Case  CCT 246/25 
[2026] ZACC 43

Judgement Date: 21 October 2026

Post Judgment Media Summary  

The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.

On Wednesday, 21 October 2026, the Constitutional Court handed down judgment in a direct access application in respect of the current and former Presidents’ failures to fulfil their constitutional obligations, pursuant to section 84(2)(j) of the Constitution, read with sections 83(b) and 237, in so far as they had failed to diligently and without delay decide on the joint pardon application of Mr Fusi Simon Mofokeng and Mr Tshokolo Joseph Mokoena.

The application was brought by Mr Mofokeng and Ms Xoliswa Percival Mokoena (applicants), the latter in her capacity as representative of the estate of her late husband, Mr Mokoena. The matter was opposed by the President of the Republic of South Africa, in his official capacity; the Minister of Justice and Constitutional Development (Minister); and the Department of Justice and Constitutional Development (Department) (collectively referred to as the respondents). The case was also brought against former Presidents Thabo Mbeki, Kgalema Motlanthe and Jacob Zuma in their personal capacities (collectively referred to as the former Presidents). The former Presidents neither opposed nor participated in the matter.

The background of the matter was as follows. On 2 April 1992, a shoot-out between an African National Congress self defence unit (SDU) and members of the South African Police Service in Bethlehem, Free State resulted in the death of one police officer and serious injury to another. Following a flawed trial in which the only evidence against Mr Mofokeng and Mr Mokoena came from a single unreliable State witness, they were convicted of conspiracy to commit robbery, attempted murder and murder. Despite not having been at the scene of the shoot-out nor involved with the SDU, they were convicted for attempted murder and murder on the basis of the doctrine of common purpose. They were sentenced to life imprisonment and an additional 18 years’ imprisonment. Mr Mofokeng and Mr Mokoena were eventually released on parole in April 2011, after serving 19 years.

Mr Mofokeng and Mr Mokoena maintained their innocence throughout their trial and period of imprisonment. After the trial, they exhausted all legal remedies, including:

• 1. Attempting to appeal their conviction and lodging an application for amnesty before the Truth and Reconciliation Commission (TRC). They ultimately withdrew their application to the TRC as they were unwilling to admit guilt, a necessary precondition to pursuing an amnesty application. However, four members of the SDU who were involved in the shoot-out were granted amnesty for the murder and attempted murder convictions. During their TRC hearing, three SDU members admitted that not only did Mr Mofokeng and Mr Mokoena have no involvement with the SDU, but that the latter two “were complete strangers to them”.
• 2. Mr Mofokeng and Mr Mokoena jointly applied for a presidential pardon pursuant to section 84(2)(j) of the Constitution in November 2001 (pardon application). The grounds on which they sought the presidential pardon were the admissions made by the SDU members before the TRC Amnesty Committee and their subsequent grant of amnesty, the unreliability of the single State witness’s testimony and the witness’s admission that he was bribed to present false information. Mr Mofokeng and Mr Mokoena were not told that the absence of the criminal trial records made their pardon application incomplete. Instead, when they followed up with the Department and other government officials over the years, they were advised that the application was being considered.
• 3. In or around 2008, while their section 84(2)(j) application was pending, Mr Mofokeng and Mr Mokoena applied for presidential pardons pursuant to former President Mbeki’s Special Dispensation, although they did so with the knowledge that their affirmation of innocence before the TRC would not qualify for the special dispensation.
• 4. Mr Mofokeng and Mr Mokoena also applied for the overturn of their convictions pursuant to section 327 of the Criminal Procedure Act 51 of 1977 in July 2017 (section 327 application), which was rejected by the Director of Public Prosecutions in June 2018. They were never informed that said applications had been rejected by the Minister, as is required by section 327.

After the lack of communication pertaining to their section 327 application, Mr Mofokeng and Mr Mokoena followed up with the Office of the Presidency in April 2021 on the status of the pardon application and requested that a decision be made by May 2021. In response, the Department noted that the matter had been referred back to it for a fresh recommendation in light of the amount of time that had passed, and requested that Mr Mofokeng and Mr Mokoena complete new forms, essentially restarting the process. Mr Mofokeng and Mr Mokoena submitted supplementary information after having received confirmation that the further updated information would not serve as a new application, and requested that the section 327 application be stayed pending a decision on their pardon application.

After providing the requested documentary proof to the Department in July 2023 and not receiving a decision on the application despite numerous follow-ups, the applicants launched an application in this Court in August 2025. After the applicants initiated their application, the President undertook to decide their pardon application by 31 January 2026. On 19 December 2025, the President pardoned Mr Mofokeng and Mr Mokoena, the latter posthumously, on all counts for which they were convicted.

