S v Makwanyane and Another (CCT3/94) [1995] ZACC 3; 1995 (6) BCLR 665; 1995 (3) SA 391; [1996] 2 CHRLD 164; 1995 (2) SACR 1 (6 June 1995)

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[1995] ZACC 3
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S v Makwanyane and Another (CCT3/94) [1995] ZACC 3; 1995 (6) BCLR 665; 1995 (3) SA 391; [1996] 2 CHRLD 164; 1995 (2) SACR 1 (6 June 1995)

IN THE CONSTITUTIONAL
COURT OF THE REPUBLIC OF SOUTH AFRICA
Case No. CCT/3/94
In the matter of:
THE STATE
versus
T MAKWANYANE AND M MCHUNU
Heard on: 15 February to 17 February
1995
Delivered on: 6 June 1995
______________________________________________________________
JUDGMENT
________________________________________________________________
CHASKALSON P:
The two
accused in this matter were convicted in the Witwatersrand Local
Division of the Supreme Court on four counts of murder,
one count
of attempted murder and one count of robbery with aggravating
circumstances. They were sentenced to death on each
of the counts
of murder and to long terms of imprisonment on the other counts.
They appealed to the Appellate Division of the
Supreme Court
against the convictions and sentences. The Appellate Division
dismissed the appeals against the convictions and
came to the
conclusion that the circumstances of the murders were such that the
accused should receive the heaviest sentence
permissible according
to law.
Section
277(1)(a)
of the
Criminal Procedure Act No. 51 of 1977
prescribes that the death
penalty is a competent sentence for murder. Counsel for the accused
was invited by the Appellate
Division to consider whether this
provision was consistent with the Republic of South Africa
Constitution, 1993, which had
come into force subsequent to the
conviction and sentence by the trial court. He argued that it was
not, contending that it
was in conflict with the provisions of
sections
9 and 11(2) of the Constitution.
The Appellate Division dismissed
the appeals against the sentences on the counts of attempted murder
and robbery, but postponed
the further hearing of the appeals
against the death sentence until the constitutional issues are
decided by this Court.
See
:
S v Makwanyane en ‘n Ander
[1994] ZASCA 76
;
1994 (3) SA 868
(A). Two
issues were raised: the constitutionality of
section
277(1)(a)
of the
Criminal Procedure Act, and
the implications of
section
241(8) of the Constitution. Although there was no
formal reference of these issues to this Court in terms of
section
102(6) of the Constitution, that was implicit in the judgment of
the Appellate Division, and was treated as such by the parties.
The trial was concluded before
the 1993 Constitution came into force, and so the question of the
constitutionality of the death
sentence did not arise at the trial.
Because evidence which might possibly be relevant to that issue
would not have been led,
we asked counsel appearing before this
Court to consider whether evidence, other than undisputed
information placed before
us in argument, would be relevant to the
determination of the question referred to us by the Appellate
Division. Apart from
the issue of public opinion, with which I will
deal later in this judgment, counsel were not able to point to
specific material
that had not already been placed before us which
might be relevant to the decision on the constitutional issues
raised in this
case. I am satisfied that no good purpose would be
served by referring the case back to the trial court for the
hearing of
further evidence and that we should deal with the matter
on the basis of the information and arguments that have been
presented
to us.
It would no doubt have been
better if the framers of the Constitution had stated specifically,
either that the death sentence
is not a competent penalty, or that
it is permissible in circumstances sanctioned by law. This,
however, was not done and it
has been left to this Court to decide
whether the penalty is consistent with the provisions of the
Constitution. That is the
extent and limit of the Court's power in
this case.
No executions have taken place in
South Africa since 1989.
1
There are apparently over 300 persons, and possibly as many as 400
if persons sentenced in the former Transkei, Bophuthatswana
and
Venda are taken into account, who have been sentenced to death by
the Courts and who are on death row waiting for this
issue to be
resolved. Some of these convictions date back to 1988, and
approximately half of the persons on death row were
sentenced more
than two years ago.
2
This is an intolerable situation and it is essential that it be
resolved one way or another without further delay.
3
The Relevant Provisions of the Constitution
The Constitution
... provides a historic bridge between the past of a
deeply divided society characterised by strife, conflict, untold
suffering
and injustice, and a future founded on the recognition of
human rights, democracy and peaceful co-existence and development
opportunities
for all South Africans, irrespective of colour, race,
class, belief or sex.
4
It is a transitional constitution but
one which itself establishes a new order in South Africa; an order
in which human rights
and democracy are entrenched and in which the
Constitution:
... shall be the supreme law of the Republic and any
law or act inconsistent with its provisions shall, unless otherwise
provided
expressly or by necessary implication in this Constitution,
be of no force and effect to the extent of the inconsistency
.
5
Chapter Three of the Constitution
sets out the fundamental rights to which every person is entitled
under the Constitution and
also contains provisions dealing with
the way in which the Chapter is to be interpreted by the Courts. It
does not deal specifically
with the death penalty, but in
section
11(2), it prohibits "cruel, inhuman or degrading treatment or
punishment." There is no definition of what is to be
regarded
as "cruel, inhuman or degrading" and we therefore have to
give meaning to these words ourselves.
In
S v Zuma and Two Others
,
6
this Court dealt with the approach to be adopted in the
interpretation of the fundamental rights enshrined in Chapter Three

