It was hard to ignore the elephant in the room last week when the highest court in the land handed down judgment in the pardons case on appeal from the North Gauteng High Court.
The Constitutional Court’s decision that victims or their families have a right to make representations to the president should be celebrated — except that the court did not decide whether President Jacob Zuma has unfettered powers to pardon anyone, including his friend and financial adviser Schabir Shaik; or former Vlakplaas commander Eugene de Kock, for that matter.
The North Gauteng High Court initiated the debate when Judge Willie Seriti ruled, using a common-law principle, that the legislature would have expressly excluded pardon powers from the scope of judicial review if it had wanted the president to have unfettered powers over pardons in general.
The converse argument would be that the legislature considers pardon powers to fall within the remit of administrative action and thus wanted them under the purview of the courts, even though executive action is generally excluded.
Given the recent heated debate in the media, one would have expected the Constitutional Court to take the opportunity to ensure legal certainty on the issue. Instead, the court tiptoed around the issue and considered all manner of implications, without putting the matter to rest once and for all.
I would not be taking issue with the judgment had the Constitutional Court opted simply not to confront the matter at all and focused rather — as sound judicial policy dictates — on what was necessary to bring to finality the dispute in the North Gauteng High Court.
But the court first cast doubt on whether pardons constitute administrative action.
Then — and oddly so — it found that the court of first instance had “erred”, without so much as engaging with the substance of the lower court’s reasoning. And lastly, it deferred the question, saying it will confront the issue when the right case comes along.
I hope it will not happen, but this judgment might have the effect of constraining a lower court such as a full Bench of the North Gauteng High Court or the Supreme Court of Appeal from engaging further with Seriti’s reasoning.
Chief Justice Sandile Ngcobo is on record saying he is in favour of judicial restraint from the highest court in the land.
In its purest form this attitude or judicial philosophy recognises and respects the role of the other two organs of state and does not second-guess their wisdom.
I find it hard to reconcile this philosophy with the pardons judgment, which, to me, was a clear-cut case of the apex court being called on to bring to bear its interpretative wisdom.
All the Constitutional Court had to do was grant direct access to the NGOs and any other interested parties to state their case.
In the same process both the executive and legislative arms would have put forward their arguments and the court, in its wisdom, would have laid the matter to rest once and for all.
Sello Alcock is a law student at Wits University and the former justice correspondent of the Mail & Guardian