In this Court, the applicants argued that its exclusive jurisdiction was engaged, as the current and former Presidents’ failure to determine their pardon application constituted a failure to fulfil a constitutional obligation. They contended that section 84(2)(j) of the Constitution, read with sections 83(b) and 237, required the President to decide upon pardon applications rationally, in good faith, diligently, without delay and in accordance with the principle of legality. The applicants relied on the judgment of this Court in Chonco I, which affirmed that a challenge to the failure to determine pardon applications, properly constructed, falls within the exclusive jurisdiction of this Court. The applicants brought the matter on the basis of direct access in the alternative. They argued that it was in the interests of justice for the matter to be heard by this Court as a court of first instance in light of the prolonged delay in deciding the pardon application, the need for finality and the implications for their constitutional rights.

On the merits, the applicants’ case was that the only explanation for why it took so long for their application to be decided was “a complete breakdown of the systems in place for processing pardon applications or gross incompetence on the part of officials responsible for dealing with them”.

In light of the granting of the presidential pardons, this Court issued directions calling for submissions on whether the grant of the pardon application affected the validity of the application before this Court and, arising from that, what a just and equitable remedy would be if one was warranted. The applicants noted that two of the prayers for relief, directing the President to determine the pardon application and consider a posthumous pardon for Mr Mokoena, had fallen away. The remaining four prayers for relief, they argued, were not rendered moot by the determination of the pardon application.

Three of the other four prayers for relief pertained to declaratory orders: first and second, that the failure of the current and former Presidents to determine the pardon application constituted a failure to comply with their constitutional obligations and violated the constitutional rights of Mr Mofokeng and Mr Mokoena; and third, that if the pardon application had been processed diligently and without delay, it would have been finally determined by no later than 5 November 2003. The remaining prayer for relief was for constitutional, alternatively, delictual damages, stemming from the violation of Mr Mofokeng and Mr Mokoena’s constitutional rights.

The applicants contended that the declaratory orders were necessary to vindicate the Constitution and uphold the rule of law, especially as this Court held in Pheko and Pillay that, firstly, a matter is not moot just because the immediate dispute had passed; the lawfulness of the state’s conduct remained a live issue even after the conduct was carried out and, secondly, that declaratory relief may be necessary to vindicate rights. The applicants contended further that the granting of the pardons did not vindicate or cure the failure of the current and former Presidents to discharge their constitutional obligations, nor was that alone an adequate remedy in the face of the gross delay. Accordingly, the declaratory orders were necessary for future accountability, said the applicants. Similarly, the applicants contended that constitutional damages were the most appropriate remedy to address the extreme and shocking infringement of their constitutional rights.

Following the granting of the pardon application, the applicants applied for leave to amend their notice of motion to include a claim for a structural interdict in light of what they referred to as “the administrative process for dealing with pardon applications [being] in disarray . . . compounded by the bureaucratic resistance to the pardon process being used for the core purpose of redressing mistaken convictions”.

In response, the President submitted that the delay since November 2021, when the application for pardon was re-submitted, was “deeply regrettable”, for which he apologised. He noted that he sought to discover why there was a significant delay between the first application for pardon in 2001 and the date he claimed the application was presented to him. The President stated that he could find no evidence that the application for pardon was placed before the former Presidents, despite having been processed by the Department, nor was he able to determine why the original application never reached the Presidency.

The respondents argued that the decision on the presidential pardons had rendered the matter moot and that the relief sought by the applicants would not have any practical effect, which would make any decision reached by this Court essentially an advisory opinion. Even in instances in which this Court has a discretion to adjudicate matters that no longer raise live issues, the respondents argued that this discretion is restricted to situations in which orders would have a practical effect on the applicants or others. Citing Pridwin, the respondents noted that this Court should decline to decide matters unlikely to recur.

The respondents argued further that the matter did not fall within this Court’s exclusive jurisdiction, nor do the applicants make out a case for direct access. First, they argued that the constitutional provisions did not impose obligations that rested on the President alone and second, the power to grant pardons is a discretionary power of the President and one whose exercise is not necessary for the proper functioning of the State. On direct access, the respondents contended that the applicants’ explanation of a need for finality was insufficient in light of their claim for damages, which would have to be adjudicated by the High Court.

On the merits, the respondents submitted that the delay should be reckoned from November 2021, rather than November 2001. The respondents contended that Mr Mofokeng and Mr Mokoena submitted a new application for pardon in November 2021, rather than supplementing their original application. Further, the original November 2001 application was overtaken by the other avenues pursued by the applicants and rendered it incompetent for their pardon application to be decided. They explained that the primary reason for the four-year delay was the under capacitation of the Directorate: Legal Process in the Department, which processes applications for the expungement of criminal records and applications for pardon. Though the delay of four years was “regrettable”, the respondents contended that it was “no longer than it took the applicants, themselves, to put together their section 327 applications”.

