Recent Case: Constitutional law

JurisdictionSouth Africa
Date16 August 2019
AuthorWarren Freedman
Pages86-106
Citation(2011) 24 SACJ 86
Published date16 August 2019
Constitutional law
WARREN FREEDMAN
University of KwaZulu-Natal, Pieterm aritzburg
The principle of legality – test for rationality
Introduction
Section 1 of the Constitution provides that the Republic of South Africa
is one sovereign democratic state founded on, amongst others, the
principle of ‘the rule of law’. This principle has been considered by
the Constitutional Cour t on a number of occasions. In these ca ses the
Court has held, inter alia, that neither the legislature nor the executive
may exercise the powers that have been conferred upon them in a
manner that is ir rational (see Pharmaceutical Manufactures: Ex Parte
Application of the President of the RSA 20 00 (2) SA 674 (CC)).
The principle of the rule of law also gives rise to a numb er of d if-
f‌icult questions. One of these is whether it i mposes an obligation on
the President to provide a hearing before he exercises the executive
powers conferred upon him and, in particular, before he exercises one
of the Head of State powers conferred upon him in term s of section
84 of the Constitution. This issue was considered in Albutt v Centre for
the Study of Violence and Reconciliation 2010 (2) SACR 101 (CC).
86 SACJ . (2011) 1
(2011) 24 SACJ 86
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The facts
The facts of this case were as follows. On 21 November 2007 former
President Mbeki an nounced in Parliament that a specia l dispensation
would be est ablished for those prisoners who had been convicted of
committing a politically motivated offence before 16 June 1999 and
who had applied for a presidentia l pardon. The purpose of t his d is-
pensation, he announced further, was to promote nation-building and
enhance national cohesion by dealing with the question of am nesty
for those South Africans who had not participated in the Truth a nd
Reconciliation Commission (‘the TRC’) process for various reason s.
When he made this announcement, former President Mbeki also
explained that those prisoners who qualif‌ied for a pardon in terms
of the special di spensation would h ave to submit a request to a spe-
cially created multi-party Pardon Reference Group (PRG); that the PRG
would consider each application and make a recommendation to him;
that he would consider the recommendation made by t he PRG; and
that he would then form an independent opinion on t he basis of the
facts or informat ion placed before him to decide whether to g rant a
pardon or not. When it ca me to making a decision whether to grant
a pardon or not, President Mbeki went on to explain, he would be
guided by (at para 6)
‘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, espe-
cially as they relate to the amnesty process’.
Following former President Mbeki’s announcement, the respondents (a
coalition of non-governmental organizations) made numerous attempts
to ensure that the victims of the offences in respect of which a pardon
was sought could participate in the special dispensation process.
These attempts were rejected initially by the PRG and subsequently by
the President. The re spondents then applied for and were granted an
interdict by the High Court preventing the President from granting any
such pardons until the ma in application was f‌inalized. T he applicants
then appealed unsuccessfully to the Const itutional Court.
In the Constitutional Court, the respondents challenged the deci-
sion to exclude the victims from the special dispensation process on a
number of different grounds. Thes e were as follows:
(a) First, th at the decision to exclude the victims was not rationally
related to the objectives the special dispensation was intended to
achieve, namely national unity and reconciliation. In other words,
that it was irrational.
Recent cases 87
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