On hysteria and the prerogative of mercy

Law is order, and good law is good order.
— Aristotle

Jacob Zuma is a free man. On Friday 11 August, he was one of the first beneficiaries of a special remissions process that will see the release of some 9000-odd ‘low risk’ offenders from correctional centres countrywide over the next 10 months. It is reported that Zuma arrived at the Escourt Correctional Centre just after 6.00am on Friday morning and was on his way back to his palatial Nkandla homestead by 7.00am the same day (or 9.00am, depends who you believe).

Zuma’s return to Escourt followed a judgment of the Supreme Court of Appeal setting aside a decision by the National Commissioner of Correctional Services to place him on medical parole. Having declared the decision unlawful, the court left it to the commissioner to decide whether the time Zuma spent on medical parole should count when determining the remainder of the 15-month sentence that Zuma was meant to be serving.

On Thursday 10 August, the commissioner made his decision and conveyed it to the Minister of Justice and Correctional Services. What the decision was is unclear. But from a reading of the media statement, it appears that the commissioner did count the time spent on medical parole as part of Zuma’s sentence, since Zuma ‘was not discharged (released), but was placed under community corrections’. Tying that with Zuma’s return to Estcourt, it is clear that the commissioner’s decision was that there was still a portion of the sentence – at least a month by my estimation – that Zuma had to serve under incarceration.

But, on the same day, the President signed a Proclamation for the remission of sentence for certain categories of offenders. These offenders had 12 months of their sentences shaved off plus another 12 months if they were considered ‘low risk’. The President’s Minute details the categories of offenders who are mostly non-violent and non-sexual offenders. It also provides that the process of release would commence with ‘special category’ inmates including women, children, the elderly, youth and disabled inmates. A subsequent media statement cites overcrowding as the reason for the special remissions process and notes that the process began in April and was apparently accelerated by a recent fire at a Limpopo centre, which led to a further loss of bedspace.

Relatively clear, right? Wrong. As with most things, the people in charge of conveying these two decisions bungled the whole thing up. Like I’ve said, the commissioner’s media statement is almost incomprehensible. It describes the effect of the SCA judgment at some length and then states that Zuma did ‘report back’ at Estcourt (okay?); that there was ‘[a] consideration’ made (what does this mean?)  ‘including processes that were already unfolding’ (such as?); that ‘administrative procedures have ensued’ (what are those?); and concludes that ‘Mr Zuma has been processed accordingly’ (according to what?).

The bewildering statement simply states at the end that the Minister was advised of the commissioner’s decision. We are left none the wiser as to the decision itself. (Someone needs to sort out the comms situation at the Department of Correctional Services because the same thing happened with the Thabo Bester escape and subsequent manhunt).

Thankfully, the commissioner was interviewed by the Sunday Times, in which he states that he informed Zuma that he ‘need[ed] to be admitted into the facility’ and that ‘if there was no process of remission he would now be at Estcourt correctional facility’.

The decision to announce both the commissioner’s decision and the special remissions process was a huge blunder. It caused confusion as to what was going on, as to who took the decision and on what basis. You also had the commissioner fielding questions about the special remissions process when that should have been the purview of the Minister, who would have undoubtedly been much closer to the decision.

In the end, by piecing together all of this information from the government we can conclude the following: (1) the commissioner decided that Zuma had to report to Estcourt to serve out the rest of his sentence; (2) the President signed a Proclamation granting remission of sentence to certain offenders; (3) Zuma fell within one or more of the categories of offenders granted remission; and (4) he is free as a result.


After some initial confusion due to a bad connection during the commissioner’s briefing, it became clear that Zuma had been freed. The reaction from the chattering classes was immediate. I expected there to be some outrage at the decision but the breathtaking hysteria that followed took me by surprise. Indeed, it gave me pause.

Over at News24, Adriaan Basson (who provided live commentary) noted that the decision ‘will certainly raise suspicions and questions about whether the DCS complied’ with the SCA decision. He also noted that the special remissions process ‘has never been presented to Parliament’ and that members of Parliament were hearing about it for the first time. He concluded that ‘this entire special remissions timing was engineered to benefit Zuma.’ Moreover, Basson rubbished the overcrowding justification and concluded that ‘it is inescapable not to believe that Ramaphosa and co were looking hard for a legal way to release Zuma without risking a repeat of the July 2021 riots’.

Basson’s colleague Pieter du Toit was no less scathing, saying the remissions process was ‘suddenly and deftly devised … to cover up a naked and shrivelled Cyril Ramaphosa and Ronald Lamola’:

The legal contortions Ramaphosa and Lamola had to go through to justify this announcement is remarkable. Using presidential authority and prerogative to dream up the “special remission” programme and to then announce it on the same day the Zuma matter came to a head reveals high levels of duplicity and disdain for the rule of law. Ramaphosa and Lamola, who have both in the past professed their commitment to justice, now seem to have a quite elastic relationship with right and wrong. The department, though, believes its decision will withstand legal scrutiny – something which will soon be tested in the High Court.

