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CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 11/96
THE PRESIDENT OF THE REPUBLIC OF
SOUTH AFRICA First Appellant
THE MINISTER OF CORRECTIONAL SERVICES Second
Appellant
versus
JOHN PHILLIP PETER HUGO
Respondent
Heard on: 12 November 1996
Decided on: 18 April
1997
JUDGMENT
GOLDSTONE J:
[1] This matter comes before us on appeal against a judgment
of Magid J in the Durban and Coast Local Division of the Supreme
Court.[1] The applicant in the court
below (now respondent) is a prisoner who, on 6 December, 1991, commenced serving
an effective sentence
of fifteen and a half years. Some nine years prior to his
incarceration, the respondent married and a child was born of that marriage
on
11 December 1982. The respondent’s wife died in 1987.
[2] 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.
[3] In the application before
Magid J, the respondent in an amended notice of
motion[4] 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.
[4] 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.
[5] 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.”
[6] 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]
[7] 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]
[8] 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).
[9] 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.
[10] 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.
[11] 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.
[12] 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 England[14] 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.
[13] 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;
. . .
.”
[14] 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.
[15] 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.
[16] 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.
[17] 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 Baxter[24] 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).
[18] 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]
[19] 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.
[20] 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]
[21] 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]
[22] 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]
[23] 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]
[24] 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)
In more recent judgments, the United States
Supreme Court has reinforced the notion that the President’s power of
pardon and
reprieve, although derived from the Constitution, must be interpreted
with regard to its English heritage. In Schick v
Reed,[45] Burger CJ
said:
“A fair reading of the history of the English pardoning power, from which our Art. II, 2, cl. 1, derives, of the language of that clause itself, and of the unbroken practice since 1790 compels the conclusion that the power flows from the Constitution alone, not from any legislative enactments, and that it cannot be modified, abridged, or diminished by the Congress. Additionally, considerations of public policy and humanitarian impulses support an interpretation of that power so as to permit the attachment of any condition which does not otherwise offend the Constitution.”[46]
On
that approach, in effect, the Supreme Court has adopted a somewhat deferential
approach to the exercise by the President of the
power of pardon and reprieve.
However, notwithstanding that deference, the United States courts have tested
that power in relation
to the nature of conditions attached to a
pardon,[47] and in relation to the
extent to which the exercise of the power affects the vested rights of third
parties.[48]
[25] The German
courts have also approached the power of pardon and reprieve as a prerogative
power originating at the commencement
of the German monarchy and taken over into
the Weimar Constitution. Whether that power can be reviewed under the present
constitution
by the Federal Constitutional Court was an issue which led to one
of the few tied decisions of that court. In BVerfGE 25, 352 (1969)
four of the
justices were of the opinion that the Basic Law (Comprehensive Judicial Review
of all Acts of Public Authority) did not
apply to acts of mercy. They relied on
the historical origin of the power of mercy which had always been regarded as an
institution
outside the legal order (and even contradictory of it). They held,
too, that it constitutes an exception to the separation of powers
between the
executive and the judiciary. Its exercise, they concluded, cannot be subject to
judicial review. The other four justices
held that the historical tradition
could not live within the framework of the Basic Law and that the arbitrary
exercise of public
power was not exempt from the basic requirements of the
constitution.
[26] In Israel, which has a non-executive President, in a
judgment which antedated the CCSU case, the following was stated by
Berinson J:
“The President is a creature of statute and his powers are defined by law. Like everyone else in this country, he enjoys no rights or privileges which are not accorded to him by the laws of the State and every official act of his which exceeds the limits of the law is null and void.”[49]
[27] The
foregoing discussion indicates that there has been a distinct movement in modern
constitutional states, (and, I include,
for this purpose, England) in favour of
recognising at least some power of review of what are or were prerogative powers
of the head
of state.
[28] The approach of the English courts whereby the
jurisdiction of the courts to review the exercise of prerogative powers depends
upon the subject-matter of the power is one that is not open to us. The interim
Constitution obliges us to test impugned action
by any organ of state against
the discipline of the interim Constitution and, in particular, the Bill of
Rights. That is a fundamental
incidence of the constitutional state which is
envisaged in the Preamble to the interim Constitution, namely:
“... a new order in which all South Africans will be entitled to a common South African citizenship in a sovereign and democratic constitutional state in which there is equality between men and women and people of all races so that all citizens shall be able to enjoy and exercise their fundamental rights and freedoms;...”
In my view, it would be contrary to that
promise if the exercise of presidential power is above the interim Constitution
and is not
subject to the discipline of the Bill of Rights. However, it may
well be that, because of the nature of a section 82(1) power or
the manner in
which is it is exercised, the provisions of the interim Constitution, and, in
particular, the Bill of Rights, provide
no ground for an effective review of a
presidential exercise of such a power. The result, in a particular case, may be
the same
as that in England, but the manner in which that result is reached in
terms of the interim Constitution is a different one. On the
English approach
the courts, in certain cases, depending on the subject-matter of the prerogative
power exercised, would be deprived
of jurisdiction. Under the interim
Constitution the jurisdiction would be there in all cases in which the
presidential powers under
section 82(1) are exercised.
[29] The way is
now open to consider the review in the instant case, that is the exercise by the
President of his power of pardon
and reprieve of prisoners under section
82(1)(k) of the interim Constitution. I would emphasize that we are not
required to consider
the question of the reviewability of other powers which may
be exercised by the President under section 82(1). In cases where the
President
pardons or reprieves a single prisoner it is difficult, (save in an unlikely
situation where a course of conduct gives
rise to an inference of
unconstitutional conduct), to conceive of a case where a constitutional attack
could be mounted against such
an exercise of the presidential power. Even the
provisions of section 8 of the interim Constitution - the equality clause -
would
have only limited application. No prisoner has the right to be pardoned,
to be reprieved or to have a sentence
remitted.[50] The interim
Constitution places such matters within the power of the President. This does
not mean that if a president were to
abuse this power vested in him or her under
section 82(1)(k) a court would be powerless, for it is implicit in the interim
Constitution
that the President will exercise that power in good faith. If, for
instance, a president were to abuse his or her powers by acting
in bad faith I
can see no reason why a court should not intervene to correct such action and to
declare it to be unconstitutional.
For example, a decision to grant a pardon in
consideration for a bribe, could no doubt be set aside by a court. So, too, if
a president
were to misconstrue his or her powers I can see no objection to a
court correcting such an error, though it could not exercise the
discretion
itself. This is what happened in R v Home Secretary, ex p
Bentley[51] but even then the
court declined to issue a mandamus or a declaration. It simply invited the Home
Secretary to consider the case
again in the light of the decision that he had
misconstrued his powers. As it was put by Wilson J in Operation Dismantle
Inc. v The Queen:
“[T]he courts should not be too eager to relinquish their judicial review function simply because they are called upon to exercise it in relation to weighty matters of state. Equally, however, it is important to realize that judicial review is not the same thing as substitution of the court’s opinion on the merits for the opinion of the person or body to whom a discretionary decision-making power has been committed. The first step is to determine who as a constitutional matter has the decision-making power; the second is to determine the scope (if any) of judicial review of the exercise of that power.”[52]
In
that case, the Canadian Supreme Court had been requested to review and set aside
a decision by the Government to allow the testing
of United States cruise
missiles in Canada. Wilson J concluded that:
“[I]f we are to look at the Constitution for the answer to the question whether it is appropriate for the courts to “second guess” the executive on matters of defence, we would conclude that it is not appropriate. However, if what we are being asked to do is to decide whether any particular act of the executive violates the rights of the citizens, then it is not only appropriate that we answer the question; it is our obligation under the Charter to do so.”[53]
[30] In
the present case we are asked to decide whether rights of male prisoners have
been violated by the manner in which the President
exercised his power to pardon
or reprieve prisoners in the impugned part of the Presidential Act. Here the
President did not exercise
his power of pardon or reprieve in a single case. He
exercised it “wholesale” as it were - in general terms. That is
the
only way in which such a power can be exercised in a case such as the instant
one, where the head of state wishes to confer a
benefit upon groups of prisoners
to mark an important event in the life of the nation. The relevant date chosen
in the Presidential
Act was 10 May 1994, the date on which the President was
inaugurated. For the first time in its history, South Africa had a head
of
state and a head of the executive chosen as the result of a democratic
constitutional process, and representing the whole nation.
[31] Where the
power of pardon or reprieve is used in general terms and there is an
“amnesty” accorded to a category or
categories of prisoners,
discrimination is inherent. The line has to be drawn somewhere, and there will
always be people on one
side of the line who do not benefit and whose positions
are not significantly different to those of persons on the other side of
the
line who do benefit. For instance there may be no meaningful difference between
prisoners whose birthday was shortly before
the cut off date identified by the
President, and who were eighteen when the decision took effect, and those whose
birthday was shortly
after the cut off date and were under eighteen at the
effective date. Indeed, there might well have been prisoners in the first
category who, if assessed individually, might have been considered to be more
deserving of a remission of sentence than persons in
the latter
category.
