Brief Summary

Constitutional Law — Presidential Pardon — Failure to decide on pardon application — Applicants alleging violation of constitutional obligations by current and former Presidents — Court finding that the delay in deciding the pardon application constituted a failure to fulfill constitutional duties as per section 84(2)(j) of the Constitution — Applicants entitled to constitutional damages for the failure to decide on their application in a timely manner.

Comprehensive Summary

Summary of Judgment

1. Introduction

This judgment of the Constitutional Court of South Africa concerned the constitutional obligations attached to the President’s power to pardon or reprieve offenders in terms of section 84(2)(j) of the Constitution. The proceedings were brought as an application invoking the Court’s exclusive jurisdiction under section 167(4)(e) (failure by the President to fulfil a constitutional obligation), with direct access advanced in the alternative.

The applicants were Mr Fusi Simon Mofokeng and Ms Xoliswa Percival Mokoena N.O., the latter acting as the representative of the estate of her late husband, Mr Tshokolo Joseph Mokoena. The respondents included the President of the Republic of South Africa (in his official capacity), the Minister of Justice and Constitutional Development, and the Department of Justice and Constitutional Development. The application also cited former Presidents Thabo Mvuyelwa Mbeki, Kgalema Petrus Motlanthe, and Jacob Gedleyihlekisa Zuma in their personal capacities; they did not oppose or participate.

The procedural history was shaped by an extraordinary delay in deciding a joint presidential pardon application lodged in November 2001. The applicants pursued follow-ups for many years without receiving a decision. After the applicants instituted proceedings in the Constitutional Court in August 2025, the President undertook to decide the application and ultimately granted pardons on 19 December 2025 (including a posthumous pardon for Mr Mokoena). Despite the pardons, the applicants persisted with claims for declaratory relief, constitutional damages (or alternatively delictual damages), and sought (by amendment) a structural interdict directed at systemic failures in pardon administration.

The general subject-matter of the dispute was whether the current and former Presidents breached constitutional obligations by failing to decide the applicants’ pardon request diligently and without delay, and what remedy was just and equitable given the eventual granting of the pardons.

2. Material Facts

On 2 April 1992, a shoot-out occurred in Bethlehem, Free State, between an African National Congress self-defence unit (SDU) and members of the South African Police Service. One police officer was killed and another seriously injured. Following what the judgment described as a flawed trial, Mr Mofokeng and Mr Mokoena were convicted of conspiracy to commit robbery, attempted murder and murder. Although they were not at the scene and were not involved with the SDU, they were convicted of attempted murder and murder on the basis of the doctrine of common purpose and sentenced to life imprisonment plus 18 years. They were released on parole in April 2011, after serving 19 years.

Mr Mofokeng and Mr Mokoena maintained their innocence. They exhausted legal avenues, including attempts to appeal their convictions. They also lodged an application for amnesty before the Truth and Reconciliation Commission (TRC), but ultimately withdrew it because they were unwilling to admit guilt, which was treated as a precondition to pursuing that application. Four SDU members involved in the shoot-out were granted TRC amnesty for the relevant offences. During the TRC proceedings, SDU members stated that Mr Mofokeng and Mr Mokoena had no involvement with the SDU and were “complete strangers” to them.

In November 2001, the applicants lodged a joint presidential pardon application under section 84(2)(j). The grounds included the TRC admissions and amnesties, the unreliability of the single State witness at trial, and the witness’s alleged admission that he had been bribed to give false information. They requested immediate release or, alternatively, a reprieve under section 325 of the Criminal Procedure Act 51 of 1977. The original pardon application did not include the criminal trial record or certain appeal documents, due to difficulties obtaining them. The applicants were not told that the absence of these records rendered the application incomplete; instead, they were repeatedly advised over the years that the application was under consideration.

While the section 84(2)(j) application remained pending, the applicants engaged additional processes. They applied for pardons under former President Mbeki’s Special Dispensation (circa 2008) despite knowing their assertion of innocence before the TRC would not qualify them under that process. They also sought relief under section 327 of the Criminal Procedure Act in July 2017 (a process dealing with further evidence), which was rejected by the Director of Public Prosecutions in June 2018, but this rejection was only communicated to them in March 2019; the applicants also alleged they were not advised of a formal rejection by the Minister as required.

After continued lack of progress, the applicants contacted the Office of the Presidency in April 2021 and requested a decision by May 2021. The Department indicated that the matter had been referred back for a fresh recommendation due to the passage of time and sought completion of new forms. The applicants provided supplementary information on the basis that it would not constitute a new application. After further follow-ups and provision of documentation in July 2023, and still without a decision, they launched proceedings in the Constitutional Court in August 2025.

