Selfe and de Lille Proposals: President's power to pardon; Presentation by relevant stakeholders

Private Members' Legislative Proposals and Special Petitions

18 March 2010
Chairperson: Mr S Thobejane (ANC)
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Meeting Summary

Ms P de Lille briefed the Committee on her legislative proposal around Presidential Pardons. She believed that Section 84(2)(j) of the Constitution, granting the President the power to pardon individuals, was an anachronistic provision that had its roots in the British monarchic dispensation, and was incongruent with the values of a modern democratic state. Furthermore, it contradicted the principle that one individual should not have the power to override a legal decision that had been taken by another arm of the government. Her proposed Constitutional amendment to remove this sub-section would firmly entrench the underlying values of the Constitution and remove the vestiges of the colonial past.

Mr J Selfe briefed the Committee on his legislative proposal, which he said was aimed at preventing abuse of the Executive power to pardon contained in Section 84(2)(j). However, he proposed prescribing and regulating the process by which the President of the Republic of South Africa considered applications for presidential pardons, by setting up a framework in terms of which the President must obtain advice from the Minister of Justice and Constitutional Development, who in turn would be obliged to investigate and make recommendations on potential exercises of pardons, considering specific criteria. Furthermore, his proposal would compel the Minister to advise not only the victims, but also the public timeously of any pardon(s). It did not restrict the right of the President to pardon but created a framework within which those powers should be exercised, and sought to ensure that they were exercised rationally and consistently. He said that in practice the President tended to consult, but was not bound by recommendations, nor obliged to publicise.

Legal representatives from the Department of Justice, the Presidency, Parliament and the Office of the Chief State Law Adviser gave comment on the proposals. They drew attention to a number of Constitutional Court cases, and noted that the end result of both proposals was to fetter the absolute discretion granted under the Constitution to the President. They distinguished between Sections 84 and 85 of the Constitution, which drew distinctions between the President acting as Head of State and as Head of the National Executive. Some doubt was expressed as to whether Mr Selfe’s proposal would pass Constitutional muster, and whether the President’s discretion could be brought in line with an administrative decision. The point was made that whatever decisions were made, they were still reviewable under the current dispensation by the Court, and the President was accountable to Parliament. Members decided to consider the proposals further and to take a decision on the matter in the following week.

Meeting report

Chairperson’s opening remarks
The Chairperson noted that two private members’ legislative proposals would be introduced.

She welcomed representatives from the Presidency and the Department of Justice and Constitutional Development (DOJ). She noted that the Chairpersons of the Portfolio Committee on Justice and Constitutional Development and the Joint Constitutional Review Committee may be able to join this Committee, but would be permitted to make submissions later in the process.

De Lille Private legislative proposal: Removal of Section 84(2)(j) of the Constitution

Ms Patricia de Lille, MP, briefed the Committee on her legislative proposal. She was proposing that Section 84(2)(j) of the Constitution be repealed, thus removing the power of the President of the Republic of South Africa to grant pardons or reprieves to offenders, or to remit any fines, penalties or forfeitures.

She said that the Constitutional provision granting the President the power to pardon individuals was an anachronistic provision that had its roots in the British monarchic dispensation in which the king or queen was invested with supreme power to pardon individuals. This provision was incongruent with the values of a modern democratic state in which the principles of the rule of law and the separation of powers were entrenched. This provision also went against established principles in that it granted an individual, namely the President, the power to override a legal decision that had been taken by another arm of the government.
Her proposed constitutional amendment would firmly entrench the underlying values of our Constitution and remove the vestiges of the colonial past that did not fit in with the values of the modern State that South Africa was trying to build.

There were no financial implications stemming from the proposed constitutional amendment were foreseen.

Ms de Lille stated that she would make her research available to the Committee. She believed that the concept of Presidential pardons was at variance with the foundational Constitutional value of the rule of law. It also violated the provision of Section 165 of the Constitution. A basic tenet of the rule of law was that there must be clear independence and separation of powers between the Legislature, the Executive and the Judiciary. Section 165 of the Constitution further entrenched the separation of powers by vesting judicial authority in the courts alone and prohibited any interference with the functioning of the courts, as well as binding all persons and organs of State to an order or decision issued by a court. When the Constitution was drawn, the drafters must have been aware of those inherent contradictions. However, the question was whether it was desirable to curtail those unfettered powers, and, if so, how could that be achieved. Because of the supremacy of the Constitution the powers could not b curtailed in terms of an ordinary law.

The concept of presidential powers was not new, and was not peculiar to South Africa. Several other countries had been researched. In the United Kingdom (UK) in particular, the power to grant pardons and reprieves was known as the “royal prerogative of mercy”, and was traditionally within the absolute power of the monarch to pardon and release an individual who had been convicted of a crime. She said that this applied from 1327, and was particularly used in the 18th century, coupled with a condition that the felons accept transportation to Australia. 

