THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

JUDGMENT

Case No 159/08

THE MINISTER FOR JUSTICE AND
CONSTITUTIONAL DEVELOPMENT

APPELLANT

and

MQABUKENI CHONCO AND 383 OTHERS      RESPONDENTS

Neutral citation:
The Minister for Justice and Constitutional Development v
Chonco 159/08 [2009] ZASCA 31 (30 March 2009)

Coram:
FARLAM,
NUGENT,
VAN
HEERDEN,
JAFTA
et
MLAMBO JJA

Heard:
16 FEBRUARY 2009

Delivered:
30 MARCH 2009

Summary:
Constitutional law – applications for pardon under
s 84(2)(j) of the Constitution – whether Minister for
Justice
and
Constitutional
Development
under
constitutional obligation to process applications before
the President considers whether to exercise his power
under the section.

______________________________________________________________

ORDER

On appeal from:
High Court Pretoria (Seriti J sitting as court of first
instance)

The following order is made:
The appeal is dismissed with costs, including those occasioned by the
employment of two counsel.

JUDGMENT

FARLAM JA ( Nugent, Van Heerden, Jafta et Mlambo JJA concurring)

[1] In this matter the appellant, the Minister for Justice and Constitutional
Development, appeals against a judgment delivered by Seriti J in the Pretoria
High Court in which he directed the appellant's predecessor 'to do all the
necessary within a period of three months from [the date of the order] to
enable the second respondent [the President], to exercise the powers
conferred on him in terms of s 84(2)(j) of the Constitution in an informed way
with regard to all 384 applications for Presidential pardon referred to in [the]
application.' In the order appealed against the learned judge also declared
that the appellant's predecessor had 'failed to exercise with due diligence and
without delay, the constitutional obligation to process and do all the necessary
to enable the second respondent to exercise the powers conferred on him in
terms of s 84(2)(j) of the Constitution in an informed way, with regard to the
applications for Presidential pardon by the applicant [the present first
respondent] and the 383 other applicants for Presidential pardon in whose
interest and on whose behalf the applicant brought this application.'

[2] As appears from the portion of the order which I have quoted, the
application before the court was brought by the present first respondent,
Mqabukeni Chonco, on behalf of himself and 383 other persons. All of them
are currently in prison, so it was alleged, serving lengthy gaol sentences for

what they allege were criminal offences 'committed . . . in the course of the
political struggle of the past.' None of them applied for amnesty to the Truth
and Reconciliation Commission (to which I shall refer as 'the TRC') because,
so they say, their political party, the Inkatha Freedom Party, 'did not support
the TRC'. (In what follows I shall call this party the 'IFP'.) Their applications for
pardon in terms of s 84(2)(j) of the Constitution were addressed to the second
respondent, the President, but were forwarded by the IFP on their behalf to
the then Minister for Justice, on the instructions of a senior official in the office
of the Minister, during the period September to October 2003.

[3] It was common cause between the parties that, by the time the
application was heard in the court a quo the applications submitted on behalf
of the applicants had not been sent to the second respondent for
consideration, nor have they been sent since. This is despite the fact that, by
the time of the hearing, almost four and a half years had elapsed since they
were sent to the then Minister.

[4] On 20 May 2005 Mr L K Joubert MP, a member of the IFP, raised the
matter in the National Assembly. In the course of his speech he said the
following:

'The first issue that I wish to deal with is applications for presidential pardon or reprieve that
the IFP submitted and on which it is getting absolutely nowhere. We submitted a total of 384
applications for presidential pardons, in terms of section 84(2)(j) of the Constitution, as long
ago as September and October 2003, and that is more than one and a half years ago.

Apart from acknowledging receipt of the applications, nothing has transpired since that. My
colleague, Mr Mzizi, wrote to the Minister for Justice and Constitutional Development on 13
February 2004 enquiring when he could expect a reply. Our Chief Whip wrote to the President
on 11 November 2004 asking what progress had been made. The President's Office replied
on 23 November and assured us that the matter was receiving the President's attention.

Hearing nothing further from the President, our Chief Whip, once again, wrote to the Minister
for Justice and Constitutional Development on 19 January 2005 requesting an appointment to
see the Minister in this regard. Seeing that nothing happened, our Chief Whip once again
wrote to the Minister on 8 March 2005 and insisted on an urgent interview to discuss this

matter. Nothing happened; there was complete silence. We are simply being ignored.

In the meanwhile, we have been very patient and did not kick up dust when Dr Boesak
received a pardon. We were hoping that attention would also, in due course, be given to our
384 applicants but, until today, nothing has happened.

