---

/SG

IN THE HIGH COURT OF SOUTH AFRICA

(TRANSVAAL PROVINCIAL DIVISION)

DATE: 11/02/2008

CASE NO: 21224/2007

REPORTABLE

In the matter between:

MZABUKENI CHONCO & 383 OTHERS APPLICANTS

And

THE MINISTER OF JUSTICE AND

CONSTITUTIONAL DEVELOPMENT 1^ST RESPONDENT

THE PRESIDENT OF THE

REPUBLIC OF SOUTH ARICA 2^ND RESPONDENT

JUDGMENT

SERITI, J

1. Introduction

This matter came to court by way of motion.

In the notice of motion the applicant is praying for an order in the following terms:

“1.1 That it be declared that first respondent, as the assignee of the second respondent and/or the delegated member of the national executive on behalf of the second respondent, 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 section 84(2)(j) of the Constitution in an informed way, with regard to the application for Presidential pardon by the applicant and the 383 other applicants for Presidential pardon in whose interest and on whose behalf the applicant brings this application.

1.2 In the alternative to prayer 1.1

1.2.1 That it be declared that the first respondent’s failure to take a decision for the purpose of reverting back to the second respondent regarding each of the applicant’s and the 383 individuals’ application for Presidential pardon (as those individuals’ interests are being represented by the applicant in this matter), constitute a failure to take administrative action in terms of section 6(2)(g) read with the definition of ‘administrative action’ in section 1 of the Promotion of Administrative Justice Act, number 3 of 2000.

1.2.2 That first respondent’s said failure to take a decision be reviewed on the ground that there has been unreasonable delay in taking the decision.

2. That first respondent be directed to do all the necessary within a period of one calendar month from the date of this order, and within the confines of the constitutional obligation assigned and/or delegated to her by the second respondent, to enable the second respondent to exercise the powers conferred on him in terms of section 84(2)(j) of the Constitution in an informed way with regard to all 384 applications for Presidential pardon referred to in this application.

3. That first respondent be ordered to pay the costs of the application on a scale of attorney and own client.”

2. Founding Affidavit

It was attested to by Mr Mqabukeni Chonco, an adult male serving a life imprisonment handed down on 12 September 1989.

He alleges that during September and October 2003, together with 383 other individuals, all of whom are currently being held in custody in various corrective institutions in the Republic of South Africa, directed applications for Presidential pardons to the second respondent in terms of section 84(2)(j) of the Constitution of the Republic of South Africa, 1996.

They were all assisted in the processing of their applications for Presidential pardons by the Inkatha Freedom Party (“IFP”), a political party duly registered as such in terms of South African legislation.

In a letter dated 7 April 2003 addressed by Mr J H van der Merwe MP to Minister of Justice and Constitutional Development, his application for Presidential pardon was enclosed. The said application and letter were directed to the then Minister of Justice and Constitutional Development on the instructions of a senior official in the office of the then Minister of Justice.

All the 383 prisoners referred to above completed similar applications. In essence, all applications are similar in format although the facts and substance relied upon by each applicant differ.

Since the time of the lodging of the said 384 applications, no response of whatsoever kind as regards the merits pertaining to any of the said application has been forthcoming from the second respondent.

Based on, inter alia, questions that were asked in parliament with regard to the applications herein mentioned, it became evident that the applications had not yet passed beyond the first respondent’s office and had consequently not reached the second respondent as on 8 September 2005 or even to date.

Several letters were addressed, on their behalf, to the first respondent enquiring about progress of their applications, but no response was received.

The matter was also raised in parliament on at least four occasions but no direct response as regard progress of the said applications was received.

As a result of lack of progress of the applications, a formal complaint was lodged with the South African Human Rights Commission on 22 August 2006 by the IFP.

After the lodging of the complaint with the Human Rights Commission, Mr J H van der Merwe MP once again placed a question for oral reply on the parliamentary order paper asking the first respondent whether her department had started processing the applications. In her reply on 24 October 2006 the first respondent once again gave an unsatisfactory answer stating that the applications had not yet been processed and that she would approach cabinet for guidance on the matter.