[32] The respondent argued that the Presidential Act was in
conflict with section 8 of the interim Constitution in that by releasing
all
mothers whose children were under the age of twelve, it discriminated against
fathers of children of a similar age. Section
8 of the interim Constitution
provides as follows:
“(1) Every person shall have the right to equality before the law and to equal protection of the law.
(2) No person shall be unfairly discriminated against, directly or indirectly, and, without derogating from the generality of this provision, on one or more of the following grounds in particular: race, gender, sex, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture or language.
(3) (a) This section shall not preclude measures designed to achieve the adequate protection and advancement of persons or groups or categories of persons disadvantaged by unfair discrimination, in order to enable their full and equal enjoyment of all rights and freedoms.
(b) . . .
(4) Prima facie proof of discrimination on any of the grounds specified in subsection (2) shall be presumed to be sufficient proof of unfair discrimination as contemplated in that subsection, until the contrary is established.”
[33] The respondent argues that in
releasing mothers of small children but not fathers, the President discriminated
on the grounds
of sex. The advantage that was afforded mothers was not afforded
to fathers of small children and that failure is sufficient to
establish
discrimination within the context of section 8(2) of the interim Constitution.
The Presidential Act, in fact, discriminates
on a combined basis, sex coupled
with parenthood of children below the age of twelve. Only women who are parents
of such children
were released: women without children were not. In Brink v
Kitshoff NO[54] this Court held
that it is sufficient if the discrimination is substantially based on one of the
listed grounds in section 8(2).
Accordingly, it is clear that the Presidential
Act prima facie discriminates on one of the grounds listed in section 8(2). As
such,
section 8(4) requires us to presume that the discrimination is unfair,
until the contrary is proved.
[34] The appellants rely on an affidavit of
the President to which is attached a supporting affidavit of Ms Helen Starke,
the National
Director of the South African National Council for Child and Family
Welfare. Those affidavits were filed in a similar application
which came before
the Transvaal Provincial Division of the Supreme Court in Kruger and Another
v Minister of Correctional Services and
Others.[55] In the present
proceedings, the earlier affidavit of the President was attached to the
affidavit of Colonel Du Plessis, who represented
both appellants in the present
matter. In error, the supporting affidavit of Ms Starke was omitted. Without
any admission as to
its admissibility, the appellant consented to the inclusion
in the appeal record of the affidavit of Ms Starke.
[35] In the court a
quo, the respondent submitted that the affidavit of the President, together with
its attachments, constituted
hearsay evidence and was inadmissible. Magid J
found for the appellant on the basis that the affidavit was admissible and
therefore
did not have to decide the point. In this Court, counsel for the
respondent wisely did not press the argument contained in his heads
of argument
objecting to the admissibility of the President’s affidavit. It appears
as part of the record of proceedings against
the President in the Transvaal
Provincial Division and is referred to and incorporated in his affidavit by an
official duly authorised
to represent the President in these proceedings. There
is no question that the affidavit filed of record is that of the President
and
that it is the affidavit of Ms Starke that is now part of it. In my opinion
their contents are properly before us and do not
constitute hearsay evidence.
Hence, it is not necessary to consider the alternative argument advanced by
counsel for the appellants
that, even if hearsay, the affidavit is admissible by
reason of the provisions of section 3(1)(c) of the Law of Evidence Amendment
Act.[56]
[36] In his
affidavit, the President stated that in regard to the special remission of all
mothers of minor children, he
“was motivated predominantly by a concern for children who had been deprived of the nurturing and care which their mothers would ordinarily have provided. Having spent many years in prison myself, I am well aware of the hardship which flows from incarceration. I am also well aware that imprisonment inevitably has harsh consequences for the family of the prisoner.
7 Account was taken of the special role I believe that mothers play in the care and nurturing of younger children. In this regard I refer to the affidavit of HELEN STARKE . . . respectfully draw attention to the fact that the well-being of young children has been of particular concern to me and was an important factor in identifying two of the three categories in the Presidential Act.
. . . .
9 I have had an on-going concern about the general plight of young children in South Africa. There have been many occasions upon which I have expressed this concern publicly.”
In her affidavit, Ms Starke stated
in relation to the special remission of mothers of minor children:
“4 In my opinion, the identification of this special category for remission of sentence is rationally and reasonably explicable as being in the best interests of the children concerned. It is generally accepted that children bond with their mothers at a very early age and that mothers are the primary nurturers and care givers of young children.
. . .
5 Although it could be argued that fathers play a more significant role in the lives of older children, the primary bonding with the mother and the role of mothers as the primary nurturers and care givers extends well into childhood.
6 The reasons for this are partly historical and the role of the socialisation of women who are socialised to fulfil the role of primary nurturers and care givers of children, especially pre-adolescent children and are perceived by society as such (sic).
. . . .
8 In my experience, there are only a minority of fathers who are actively involved in nurturing and caring for their children, particularly their pre-adolescent children. There are, of course, exceptions to this generalisation, but the de facto situation in South Africa today is that mothers are the major custodians and the primary nurturers and care givers of our nation’s children.”
[37] The reason given by
the President for the special remission of sentence of mothers with small
children is that it will serve
the interests of children. To support this, he
relies upon the evidence of Ms Starke that mothers are, generally speaking,
primarily
responsible for the care of small children in our society. Although
no statistical or survey evidence was produced to establish
this fact, I see no
reason to doubt the assertion that mothers, as a matter of fact, bear more
responsibilities for child-rearing
in our society than do fathers. This
statement, of course, is a generalisation. There will, doubtless, be particular
instances
where fathers bear more responsibilities than mothers for the care of
children. In addition, there will also be many cases where
a natural mother is
not the primary care giver, but some other woman fulfils that role, whether she
be the grandmother, stepmother,
sister, or aunt of the child concerned.
However, although it may generally be true that mothers bear an unequal share of
the burden
of child rearing in our society as compared to the burden borne by
fathers, it cannot be said that it will ordinarily be fair to
discriminate between women and men on that basis.
[38] For all that it is
a privilege and the source of enormous human satisfaction and pleasure, there
can be no doubt that the task
of rearing children is a burdensome one. It
requires time, money and emotional energy. For women without skills or
financial resources,
its challenges are particularly acute. For many South
African women, the difficulties of being responsible for the social and economic
burdens of child rearing, in circumstances where they have few skills and scant
financial resources are immense.[57]
The failure by fathers to shoulder their share of the financial and social
burden of child rearing is a primary cause of this
hardship.[58] The result of being
responsible for children makes it more difficult for women to compete in the
labour market and is one of the
causes of the deep inequalities experienced by
women in employment.[59] The
generalisation upon which the President relied is therefore a fact which is one
of the root causes of women’s inequality
in our society. That parenting
may have emotional and personal rewards for women should not blind us to the
tremendous burden it
imposes at the same time. It is unlikely that we will
achieve a more egalitarian society until responsibilities for child rearing
are
more equally shared.
[39] The fact, therefore, that the generalisation
upon which the appellants rely is true, does not answer the question of whether
the discrimination concerned is fair. Indeed, it will often be unfair for
discrimination to be based on that particular generalisation.
Women’s
responsibilities in the home for housekeeping and child rearing have
historically been given as reasons for excluding
them from other spheres of
life. In a case note concerning Incorporated Law Society v
Wookey,[60] which denied women
the right to be admitted as attorneys, a commentator wrote:
“A revolt against nature is involved in any proposal to allow women to enter into the legal profession. This idea is incompatible with the ideas and duties of Motherhood.”[61]
To
use the generalisation that women bear a greater proportion of the burdens of
child rearing for justifying treatment that deprives
women of benefits or
advantages or imposes disadvantages upon them would clearly, therefore, be
unfair.
[40] That, however, has not happened in this case. The President
has afforded an opportunity to mothers, on the basis of the generalisation,
that
he has not afforded to fathers. In my view, the fact that the individuals who
were discriminated against by a particular action,
such as the one under
consideration, were not individuals who belonged to a class who had historically
been disadvantaged does not
necessarily mean that the discrimination is
fair.
[41] The prohibition on unfair discrimination in the interim
Constitution seeks not only to avoid discrimination against people who
are
members of disadvantaged groups. It seeks more than that. At the heart of the
prohibition of unfair discrimination lies a recognition
that the purpose of our
new constitutional and democratic order is the establishment of a society in
which all human beings will
be accorded equal dignity and respect regardless of
their membership of particular groups. The achievement of such a society in the
context of our deeply inegalitarian past will not be easy, but that that is the
goal of the Constitution should not be forgotten
or overlooked. In Egan v
Canada[62]
L’Heureux-Dubϑ J analysed the purpose of section 15 of the Canadian
Charter (which entrenches the right to equality) as
follows:
“This court has recognized that inherent human dignity is at the heart of individual rights in a free and democratic society: Big M Drug Mart Ltd [(1985) 13 CRR 64] at p.97 . . . (per Dickson J. (as he then was)). More than any other right in the Charter, s. 15 gives effect to this notion. . . . Equality, as that concept is enshrined as a fundamental human right within s. 15 of the Charter means nothing if it does not represent a commitment to recognizing each person’s equal worth as a human being, regardless of individual differences. Equality means that our society cannot tolerate legislative distinctions that treat certain people as second-class citizens, that demean them, that treat them as less capable for no good reason, or that otherwise offend fundamental human dignity.”