I, therefore, have to tell this House that 384 applications for pardons are simply lying
somewhere and nobody seems to be interested in doing anything about them. This is nothing
less than a violation of human rights. Those 384 applicants and their families have been
waiting for a very long time but all they have received is silence.

I bring this matter to the attention of Parliament and the public, and I today publicly request
the hon Minister to kindly and urgently inform us what the status of these applications is so
that we can immediately inform the applicants about where they stand.'

[5] It appears from the papers that the Minister then promised to give her
immediate attention to the matter.

[6] On 8 September 2005, Mr J H van der Merwe MP, the IFP Chief Whip
(and incidentally the respondents' attorney in this matter), directed a question
in Parliament to the President with regard to the progress that had been
made. This question elicited a reply which contained the following:

'[T]he applications referred to by the hon member have not yet been sent to the President,
and are still with the Department of Justice. The matter has unfortunately been delayed in the
Department of Justice, which has received more than 1 000 applications for pardons for
crimes allegedly committed for political reasons.

We've urged the Minister of Justice to ensure that the processing of these and other
applications is expedited. We will consider the appropriateness of a presidential pardon for
each case once the Ministry and the Department of Justice have completed the processing of
the applications, and verified the facts of each case, understanding very well the prerogatives
granted to the President of the Republic by section 84(2)(j) of the Constitution, to which the
hon member referred.'

[7] The President in the course of his reply explained some of the
difficulties which had been encountered in dealing with the applications.
Amongst other things he said that the Ministry and the Department of Justice

had to ensure that their recommendations to the President were 'based on the
application of a set of criteria that are consistent with the spirit that inspired
the establishment of the TRC. Apart from anything else', he continued, 'such
criteria would help us to avoid ad hoc and arbitrary presidential decisions that
would undermine the important principle of equality of treatment of all our
citizens and the necessary transparency in this regard.'

[8] The President also said that the applications were being processed by
the Ministry and the department and added that 'at the appropriate moment
we shall come back to the people who have applied for these pardons to
indicate what decision should have been taken.'

[9] Later the same day, in the discussion in the National Assembly, the
President said that he would speak to the Minister and her deputy so that they
could interact with Mr van der Merwe and with Dr S E M Pheko MP, of the
Pan Africanist Congress (who had also raised the matter), and could indicate
what was being done and the particular problems they were experiencing with
regard to the processing of the applications.

[10] Eight months later, on 19 May 2006, Mr van der Merwe raised the
matter again in the National Assembly. He spoke of what he called the
'unbelievable lack of action by the hon Minister'. After referring to the 384
applications for pardon which the IFP had submitted towards the end of 2003,
which he said had fallen on deaf ears, he continued:
'I wish to give hon members an idea of the unbelievable and almost impossible uphill battles
we have fought to seek justice and to ensure that the Constitution is respected and that these
applications are processed.

For almost three years now, we have written letters to the hon Minister and the hon President
pleading with them to attend to these applications. Where did it get us? Nowhere. Absolutely
nowhere! The hon Minister ignored us. Twice in this very House we called this neglect a
violation of human rights. Our very serious accusation and the plight of 400 prisoners were
simply ignored . . .'

[11] In her reply to Mr van der Merwe's speech, the Minister pointed out that

there were no guidelines for dealing with these applications and said that the
President had decided 'to take the issue to all the parties.'

[12] She continued:
'As the Department of Justice and Constitutional Development, we are trying to get proposals,
which we will table before the cabinet; an undertaking which is not easy but rather difficult.
We acknowledge that there are problems with regard to the existing guidelines as they state
that when an individual applies for a presidential amnesty, the issue will be treated separately.
The President actually said that people seeking political amnesty should appear before the
TRC. And since they did not appear before the TRC, they are now faced with this issue.
Hence it is important to ensure that the guidelines are correct.

It should be noted that this undertaking is not an easy one and it did not even start in 2003.
Honestly speaking, this matter forms part of the outstanding issues. It was indicated during
CODESA that there were still problems that needed our attention. We should put our heads
together, apply our minds and throw some ideas around as to how we are going to move
forward. We will bring the President's response to Parliament soon. It will be taken to the
cabinet, as I will not be the first person to receive it.'

