President of the Republic of South Africa and Another v Hugo

• Jurisdiction: South Africa
• Judge: Chaskalson P, Mahomed DP, Ackermann J, Didcott J, Goldstone J, Kriegler J, Langa J, Madala J, O'Regan J, Sachs J
• Judgment Date: 18 April 1997
• Citation: 1997 (4) SA 1 (CC)
• Docket Number: CCT 11/96
• Hearing Date: 12 November 1996
• Counsel: G J Marcus (with him A G Jeffrey) for the appellants M Pillemer for the respondent
• Court: Constitutional Court

Goldstone J: F

[1] This matter comes before us on appeal against a judgment of Magid J in the Durban and Coast Local Division of the Supreme Court. [1] The applicant in the Court below (now respondent) is a prisoner who, on 6 December 1991, commenced serving an effective sentence of fifteen and-a-half years. Some nine years prior to his incarceration, the respondent married and a child was born of that marriage on 11 December 1982. The respondent's wife died in G 1987.

[2] On 27 June 1994, acting pursuant to his powers under s 82(1)(k) of the interim Constitution, [2] the President (first appellant) and the two Executive Deputy Presidents signed a H document styled Presidential Act No 17 (the 'Presidential Act'), in terms of which special remission of sentences was granted to certain categories of prisoners. [3] The category

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of direct relevance to these proceedings was 'all mothers in prison on 10 May 1994, with minor A children under the age of twelve (12) years'. It is common cause that the respondent would have qualified for remission, but for the fact that he was the father (and not the mother) of his son who was under the age of 12 years at the relevant date.

[3] In the application before Magid J, the respondent in an amended notice of motion [4] sought B an order declaring the Presidential Act unconstitutional and directing the first appellant to correct it in accordance with the provisions of the interim Constitution. The respondent alleged that the Presidential Act was in violation of the provisions of s 8(1) and (2) of the interim Constitution inasmuch as it unfairly discriminated against him on the grounds of sex or gender C and indirectly against his son in terms of s 8(2) because his incarcerated parent was not a female.

[4] The application was upheld, the Court finding that the Presidential Act discriminated against D the respondent and his son on the ground of gender. This finding in turn raised the presumption of unfairness in s 8(4) of the interim Constitution, which presumption was found not to have been rebutted by the appellants. [5] The Court ordered the first appellant to correct E the Presidential Act in accordance with the provisions of the interim Constitution within six months from the date of its order. [6] It is the appeal from this decision (leave having been granted in terms of Constitutional Court Rule 18) that forms the subject-matter of this judgment. At the request of this Court, Mr M Pillemer appeared on behalf of the respondent. We are indebted to him for his assistance. F

[5] This appeal requires us to consider the nature of the powers granted to the President by s 82(1)(k) of the interim Constitution. [7] Section

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82(1) contains powers which historically are the non-statutory or prerogative powers which A have traditionally inhered in the English monarch. [8] Similar powers have been and still are exercised (by heads of state or the executive in his or her name) in many countries, those in the Commonwealth and many outside it. [9] In South Africa, prior to 1993, some, but not all, of B those powers have been codified in earlier constitutions. Those that remained non-statutory were dealt with by reference to the exercise of the prerogative by the English monarch. The Republic of South Africa Constitution Act 32 of 1961 provided in s 7(4) that: C

'The State President shall . . . as head of the State have such powers and functions as were immediately prior to the commencement of this Act possessed by the Queen by way of prerogative.'

[6] In the Republic of South Africa Constitution Act 110 of 1983, it was provided in s 6(4) that: D

'The State President shall . . . as head of the State have such powers and functions as were immediately before the commencement of this Act possessed by the State President by way of prerogative.'

The 1983 Constitution made specific mention of some of the powers now contained in s 82 of the interim Constitution. These included, inter E

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alia, the power to confer honours, pardon and reprieve offenders, and to enter into and ratify A international treaties. [10]

[7] This process has now been completed in the interim Constitution. There is no express reference to prerogative powers and those powers of the President which originated from the B royal prerogatives are to be found in s 82(1). This approach has also been followed in the Constitution of the Republic of South Africa 108 of 1996. [11]

[8] Two conclusions can be drawn from the foregoing. First, the powers of the President which are contained in s 82(1) of the interim Constitution have their origin in the prerogative powers C exercised under former Constitutions by South African heads of State. Second, there are no powers derived from the royal prerogative which are conferred upon the President other than those enumerated in s 82(1).

