DA to Look Into Reversal of Pardons

Business Day (Johannesburg)

July 29, 2002
Posted to the web July 29, 2002

Wyndham Hartley
Johannesburg

Mbeki did not consider danger'

The Democratic Alliance (DA) is to take legal advice over whether or not President Thabo Mbeki's 33 presidential pardons can be reversed. They also plan to assist the family of the man killed by one of those released who is considering legal action against the state.

Mbeki granted pardons to mainly African National Congress (ANC) and Pan Africanist Congress (PAC) prisoners in midMay using his constitutional powers. On May 27 an East London shopkeeper Martin Whitaker was killed allegedly by one of those released. Dumisani Ncamazana is in custody and will apply for bail on August 16.

Ncamazana was initially convicted of the murders of Bahai Church members; an attack on a busload of Da Gama Textiles employees; the attempted murder by machine gun of civilians near the Nahoon Dam turnoff in East London; the attempted ambush of a bus carrying schoolchildren; and a grenade attack on the Highgate Hotel. He had been sentenced to serve more than one hundred years in prison in respect of these crimes.

The convictions and sentencing took place in 1997 and 1998, and he was imprisoned in Middledrift Maximum Security Prison. In 1999 he escaped, but was recaptured.

DA leader Tony Leon said at the weekend that the party would be taking legal advice on the reversal of the pardons because "it appears that the president has failed to apply his mind adequately to the matter. One wonders whether he even considered the fact that Ncamazana had escaped from Middledrift Maximum Security Prison in 1999 long after SA's transition to democracy had ended."

Leon said the Whitaker tragedy raised the question of the manner in which the presidential power to pardon is exercised. "This much is clear. Section 84(2)(j) of the constitution gives the president the power to pardon or reprieve offenders. This power was considered by the Constitutional Court, in respect of the interim constitution, in President of the RSA v Hugo 1997(4)SA1(CC). The power has its origin in the prerogative powers of the head of state. However, since the constitution is the supreme law, it is plain from Hugo's case that the courts may scrutinise the exercise of the power of pardon on the grounds that the power might not be exercised irrationally, capriciously, with disabling bias, or in violation of the bill of rights.

"We believe that the president might have negligently failed to consider the real danger of releasing Ncamazana back into the community. It will be for the family of the deceased to decide whether to institute legal proceedings against the president in respect of the damages which they must surely suffer as a result of the untimely death."

Leon said Mbeki was under an obligation to exercise his powers in such a way as to give consideration to the constitutional rights of all South Africans.