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

Former President Mbeki announced in November 2007 a special dispensation for presidential pardons for persons convicted of politically motivated offences committed before 16 June 1999 who had not applied for amnesty to the Truth and Reconciliation Commission (TRC). The dispensation aimed to address the "unfinished business" of the TRC and promote nation-building and reconciliation. A Pardons Reference Group (PRG) was established to consider applications and make recommendations to the President. The dispensation did not provide for victim participation. NGOs representing victims challenged the exclusion of victims from the pardon process. Mr Albutt and other convicted prisoners who had applied for pardon intervened. The High Court granted an interim interdict preventing the President from granting pardons pending finalization of the main application, finding that victims had a right to be heard. Albutt sought leave to appeal directly to the Constitutional Court.

• Whether the victims of offences for which pardon is sought under the special dispensation process are entitled to be heard prior to the exercise of the presidential power to grant pardon under section 84(2)(j) of the Constitution
• Whether the decision to exclude victims from the special dispensation process was irrational and violated the rule of law
• Whether the exercise of the power to grant pardon under section 84(2)(j) constitutes administrative action within the meaning of PAJA
• Whether the NGOs had standing to bring the application
• Whether non-joinder of other pardon applicants was fatal to the application

Leave to appeal granted. Appeal dismissed. The decision to exclude victims from the special dispensation pardon process was declared irrational. Victims are entitled to be heard before the President grants pardon under the special dispensation process. The President and the Minister for Justice and Constitutional Development were ordered to pay the costs of the NGOs, including costs for two counsel. No order was made on the application for direct access. Each party to bear its own costs on that application.

The exercise of all public power, including the presidential power to grant pardon under section 84(2)(j) of the Constitution, must comply with the Constitution and the doctrine of legality, which requires that decisions be rational, made in good faith, and in accordance with the principle of legality. A decision is rational only if the means selected to achieve an objective are rationally related to that objective. Where the President commits to applying specific principles and values in exercising the pardon power—particularly the principles of victim participation that underpinned the TRC amnesty process—and the stated objectives are nation-building and national reconciliation, excluding victims from the process is irrational because victim participation is fundamental to achieving those objectives. In the context of the special dispensation for pardons for political offences, victims are entitled to an opportunity to be heard before a decision is made to grant pardon. This requirement flows from the context-specific features of the special dispensation process and the principle of rationality. The participation of victims is crucial to establishing the truth about whether offences were politically motivated and to achieving reconciliation.

The Court expressly declined to decide whether the exercise of the power to grant pardon under section 84(2)(j) constitutes administrative action under PAJA, stating this question should be left open for another day when a proper occasion is presented. The Court emphasized that its ruling applied only to the special dispensation for political pardons and not to pardons in general, leaving open whether victims of other categories of pardons are entitled to be heard. The Court noted that sound judicial policy requires deciding only what is necessary for proper disposal of a case, particularly in constitutional matters where jurisprudence should develop incrementally. Froneman J, in a concurring judgment, observed that the requirement of participatory democracy finds support in pre-colonial African traditions of victim participation in dealing with offenders, providing additional cultural and historical legitimacy to the conclusion that victims should participate in processes affecting national unity and reconciliation. However, Froneman J emphasized that past applications should not bind the present; rather, they demonstrate the deep roots of participatory principles in South African society.

This case is significant for establishing that the exercise of executive powers, including the presidential pardon power, must comply with the Constitution and the rule of law, including the requirement of rationality. It confirms that decisions must be rationally connected to their stated objectives. The judgment emphasizes the importance of victim participation in transitional justice processes aimed at reconciliation and nation-building, building on the principles of the TRC. It recognizes the principle of participatory democracy as a constitutional value. The case demonstrates the Court's incremental approach to constitutional adjudication by declining to decide broader questions about whether the pardon power constitutes administrative action under PAJA when those questions were not necessary for the case's resolution. The judgment is also notable for Froneman J's concurrence linking the requirement of participation to both the TRC process and pre-colonial African traditions of participatory decision-making and restorative justice, providing deeper historical and cultural grounding for the Court's conclusion.