PROMOTING ADMINISTRATIVE JUSTICE FOR PRESIDENTIAL PARDONS IN SOUTH AFRICA

Abstract

The President’s power to grant pardons, remit fines, penalties or forfeitures and the nature of the accountability for the exercise of such power remains unclear. The question of accountability relates to whether the President has a constitutional obligation to disclose the reasons for his decision. The nature of the power is broadly formulated and should undergo reform to enhance the attendant accountability. Over the years, there were debates on whether the granting of pardons constitutes administrative action in terms of the Promotion of Administrative Justice Act (PAJA). Because it is a power that potentially has an adverse effect on rights enshrined in the Bill of Rights, it is submitted that it should be construed in terms of PAJA. Similarly, the role of Parliament in exercising oversight over the process is unclear and inadequate. The article submits that the President should exercise the power together with the relevant Cabinet Minister, and subject to legislative endorsement.