Minister for Justice and Constitutional Development v Chonco and Others (CCT 42/09) [2009] ZACC 25; 2010 (1) SACR 325 (CC) ; 2010 (2) BCLR 140 (CC) ; 2010 (4) SA 82 (CC) (30 September 2009)

Minister for Justice and Constitutional Development v Chonco and Others (CCT 42/09) [2009] ZACC 25; 2010 (1) SACR 325 (CC) ; 2010 (2) BCLR 140 (CC) ; 2010 (4) SA 82 (CC) (30 September 2009)

The Constitutional Court held that the power to decide on applications for presidential pardon under section 84(2)(j) of the Constitution vests solely in the President as Head of State. The preliminary process of receiving and examining applications for pardon falls within the President's auxiliary powers and does...

Source-derived case information.

Citation
[2009] ZACC 25
Parties
Applicant: Minister for Justice and Constitutional Development; Respondent: Mqabukeni Chonco and 383 Others
Court
Constitutional Court
Jurisdiction
South Africa
Judgment Date
30 September 2009
Case Number
CCT 42/09
Procedural Posture
Leave to Appeal / Constitutional Court Appeal From Supreme Court of Appeal
Outcome
Appeal upheld. Application in the High Court dismissed. The Minister ordered to pay the costs of the appeal and the respondents' costs in the Constitutional Court.
Judges
Langa CJ, Moseneke DCJ, Cameron J, Mokgoro J, Ngcobo J, Nkabinde J, O'Regan J, Sachs J, Skweyiya J, Van der Westhuizen J
Legal Topics
Presidential Pardon, Separation of Powers, Constitutional Obligation, Administrative Action, Jurisdiction of Constitutional Court
Constitutional Law Civil Procedure Presidential Pardon Separation of Powers Constitutional Obligation Administrative Action Jurisdiction of Constitutional Court

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Summary, issues, holding and outcome

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Parties

Minister for Justice and Constitutional Development

Applicant

Mqabukeni Chonco and 383 Others

Respondent

Procedural Posture

Leave to Appeal / Constitutional Court Appeal From Supreme Court of Appeal

Legal Issues

  1. 1 Does the Minister for Justice and Constitutional Development have a constitutional obligation to process applications for presidential pardon under section 84(2)(j) of the Constitution?
  2. 2 Is the failure by the Minister to process such applications reviewable as administrative action under PAJA?
  3. 3 Does jurisdiction to determine whether the President has failed to fulfil a constitutional obligation lie exclusively with the Constitutional Court?

Ratio Decidendi

The Constitutional Court held that the power to decide on applications for presidential pardon under section 84(2)(j) of the Constitution vests solely in the President as Head of State. The preliminary process of receiving and examining applications for pardon falls within the President's auxiliary powers and does not constitute a national executive function under section 85(2)(e). The Minister does not incur a constitutional obligation to process such applications unless there is a written transfer of responsibility from the President, as required by the Constitution. The Minister's failure to act is not reviewable as administrative action under PAJA, as the relevant public power is the...

Court Disposition

Appeal upheld. Application in the High Court dismissed. The Minister ordered to pay the costs of the appeal and the respondents' costs in the Constitutional Court.

Orders

  • The application for leave to appeal is granted.
  • The appeal is upheld.