CONSTITUTIONAL COURT OF SOUTH AFRICA
CCT 54/09
Hearing Date: 10 November 2009
MEDIA SUMMARY
The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.
On 10 November 2009 the Constitutional Court will hear an application for leave to appeal by Mr Ryan Albutt, a pardon applicant, and by the President and the Minister of Justice and Constitutional Development (the Minister) against an interim order of the North Gauteng High Court (High Court) which prevented the President from considering certain applications for pardon. At the same time, the Court will consider an application for direct access challenging the constitutionality of s 1 of the Promotion of Administrative Justice Act 2000 (PAJA) brought by Mr Ryan Albutt and supported by the President and the Minister (which concerns the definition of administrative action subject to review by the courts).
The case concerns a special process for the handling of pardon requests announced by President Mbeki on 21 November 2007. The process was available to people convicted of offences they claimed were politically motivated, and who were not denied amnesty by the Truth and Reconciliation Commission. President Mbeki established a Pardons Reference Group (PRG) on which each political party in Parliament was represented. The PRG was formally constituted on 18 January 2008. It considered 2114 applications for pardons and made recommendations to the President.
From February 2008 to March 2009, the Centre for the Study of Violence and Reconciliation (CSVR) and other non-governmental organizations attempted unsuccessfully to influence the PRG, the President and the Minister to ensure victim participation in the process. They also sought greater transparency and public disclosure. After they failed to secure the participation of victims, they lodged an urgent application in the High Court to interdict the President from issuing political pardons pending the final determination of the rights of victims.
The High Court held that victims of crime had a right to be heard before the President exercised his pardon power under s 84(2)(j) of the Constitution. It granted an order restraining the President from exercising this power until the main application was decided.
In the Constitutional Court, Mr Albutt, the President and the Minister are challenging this interim order on two main grounds. The first is that the High Court erred in finding that the pardon power constitutes administrative action in terms of PAJA. Alternatively, and if PAJA does apply, Mr Albutt, the President and the Minister contend that s 1 of PAJA should be declared unconstitutional and invalid in so far as it includes the pardon power under the definition of administrative action. Additionally, Mr Albutt, the President and the Minister contend that the order violated the separation of powers principle, by intruding on a power entrusted to the executive, by requiring the President to give victims a hearing before granting a pardon.
CSVR and the other non-governmental organizations are opposing the application for leave to appeal and for direct access, and support the judgment of the High Court. They also contend that the order of the High Court is not appealable because it is an interim order and the main case is yet to be decided.
CSVR is a multi-disciplinary institute that seeks to understand and prevent violence, heal its effects and build sustainable peace at the community, national and regional levels.