[13] In October 2006, in reply to a question on the matter in the National
Council of Provinces, the Minister said:
'There are 1107 applications for pardons which were received by the Department from
prisoners who allege that their offences are politically motivated. These include the
submission by the IFP in respect of 385 of their members. These applications are complex in
nature:
The sentences that the applicants are serving vary from 12 years to death. With
respect to the latter, a separate process was completed to convert all death
sentences to alternative sentences, in most cases, life sentences. The applicants also
indicate in their applications that they did not apply for amnesty with the TRC
because they either did not know that they could do so and when they did find out, it
was too late as they were out of time, or that the TRC process was not supported by
their political parties. In some cases the offences were allegedly committed after the
cut-off date of the TRC process itself.

Due to the complexity of the applications I have deemed it necessary to approach Cabinet to
give guidance on the matter.'

[14] Thereafter up to the date when the first respondent deposed to the
founding affidavit, viz 28 May 2007, no indication of whatsoever nature had

been given by either the Minister or the President as to whether any progress
had been made regarding the applications for presidential pardon brought by
the respondents, and, if so, what that progress was.

[15] The main answering affidavit filed on behalf of the Minister was
deposed to by Mr Menzi Simelane, the director general of the department.

[16] In his affidavit Mr Simelane set out the legal framework informing the
subject matter of these proceedings, and emphasised the need for a new
approach. He stated that the Minister was currently engaged in a process
involving what he called the construction of an appropriate framework for
considering applications for pardon in respect of politically motivated offences.

[17] Mr Simelane listed the following questions which were included, as he
put it, in the matters that the Minister 'would like to infuse into the current
debate concerning politically motivated pardons':
'1.
Post 1994 and given the TRC process, who can be regarded as an offender
incarcerated because of having committed a politically motivated offence or one
associated with a political objective?

2.
What would be considered to be the most appropriate cut off date for a definition of
an offence that was politically motivated or associated with a political objective?

3.
What is a politically motivated offence, given the advent of democracy in 1994?

4.
Are there circumstances under which an offence committed in 2000 or 2007 could be
considered to be politically motivated or associated with a political objective?

5.
Was the post 1994 violent conflict that occurred in KwaZulu Natal and the East Rand
political in nature? All of it?

6.
Should rape be considered as an offence committed with a political motive or
associated with a political objective? If so, under what circumstances?

7. Would offences committed by former members of the security forces be considered
alongside those committed with a political objective?

8. Who is to verify the particulars furnished in the applications and how is that verification to
be done?

9.
Should victims of the crimes committed be accommodated and if so in what manner?

10.
What would be the most appropriate and effective manner of dealing with a large
number of applications?'

[18] He then provided a précis of the individual applications, set out the
department's stance and responded to the averments in the founding affidavit.

[19] In the section dealing with the construction of an appropriate
framework, Mr Simelane said the following:
'[O]ther than internal operational procedures that assist the Department in the assessment
and evaluation of applications for the pardon of minor offences, dealt with below, there is no
established process for assessing and evaluating applications for the pardon of more serious
offences, and in particular those motivated by way of a political objective.'

[20] He proceeded to refer to pardons granted by President Mbeki on 6 May
2002 to 33 African National Congress and Pan Africanist Congress members
in the Eastern Cape who had all, wholly or in part unsuccessfully, gone
through the amnesty process of the TRC. Although it appears that Dr
Maduna, the then Minister, had, as it was put in a later explanatory note to the
President, 'argued the cases of some [of the 33 and contended] . . . that
pardon should not be granted to them', he later (after some of those covered
by his original letter had been released from prison) reconsidered the matter
and recommended that the 33 should be granted pardons. He motivated this
advice as follows:
'He [ie, Dr Maduna] is of the view that public opinion, inside as well as outside politics,
requires the 33 to be pardoned in terms of s84(2)(j) of the Constitution of the Republic of
South Africa, 1996. Accordingly he recommends that the 33 persons on the list be pardoned
in respect of the convictions for which they are currently serving or for which they have
already served a term of imprisonment. All the information regarding their conviction and
sentences, however, [is] not available at this stage. Every effort will be made to submit [it] to
the President as soon as possible.'

[21] As has been said, the President accepted this advice and pardoned the
33 offenders concerned.

[22] Mr Simelane stated that there had been 'much debate and a
divergence of views, both within and outside of Parliament, with regard to how
best to deal with these applications, given the termination of the indemnity
and then the TRC processes [ie, the processes under the Indemnity Act of
1990 and the Promotion of National Unity and Reconciliation Act 34 of 1995].'
According to Mr Simelane, the Minister had directed her department to look
into ways in which a framework for the evaluation of the applications could be
formulated. He expressed the considered view 'that the draft framework would
be finalised inside a period of approximately six months [ie, from 27 July
2007, the date he deposed to his affidavit].'