He further alleges that there exists no reasonable prospects or, at the very least, no indications have been forthcoming to date from the first respondent that first respondent intends dealing with and/or processing and/or finalising the said applications within the foreseeable future with a view to forwarding the said applications to second respondent for his consideration.

On or about 8 September 2005, during parliamentary debate, the President was asked a question relating, inter alia, progress made about the applications for presidential pardon. The President replied as follows:

“… I see the Deputy Minister of Justice and Constitutional Development is here – is that I will speak to both him and the Minister so that they can then interact both with you and with … Koos van der Merwe so that they can indicate what is being done and the particular problems they are experiencing with regard to the processing of the applications.”

The President, during the said debate further said:

“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 prerogative granted to the President of the Republic by section 84(2)(j) of the Constitution, to which the honourable member referred.”

He is acting on his behalf and also as a member of, or in the interest of, a group of persons being the abovementioned 383 applicants for Presidential pardon. To the best of his knowledge, the 383 other members of the group are still being incarcerated in institutions which are located all over the country.

3. First Respondent’s Answering Affidavit

It was attested to by Mr Menzi Simelane, Director General of the Department of Justice and Constitutional Development. He alleges that the 383 applications referred to by the applicant are part of approximately 1069 applications for pardon. The information received in the 384 applications referred to by the applicant is very scanty. The said information does not motivate why a pardon would enhance the public welfare. Some of the information contained in the applications referred to above is insufficient or false or simply misleading.

During a debate in the national assembly difficulties inherent in the applications received from the applicants by the first respondent were alluded to. Applications referred to by the applicant have not been sent to the second respondent for consideration. There are a variety of challenges that are associated with the assessment of the said applications and the recommendations that the department would make to assist the first respondent to make her recommendations. The department is engaged in a process which will allow a proper assessment of the applications. The department’s task of evaluating the applications would be greatly enhanced if the IFP would assist the department in collating the relevant information for a proper evaluation of the applications.

The department is taking certain steps to ensure that the recommendations that the first respondent is going to make are not arbitrary and they can be properly justified.

The applicant cannot contend that he is authorised to bring a class action in respect of individuals who are completely unaware of the proceedings. Applicant cannot also contend that he is acting in the “public interest” when he, under oath, places information which is patently false and at best, inaccurate.

The intention of the first respondent is not to meet the technical correctness of assessment which yields no functional relevance. The first and second respondent want to ensure that proper judgment is brought on the application. To do that, a formulation of a framework is necessary and same has been commissioned.

He has invited the first applicant to furnish more comprehensive information to facilitate the assessment of these applications for pardon. In the event that no additional information is forthcoming and further that the recommendation is to be made before a framework is adopted, he is confident that the department will give no other recommendation other than a recommendation not to pardon in respect of all the applications mentioned in the previous paragraphs.

It is practice to have the applications processed by the department he is heading, but he denies that that conduct constitutes “administrative action” within the meaning of PAJA.

A confirmatory affidavit by Advocate Mojankunyana Gumbi, legal advisor to the second respondent was attached.

In the said confirmatory affidavit she stated, inter alia, that she can further confirm that when a decision in respect of serious offences and politically motivated offences is taken, a full motivation would usually have been made and the second respondent would have applied his mind to the application for pardon.

In making a decision in terms of section 84(2)(j) of the Constitution, the second respondent exercises his constitutional powers as head of state and ensures that the exercise of that power does not encroach without justification upon the other arms of government and in particular he ensures that the administration of justice is not undermined.

4. Applicant’s Replying Affidavit

It was attested to by Mr Mqabukeni Chonco.

He alleges that the group on whose behalf he is acting, consists of 383 other persons who have, like himself, applied for Presidential pardon in terms of section 84(2)(j) of the Constitution but whose applications are subject to the same delays by the first respondent, as the delay he is subjected to.

