Minister for Justice and Constitutional Development v Chonco and Others

• Jurisdiction: South Africa
• Judge: Langa CJ, Moseneke DCJ, Cameron J, Mokgoro J, Ngcobo J, Nkabinde J, O'Regan J, Sachs J, Skweyiya J and Van Der Westhuizen J
• Judgment Date: 30 September 2009
• Citation: 2010 (4) SA 82 (CC)
• Hearing Date: 25 August 2009
• Docket Number: CCT 42/2009
• Counsel: MTK Moerane SC (with L Gcabashe) for the applicant (appellant). TJ Kruger SC (with C van Jaarsveld) for the respondents.
• Court: Constitutional Court

Langa CJ:

Introduction

[1] Mr Mqabukeni Chonco was convicted of robbery, the unlawful possession of a firearm and ammunition, attempted murder and murder G in 1989. He was sentenced to death for murder. The carrying out of the death penalty was later suspended in 1990 and Mr Chonco's sentence was commuted to life imprisonment when the death penalty was removed as a judicial punishment in South Africa because of its inconsistency with the Constitution. [1] He is still in prison and has now H lodged an application for presidential pardon in terms of the powers vested in the President by virtue of s 84(2)(j) of the Constitution. The relevant part of s 84 provides -

'(1) The President has the powers entrusted by the Constitution and legislation, including those necessary to perform the functions of Head of State and head of the national executive. I

(2) The President is responsible for -

. . .

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(j)

A pardoning or reprieving offenders and remitting any fines, penalties or forfeitures; . . . .'

Background

[2] During the 1980s and in the early years of democracy, a maelstrom B of political violence raged through our country between, amongst others, the supporters of the African National Congress (ANC) and the Inkatha Freedom Party (IFP). Mr Chonco, a member of the IFP, alleges that the murder for which he was convicted, a murder that occurred during that era, was a crime committed for a political objective.

C [3] The Truth and Reconciliation Commission (TRC), established under the Promotion of National Unity and Reconciliation Act 34 of 1995 (Reconciliation Act), provided a mechanism for the granting of amnesty to perpetrators of gross human rights violations in return for disclosure of the horrors committed with a political objective. The Reconciliation Act also made provision for reparation to victims and the D closing of the book on the past. [2] The process provided an opportunity for Mr Chonco, and others in his circumstances, to come forward, make a disclosure of what they knew regarding the gross violations of human rights that had taken place and, if they qualified, be granted amnesty and receive absolution for the crimes for which they had been convicted. E Mr Chonco did not, however, apply for amnesty since, he says, the IFP chose not to participate in the TRC process and its members were likewise instructed not to take part. Only in early 2003, after the TRC process had ended, did Mr Chonco apply to the President to be pardoned for his crimes.

F [4] Mr Chonco's application was joined by 383 other convicted prisoners. Their applications for pardon were assisted and supported by the IFP. They applied for pardon on the ground that the crimes for which they had been convicted and imprisoned had been committed for political objectives. From the answering affidavit filed on behalf of the G Minister for Justice and Constitutional Development (the minister) in the North Gauteng High Court (High Court), and Mr Chonco's reply to it, it appears that these applications were lodged in May 2002, after the President pardoned 33 members of the ANC and the Pan Africanist Congress (PAC), who had applied to the TRC, wholly or partly unsuccessfully, H for amnesty.

[5] All the applications were received by the minister, who is the applicant for leave to appeal. A considerable time passed without a response from the President or the minister. Various members of the IFP raised the matter in letters to the President, in parliamentary debates and I in general speeches. In September 2005, in answering a question posed

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to him in Parliament, the President acknowledged that he had not yet A seen these applications for pardon. He stated, however, that he had 'urged' the minister to expedite the processing of the applications. [3]

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A [6] Nothing happened, however, after this statement by the President. After a substantial lapse of time, during which the IFP lodged a complaint against the minister with the South African Human Rights Commission on Mr Chonco and the other prisoners' behalf, Mr Chonco commenced proceedings against the minister, as first respondent, and B the President, as second respondent, in the High Court. The proceedings were supported by the PAC, whose Member of Parliament, Mr Pheko, lodged a supporting affidavit as part of the founding papers.