Ms de Lille further motivated that she had asked the President in Parliament, by way of Question No 198, dated 19 February, for the total number of, and the names of, persons pardoned since 10 May 1994. She had further asked how many were pardons for those whose activities were related to a political objective, and how many related to criminal convictions, whether there were announcements on each pardon to date, and if not, why not. Finally, she asked if the President intended establishing a more transparent process in the future; if not, why not, and if so, then what were the details.

The President had responded that there had not been announcements of each pardon to date, and that it was not common practice to announce pardons, except to inform the applicant or his or her legal representative, after the President had made a decision. She pointed out that there had been over 3 000 pardons since 1994 and yet the public was not aware to whom they were granted, nor the reasons

The President had further informed her that the pardon process had always been transparent, taking into account that the President’s powers derived from the Constitution, which provided that he must act in accordance with the rule of law when exercising an executive function. She believed this was not acceptable, as the process was open to abuse and South Africans were not informed of the process.

Her proposal would put an end to pardons being granted under these conditions. She proposed the establishment of a board such as a Pardons Board, which must be transparent and open in dealing with pardons – but this point could be further debate if her proposal were accepted.

She further suggested that the decision of any such Pardons Board always to be open for judicial review. She referred to the Constitutional Court decision in the Hugo matter, although the Court stopped short of stating a general precedent to apply to all pardons. However, the Court ruled that the rights of victims be heard. This was crucial.

She stressed that, in the absence of a monarch, but given the progressive Constitution that was firm on the separation of powers, her proposal would firmly entrench the underlying values of the Constitution.

Mr A Ainslie (ANC) commented that Ms de Lille had over emphasised kings and queens and the position in England. He could not agree with the statement in her written proposal that the provision in the South African Constitution that gave the President power to pardon was incongruent with the values of a modern democratic State. He could list a host of democratic states having a similar provision of pardon in their constitutions, including Canada, France, Germany, Greece, India, Iran and others. 

The Chairperson understood that Ms de Lille was part of the National Assembly when the Constitution was passed, and he asked whether she still had the references to separation of powers.

Ms de Lille responded that she had done all that research, but there was not one size to fit all. There were monarchies that held those powers, but not all, and the French prerogative was directly inherited from the former French monarchy. The fact that such powers existed elsewhere did not make them correct.

Ms L Adams (COPE) asked whether the proposal was for an amendment of the Constitution or an amendment of the Constitution with another Act of Parliament to be passed.

Ms de Lille replied that the notion of Presidential pardon was part of our Constitution. The drafters, including herself, must have been aware of the inherent contradiction. However, the contradictions inherent in the application of the Constitution only became apparent in later years, after practice and experience. She now believed the time was right to deal with this contradiction, by removing the Constitutional section, and replacing it with an Act of Parliament that would establish another, open, transparent and accountable mechanism, that was not a Constitutional right. The Constitution was the supreme law of our country and gave the President this unfettered right. That needed to be removed, and the issue of pardons dealt with elsewhere. She noted that another reason to take this provision out was that reconciliation, nation building and dealing with the past were a process, like the Truth and Reconciliation Commission (TRC), and Members of Parliament, indeed all in the country, had a duty to build the nation.

She noted that currently, the President would receive the application for pardon, which would then be sent to the Department of Justice, who would verify the details and make recommendations to the President. The President had said that it was sometimes very difficult for him to make a decision because of lack of evidence from those seeking the pardons. For this reason alone there was a need to re-examine the mechanism to accommodate the verification process. It was not certain whether the President was bound by the recommendations of the DOJ.

She summarised that the proposal to review the manner of dealing with pardons would build the nation, and reconciliation. She hoped that the Committee would support further work on the proposal.

Mr N Fihla (ANC) agreed that the principle behind the pardons was an old British precedent, but pointed out that laws were generally copied from old laws, and then refined and improved. The President was surrounded by advisors whom he must consult before taking any decision, so in fact he had no unilateral or dictatorial power and the situation was totally different to what it was in the past.

Ms J Sosibo (ANC) noted that the application went through the Department of Justice, so there was consultation. She suggested that perhaps Ms de Lille should be looking at more consultation rather than taking away the powers. Part of her problem seemed to be the lack of announcement about the pardons.

The Chairperson invited colleagues to talk to whether the route to follow was a possible amendment to the Constitution. There were processes and procedures that had to be followed if this was the case.

Ms A Dreyer (DA) suggested listening to both proposals before discussing the merits or demerits of both of them.

The Chairperson explained that they differed in that this one spoke of amending the Constitution, the other of possible introduction of legislation towards processes.

