Authored By: Maria Shanga Masseka
University of Fort Hare
Case Name: President of the Republic of South Africa and Another v Hugo [1997] ZACC 4
Court: Constitutional Court of South Africa
Name of the Judge: GOLDSTONE J
Date of the Judgment: 18 April 1997
Parties Involved:
THE PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA
First Appellant
THE MINISTER OF CORRECTIONAL SERVICES
Second Appellant
versus
JOHN PHILLIP PETER HUGO
Respondent
1 FACTS OF THE CASE
The matter was before the court for appeal against the 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.
On 27 June 1994, the President of the Republic of South Africa acting in 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”), according to the act special remission of sentences was granted to certain categories of prisoners.[3] The category of direct relevance to these proceedings was “all mothers in prison on 10 May 1994, with minor children under the age of twelve (12) years”. It is common cause that the respondent would have qualified for remission, but for the fact that he was the father (and not the mother) of his son who was under the age of twelve years at the relevant date. In the application before Magid J, the respondent in an amended notice of motion[4] submitted an order declaring the Presidential Act unconstitutional and directing the first appellant to correct it in accordance with the provisions of the interim Constitution of 1993.[5]
2 LEGAL ISSUE RAISED
- The legal issue that was raised was whether a Presidential pardon that granting sentence remissions to imprisoned mother but not fathers was unfair sex discrimination violating the South African Constitution’s equality clause, which was conferred in section 8(1) and (2)of the interim.[6]
- And whether the powers of the president referred to in section 82(1) fall within a different category, whether the president is exercising constitutional powers as head of the executive or as head of the state, he is acting as an executive organ of government.[7]
3 ARGUMENTS OF THE PARTIES
The respondent alleged that the Presidential Act was in violation of the provisions of section 8(1) and (2) of the interim Constitution since it unfairly discriminated against him on the grounds of sex or gender and indirectly against his son in terms of section 8(2) because his incarcerated parent was not a female.[8] Section 8(1) and (2) of the interim constitution guarantees the right to equality and freedom from unfair discrimination. Section 8(1) states that every person has a right to equality before the law and equal protection of the law. Section 8(2) prohibits unfair discrimination on various grounds, including race, gender, sexual orientation and religion.[9]
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 given to mothers was not extended to fathers of small children, and failure to it 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.[10]
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.[11] 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.[12]
Therefore in the opinion of Judge GOLDSTONE, the content of the appellant does not constitute hearsay evidence; hence, it was not necessary to consider the alternative argument advanced by counsel of the appellant in terms of section 3(1)(c) of the Law of Evidence Amendment Act.[13] In the president’s affidavit it provided reasons for the special remission of the sentence of mothers with small children: 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.[14]
5 THE JUDGEMENT OF THE COURT
Judge Goldstone at Constitutional court held that court 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. 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.[15] Provided that there are at least two situations in which the power to pardon may be important. Firstly 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.[16] In exercising the power, the President considered carefully the implications of the remission he proposed, by taking into account the interests of the public and the administration of justice.[17]
The considerations taken would have made it impossible for the President to release all fathers who were in prison, as well as mothers, because male prisoners outnumber female prisoners almost fiftyfold.[18] 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.[19] Therefore as a 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.[20]
6 RATIO DECIDENDI
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 prohibit 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 gave to 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.[21]
CONCLUSION
This case has proved that the President power as head of the state is subject for judiciary review, even if the president has acted out in good faith, which in the case the president acted by consider the best interest of the child and taking other consideration into account. And that certain rights are arbitrary with a just course.
BIOGRAPHY
BOOKS
- Kobil
- The Quality of Mercy Strained: Wresting the Pardoning Power from the King
- (1991) 69 Texas Law Review 569.
CASE LAWS
President of the Republic of South Africa and Another v Hugo 1997 ZACC 4.
Hugo v president of the Republic of South Africa 1995 (2) SA 803 (T).
LEGISLATION
Presidential Act No.17.
The Constitution of the Republic of South Africa Act 200 of 1993.
NEWS REPORTS
Report of the Department of Correctional Services.
[1] Hugo v President of the Repubic of South Africa and Another 1996 (4) SA 1012 (D).
[2] Act 200 of 1993.
[3] The Presidential Act provided, inter alia, the following:
In terms of section 82(1)(k) of the Constitution of the Republic of South Africa, 1993 (Act 200 of 1993), I hereby grant special remission of the remainder of their sentences to :
– all persons under the age of eighteen (18) years who were or would have been incarcerated on 10 May 1994; (except those who has escaped and are still at large)
– all mothers in prison on 10 May 1994, with minor children under the age of twelve (12) years;
– all disabled prisoners in prison on 10 May 1994 certified as disabled by a district surgeon.
Provided that no special remission of sentence will be granted for any of the following offences or any attempt, soliciting or conspiracy to commit such an offence :
murder;
culpable homicide;
robbery with aggravating circumstances;
assault with intent to do grievous bodily harm;
child abuse;
rape;
any other crimes of a sexual nature; and
trading in or cultivating dependance producing substances..
[4] In the original Notice of Motion the respondent had initially sought an order for his release from imprisonment.
[5] Hugo v President of the Repubic of South Africa and Another 1996 (4) SA 1012 (D).
[6] President of the Republic of South Africa and Another v Hugo 1997 ZACC 4 para 3.
[7] President of the Republic of South Africa and Another v Hugo 1997 ZACC 4 para 11.
[8] President of the Republic of South Africa and Another v Hugo 1997 ZACC 4 para 3.
[9] Section 8(1) and (2) of the Constitution of the Republic of South Africa, Act 200 of 1993.
[10] President of the Republic of South Africa and Another v Hugo 1997 ZACC 4 para 33.
[11] 1995 (2) SA 803 (T).
[12] President of the Republic of South Africa and Another v Hugo 1997 ZACC 4 para 34.
[13] Act 45 of 1988.
[14] President of the Republic of South Africa and Another v Hugo 1997 ZACC 4 para 37.
[15] President of the Republic of South Africa and Another v Hugo 1997 ZACC 4 para 44.
[16] See for a full discussion Kobil
The Quality of Mercy Strained: Wresting the Pardoning Power from the King
(1991) 69 Texas Law Review 569.
[17] President of the Republic of South Africa and Another v Hugo 1997 ZACC 4 para 46.
18] The daily average prison population in 1994 was 108066 males and 2867 females. The female prison population was thus 2,58% of the total prison population. (Report of the Department of Correctional Services.).
[19] President of the Republic of South Africa and Another v Hugo 1997 ZACC 4 para 46.
[20] President of the Republic of South Africa and Another v Hugo 1997 ZACC 4 para 52.
[21] President of the Republic of South Africa and Another v Hugo 1997 ZACC 4 para 47.
