upon its
proper construction, section
1 of PAJA does not include the
exercise of the power to pardon as administrative action. If it
does, they maintain, then
section 1 of PAJA is inconsistent with
the Constitution. For their part, the NGOs submit that Parliament
may extend a right
granted by the Constitution and, in doing so,
does not trespass into the province of the executive. We have had
the benefit
of the submissions of the parties on PAJA and its
constitutionality.
If one has regard
to our jurisprudence, there is a substantial measure of doubt as
to whether the exercise of the pardon power
constitutes
administrative action.
62
Yet if this question is decided in the negative, a more difficult
question arises, namely, whether PAJA, upon its proper

construction, includes within its ambit the exercise of the power
to grant pardon. And if the answer to this question is
in the
affirmative, more complex questions arise. Those questions are
whether: (a) PAJA merely regulates the exercise of
the power or
whether in effect it reclassifies executive action as
administrative action; and (b) whether it is constitutionally

permissible for the legislature to do either of these. The
question that must be answered on this score is whether having

answered the central question presented in this case, we should
now venture into all of these difficult questions.
What must be
stressed here is the point that I have already made: this case
concerns applications for pardon that are brought
under the
special dispensation, the question being whether the victims of
the crimes that fall under this category of applications
for
pardon are entitled to a hearing. Once this question is answered
in the affirmative in the light of the context-specific
features
of the special dispensation, it is not necessary to consider the
question whether the exercise of the power to grant
pardon under
section 84(2)(j) constitutes administrative action. That broad
general question was not before the High Court,
which should not
have posed and answered it, and we need not answer it in this
case. Nor should we reach the question whether
PAJA, upon its
proper construction, includes within its ambit the exercise of the
power to grant pardon under section 84(2)(j).
Sound judicial
policy requires us to decide only that which is demanded by the
facts of the case and is necessary for its
proper disposal. This
is particularly so in constitutional matters, where jurisprudence
must be allowed to develop incrementally.
At times it may be
tempting, as in the present case, to go beyond that which is
strictly necessary for a proper disposition
of the case. Judicial
wisdom requires us to resist the temptation and to wait for an
occasion when both the facts and the
proper disposition of the
case require an issue to be confronted. This is not the occasion
to do so. There may well be
cases, and they are very rare, when
it may be necessary to decide an ancillary issue in the public
interest. This is not
such a case. It may well be said that the
President is anxious to know whether the exercise of the power to
grant pardon
constitutes administrative action and whether PAJA
applies to applications for pardon. The anxiety of the President
should
adequately be addressed by what I have said above, namely,
that the High Court erred in reaching these questions.
In the event, I
conclude that it is not necessary for us to reach the question
whether the exercise of the power under section
84(2)(j)
constitutes administrative action and whether upon its proper
construction, PAJA includes within its ambit the power
to grant
pardon under section 84(2)(j). These questions must be left open
for another day when a proper occasion to determine
them is
presented.
In the result no
order should be made on the application for direct access which
was conditional upon us reaching PAJA. In
respect of that
application, I consider it just and equitable that each party
should bear its own costs.
Costs
The issues that
were raised in both the application for leave to appeal and the
application for direct access are matters
of considerable
importance. As I have said, earlier, they concern the exercise of
the power to grant pardon, in particular,
the question whether the
victims of the offences in respect of which the special
dispensation process applies, are entitled
to a hearing before a
decision is made to grant pardon. The NGOs have succeeded in
relation to the application for leave
to appeal. They are
entitled to their costs. The applicant entered the fray to
safeguard his interest and those of other
applicants seeking
pardons who were not in court. In doing so, the applicant helped
to put before the Court the perspective
of the applicants for
pardon. The applicant has, however, not succeeded. I think it
would not be just and equitable to
require him to pay the costs of
the NGOs. That leaves the state to pay the costs of the NGOs.
63
I have already
concluded that no order should be made on the application for
direct access and that each party must pay its
own costs.
Order
In the event the
following order is made:
Condonation is
granted to the applicant for the late filing of the application
for leave to appeal.
Condonation is
granted to the first to seventh respondents for the late filing of
their answering affidavit.
The application for
leave to appeal is upheld.
The appeal is
dismissed.
The President and
the Minister for Justice and Constitutional Development are
ordered to pay the costs of the first to seventh
respondents.
These costs will include costs consequent on the employment of two
counsel.
No order is made on
the application for direct access.
There will be no
order as to costs on the application for direct access.
Moseneke DCJ, Cameron J,
Froneman J, Khampepe J, Mogoeng J, Nkabinde J, Skweyiya J and Van
der Westhuizen J concur in the judgment
of Ngcobo CJ.
FRONEMAN
J:
I respectfully
concur in the Chief Justice’s judgment and only wish to add
some comments in further support of his
judgment. The judgment
builds upon the fundamental understanding that under the
Constitution, the President must always
act in accordance with
the rule of law, even when exercising executive functions.
1
It extends our understanding of what the rule of law requires of
the President in the particular circumstances of this
case. It
does so, in the main, by determining the impact and meaning of
the rule of law in the context of our recent history
– the
political strife that preceded and accompanied the birth of our
democracy – and in particular the amnesty
process put in
place to assist in achieving national unity and reconciliation.
The judgment draws its essence from the
participatory process of
the Truth and Reconciliation Committee (TRC). In so doing it
gives content to the exercise of
pardon in a manner which
distinguishes it from notions of the nature and exercise of
executive pardon powers elsewhere.
2
Some would find
the broadened understanding of what the rule of law requires of
us in these circumstances unpersuasive merely
for the reason that
it goes beyond the understanding of executive pardon powers
elsewhere. Others might find those historical
notions expedient
in advancing a conception of executive power unconstrained by the
rule of law. In my view it will contribute
to a deeper
understanding and acceptance of the rule of law if the content
given to it in the main judgment also finds
resonance, not only
in our recent history, but also in pre-colonial history and in
our own conception of democracy. And
it does.
This Court has
held that the democracy our Constitution demands is not merely a
representative one, but is also, importantly,
a participatory
democracy.
3
That holds true even for the executive function at stake here.
Promoting national unity is an ongoing process in terms
of the
Constitution.
4
While it may be necessary for this process of national unity
“not to punish those who have flagrantly violated the