[9] It is in this context that we must consider the central submission of the respondent, namely that the power of pardon or reprieve granted to the President in s 82(1)(k) is subject to the D provisions of chap 3 of the interim Constitution and, in particular, the equality provisions contained in s 8. In order to consider this submission it is necessary first to determine whether, in the exercise of his or her s 82(1)(k) powers, the President is subject at all to the provisions of the interim Constitution. E

[10] The starting point is the supremacy clause in the interim Constitution. It is provided in s 4 that:

'(1) This Constitution shall be the supreme law of the Republic and any law or act inconsistent with its provisions shall, unless otherwise provided expressly or by necessary implication in this Constitution, be of no force and effect to the extent of the inconsistency. F

(2) This Constitution shall bind all legislative, executive and judicial organs of state at all levels of government.'

In terms of s 75 of the interim Constitution:

'The executive authority of the Republic with regard to all matters falling within the G legislative competence of Parliament shall vest in the President, who shall exercise and perform his or her powers and functions subject to and in accordance with this Constitution.'

And s 76 provides simply that: 'The President shall be the Head of State.'

In s 81(1) and (2) the responsibilities of the President are set out as follows: H

'(1) The President shall be responsible for the observance of the provisions of this Constitution by the executive and shall as head of State defend and uphold the Constitution as the supreme law of the land.

(2) The President shall with dignity provide executive leadership in the interest of I national unity in accordance with this Constitution and the law of the Republic.'

There then follow the provisions of s 82(1) which, as stated earlier, provide for the President's competence to perform powers which J

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historically fell within the prerogative powers of the English monarch. These are powers which A now flow directly from the interim Constitution itself. Unlike the other powers of the President, they do not derive their authority from, and they are not dependent upon, legislative enactment. B

[11] There are only three branches of government, viz legislative, executive and judicial. The powers of the President, other than those set out in s 82(1), are without question executive powers. [12] The question is whether those referred to in s 82(1) fall within a different category. In my opinion they do not. Whether the President is exercising constitutional powers as head of C the executive (ie the Cabinet) or as head of State, he is acting as an executive organ of government. His powers are neither legislative nor judicial and there is no fourth branch of government.

[12] Textual support for the view that the powers exercised by the President under s 82(1) are D executive powers is to be found in the heading to and contents of s 83(1) and (2). It is there provided as follows:

'83. Confirmation of executive acts of President

(1) Decisions of the President taken in terms of s 82 shall be expressed in writing under his or her signature. E

2. Any instrument signed by the President in the exercise or performance of a power or function referred to in s 82(3) shall be countersigned by a Minister.'

For the purpose of elucidating a provision in a statute our Courts have referred to the headings of sections in a statute. [13] A similar position has F

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been adopted in England [14] and Canada. [15] In the case of headings which are part of a A constitution which was the product of negotiations conducted by the drafters thereof, and those headings are part of the constitution as drafted, there is at least as much to be said for their relevance as a tool of interpretation as there is in the case of ordinary legislation. [16] It follows, in B my opinion, that the heading of s 83 can be referred to as support for the conclusion that the powers of the President under s 82(1) are executive powers. The President, as an executive organ of State, by reason of the supremacy clause, is subject to the provisions of the interim Constitution.

[13] As far as chap 3 of the interim Constitution is concerned, it is provided in s 7(1) that: C

'This chapter shall bind all legislative and executive organs of state at all levels of government.'

Originating as they do from an executive organ of State, acts of the President, under s 82(1), D are subject to the provisions of chap 3 of the interim Constitution. As a result the exercise by the President of his powers under s 82(1) may be subject to review by Courts of appropriate jurisdiction in the same way as the exercise by him of other constitutional powers would be subject to review. [17] This conclusion is consistent...