After institution of proceedings, the President undertook to decide the pardon application by 31 January 2026 and then, on 19 December 2025, granted pardons to Mr Mofokeng and Mr Mokoena (posthumously) on all counts. The respondents contended that the legally relevant delay should be measured only from November 2021, asserting that the earlier application had been overtaken or superseded by later processes. The Court rejected that characterisation and held that none of those processes nullified the November 2001 application and that, on the President’s own account, the application had been submitted to the Department in 2001 and only decided in 2025.

3. Legal Issues

The Court identified four principal issues for determination.

The first issue was jurisdiction, namely whether the dispute fell within the Constitutional Court’s exclusive jurisdiction under section 167(4)(e) as a determination that the President (and former Presidents) failed to fulfil a constitutional obligation, and whether leave to amend the notice of motion should be granted (to include a claim for a structural interdict).

The second issue was mootness, namely whether the matter had become moot because the President had, after litigation commenced, granted the pardons. This required the Court to determine whether any live controversy remained, particularly regarding accountability for delay and the availability of relief such as declarations and damages.

The third issue concerned the substance of the constitutional obligation: whether the current and former Presidents breached obligations under section 84(2)(j) read with sections 83(b) and 237 of the Constitution, by failing to decide the joint pardon application diligently and without delay. This issue primarily involved the application of constitutional standards to the established timeline and administrative handling of the application.

The fourth issue was remedy, including whether declaratory relief remained appropriate, whether constitutional damages could and should be awarded (including in respect of the deceased Mr Mokoena), whether a structural interdict was warranted, and how any relief interacted with the possibility of later delictual damages proceedings.

The dispute accordingly concerned a mixture of legal questions (exclusive jurisdiction; mootness doctrine; availability and nature of constitutional damages) and application of law to fact (whether the delay, on the accepted chronology, violated constitutional obligations; and what remedy was most appropriate in the circumstances).

4. Court’s Reasoning

On jurisdiction, the Court approached section 167(4)(e) as a narrowly construed gateway, emphasising that exclusive jurisdiction applies where the obligation rests exclusively on the President (or Parliament) and where the pleadings properly allege a failure to fulfil a constitutional obligation, not merely conduct involving the President. The Court treated jurisdiction as a threshold matter determined from the pleadings. It held that section 84(2)(j) confers a power exercised by the President alone as Head of State, and that the conferral of this permissive power is coupled with obligations: pardon applications must be considered and decided rationally, in good faith, in accordance with legality, and crucially diligently and without delay, consistent with section 237 and with the President’s duty under section 83(b) to uphold, defend and respect the Constitution.

The Court accepted that the obligation to make a decision on pardon applications rests solely with the President, and that a failure to decide constitutes a paradigmatic instance of failure to fulfil a constitutional obligation within the meaning of section 167(4)(e). It distinguished challenges to a positive decision on a pardon (which would not fall within section 167(4)(e) in the same way) from a challenge to an egregious failure to decide. The Court treated the Constitutional Court’s earlier statements in Minister for Justice and Constitutional Development v Chonco as highly persuasive on this point, even if characterised as obiter in that case, and concluded there was no basis to depart from that approach.

On leave to amend, the Court applied the general principle that amendments should be allowed unless made in bad faith or causing incurable prejudice. It accepted the applicants’ explanation that the proposed structural interdict was prompted by information in the answering affidavit, including the President’s inability to explain why the application had not reached the Presidency for many years. Because the respondents had an opportunity to answer and the matter had been ventilated, the Court granted leave to amend. It nonetheless later considered whether the amended remedy (structural interdict) should be granted on the merits.

On mootness, the Court rejected the respondents’ contention that the grant of pardons rendered the case academic. It reasoned that the core dispute was not only the eventual decision to pardon, but the alleged unconstitutional delay in deciding and the harm flowing from that delay. In the Court’s view, the granting of pardons did not, without more, extinguish the live questions whether constitutional obligations were breached, whether declaratory relief was warranted to vindicate the Constitution, and what remedy (including damages) should follow. It also considered that the matter raised broader clarification about obligations attached to discretionary constitutional powers and that it remained in the interests of justice to decide those issues.