law”,
5
it needs to be remembered that this flies in the face of what is
conventionally associated with the rule of law.
6
In this regard the presidential pardon power in relation to
offences that may have an impact on national unity have

characteristics similar to the amnesty process, where individual
participation of victims was the only rational means of

attempting to effect that purpose. Counsel for the applicant
argued that the requirement of victim participation was met

through the process set in place by the President which involved
all the political parties represented in Parliament.
Put
differently, the argument was that representative democracy was
sufficient in the circumstances. It is not. It would
be
irrational to treat similar processes relating to past violations
of the law for a political motive – amnesty
and “national
unity” pardons – differently, by regarding individual
victim participation as essential
to the one process, but not to
the other.
The notion of
participatory democracy is also an African one. Victim
participation was the norm in deciding the proper
“punishment”
for offenders in traditional African society. It was an
expression of the participatory democracy
practiced in those
societies. That is my understanding of African tradition.
7
The main judgment
therefore finds support in the African legacy of participation of
citizens in affairs of the society,
not as direct authority for
its particular application to the facts of this case, but as
further legitimisation that it
accords with a tradition that runs
deep in the lives of many people in this country. It is indeed
difficult to escape
the conclusion that this remarkable tradition
of participation and capacity for forgiveness in African society
also underlay,
at a deeper level, the amnesty process. Without
it the amnesty process would have been impossible, or at least it
would
have been immeasurably more difficult than it was. The
same can be said for the ongoing duty to promote national unity.
In the main
judgment it is emphasised that the ruling does not in any way
speak to pardon issues beyond the confines of
the facts of this
case. The same goes for these additional comments. I consider
it important to demonstrate that the
“pervasive demands for
participatory living”
8
is one with deep roots in pre-colonial history, not that its past
application should bind us in finding what is required
for the
present:
“
We do not have to be
born in a country with a long democratic history to choose that
path today. The significance of history
in this respect lies
rather in the more general understanding that established
traditions continue to exert some influence
on people’s
ideas, that they can inspire or deter, and they have to be taken
into account whether we are moved by them,
or wish to resist and
transcend them, or . . . want to examine and scrutinize what we
should take from the past and what
we must reject, in the light of
our contemporary concerns and priorities.”
9
Cameron J
and Van der Westhuizen J concur in the judgment of Froneman J.
For the
Applicant:
For
the First to Seventh Respondents:
For
the Eighth and Ninth Respondents:
For
the Fifteenth Respondent:
Advocate
NB Tuchten SC, Advocate N Riley and Advocate M Witz instructed by
Snaid & Edworthy Attorneys.
Advocate
G Budlender SC, Advocate Karrisha Pillay, Advocate H Varney and
Advocate L Kubukeli instructed by the Legal Resources
Centre.
Advocate
MTK Moerane SC, Advocate IV Maleka SC and Advocate L Gcabashe
instructed by the State Attorney.
Advocate
TJ Botha instructed by Lombards Attorneys.
1
Centre for the Study of Violence and Reconciliation and Others v
President of the Republic of South Africa and Others
Case No
15320/09, North Gauteng High Court, Pretoria, 29 April 2009, as yet
unreported.
2
In Part B of the Notice of Motion the first to seventh respondents
in this application sought the following:
“
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.
3. The first respondent is ordered (and the second
respondent is ordered, only in the event of his opposing this
application,
jointly and severally) to pay the costs of this
application.
4. Further or alternative relief.”
3
3 of 2000.
4
Section 1 of PAJA provides:
“
In this Act, unless the context indicates
otherwise—
‘
administrative action’
means any
decision taken, or any failure to take a decision, by—
(a) an organ
of state, when—
(i) exercising a power in terms of the Constitution or
a provincial constitution; or
(ii) exercising a public power or performing a public
function in terms of any legislation; or
(b) a natural or juristic person, other than an organ
of state, when exercising a public power or performing a public
function
in terms of an empowering provision, which adversely
affects the rights of any person and which has a direct, external
legal
effect, 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), 91(2), (3), (4) and
(5), 92(3), 93, 97, 98, 99 and 100 of the Constitution”.
5
In order of appearance they are: the Centre for the Study of
Violence and Reconciliation, the Khulumani Support Group, the
International Centre for Transitional Justice, the Institute for
Justice and Reconciliation, the South African History Archives

Trust, the Human Rights Media Centre and the Freedom of Expression
Institute.
6
Address by President of South Africa, Thabo Mbeki to the Joint
Sitting of Parliament to Report on the Processing of some
Presidential
Pardons, Cape Town, 21 November 2007 available at
http://www.thepresidency.gov.za/president/sp/2007/sp11211540.htm
(accessed
on 15 December 2009).
7
Id.
8
Id.
9
Item 7 of the Terms of Reference for a Special Dispensation on
Presidential Pardoning Process Relating to Certain Offenders sets