For the President to exercise his powers in terms of section 84(2)(j) of the Constitution, he relies on the advice to be rendered by first respondent and her department, although the actual taking of a decision still rests with the President.

For as long as first respondent’s advice to the President is still outstanding, the process is delayed not by the President, but due to lack of action on the part of first respondent and her department. It is against this unreasonable delay on the part of first respondent that the relief is aimed.

In view of the fact that the first respondent’s department has been aware since the year 2000 that “politically motivated” offences could not be dealt with in terms of the existing policy document, and the fact that no steps were taken to remedy the defects in the policy document, points to the dereliction of constitutional duty.

When he applied for pardon, he mentioned only the crime of murder. He had no intention to mislead the department. If the department had provided him with a form requiring all the necessary and relevant information, he would have supplied them with the said information.

He further alleges that if there are any omissions, lack of details or other deficiencies in any of the applications (which is denied) then the applicant avers that these must be ascribed to a total lack of guidance on the part of the responsible parties being the first respondent and her department.

The deficiencies in the department’s internal procedures (as alleged by the department’s official) are not sufficient reasons for having delayed the processing of applications for Presidential pardon for almost four years. Same applies to the alleged lack of criteria to assess “the political motivation offered for pardon”.

He further alleges that the department’s documentation indicates that the department must have been aware since the year 2000 of all the deficiencies in its own internal processes, internal criteria and the like, with regard to the assessment of applications with a “political element” to it, but in the year 2007 the department offers a lack of the necessary framework in that regard as an excuse for its neglect to process the applications under discussion.

He further alleges that on the probabilities, the other 383 persons are just as keen and anxious as he is to have the merits of their applications assessed.

5. Findings

It is common cause between the parties that powers as contained in section 84(2)(j) vests in the President. He is required to exercise the constitutional powers conferred on him personally.

It is also common cause between the parties that in the past, the Department of Justice received applications for pardon by the State President from 33 inmates, processed them and send certain recommendations to the President, who then dealt with the applications in terms of section 84(2)(j) of the Constitution.

In fact, in the answering affidavit the deponent thereof stated that the Department of Justice is processing the applications for pardon as a matter of practice.

In the present case, the applicants directed their applications for pardon to the Department of Justice in 2003. To date, the said applications have not as yet been processed. The Department of Justice alleges that there are certain inherent difficulties associated with the said applications and they are in the process of sorting out the said difficulties.

The Department of Justice is evaluating the applications under discussion for presidential pardon on the request of the State President.

Section 85 of the Constitution of the Republic of South Africa, 1996 provides as follows:

“Executives authority of the Republic

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 …”

Section 92(3) provides that members of the cabinet must act in accordance with the constitution.

Section 101(1) of the Constitution stipulates that a decision by the President must be in writing if it has legal consequences.

Rautenbach Malherbe; Lexis Nexis – Butterworth 4^th Edition p 195, the following is stated:

“In South Africa, Ministers have no common law powers. All powers and functions are exercised and performed in terms of the Constitution and other legislation.”

In President of the RSA v South African Rugby Football Union 2000 1 SA 1 at p 29B-C (paragraph 41) the court said:

“When contemplating the exercise of presidential powers, there can be no doubt that it is appropriate and desirable for the President to consult with and take the advice of Ministers and advisers. Indeed, it is clear from the Constitution itself that the exercise of executive authority, in terms of sec 85, is a collaborative venture in terms of which the President acts together with the other members of Cabinet. Similarly, where the President acts as head of State, it is not inappropriate for him or her to act upon the advice of the Cabinet and advisers. What is important is that the President should take the final decision.”

The first respondent is in the process of evaluating the applications of the applicants on the request of the State President with a view to making necessary recommendations to the latter.

During argument the first respondent’s counsel submitted that there is no legal duty on the Minister to process the application for presidential pardon, as the applicant has failed to demonstrate that section 101(1) of the Constitution has been complied with.

The submission mentioned above, as I understand it, was that as there is no evidence to indicate that the President’s request to the Minister to process the applications was in writing, the applicant cannot argue that the Minister has a legal duty to process the application in question.