of the Constitution. It gave its approval to an approach which,
whilst paying due regard to the language that has been used,
is
"generous" and "purposive" and gives expression
to the underlying values of the Constitution. Kentridge
AJ, who
delivered the judgment of the Court, referred with approval
7
to the following passage in the Canadian case of
R v Big M Drug
Mart Ltd
:
The meaning of a right or freedom guaranteed by the
Charter was to be ascertained by an analysis of the purpose of such
a guarantee;
it was to be understood, in other words, in the light
of the interests it was meant to protect.
In my view this
analysis is to be undertaken, and the purpose of the right or
freedom in question is to be sought by reference
to the character
and larger objects of the Charter itself, to the language chosen to
articulate the specific right or freedom,
to the historical origins
of the concept enshrined, and where applicable, to the meaning and
purpose of the other specific rights
and freedoms with which it is
associated within the text of the Charter. The interpretation should
be...a generous rather than
legalistic one, aimed at fulfilling the
purpose of a guarantee and securing for individuals the full benefit
of the Charter's
protection
.
8
Without seeking in any way to
qualify anything that was said in
Zuma
's case, I need say no
more in this judgment than that
section
11(2) of the
Constitution must not be construed in isolation, but in its
context, which includes the history and background
to the adoption
of the Constitution, other provisions of the Constitution itself
and, in particular, the provisions of Chapter
Three of which it is
part.
9
It must also be construed in a way which secures for "individuals
the full measure" of its protection.
10
Rights with which
section
11(2) is associated in Chapter
Three of the Constitution, and which are of particular importance
to a decision on the constitutionality
of the death penalty are
included in
section
9, "every person shall have the
right to life",
section
10, "every person shall
have the right to respect for and protection of his or her
dignity", and
section
8, "every person shall have
the right to equality before the law and to equal protection of the
law." Punishment
must meet the requirements of
sections
8, 9 and 10; and this is so, whether these sections are treated as
giving meaning to
Section
11(2) or as prescribing separate
and independent standards with which all punishments must comply.
11
Mr. Bizos, who represented the
South African government at the hearing of this matter, informed us
that the government accepts
that the death penalty is a cruel,
inhuman and degrading punishment and that it should be declared
unconstitutional. The Attorney
General of the Witwatersrand, whose
office is independent of the government, took a different view, and
contended that the
death penalty is a necessary and acceptable form
of punishment and that it is not cruel, inhuman or degrading within
the meaning
of
section
11(2). He argued that if the framers
of the Constitution had wished to make the death penalty
unconstitutional they would have
said so, and that their failure
to do so indicated an intention to leave the issue open to be dealt
with by Parliament in
the ordinary way. It was for Parliament, and
not the government, to decide whether or not the death penalty
should be repealed,
and Parliament had not taken such a decision.
Legislative History
The written argument of the South
African government deals with the debate which took place in regard
to the death penalty before
the commencement of the constitutional
negotiations. The information that it placed before us was not
disputed. It was argued
that this background information forms
part of the context within which the Constitution should be
interpreted.
Our Courts have held that it is
permissible in interpreting a statute to have regard to the purpose
and background of the legislation
in question.
Certainly no less
important than the oft repeated statement that the words and
expressions used in a statute must be interpreted
according to their
ordinary meaning is the statement that they must be interpreted in
the light of their context. But it may
be useful to stress two
points in relation to the application of this principle. The first
is that "the context", as
here used, is not limited to the
language of the rest of the statute regarded as throwing light of a
dictionary kind on the part
to be interpreted. Often of more
importance is the matter of the statute, its apparent scope and
purpose, and, within limits,
its background.
12
Debates in Parliament, including
statements made by Ministers responsible for legislation, and
explanatory memoranda providing
reasons for new bills have not been
admitted as background material. It is, however, permissible to
take notice of the report
of a judicial commission of enquiry for
the limited purpose of ascertaining "the mischief aimed at
[by] the statutory
enactment in question."
13
These principles were derived in part from English law. In England,
the courts have recently relaxed this exclusionary rule
and have
held, in
Pepper (Inspector of Taxes) v Hart
14
that, subject to the privileges of the House of Commons:
...reference to
Parliamentary material should be permitted as an aid to the
construction
of legislation which is ambiguous or obscure or the literal meaning
of which leads to an absurdity. Even in such
cases references in
court to Parliamentary material should only be permitted where such
material clearly discloses the mischief
aimed at or the legislative
intention lying behind the ambiguous or obscure words.
15
As the judgment in
Pepper
's
case shows, a similar relaxation of the exclusionary rule has
apparently taken place in Australia and New Zealand.
16
Whether our Courts should follow these examples and extend the
scope of what is admissible as background material for the purpose