out who qualified for pardons:
“
7.1 Persons who were convicted and sentenced
solely on account of allegedly having committed politically
motivated offences before
June 16, 1999; and
7.2 Comply with the pre-determined criteria and
procedures as set out in the application form, may apply to the
President for
pardon in the prescribed manner.
7.3 A person will only qualify for consideration for
pardon if—
(a) he or she
(i) is presently serving a sentence of imprisonment;
(ii) was sentenced to a term of imprisonment or a fine
for an offence which arose from or is related to, an act or omission
associated
with a political objective committed in the course of the
conflicts of the past;
(b) the offence referred to in paragraph (a) was
committed on or before the date of the inauguration of the President
on 16 June
1999; and
(c) his or
her application for pardon is accompanied by a prescribed affidavit
or affirmation deposed to or affirmed by a person
authorized by a
political party or organization, institution, liberation movement or
body, in which it is confirmed that the
act or omission which
constituted the offence in question, occurred under the instruction
of, or in the execution of an order,
instruction, command,
direction, advice, plan or project of, or on behalf of, or with the
approval of, or in furtherance, promotion
or achievement of the
policies, objectives or interests of, the said party, organization,
institution, liberation movement or
body of which the applicant was
a member, agent or a supporter.”
10
Item 2.3 of the Terms of Reference for the PRG.
11
The NGOs attached to their founding affidavit an undated document,
which is apparently part of a larger document. The part that
is
attached deals with criteria, rules and procedures for making
recommendations to the President. According to this document
the
only means of verifying the version of an applicant for pardon is “a
copy of the judgment” which “is .
. . discussed as a
verification tool in order to compare and contrast the version
submitted by the applicant.” See para
4.1 no. 6 Criteria,
Rules and Procedure Used for Purposes of Making Recommendation in
each Application for a Pardon. This document
does not make any
provision for the victims to be heard. In addition, this document
sets out the main criteria for making recommendations
to the
President, namely, whether the applicant is indeed a political
offender and whether the release of the applicant would
not endanger
society. In addition, it lists the Norgaard Principles that would
be taken into account in determining the two
main criteria.
C(i)–(v) of the Norgaard Principles are as follows:
“
i. The motive of the offender – i.e. was
it a political motive (e.g. to change the established order) or a
personal motive
(e.g. to settle a private grudge).
ii. The context in which the offence was committed,
especially whether the offence was committed in the course of or as
part of
a political uprising or disturbance.
iii. The nature of the political objective (e.g.
whether to force a change in policy or to overthrow the Government).
iv. The legal and factual nature of the offence,
including its gravity (e.g. rape could never be regarded as a
political offence).
v. The object of the offence (e.g. whether it was
committed against Government property or personnel or directed
primarily against
private property or individuals).”
12
President Mbeki’s Address above n 6.
13
Id.
14
Id.
15
Letter from Dr JT Delport, Chairperson of the PRG to Dr Hugo van der
Merwe, Transitional Justice Programme Manager, Centre for
the Study
of Violence and Reconciliation, 7 August 2008.
16
Section 33 of the Constitution of the Republic of South Africa, 1996
provides in relevant part:
“
(1) Everyone has the right to administrative
action that is lawful, reasonable and procedurally fair.
(2) Everyone whose rights have been adversely affected
by administrative action has the right to be given written reasons.”
17
The applicant and the interveners were co-accused in a trial arising
from certain events that took place in Kuruman in the Northern
Cape
in 1995. Municipal workers who were on a peaceful strike were
severely assaulted with lethal weapons. The applicant and
the
interveners indiscriminately smashed cars of innocent bystanders and
pursued and assaulted other black persons who had nothing
to do with
the striking workers. Among those assaulted were women and elderly
persons. See
S v Whitehead and Others
2008 (1) SACR 431
(SCA) at para 12. They were sentenced to various terms of
imprisonment. Another intervener was Mr JB van der Westhuizen who

