An anonymous ANC source has told Rapport newspaper that new legal grounds were being considered in order to facilitate the pardons of former apartheid hitman Eugene de Kock and convicted fraudster Schabir Shaik.

The purported basis upon which the President will rely for granting these highly unpopular releases, is that "selective prosecution" occurred in both cases and while other offenders remain at large, these two poor dears are carrying the can.

If this were to be acceptable then any murderer from a gang is entitled to his freedom until all the other suspects are caught and tried simultaneously. Don't bother trying Agliotti for the murder of Brett Kebble because until John Stratton is extradited Glenn is being selectively prosecuted. When you commit a ten million rand fraud ensure one of the syndicate leaves the country immediately so that the others can claim "selective prosecution".

Of course there's a simple term for describing the total use of equity while ignoring the law in the manner that is currently being done. It's called anarchy. You find it in Afghanistan, Somalia and the like where each area has local warlords who determine what's equitable for their neighbourhood and sucks to the central government.

Moreover once you have totally undermined the rule of law and the criminal justice system, as we are seeing right now, reversing the process becomes a bugger which is normally only achieved by resorting to the use of the military.

The ANC has distanced themselves from the issue of Presidential pardons confirming that they do not discuss them with President Jacob Zuma.

"The ANC doesn't inform the president's decisions," said ANC spokesman Jackson Mthembu. "Many issues are the President's prerogatives. We try to separate these matters from any ANC discussions so that we don't influence the President on any matter as the ANC.

In addition Rapport reported that there is considerable division within the ANC over both De Kock's and Shaik's pardons.

"Any decision by the President to pardon anyone had to conform to the Constitution and could be reviewed by a court" [Professor Pierre de Vos citing President of the Republic of South Africa and Another v Hugo (CCT11/96) [1997] ZACC 4)]

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…. his discretion is unfettered, in the sense that it is not expressly limited by the interim Constitution. (Hugo case)

This does not mean that where the President pardons an individual, that decision cannot be reviewed by a Court. As Goldstone stated in the Hugo case:

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… 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.

So if the President pardons Schabir Shaik because he fears that Shaik will spill the beans on the mutually symbiotic (and corrupt) relationship between himself and the President or because Shaik had deposited a million bucks into his bank account, the decision could be set aside by a court. (Prof de Vos)

Accordingly if the President were to pardon Shaik and de Kock the chances are that the hitman would remain at large while the Concourt might well return Mr Shaik - if he is still alive of course - to house arrest.

Unlawful and inequitable?

Sapa-RS