RC 🇿🇦

[In Legalbrief Case Law Briefs] CONSTITUTIONAL DAMAGES AWARDED FOR 24-YEAR FAILURE BY SUCCESSIVE PRESIDENTS TO DECIDE A PARDON APPLICATION In Mofokeng and Another v President of the Republic of South Africa and Others a. The Constitutional Court held that a 24-year failure by successive Presidents to decide a pardon application was unconstitutional. Mofokeng and Mokoena were convicted of murder after a flawed single-witness trial, and served 19 years before parole. SDU members later admitted before the TRC that the two men were not involved. Their 2001 pardon application was decided only in December 2025, after they approached the Court - posthumously for Mokoena. The Court held that s 84(2)(j) of the Constitution, read with ss 83(b) and 237, couples the discretionary pardon power with a duty to decide applications rationally, diligently and without delay. A failure to decide therefore engages the Court's exclusive jurisdiction under s 167(4)(e) (Chonco I). The pardon did not render the matter moot (Pheko). Neither the s 327 Criminal Procedure Act process nor the Special Dispensation superseded the original application, and the President is accountable for delegated steps, so the delay was 24 years. The Court held that constitutional damages, available under section 172(1)(b) for breaches outside the Bill of Rights, were the most appropriate remedy (Fose, Modderklip, Kate and Residents). The violation was egregious, and relegating the applicants to a delictual claim would be manifestly unjust. Common-law transmissibility rules did not bar an award to Mokoena's estate. A structural interdict was refused. The current and former Presidents had breached ss 84(2)(j), 83(b) and 237 and the applicants are entitled to constitutional damages, with the quantum to follow submissions; a high court delictual action remains open, with any constitutional award taken into account. Read the summary (subscribers only) or view the judgment. Judgment link: bit.ly/4kgiCLV Summary: bit.ly/3W42H9G Stay informed with daily case law and legal news updates. Subscribe to Legalbrief: bit.ly/4xNYd53