Publication: Cape Argus Issued: Date: 2009-11-15 Reporter:

Judges look into issue of special pardons

 

Publication 

Cape Argus

Date

2009-11-15

Web Link

www.capeargus.co.za


 

Justice Sisi Khampepe was the first to speak among the new judges who took up their seats at the reconstituted Constitutional Court this week.

She asked Advocate Vincent Maleka, representing President Jacob Zuma, how the president would form an independent opinion on special pardons for so-called political prisoners.

The matter was between white rightwinger Ryan Albutt - imprisoned for 10 years for culpable homicide and public violence against striking workers and other black people in Kuruman in 1995 - and others, including the president, the Minister of Justice, and a coalition of civil society groups.

The question was whether the president, in making a decision as to whether to free Albutt under a special dispensation process initiated by former president Thabo Mbeki in 2008, should take into account his victims' views.

Khampepe and her fellow judges would have to consider the objectives of a speech Mbeki made to Parliament in late 2007, in which he stated such a special pardon process should invoke the spirit of the Truth and Reconciliation Committee, surely including its "bedrock" concept - that of victim participation.

They would therefore have to carefully examine whether victims had the right to be heard before a special pardon was granted, and the nature of the president's executive powers in respect of these pardons.

Interrogating South Africa's attempts at reconciliation is a particularly strong case for the new judges to begin their deliberations for the first time since they were sworn in.

And if the new Chief Justice Sandile Ngcobo and the new appointments - Eastern Cape Judge Johan Froneman, North West Judge President Mogoeng wa Mogoeng and Johannesburg High Court Judge Khampepe - hoped getting down to work may take the edge off the controversy that had surrounded Zuma's appointments to the Concourt, they must have been satisfied.

There was barely any comment.

Yet the judges are indeed regarded as the most significant appointments since the court's establishment in 1994.

Just a few weeks ago, the Judicial Service Commission's interviews for vacancies were making national headlines. The JSC needed to replace outgoing Chief Justice Pius Langa and the judges described as "titans" by the media: Yvonne Mokgoro, Kate O'Regan and Albie Sachs.

Those three judges' terms had come to an end.

By the time Zuma announced Ngcobo as the new chief justice in mid-October, his decisions had been presupposed and analysed in advance, with one name at the centre of the fray: that of Cape Judge President John Hlophe.

At the same time, there was an increasingly critical view of the JSC itself, as 15 of its 23 members are regarded as political appointments.

Commentators offered their opinions on Hlophe, who had become a political figure accused of dividing the judiciary, alleged to have tried to influence Concourt judges Bess Nkabinde and Chris Jafta and vilified for acting against the judges at a time when judicial independence was already being questioned.

This week, speaking at a joint sitting of Parliament to bid farewell to Langa, who has retired, Ngcobo warned against too much tension between the judiciary and other arms of the state, especially the executive.

With acknowledgements to Cape Argus.