The possibility of presidential pardons being granted for Schabir Shaik and Eugene de Kock is taken up in the Serjeant at the Bar column on the Mail & Guardian Online site, with specific reference to the recent judgment of the Constitutional Court in Ryan Albutt v Centre for the Study of Violence and Reconciliation and Others.
The writer points out that the Albutt case dealt with the special dispensation set up by former President Thabo Mbeki to deal with cases of amnesty applications of those who had not participated in the TRC process. Because this initiative was designed to complete the 'unfinished business' of the TRC, Chief Justice Sandile Ngcobo held 'the principles and the spirit that inspired and underpinned the TRC amnesty process must inform the special dispensation process whose twin objectives are nation-building and national reconciliation. As with the TRC process, the participation of victims and their dependants is fundamental to the special dispensation process.' The court thus held that before the President can grant a pardon, he was obliged to hear both the applicant for pardon and the victim. The writer notes it was also contended that 'a presidential pardon is a form of administrative action that would be reviewable under the Promotion of Administrative Justice Act and, even if not, the Act still applies to pardons. The court, however, set out the difficulties inherent in a finding that this Act applies to pardons.
Full Mail & Guardian Online report
Judgment: Ryan Albutt v Centre for the Study of Violence and Reconciliation and Others