n Stellenbosch Law Review = Stellenbosch Regstydskrif - Judicial review of the pardon power in section 84(2)(j) of the Constitution of the Republic of South Africa, 1996




Section 84(2)(j) of the Constitution of the Republic of South Africa, 1996 ("the Constitution") explicitly vests the power to pardon in the President and when exercised it sometimes unravels the outcome or result of a judicial process. Setting aside the decision of the judges made in terms of the law may be incompatible with the supremacy of the Constitution and with the independence of the judiciary. The issue is how can the pardon power be reconciled with the independence of the judiciary and related provisions.

This paper argues that the pardon power is constrained by the broader objectives and visions of the Constitution. Given its impact on the judicial process, it must be exercised in a manner that advances the public interest or good as opposed to the interests of the beneficiary of the pardon. It argues that the exercise of the pardon power is not administrative action and therefore not susceptible to review under section 33 of the Constitution and under the Promotion of Administrative Justice Act 3 of 2000 ("PAJA"). However, it is subject to review under the principles of legality. The paper tracks the development of the jurisprudence in this regard. It submits that it would be imprudent given the pronounced shift that appears to have occurred in 2010 5 BCLR 391 (CC), for presidential advisors to rely on the reasoning of the majority in 2008 1 BCLR 1 (CC) that the duty to act procedurally fairly is not a requirement under legality. After reviewing the cases on legality the paper argues that, in addition to incorporating a process so as not to irrationally exclude the victims, legality review requires the President to act lawfully, in a manner, and rationally. This would require justifying the decision to pardon. Rationality review under legality is a generic category which is capable of accommodating most, if not all, the grounds of review listed in PAJA. It concludes by submitting that the terrain regarding the control of executive power has most decidedly changed in the last few years and the new rules must be taken cognisance of in order not to create further unnecessary tension between the executive and the judiciary.


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