On the merits of the breach, the Court reaffirmed that while the President’s power to pardon is discretionary in relation to outcome (grant or refusal), it is not discretionary in relation to whether to decide. A pardon application placed within the constitutional process must be decided, and the obligation to do so is shaped by legality, rationality, good faith, diligence and promptness. The Court rejected the respondents’ argument that the operative delay should be counted from 2021 on the basis that a new application had been submitted. It held that the later processes (the Special Dispensation application, parole, and section 327 application) did not nullify or supersede the original 2001 pardon application, and that any alleged incompleteness of the 2001 application did not have the effect of extinguishing it, especially given the lack of communication treating it as incompetent or refused.

The Court also treated the President as responsible for failures in the delegated and preparatory administrative structures of the pardon process. It reasoned that, although the President may consult and rely on departmental processes, the President retains “full powers and functions” and therefore “the bearer of all obligations” in the pardon process. The Court thus held that whether the application physically reached the President’s desk did not alter the constitutional accountability analysis. On the President’s acknowledgment that the application was submitted to the Department in 2001 and only decided in 2025, the Court concluded that 24 years had elapsed.

In assessing whether there was a failure to fulfil constitutional obligations, the Court relied substantially on the President’s concessions that the delay was regrettable and that ultimate responsibility rested with the President because the power is exercised solely by that office. The Court held that even a four-year delay would be unacceptable, and it rejected administrative under-capacitation as a justification. It further characterised the overall handling of the matter, including the lack of responsive engagement over many years and the fact that Mr Mokoena died before receiving finality, as demonstrating callousness inconsistent with constitutional governance.

On remedy, the Court considered declaratory relief, damages, and the proposed structural interdict.

With regard to declaratory relief, the Court accepted that declarations can vindicate constitutional norms and assist accountability. It granted a declaration that the relevant Presidents failed to fulfil their constitutional obligations by failing diligently and without delay to decide the joint pardon application. However, it refused the applicants’ requested declaration that the application would have been decided by 5 November 2003, reasoning that it would be improper for the Court to prescribe what would have been a reasonable timeframe in the abstract, because reasonableness in processing pardon applications is context- and fact-specific.

With regard to constitutional damages, the Court engaged the jurisprudence on damages as constitutional relief. It held that constitutional damages may constitute “appropriate relief” and, in the present context, a just and equitable remedy under section 172(1)(b). The Court emphasised that constitutional damages should not serve a punitive function and should not become a windfall; rather, they serve to vindicate constitutional breaches effectively. It treated the inquiry as casuistic and focused on whether constitutional damages were the most appropriate and effective remedy, including in light of alternative remedies such as delict.

The Court concluded that requiring the applicants to pursue a delictual claim as the sole remedy would be ineffective and manifestly unjust or unreasonable given the extraordinary delay already endured and the prospect of further protracted litigation. It identified uncertainties that could hinder delictual relief, including questions about delictual wrongfulness, causation, transmissibility to an estate, and the factual enquiry into how and why the delay occurred. These considerations, together with the egregiousness and duration of the constitutional breach, led the Court to hold that constitutional damages were the most effective remedy.

The Court also rejected the respondents’ submission that constitutional damages were unavailable in respect of Mr Mokoena because he had died before the claim was instituted or before pleadings had closed. The Court reasoned that constitutional damages are not common-law delictual damages and should not be constrained by transplanted common-law transmissibility rules in a manner that undermines the constitutional court’s duty to craft just and equitable relief. It held that it would not be just and equitable for the State’s own delay to defeat liability for harm suffered by a person who died while awaiting vindication.

Although it held that constitutional damages were due, the Court did not quantify them in this judgment. It considered it appropriate to invite written submissions on quantum because the issue had not been ventilated. It nonetheless indicated that it was appropriate for the Constitutional Court itself to determine the quantum, given the need for finality and expedition.

With regard to the structural interdict, despite granting leave to amend, the Court held that the interests of justice did not require such relief in this case. It emphasised that structural interdicts are generally reserved for situations where necessary to secure compliance with court orders, and it concluded that the requested supervisory remedy was not appropriate on the facts. The Court nevertheless expressed an expectation that the Presidency would review the pardon process and implement measures to prevent recurrence, given the systemic failures identified.

Finally, the Court addressed the position of former Presidents and treated the obligations as attached to the Presidency as an institution, with obligations transferable from one President to another. It reasoned that failures to fulfil presidential constitutional obligations are generally attached to time in office and to official responsibility rather than to personal capacity, while acknowledging that other forms of relief might be sought in different cases.

5. Outcome and Relief

The Court held that it had exclusive jurisdiction to determine whether the current and former Presidents failed to fulfil their constitutional obligations in relation to the processing and decision of the pardon application. It granted leave to amend the notice of motion, but it did not grant the structural interdict sought in the amendment.