(See also the judgment of McLachlin J in Miron v Trudel (1995) 29 CRR (2d) 189 at 205.)
It is not enough for the appellants to say
that the impact of the discrimination in the case under consideration affected
members
of a group that were not historically disadvantaged. They must still
show in the context of this particular case that the impact
of the
discrimination on the people who were discriminated against was not unfair. In
section 8(3), the interim Constitution contains
an express recognition that
there is a need for measures to seek to alleviate the disadvantage which is the
product of past discrimination.
We need, therefore, to develop a concept of
unfair discrimination which recognises that although a society which affords
each human
being equal treatment on the basis of equal worth and freedom is our
goal, we cannot achieve that goal by insisting upon identical
treatment in all
circumstances before that goal is achieved. Each case, therefore, will require
a careful and thorough understanding
of the impact of the discriminatory action
upon the particular people concerned to determine whether its overall impact is
one which
furthers the constitutional goal of equality or not. A classification
which is unfair in one context may not necessarily be unfair
in a different
context.[63]
[42] According
to the affidavits filed, the President intended by the special remission of the
prison sentences of mothers to further
the best interests of children. There is
no doubt of his good faith. However, the fact that the President, in good
faith, did not
intend to discriminate unfairly and had in mind the benefit of
children is not sufficient, to establish that the impact of the discrimination
upon fathers was not unfair.
[43] To determine whether that impact was
unfair it is necessary to look not only at the group who has been disadvantaged
but at the
nature of the power in terms of which the discrimination was effected
and, also at the nature of the interests which have been affected
by the
discrimination.
[44] The power to pardon duly convicted prisoners in
terms of which the President acted is conferred upon him by the interim
Constitution.
The power of pardon is one which is recognised in many democratic
countries.[64] In terms of the
interim Constitution, the power is not subject to cabinet concurrence or to
legislative control, but is conferred
upon the President directly by the interim
Constitution. Although the historical roots of the pardoning power may lie in
the royal
prerogative, it is clearly a power which the drafters of the interim
Constitution considered appropriate within a constitutional
democracy. To
repeat the words of Holmes J:
“When [a pardon is] 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.”[65]
The
pardoning power in the interim Constitution serves a similar function. It is
not a private act of grace in the sense that the
pardoning power in a monarchy
may be. It is a recognition in the interim Constitution that a power should be
granted to the President
to determine when, in his view, the public welfare will
be better served by granting a remission of sentence or some other form of
pardon.
[45] There are at least two situations in which the power to
pardon may be important. First, it may be used to correct mistaken convictions
or reduce excessive sentences and second, it may be used to confer mercy upon
individuals or groups of convicted prisoners when
the President thinks it will
be in the public benefit for that to
happen.[66] In the first situation,
it has been recognised in many courts that it can play an important role in
enhancing justice within a legal
system. As Cooke P said in Burt v
Governor-General:
“[I]t must be right to exclude any lingering thought that the prerogative of mercy is no more than an arbitrary monarchial right of grace and favour. As developed it has become an integral element in the criminal justice system, a constitutional safeguard against mistakes.”[67]
The
pardoning power in the interim Constitution should provide such a
safeguard.
[46] In addition, however, it will also provide an opportunity
to the President to release groups of convicted prisoners where he
or she
considers it desirable in the public interest. This is such a case. Here the
pardon was not to an individual to correct
a miscarriage of justice, but to a
group to confer an advantage upon them as an act of mercy at a time of great
historical significance.
In exercising the power, the President considered
carefully the implications of the remission he proposed. In particular, he took
into account the interests of the public and the administration of justice. As
he stated in his affidavit:
“5. The decision to grant special remission of the remainder of their sentences to the categories mentioned in the Presidential Act was not lightly taken. The power to grant special remission is, in my opinion, a grave one which requires careful consideration of many competing interests. In particular:
5.1 I believe that it is important that due regard be had to the integrity of the judicial system and the administration of justice. Whenever remission of sentence is considered, it is necessary to bear in mind that incarceration has followed a judicial process and that sentences have been duly imposed after conviction. A random or arbitrary grant of the remission of sentences may have the effect of bringing the administration of justice into disrepute.
5.2 I believe further that it is of considerable importance to take into account the legitimate concerns of members of the public about the release of convicted prisoners. I am conscious of the fact that the level of crime is a matter of concern to the public at large and that there may well be anxiety about the release of persons who have not completed their sentences.”
The considerations mentioned here would
well nigh have made it impossible for the President to release all fathers who
were in prison
as well as mothers. Male prisoners outnumber female prisoners
almost fiftyfold.[68] A release of
all fathers would have meant that a very large number of men prisoners would
have gained their release. As many fathers
play only a secondary role in child
rearing, the release of male prisoners would not have contributed as
significantly to the achievement
of the President’s purpose as the release
of mothers. In addition, the release of a large number of male prisoners in the
current circumstances where crime has reached alarming levels would almost
certainly have led to considerable public outcry. In
the circumstances it must
be accepted that it would have been very difficult, if not impossible, for the
President to have released
fathers on the same basis as mothers. Were he
obliged to release fathers on the same terms as mothers, the result may have
been
that no parents would have been released at all.
[47] In this case,
two groups of people have been affected by the Presidential Act: mothers of
young children have been afforded an
advantage: an early release from prison;
and fathers have been denied that advantage. The President released three
groups of prisoners
as an act of mercy. The three groups - disabled prisoners,
young people and mothers of young children - are all groups who are particularly
vulnerable in our society, and in the case particularly of the disabled and
mothers of young children, groups who have been the victims
of discrimination in
the past. The release of mothers will in many cases have been of real benefit
to children which was the primary
purpose of their release. The impact of the
remission on those prisoners was to give them an advantage. As mentioned, the
occasion
the President chose for this act of mercy was 10 May 1994, the date of
his inauguration as the first democratically elected President
of this country.
It is true that fathers of young children in prison were not afforded early
release from prison. But although
that does, without doubt, constitute a
disadvantage, it did not restrict or limit their rights or obligations as
fathers in any permanent
manner. It cannot be said, for example, that the
effect of the discrimination was to deny or limit their freedom, for their
freedom
was curtailed as a result of their conviction, not as a result of the
Presidential Act. That Act merely deprived them of an early
release to which
they had no legal entitlement. Furthermore, the Presidential Act does not
preclude fathers from applying directly
to the President for remission of
sentence on an individual basis in the light of their own special circumstances.
In his affidavit,
the President made clear that fathers of young children could
still apply in the ordinary way for remission of their sentences in
the light of
their particular circumstances. The Presidential Act may have denied them an
opportunity it afforded women, but it
cannot be said that it fundamentally
impaired their rights of dignity or sense of equal worth. The impact upon the
relevant fathers,
was, therefore, in all the circumstances of the exercise of
the Presidential power, not unfair. The respondent, therefore, has no
justified
complaint under section 8(2) of the interim Constitution.
[48] Magid J
came to the conclusion that the President did not discharge the burden of
proving that the discrimination was not unfair.
In effect, he came to that
conclusion on the basis that the axe wielded by the President was too blunt.
His criticism was that:
“The President did not suggest that he drew a distinction between mothers of children in normal families both of whose parents are alive and “single parent” families. So children whose mothers were imprisoned but who were being cared for by their fathers (and possibly other close members of their families) were preferred to children who might have been left without any care at all by the incarceration of their “single parent” fathers.”[69]
However,
in my opinion, for reasons which have already been set out above, if the
President decides to approach the issue of pardon
or reprieve not in individual
cases, but by reference to a category of offender, then it may be well nigh
impossible to do so other
than by the “blunt axe” method. In the
legislative or administrative context other methods would usually be available
and over or under inclusive classifications would be less likely to be held
fair. I do not agree with Magid J, therefore, that on
this account the
President failed to discharge the burden placed upon him by the provisions of
section 8(4) of the interim Constitution
to establish that the discrimination
was not unfair.
[49] In Kruger and Another v Minister of Correctional
Services and Others,[70]
a similar case to the present one, Van Schalkwyk J dismissed the application.
He did so, broadly speaking, on the basis that the
President, in making the
order, did so in the exercise of a prerogative power, and that in the absence of
mala fides, the courts
were powerless to intervene. The learned Judge erred, in
my opinion, in not finding that in the exercise of his or her powers, the
president under the interim Constitution is obliged to adhere to all of the
terms of that Constitution including the provisions of
the Bill of Rights. He
also failed to recognise that in the approach he adopted the President, in his
order, created a category
of prisoners which had the effect of discriminating
against another category of prisoners.
[50] On the basis on which this
judgment proceeds it is unnecessary to consider, as does Mokgoro J, whether the
Presidential Act constituted
a “ law of general application” for the
purposes of s 33(1) of the interim Constitution, and I would prefer to express
no view in that regard.