The respondents contended, further, that the constitutional violations raised by the applicants in this Court merged the delay in deciding the pardon application with the outcome they were hoping to receive, as the claimed constitutional violations were reliant on an expected outcome that the pardon application would be granted. Finally, the respondents argued that, regarding the claim for damages, Ms Mokoena did not have standing to pursue a damages claim on behalf of Mr Mokoena as the claim was not instituted before his death, nor does Mr Mokoena’s estate have any interest in a breach of his rights, which were personal in nature.

There were four issues for determination in this matter: first, whether this Court had exclusive jurisdiction over the matter and whether leave to amend was to be granted; second, whether the matter was moot in light of the President’s granting of Mr Mofokeng and Mr Mokoena’s pardons on 19 December 2025; third, whether the conduct of the current and former Presidents violated their constitutional obligations pursuant to sections 84(2)(j), 83(b) and 237 of the Constitution; and finally, the appropriate remedy, if any.

A unanimous judgment was produced in this matter penned by Kollapen J, with Mlambo DCJ, Dambuza J, Kollapen J, Majiedt J, Mathopo J, Mhlantla J, Nuku AJ, Rogers J and Savage J concurring.

It concluded that this Court’s exclusive jurisdiction was engaged in terms of section 167(4)(e) of the Constitution in that the right to have one’s pardon application decided rationally, in good faith, in accordance with the principle of legality and in terms of the requirements of section 237 of the Constitution, imposed a corresponding obligation on the President, who is the only actor with the power to determine such applications. The failure of the current and former Presidents to decide on Mr Mofokeng and Mr Mokoena’s pardon application accordingly fell within the scope of a failure to fulfil a constitutional obligation. This Court relied on the decision in Chonco I in reaching this finding. It explained that although the comments in Chonco I were obiter in light of the facts of the case, and thus not binding, even obiter dicta is highly persuasive when they come from the apex Court and should only be departed from “after due and careful consideration”. This Court could find no reason why it should be departed from in this case. Even without considering the obiter remarks in Chonco I, the Court was satisfied that the matter fell within its exclusive jurisdiction.

With regard to the amendment sought by the applicants to their notice of motion, the application was granted. This primarily because the application to amend was made in response to information presented in the answering affidavit that was not available to the applicants at the time that they prepared their founding affidavit, particularly that the President was not able to ascertain why Mr Mofokeng and Mr Mokoena’s application was not placed before the Office of the Presidency until 2021. The leave to amend application has been fully ventilated in this Court, was not prejudicial to the respondents and was also something that could be addressed through a costs order.

As to mootness, this Court found that many of the issues brought before it were still live. The Court noted that, at its heart, the matter was about more than the grant of the joint pardon application; it was about the delay in deciding the application and the harm which arose from that. Although a decision of this Court would not have a practical effect on the granting of the pardon application, the question as to whether the Presidents failed to fulfil their constitutional obligations, whether Mr Mofokeng and Mr Mokoena’s constitutional rights were infringed and what remedy was to come from that, all remained live issues. Furthermore, the scope of the President’s power under the Constitution had never been the primary issue for determination before this Court and, as such, it was in the interests of justice that the issue be pronounced upon.

On the merits, this Court concluded that the President is required to maintain full control of, and accordingly has full obligations in respect of every step of, the pardon process. It is a feature of the power being one which can only be exercised by the Head of State and was the only way to avoid an accountability gap in which neither the President nor the Department could be held responsible for failures occurring at a particular step. This Court held that the President was accountable for any failure of the process which occurred in the portions he had delegated to the Minister or Department. In light of the President’s acknowledgement that the pardon application was originally submitted to the Department in 2001, and was not decided until 2025, the only logical conclusion was that the amount of time which had lapsed was 24 years.

This Court noted further that the President did not contest that he had failed to fulfil his constitutional obligations, even acknowledging that the delay was “regrettable” and apologising for it. He similarly conceded that, although the fault may have lay with the Minister or within the Department, he held ultimate responsibility as the pardon power was one exercised solely by him. This Court noted that these concessions by the President were properly made. Even if one considered the delay to be four years, rather than 24, that would have been no less unacceptable and inexplicable. This Court found that an under-capacitated administrative process was not a valid explanation. The only way in which a 24-year delay could have occurred is through wilful neglect or gross negligence. The Court lamented that Mr Mokoena had passed away before his rights could be vindicated, and also without receiving a conclusion to his long and relentless quest to have his name cleared. This Court emphasized that what happened in this matter was far worse than the President’s euphemistic description of the circumstances as “deeply regrettable”. This Court found that such behaviour, stretching from the initial handling of the pardon application to the pleadings before this Court, was inexplicable and should be censured in the strongest terms. This was a quintessential failure to fulfil the constitutional obligations contained section 84(2)(j), read with sections 83(b) and 237, of the Constitution.