had been convicted in connection with a bomb blast in a Worcester
supermarket on Christmas Eve in 1996 that killed four people
and
injured 67. All the interveners had applied for political pardon.
The interveners did not take part in the proceedings
in this Court.
18
Centre for the Study of Violence and Reconciliation
above n 1
at 33.
19
Id at 25-6.
20
Id at 27.
21
Id at 30.
22
Id at 27-8 with the substitution of “pardon” for
“parole”.
23
Above at [1].
24
See
Khumalo and Others v Holomisa
[2002] ZACC 12
;
2002 (5) SA
401
(CC);
2002 (8) BCLR 771
(CC) at para 6 and
Zweni v Minister
of Law and Order
1993 (1) SA 523
(A) at 532J.
25
59 of 1959.
26
Section 167(6) provides:
“
National legislation or the rules of the
Constitutional Court must allow a person, when it is in the
interests of justice and
with leave of the Constitutional Court—
. . .
(b) to appeal directly to the Constitutional Court from
any other court.”
See also
section 16(2) of the Constitutional Court Complementary Act
Amendment Act 79 of 1997, which provides:
“
The rules shall, when it is in the interests of
justice and with leave of the Court, allow a person—
(a)
to bring a matter directly to the Court; or
(b) to appeal directly to the Court from any other
court.”
See also
Khumalo
above n 24 at para 7 and
Minister of Health and
Others v Treatment Action Campaign and Others (No 1)
[2002] ZACC
16
;
2002 (5) SA 703
(CC) at para 6.
27
TAC (No 1)
above n 26 at para 8 and
Member of the
Executive Council for Development Planning and Local Government,
Gauteng v Democratic Party and Others
[1998] ZACC 9
;
1998 (4) SA
1157
(CC);
1998 (7) BCLR 855
(CC) at para 32.
28
See
Khumalo
above n 24 at para 8; and
TAC (No 1)
above
n 26 at para 8.
29
Khumalo
above n 24 at para 8.
30
See
TAC No 1
above n 26 at para 9 and
S v Mhlungu and
Others
[1995] ZACC 4
;
1995 (3) SA 867
(CC);
1995 (7) BCLR 793
(CC) at para 59.
31
See
Khumalo
above n 24 at para 10.
32
Metlika Trading Ltd and Others v Commissioner
for SARS
[2004] 4 All SA 410
(SCA) at
para 23;
Zweni
above n 24 at 532H-I and
South
African Motor Industry Employers’ Association v South African
Bank of Athens Ltd
1980 (3) SA 91
(A) at 96H
.
33
Metlika Trading
above n 32 at para 21 citing
Pretoria
Garrison Institutes v Danish Variety Products (Pty.), Limited
1948 (1) SA 839
(A) at 870. See also
Zweni
above n 24 at
532J-533A with the substitution of “any” for
“substantial”.
34
African Wanderers Football Club (Pty.) Ltd. v Wanderers Football
Club
1977 (2) SA 38
(A) at 46C.
35
See
Zweni
above n 24 at 532I-533A and
Pretoria Garrison
Institutes
above n 33 at 870.
36
Section 237 of the Constitution. See
Minister for Justice and
Constitutional Development v Chonco and Others
[2009] ZACC 25
(30 September 2009), as yet unreported, at para 30.
37
See
S v Boesak
[2000] ZACC 25
;
2001 (1) SA 912
(CC);
2001 (1)
BCLR 36
(CC) at para 12 and
Fraser v Naude and Others
[1998]
ZACC 13
;
1999 (1) SA 1
(CC);
1998 (11) BCLR 1357
(CC) at para 10.
38
See, for example,
Ferreira v Levin NO and
Others; Vryenhoek and Others v Powell NO and Others
[1995]
ZACC 13
;
1996 (1) SA 984
(CC);
1996 (1)
BCLR 1
(CC) at para 229.
39
Section 38 of the Constitution provides:
“
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—
anyone acting in their own interest;
anyone acting on behalf of another person who cannot
act in their own name;
anyone acting as a member of, or in the interest of, a
group or class of persons;
anyone acting in the public interest; and
an
association acting in the interest of its members.”
40
See
Lawyers for Human Rights and Another v Minister of Home
Affairs and Another
[2004] ZACC 12
;
2004 (4) SA 125
(CC);
2004
(7) BCLR 775
(CC) at para 15.
41
Organisations similar to the NGOs have been found to have standing
before this Court. See, for example,
Campus Law Clinic,
University of KwaZulu-Natal v Standard Bank of South Africa
Ltd
and Another
[2006] ZACC 5
;
2006 (6) SA 103
(CC);
2006 (6)
BCLR 669
(CC) at paras 20-2 and
Lawyers for Human Rights
above