Du Toit wrongly attributes the remissions decision to the commissioner, but no matter, because ‘decisions are taken within the framework of party policy and factional allegiance’ and ‘the party will always put its interest ahead of the national interest’. For du Toit, the decision is a ‘morally dubious and ethically problematic abuse of executive power’ taken ‘in the interests of one man’ and ‘not in the interest of justice … fairness or the public’.

The DA, ActionSA and Afriforum expressed similar views to varying degrees. The DA has said it will consider legal action. Similar sentiments were all over my Twitter feed (I refuse to call it X), where I attempted to clarify what was going on. I was mistaken as saying that I thought the events of Friday morning were a coincidence. I don’t. They were clearly deliberate, but that does not make them unlawful. Nor was the reaction they elicited warranted.


The power to pardon or reprieve offenders is one of a class of discretionary powers vested in the President in terms of s 84(2) of the Constitution. The Constitutional Court has previously said that these powers ‘are not constrained in any express manner by the provisions of the Constitution’ [146].

Specifically, though, the power to remit sentences was the subject of the Court’s decision in Hugo, where President Mandela’s decision to remit the sentences of 440 offenders, all of whom were mothers of children under the age of 12, was challenged. Mr Hugo was a father and said that the decision to grant only mothers special remission was discriminatory on the basis of sex.

In considering whether the decision could be challenged in the first place, the Court stated that ‘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’, although this did not mean that ‘if a president were to abuse this power … a court would be powerless’. Because ‘[i]f, for instance, a president were to abuse his or her powers by acting in bad faith [there would be] no reason why a court should not intervene to correct such action and to declare it to be unconstitutional’ [29].

Importantly, Hugo clarifies that the bar will be set high where this power is exercised in respect of an individual – which is the norm and not the exception – while in cases of the exercise of the power in general terms, i.e., in respect of a category of offenders, the considerations would be different.

Why is this power even necessary? ‘It is a recognition … 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’ [44]. In addition to allowing the President to reduce sentences or grant mercy to sentenced offenders, ‘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’ [46].

Later, in Albutt, the Court clarified that the exercise of the power to institute a process akin to the special remissions process here, ‘must be rationally related to the achievement of the objectives of the process’ [50]. The duty of a court faced with a review of the pardon or reprieve power is to ‘determine not whether there are other means that could have been used, but whether the means selected are rationally related to the objective sought to be achieved. And if objectively speaking they are not, they fall short of the standard demanded by the Constitution’ [51].


All of this is trite to me and I suspect most lawyers. This is why I found the reactions to Friday’s announcement puzzling. The claims about Ramaphosa making a mockery of the justice system or the decision being a violation of the rule of law struck me as utterly hysterical.

I understand that Zuma is not exactly a darling of the South African media, but has the media allowed itself to become so consumed by its dislike of him as to lose all objectivity regarding any matter that involves him?

I raise this because both Basson and du Toit – who are celebrated journalists – reacted in ways that I found wholly unreasonable for people of their calibre. The DA and ActionSA are gearing up for an election, so their over-the-top pontification about the decision was expected. But more importantly, they have something to gain from inflaming the passions of their electoral base. What of our ostensible gentlemen of letters?

Let’s start with a troubling feature of both of their reporting: they do not seem to be interested in establishing the facts, at all. Both of them pay the use of the special remissions process to address overcrowding short shrift, with du Toit claiming that it was a rush job and Basson claiming that it was a convenient cover for letting Zuma loose. Yet they do not take the effort to show that the commissioner and the Minister are lying about (1) overcrowding in our prisons; (2) the effect of the loss of bedspace occasioned by the fire in Limpopo; or (3) the timeline for the implementation of the special remissions process. We are simply to take their word for it.

Despite what many may think, I am not naïve enough to believe that the timing was a coincidence. What is likely to have happened is that the commissioner relayed his decision to the Minister and in turn the President, who decided not to risk the kind of pandemonium that followed Zuma’s July 2021 arrest and, yes, decided to put the special remissions process into operation – possibly earlier than anticipated. No one has explained why that was not a legitimate thing to do. (It baffles me that a decision that avoids a potential descent into chaos, like that of July 2021, should be seen as not being in the public interest the same public that stands to lose the most from the destruction of public infrastructure and the like and that a decision that does present such ruinous potential is seen as being in the public interest. Alas, I digress).

Basson makes much of the timing of the decision: why now? The argument, here, is that Ramaphosa is releasing over 9000 offenders into society just so Zuma doesn’t have to do any more jail time, and that the decision is therefore wrong or at least questionable.

