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30 Sep 2009 17:58
The Constitutional Court on Wednesday dismissed a case by a jailed Inkatha Freedom Party (IFP) member seeking to compel the government to consider him for presidential pardon.
Chief Justice Pius Langa said Mqabukeni Chonco had sued the wrong party and as a result his case would not stand.
Chonco, who was convicted for murder in the late 1980s, sued the then justice and constitutional development minister Brigitte Mabandla instead of the president, who is vested with the power to pardon.
In 2003 Chonco and 383 other jailed IFP members applied for presidential pardons, saying their offences were politically motivated.
However, the government never acted on their applications, forcing Chonco to seek redress in court.
In his court papers, Chonco said he later learned that the president would only act on his plea for pardon once the justice minister had finalised the process and forwarded his name.
He then took Mabandla to court for delaying the process which he thought would restore his freedom.
After hearing his complaint, the North Gauteng High Court in Pretoria ruled that Mabandla, as an assignee of the president, had failed to exercise her constitutional obligation to process with diligence Chonco’s application for pardon.
Consequently, the minister was ordered to forward the pardon application forms to the president within three months for him to act on them.
Aggrieved by this decision Mabandla lodged an appeal with the Supreme Court. The president, who was initially sued as a party in the case, did not join the appeal.
In her appeal, Mabandla argued that there was no constitutional obligation on her part to process applications for pardon since that function vested exclusively in the president.
The Supreme Court too ruled against the minister, saying she was under obligation to process the applications.
The minister then took the legal battle to the Constitutional Court.
She asked the court to determine whether she had any constitutional obligation in relation to the processing of applications for pardon.
On Wednesday, the Constitutional Court held that the final decision on application for pardon and constitutional responsibility rests with the president.
It also said the president retains the full powers and functions and is therefore the bearer of all obligations in the greater pardon process.
Chonco ought to have pursued the president and so his case was dismissed.
Langa ordered the government to pay the costs of the case.
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