View source for Albutt v Centre for the Study of Violence and Reconciliation

{{Short description|South African legal case}}
{{Use dmy dates|date=February 2024}}
{{Infobox court case
| court = [[Constitutional Court of South Africa]]
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| full name = Albutt v Centre for the Study of Violence and Reconciliation and Others
| date decided = {{Start date|2010|2|23|df=y}}
| citations = {{Cite SAFLII |year=2010 |court=ZACC |num=4}}; 2010 (3) SA 293 (CC); 2010 (2) SACR 101 (CC); 2010 (5) BCLR 391 (CC)
| transcripts =
| judges = [[Sandile Ngcobo|Ngcobo CJ]], [[Moseneke DCJ]], [[Cameron J]], [[Johan Froneman|Froneman J]], [[Sisi Khampepe|Khampepe J]], [[Mogoeng Mogoeng|Mogoeng J]], [[Nkabinde J]], [[Thembile Skweyiya|Skweyiya J]] and [[Johann van der Westhuizen|van der Westhuizen J]]
| number of judges = 9
| decision by = Ngcobo CJ (unanimous)
| concurring = Froneman J (Cameron and Froneman concurring)
| appealed from = [[High Court of South Africa]], [[North Gauteng High Court|North Gauteng Division]] – ''Centre for the Study of Violence and Reconciliation and Others v President of the Republic of South Africa and Others'' {{cite SAFLII|court=ZAGPPHC |year=2009|num=35}}
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| subsequent actions =
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| docket = CCT 54/09
}}
'''''Albutt v Centre for the Study of Violence and Reconciliation and Others''''' is a 2010 decision of the [[Constitutional Court of South Africa]] which concerned a special presidential dispensation to [[pardon]] the perpetrators of politically motivated crimes committed during the [[apartheid]] era. The Constitutional Court held that the [[President of South Africa]] had contravened the [[Constitution of South Africa|Constitution]] in deciding not to consult the victims of those crimes before granting the pardons. The unanimous judgment was written by Chief Justice [[Sandile Ngcobo]] and delivered on 23 February 2010.
The ''Albutt'' judgment was notable for implicitly expanding the scope of rationality review to include the process by which organs of state take decisions – in this case, to include the relationship between the objectives of the special dispensation and the factors that the President considered in deciding how to use his constitutional power of pardon. By this method, the court found that the principle of rationality may confer upon organs of state a duty to consult, regardless of whether such a duty arises separately from the requirement that administrative action must be [[Procedural fairness|procedurally fair]].
== Background ==
Between 1995 and 1998, the [[Truth and Reconciliation Commission (South Africa)|Truth and Reconciliation Commission]] operated as a [[restorative justice]] tribunal of the post-[[apartheid]] transition. Part of its mandate was to hear applications for [[amnesty]] from the perpetrators of politically motivated [[human rights abuses]]. Almost a decade after the commission concluded its work, in November 2007, President [[Thabo Mbeki]] announced that, in order to deal with the "unfinished business" of the Truth and Reconciliation Commission, he would institute a special dispensation under which he would [[Presidential Pardon|pardon]] individuals who claimed to have been convicted of politically motivated criminal offences on any date before 16 June 1999.<ref>{{Cite journal |last=Clark |first=Janine Natalya |date=2012 |title=Reconciliation via Truth? A Study of South Africa's TRC |url=http://www.tandfonline.com/doi/abs/10.1080/14754835.2012.674455 |journal=Journal of Human Rights |language=en |volume=11 |issue=2 |pages=189–209 |doi=10.1080/14754835.2012.674455 |issn=1475-4835}}</ref> The Pardon Reference Group was appointed to consider applications for pardon and make recommendations to Mbeki and, later, to his successors, President [[Kgalema Motlanthe]] and President [[Jacob Zuma]], but the pardons would be granted by the President in terms of the power granted to him by section 84(2)(j) of the [[Constitution of South Africa|Constitution]].