High Court

C [7] The order sought by Mr Chonco before Seriti J in the High Court was one declaring that the minister, as the assignee of the President or as a delegated member of the national executive, had failed to exercise her constitutional obligation to process, with diligence and without delay, the applications for pardon, and thus enable the President to consider and decide upon the applications in terms of s 84(2)(j). In the alternative, D Mr Chonco argued that the failure by the minister to take a decision regarding each of the applications constituted administrative action and was reviewable in terms of s 6(2)(g) of the Promotion of Administrative Justice Act 3 of 2000 (PAJA). [4] Consequently, Mr Chonco requested the High Court to direct the minister to do everything necessary to enable the President to exercise the powers conferred upon him by s 84(2)(j). E Although the President was joined in the High Court proceedings, no relief was sought against him and he did not participate in the proceedings.

[8] The High Court noted that, although the power to pardon was F vested solely in the President as Head of State, applications were in

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practice received, processed and commented upon within the Department A of Justice and Constitutional Development and subsequently passed on to the President for decision. He ruled that this practice was in accordance with the law and therefore had legal consequences. The request for assistance by the President to the minister created an obligation on the part of the minister. B

[9] He noted further that more than four years had passed and none of the applications had been processed and no recommendations had been made to the President. He held that the minister had failed to perform her functions diligently and without delay as required by s 237 of the Constitution. [5] C

[10] The minister was consequently ordered to do everything necessary, within three months, to enable the President to act in terms of s 84(2)(j). The minister thereupon sought leave to appeal to the full bench of the High Court, alternatively to the Supreme Court of Appeal, against the judgment of the High Court. Leave to appeal to the Supreme Court of D Appeal was granted. The President did not join in the appeal.

Supreme Court of Appeal

[11] In the Supreme Court of Appeal, the minister argued that there was no constitutional obligation on the part of the minister to process applications for pardon, since that function vested exclusively in the E President as Head of State in terms of s 84(2)(j).

[12] In a short, unanimous judgment delivered by Farlam JA, the Supreme Court of Appeal dismissed the appeal and ruled that the minister bore obligations stemming from s 85(2)(e) of the Constitution. Section 85(2) provides in relevant part: F

"The President exercises the executive authority, together with the other members of the Cabinet, by -

. . .

(e)

performing any other executive function provided for in the Constitution or in national legislation.' G

[13] The definitive paragraph in that judgment reads as follows:

'In my view the Minister had a constitutional obligation to process and to do what was necessary to enable the President to exercise the powers conferred upon him by s 84(2)(j) of the Constitution. A prisoner H clearly has the right to apply for a pardon and someone has the obligation to give an answer. The fact that the President performs Head of State functions in terms of s 84(2) of the Constitution in pardoning offenders does not mean that executive functions are not performed beforehand. It is not implied in the Constitution that the President himself or through the office of the Presidency must perform all preparatory steps before the power to decide whether to grant a pardon I or not is exercised. These steps (which may be called preliminary

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A executive functions because they are steps required for laying the foundation for the ultimate decision to be made by the President) by clear implication fall within the ambit of the normal executive functions conferred by the Constitution on the executive and are therefore covered by s 85(2)(e) of the Constitution. In cases involving applications for pardon the appropriate department to perform these functions B is the department. The Minister's failure to perform these functions is a breach of s 92(3)(a) of the Constitution.' [6]

Issues before this court

[14] The minister now seeks leave to appeal to this court. The application C is concerned with the minister's failure to process applications, the consideration of which is an exclusive function of the President in terms of s 84(2)(j). The question is whether this failure amounts to a breach of a constitutional obligation under s 85(2)(e) on the part of the minister in her capacity as a member of the national executive. Whether the High Court and the Supreme Court of Appeal were correct in their D characterisation of the functions and obligations under ss 84(2)(j) and 85(2)(e) thus arises for determination.

Is a constitutional issue raised and should leave to appeal be granted?

[15] The first issue which needs to be addressed is whether the appeal E raises a constitutional issue. If it does, I must consider whether it is in the interests of justice that leave to appeal be granted. In my view, both questions must be answered in the affirmative. In the first place, the matter is principally concerned with the interpretation and application of...