The argument proceeds from the assumption that the President could not grant Zuma reprieve – individually; that it would be improper for him to do so. But it would not. We know from Hugo that the President can indeed pardon, or offer reprieve to, one singular offender. We know too that, in those cases of individual pardon or reprieve, unless there is a manifest illegality, a court will be slow to intervene.

In fact historically, the exercise of the royal prerogative of mercy (often for the benefit of individual offenders) – the progenitor of the s 84(2)(j) power – was not reviewable by a court under English law (see the history of the power in [10] – [19] of Hugo). The use of the power for groups or categories of offenders is a modern development that brings with it the sort of procedural entanglements that fall within the scope of judicial review.

All this to say that Ramaphosa did not have to go ‘devise’ or ‘contort’ a legal scheme to disguise his reprieve of Zuma, because he simply could have done it, lawfully, for him and him alone. The failure to appreciate this fact leads Basson and du Toit to draw all manner of inferences and to speculate about what exactly went on behind the scenes. In so doing, they do not address the facts put before them by the commissioner and the Minister, who insist that the process started in April and that the timing of Ramaphosa’s decision should not bring its propriety into question.

Du Toit, assuming that there is such an impropriety, asserts that Ramaphosa had to contort himself into legal tangles in order to justify the decision, when, really, all he had to do was page to s 84(2)(j) of the Constitution. Basson says Parliament was not informed and knows nothing about the scheme. Quite right, the Constitution does not require Parliament to be specially informed of the exercise of this purely executive power. All it requires is that the decision of the President is in writing, countersigned by the relevant Minister and published in the Gazette in terms of ss 101(2) and (3) – all of which was done.

What is interesting is the claim that the decision shows ‘disdain for the rule of law’ or is in some sense a violation of the rule of law. The ‘rule of law’ here is used loosely to refer, seemingly, to an outcome where Zuma remains behind bars. Any other outcome is simply a violation of the rule of law. It seems like we have to remind Basson and du Toit, as they often do Zuma, that the rule of law isn’t only vindicated when you get what you want.

What is more, the initial unlawfulness, the wrong that led the DA to court in the first place, has conveniently disappeared from view. The reason that Zuma’s initial release was offensive was not that he was released; but that his release was unlawful – the commissioner had no power to grant him medical parole. That decision was set aside. Here, the commissioner has done nothing of the sort. In fact, he recommended that Zuma serve out his sentence. No effort is made to show why this decision by the President to grant clemency to offenders, including Zuma, is unlawful.

If they took the rule of law seriously, Basson and du Toit would have realised that their insistence that Zuma remain behind bars at all costs actually violates the principle. The rule of law requires a number of things, including the general application of laws and equality before the law. According to the commissioner, Zuma is a low risk, non-violent offender and thus qualifies to benefit from the special remissions process. He is also elderly, entitling him to preferential ‘processing’ for special remission. To carve out an exception for him when he meets the general criteria for remission of sentence would be to violate at least two rule of law requirements. You will be hard pressed to find any serious consideration of these implications in their commentary.

Worse still, du Toit seems to think that Zuma’s abuse and contempt of the judicial process mean that he should not benefit from any remission of sentence or penalty, despite having been duly sentenced and incarcerated, and should instead be met with the kind of retributive logic that seems to propel his and Basson’s arguments. Yet, Zuma still has to answer for his alleged crimes and Friday’s decision does nothing to change that.

Anyway, it seems like the DA will challenge the decision. I wish them well. They will first have to explain why they are singling one out of 9000 or so offenders. Then they will need to show that the special remissions process is not rationally related to the goal of reducing prison overcrowding or that the President acted in bad faith, for an improper purpose or beyond the scope of his powers.

In conclusion, if one parks the hysteria to one side and considers the matter soberly, there was no violation of the rule of law here. It was a pragmatic, constitutionally permissible decision. Some may not like it, sure. But to elevate that to the level of a constitutional crisis is a bit too much – and that’s coming from me!

Those who would allow their dislike of Jacob Zuma to upend their good senses would do well to heed the injunction of the famous Sir Thomas More that they should give even the Devil the full benefit of the law, for their own safety’s sake.






3 responses to “On hysteria and the prerogative of mercy”

  1. Rob Turrell Avatar
    Rob Turrell

    When we had the death penalty and a mandatory sentence of death for murder, the royal prerogative of mercy was well used to commute death sentences …


  2. Bhaso Ndzendze Avatar
    Bhaso Ndzendze

    So insightful! Thanks, Dan.

  3. Kolosa Ntombini Avatar
    Kolosa Ntombini

    I thoroughly enjoyed reading this. Very insightful indeed.

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