A coalition of non-governmental organisations, under the name of the Civil Society Coalition, publicly opposed the special dispensation, warning that it could result in the award of pardons to notorious [[White nationalism|white nationalists]] such as [[Adriaan Vlok]] and the [[Afrikaner Weerstandsbeweging]] members who perpetrated the [[1996 Shoprite bombing]].<ref>{{Cite web |last=Essop |first=Philda |date=8 June 2009 |title=Vlok on pardons list |url=https://www.news24.com/news24/vlok-on-pardons-list-20090607 |access-date=2024-03-05 |website=News24 |language=en-US}}</ref> The same group sought to secure public participation – and, in particular, the participation of the victims of the relevant offences – in the special dispensation process. They were rebuffed by the Pardon Reference Group in August 2008 and by the [[President of South Africa|Presidency]] in March 2009.
== High Court action ==
The coalition of non-governmental organisations (comprising the Centre for the Study of Violence and Reconciliation, the Khulumani Support Group, the [[International Center for Transitional Justice|International Centre for Transitional Justice]], the [[Institute for Justice and Reconciliation]], the [[South African History Archive|South African History Archives Trust]], the Human Rights Media Centre, and the Freedom of Expression Institute) subsequently sought legal enforcement of their request in the [[High Court of South Africa]].<ref>{{Cite web |date=2009-03-18 |title=Court challenge over presidential pardons |url=https://mg.co.za/article/2009-03-18-court-challenge-over-presidential-pardons/ |access-date=2024-03-05 |website=The Mail & Guardian |language=en-ZA}}</ref><ref>{{Cite web |date=2009-03-19 |title=Papers filed against Motlanthe over pardons |url=https://mg.co.za/article/2009-03-19-papers-filed-against-motlanthe-over-pardons/ |access-date=2024-03-05 |website=The Mail & Guardian |language=en-ZA}}</ref> Represented by [[Geoff Budlender]],<ref>{{Cite web |date=2009-04-14 |title=Court asked to halt presidential pardons |url=https://mg.co.za/article/2009-04-14-court-asked-to-halt-presidential-pardons/ |access-date=2024-03-05 |website=The Mail & Guardian |language=en-ZA}}</ref> they argued that the President's exclusion of victims was inconsistent with [[Chapter Two of the Constitution of South Africa#Just administrative action|section 33]] of the Constitution, with the [[Promotion of Administrative Justice Act, 2000|Promotion of Administrative Justice Act 3 of 2000]] (PAJA), and with the [[common law]] requirement of [[procedural fairness]]. President Motlanthe opposed the application, and he was joined by seven convicted individuals, who were granted [[Intervention (law)|leave to intervene]].
On 29 April 2009, Judge [[Willie Seriti]] of the [[North Gauteng High Court]] ruled in favour of the applicants in granting an interim interdict which barred the President from granting any pardon under the special dispensation until the substantive challenge, regarding victim participation, had been resolved.<ref>{{Cite web |date=2009-05-08 |title=Pardon? |url=https://mg.co.za/article/2009-05-08-pardon/ |access-date=2024-03-05 |website=The Mail & Guardian |language=en-ZA}}</ref> Although this judgment did not, in principle, decide the substantive constitutional challenge, it expressed strong support for the applicants' arguments, holding that the victims of crime have a right to be heard prior to the award of presidential pardons, including pardons under the special dispensation. Per Seriti, this finding was supported by multiple legs of argument. For one thing, the exercise of the power to award a presidential pardon constitutes administrative action under PAJA and therefore is subject to PAJA's statutory requirements for procedural fairness; for another, it would be arbitrary to exclude victims from pardon proceedings when they are routinely included in [[parole]] proceedings.