Mr P Pretorius (DA) referred to the possibility that this Committee did not have the power to make a constitutional amendment. His interpretation of the rules was that the Committee would be able to propose constitutional amendments.

Ms de Lille responded that she had had the same question and had wondered whether her proposal was before the right Committee. She was relying on Rules 234.1 and 235 of the Rules. The Speaker, to whom she had referred, made the decision that the proposal should be introduced to this Committee.

The Chairperson said he merely wanted her to understand the process leading to that.

Mr Pretorius commented on the absolute powers vested in kings and queens many years back, and whether those still applied here. Section 85(2) of the Constitution said the country effectively started afresh in 1996, that the executive powers vested in the President, the President could do certain things in terms of the Constitution, including allowing pardons, and that the old historical powers did not apply.

The Chairperson did not want Members to get into debate at that stage. He noted that in later presentations there would be clear understandings of the intention given.

Mr Fihla said a critical and important difference was that the President did not have absolute power; it was critical that he had to first consult the victims before taking a decision of that nature.

Mr Ainslie agreed that the President did not have unfettered powers, and must act in terms of the Constitution.

The Chairperson sought clarity on separation of powers, which was central to the issue.

Ms de Lille responded that section 1 of the Constitution established as the founding values the supremacy of the Constitution and the rule of law. A basic tenet of the rule of law was that there must be a clear independent and separation of powers between the Legislature, the Executive and the Judiciary. The Legislature alone must legislate, the Executive must execute and the Judiciary must adjudicate. There was a contradiction because the Constitution was granting the President the right to pardon. This effectively meant that he was interfering with a decision that was made by another arm of government, the Judiciary, after a judge had sat with a case, looked at all the evidence, listened to all the witnesses, adjudicated and made a judgement. She believed that Members needed to debate that contradiction.

The Chairperson quoted what was said by the Constitutional Court, prior to the adoption of the Constitution, in ex parte Chairperson of the Constitutional Assembly (1996) where the Court had rejected the argument that the power to pardon was in conflict with the Constitutional principles requiring a separation of powers between legislature, executive and judiciary. It was never part of the general function of any court to pardon and reprieve offenders after justice had run its course. The pardon function was ordinarily entrusted to the Head of State, in many national constitutions where the doctrine of separation of power was strictly observed. He noted that the Constitutional Court therefore did apply its mind to the issues under discussion, prior to the passing of the 1996 Constitution.

Mr Vusi Matamele, Director General, Office of the Presidency, agreed that the two members’ legislative proposals differed, although each sought to amend the Constitution. He would prefer to make a submission after hearing Mr Selfe’s legislative proposal.

Adv Neville Gawula, Acting Chief Litigation Officer, DOJ, agreed that this was also the view of his Department.

Hon James Selfe legislative proposal
Mr James Selfe said that in the course of his presentation he would touch on some of the aspects raised by Ms de Lille, with which he concurred, whilst he differed from her on others.

The objective of his proposal was to prevent any abuse of the executive power to pardon. By prescribing and regulating the process by which the President of the Republic of South Africa considered applications for presidential pardons in terms of section 84(2)(j) of the Constitution, an appropriate legislative check on the President’s power was created. His proposal sought to ensure that the President would obtain advice from the Minister of Justice and Constitutional Development, who in turn was compelled to investigate and make recommendations on potential exercises of pardons, taking into account specific criteria. Furthermore, his proposal would compel the Minister to timeously advise not only the victims, but also the public, of any pardon(s). He reiterated that this proposal aimed to ensure transparency and consistency in the procedure to be followed by the President and the Minister in the pardoning process.

In terms of financial implications the legislation should not place any undue strain on the existing agencies that would have to implement it, since in practice they performed this function already. Although there might be some financial implications, they were already budgeted for. The primary need for this type of legislation outweighed the secondary considerations of possible financial implications.

Mr Selfe motivated that the success of the justice system depended on two inter-related factors, that all or most perpetrators of crime would be apprehended, that they would be successfully prosecuted, and that they would be appropriately punished, with perpetrators being punished equally for equivalent offences. These two factors gave the public confidence in the criminal justice system and led them to believe that, if they were wronged, the perpetrators – whether they were rich or poor, high or low, black or white – would pay the same appropriate price. That was at the heart of the principle of equality before the law.

However, not all perpetrators of crime were treated equally, and some were granted presidential pardons. Presidential pardons were controversial since they undermined key constitutional concepts, such as the rule of law, the principle of equality before the law and the separation of powers. Presidential pardons should be exercised sparingly and only in exceptional circumstances. Whilst there was a place for presidential pardons, he noted that if these were granted too leniently or inconsistently they had the potential to undermine these constitutional principles, to undermine respect for the courts, and to bring the law as a whole into disrepute.