[51] It remains to consider the dissenting
judgment of Didcott J. It is based upon the approach adopted by this Court in
JT Publishing (Pty) Ltd v Minister of Safety and Security and
Others.[71] In that case this
Court considered the circumstances in which courts should grant declaratory
orders in constitutional cases. Didcott
J referred to the fact that declaratory
orders are discretionary and went on to say:
“A corollary is the judicial policy governing the discretion thus vested in the Courts, a well established and uniformly observed policy which directs them not to exercise it in favour of deciding points that are merely abstract, academic or hypothetical ones.”[72]
Didcott
J concluded that there was no reason why this Court should not adhere to a rule
that “sounds so sensible”. He
stated further:
“We should no doubt regard it, like most general rules, as one that is subject in special circumstances to exceptions, in our field those necessitated now and then by factors which are fundamental to a proper constitutional adjudication.”[73]
But
the circumstances of the JT Publishing case differ toto caelo from
those now before us. That was a case where the relief asked for on appeal was
to declare legislation invalid and to place Parliament
on terms to amend it. By
the time judgment was delivered in this Court, the Act was about to be repealed
and replaced. The question
before the Court therefore had absolutely no
relevance to the future and in the face of its imminent repeal the applicants
could
not have been granted any effective relief, not even a declaratory order.
As stated by Didcott J who delivered the unanimous opinion
of the Court:
“Neither of the applicants, nor for that matter anyone else, stands to gain the slightest advantage today from an order dealing with their moribund and futureless provisions. No wrong which we can still right was done to either applicant on the strength of them. Nor is anything that should be stopped likely to occur under their rapidly waning authority.”[74]
The
same cannot be said in this case. Here the Court is being asked to hold on the
constitutionality of presidential powers exercised
under section 82(1)(k).
These constitutional powers, in their exercise by the President, could have
benefited the applicant. The
President, conceivably could have decided to
include fathers with children under the age of twelve years. Had it been
unconstitutional
to exclude such fathers, the applicant would at the least have
been entitled to a declaratory order in the terms suggested in the
judgment of
Kriegler J. It follows that the decision in the JT Publishing case is
distinguishable.
[52] In the result, however, it has been established
that the President has exercised his discretion fairly and in a manner that was
consistent with the interim Constitution. The court a quo therefore should have
dismissed the application.
[53] The appeal is allowed and the order of
the court a quo, save as to costs, is set aside and replaced by an order in the
following
terms:
The provisions of the Presidential Act No. 17 of 27 June, 1994 relating to the remission of sentences of mothers in prison on 10 May, 1994, with children under the age of twelve years, are declared to be not inconsistent with the Constitution of the Republic of South Africa Act 200 of 1993.
Chaskalson P, Mahomed DP, Ackermann, Langa, Madala, and
Sachs JJ concur in the judgment of Goldstone J.
DIDCOTT
J:
[54] This case is covered and governed, I believe, by that part of
our recent decision in JT Publishing (Pty) Ltd and Another v Minister of
Safety and Security and
Others[1] where we held that
constitutional questions fell within the field of the judicial discretion which
controlled the grant of declaratory
orders, and laid down as a general policy
the rule that the discretion ought not to be exercised in favour of answering
any such
question once it was or had become, in the circumstances of the case,
“merely abstract, academic or
hypothetical”.[2]
[55] The
issue put to us in that litigation, an issue questioning the constitutionality
of some statutory provisions which catered
for censorship, had ceased to be a
live one by the time when we decided the matter owing to the repeal in the
meantime of the legislation
containing them and its replacement by a
substantially different scheme. No good purpose could have been served at that
stage by
our granting the declaration of invalidity which was sought. The
question itself had become “wholly academic”, as the
judgment
described it,[3] “exciting no
interest but an historical one”. And neither of the
applicants for
the declaration stood any longer to gain the slightest benefit or advantage from
it.[4] No wrong done to either on
the strength of the impugned provisions could still be righted. The danger had
passed that anything
which needed to be stopped might occur under their
authority. Nor did any room remain for the consequential order requested in the
event of the declaration, an order directing Parliament to rectify the defects
thus found, since those were on the scrapheap already,
together with the
provisions themselves. The applicants, who asserted a devotion to freedom of
expression felt in the interests
of their commercial activities, would no doubt
have liked nevertheless to obtain the declaration in case it turned out to be
useful
in some future attack launched by them on the fresh legislation. But
that consideration did not even enter the reckoning.
[56] Here we see a
comparable state of affairs, where events have likewise overtaken the issue
raised. Unlike the legislation assailed
in the earlier case, the presidential
decree challenged in this one has not been repealed but still stands formally.
That is a difference
more apparent, however, than real. The decree was neither
intended nor designed to continue operating indefinitely, or indeed for
a moment
longer than the limited time needed to give effect to the releases from prison
for which it provided. It dealt with those
once and for all, in short, having
no residual force. Its energy had already been exhausted when the proceedings
in the Court below
were heard and decided. The decree was signed and issued
some sixteen months before the first occasion and almost twenty months
prior to
the second one. It is scarcely speculative to assume that all the releases had
been accomplished within those periods.
To suggest otherwise would surely be
fanciful. Nor is it conceivable that the mothers released from gaol will have
to return there
if we confirm Magid J’s declaration of invalidity, even on
the supposition that they can lawfully be rearrested then.
[57] That
leaves the fathers who remain in prison. The respondent did not purport to
litigate in the interests of their group or
to take up the cudgels for any
father but himself. His own release from custody was what he wanted. Yet the
order for that which
he claimed initially, but abandoned later, was never on the
cards. No Court could have granted it without usurping a power entrusted
solely
to the first appellant and substituting its own discretion for his. The only
personal advantage that the respondent might
then have hoped to gain was an
order requiring the first appellant to reconsider the decision taken by him on
the remission of sentences,
an order in other words with much the same effect as
that of the consequential one granted by Magid J. The advantage was, however,
illusory. For an apparently insuperable obstacle confronted the respondent.
His son was not younger than twelve years when the
litigation started in the
Court below. The boy had reached that age already and, by the time of Magid
J’s judgment, his age
was thirteen years. So a revised decision favouring
fathers as well as mothers would not have resulted in the respondent’s
release from gaol unless it had been altered elsewhere too, by providing either
for its retrospective operation from the date of
the original decision or
for an increase in the age of the children to whom it referred that was
sufficient to cover his case. There is no reason to believe
in the likelihood
of such an alteration when the age specified in the decree had never been called
into question. Indeed, that sounds
most unlikely once account is taken of the
store which was set all along by the interests of children younger than twelve
years but
no older. The upshot is that, like the applicants in the J T
Publishing case, the respondent in this matter could derive no apparent
benefit or advantage from the declaration which he sought and obtained
in the
Court below. The issue raised by him had also become by then “wholly
academic, . . . exciting no interest but an historical
one”.
[58] Nor is a ruling on that issue required from us for the
future guidance of anybody. The decree was a unique measure, taken to
celebrate
the inauguration of our first democratically elected President. Its repetition
on any similarly auspicious occasion which
may arise some day seems improbable,
in the same form at any rate. It is certainly less likely than censorship to be
repeated.
And, should that nevertheless happen, any defects recurring then will
in all probability provoke objections which can be considered
and met when they
arise.
[59] Factual differences between the present case and the one of
J T Publishing can easily be found. None of them is significant or
material, however, in my opinion. In principle, as I see them, the two matters
are indistinguishable from each other.
[60] I have not overlooked the
qualification to the rule dealing with declaratory orders which the J T
Publishing judgment expressed when it
added:[5]
“We should no doubt regard it, like most general rules, as one that is subject in special circumstances to exceptions, in our field those necessitated now and then by factors which are fundamental to a proper constitutional adjudication.”
But no such factor occurs to me now.
The doors of the Courts, it is often said, should always be kept open to those
with constitutional
complaints. That does not mean, however, that the Courts
are compelled to investigate every such complaint, no matter how pointless
or
inappropriate it may be in the circumstances to do so. Nor does it matter for
the purposes of the rule that the issue on which
a decision is sought happens to
be one of constitutional importance. That is invariably the case. But the cart
must not be put
before the horse.
[61] I accordingly decline to enter,
let alone take either side in, the debate that is being conducted within our
ranks about the
validity of the differentiation between fathers and mothers
which marked the decree. I do so from no pusillanimous reluctance to
become
entangled in the controversy, but because of my conviction that we are bound by
the discipline of the J T Publishing judgment not to embark on
the enquiry and to hold that Magid J should likewise have abstained from doing
so.
[62] For the reasons given by me, and for those alone, I concur in
the part of the order proposed by Goldstone J that will allow the
appeal and set
aside both the declaration of invalidity and the consequential correction which
Magid J ordered. I dissent, on the
other hand, from the proposal to substitute
a declaration of validity for the one of invalidity.
KRIEGLER
J:
[63] This is a very hard case
indeed.[1] For that reason this
dissent essays reluctantly, the more so because the lucidity of my colleague
Goldstone J’s judgment on
behalf of the majority - and its commendable
conclusion - render their view so attractive. They hold that: (a) a
presidential pardon
granted under the clemency powers afforded by s 82(1)(k) of
the Constitution of the Republic of South Africa Act 200 of 1993 (“the
Constitution”, its provisions being referred to without further
identification) is subject to judicial review for its consistency
with the
requirements of the Bill of
Rights;[2] (b) Presidential Act 17
of 1994 (“the Act”), which conferred clemency on 440 mothers of
young children, passes such scrutiny;
and therefore, (c) the court below erred
in granting an order for its correction.