n 40 at paras 14-8.
42
Section 101(1) of the Constitution provides:
“
A decision by the President must be in writing
if it—
. . .
(b) has legal consequences.”
43
See
Affordable Medicines Trust and Others v Minister of Health
and Others
[2005] ZACC 3
;
2006 (3) SA 247
(CC);
2005 (6) BCLR
529
(CC)
at para 49;
Pharmaceutical Manufacturers
Association of South Africa and Another: In re Ex Parte President of
the Republic of South Africa
and Others
[2000] ZACC 1
;
2000 (2)
SA 674
(CC);
2000 (3) BCLR 241
(CC) at para 20;
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) at para 38 and
Fedsure Life Assurance Ltd
and Others v Greater Johannesburg Transitional Metropolitan Council
and Others
[1998] ZACC 17
;
1999
(1) SA 374
(CC);
1998
(12) BCLR 1458
(CC) at para 32.
44
Chonco
above n 36 at para 30 (footnote omitted). See also
SARFU
above n 43 at para 148 and
Fedsure
above n 43 at
paras 56-8.
45
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 116 and
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 12.
46
Fedsure
above n 43 at para 58 and
Affordable Medicines
above n 43 at para 49.
47
President Mbeki’s Address above n 6.
48
Constitution of the Republic of South Africa Act 200 of 1993, under
the title “National Unity and Reconciliation”.
49
President Mbeki’s Address above n 6.
50
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) at para 17.
51
Id.
52
The Truth and Reconciliation Commission
Truth and Reconciliation
Commission Report Volume 1
(Juta & Co Ltd, Cape Town 1998)
112.
53
Id at 107.
54
Id at 128.
55
34 of 1995.
56
Section 20(8) provides:
“
If any person—
has been charged with and is standing trial in respect
of an offence constituted by the act or omission in respect of
which
amnesty is granted in terms of this section; or
has been convicted of, and is awaiting the passing of
sentence in respect of, or is in custody for the purpose of serving
a
sentence imposed in respect of, an offence constituted by the act
or omission in respect of which amnesty is so granted,
the criminal proceedings shall forthwith upon
publication of the proclamation referred to in subsection (6) become
void or the
sentence so imposed shall upon such publication lapse
and the person so in custody shall forthwith be released.”
Section
20(10) provides:
“
Where any person has been convicted of any
offence constituted by an act or omission associated with a
political objective in
respect of which amnesty has been granted in
terms of this Act, any entry or record of the conviction shall be
deemed to be expunged
from all official documents or records and the
conviction shall for all purposes, including the application of any
Act of Parliament
or any other law, be deemed not to have taken
place: Provided that the Committee may recommend to the authority
concerned the
taking of such measures as it may deem necessary for
the protection of the safety of the public.”
57
Azapo
above n 50 at para 17.
58
See section 1(d) of the Constitution.
59
See, for example,
Masetlha v President of the
Republic of South Africa and Another
[2007] ZACC 20
;
2008 (1) SA 566
(CC);
2008 (1) BCLR 1
(CC) (Ngcobo J
dissenting) at paras 172-207.
60
Above n 2.
61
See, for example,
Zondi v Member of the Executive Council for
Traditional and Local Government Affairs and Others
[2004] ZACC
19
;
[2004] ZACC 19
;
2005 (3) SA 589
(CC)
;
2005 (4) BCLR 347
(CC) at
paras 113-4 and
SARFU
above n 43 at para 219 and cases
cited therein.
62
SARFU
above n 43 at paras 145-6.
63
See, for example,
Affordable Medicines
above n 43
at
para 138 and
Biowatch Trust v Registrar, Genetic Resources and
Others
[2009] ZACC 14
;
2009 (6) SA 232
(CC);
2009 (10) BCLR 1014
(CC) at paras 22-3.
1
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);
Masetlha v President
of the Republic of South Africa and Another
[2007] ZACC 20
;
2008 (1) SA 566
(CC);
2008 (1) BCLR 1
(CC)
and
Minister of Health and Another NO v New Clicks South Africa (Pty)
Ltd and Others (Treatment Action Campaign and Another as Amici