Mr Selfe said that the exercise of this power was an enormous responsibility. Former President Thabo Mbeki recognised that when he addressed Parliament on 21 October 2007, and outlined his plan to create a special process to assist him in considering requests for presidential pardon. He asked political parties represented in Parliament to “assist me properly to discharge my constitutional responsibility” to pardon offenders. Because of the dangers that presidential pardons posed to public respect for the law, it was desirable that the exercise of the power was rational, and seen to be rational, that it was consistent and that it was transparent. The Constitutional Court had, in at least two judgements, underlined that this power must be exercised rationally and that it was reviewable.

Mr Selfe noted that his proposal sought , firstly, to establish a rational framework to assess applications for presidential pardon, and to ensure that essentially similar criteria were considered in all such applications, to create consistency. He noted that in practice, it was applied since all applications for Presidential pardon were assessed by the DOJ, and an assessment was provided to the President. However, there was no legal requirement to provide the assessment. His proposal would create one.

Secondly, where possible, the victims of crimes committed by those seeking pardon should be consulted. This was in line with a recent Constitutional Court finding in Albutt - admittedly, in relation to the “special dispensation” process - that victims of crimes are entitled to be given the opportunity to be heard before the President makes a decision to grant pardon. He noted that in terms of the Correctional Services Act, victims should be consulted before an offender was granted parole, and therefore it should apply even more so to the granting of pardon, which was not only freeing the offender, but also expunging his or her record. In answer to the argument that it was impractical to contact and consult victims, he pointed out that the Constitutional Court, in this case, had shown how it could be done, by a general notice calling for submissions from the victims.

Thirdly, his proposal required the President, when deciding to grant a presidential pardon, to publish the names of those pardoned and the reason for the pardon. That would ensure that the President’s decision to grant a pardon was rational and exercised in good faith, as was required by the Constitutional Court, and would also promote transparency in the process. Just as any Court was required to provide reviewable reasons as to why a person had been convicted and imprisoned, so should the President logically provide reasons for pardoning an offender.

He stressed that his proposal did not in any way seek to restrict the President’s power to pardon, but merely sought to create a framework within which those powers were exercised, to ensure that the power was exercised rationally and consistently, and that victims, wherever possible, were consulted.

He noted that the power to pardon may have originated with the ancient power of monarchs, and found their way into the constitutions of other States. However, South Africa had made a deliberate break with the past, as its Constitution was derived from the will of South African people.

Section 239 of the Constitution stated that any functionary or institution exercising a power, performing a function in terms of the Constitution or a provincial constitution, or exercising a public power or public function in terms of any legislation, was an organ of State. The Constitutional Court had referred to the Section 84 powers as “enacted”, not “prerogative” powers. Judge Goldstone said that “the President derives this power not from antiquity but from the New Text itself. It is the Constitution that proclaims its own supremacy. Should the exercise of the power in any particular instance be such as to undermine any provision of the New Text, that conduct would be reviewable.”. For this reason it seemed appropriate that Parliament could and should create a framework within which the power could be exercised.

Some other prerogative powers in section 84 were regulated by legislation. He suggested that the power to appoint Commissions of Inquiry was analogous to the measures he had proposed, since nothing would be limiting the President’s power to perform the function, but would be creating a framework within which it should be exercised.

This proposal was not intended to limit the power of ANC Presidents. Mr Selfe noted that he personally had opposed the Further Indemnity Bill in 1992 because it, in his view, damaged the principle of equality before the law. The steps he was proposing would prevent damage to the rule of law.  

The Hugo  case made it clear that the e President’s power to pardon must be rational and could be reviewed by a court. However, very few members of the public had the resources to go to court against the President. The very fact that the power must be exercised rationally and was subject to review underscored the necessity for the legislation he was proposing, as the process would become transparent and would obviate the necessity to take a decision to grant pardon on review, with its attendant costs.

Mr Ainslie asked whether Mr Selfe conceded that the effect of his proposal was an amendment of the Constitution, and whether it would not therefore be preferable to follow the route proposed by Ms de Lille.

Mr Selfe replied that he did not agree.

The Chairperson asked Mr Selfe to indicate whether some of the passages he quoted were the view of the Constitutional Court, and how he would submit legislation separate from the Constitution.

Mr Selfe responded that he, unlike Ms de Lille, did not see a problem with Section 84 powers. He agreed that the Constitution could rightly give power to the President. However, those should appropriately be exercised within a framework. If that was considered unconstitutional, then the Commissions Act must also be deemed unconstitutional, because it created the framework for the operation of a Commission which was constituted when the President exercised his power to call it. He failed to understand why his proposal was considered to be a Constitutional amendment. Even if all the proposed steps were done, the President could still pardon, but he would do so within a rational framework that did not do damage to public confidence in the rule of law, because it would be evident to the public that certain steps had occurred, under which that power was exercised rationally and transparently.