The seven intervening convicts, supported by the President and the [[Minister of Justice and Constitutional Development]], sought leave to appeal the High Court's judgment directly in the [[Constitutional Court of South Africa]]. In addition, one of the convicts, Ryan Albutt, an Afrikaner Weerstandsbeweging member,<ref>{{Cite web |date=2020-08-20 |title=Victims must have a say in pardons (Albutt) |url=https://ourconstitution.wethepeoplesa.org/victims-must-have-a-say-in-pardons/ |access-date=2024-03-05 |website=Our Constitution |language=en-US}}</ref> filed an application for direct access to the Constitutional Court, seeking to challenge the constitutionality of PAJA; that application was conditional on the Constitutional Court finding that PAJA supported the non-governmental organisations' case. The non-governmental organisations opposed both applications, which were heard by the Constitutional Court on 10 November 2009.<ref>{{Cite web |date=11 November 2009 |title='Pardon is no parole' |url=https://www.sowetanlive.co.za/news/2009-11-11-pardon-is-no-parole/ |access-date=2024-03-05 |website=Sowetan |language=en-ZA}}</ref>
== Judgment ==
The Constitutional Court handed down judgment on 23 February 2010, with Chief Justice [[Sandile Ngcobo]] writing on behalf of a unanimous court.<ref>{{Cite web |date=2010-02-23 |title=Constitutional Court upholds pardons decision |url=https://mg.co.za/article/2010-02-23-constitutional-court-upholds-pardons-decision/ |access-date=2024-03-05 |website=The Mail & Guardian |language=en-ZA}}</ref> The court granted the convicts leave to appeal but dismissed the appeal, upholding the High Court's interim order. Although the High Court's order was upheld, the Constitutional Court's reasoning differed substantially with respect to the right of victims to be heard before a pardon is granted.
=== Rationality review ===
As Ngcobo pointed out, the Constitutional Court had recently affirmed in ''Minister for Justice and Constitutional Development v Chonco'' that the applicants for presidential pardons had the right to have their applications considered in accordance with the principle of legality and principle of rationality.<ref>''Minister for Justice and Constitutional Development v Chonco and Others'' {{Cite SAFLII|year=2009|num=25|court=ZACC}}.</ref> The court therefore tested the President's decision according to a rationality test, under which, "the President’s decision to undertake the special dispensation process, without affording victims the opportunity to be heard, must be rationally related to the achievement of the objectives of the process".
Ngcobo surmised, based on Mbeki's public statements, that the purpose of the special dispensation was – akin to the Truth and Reconciliation Commission – the promotion of [[national unity]] and national reconciliation. Yet "the participation of victims" would be crucial to the achievement of these objectives. Likewise, the special dispensation was explicitly intended to grant pardons to the perpetrators of politically motivated offences, and the participation of victim would be crucial to establishing "the truth about the motive with which a crime was committed". Thus, "the context-specific features" of the special dispensation entail that victims "are entitled to be given the opportunity to be heard before the President makes a decision to grant pardon under the special dispensation". The President's decision to exclude victims was therefore irrational and inconsistent with the Constitution.
However, the court emphasised that its decision arose from "context-specific features" and special objectives of the special dispensation under dispute. Unlike the High Court, therefore, it did not make a determination on the question of whether the President has a broader duty to consult victims before considering any application for pardon.
=== Procedural fairness ===
A second challenge to the President's conduct arose not from the rationality principle but from the principle of procedural fairness. The non-governmental organisations' argued that procedural fairness itself implied a duty to consult the victims, procedural fairness in turn being grounded in three sources of law: the common law, section 33 of the Constitution (requiring just administrative action), and PAJA (applying only to administrative action as defined in PAJA). Counsel for the state and convicts argued that the President's power to grant pardon was an [[Executive branch|executive]] power, not an administrative power, and therefore was not subject to the requirement of procedural fairness.
Because the court grounded its finding of unconstitutionality in the principle of rationality, applied to the "context-specific" features of the case, it was not required to consider whether the power to pardon constitutes administrative action, nor whether a duty to consult arose separately from the principle of procedural fairness. Indeed, Ngcobo wrote that the High Court had erred in posing and answering those questions, which should instead be left "open". However, Ngcobo noted ''[[Obiter dictum|obiter]]'' that the non-governmental organisations' argument from common law was "attractive", citing in that connection his own dissent in ''[[Masetlha v President]]''. Because the court did not reach PAJA, it also did not make any order concerning Albutt's application for direct access to challenge PAJA.
