The president — and not the justice minister — should be held accountable for a six-year delay in the processing of pardon applications by 384 jailed Inkatha Freedom Party (IFP) members, the Constitutional Court ruled on Wednesday.
The court upheld an appeal by the justice minister against a Supreme Court of Appeal (SCA) ruling in favour of the IFP members.
Chief Justice Pius Langa, who criticised the government for the long delay, said the president — and not the justice minister — should be held accountable in the pardon applications of Mqabukeni Chonco and 383 others.
”In short, Mr Chonco has pursued the incorrect party to obtain the legal relief that he seeks,” Langa said in his judgement.
”The president retains full powers and functions — and is therefore the bearer of all obligations — in the greater pardons process …
”I express no view as to the prospects of a future challenge that may be brought directly against the president,” said Langa.
He granted the justice minister’s application for leave to appeal, upheld it and set the SCA order aside.
”The minister … cannot be held accountable for any unjust administrative action that may have occurred,” said Langa.
”Whether or not the preliminary process may be deemed administrative action for which the president could be held directly accountable, was not argued, and need not be decided upon in these proceedings.”
The justice minister was appealing against an SCA ruling that the minister had failed to handle the applications properly.
The SCA ruled that the justice and constitutional development minister had a constitutional obligation to process the applications before the country’s president considered them.
The SCA judgement confirmed a high court ruling on the matter.
Chonco was convicted of murder, robbery, attempted murder and the unlawful possession of a firearm and ammunition in 1989.
He was sentenced to death for the murder, but the sentence was commuted to life when the death penalty was abolished in 1990.
Chonco, who has argued that his crimes were committed for political reasons, said he did not apply to the Truth and Reconciliation Commission (TRC) for amnesty, because he was advised not to by his political party, the IFP.
He applied for a presidential pardon six years ago, and was joined by 383 other applicants in 2003.
Chonco resorted to litigation after the processing of the applications was delayed.
Langa said the delay was ”unacceptable”.
”Despite public undertakings made by the president and the minister to expedite a response to the applications, the respondents have waited in vain. This is unacceptable …
”This kind of delay is out of kilter with the vision of democratic and accountable governance,” said Langa.
He ordered the government to pay the costs.
”In my view, justice requires that Mr Chonco, the 383 other applicants for pardon and their legal advisers should not be out of pocket because of their recourse to legal proceedings.
”The successful applicant for leave to appeal, the minister, should pay the costs of Mr Chonco and the 383 other applicants for pardon.” — Sapa