Albutt v Centre for the Study of Violence and Reconciliation, and Others

• Jurisdiction: South Africa
• Judge: Ngcobo CJ, Moseneke DCJ, Cameron J, Froneman J, Khampepe J, Mogoeng J, Nkabinde J, Skweyiya J and Van der Westhuizen J
• Judgment Date: 23 February 2010
• Citation: 2010 (3) SA 293 (CC)
• Docket Number: CCT 54/09
• Hearing Date: 10 November 2009
• Court: Constitutional Court
• Counsel: NB Tuchten SC (with N Riley and M Witz) for the applicant. G Budlender SC (with K Pillay, H Varney and L Kubukeli) for the first to seventh respondents. MTK Moerane SC and IV Maleka SC (with L Gcabashe) for the eighth and ninth respondents. TJ Botha for the fifteenth respondent.

Ngcobo CJ: A

Introduction

[1] This case concerns the power of the President to grant pardon under s 84(2)(j) of the Constitution to people who claim that they were B convicted of offences that 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 C appeal directly to this court and an application for direct access brought to this court by the applicant, Mr Albutt.

[2] 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 D pardon under s 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 s 1 of the Promotion of Administrative Justice Act 3 of 2000 (PAJA). [3] This relief is E sought in the event this court finds that, upon its proper construction, s 1 of PAJA [4] defines administrative action to include the exercise of the power to grant pardon under s 84(2)(j).

Ngcobo J

[3] The President and the Minister for Justice and Constitutional A 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 seventh respondents. [5]

Factual background B

[4] 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 C 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 D reconciliation and the further enhancement of national cohesion, and in order to make a further break with matters which arise from the

Ngcobo J

A conflicts of the past, consideration has therefore been given to the use of the Presidential pardon to deal with this unfinished business.' [8]

[5] 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 B 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 C 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 D for pardon and make recommendations to the President'. [10] And the

Ngcobo J

PRG had the power to develop its own rules and procedures. [11] The PRG A had a limited lifespan which did not extend beyond 30 November 2008.

[6] 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 B 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 C 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]

[7] The Explanatory Memorandum, which the Department of Justice and Constitutional Development issued to explain the special dispensation D process, reiterated that the President would be guided by these

Ngcobo J

A 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 B representations.

[8] 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 C 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 D in effect declined the request for victim participation in the special dispensation and refused to furnish any undertaking in this regard. Litigation ensued.

[9] The NGOs launched an urgent application in the High Court for an interdict preventing the President from granting any pardons in terms of E 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 s 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 F and that the victims had no right to be heard when the President exercises the power to grant pardon under s 84(2)(j). The applicant and six other convicted prisoners [17] sought, and were granted, leave to

Ngcobo CJ

intervene. They resisted the application on the same grounds as the A State, but included non-joinder of other applicants for pardon as an additional ground.

High Court

[10] The High Court found that the NGOs had standing because they B 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 C 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. D [18]

[11] On the central issue of whether the victims had the right to participate in the special dispensation process, the High Court answered E this question in the affirmative. Its conclusion rests on at least three legs: (a) upon a proper construction, s 1 of PAJA defines administrative action to include the exercise of the power to grant pardon under s 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 F 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 G considered all the relevant information relating to the said prisoner. The said information should include, inter alia, the prisoner's application, the inputs of victims and/or families of the victims of that particular crime and any other relevant information which might come from any interested party. The inputs from the other interested parties will enable the President to verify the facts stated by the applicant in the H [pardon] application form.' [22]

Ngcobo CJ

A [12] 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 s 84(2)(j).

[13] The High Court accordingly granted an order interdicting the President from granting any pardons in terms of the special dispensation B 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...