By Bahle Gama
When His Majesty King Mswati III issues a Royal Pardon, either freely or with a lawful condition, it remains above the Prison Act.
This was said by Chief Justice Bheki Maphalala when delivering a judgment in granting an appeal by the Attorney General (AG) to nullify an order by the High Court that was in favour of the Act for a murder convict.
The convict in question is Boyce Bheki Gama who was arrested and charged with murder on March 23, 1992, and was convicted and sentenced to death on September 23, 1993.
In his judgment on Tuesday, the CJ disclosed that Gama appealed against the conviction to the Court of Appeal which was dismissed on April 21, 1995, and his conviction and sentence were confirmed.
In 2001, the Prerogative Mercy Committee was established in terms of the Constitution that considered the death penalty imposed by the High Court.
On November 5, 2001, His Majesty King Mswati III acting on the advice of the committee in terms of the Constitution, commuted the death penalty imposed upon Gama on condition that he would be released upon attaining 75 years old.
Gama then sought an order before the High Court reviewing and setting aside the condition attached to the Royal pardon on the basis that it conflicted with the Prison Act of 1964 which limits the life sentence to 20 years imprisonment.
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He further alleged that the condition deprived him of remission to which he was entitled in terms of the Prison Act.
According to the CJ, to show that the sentence was severe, Gama alluded to Section 15 of the Constitution of 2005 which puts the life sentence to a minimum of 25 years.
The basis for the challenge of a condition attached to the Royal Pardon sentence was that the Prisons Act provided that a prisoner sentenced to life imprisonment is deemed to be imprisoned for 20 years.
Gama argued that the condition attached to the pardon was therefore unlawful and grossly unreasonable to the extent that it conflicted with the Act.
He further argued that he had been in custody for an effective period exceeding 20 years and that he had not earned any remission to which he was entitled in terms of the Prisons Act.
He alluded to the constitutional provision that a life sentence shall not be less than 25 years.
He further argued that the condition of 75 years attached to the pardon was very excessive and that it should be reviewed and set aside for conflicting with the Act and the current Constitution.
The review application was vehemently opposed by the AG on the basis that the court was functus officio (meaning that once the Judge has heard and made a ruling on the issue, he cannot therefore reinstate the matter).
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According to the CJ, the AG argued correctly that the matter was put to finality when Gama was convinced and to death by the High Court.
The AG further argued that Gama’s conviction and sentence were upheld by the Appeal Court which was at the time the final court in the land.
However, the High Court granted Gama’s application. The full bench of the High Court delivered its judgment on October 5, 2017. The AG lodged an appeal on October 6, 2017, on grounds that the High Court erred in law by proceeding to hear the matter notwithstanding that it was not functus officio, having convicted Gama of murder and sentenced him to death.
According to the AG, the High Court erred by holding that the age condition attached to Gama’s pardon was unlawful and that it had to be exercised.
Thirdly, the High Court erred in law in giving precedence to the Prison Act over the Constitution.
“Therefore, commutation of the sentence in terms of the Royal Pardon is deemed to be that of the High Court.,” he said.
The CJ elaborated further that accordingly, the High Court cannot review its own decisions in terms of the constitution. It is only the Supreme Court that has the jurisdiction to review its own decisions.
The High Court exercises review and supervisory jurisdiction over all subordinate courts and tribunals and any other lower adjudicating authority.
“It may in exercising that jurisdiction issue orders and directions for the purpose of enforcing its review and supervisory jurisdiction,” the CJ said.
The CJ further stated that on appeal at the Supreme Court, it was held that the High Court was on the basis that it convicted Gama of murder and sentenced him to death, a decision which was confirmed by the Court of Appeal.
It was further held that the Royal pardon is provided for in the constitution which is the supreme law of the land and that the Prison Act cannot override the provision of the constitution.
“The Royal Pardon can be granted either freely or subject to a lawful condition and consequently, the condition attached to it was lawful and not susceptible to judicial review,” the CJ said.
He stated that the only remedy available to Gama is to petition the Prerogative of Mercy Committee for the review of the condition attached in the Royal Pardon.
