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  • Written by  www.businessday.co.za
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Judge halts presidential pardons

PRESIDENT Kgalema Motlanthe was yesterday interdicted by the North Gauteng High Court from granting presidential pardons to convicts who claimed their crimes were politically motivated.? Judge Willie Seriti said Motlanthe needed to consider "all the relevant information", including "the input of the victims" of the crimes and their families, before he could grant the pardons.

Yesterday's judgment further delays a process that began in 2007 when former president Thabo Mbeki formed a "special dispensation" to deal with pardon requests made by people "convicted for offences they claim were politically motivated". Mbeki told Parliament the special dispensation would complete the "unfinished business of the Truth and Reconciliation Commission" and it would follow the principles used by the commission.

The number and identity of those who have been recommended for pardon are unclear, but included in the list of people who applied are Ferdi Barnard, who murdered anti-apartheid activist David Webster, and former law and order minister Adriaan Vlok, convicted for the attempted murder of Frank Chikane.

Webster's widow, Maggie Friedman, told the court that she would like to make representations before a decision was taken.

Yesterday's interim interdict will apply until a final decision on the issue is reached by a court. In the meantime, Motlanthe must give the applicants the names of those recommended for pardon so that they can join the case.

Seriti's ruling followed an urgent application last month by a coalition of civil society groups represented by the Legal Resources Centre. The group included the Centre for the Study of Violence and Reconciliation, the Khulumani Support Group and the International Centre for Transitional Justice.

To deal with about 2000 of these applications, Mbeki established a parliamentary reference group, comprising representatives of all the political parties. The reference group will consider and make recommendations to the president, who will make a final decision.

But unlike the truth commission, the process used by the reference group did not afford the victims of the crimes an opportunity to be part of the process.

In court, the coalition argued that Mbeki had "promised the nation" that the process would follow the principles of the truth commission and argued that the process was unlawful because of the absence of victim participation and because it was shrouded in secrecy.

Seriti agreed, saying Mbeki had "made a lawful public commitment" about how the process would work and that victims should be heard "in accordance with his public commitment".

He also said that, since victims had a right to be heard prior to criminals' release on parole, he could not "find any justification" for differentiating between the two situations. "The practical effect of a parole and a pardon are the same," Seriti said.

He also found that the president did not have an "unfettered discretion" when it came to granting pardons, as had been argued by Motlanthe's counsel.

He said the exercise of the president's constitutional power to grant pardons could be reviewed by a court in terms of the Promotion of Administrative Justice Act.

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