[23] In dealing with the averments in the founding affidavit he enjoined the
first respondent 'to furnish full and further particulars of the circumstances of
each of the offences that were committed in respect of the 383 applicants for
whom he purports to act'. He urged the respondents 'to exercise greater
tolerance, patience and deference to the process necessary to formulate an
appropriate framework'. He continued:
The question of pardon is a discretionary exercise of mercy and does not come as a right.
None of the applicants can claim prejudice arising out of their incarceration. The
incarcerations were a consequence of due process.'

[24] He admitted that the practice was to have the applications processed
by the department but denied that that conduct constitutes 'administrative
action' within the meaning of the Promotion of Administrative Justice Act 3 of
2000 (commonly known as 'PAJA').

[25] In his replying affidavit the first respondent states that the department
must have been aware as long ago as 2000 of the deficiencies in its own
internal processes and internal criteria as regards the assessment of
applications with a 'political element'. He also stated that, if there is no room
within the current parameters used by the department to make a positive

recommendation regarding any of the applications, this position is due to the
lack of action on the part of the department itself. He contended further that
the Minister gave no acceptable reason for the delay in doing what he called
the 'necessary' since 2000.

[26] He also stated that all that he called for was that the precedent set in
2000 by Dr Maduna (and subsequently by President Mbeki) in the case of the
33 persons who were granted presidential pardon, be followed. No
reasonable explanation, he submitted, was forthcoming from the M
inister as to why this precedent should not be followed.

[27] Before the judgment of the court a quo is summarised, it is appropriate
to set out the relevant provisions of the Constitution.

[28] Section 84, which deals with the powers and functions of the President,
reads as follows:
'84
(1)
. . .
(2)
The President is responsible for –
. . .
(j)
pardoning or reprieving offenders and remitting any fines, penalties or
forfeitures . . . '

[29] Section 85 deals with the executive authority of the Republic. It
provides:
'85
(1)
The executive authority of the Republic is vested in the President.
(2)
The President exercises the executive authority, together with the other
members of the Cabinet, by –
(a)
implementing national legislation except where the Constitution or an
Act of Parliament provides otherwise;
(b)
developing and implementing national policy;
(c)
co-ordinating the functions of state departments and administrations;
(d)
preparing and initiating legislation; and
(e)
performing any other executive function provided for in the
Constitution or in national legislation.'

[30] Section 92 deals with accountability and responsibilities. It reads:

'92.
(1)
The Deputy President and Ministers are responsible for the powers and
functions of the executive assigned to them by the President.
(2)
Members of the Cabinet are accountable collectively and individually to
Parliament for the exercise of their powers and the performance of their
functions.
(3)
Members of the Cabinet must –
(a)
act in accordance with the Constitution; and
(b)
provide Parliament with full and regular reports concerning matters
under their control.'

[31] Section 101 deals with executive decisions. Sub-section (1) reads as
follows:
'101.
A decision by the President must be in writing if it –
(a)
is taken in terms of legislation; or
(b)
has legal consequences.'

[32] Section 237 of the Constitution provides:
'237.
All constitutional obligations must be performed diligently and without delay.'

[33] In his judgment Seriti J referred to the fact that, in the answering
affidavit filed on behalf of the Minister, it was stated that the department was
processing the applications for pardon as a matter of practice. The judge
considered a submission which had been advanced before him by counsel for
the appellant to the effect that there was no legal duty on the Minister to
process the applications for presidential pardon as the first respondent had
failed to demonstrate that s 101(1) of the Constitution has been complied with.

[34] He held that the President's request to the Minister to process the
applications for pardon was in accordance with the law and had legal
consequences. If the request of the President did not comply with the law, he
pointed out, Mr Simelane 'could have said so in no uncertain terms.'

His failure to do so and the fact that the department was in the process of
carrying out the request of the State President justify
'the conclusion that the President's request to the Minister has legal consequences. Section
237 of the Constitution provides that all constitutional obligations must be performed diligently
and without delay. When processing the applications under consideration, the Minister is

exercising a public function and she is bound to perform the said function diligently and
without delay.'

[35] Later in his judgment he stated that, in his view, 'the processing of the
applications of the [respondents] has taken an unduly long time and the
Minister has failed to perform her function as required by section 237 of the
Constitution.'

[36] He accordingly held that the respondents had made out a case for
relief and made the order summarised in para 1 above.

