The pardoning power as a duty of justice

• Jurisdiction: South Africa
• Published date: 24 May 2019
• Date: 24 May 2019
• Pages: 159-175
• Citation: (2002) 15 SACJ 159
• Author: B C Naudé

ARTICLE • ARTIKELS

The pardoning power

as a duty of justice

B C NAUDE*

Summary

This article evaluates the current status of the presidential power of pardon

by looking at the nature of the power and the general process of an

application for pardon. Due to constitutional implications and certain

procedural inadequacies, the current pardon system needs to be revised.

There is a need for a principled and consistent exercise of this power. Such a

principled approach can be found in the retributivist theory of justice. In

terms of this theory, granting a pardon is a duty of justice. Retributivism

requires pardons when there is no liability to punishment, and it permits

pardons when there is liability without moral culpability. In order to give full

effect to the nature and purpose of this power, certain procedural safeguards

should be adhered to. Pardons should be limited to persons who have been

tried, convicted and sentenced and should only be valid if accepted by the

person pardoned. Pardons should also be given for specific offences and any

pardon decision should be accompanied by a written account of the reasons

for the decision. However, it would be undesirable to have legislation that

directly regulates the president's power to pardon by imposing procedural or

substantive requirements. The most acceptable solution would be to revise

the pardon power from within. In order to solve some of the procedural

problems inherent in the current system, provision could be made for the

automatic scrapping of a previous criminal record after a period of time.

Introduction

In terms of s 84(2)(j) of the Constitution,

1

the President has the power to

pardon or reprieve offenders and to remit any fines, penalties or forfeitures

* B Iuris LLB LLD (Unisa),

Associate Professor of Law in the Department of Criminal and

Procedural Law, University of South Africa

1

The Constitution of the Republic of South Africa, Act 108 of 1996.

159

(2002) 15 SACJ 159

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160

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SACJ •

(2002) 15 •

SAS

that have been imposed. This discussion concentrates on one of these

powers, namely that of pardon. Pardon is the power to unconditionally

forgive or excuse an offender his offence.

2

Legally speaking such a person is

regarded as if he never committed the offence in question and any criminal

record that he may have is expunged.

3

The current approach to pardons needs to be revised due to certain

procedural inadequacies and constitutional implications. On the procedural

side, there are many reasons for having a system that considers pardons on a

more strict, streamlined and cost effective basis. One of the main reasons is

that applications for pardon have increased drastically over the last few

years.

4

On the constitutional side, the decision to pardon is no longer

unreviewable. Furthermore, the very essence of this power, as defined by the

Constitutional Court, necessitates such a second look.

Constitutional nature of the pardon power

General

The general policy is that application to be pardoned is made to the

Department of Justice and Constitutional Development which handles and

considers each application on its own merits and advises the President

accordingly, but the President may also decide to pardon someone of his

own accord.

5

Because of the nature of this power, there could, in certain

circumstances, be an obligation upon the President to consider a specific

application for pardon.

6

When the President decides to pardon an offender, this power is exercised

2

Also called 'absolute pardon', full pardon', 'unconditional pardon' or 'free pardon' cf BA

Garner (ed)

Black's Law Dictionary

7 ed (1999) 1137; D Thompson (ed)

The Concise Oxford

Dictionary of Current English

9 ed (1995) 992; DM Walker

The Oxford Companion to Law

(1980) 917.

3

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

Cf E du Toit

Straf in Suid-Afrika

(1982) 506 where he discusses pardon under the heading of

'Grasie/kwytskelding deur die staatspresident'; WPM Kennedy & HJ Schlosberg

The Law and

Custom of the South African Constitution

(1935) 126; EW Ridges and GA Forrest

Constitutional Law

(1950) 342. Although this is the effect in terms of South African law,

pardon does not always have the effect of blotting out all existence of guilt cf AM Steiner

'Remission of guilt or removal of punishment? The effect of a presidential pardon' (1997) 46

Emory

LJ959; CD Berger 'The effect of presidential pardons on disclosure of information: Is

our cynicism justified?' (1999) 52

Okla LR

163; L Sebba 'The pardoning power — A world

survey' (1977) 68

J Crim L & Criminology

83.

4

According to the Department of Justice and Constitutional Development applications have

increased from 107 per year in 1992 to 775 in 2001.

5

This follows due to the nature of the power.

6

Cf MC Love 'Of pardons, politics and collar buttons: Reflections on the president's duty to be

merciful' (2000) 27

Fordham Urb LJ

1483; KD Moore

Pardons: Justice, Mercy, and the Public

Interest

(1989) 128-9.

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