The Chairperson asked whether he was envisaging a scenario where the President currently did not apply his mind to an application rationally, in good faith, diligently, without delay.

Mr Selfe very much hoped that the President would do so, but he did not know for sure, and there was always the risk that he did not. It was possible to take the matter on review to get the reasons, but his point was that there should not be a need to approach the court to get the rationality test. If the President had applied his mind rationally, then he could see no objection to publicising it.

Ms de Lille asked Mr Selfe for clarity. If he was suggesting that an Act of Parliament should design the framework, and how the process must operate, would this not also need an amendment to sub-section (j) to include the words “ subject to legislation or an Act or Parliament”, even though the proposal itself would not be written into the Constitution.

Mr Selfe replied that Mr Vos might agree with her. If that was correct, then he asked why similar wording had not been needed for Section 84(2)(f), dealing with the appointment of a Commission of Inquiry. He did not think that creating a framework for the rational exercise of a power amounted to amending the Constitution or in any way limiting the power of the President to exercise that power.

Mr Mukesh Vassen, Parliamentary Legal Advisor, said there were many similar examples in the Constitution. For instance, Section 56 gave the National Assembly the power to summon any person, but that was regulated by the powers and privileges that set up certain criteria. The numerous examples throughout the Constitution did not necessarily have to be spelt out.

Mr Fihla said the critical point was that absolute and unfettered power of the President, was being challenged. There were already checks and balances attached to the decision that had to be taken by the President; one of the strongest was that of consultation with victims. He cited the instance where the wife of Chris Hani opposed the appeal for pardon.

Mr Selfe clarified that this was a parole application, not a pardon application, and the processes were different.

Mr Fihla then cited that similar consultations had been held with families of victims arising from the TRC.

Submission by Department of Justice and Constitutional Development
Adv Gawula clarified that the current debate concerned the powers vested in the President. DOJ’s mandate was to uphold and administer the Constitution, and would lead in making inputs on both proposals.

Adv Gawula said it was not necessary to go into the objectives of the proposals. Ms de Lille’s was directly seeking a Constitutional amendment. Mr Selfe’s was trying to set up a framework for drawing advice, or even compelling the Minister of Justice and Constitutional Development to take certain actions or steps in that regard, but in the end result was also seeking to amend the Constitution.

Adv Gawula said it was important to clarify what was a “pardon” and where the powers emanated. A “pardon” would be given by a President, after consideration of certain factors, basically to forgive a person for what had been done, release that person and remove the criminal record. There were debates that this emanated from royal pardons. In South Africa, between 1910 and 1961, certain powers were included of a “monarchy” nature. He outlined that the 1961 Constitution listed powers vested in the State President as a successor to the British monarch. It was not clear if these powers originally vested in the monarch were transferred to or conferred upon the Governor General. In 1983 a distinction was drawn between the 1961 and 1983 Constitutions, between the prerogative power of the Queen and the statutory discretion conferred on the Head of State. The Constitutional Court had addressed the issue, saying that the Interim Constitution had provided for “statutory discretionary powers” , which included the powers of the President to grant pardon.” This seemed to make it clear that these did not emanate from the monarch’s powers.

Adv Gawula said that there was no right to claim a pardon from the President.

Adv Gawula also noted that there was a dominant feature in both proposals – one sought to limit the power, while the other sought a complete amendment, but both raised concerns around abuse of that power. Subsequent to the certification case, there were a number of judgments looking at whether the President had exceeded his powers when exercising Constitutional obligations. Any decision or failure by the President to exercise his powers according to the Constitution was reviewable. He cited a number of cases, and noted that the same points about checks and balances were made. The function conferred on the President to make a decision entails a corresponding right to have a pardon application considered and decided. The criteria (as stated by the Chief Justice) were that the power has to be rational, exercised in good faith, in accordance with the principles of legality, diligent, and without delay. Section 237 of the Constitution also set out that the President must perform all Constitutional obligations diligently and without delay. The President, when taking the oath of office, promised to uphold the Constitution, and acknowledged that the Constitution would be binding on all spheres of government, including himself. He was not above the Constitution, but was a subject of the Constitution, and only the Constitutional Court could make a determination whether or not he or Parliament had failed to exercise his constitutional powers. In the Doctors for Life case, the Court considered the separation of powers and noted that only the Constitutional Court itself could serve as guardian of the Constitution, as this was not entrusted to the President.

One of the consequences of trying to seek an amendment by enacting another piece of legislation was that the powers vested in the President to grant pardon would be the immediate subject of an administrative action. The President would then, whenever taking a decision, have to furnish reasons.

