TO: P Hendrikse (Chair: Standing Committee on Private Members' Legislative Proposals)
FROM: Dr P Maduna (Minister: Department of Justice & Constitutional Development)
10/12/2002 Dear Mr Hendrikse
REFERRAL OF PARDON INVESTIGATION PROCEDURE BILL FOR COMMENT
With reference to the previous correspondence between yourself and my Ministry, I would like to inform you that I have studied the Pardon Investigation Procedure Bill and would like to offer some general comment in respect thereof.
Pardoning of offenders historically fell within the prerogative powers of the English monarch. In South Africa the power of the President to pardon offenders flows directly from section 84(2)Q) of the Constitution and it is therefore regarded as a presidential prerogative. It is clear that such presidential prerogative does not derive its authority from, and it is not dependent upon, legislative enactment
Unlike the Interim Constitution, the Constitution places no obligation on the President to either' consult before he exercises his power of pardoning offenders or to exercise that power together with the other members of the Cabinet. However, a practice has developed by means of which the President, in particular cases, approaches the Cabinet member responsible for the administration of justice for advice or recommendations. In such instances that Cabinet member acts merely as an extension of the office of the President. In many other cases the President exercises his prerogative without approaching any Cabinet member for advice or recommendations.
The Office of the President and my Department have developed guidelines which are followed when considering applications for pardon before advising the President or making recommendations to him or her in respect of such applications. I am of the opinion that it is unnecessary to incorporate those guidelines in legislation.
Should the proposed Bill be enacted, it will only apply in cases where the President approaches the Cabinet member responsible for the administration of justice for advice cr recommendations. That Cabinet member must, in terms of the Bill, follow a very cumbersome procedure before he or she could advise the President or make any recommendation to him or her. The effect thereof could be that the President may in future decide more often, or even in every case, to exercise his power to pardon offenders without approaching the Cabinet member concerned for advice or recommendations. This could result in financial implications for the Office of the President as the establishment of that Office will have to be expanded in order to deal with the increased number of applications for pardon which have not been referred for advice or recommendations.
As pointed out in the previous paragraph, it will be possible for the President to circumvent the provisions of the Bill, if enacted, thereby making the Bill meaningless. In this regard I would like to draw your attention to one of the presumptions of the interpretation of statutes, namely that the legislature does not intend to make any provision which is futile, nugatory, unnecessary or meaningless.
A question which come to mind is whether a decision by the President to grant or refuse an application or pardon will be invalid or subject to review by a court of law where the President, in making that decision, has acted on the advice or recommendations of the Cabinet member responsible for the administration of justice and that Cabinet member, in providing that advice or making that recommendation, has failed to comply with the provisions of th6 Bill.
Lastly, I want to thank you for giving me the opportunity to express my views on the Bill,