Curiae)
[2005] ZACC 25
;
2006 (2) SA 311
(CC);
2006 (1) BCLR 1
(CC).
2
See, for example,
de Freitas v Benny
[1976] AC 239
(PC);
Council of Civil Service Unions and Others v Minister for the
Civil Service
[1985] AC 374
(HL);
Burt v Governor-General
1992 (3) NZLR 672
and
Biddle v
Perovich
[1927] USSC 134
;
274 US 480
(1927).
3
Doctors for Life
International v
Speaker of the National Assembly and Others
[2006] ZACC 11
;
2006
(6) SA 416
(CC);
2006 (12) BCLR 1399
(CC)
at para
121 and
Matatiele Municipality and Others v President of
the RSA and Others
(No 2)
[2006] ZACC 12
;
2007 (6) SA 477
(CC);
2007 (1) BCLR 47
(CC) at para 40.
4
See section 83(c) of the Constitution.
5
Du Toit
v
Minister for Safety and Security and Another
[2009] ZACC 22
;
2009 (6) SA 128
(CC);
2009 (12) BCLR 1171
(CC)
at
para 23.
6
Id.
7
There is much literature on the subject, but a personal expression
on the matter can be found in Mandela
Long Walk to Freedom
,
The Autobiography of Nelson Mandela
(Macdonald Purnell (Pty) Ltd, Randburg 1994) 20.
See also,
for example, the description of the Gacaca courts of Rwanda in
Amnesty International,
Rwanda
Gacaca: A question of justice
, AI
Index AFR 47/007/2002 and Villa-Vicencio
“Transitional
justice and human rights in Africa” in Bösl and Diescho
(eds)
Human Rights in Africa
(Macmillan Education Namibia,
Windhoek 2009) 41-3.
8
Sen
The Idea of
Justice
(Harvard University Press,
Cambridge 2009) 322.
9
Id at 332.