The Court declared that the first to fourth respondents failed to fulfil their constitutional obligations under section 84(2)(j) read with sections 83(b) and 237 of the Constitution, in that they failed diligently and without delay to decide the joint pardon application of Mr Mofokeng and Mr Mokoena.

The Court ordered that the applicants are entitled to constitutional damages, with the quantum to be determined later after written submissions. It directed the parties to file written submissions on quantum within specified dates.

The Court expressly stated that its order did not preclude the applicants from instituting a delictual damages action in the High Court, and it provided that any constitutional damages awarded by the Constitutional Court must be taken into account if delictual damages are later quantified and awarded by a High Court.

On costs, the Court ordered that the first respondent must pay the applicants’ costs, including the costs of two counsel where employed.

Cases Cited

Minister for Justice and Constitutional Development v Chonco [2009] ZACC 25; 2010 (2) BCLR 140 (CC); 2010 (4) SA 82 (CC).

Pheko v Ekurhuleni Metropolitan Municipality [2011] ZACC 34; 2012 (2) SA 598 (CC); 2012 (4) BCLR 388 (CC).

MEC for Education, KwaZulu-Natal v Pillay [2007] ZACC 21; 2008 (1) SA 474 (CC); 2008 (2) BCLR 99 (CC).

AB v Pridwin Preparatory School [2020] ZACC 12; 2020 (5) SA 327 (CC); 2020 (9) BCLR 1029 (CC).

Women’s Legal Centre Trust v President of the Republic of South Africa [2009] ZACC 20; 2009 (6) SA 94 (CC).

S v Boesak [2000] ZACC 25; 2001 (1) BCLR 36 (CC); 2001 (1) SA 912 (CC).

Sunwest International (Pty) Ltd v Western Cape Gambling and Racing Board [2025] ZACC 18; 2026 (2) SA 9 (CC).

Fraser v ABSA Bank Ltd [2006] ZACC 24; 2007 (3) BCLR 219 (CC); 2007 (3) SA 484 (CC).

My Vote Counts NPC v Speaker of the National Assembly [2015] ZACC 31; 2015 (12) BCLR 1407 (CC); 2016 (1) SA 132 (CC).

Gcaba v Minister for Safety and Security [2009] ZACC 26; 2010 (1) BCLR 35 (CC); 2010 (1) SA 238 (CC).

President of the Republic of South Africa v South African Rugby Football Union [1998] ZACC 21; 1999 (2) SA 14 (CC); 1999 (2) BCLR 175 (CC).

Zuma v President of the Republic of South Africa [2025] ZACC 21; 2025 (12) BCLR 1428 (CC).

Doctors for Life International v Speaker of the National Assembly 2006 [ZACC] 11; 2006 (6) SA 416 (CC); 2006 (12) BCLR 1399 (CC).

Economic Freedom Fighters v Speaker, National Assembly [2016] ZACC 11; 2016 (3) SA 580 (CC); 2016 (5) BCLR 618 (CC).

President of the Republic of South Africa v Hugo [1997] ZACC 4; 1997 (4) SA 1 (CC); 1997 (6) BCLR 708 (CC).

Turnbull-Jackson v Hibiscus Coast Municipality [2014] ZACC 24; 2014 (6) SA 592 (CC); 2014 (11) BCLR 1310 (CC).

Affordable Medicines Trust v Minister of Health [2005] ZACC 3; 2005 (6) BCLR 529 (CC); 2006 (3) SA 247 (CC).

Durban City Council v Kempton Park (Pty) Ltd 1956 (1) SA 54 (N).

Rood v Wallach 1904 TS 187.

President of the Republic of South Africa v South African Rugby Football Union [1999] ZACC 11; 1999 (10) BCLR 1059 (CC); 2000 (1) SA 1 (CC).

Law Society of South Africa v President of the Republic of South Africa [2018] ZACC 51; 2019 (3) SA 30 (CC); 2019 (3) BCLR 329 (CC).

Mncwabe v President of the Republic of South Africa [2023] ZACC 29; 2023 (11) BCLR 1342 (CC); 2024 (1) SACR 447 (CC).

Albutt v Centre for the Study of Violence and Reconciliation [2010] ZACC 4; 2010 (3) SA 293 (CC); 2010 (5) BCLR 391 (CC).

Chonco v President of the Republic of South Africa [2010] ZACC 7; 2010 (6) BCLR 511 (CC).

Fose v Minister of Safety and Security [1997] ZACC 6; 1997 (3) SA 786 (CC); 1997 (7) BCLR 851 (CC).