[64] My dissent is narrowly
based as I agree with conclusions (a) and (c). Nonetheless my disagreement with
conclusion (b), and with
the reasoning underpinning it, is profound and
emphatic. In my view the pardon, although issued in good faith, for ostensibly
rational
reasons and manifestly to the advantage of some members of a
traditionally disadvantaged class, is (i) inconsistent with the prohibition
against gender or sex discrimination contained in s 8(2); (ii) has not been
shown to be fair; and (iii) is therefore invalid. I
nevertheless agree that the
appeal should succeed and that the order granted in the court below must be set
aside and replaced by
another. In what follows I hope to explain the route that
brings me to that destination.
[65] With regard to the finding of
judicial reviewability of the exercise by the President of his s 82(1)(k) powers
I have little
to add to the analysis by my colleague Goldstone J in paragraphs 5
to 29 of his judgment. Although I would prefer not to characterise
the relevant
power as executive, administrative or presidential/prerogative, it does not
really matter. Nor does it make any difference
whether the power is rightly
seen as a residual element of the royal prerogative, or as falling in a special
category of discretionary
powers of the head of state exercisable otherwise than
on the advice of the cabinet, or as executive/administrative acts by the head
of
the executive branch of government. On a fair reading of ss 4, 75, 76 and 81
(especially subsection (1)) in the context of the
Constitution as a whole, the
exercise by the President of the s 82(1)(k) powers is governed by the
prohibition against discrimination
contained in s 8(2). I therefore do not
think one has to categorise those powers as “executive”, thus
bringing them
within the ambit of s 7(1), in order to subject them to Chapter 3
review.[3] Ultimately the
President, as the supreme upholder and protector of the Constitution, is its
servant. Like all other organs of state,
the President is obliged to obey each
and every one of its commands.
[66] With regard to the second question,
namely the constitutional validity of the Act, I can also be relatively brief.
That is because
my dissent does not relate so much to the principles involved,
nor to the proper approach to a constitutional challenge based on
alleged unfair
discrimination. On the contrary, I endorse the general observations in the
majority judgment regarding gender discrimination.
I also acknowledge that this
is not only a hard case but an awkward one for the development of our equality
jurisprudence, one in
which its application to reality is slippery. My dissent
is confined to the latter exercise. In the result my conclusion is that
the
President not only transgressed the provisions of s 8(2) in distinguishing
between classes of parents on the basis of their gender
(on which the majority
seem to agree with me) but also that the presumption of unfairness attaching to
that distinction has not been
rebutted. That is the point at which our paths
diverge.
[67] The facts appear from the judgment of my colleague
Goldstone J; I need highlight only those that are pertinent to my particular
approach. On 30 June 1995 the respondent commenced motion proceedings in the
Durban and Coast Local Division of the Supreme Court
expressly aimed at
procuring his release from prison. He attacked the constitutionality of the Act
as being in violation of his
rights under ss 8(1) and (2) and asked for a
corresponding declaratory order under s 7(4)(a) coupled with a mandatory order
for his
release. Ultimately he sought only the declaratory order and a
direction that the Act be corrected “in accordance with the
provisions of
the Constitution”. The court granted the order as prayed, save that the
President was given six months in which
to effect the
correction.
[68] There was no factual dispute raised on the papers and
the case was determined on the basis of the averments made in the affidavits
filed on behalf of the President.[4]
In exercising the clemency power vested in him by s 82(1)(k), the President
decided to do so, not on the basis of an evaluation of
the merits of specific
cases, but by generic classification. One of the generic lines he drew to
distinguish between those upon
whom the gift of clemency was to be bestowed and
those not, was admittedly sex/gender based. Female parents of sub-twelve year
old
children were to go free but male parents not.
[69] The President
decided to grant the special remission to particular categories of prisoners
only after “careful consideration
of many competing interests”. In
particular the President stated in his affidavit:
“5.1 I believe that it is important that due regard be had to the integrity of the judicial system and the administration of justice. Whenever remission of sentence is considered, it is necessary to bear in mind that incarceration has followed a judicial process and that sentences have been duly imposed after conviction. A random or arbitrary grant of the remission of sentences may have the effect of bringing the administration of justice into disrepute.
5.2 I believe further that it is of considerable importance to take into account the legitimate concerns of members of the public about the release of convicted prisoners. I am conscious of the fact that the level of crime is a matter of concern to the public at large and that there may well be anxiety about the release of persons who have not completed their sentences.
5.3 In granting the special remission to the various categories of prisoners mentioned in the Presidential Act, it was important to have regard to the role of the law enforcement agencies who are responsible for combating crime and the effect which the grant of remission may have on their work.”
[70] The President “was
motivated predominantly by a concern for children who had been deprived of the
nurturing and care which
their mothers would ordinarily have provided.”
He took account “of the special role” he believes “that
mothers
play in the care and nurturing of younger children” and annexed an
affidavit by the National Director of the South African
National Council for
Child and Family Welfare, who expressed the view that identification of mothers
of children under the age of
twelve years for remission of sentence was
“rationally and reasonably explicable as being in the best interests of
the children
concerned.” She added that “the primary bonding with
the mother and the role of mothers as the primary nurturers and
care givers
extends well into childhood. The reasons for this are partly historical and the
role of the socialisation of women who
are socialised to fulfil the role of
primary nurturers and care givers of children, especially pre-adolescent
children and are perceived
by society as such.”
[71] The President
also makes plain that he acted “[a]fter taking into account the many
competing and sometimes irreconcilable
interests . . . honestly, in good faith
and after careful deliberation.” He adds that “[t]he exercise of
the power of
pardon or remission, is by its very nature, highly complex . . .
that it would be unfortunate if unnecessary restraints were placed
upon the
exercise of such power because this may inhibit its exercise. It is an area in
which difficult choices have to be made
. . . .” Nevertheless the
affidavit invites correction if it be found that the President erred in the
exercise of the power
in question.
[72] Accepting without hesitation or
qualification that the President acted in the manner and spirit - and for the
commendable motives
- he describes, I believe that in determining whether or not
the presumed unfairness of the Act which automatically flows from the
breach of
the prohibition against discrimination contained in s 8(2) has been adequately
rebutted, one cannot ascribe to the President
the weighing of factors he himself
does not mention. Thus, in my view, it is not open to us to make our own
enquiries about the
prison population and then to conclude that “a very
large number of men prisoners would have gained their
release”.[5] We have not been
told and have no data to found an opinion as to how many men would or could have
qualified for release if the Act
had treated the sexes equally. There is even
less room for a finding that the numbers would have caused public disquiet. The
President
said nothing of the kind on the papers; no argument to such effect was
advanced on his behalf at the hearing and counsel were not
asked by the Court to
address the subject. It is, of course, wholly illogical to rely on current
perceptions of the level of crime
in drawing inferences about reaction in
mid-1994 had substantially more prisoners qualified for release. We also do not
know anything
about the administrative bother that may or may not have been
involved in weighing the family circumstances of individual prisoners,
or of
applying some other method of advancing the cause of young children deprived of
parental care without drawing the distinction
simply along the gender line. Nor
does it behove us hypothetically to second guess the President as to what he
would or would not
have decided had he been advised that the distinction along
sex/gender lines was constitutionally suspect.
[73] A point that should
also be stressed is that the question is not whether we find that the objective
of the Act was praiseworthy
or its likely effect beneficial to some. Both are
common cause on the papers. The crisp question is whether the Act, regardless
of its impressive provenance and charitable appearance, complies with the
demands of s 8(2). The criteria are prescribed by the
Constitution; so too
their application to a given piece of legislation or a specific executive act.
The immediate focus is on s
8(2), read with and fortified by s 8(4); but the
wider context is also important. Discrimination founded on gender or sex was
manifestly
a serious concern of the drafters of the Constitution. That is made
plain by the Preamble (first main paragraph); the Postscript
(first paragraph);
the ranking of sex/gender discrimination immediately after racial discrimination
in the enumeration of specifically
prohibited bases for discriminating in s
8(2); in ss 119 and 120, especially 119(3), providing for the creation of a
Commission on
Gender Equality; and the repeated use of both sexes throughout the
Constitution in emphasis of the break with the former mind set
and statutory
drafting style (sanctified by s 6(a) of the Interpretation Act No 33 of 1957)
which used the masculine gender only.
[74] The importance of equality in
the constitutional scheme bears repetition. The South African Constitution is
primarily and emphatically
an egalitarian constitution. The supreme laws of
comparable constitutional states may underscore other principles and rights.
But
in the light of our own particular history, and our vision for the future, a
constitution was written with equality at its centre.
Equality is our
Constitution’s focus and organising principle. The importance of equality
rights in the Constitution, and
the role of the right to equality in our
emerging democracy, must both be understood in order to analyse properly whether
a violation
of the right has occurred.
[75] The importance of equality is
demonstrated by the Constitution’s insistence that discrimination on a
specified s 8(2) basis
be presumed unfair until the contrary is established.
