Johannesburg — THE Constitutional Court is the only competent court to decide on the conduct of the president in not granting pardons to Inkatha Freedom Party (IFP) prisoners, counsel for the president and the justice minister say in their submissions to the court.

The minister is appealing against a Supreme Court of Appeal (SCA) judgment in March that former justice minister Brigitte Mabandla was obliged to process the applications for pardon of 384 IFP members and do what was required to enable the president to exercise his power to pardon them.

Last month, Chief Justice Pius Langa asked the minister and the prisoners to make submissions on whether -- in the light of two sections in the constitution concerning the president's powers and the Constitutional Court's powers -- the high court and the SCA were competent to hear the matter of pardons. The chief justice also asked whether only the Constitutional Court was competent to hear the matter.

Section 84(2)(j) enables the president to grant pardons while section 167(4)(e) states that only the Constitutional Court may decide that the president has failed to fulfil a constitutional obligation.

In their written submissions to the Constitutional Court, counsel for the president and the minister, Marumo Moerane SC and Leah Gcabashe, said the substance of the application by the prisoners was that there had been a failure to process the applications for pardon lodged in terms of section 84(2)(j).

"The ... complaint ought to have been directed to the president, who is the functionary in whom the entire process culminates in the final decision on whether to grant or refuse an application for pardon in terms." They said section 84(2)(j) gave the president complete control over the pardon process. The constitution did not, directly or by implication, oblige the minister to process the application for pardon.

They said the SCA's approach constituted judicial law-making in that it created constitutional obligations on the president that were not within the contemplation of the provisions of section 84.

"What that court ought to have done instead was to give effect to the clear and unambiguous meaning of section 84(2)(j) ... and find that this matter was one that falls within the exclusive jurisdiction of the Constitutional Court as contemplated in section 167(4)(e) of the constitution."

Advocates for the prisoners, TJ Kruger SC and Carel van Jaarsveld, said the president had joined the high court from the outset , and it is "therefore submitted that the president is and always has been a party to these proceedings".