In Eskom v First National Bank of Southern Africa Ltd [1994] ZASCA 186; 1995 2 SA 386 (A) 392C-E GROSSKOPF JA said the following:

“It has often said that determining the incidence of the onus of proof is merely a question of policy and fairness based on experience in the different situations …

As a matter of fairness and sound judicial policy it seems reasonable that, where one party has the means of establishing a particular fact and his opponent not, the onus should rather be on the former than on the latter.”

In Niewoudt v Joubert 1988 3 SA 84 (SE) 91B, MULLINS J said:

“A litigant is not entitled to conceal material allegations in order to obtain the advantage of placing the onus on his opponent. The onus must be determined on genuine and not artificial allegations in the pleadings, and if the onus should be on a particular party, he must accept it. Litigation is not a game where a party may seek tactical advantages by concealing facts from his opponents and thereby occasioning unnecessary costs …”

See also Mabaso v Felix 1981 3 SA 865 (A) 872G and National Media Ltd and Others v Bogoshi 1998 4 SA 116 at 1215B-F.

Applying the principles enunciated in the abovementioned cases as of necessity, compels me to arrive at the conclusion that the State President’s request to the Minister to process the applications for pardon under discussion was in accordance with the law and has legal consequences.

If the request of the State President did not comply with the law, the deponent of the answering affidavit could have said so in no uncertain terms. His failure to do so and the fact that the Department of Justice and Constitutional Development is in the process of carrying out the request of the State President justifies the conclusion that the State President 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.

In the answering affidavit the first respondent states that the applications of the applicants were received from March to about October 2003. To date, about 4½ years down the line, the applications have not as yet been processed and no recommendations were made to the President.

In the answering affidavit the deponent thereof states as follows:

“I am also aware that the first respondent is desirous of obtaining a defensible departmental framework for the evaluation of these applications …

It is my considered view, having consulted the officials in my department that the draft framework would be finalised inside a period of approximately six months. I submit given the complexity of the matter that the period is not unreasonable.”

According to the first respondent, the framework will be finalised within a period of six months. The evaluation of the applications will presumably only start after finalisation of the framework and it is not clear when the evaluation of the said applications will be completed.

In my view, the processing of the applications of the applicants has taken an unduly long time and the Minister has failed to perform her function as required by section 237 of the Constitution.

The answering affidavit was attested to on 27 July 2007 and the contents thereof indicate that some form of assessment or evaluation of the applications was done as at date of signing of the answering affidavit.

In my view, the applicants have made out a case for prayers as contained in prayers 1, 3 and 4 of the notice of motion although my view is that a period of one month is too short and that a period of three months will be appropriate in this case.

During oral argument, the applicants’ counsel submitted that it is not necessary to include, in the order, certain words or paragraphs contained in prayers 1 and 3. I agree with the said submission and the suggested omissions will be reflected in the order I will make. I will omit the portion of the prayer as suggested by the applicants’ counsel.

I do not believe that the applicant have made out a case for attorney and client costs.

I therefore make an order in the following terms:

1. The first respondent 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 section 84(2)(j) of the Constitution in an informed way, with regard to the applications for Presidential pardon by the applicant and the 383 other applicants for Presidential pardon in whose interest and on whose behalf the applicant brought this application.

2. The first respondent is directed to do all the necessary within a period of three months from date hereof to enable the second respondent to exercise the powers conferred on him in terms of section 84(2)(j) of the Constitution in an informed way with regard to all 384 applications for Presidential pardon referred to in this application.

3. The first respondent is ordered to pay the costs of this application on party and party scale.

W L SERITI

JUDGE OF THE HIGH COURT

21224/2007

Heard on: 30 January 2008

For the Applicants: Adv J Kruger SC

Instructed by: J H van der Merwe Inc, Pretoria

For the Respondents: Adv I Simenya SC & Adv L Gcbashe

Instructed by: The State Attorney, Pretoria

Date of Judgment: 11 February 2008

---