The insistence on such rebuttal is not new to this Court. A burden of
“justification”
was placed on the President by s 8(4) read with s
8(2). The latter states that
“[n]o person shall be unfairly discriminated against, directly or indirectly, and, without derogating from the generality of this provision, on one or more of the following grounds in particular: race, gender, sex, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture or language.”
Section 8(4)
then continues,
“[p]rima facie proof of discrimination on any of the grounds specified in subsection (2) shall be presumed to be sufficient proof of unfair discrimination as contemplated in that subsection, until the contrary is established.”
Although s 8(2) expressly makes the
possible grounds for discrimination open ended, both provisions give special
treatment to the
listed grounds of distinction. In the context of s 8(2) they
render a distinction couched in their terms automatically questionable,
and s
8(4) reinforces this by presuming that discrimination on a listed ground is
unfair. Discrimination on the basis of a s 8(2)
category must be regarded as
unfair unless and until a persuasive rebuttal is established to vindicate it.
For it is conduct that,
on the face of it, is out of step with the fundamental
values of our new constitutional order. This is particularly the case where
discrimination on the basis of race, sex or gender is concerned. Although the
Constitution does not establish levels of scrutiny
in the manner of the American
Constitution, it is nevertheless worth noting that race and sex/gender are given
special mention in
the Preamble[6]
and head the list of s 8(2) categories. The drafters of the Constitution could
hardly have established a presumption of unfairness
in s 8(4) only to have the
burden of rebuttal under the section discharged with relative
ease.
[76] Therefore, in terms of s 8(4), read both textually and
contextually, unless and “until the contrary is established”,
a
distinction drawn on the basis of gender or sex, such as the one here, must be
found to be unfair. If no rebuttal is apparent,
that is the end of the matter
- the presumption of unfairness, which entails unconstitutionality under s 8(2),
stands.[7] Where some rebuttal is
proffered, one must examine it to see whether it indeed
“establishes” (ie proves) the fairness
of the
distinction.
[77] What kinds of facts are likely to discharge the burden
of rebuttal imposed on the President by s 8(4)? I would make three observations
here. First, the fact that discrimination is unintended or in good faith does
not render it fair. Once the subject action or legislation
is found to create
adverse effects on a discriminatory basis, there is no further requirement, eg
of bad faith or malice. My second
observation is that the
“rebutting” factors can seldom, if ever, in themselves be
discriminatory or otherwise objectionable.
True as it may be that our society
currently exhibits deeply entrenched patterns of inequality, these cannot
justify a perpetuation
of inequality. A statute or conduct that presupposes
these patterns is unlikely to be vindicated by relying on them. One that not
only presupposes them but is likely to promote their continuation, is even less
likely to pass muster. Third, factors that would
or could justify interference
with the right to equality in a section 33(1) analysis, are to be distinguished
from those relevant
to the enquiry under section 8(4). The one is concerned
with justification, possibly notwithstanding unfairness; the other is concerned
with fairness and with nothing else. I turn from these general comments to the
case at hand.
[78] In my respectful view, the majority errs on all three
counts. First, my colleagues base their finding of fairness in part on
the good
faith of the President. Second, the Act is upheld despite the fact that it
relies on a generalisation regarding parental
roles which is the result of
disadvantage and discrimination. Third, in invoking factors such as public
reactions to the release
of many prisoners and administrative efficiency, the
majority applies a section 33(1) analysis at the point of looking for a rebuttal
of unfairness.
[79] In attempting to discharge their burden under s 8(4),
the appellants rely on the two affidavits I have mentioned. With regard
to the
discrimination between the parents of young children, their effect is limited.
The emphasis, as I’ve indicated above,
is the President’s concern
for children, coupled with his belief that mothers have, and are generally
perceived to have, a
special role in the care and nurturing of younger children.
The second affidavit is directed to the latter and purports to provide
empirical
confirmation for the President’s belief. No other purpose or rationale is
provided for the decision to accord the
benefit of liberty to mothers and not to
fathers.
[80] One can accept for the sake of argument that the
President’s belief is empirically confirmed. The question then is whether
the fact that in South Africa mothers are the primary care givers can establish
fairness under s 8(4). In this regard I agree with
the majority judgment that
the fact that women generally “bear an unequal share of the burden of
child rearing” cannot
render it ordinarily “fair to discriminate
between women and men on that basis”. What I cannot endorse, is the
majority’s
conclusion that although the discrimination inherent in the Act
was based on that very
stereotyping,[8] it is nevertheless
vindicated. In my view the notion relied upon by the President, namely that
women are to be regarded as the primary
care givers of young children, is a root
cause of women’s inequality in our society. It is both a result and a
cause of prejudice;
a societal attitude which relegates women to a subservient,
occupationally inferior yet unceasingly onerous role. It is a relic
and a
feature of the patriarchy which the Constitution so vehemently condemns.
Section 8 and the other provisions mentioned above
outlawing gender or sex
discrimination were designed to undermine and not to perpetuate patterns of
discrimination of this kind.[9]
Indeed I find it startling that the appellants could have placed this fact
before the Court in order to establish that their conduct
does not constitute
unfair discrimination. I would have thought that this is precisely the kind of
motive that the respondent might
have attempted to divine in the
appellant’s conduct in order to condemn it. It hardly has justificatory
power. One of the
ways in which one accords equal dignity and respect to
persons1[0] is by seeking to protect
the basic choices they make about their own identities. Reliance on the
generalisation that women are the
primary care givers is harmful in its tendency
to cramp and stunt the efforts of both men and women to form their identities
freely.
[81] Is it relevant that an inherently objectionable
generalisation has been used in this case for the benefit of a particular group
of women prisoners? The majority judgment regards this as an important - if not
a decisive - factor in its
reasoning.1[1] My first response is
a narrow one. It is merely to say that the President has nowhere mentioned that
it was his purpose to benefit
women generally or the released mothers in
particular. There is no suggestion of compensation for wrongs of the past or an
attempt
to make good for past discrimination against women. On the
contrary, the whole thrust of the President’s affidavit, and the raison
d’etre for the main supporting affidavit,
is the interest of
children. The third category of prisoners released under the Act was not
women in their own right but solely in their capacity as perceived
child
minders.
[82] For the purposes of my next response I am prepared to
accept without deciding, that in very narrow circumstances a generalisation
-
although reflecting a discriminatory reality - could be vindicated if its
ultimate implications were
equalising.1[2] But I would suggest
that at least two criteria would have to be satisfied for this to be the case.
First, there would have to be
a strong indication that the advantages flowing
from the perpetuation of a stereotype compensate for obvious and profoundly
troubling
disadvantages. Second, the context would have to be one in which
discriminatory benefits were apposite.
[83] I illustrate what I mean by
examining how these criteria are to be applied in the instant case. In terms of
the first criterion,
the benefits in this case are to a small group of women -
the 440 released from prison - and the detriment is to all South African
women
who must continue to labour under the social view that their place is in the
home. In addition, men must continue to accept
that they can have only a
secondary/surrogate role in the care of their children. The limited benefit in
this case cannot justify
the reinforcement of a view that is a root cause of
women’s inequality in our society. In truth there is no advantage to
women
qua women in the President’s conduct, merely a favour to perceived
child minders. On the other hand there are decided disadvantages
to womankind
in general in perpetuating perceptions foundational to paternalistic attitudes
that limit the access of women to the
workplace and other sources of
opportunity. There is also more diffuse disadvantage when society imposes roles
on men and women,
not by virtue of their individual characteristics, qualities
or choices, but on the basis of predetermined, albeit time-honoured,
gender
scripts. I cannot agree that because a few hundred women had the advantage of
being released from prison early, the Constitution
permits continuation of these
major societal disadvantages.
[84] The second criterion, it will be
recalled, requires some connection between the discriminatory action and the
advantage to the
previously disadvantaged. On that basis the limited and
parochial benefits flowing from the Act are dubious. From the fact that
women
have suffered discrimination generally, it cannot be argued that they
deserve compensatory benefits in any context. I suggest that the
relevant context in this case is a penal one, for the effect of the
Presidential Act is felt by prisoners.
It has not been suggested that women
have suffered systematic discrimination in a penal
context.1[3] The point here is that
there is an advantage unrelated to any compensable past
disadvantage.
[85] I must emphasise that I am not suggesting that gender
or sex discrimination of any kind must always and inevitably be found
to be
irrevocably unfair.1[4] There is no
question that gender or sex discrimination can be shown to be fair. All I am
contending is that the evidence must be
persuasive. In cases such as these the
United States Supreme Court requires “exceedingly persuasive
justification”1[5] - a
rigorous test in the context of their equality provision, which makes no
express mention of discrimination and contains no deemed
unfairness. We should
do no less. In the present case the presumption of unfairness has not been
disturbed. The justification
that has been tendered is manifestly inadequate.
There is no warrant to strain to uphold the presidential action in question.