Adv Gawula noted that Section 85(2) dealt with the implementation of legislation. Section 84 did not contain any provision empowering the legislature or the Executive to pass legislation with respect to those powers. He quoted an administrative law text, which drew the distinction between the President exercising his powers as Head of State (Section 84(2)(j)), and as Head of the National Executive (Section 85), and noted that as Head of State, he had sole authority and did not need to consult. As Head of the National Executive, he exercised the authority together with other members of Cabinet.

The effect of Mr Selfe’s proposal was that the powers vested in the President under Section 84 should be exercised in consultation with other Ministers.

Other jurisdictions dealt with this matter in two ways. Most, including the Southern African Development Community (SADC) and the EU, derived the President’s powers from the Constitution, and left the power solely at his discretion. Others had created specific bodies

He summarised that the two proposals, although using a different route, would have the same consequences.

Mr Enver Daniels, Chief State Law Advisor, noted that these were very interesting proposals. He noted that the traditional justice systems in the country in fact recognised more than one monarch, and under the traditional justice systems, which represented about 80% of people in the country, a system of pardon had operated. It was important to take these traditional systems into account, and not only look to Westernised nations, but to what was happening on the Continent and remember the well developed traditional law systems.

Mr Daniels referred to Mr Selfe’s comments about the Commissions Act. That was enacted for a very specific purpose. In traditional law there was recognition of several monarchs, and there was a system of pardons that operated. Those kings represented about 80% of the population and in his view the Committee was obliged to take that into consideration because in considering the question of pardons must not just look at the western countries but needed to look at what was happening in Africa, the African continent as a whole and what was happening in our own country South Africa. We sometimes lost sight of the fact that there was a well-developed system of Traditional law operating in South Africa.

The Commissions Act was enacted for a very specific purpose, and it must be remembered that the decision to appoint the Commission remained the sole prerogative of the President.  He also commented on the point by Mr Vassen in relation to Section 55 of the Constitution, and said that there was a qualifying subsection that said that the compelling of witnesses was done in terms of the Rules of Parliament or legislation.

Adv Daniels touched on the distinction between the Head of State and Head of the National Executive functions. Section 84 powers were conferred by the people of South Africa. Section 85 powers were so complex, and had such an impact on the people of South Africa, that the President must exercise them in conjunction with the Cabinet, who took collective responsibility.

The question that pardons may go back hundreds of years was accepted, but was irrelevant since the Constitution conferred that power on the President, and this was confirmed by the Constitutional Court, who also made that very important point that pardons were not reserved to the judiciary, since people incorrectly convicted might need to be pardoned. There was contradiction between the President granting a pardon and the judiciary carrying out its own judicial functions.

He noted that in the Hugo case, the Court had noted that although this was a prerogative power, and was almost unfettered, it was still subject to the Constitution and, if exercised in an arbitrary way, then the courts could intervene in order to uphold the values of the Constitution. Another point was made in the same case – namely that the Court could hardly think of any matter where an individual made application, where it could intervene, but more likely could do so if there were applications for pardons on behalf of a group. He thought the Court was suggesting that there was a greater risk of arbitrary decisions being made, because not all the group members would have the same reasons for requiring a pardon.

Mr Daniels noted that the court case dealing with the special dispensation related to political issues, and had to consider whether the Minister of Justice in fact had a role to play, concluding finally that the President did not have to act on the recommendation. The Albutt  case also related to this dispensation, and the Court recognised that there was a process in the context of the TRC, and the exclusion of victims was irrational. Perhaps if the special dispensation group had not been set up, the matter might have been differently decided, but the decision related to the specific circumstances. In an earlier matter involving the Centre for the Study of Violence and Reconciliation, the Constitutional Court suggested that the lower court had erred in ruling that the President was performing an administrative function.

Mr Daniels said that he had pondered the constitutionality of Mr Selfe’s proposal. He thought that if the Committee was going to deal with the question of pardons, it might have to gravitate in the direction of Ms De Lille’s suggestion and perhaps take away the Presidential pardon and then enact legislation. He thought that Mr Selfe’s suggestion to create an administrative system, subject to review along the lines of the Promotion of Administrative Justice Act (PAJA) could cause problems in certification and may ultimately be the subject of a Constitutional Court application. This suggestion also impacted quite dramatically on the power given to the President by the people of the country.

Adv Sibongile Sigodi, Legal and Executive Services: Presidency, agreed that an attempt to legislate on the power of the President amounted to removing his discretion. The President was not bound to use the Department of Justice to assist him in deciding on the pardoning process. She quoted another section of the Hugo case, to the effect that the pardoning power was not a “private act of grace” but a recognition that power should be granted to the President to determine when, in his view, the public welfare would be better served by granting a remission of sentence or some other form of pardon.. It should be left open to the President to decide what other body, or reference group, he wished to consult. She pointed out that at the end of the day, he was still accountable to Parliament for his decisions.

