## Facts

- The Interim Constitution authorized the President to pardon or reprieve offenders and remit sentences.
- The President issued a general remission (Presidential Act No. 17) granting special remission to imprisoned mothers with minor children under age 12 as of a specified date.
- John Hugo, a male prisoner serving a lengthy sentence, was the widowed and sole living parent of a son under 12.
- Hugo would have qualified for remission if he had been the child’s mother rather than the father.
- Hugo challenged the remission as sex-based discrimination against him and as indirect discrimination affecting his child under the equality clause.
- The President stated the remission aimed to benefit children of imprisoned mothers, relying on prevailing caregiving realities and his personal experience of family hardship during incarceration.
- A lower court declared the measure unconstitutional and ordered it to be corrected; the President appealed directly to the Constitutional Court.

## Issues

1. Whether the President’s constitutional clemency/remission power is subject to the Bill of Rights and judicial review.
2. Whether limiting remission to imprisoned mothers of young children constitutes discrimination on the listed ground of sex (or sex combined with parental responsibility).
3. If there was discrimination, whether it was unfair under the equality clause.
4. Whether the measure indirectly discriminated against the prisoner’s child based on the sex of the child’s parent.

## Decision

- The Constitutional Court held that the President’s exercise of the constitutional remission power is reviewable for compliance with the Bill of Rights.
- The Court found the remission differentiated on a listed ground (sex), triggering a presumption of unfairness.
- The Court held the discrimination was not unfair in context and therefore did not violate the equality clause.
- The Court upheld the President’s appeal and set aside the order declaring the remission unconstitutional.

## Legal Principles

- All exercises of public power, including executive clemency/remission, are subject to constitutional constraints and judicial review.
- A categorical amnesty or remission necessarily draws lines; differentiation is expected, but must comply with constitutional equality standards.
- Differentiation substantially based on a listed ground (such as sex) triggers a presumption of unfair discrimination, placing the burden on the state to show fairness.
- Unfairness is assessed contextually, including purpose, social conditions, and the measure’s impact on affected persons.
- Gender-based generalizations ordinarily cannot justify unequal treatment if they entrench stereotypes; however, in limited contexts a measure aimed at mitigating concrete hardship for children may render sex-based differentiation fair.

## Conclusion

The court confirmed that constitutional clemency is reviewable and held that a remission benefiting imprisoned mothers of young children, though discriminatory on sex, was constitutionally permissible because the differentiation was not unfair when assessed against its child-centered purpose and social context.


President of the Republic of S. Afr. v. Hugo, 1997 (6) BCLR 708 (S. Afr. Const. Ct. 1997)