Clearly the Act was issued in good faith, after mature reflection, after
consideration of the multifarious pros and cons, and for
manifestly laudable
humanitarian motives. None of those factors, however, cuts any ice. On the
contrary, the President’s
ipse dixit establishes that the decision
was founded on what has come to be known as gender stereotyping. And the
Constitution enjoins all
organs of state - here the President - to be careful
not to perpetuate the distinctions of the past based on gender type-casting.
In
effect the Act put the stamp of approval of the head of state on a perception of
parental roles that has been proscribed. Mothers
are no longer the
“natural” or “primary” minders of young children in the
eyes of the law, whatever tradition,
prejudice, male chauvinism or privilege may
maintain. Constitutionally the starting point is that parents are parents.
[86] I accept that my finding that the President has discriminated
unfairly may not answer legitimate concerns that my conclusion
may be seen as
discouraging benefits directed at persons within historically disadvantaged
classes. A clear disclaimer is salutary.
I am not suggesting that the
executive or legislature should never recognize gender or sex distinctions.
Gender/sex based distinctions
can, and on occasion should, be made. The caveat
is simply that such distinctions must be shown not to discriminate unfairly
under
the Constitution - or they must be justifiable under section 33(1).
Neither the legislature nor executive need feel hamstrung by
my finding in this
case.
[87] That leaves only the question of the appropriate order to be
made. It can be answered quite simply. I have come to the same
conclusion on
the reviewability and constitutionality of the Act as did the learned judge in
the court below. Nevertheless, even
on that finding, the order was overbroad.
There was nothing wrong with those parts of the Act that were not tainted by
gender or
sex discrimination, eg the release of certain prisoners younger than
18 years of age. The Act is constitutionally objectionable
only to the extent
that it discriminated on the basis of gender/sex between male and female
prisoners who, as at 10 May 1994, had
children under the age of twelve years.
In my view the learned judge should also not have put the President on terms to
rectify
the Act. Once there was no longer any prayer for the respondent’s
release and there was no prayer relating to the women who
had (long since) been
released,1[6] rectification of the
order would have served no useful purpose. On the other hand, the Act had
constituted a breach of section 8(2) and a declaratory order to that effect
under section 7(4)(a) and (b)(i) was therefore appropriate,
even though it
entailed no direct or discernible consequential relief for the respondent. A
breach of the Constitution had occurred
and a judicial declaration to that
effect was appropriate. Costs were not awarded in the court below and were not
mentioned before
us. No more need be said on the topic.
[88] In the
result I would order as follows:
1. The appeal is upheld;
2. The order in the court below is set aside and in its stead it is declared that Presidential Act 17 issued on 17 June 1994 constituted a breach of section 8(2) of the Constitution of the Republic of South Africa, No 200 of 1993, to the extent that it discriminated between male and female prisoners who, on 10 May 1994, had children under the age of twelve years.
MOKGORO J:
[89] I have read
the judgments of my colleagues, and I concur in the order proposed by Goldstone
J. I agree that Presidential Act
No. 17 of 1994 (“the Presidential
Act”) is reviewable by this Court, for the reasons given by him. I differ
with my
colleagues, however, with respect to the precise legal route taken in
arriving at the order. I hold that the Presidential Act constitutes
“unfair discrimination” contrary to section 8(2) of the interim
Constitution (“the Constitution”), but that
the unfair
discrimination is justified under section 33(1) of the
Constitution.
[90] Section 8 of the Constitution provides as
follows:
“(1) Every person shall have the right to equality before the law and to equal protection of the law.
(2) No person shall be unfairly discriminated against, directly or indirectly, and, without derogating from the generality of this provision, on one or more of the following grounds in particular: race, gender, sex, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture or language.
(3)(a) This section shall not preclude measures designed to achieve the adequate protection and advancement of persons or groups or categories of persons disadvantaged by unfair discrimination, in order to enable their full and equal enjoyment of all rights and freedoms.
(b) . . .
(4) Prima facie proof of discrimination on any of the grounds specified in subsection (2) shall be presumed to be sufficient proof of unfair discrimination as contemplated in that subsection, until the contrary is established.”
[91] The facts in this case have been set
out in full in the judgment of Goldstone J. In brief, women prisoners with
children under
the age of 12 were granted remission of their sentences by the
President, whereas their male counterparts were not. By reason of
section 8(4)
of the Constitution, such discrimination is presumed to be unfair
discrimination, “until the contrary is established”.
In my view,
that presumption has not been rebutted in this case.
[92] I agree with
Goldstone J that the prohibition against unfair discrimination is of crucial
importance in our constitutional scheme:
“The prohibition on unfair discrimination in the interim Constitution seeks not only to avoid discrimination against people who are members of disadvantaged groups. It seeks more than that. At the heart of the prohibition of unfair discrimination lies a recognition that the purpose of our new constitutional and democratic order is the establishment of a society in which all human beings will be accorded equal dignity and respect regardless of their membership of particular groups.”[1]
I
further agree with the test proposed by him as to whether discrimination is
“unfair”:
“To determine whether that impact was unfair it is necessary to look not only at the group who has been disadvantaged but at the nature of the power in terms of which the discrimination was effected and, also at the nature of the interests which have been affected by the discrimination.”[2]
I
disagree, however, on the application of these principles to the facts of this
case. I have no doubt that the President acted in
good faith, and I am sure
much deliberation went into the Presidential
Act.[3] The President stated that
he took particular account of the need to maintain the integrity of the judicial
system and the administration
of
justice.[4] He also considered the
concerns of the public about the release of convicted
prisoners.[5] The release of
mothers of young children was motivated primarily by a concern for
children.[6] No fathers were
released, despite an acknowledgment by the government that “a minority of
fathers . . . are actively involved
in nurturing and caring for their
children”.[7] In my view,
denying men the opportunity to be released from prison in order to resume
rearing their children, entirely on the basis
of stereotypical assumptions
concerning men’s aptitude at child rearing, is an infringement upon their
equality and dignity.[8] The
Presidential Act does not recognize the equal worth of fathers who are actively
involved in nurturing and caring for their young
children, treating them as less
capable parents on the mere basis that they are fathers and not
mothers.
[93] Section 8 of our Constitution gives us the opportunity to
move away from gender stereotyping. Society should no longer be bound
by the
notions that a woman’s place is in the home, (and conversely, not in the
public sphere), and that fathers do not have
a significant role to play in the
rearing of their young children. Those notions have for too long deprived women
of a fair opportunity
to participate in public life, and deprived society of the
valuable contribution women can make. Women have been prevented from
gaining
economic self-sufficiency, or forging identities for themselves independent of
their roles as wives and mothers. By the
same token, society has denied fathers
the opportunity to participate in child rearing, which is detrimental both to
fathers and
their children. As recognized by this Court in Fraser v
Children’s Court, Pretoria North and
Others,[9] fathers have a
meaningful contribution to make in child rearing, and I am concerned that this
Court may be perceived as retreating
from the valuable principles laid down in
that case. It is important that those principles be adhered to, so that they
may begin
to benefit all mothers, fathers and their
children.1[0]
[94] I am
unpersuaded by the emphasis in the majority judgment on the vulnerable position
of mothers of young children in South Africa.
While such mothers may generally
be disadvantaged in society, there is no evidence that they are disadvantaged in
the penal system
in particular. I do not insist that there be a rigid link
between the nature of disadvantage suffered by a group, and measures taken
to
alleviate that disadvantage. There should, however, be some correlation
between the two. That correlation does not appear to exist
here.1[1] I therefore hold the
Presidential Act to be unfair discrimination, which falls to be justified in
accordance with section 33(1)
of the Constitution.
[95] Section 33(1)
provides in relevant part:
“The rights entrenched in this Chapter may be limited by law of general application, provided that such limitation -
(a) shall be permissible only to the extent that it is -
(i) reasonable; and
(ii) justifiable in an open and democratic society based upon freedom and equality; and
(b) shall not negate the essential content of the right in question[.]”
[96] A precondition to the applicability
of section 33(1) is that the limitation of a right occur “by law of
general application”.
Although the Presidential Act is not conventional
legislation, in my view, it satisfies that precondition. The phrase “by
law of general application” has not been interpreted in detail by this
Court, but a broad view was taken of “law”
by Kentridge AJ in Du
Plessis and Others v De Klerk and
Another.1[2] In holding that
the words “all law in force” in section 7(2) of the Constitution
encapsulate common law as well as statute
law, in part because the broad term
“reg” is used in the Afrikaans text, Kentridge AJ noted:
“The term ‘reg’ is used in other parts of chapter 3 as the equivalent of ‘law’, for example in s 8 (‘equality before the law’) and s 33(1) (‘law of general application’). Express references to the common law in such sections as s 33(2) and s 35(3) reinforce the conclusion that the law referred to in s 7(2) includes the common law and that chapter 3 accordingly affects or may affect the common law. Nor can I find any warrant in the language alone for distinguishing between the common law of delict, contract, or any other branch of private law, on the one hand, and public common law, such as the general principles of administrative law, the law relating to acts of State or to State privilege, on the other.”1[3]
Kriegler
J added that
“s 33(1) . . . draws no distinction between different categories of law of general application . . . . [I]t is irrelevant whether such rule is statutory, regulatory, horizontal or vertical, and it matters not whether it is founded on the XII Tables of Roman law, a Placaet of Holland or a tribal custom.”1[4]
[97] Section 2 of the Interpretation Act 33 of 1957
(“the Interpretation Act”), defines “law” as “any
law, proclamation, ordinance, Act of Parliament or other enactment having the
force of law”, and presumptively applies to the
interpretation of every
such “law. . . in force” and of “all by-laws, rules,
regulations or orders made under the
authority of any such
law”.1[5] Delegated
legislation must be published:
“When any by-law, regulation, rule or order is authorized by any law to be made by the President or a Minister . . . , such by-law, regulation, rule or order shall, subject to the provisions relative to the force and effect thereof in any law, be published in the Gazette.”1[6]
The
Interpretation Act does not specifically address the prerogative powers
possessed by the President under prior constitutions.
