Constitutional court of south africa

[] On 27 June 1994, acting pursuant to his powers under section 82(1)(k) of the interim Constitution,² the President (first appellant) and the two Executive Deputy Presidents signed a document styled Presidential Act No. 17 (the “Presidential Act”), in terms of which special remission of sentences was granted to certain categories of prisoners.³ The category of direct relevance to these proceedings was “all mothers in prison on 10 May 1994, with minor children under the age of twelve (12) years”. It is common cause that the respondent would have qualified for remission, but for the fact that he was the father (and not the mother) of his son who was under the age of twelve years at the relevant date.
[] In the application before Magid J, the respondent in an amended notice of motion⁴ sought an order declaring the Presidential Act unconstitutional and directing the first appellant to correct it in accordance with the provisions of the interim Constitution. The respondent alleged that the Presidential Act was in violation of the provisions of section 8(1) and (2) of the interim Constitution in as much as it unfairly discriminated against him on the ground of sex or gender and indirectly against his son in terms of section 8(2) because his incarcerated parent was not a female.
[] The application was upheld, the court finding that the Presidential Act discriminated against the respondent and his son on the ground of gender. This finding in turn raised the presumption of unfairness in section 8(4) of the interim Constitution, which presumption was found not to have been rebutted by the appellants.⁵ The court ordered the first appellant to correct the Presidential Act in accordance with the provisions of the interim Constitution within six months from the date of its order.⁶ It is the appeal from this decision, (leave having been granted in terms of Constitutional Court Rule 18) that forms the subject matter of this judgment. At the request of this Court, Mr M Pillemer appeared on behalf of the respondent. We are indebted to him for his assistance.
[] This appeal requires us to consider the nature of the powers granted to the President by section 82(1)(k) of the interim Constitution.⁷ Section 82(1) contains powers which historically are the non-statutory or prerogative powers which have traditionally inhered in the English monarch.⁸ Similar powers have been and still are exercised (by heads of state or the executive in his or her name) in many countries, those in the Commonwealth and many outside it.⁹ In South Africa, prior to 1993, some, but not all, of those powers had been codified in earlier constitutions. Those that remained non-statutory were dealt with by reference to the exercise of the prerogative by the English monarch. The Republic of South Africa Constitution Act 32 of 1961 provided in section 7(4) that:
“The State President shall ... as head of the State have such powers and functions as were immediately prior to the commencement of this Act possessed by the Queen by way of prerogative.”
[] In the Republic of South Africa Constitution Act 110 of 1983, it was provided in section 6(4) that:
“The State President shall ... as head of the State have such powers and functions as were immediately before the commencement of this Act possessed by the State President by way of prerogative.”
The 1983 Constitution made specific mention of some of the powers now contained in section 82 of the interim Constitution. These included, inter alia, the power to confer honours, pardon and reprieve offenders, and to enter into and ratify international treaties.¹⁰
[] This process has now been completed in the interim Constitution. There is no express reference to prerogative powers and those powers of the President which originated from the royal prerogatives are to be found in section 82(1). This approach has also been followed in The Constitution of the Republic of South Africa, 1996.¹¹
[] Two conclusions can be drawn from the foregoing. First, the powers of the President which are contained in section 82(1) of the interim Constitution have their origin in the prerogative powers exercised under former constitutions by South African heads of state. Second, there are no powers derived from the royal prerogative which are conferred upon the President other than those enumerated in section 82(1).
[] It is in this context that we must consider the central submission of the respondent, namely, that the power of pardon or reprieve granted to the President in section 82(1)(k) is subject to the provisions of Chapter 3 of the interim Constitution and, in particular, the equality provisions contained in section 8. In order to consider this submission it is necessary first to determine whether, in the exercise of his or her section 82(1)(k) powers, the President is subject at all to the provisions of the interim Constitution.
[] The starting point is the supremacy clause in the interim Constitution. It is provided in section 4 that:
“(1) This Constitution shall be the supreme law of the Republic and any law or act inconsistent with its provisions shall, unless otherwise provided expressly or by necessary implication in this Constitution, be of no force and effect to the extent of the inconsistency.
(2) This Constitution shall bind all legislative, executive and judicial organs of state at all levels of government.”
In terms of section 75 of the interim Constitution:
“The executive authority of the Republic with regard to all matters falling within the legislative competence of Parliament shall vest in the President, who shall exercise and perform his or her powers and functions subject to and in accordance with this Constitution.”
And, section 76 provides simply that:
“The President shall be the Head of State.”
In section 81(1) and (2) the responsibilities of the President are set out as follows:
“(1) The President shall be responsible for the observance of the provisions of this Constitution by the executive and shall as head of state defend and uphold the Constitution as the supreme law of the land.
(2) The President shall with dignity provide executive leadership in the interest of national unity in accordance with this Constitution and the law of the Republic.”
There then follow the provisions of section 82(1) which, as stated earlier, provide for the President’s competence to perform powers which historically fell within the prerogative powers of the English monarch. These are powers which now flow directly from the interim Constitution itself. Unlike the other powers of the President, they do not derive their authority from, and they are not dependent upon, legislative enactment.
[] There are only three branches of government viz. legislative, executive and judicial. The powers of the President, other than those set out in section 82(1), are without question executive powers.¹² The question is whether those referred to in section 82(1) fall within a different category. In my opinion they do not. Whether the President is exercising constitutional powers as head of the executive (ie the Cabinet) or as head of state, he is acting as an executive organ of government. His powers are neither legislative nor judicial and there is no fourth branch of government.
[] Textual support for the view that the powers exercised by the President under section 82(1) are executive powers is to be found in the heading to and contents of section 83(1) and (2). It is there provided as follows:
“83. Confirmation of executive acts of President.-