The Chairperson asked those who had written submissions to kindly submit copies to the Committee Secretary.

Ms L Adams (COPE) said it seemed that Ms de Lille’s proposal had assumed there was no need for an entire Constitutional amendment, and created the impression that there was nothing incorrect with the present justice system or the Presidential pardon process. She asked if those whose criminal records had disappeared, because they could not apply for appeal, could apply for appeal, or would apply for a Presidential pardon.

Adv Gawula responded that the President, in order to decide whether to grant a pardon, would have to have information. There were historic problems of lack of proper management of court records. This did not mean that no part of the records was there in some cases. In the 29 cases brought, more than 85% of the relevant records were retrieved, and others were in the process of being constructed. It would not be difficult for the Department to do so, because the Court’s judgment was not the only information needing to be placed before the President. There was a variety of information and research on each application. The applicant’s own version, which was directed to answering a number of questions, was also a motivating factor taken into account.

Ms de Lille sought clarity on the distinction made between the Head of State and the Head of the Executive. The Constitution did not separate which functions were for the Head of State and which were for the Head of the Executive. Section 84 seemed to suggest, in using the wording “functions of Head of State and Head of the National Executive” that some of the powers listed could be exercised as the Head of State or as the Head of the Executive. She noted that Section 85 referred to the executive authority being vested in the President. She noted that although the power to pardon fell under Section 84, the reality was that the President was consulting, and thus surely was acting as Head of the Executive.

Mr Daniels responded that the distinction between the Head of State powers and the Head of the National Executive powers was very important. He repeated his earlier explanation, and reiterated that under Section 84, the Head of State could consult if he wished, and in practice he did so. However, this was distinct from having to exercise powers collectively with the Cabinet under Section 85. The President was trusted to do certain things, in the national interest on his own, and these were the powers traditionally associated with the Head of State. They were not dictatorial and were not intended to be arbitrary, since if exercised in an arbitrary way, the Court would set them aside.

Ms de Lille asked whether the President was allowed to decide when he was acting as the Head of State and when he was acting as Head of the Executive. She reiterated her argument that Section 84 just dealt with the powers and functions, and did not confine itself to powers as Head of State. She asked if the Department was reading Section 84 to be Head of State powers where there was no need to consult. The Constitution was silent on that.

Mr Daniels cited a passage from a highly respected text book, which said that Section 84(2) powers were Head of State powers, and a very clear distinction was drawn between the Head of the Executive Authority powers in terms of section 85. He noted that these were deliberately set out in two separate sections. There was indeed a distinction.

Adv Gawula said he could assist Ms de Lille with regard to the list under section 84(2) as also the powers that were exercised as Head of the National Executive.  He cited two cases where this was established. One of these said that a Head of State was directly responsible for a range of matters, such as assenting to and signing bills, appointing commissions of enquiry, receiving diplomats, appointing ambassadors, pardoning offenders and conferring honours.

Ms de Lille appreciated the presentations by both the Department of Justice and the Office of the President, but said that it seemed that the arguments presented were contrary to what she had proposed. She could have brought her own lawyer to make a counter legal argument. Whilst she had learned a lot, she would have liked the State Law Adviser say that there were options, and where these might lie. He had put up a number of arguments, and had then said, quite correctly, that the Committee would have to make a political decision. She had learned the lesson that when she approached the Constitutional Review Committee she would take her own attorney along to argue the legal facts and interpret the legal cases. She was a politician, not a lawyer.

The Chairperson said that point would be looked into in the future. Perhaps legal representation was advisable, although the legal representatives would not be allowed to address the Committee.

Mr Daniels assured Ms de Lille that he had come merely to provide assistance to the Committee in its deliberations on the matter. He had said that he thought the Committee, if it decided that a review was desirable, might have to gravitate towards Ms de Lille’s proposal. He said that the Committee might have to consider a Constitutional amendment for the reasons outlined to Mr Selfe.

Ms A Dreyer (DA) asked if victims were currently consulted before pardons were granted. If not, she asked why not. She secondly asked that even if the Section 84 powers were absolute, what stopped the President from providing the names of those pardoned and the reasons for the pardon. Thirdly she asked if the fact that a power was reviewable did not also mean that it could be regulated.