President of the Republic of South Africa v Modderklip Boerdery (Pty) Ltd [2005] ZACC 5; 2005 (5) SA 3 (CC); 2005 (8) BCLR 786 (CC).

MEC for the Department of Welfare, Eastern Cape v Kate [2006] ZASCA 49; [2006] 2 All SA 455 (SCA); 2006 (4) SA 478 (SCA).

Residents of Industry House, New Doornfontein, Johannesburg v Minister of Police [2021] ZACC 37; 2022 (1) BCLR 46 (CC); 2023 (3) SA 329 (CC).

Electoral Commission v Mhlope [2016] ZACC 15; 2016 (5) SA 1 (CC); 2016 (8) BCLR 987 (CC).

Minister of Health v Treatment Action Campaign (No 2) [2002] ZACC 15; 2002 (5) SA 721 (CC); 2002 (10) BCLR 1033 (CC).

Legislation Cited

Constitution of the Republic of South Africa, 1996, sections 2, 38 (referred to in the discussion of constitutional damages jurisprudence), 83(b), 84(2)(j), 167(4)(e), 172(1)(b), and 237.

Criminal Procedure Act 51 of 1977, sections 325 and 327.

Promotion of Administrative Justice Act 3 of 2000 (referred to as not being determined in this matter).

Rules of Court Cited

Uniform Rules of Court, rule 28 (amendments), applied in the Constitutional Court through the Constitutional Court Rules.

Rules of the Constitutional Court, rule 11 (answering affidavit in relation to the amendment application) and rule 29 (application of Uniform Rules in the Constitutional Court).

Held

The Constitutional Court held that it had exclusive jurisdiction to determine the failure by the President (and former Presidents) to fulfil constitutional obligations in relation to deciding pardon applications, because the obligation to decide pardon applications diligently and without delay is an obligation resting on the President alone in the exercise of section 84(2)(j) power, read with sections 83(b) and 237.

It held that the matter was not moot despite the President having granted the pardons after the litigation commenced, because live disputes remained concerning the constitutional breach occasioned by the delay, the need for declaratory vindication, and the appropriate remedy.

It held that the relevant Presidents failed to fulfil their constitutional obligations by taking 24 years to decide the joint pardon application, and that the applicants were entitled to constitutional damages as the most appropriate and effective remedy in the circumstances, with quantum to be determined after further written submissions. It held that the applicants were not precluded from pursuing delictual damages in the High Court, subject to the Court’s directions about accounting for any constitutional damages awarded.

LEGAL PRINCIPLES

The judgment applied the principle that a conferral of a discretionary constitutional power on the President may be coupled with an enforceable duty to exercise that power where the Constitution, properly construed, requires performance. In relation to section 84(2)(j), the discretion lies in whether to grant or refuse a pardon, but not in whether to decide the application at all.

It reaffirmed that constitutional obligations must be performed diligently and without delay as required by section 237, and that these obligations constrain the pardon process through the requirements of legality, including that decisions (and the process of reaching them) must be undertaken rationally and in good faith. It treated these obligations as attached to the President as Head of State and as applying to the entire pardon process, including preparatory and delegated administrative steps.

On exclusive jurisdiction, the judgment applied a narrow construction of section 167(4)(e), holding that the Constitutional Court’s exclusive jurisdiction is engaged where the President’s failure concerns an obligation that rests on the President alone, and where the complaint is properly pleaded as a failure to fulfil a constitutional obligation rather than merely impugning presidential conduct.

On remedies, the judgment applied the principle that courts possess broad remedial power under section 172(1)(b) to craft just and equitable relief for constitutional breaches, and that constitutional damages may be awarded where they are the most appropriate and effective remedy to vindicate the breach. It emphasised that constitutional damages should not operate as punitive damages and should be shaped to vindicate rights without creating an unjustifiable windfall.

The judgment further applied the principle that the existence of an alternative remedy such as delict does not automatically bar constitutional damages. The court must assess whether directing the claimant to pursue the alternative would be manifestly unjust or unreasonable, having regard to the nature and extent of the violation, the claimants’ position, and the practical consequences of requiring alternative litigation. It also treated constitutional damages as conceptually distinct from delictual damages and held that common-law transmissibility constraints should not be automatically transposed in a manner that defeats just and equitable constitutional relief, particularly where delay attributable to the State would otherwise defeat accountability.

Mofokeng and Another v President of the Republic of South Africa and Others (CCT 246/25) [2026] ZACC 43 (21 October 2026)