On the instruction of President Cyril Ramaphosa I, in my capacity as Minister of Justice and Correctional Services, met with higher education student activists on Friday August the 24th at the Union Buildings who were demanding a general amnesty for their fellow comrades who came into conflict with the law as a result of incidents that occurred during the #FeesMustFall campaign protests.

This followed a prior engagement I had with similarly affected students who marched to The Presidency in Tuynhuys, Cape Town, on Wednesday the 23rd of August.

On both occasions, I pointed out that in line with its respect for the principles of separation of powers and the rule of law, the Executive branch of government had neither the mandate nor the inclination to favour any person or group of people with a specific or general reprieve outside the existing constitutional and legal framework.

The criminal justice system provides avenues for various alternatives to outright criminal prosecution which include diversion, mediation and various forms of restorative justice mechanisms.

Section 84 (2) J of the Constitution of the Republic confers on the President, among others, the power to grant “pardon[…] or reprieve[s to] offenders and remitting any fines, penalties or forfeitures.”

With respect to pardons, the Department of Justice and Constitutional Development supports the process by way of facilitating applications and draft memoranda on the basis of which the Minister makes a recommendation to the President for decision.

In this particular instance, I proposed the following to the students:

The students will constitute a delegation which will provide a list of all affected students, i.e. those who are arrested and still in custody or detention, charged or awaiting prosecutorial decision, on trial and sentenced – including those serving custodial sentences in a correctional facility;

The Minister has undertaken to assist the students in approaching the National Prosecuting Authority (NPA) to consider evaluating each case, specifically in order to determine the seriousness or otherwise of the charges, the weight or otherwise of the available evidence and, where appropriate, possibilities of the option for diversion, mediation or other forms of restorative justice in the case of those students who are yet to appear before the courts;

The Minister will, where appropriate, guide the students in making applications to the NPA for the review of prosecutorial decisions in cases of students who are already charged and whose matters are currently on trial, and;

The Ministry of Justice will guide the students on the process of compiling applications for Presidential pardon for those students seeking to make such applications. 

It is further worth noting that Presidential pardons are granted in respect of convicted and sentenced persons only on the basis of the information they provide and in circumstances where the applicant has shown good cause. Under no circumstances can Presidential pardon be pre-determined.

The Department of Justice and Constitutional Development stands ready to begin with the process as soon as the students have submitted their applications with the relevant information.