On 23 February 2010 the Constitutional Court under Chief Justice Sandile Ngcobo, handed down judgment in the Albutt vs CSVR & others (the CSOs that participate in a Network Against Impunity).? The judgment decided in favour of Khulumani and its associates in the network, that victims are entitled to an opportunity to be heard, before the President makes a decision to grant a pardon under the special dispensation.

The arguments of Khulumani and co-applicants were that the special dispensation process violated the conditions underpinning the process – that the pardons would be considered within the framework of the “principles, criteria and spirit” of the TRC.

Emphasizing the principle of victim participation, Chief Justice Ngcobo remarked that:

"Excluding victims from participation keeps victims and their dependants ignorant about what precisely happened to their loved ones; it leaves their yearning for the truth effectively unassuaged; and perpetuates their legitimate sense of resentment and grief. The results are not conducive to national-building and national reconciliation.”

Khulumani’s Advocacy Coordinator, Mr Tshepo Madlingozi, together with Mr Steve Kahanovitz of the Legal Resources Centre and Mr Hugo van der Merwe of the CSVR met with Senior Counsel representing the Presidency, Advocates Maleka and Moerane, on April 23, 2010 to present a set of minimum requirements for victim participation in pardons considerations.

They presented three requirements:

1. that victims and interested parties receive written notice that particular individuals have submitted pardons applications, directly in writing, through publication in the Government Gazette or newspapers or as oral notice in radio broadcasts;
2. that victims or their families be allowed to make written and / or oral representations regarding particular applicants; and
3. that they be given full access to the relevant documents.

Khulumani members are unequivocal in asserting that “consultation” should not be understood in a very narrow, formalistic sense. For this process to contribute to nation-building and national reconciliation, we demand:

• That the Department of Justice and Constitutional Development together with the Presidency partner with Khulumani to make sure that affected members’ input is meaningfully considered and;
• that victims encounter perpetrators in order to ask them questions, not only to ensure that the crime was ‘politically motivated’ but also to make space for possible reconciliation.