[37] Counsel for the appellant submitted that the court a quo had erred in
holding that the Minister had a constitutional obligation to process the
applications for pardons. It was contended that, as the power to grant pardons
vests exclusively in the President as Head of State, he has the sole discretion
to determine how he exercises that power.

[38] According to counsel, the practice which had developed in the
department, even before the current constitutional dispensation, of the
department assessing and evaluating applications for pardon and thereafter
making recommendations to the President, did not create a legally
enforceable obligation on the Minister to process the applications. It was
submitted further that though the practice was permissible and desirable it did
not, in the absence of a provision in the Constitution or in a statute, impose an
obligation on the Minister.

[39] Counsel for the appellant also argued that Seriti J had erred in finding
that the President had requested the Minister to process the applications as
there was no evidence to that effect. If there had been such a request, the
argument proceeded, it would have had to have been in writing if it were to
have any legal consequences in terms of s 101 of the Constitution. Even if
there had been such a request, no rights or interests of the respondents
would have been affected thereby. Moreover, such a request and the

resultant compliance therewith would not amount to administrative action
which is actionable in terms of PAJA.

[40] In counsel's submission, Seriti J had also erred in finding that, in
processing the applications for pardons, the appellant's department was
acting in terms of s 85(2) or s 92(3) of the Constitution. It was submitted that
the executive powers or functions of the National Executive referred to in s
85(2)(e) of the Constitution are excluded from the definition of 'administrative
action' in PAJA and that what the Minister or her department was doing was
not the exercise of an executive function provided for in the Constitution or in
national legislation as set out in s 85(2)(e) of the Constitution. Furthermore, so
it was argued, s 92(3) of the Constitution is of no application.

[41] In my opinion, counsel for the appellant's submissions cannot be
accepted. I think that Seriti J was clearly correct in coming to the conclusion
that the President's request to the Minister to process the applications was in
accordance with the law and has legal consequences.

[42] 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 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 or not is exercised. These steps (which may be called
preliminary 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 is the department. The Minister's

failure to perform these functions is a breach of s 92(3)(a) of the Constitution.
(It follows from this conclusion that the respondents were not obliged to make
out a case under PAJA in order to succeed and, accordingly, arguments
based on PAJA do not have to be considered.)

[43] I am accordingly satisfied that Seriti J was right in holding that the
Minister was obliged to process the applications and to do what was required
to enable the President to exercise the powers conferred on him by s 84(2)(j)
of the Constitution in an informed way and that that obligation was a
constitutional one.

[44] It was not contended before us – nor could it have been so contended
with any cogency – that the Minister, if she was so obliged, had performed her
duties in this regard with due diligence and without delay. Nor was it argued
that the period for compliance contained in para 1 of the order of the court a
quo could be faulted.

The following order is made:
[45] The appeal is dismissed with costs, including those occasioned by the
employment of two counsel.
…………….
IG FARLAM
JUDGE OF APPEAL

APPEARANCES:

FOR APPELLANT:
M T K MOERANE SC

L GCABASHE

Instructed by

STATE ATTORNEY PRETORIA

STATE ATTORENY BLOEMFONTEIN

FOR RESPONDENT:
T J KRUGER SC

C VAN JAARSVELD

Instructed by

JH VAN DER MERWE INCORPORATED PRETORIA
BEN
VAN
DER
MERWE
ATTORNEYS
BLOEMFONTEIN
THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

FROM:
The Registrar, Supreme Court of Appeal

DATE:
30 MARCH 2009

STATUS:
Immediate

Please note that the media summary is intended for the benefit of the
media and does not form part of the judgment of the Supreme Court of
Appeal.

The Supreme Court of Appeal today ruled that the Minister of Justice and
Constitutional Development is under a constitutional obligation to process
applications for pardon before the President considers whether to exercise his power
under section 84(2)(j) of the Constitution.

This was held in an appeal brought by the Minister against an order granted by Mr
Justice Seriti in the Pretoria High Court in which he directed the Minster's predecessor
to do all things necessary to enable the President to consider 384 applications for
pardon submitted on behalf of members of the Inkatha Freedom Party during the
period September to October 2003.

Mr Justice Seriti also declared that the previous Minister had failed to exercise with
due diligence and without delay her constitutional obligation to process the
applications and to do all that was necessary to enable the President to exercise the
powers conferred on him in terms of the Constitution to grant pardons.

The Supreme Court of Appeal upheld the judgment of Mr Justice Seriti. It held that
the Minister was under a constitutional obligation to process the applications before
they were considered by the President and that the Minister had not performed her
duties in this regard with due diligence and without delay.