The Minister for Justice and Constitutional Development v Chonco and Others

The first respondent, Mqabukeni Chonco, together with 383 other prisoners, applied for presidential pardons under s 84(2)(j) of the Constitution, alleging that their offences were committed in the course of the political struggle. Their applications were submitted via the Inkatha Freedom Party to the Minister for Justice in September–October 2003. Despite repeated parliamentary questions and correspondence over several years, the applications were never processed or forwarded to the President. By the time the High Court application was launched in 2007, more than four years had elapsed without progress. The High Court declared that the Minister had failed to perform her constitutional obligations diligently and ordered her to take all necessary steps within three months to enable the President to consider the applications in an informed manner. The Minister appealed to the Supreme Court of Appeal.

The appeal was dismissed with costs, including the costs of two counsel. The High Court order directing the Minister to process the applications within three months remained in force.

The case clarifies the constitutional division of responsibility between the President and Cabinet members in relation to the pardon power. It establishes that while the pardon decision is the President’s alone, Ministers may bear enforceable constitutional duties to perform preparatory executive functions. The judgment reinforces s 237 of the Constitution and affirms that prolonged inaction by the executive can be constitutionally unlawful even outside the framework of PAJA.