(1) Decisions of the President taken in terms of section 82 shall be expressed in writing under his or her signature.

(2) Any instrument signed by the President in the exercise or performance of a power or function referred to in section 82(3) shall be countersigned by a Minister.”
For the purpose of elucidating a provision in a statute our courts have referred to the headings of sections in a statute.¹³ A similar position has been adopted in England¹⁴ and Canada.¹⁵ In the case of headings which are part of a constitution which was the product of negotiations conducted by the drafters thereof, and those headings are part of the constitution as drafted, there is at least as much to be said for their relevance as a tool of interpretation as there is in the case of ordinary legislation.¹⁶ It follows, in my opinion, that the heading of section 83 can be referred to as support for the conclusion that the powers of the President under section 82(1) are executive powers. The President, as an executive organ of state, by reason of the supremacy clause, is subject to the provisions of the interim Constitution.
[] As far as Chapter 3 of the interim Constitution is concerned, it is provided in section 7(1) that:
“This Chapter shall bind all legislative and executive organs of state at all levels of government.”
Originating as they do from an executive organ of state, acts of the President, under section 82(1), are subject to the provisions of Chapter 3 of the interim Constitution. As a result, the exercise by the President of his powers under section 82(1) may be subject to review by courts of appropriate jurisdiction in the same way as the exercise by him of other constitutional powers would be subject to review.¹⁷ This conclusion is consistent with the approach of this Court in the first Constitutional Certification judgment,¹⁸ where it was said that:
“The power of the South African Head of State to pardon was originally derived from royal prerogatives. It does not, however, follow that the power given in NT 84(2)(j) is identical in all respects to the ancient royal prerogatives. Regardless of the historical origins of the concept, the President derives this power not from antiquity but from the NT itself. It is that Constitution that proclaims its own supremacy. Should the exercise of the power in any particular instance be such as to undermine any provision of the NT, that conduct would be reviewable.” (footnote omitted)¹⁹
It is also mirrored in section 98(2)(a) and (b) of the interim Constitution which provides that the Constitutional Court has jurisdiction -
“over all matters relating to the interpretation, protection and enforcement of the provisions of [the] Constitution, including -

(a) any alleged violation or threatened violation of any fundamental right entrenched in Chapter 3; [and]

(b) any dispute over the constitutionality of any executive or administrative act or conduct . . . of any organ of state;

. . . .”
[] The powers of the President under section 82(1) are expressed in wide and unqualified terms. Unlike most other presidential powers they can be exercised without the concurrence of the Cabinet. The President, in terms of section 82(1)(k), is subject only to a requirement that there be prior consultation with the Executive Deputy Presidents before the power is exercised.²⁰ The President is not, however, bound to follow the views of the Executive Deputy Presidents. As long as consultation has taken place his discretion is unfettered, in the sense that it is not expressly limited by the interim Constitution.

