Judge W L Seriti of the North Gauteng High Court in Pretoria handed down judgment today on the urgent application brought by a coalition of civil society organisations to stop the President of the Republic of South Africa from issuing pardons in terms of the Special Dispensation on Political Pardons.
The Court interdicted the President from granting any pardon in terms of "the special dispensation for political offenses" until such time as the legal proceedings have been finalized. The Court also ordered that the President and the Minister of Justice provide the civil society coalition with a list of prisoners recommended for release by the pardons reference group.
The civil society coalition had asked the court to interdict the President from granting pardons without securing the inputs of victims and other interested persons. The coalition welcomes this important victory for South Africans, and in particular for victims, whose constitutional rights to a fair process, human dignity, right to information and freedom of expression have been upheld pending the final determination of the court case.
Judge Seriti held that since the President made a public commitment that the political pardons process would:
• be conducted in "an open and transparent manner, uniformly and in strict compliance with pre-determined procedures and criteria"
• that the process would accord with the principles, values and criteria of the TRC process, particularly its amnesty process
that he was bound to abide by this "lawful public commitment". He found that this "commitment accords with the basic values and principles enshrined in our Constitution. In order to act in accordance with his public commitment my view is that the President should allow the victims and/ or their families and interested parties to be heard prior to releasing any prisoner on pardon."
The Court held that "the practical effect of a parole and pardon are the same. I cannot find any justification for allowing victims of crime to be heard prior to a prisoner being release on parole, but to deny the same right to a victim in the case of a pardon".
Judge Seriti found that the President prior to releasing a prisoner on pardon "must have considered all the relevant information relating to the said prisoner. The said information should include the inputs of victims and / or families of the victims of that particular crime and any other relevant information which might come from any interested party. The inputs from the other interested parties will enable the President to verify the facts stated by the applicant in the parole (sic) application form."
The Court also found that "victim participation does not mean that the President is deprived of his Constitutional responsibility".
The coalition of civil society organisations includes the Khulumani Support Group, the Centre for the Study of Violence and Reconciliation, the International Centre for Transitional Justice, the Institute for Justice and Reconciliation, the Human Rights Media Centre, the Freedom of Expression Institute and the South African History Archives. The coalition was represented in court by the Legal Resources Centre.
Former Chairperson of the TRC, Archbishop Emeritus Desmond Tutu, former Vice-Chair of the TRC, Alex Boraine and the Director of the South African Human Rights Commission, Jody Kollapen filed affidavits in support of the application.
On behalf of:
• Centre for the Study of Violence and Reconciliation (CSVR): Hugo van der Merwe, - 082 570 0744
• International Centre for Transitional Justice (ICTJ): Comfort Ero - 082 927 8203
• Khulumani Support Group: Marje Jobson - 082 268 0223; Tshepo Madlingozi 082 496 9914
• Institute for Justice and Reconciliation (IJR): Fanie du Toit - 083 266 1766
• Human Rights Media Centre (HRMC): Shirley Gunn - 082 450 9276
• Freedom of Expression Institute (FXI): Melissa Moore - 082 924 8268
• South African History Archives (SAHA): Piers Pigou - 083 381 7150
• Legal Resources Centre (Cape Town): Lwazi Kubukeli - 084 742 4932
The Coalition will hold a Press Briefing on Tuesday, 5 May at 11h00 in Cape Town were survivors affected by the court ruling will also be available to speak to the press. The briefing will be held at CSVR Office, 501 Premier Centre, 451 Main Road, Observatory.
At the beginning of 2008 former President Mbeki established a special pardons process, in terms of which a Reference Group (RG) comprising of political party representatives would hear applications for pardons in respect of political offences in order to deal with the "unfinished business of the TRC"
The urgent application was prompted by President Motlanthe's decision, on 13 March 2009 not to permit victim inputs or to lift the blanket of secrecy under which the pardons process had been conducted.
This Reference Group was comprised of political party representatives and chaired by former National Party cabinet minister Tertius Delport. Unlike the TRC's Amnesty process, the Special Pardons Process operates under blanket secrecy. None of the applications for pardons have been disclosed to victims, interested parties or the public. The written parameters for the Reference Group state that - because the TRC's amnesty provisions have lapsed - the President is invoking his pardon powers.
Central to the TRC process was the acknowledgement of victims. But the Special Pardons Process gave no voice to victims whatsoever. This was not a mere oversight on the part of the Reference Group and the President. The Reference Group (RG) was asked on several occasions to permit victim inputs and it specifically refused to do so. The RG also refused an offer by the civil society coalition to facilitate victim inputs in those cases where they had recommended pardons. The RG has also declined to disclose which cases it is recommending to the President.
Pardon applicants include former Police Minister, Adriaan Vlok, former Commissioner of Police, Johan van der Merwe and a group of AWB members who viciously attacked black people in Kuruman in 1995 and a right winger who bombed a supermarket in Worcester on Christmas Eve of 1996. Four people died in the Worcester bombing, two of which were nine-year old children. The Worcester bomber claims that he is a prisoner of war, even though his crime was committed more than 2 years into South Africa's constitutional democracy.
Lawyers for the collation argued that, since the President chose to impose specific criteria for the qualification for a pardon - namely disclosure and the showing of a political objective - he was obliged to ensure a fair process to determine that the criteria were satisfied. The civil society lawyers say that a one sided process, in which only the views of perpetrators are heard, can never determine whether the criteria have been met. This rendered the process not only manifestly unjust but also arbitrary and unconstitutional.
The full terms of the court order are as follows:
"1. The President is interdicted from granting any pardon in terms of "the special dispensation for political offenses" until such time as these proceedings have been finalized.
2. The President and the Minister of Justice are to provide the applicants with a list of prisoners recommended for release by the pardons reference group;
3. Applicants must serve the papers in this matter on the list of prisoners recommended for pardon;
4. The Minister of Justice must make the other applicants for pardon aware of these proceedings."