Albutt v Centre for the Study of Violence and Reconciliation and Others

Former President Thabo Mbeki introduced a special dispensation process for presidential pardons for persons convicted of politically motivated offences committed before 16 June 1999 who had not applied for amnesty under the Truth and Reconciliation Commission (TRC). A Pardon Reference Group (PRG) was established to make recommendations to the President. The process did not provide for participation by victims of the offences. Several NGOs representing victims sought to have victims included, arguing that exclusion violated section 33 of the Constitution, PAJA, and the common-law duty of procedural fairness. When these efforts failed, the NGOs obtained an interim interdict in the North Gauteng High Court preventing the President from granting pardons under the special dispensation pending final determination. Mr Ryan Albutt, a convicted prisoner who had applied for pardon, sought leave to appeal directly to the Constitutional Court and, alternatively, direct access to challenge the High Court order and to seek a declaration that PAJA was unconstitutional if interpreted to cover presidential pardons.

Leave to appeal was granted, but the appeal was dismissed. The interim interdict preventing the President from granting pardons under the special dispensation without affording victims an opportunity to make representations remained in force pending finalisation of the main application.

This case is a leading authority on the constitutional limits of the presidential pardon power. It confirms that even core executive powers are subject to the principle of legality and constitutional requirements of fairness. The judgment is significant for victims’ rights, transitional justice, and the development of procedural fairness outside the strict confines of PAJA.