Procedural fairness as a component of legality : is a reconciliation between Albutt and Masetlha possible?

Abstract

In Albutt v Centre for the Study of Violence and Reconciliation 2010 (3) SA 293 (CC) the Constitutional Court expanded the concept of legality. It did so by finding that rationality, as a component of legality, required that the victims of politically motivated crimes had first to be afforded a hearing before the President could exercise his power to pardon prisoners who had been found guilty of committing these crimes, and who had not sought amnesty from the Truth and Reconciliation Commission ('TRC'). The effect of Albutt is that the principle of legality is now capable of imposing procedural-fairness standards on the exercise of public power where it would be irrational not to do so, regardless of whether the exercise of such power amounts to administrative action in terms of the Promotion of Administrative Justice Act 3 of 2000 ('PAJA'). Surprisingly, the Constitutional Court held that it was 'not necessary' to determine whether the exercise of the President's pardoning power amounts to administrative action in terms of the PAJA (Albutt para 83).