[] In respect of most of the powers contained in section 82(1) it is not difficult to conceive of cases (extreme and unlikely as they may be) where some provision of the Bill of Rights might be contravened, and especially the equality provisions contained in section 8. One or another of the powers, for example, could be exercised, in a manner which excluded from consideration persons of a particular religion or ethnic group. As was stated by the Bavarian and Hessen Constitutional Courts,²¹ the fact that the arbitrary exercise of the power to pardon may be a rarity is no ground for denying constitutional review.
[] Thus far I have considered the issue before us with regard to the text of the interim Constitution. It is instructive also to have regard to developments in other relevant jurisdictions. Traditionally, the exercise of the prerogative powers of a monarch have not been subject to judicial scrutiny. However, over the past two or three decades there has been a movement, in certain circumstances, in favour of the recognition of such a review jurisdiction - and even in countries without a written constitution containing a bill of rights.
[] In Sachs v Donges NO, Schreiner JA anticipated those developments. He said the following:²²
“Although in describing the category of prerogative powers the word “discretionary” is sometimes used, this only means that the exercise of the powers is not restricted within the limits of any statute. It does not mean that the powers falling within the category form an almost mystical field in which the executive is free not only to do whatever it wills, but also to undo whatever it has done. There is no general rule that whatever has been done by the executive without statutory authority can be revoked by it at will. Each purported exercise of a prerogative power must be considered, when a case arises, on its own merits to see whether the power exists and whether the exercise is within the power; and this applies equally to the revocation of a previous act, done under a prerogative power.”²³
And, in Baxter²⁴ the following view is expressed:
“The traditional view now shows signs of change. As the courts have developed more fully the principles by which discretionary powers may be reviewed, some judges have begun to regard some prerogative powers as an historical anachronism, as powers which might as easily have originated from statute, and as powers to which the normal principles of review should be applied by analogy. If this approach is accepted - and since the scope of review will always be affected by the question of justiciability - it is possible that the prerogative will gradually lose all its significance in administrative law.” (footnote omitted).
[] In England, where the prerogative powers were historically beyond the reach of the courts, the exercise of some prerogative powers has been subjected to judicial review. In 1984, in Council of Civil Service Unions and Others v Minister for the Civil Service,²⁵ a majority of the Law Lords held unambiguously that a decision-making power derived from a common law and not a statutory source is not “for that reason only” immune from judicial review; and that is so in respect of prerogative powers.²⁶ What determines whether the exercise of such a power is subject to the power of review is not its source but its subject-matter. After recognising the power of review, Lord Roskill stated:
“But I do not think that that right of challenge can be unqualified. It must, I think, depend upon the subject matter of the prerogative power which is exercised. Many examples were given during the argument of prerogative powers which as at present advised I do not think could properly be made the subject of judicial review. Prerogative powers such as those relating to the making of treaties, the defence of the realm, the prerogative of mercy, the grant of honours, the dissolution of Parliament and the appointment of ministers as well as others are not, I think, susceptible to judicial review because their nature and subject matter are such as not to be amenable to the judicial process. The courts are not the place wherein to determine whether a treaty should be concluded or the armed forces disposed in a particular manner or Parliament dissolved on one date rather than another.”²⁷
Lord Scarman put it thus:
“[I]f the subject matter in respect of which prerogative power is exercised is justiciable, that is to say if it is a matter upon which the court can adjudicate, the exercise of the power is subject to review in accordance with the principles developed in respect of the review of the exercise of statutory power.”²⁸
In R v Home Secretary, ex p Bentley, Watkins LJ said the following:
“The C.C.S.U. [1985] A.C. 374 case made it clear that the powers of the court cannot be ousted merely by invoking the word “prerogative”. The question is simply whether the nature and subject matter of the decision is amenable to the judicial process. Are the courts qualified to deal with the matter or does the decision involve such questions of policy that they should not intrude because they are ill-equipped to do so? Looked at in this way there must be cases in which the exercise of the Royal Prerogative is reviewable, in our judgment. If, for example, it was clear that the Home Secretary had refused to pardon someone solely on the grounds of their sex, race or religion, the courts would be expected to interfere and, in our judgment, would be entitled to do so.
We conclude therefore that some aspects of the exercise of the Royal Prerogative are amenable to the judicial process. We do not think that it is necessary for us to say more than this in the instant case. It will be for other courts to decide on a case by case basis whether the matter in question is reviewable or not.
We do not think that we are precluded from reaching this conclusion by authority. Lord Roskill’s passing reference to the prerogative of mercy in the C.C.S.U. case was obiter.”²⁹
That the reviewability of the exercise of prerogative power depends on the subject-matter was restated by the Privy Council in Reckley v Minister of Public Safety and Immigration and Others NO (2), where Lord Goff of Chieveley said that the CCSU case
“. . . recognised that the exercise of a prerogative power was not ipso facto immune from judicial review; but it certainly did not go so far as to suggest that every exercise of such a power was amenable to that jurisdiction.”³⁰
[] On the strength of these authorities it is safe to conclude that, in contemporary English law, the exercise of a prerogative power may be reviewed if, and to the extent that, the subject-matter thereof is amenable to judicial process.
[] Other Commonwealth jurisdictions have adopted this English approach. In Burt v Governor-General, Cooke P said:
“The prerogative of mercy is a prerogative power in the strictest sense of that term, for it is peculiar to the Crown and its exercise directly affects the rights of persons. On the other hand it would be inconsistent with the contemporary approach to say that, merely because it is a pure and strict prerogative power, its exercise or non-exercise must be immune from curial challenge. There is nothing heterodox in asserting, as counsel for the appellant do, that the rule of law requires that challenge shall be permitted in so far as issues arise of a kind with which the Courts are competent to deal.”³¹
Burt’s case established the reviewability of the exercise of a prerogative power on ordinary common law grounds.³² Cooke P concluded, however, that cases such as that before him, in which a prisoner claimed he was entitled to a pardon on the grounds that he had been wrongly convicted, were subject to a fair practice in New Zealand and that the application for review should be dismissed. The approach of Cooke J in favour of reviewability of the executive power of pardon was statutorily confirmed in the New Zealand Bill of Rights Act, 1990, which controls the executive branch of government in all its actions.³³
[] In Australia the question was considered in Minister for Arts Heritage and Environment and Others v Peko-Wallsend Ltd and Others.³⁴ The issue was whether a decision of the Federal Cabinet in the exercise of a prerogative power could be reviewed by the courts. Bowen CJ said:
“In my opinion, subject to the exclusion of non-justiciable matters, the courts of this country should now accept responsibility for reviewing the decisions of Ministers or the Governor-General in Council notwithstanding the decision is carried out in pursuance of a power derived not from statute but from the common law or the prerogative. The decision of the House of Lords in the CCSU case, supra, provides persuasive authority for this . . .”³⁵
[] The Canadian Courts have required that prerogative powers be exercised in conformity with the Charter of Rights and other constitutional norms and also subject to administrative law norms.³⁶
[] What of non-Commonwealth countries? In Ireland the President is not answerable to the House of the Oireachtas (National Parliament) or to any court for the exercise of his or her powers and functions with regard to both formal and discretionary powers.³⁷ In State (Walshe) v Murphy Finlay P stated:
“The consequences of such a doctrine are alarming and appear to me to indicate its unsoundness as a proposition of constitutional law . . . . [It] would mean that the Executive would be in a position to act under the Constitution in respect of a number of matters contrary to the law and even contrary to the Constitution; and that, if such act required for its effectiveness the exercise of a function by the President, such illegal or unconstitutional conduct could not be reviewed by any court.”³⁸
[] The US Constitution provides that the President

