Albutt v Centre for the Study of Violence and Reconciliation
Albutt v Centre for the Study of Violence and Reconciliation | |
---|---|
Nkabinde J, Skweyiya J and van der Westhuizen J | |
Case opinions | |
Decision by | Ngcobo CJ (unanimous) |
Concurrence | Froneman J (Cameron and Froneman concurring) |
Albutt v Centre for the Study of Violence and Reconciliation and Others is a 2010 decision of the Constitutional Court of South Africa which concerned a special presidential dispensation to pardon the perpetrators of politically motivated crimes committed during the apartheid era. The Constitutional Court held that the President of South Africa had contravened the Constitution in deciding not to consult the victims of those crimes before granting the pardons. The unanimous judgment was written by Chief Justice Sandile Ngcobo and delivered on 23 February 2010.
The Albutt judgment was notable for implicitly expanding the scope of rationality review to include the process by which organs of state take decisions – in this case, to include the relationship between the objectives of the special dispensation and the factors that the President considered in deciding how to use his constitutional power of pardon. By this method, the court found that the principle of rationality may confer upon organs of state a duty to consult, regardless of whether such a duty arises separately from the requirement that administrative action must be
Background
Between 1995 and 1998, the
A coalition of non-governmental organisations, under the name of the Civil Society Coalition, publicly opposed the special dispensation, warning that it could result in the award of pardons to notorious white nationalists such as Adriaan Vlok and the Afrikaner Weerstandsbeweging members who perpetrated the 1996 Shoprite bombing.[2] The same group sought to secure public participation – and, in particular, the participation of the victims of the relevant offences – in the special dispensation process. They were rebuffed by the Pardon Reference Group in August 2008 and by the Presidency in March 2009.
High Court action
The coalition of non-governmental organisations (comprising the Centre for the Study of Violence and Reconciliation, the Khulumani Support Group, the
On 29 April 2009, Judge
The seven intervening convicts, supported by the President and the
Judgment
The Constitutional Court handed down judgment on 23 February 2010, with Chief Justice Sandile Ngcobo writing on behalf of a unanimous court.[9] The court granted the convicts leave to appeal but dismissed the appeal, upholding the High Court's interim order. Although the High Court's order was upheld, the Constitutional Court's reasoning differed substantially with respect to the right of victims to be heard before a pardon is granted.
Rationality review
As Ngcobo pointed out, the Constitutional Court had recently affirmed in Minister for Justice and Constitutional Development v Chonco that the applicants for presidential pardons had the right to have their applications considered in accordance with the principle of legality and principle of rationality.[10] The court therefore tested the President's decision according to a rationality test, under which, "the President’s decision to undertake the special dispensation process, without affording victims the opportunity to be heard, must be rationally related to the achievement of the objectives of the process".
Ngcobo surmised, based on Mbeki's public statements, that the purpose of the special dispensation was – akin to the Truth and Reconciliation Commission – the promotion of
However, the court emphasised that its decision arose from "context-specific features" and special objectives of the special dispensation under dispute. Unlike the High Court, therefore, it did not make a determination on the question of whether the President has a broader duty to consult victims before considering any application for pardon.
Procedural fairness
A second challenge to the President's conduct arose not from the rationality principle but from the principle of procedural fairness. The non-governmental organisations' argued that procedural fairness itself implied a duty to consult the victims, procedural fairness in turn being grounded in three sources of law: the common law, section 33 of the Constitution (requiring just administrative action), and PAJA (applying only to administrative action as defined in PAJA). Counsel for the state and convicts argued that the President's power to grant pardon was an
Because the court grounded its finding of unconstitutionality in the principle of rationality, applied to the "context-specific" features of the case, it was not required to consider whether the power to pardon constitutes administrative action, nor whether a duty to consult arose separately from the principle of procedural fairness. Indeed, Ngcobo wrote that the High Court had erred in posing and answering those questions, which should instead be left "open". However, Ngcobo noted obiter that the non-governmental organisations' argument from common law was "attractive", citing in that connection his own dissent in Masetlha v President. Because the court did not reach PAJA, it also did not make any order concerning Albutt's application for direct access to challenge PAJA.
Concurring judgment
In a brief concurring judgment, Justice Johan Froneman wrote separately to outline further reasons for his agreement with Ngcobo's approach. His opinion was joined by Justices Edwin Cameron and Johann van der Westhuizen; all three had also joined in Ngcobo's judgment.
Significance
Albutt is frequently discussed alongside the Constitutional Court's judgment in Masetlha v President, which was handed down in November 2007 and from which Ngcobo had dissented. The Masetlha court had held that, per Deputy Chief Justice Dikgang Moseneke, "It would not be appropriate to constrain executive power to requirements of procedural fairness, which is a cardinal feature in reviewing administrative action."[11] Clive Plasket, a critic of the Masetlha judgment, welcomed Albutt as "an attempt... to undo some of the damage that had been caused by Masetlha (short of overruling it)",[12] while other commentators were concerned that it was "at loggerheads" with the decision in Masetlha.[13]
The Constitutional Court later addressed this tension directly in Law Society of South Africa v President, in which Ngcobo's successor, Chief Justice
See also
- President v Hugo – early decision on presidential pardons
References
- ISSN 1475-4835.
- ^ Essop, Philda (8 June 2009). "Vlok on pardons list". News24. Retrieved 5 March 2024.
- ^ "Court challenge over presidential pardons". The Mail & Guardian. 18 March 2009. Retrieved 5 March 2024.
- ^ "Papers filed against Motlanthe over pardons". The Mail & Guardian. 19 March 2009. Retrieved 5 March 2024.
- ^ "Court asked to halt presidential pardons". The Mail & Guardian. 14 April 2009. Retrieved 5 March 2024.
- ^ "Pardon?". The Mail & Guardian. 8 May 2009. Retrieved 5 March 2024.
- ^ "Victims must have a say in pardons (Albutt)". Our Constitution. 20 August 2020. Retrieved 5 March 2024.
- ^ "'Pardon is no parole'". Sowetan. 11 November 2009. Retrieved 5 March 2024.
- ^ "Constitutional Court upholds pardons decision". The Mail & Guardian. 23 February 2010. Retrieved 5 March 2024.
- ^ Minister for Justice and Constitutional Development v Chonco and Others [2009] ZACC 25.
- Masetlha v President of the Republic of South Africa and Another [2007] ZACC 20at 77.
- ^ Plasket, Clive (2020). "Procedural fairness, executive decision-making and the rule of law". South African Law Journal. 137 (4): 698–712.
- ISSN 1556-5068.
- ^ Law Society of South Africa and Others v President of the Republic of South Africa and Others [2018] ZACC 51 at 64.
- ISSN 2077-4907.
- ^ Kohn, Lauren (2013). "The burgeoning constitutional requirement of rationality and the separation of powers: has rationality review gone too far?". South African Law Journal. 130 (4).
- Democratic Alliance v President of the Republic of South Africa and Others [2012] ZACC 24at 34.