[98] Guidance as to
the meaning and purpose of “law of general application” can also be
obtained from decisions of the
European Court of Human Rights and the Canadian
Supreme Court, both of which have considered the phrase “prescribed by
law”
in the context of limitation of rights. The judgment of the European
Court of Human Rights in The Sunday Times v The United
Kingdom1[7] concerned an
injunction issued in accordance with the common law of contempt, which infringed
a newspaper’s freedom of speech.
Article 10 of the European Convention of
Human Rights provides, so far as is material:
“2. [Freedom of expression], since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society . . . .” (Emphasis added).
[99] In that case,
the question arose whether a common law limitation fell within the term
“prescribed by law”, so as
to be a permissible limitation on the
right to freedom of
expression.1[8] The court ruled
as follows:
“In the Court’s opinion, the following are two of the requirements that flow from the expression ‘prescribed by law’. First, the law must be adequately accessible: the citizen must be able to have an indication that is adequate in the circumstances of the legal rules applicable to a given case. Secondly, a norm cannot be regarded as a ‘law’ unless it is formulated with sufficient precision to enable the citizen to regulate his conduct: he must be able - if need be with appropriate advice - to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail.”1[9]
On
the facts, the court held that the common law rule fulfilled the requirements of
both accessibility and
precision.2[0]
[100] The
views of the Canadian Supreme Court are also of assistance. Like the South
African Constitution, the Canadian Charter of
Rights and Freedoms (the
“Canadian Charter”) contains a general limitations clause, which
provides that:
“The Canadian Charter . . . guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” (Emphasis added).2[1]
That
Court has consistently held rules emanating from statute, regulation and common
law to be “prescribed by
law”.2[2] The Canadian
Supreme Court is divided, however, on whether rules emanating from directives or
guidelines, issued by government departments
or agencies but falling outside the
category of officially published delegated legislation, are “prescribed by
law”.2[3]
[101] The
decision in Committee for Commonwealth of Canada v
Canada2[4] illustrates that
division. The case concerned internal government directives alleged to infringe
freedom of speech. Lamer CJC considered
that the limitations clause could not
apply because the directives were not
“law”.2[5] He
explained that the government’s internal directives and policies differ
from statutes and regulations in that they are
not generally published, and
therefore are unknown to the
public.2[6] Lamer CJC added that
the directives were binding only on government officials, and could be cancelled
at will.2[7] The views of Lamer
CJC echo the following concerns of Wilson J in McKinney v University of
Guelph:2[8]
“[The limitations clause] serves the purpose of permitting limits to be imposed on constitutional rights when the demands of a free and democratic society require them. These limits must, however, be expressed through the rule of law. The definition of law for such purposes must necessarily be narrow. Only those limits on guaranteed rights which have survived the rigours of the law-making process are effective.”
McLachlin J, on the
other hand, took a much broader view of the meaning of “law” in
Committee for Commonwealth v Canada. She considered that the
“prescribed by law” requirement was to eliminate from the
limitations clause purview conduct
which is purely arbitrary. She cautioned
that:
“From a practical point of view, it would be wrong to limit the application of [the limitations clause] to enacted laws or regulations. That would require the Crown to pass detailed regulations to deal with every contingency as a pre-condition of justifying its conduct under [the limitations clause]. In my view, such a technical approach does not accord with the spirit of the Charter and would make it unduly difficult to justify limits on rights and freedoms which may be reasonable and, indeed, necessary.”2[9]
[102] It
can be seen then that several concerns underlie the interpretation of
“prescribed by law”. The need for accessibility,
precision and
general application flow from the concept of the rule of law. A person should
be able to know of the law, and be able
to conform his or her conduct to the
law. Further, laws should apply generally, rather than targeting specific
individuals.3[0] In my view,
those rule of law concerns are adequately met by the Presidential
Act.3[1] The remaining question
about the Presidential Act concerns its origin as executive rule making rather
than as legislation, which
I shall now address.
[103] The origin of the
Presidential Act in executive rule making rather than in a formal legislative
process is not fatal to the
application of section 33(1). As noted by Wilson J,
supra, there are safeguards attaching to the legislative process, because
legislation
is the subject of a detailed and rigorous procedure, upon which many
people have an opportunity to comment and vote. However, there
are numerous
instances of delegated legislation drafted by the executive, which legislation
would undoubtedly be accepted as
“law”.3[2] The
difference between the Presidential Act, and standard instances of executive
rule making, in the form of delegated legislation,
is the absence of a parent
statute in the former case. In standard cases of executive rule making
therefore, at least the parent
statute has undergone the rigours of the
legislative process. That difference cannot in my view justify different
treatment for
the Presidential Act, which represents an exercise of public power
derived directly from the Constitution. The legitimacy which
attaches to
delegated legislation by reason of the parent statute must attach with equal
force to rules representing a direct exercise
of power granted by the
Constitution. The Constitution, after all, was a vigorously negotiated
document.
[104] I consider it undesirable to take a technical approach to
the interpretation of “law of general application”. As
noted by
McLachlin J, supra, a technical approach unduly reduces the types of rules and
conduct which can justify limitations. That
exclusion from section 33(1) may
adversely affect the proper interpretation of the scope of rights in Chapter 3,
and when such rights
are regarded as breached. In other words, courts which
wish to uphold action or rules as justified, but are unable to do so because
of
a narrow definition of “law of general application”, may strain the
interpretation of other sections of the Constitution
in order to find the
conduct did not infringe the right in
question.3[3] Further, the
“law of general application” requirement is merely a precondition to
the applicability of section 33(1).
If a limitation is in substance
ill-advised, that will be caught by the rigours of the limitation test itself.
To conclude, the
Presidential Act is an exercise of constitutional power in the
form of general, publicly accessible rules which affect the rights
of
individuals. In my view, that is sufficient to fall within “law of
general application” for the purposes of section
33(1).
[105] I
shall now turn to the other requirements of section 33(1), namely whether the
limitation is reasonable and justifiable in
an open and democratic society. The
President has explained in his affidavit that the reason for releasing mothers
was a concern
for the plight of children.
“6. With regard to the grant of special remission to all mothers with minor dependent children under the age of 12 years, I was motivated predominantly by a concern for children who had been deprived of the nurturing and care which their mothers would ordinarily have provided. Having spent many years in prison myself, I am well aware of the hardship which flows from incarceration. I am also well aware that imprisonment inevitably has harsh consequences for the family of the prisoner.
. . . .
8. Shortly before the signing of the Presidential Act I stated the following in a speech . . . :
‘Our policies must turn into reality the principle that every child deserves to have a decent home and be brought up in the loving care of a family. The terrible legacy of street children has to be attended to with urgency. A collective effort has to be launched by the government, civil society and the private sector to ensure that every child is looked after, has sufficient nutrition and health care.’”
There can be no
doubt that the aim of ensuring young children are looked after is
legitimate.3[4] The real
controversy arises as to whether the Act is a proportionate response in light of
the unfair discrimination suffered by
fathers.
[106] Despite my
reservations at its gender stereotyping, I conclude that the Presidential Act is
justified. First, although fathers
have not benefitted from the group pardon,
they are still entitled to apply for remission on an individual basis. Second,
I agree
with Goldstone J that politically, it would have been virtually
impossible to release all men and women with children under twelve,
because of
the sheer numbers involved. Further, there would have been great administrative
inconvenience in engaging in a case-by-case
evaluation for each mother and
father as to whether they were the primary care giver for their child. Thus the
basic question put
to us is whether only the women should have been released, or
no one released. In other words, the issue was whether some children
with
parents in prison be united with their parent, or no children be united with
their parents. I consider the aim of easing the
plight of South African
children to be extremely important, and that every possible opportunity should
be taken to further that aim.
The temporary denial of parenthood to fathers is
therefore justifiable with reference to the interests of the children whose
mothers
were released. Accordingly, I hold the Presidential Act to be justified
in accordance with the requirements of section 33(1).
O’REGAN
J:
[107] I have had the opportunity of reading the judgments of Goldstone
J and Kriegler J. I concur fully in the judgment of Goldstone
J. I have
nothing to add to his analysis of the reviewability of the President’s
power to pardon prisoners in terms of section
82(1)(k) of the Constitution of
the Republic of South Africa, Act 200 of 1993 (“the interim
Constitution”). However,
I wish to add a few remarks concerning the
question of whether the President discrim