== Concurring judgment ==
In a brief concurring judgment, Justice [[Johan Froneman]] wrote separately to outline further reasons for his agreement with Ngcobo's approach. His opinion was joined by Justices [[Edwin Cameron]] and [[Johann van der Westhuizen]]; all three had also joined in Ngcobo's judgment.
== Significance ==
''Albutt'' is frequently discussed alongside the Constitutional Court's judgment in ''Masetlha v President'', which was handed down in November 2007 and from which Ngcobo had dissented. The ''Masetlha'' court had held that, per Deputy Chief Justice [[Dikgang Moseneke]], "It would not be appropriate to constrain executive power to requirements of procedural fairness, which is a cardinal feature in reviewing administrative action."<ref>''[[Masetlha v President of the Republic of South Africa and Another]]'' {{Cite SAFLII|year=2007|num=20|court=ZACC}} at 77.</ref> [[Clive Plasket]], a critic of the ''Masetlha'' judgment, welcomed ''Albutt'' as "an attempt... to undo some of the damage that had been caused by ''Masetlha'' (short of overruling it)",<ref name=":2">{{Cite journal |last=Plasket |first=Clive |date=2020 |title=Procedural fairness, executive decision-making and the rule of law |url=https://www.jutajournals.co.za/procedural-fairness-executive-decision-making-and-the-rule-of-law/ |journal=South African Law Journal |language=en-US |volume=137 |issue=4 |pages=698–712}}</ref> while other commentators were concerned that it was "at loggerheads" with the decision in ''Masetlha''.<ref>{{Cite journal |last=Murcott |first=Melanie |date=2012 |title=Procedural Fairness as a Component of Legality: Is a Reconciliation between Albutt and Masetlha Possible? |url=https://www.ssrn.com/abstract=2645322 |journal=SSRN Electronic Journal |language=en |doi=10.2139/ssrn.2645322 |issn=1556-5068 |hdl-access=free |hdl=2263/31765}}</ref>
The Constitutional Court later addressed this tension directly in ''Law Society of South Africa v President'', in which Ngcobo's successor, Chief Justice [[Mogoeng Mogoeng]], explained that ''Albutt'' concerned the duty to consult not as an element of procedural fairness (as in ''Masetlha'') but as an element of rationality.<ref>''Law Society of South Africa and Others v President of the Republic of South Africa and Others'' {{Cite SAFLII|year=2018|num=51|court=ZACC}} at 64.</ref> ''Albutt'' came to be regarded as cornerstones of the doctrine of so-called procedural rationality, which concerns the procedure by which decisions are made and which substantially expands the test for rationality.<ref>{{Cite journal |last=Ally |first=Nurina |last2=Murcott |first2=Melanie J. |date=2023 |title=Beyond labels: Executive action and the duty to consult |url=http://www.scielo.org.za/scielo.php?script=sci_abstract&pid=S2077-49072023000100004&lng=en&nrm=iso&tlng=en |journal=Law, Democracy and Development |volume=27 |pages=93–122 |doi=10.17159/2077-4907/2023/ldd.v27.4 |issn=2077-4907|doi-access=free }}</ref><ref>{{Cite journal |last=Kohn |first=Lauren |date=2013 |title=The burgeoning constitutional requirement of rationality and the separation of powers: has rationality review gone too far? |url=https://journals.co.za/doi/abs/10.10520/EJC148430 |journal=South African Law Journal |volume=130 |issue=4}}</ref> That doctrine was further developed in the ''[[Simelane (judgment)|Simelane]]'' judgment, which cited ''Albutt'' as authority for the proposition that "both the process by which the decision is made and the decision itself must be rational".<ref>''[[Democratic Alliance v President of the Republic of South Africa and Others]]'' {{Cite SAFLII|num=24|year=2012|court=ZACC}} at 34.</ref>
== See also ==
* ''[[President v Hugo]]'' – early decision on presidential pardons
== References ==
{{Reflist|30em}}{{DEFAULTSORT:Albutt v Centre for the Study of Violence and Reconciliation}}
[[Category:Constitutional Court of South Africa cases]]
[[Category:South African administrative law]]
[[Category:2010 in South African law]]
[[Category:2010 in case law]]