Having reached this finding, this Court concluded that a declaration regarding the failure to fulfil constitutional obligations would not only assist in validating the harm suffered by the delayed decision on the application, but would also serve to discourage further lapses by the President, Minister and Department. However, with regard to the structural interdict, this Court concluded that the interests of justice did not require the granting of a structural interdict. This Court noted that structural interdicts should be made only when necessary and for the primary purpose of securing compliance with court orders. Similarly, this Court concluded that, although it is evident that the delay was unconscionable, it would be improper to prescribe how long the President should take to decide pardon applications, or how long would have been reasonable to determine the initial application. That is a question which would always be context- and fact-specific.

The Court then turned to the question of what remedy, or combination of remedies, would properly vindicate the rights of Mr Mofokeng and Mr Mokoena in these circumstances. This Court noted that this was the first occasion on which it had considered the possibility of constitutional damages for constitutional violations not arising out of the Bill of Rights. However, this Court concluded that it would be inconceivable to say that the President’s constitutional obligation to consider pardon applications, as contained in section 84(2)(j), did not create a corresponding constitutional right on the part of petitioners to have their pardon applications properly and timeously considered by the President. The Court cited Hugo in support of this conclusion.

This Court emphasized that the question of the appropriateness of constitutional damages in any given matter was complicated by the seemingly indistinct legal principles governing the remedy. Following a detailed consideration of the jurisprudence governing constitutional damages, the following principles as to this remedy were delineated in the judgment:

• (a) The nature of the right violated and the degree and extent of the violation of the right must be considered. The egregiousness of the violation is a factor that should be considered in determining whether constitutional damages should be awarded.
• (b) The existence of an alternative remedy does not preclude consideration of an award of constitutional damages. Where an alternative remedy is available to the claimant, the court must determine whether that remedy, or one of constitutional damages, would be the most appropriate in the circumstances to vindicate the violated right.
• (c) An award of constitutional damages cannot be punitive in nature or go beyond addressing the harm that has been caused to the claimant.
• (d) In assessing whether a claimant should pursue the alternative remedy, a Court will inquire whether doing so would be manifestly unjust or unreasonable in the circumstances.
• (e) While constitutional and delictual damages are conceptually different, they are related and ideally should be dealt with together. The High Court is ideally suited to deal with such claims together.

With these principles in mind, the judgment concluded that where there had been such a blatant and egregious violation of a constitutional obligation by the most powerful office in the country, such as occurred in this case, there were a number of factors which rendered constitutional damages the most appropriate remedy. These included: the inordinate period of 24 years during which the breach of the constitutional rights endured; the callous attitude of the Presidency when concerns were repeatedly raised over time regarding the delay in taking a decision; and the nature of the right in question – being the right to have one’s pardon application properly and timeously considered, which, if acted on appropriately, would have seen Mr Mofokeng and Mr Mokoena released from detention some years prior to their release in 2011. This Court concluded that, on the same bases, directing the applicants to pursue a delictual remedy would be manifestly unjust and unreasonable.

The respondents argued that Ms Mokoena did not have standing to pursue a damages claim on behalf of Mr Mokoena because the claim was not instituted before his death, and that Mr Mokoena’s estate has no interest in the infringement of rights which were personal in nature. The Court concluded that that argument failed to appreciate the distinction between a claim for damages arising under the common law and a self-standing claim for constitutional damages. As the Court had previously recognised, section 38 of the Constitution is central to the determination of a claim for constitutional damages, and must be read together with section 172(1)(b), which empowers a court to make any order that is just and equitable. The breadth of this remedial discretion permits courts to fashion effective relief having regard to the demands of justice and equity in the circumstances of each case. This Court held then that there was no basis to take common law rules regarding delictual damages and transplant them into the constitutional damages context in a manner that straightjackets this Court’s ability to grant an order that is “just and equitable”. This Court concluded that it would not have been “just and equitable” to allow the respondents’ own egregious delays to mean that they escaped liability for constitutional damages in respect of Mr Mokoena.

In light of the conclusion that constitutional damages should be awarded, this Court noted that the appropriate quantum of the constitutional damages was still to be considered. Taking into consideration the interests of justice and finality in this matter, this Court concluded that it was to determine the quantum of constitutional damages. However, as this issue had not yet been ventilated before this Court, the parties were ordered to file written submissions on the appropriate quantum of constitutional damages.

The Full judgment  here