Mr Selfe submitted that listening to the two presentations from the Department of Justice and the Presidency, it seemed to him that the essence of the argument was that a power to pardon could not be an administrative action, and therefore could not be regulated in a particular way. However, he was not sure that the Constitutional Court had quite made a decision on that matter. The Albutt case had said that there was a substantial measure of doubt as to whether the exercise of the pardon power constitutes administrative action. There was a whole section in that judgment debating whether or not PAJA applied to the power to pardon. He did not think these issues were cast in stone, and it seemed that the Constitutional Court was still grappling with them. He thought that Ms de Lille’s proposal was assisting to deal with those complex issues with more clarity. As part of the arguments advanced in that case, Counsel for the NGOs submitted that Parliament may extend a right granted by the Constitution without trespassing into the province of the Executive, which was precisely one of the issues.

The Chairperson interjected that Hon Selfe was debating the issues.

Mr Selfe asked whether the issue was as clear-cut as was presented in that particular case.

Mr Daniels said that the Constitutional Court had kept open the question of whether administrative justice was involved.

Ms M Mdaka (ANC) asked Mr Selfe whether there were time frames for the President to provide the names; if not, the Committee should wait.

Mr Daniels responded that the question of why the President could not just publish the names was also open, but had arisen in an interesting way when Robert McBride had sued the Citizen press. The Supreme Court of Appeal agreed that a pardon expunged from the collective memory of society the fact that a person had committed a crime, and was designed to restore dignity. He noted that in Britain, an individual who was now 27 years old had committed a murder when he was ten. He was given a new identity and much effort was put into hiding the fact that he had committed the earlier crime, but he had then committed a further crime, throwing the entire matter up into the spotlight again. He supposed the reason for not disclosing the names was to be found in the fairly recent South African Supreme Court of Appeal case.

Ms Dreyer asked how she would know that Mr Robert McBride had been pardoned.

Ms B Tinto (ANC) asked for an example of cases where the previous President might not have consulted the victims. She thought the sponsors were rushing the matter.

Adv Gawula responded that the Department’s approach, when it took up the Albutt matter, was that former President Mbeki, in making the announcement on 21 November 2007, had never intended to duplicate the TRC. However, the Court, in interpreting the roles of the victims, had to give due regard to the principles that were inherent in the TRC process. In its judgment, the Court made it quite clear that consulting victims was confined to certain categories, and those who would benefit from making their representation before the pardoning application was considered.

Ms de Lille felt that Hon Tinto had merely asked how many victims had been consulted before pardon was granted. She had the answer that the President had given on 19 February. From 1 January 1994 to 31 December 2009, 3 045 pardons were granted, and it was only after that that the ruling had been made about consulting with the victims, so she presumed that the question of consultation did not arise. Only 35 of those cases were political. She assumed the rest were criminal.

Ms Dreyer was still not clear as to whether the victims, or relatives of the victims, were consulted ahead of the pardon.

Adv Sigodi said that perhaps some examples were needed. In many cases, people would already have been released, but wanted a pardon in order to have their criminal records expunged – for instance to be allowed to emigrate to another country, if that person committed something like a petty theft while a student. Here, the victim would not need to be considered. Other applicants might be ill, old or dying, and here too there was little need to consult the victims. Serious criminal offenders were very rarely given Presidential pardons, and she could not recall any instance. Victims were consulted on the political cases, where the President might be more inclined to give a pardon.  It could sometimes happen that the victims may have been consulted, but not through the normal process, such as perhaps the President speaking directly to the victim, in which case there might not be an official record. With regard to the special pardons process, the victims would be given an opportunity to be heard, but the Court had made it clear that it was applicable only to certain categories of offenders.

Mr Selfe understood the practical difficulties, which was why, in the Albutt case, a mechanism was created. He did not want to leave the impression that traffic offences committed thirty years ago followed this route, because Parliament had recently passed legislation allowing for automatic expungement of some cases after a certain period. He said that surely Presidential pardons applied to far more serious offences, in which case it would be appropriate to consult the victim.

Mr Fihla submitted that there were different categories of prisoners who wanted pardons. He himself was imprisoned for fourteen years, but he quipped that now he was a politician, there was no need for him to be rehabilitated. Those who had committed criminal offences would need to be rehabilitated and assessed as to whether the person had changed and could be accepted by society. The question of consulting victims therefore differed.

The Chairperson thanked the presenters, appreciating their fairness and willingness to share information. He asked how the Committee wanted to proceed.

Ms Adams asked whether the Committee would decide how to proceed on the basis of the presentations, or the legislative proposals and their intention.

The Chairperson replied that the determination would be informed by the holistic process.

Members agreed to deliberate further on the issues before taking a decision in the following week.

Other business
The Committee decided to consider its minutes of previous minutes at another meeting.

Ms Adams raised the issue of the study tour, and asked whether it would proceed.

The Chairperson noted that if the matter was not finalised on that day, then the study tour would not proceed, but the Committee would think of how else to use the budget for lobbying or campaigning or marketing of the Committee and its petition work.

The meeting was adjourned.


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