“ . . . shall have the power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.”³⁹

This power of the President has been held by the Supreme Court to have as its origin the royal prerogative.⁴⁰ The nature of the power was considered by the Supreme Court as early as 1833 in United States v Wilson.⁴¹ Chief Justice Marshall, in an oft quoted passage, said:
“As this power had been exercised from time immemorial by the executive of that nation whose language is our language, and to whose judicial institutions ours bear a close resemblance; we adopt their principles respecting the operation and effect of a pardon, and look into their books for the rules prescribing the manner in which it is to be used by the person who would avail himself of it.

A pardon is an act of grace, proceeding from the power entrusted with the execution of the laws, which exempts the individual, on whom it is bestowed, from the punishment the law inflicts for a crime he has committed. It is the private, though official act of the executive magistrate . . .”⁴²

That definition of pardon as an act of grace was restated by the Supreme Court in 1915 in Burdick v United States.⁴³ However, in 1927, in Biddle v Perovich, Holmes J, speaking on behalf of a unanimous court, provided a more convincing basis for the exercise of the Presidential power than it being merely a private act of grace. He said:

“A pardon in our days is not a private act of grace from an individual happening to possess power. It is a part of the Constitutional scheme. When granted it is the determination of the ultimate authority that the public welfare will be better served by inflicting less than what the judgment fixed.”⁴⁴ (My emphasis)

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