of interpreting statutes does not arise in the present case. We are
concerned with the interpretation of the Constitution,
and not the
interpretation of ordinary legislation. A constitution is no
ordinary statute. It is the source of legislative
and executive
authority. It determines how the country is to be governed and how
legislation is to be enacted. It defines the
powers of the
different organs of State, including Parliament, the executive, and
the courts as well as the fundamental rights
of every person which
must be respected in exercising such powers.
In countries in which the
constitution is similarly the supreme law, it is not unusual for
the courts to have regard to the
circumstances existing at the time
the constitution was adopted, including the debates and writings
which formed part of the
process. The United States Supreme Court
pays attention to such matters, and its judgments frequently
contain reviews of the
legislative history of the provision in
question, including references to debates, and statements made, at
the time the provision
was adopted.
17
The German Constitutional Court also has regard to such evidence.
18
The Canadian Supreme Court has held such evidence to be admissible,
and has referred to the historical background including
the
pre-confederation debates for the purpose of interpreting
provisions of the Canadian Constitution, although it attaches
less
weight to such information than the United States Supreme Court
does.
19
It also has regard to ministerial statements in Parliament in
regard to the purpose of particular legislation.
20
In India, whilst speeches of individual members of Parliament or
the Convention are apparently not ordinarily admissible, the

reports of drafting committees can, according to Seervai, "be
a helpful extrinsic aid to construction."
21
Seervai cites Kania CJ in
A. K.
Gopalan v The State
22
for the proposition that whilst not taking "...into
consideration the individual opinions of Members of Parliament or

Convention to construe the meaning of a particular clause, when a
question is raised whether a certain phrase or expression
was up
for consideration at all or not, a reference to debates may be
permitted." The European Court of Human Rights and
the United
Nations Committee on Human Rights all allow their deliberations to
be informed by
travaux préparatoires
.
23
Our Constitution was the product
of negotiations conducted at the Multi-Party Negotiating Process.
The final draft adopted by
the forum of the Multi-Party Negotiating
Process was, with few changes, adopted by Parliament. The
Multi-Party Negotiating
Process was advised by technical
committees, and the reports of these committees on the drafts are
the equivalent of the
travaux préparatoires
, relied
upon by the international tribunals. Such background material can
provide a context for the interpretation of the Constitution
and,
where it serves that purpose, I can see no reason why such evidence
should be excluded. The precise nature of the evidence,
and the
purpose for which it may be tendered, will determine the weight to
be given to it.
It has been said in respect of
the Canadian constitution that:
...the Charter is not the product of a few individual
public servants, however distinguished, but of a multiplicity of
individuals
who played major roles in the negotiating, drafting and
adoption of the Charter. How can one say with any confidence that
within
this enormous multiplicity of actors ... the comments of a
few federal civil servants can in any way be determinative
.
24
Our Constitution is also the product
of a multiplicity of persons, some of whom took part in the
negotiations, and others who
as members of Parliament enacted the
final draft. The same caution is called for in respect of the
comments of individual actors
in the process, no matter how
prominent a role they might have played.
Background evidence may, however,
be useful to show why particular provisions were or were not
included in the Constitution.
It is neither necessary nor desirable
at this stage in the development of our constitutional law to
express any opinion on
whether it might also be relevant for other
purposes, nor to attempt to lay down general principles governing
the admissibility
of such evidence. It is sufficient to say that
where the background material is clear, is not in dispute, and is
relevant to
showing why particular provisions were or were not
included in the Constitution, it can be taken into account by a
Court in
interpreting the Constitution. These conditions are
satisfied in the present case.
Capital punishment was the
subject of debate before and during the constitution- making
process, and it is clear that the failure
to deal specifically in
the Constitution with this issue was not accidental.
25
In February 1990, Mr F W de
Klerk, then President of the Republic of South Africa, stated in
Parliament that "the death
penalty had been the subject of
intensive discussion in recent months", which had led to
concrete proposals for reform
under which the death penalty should
be retained as an option to be used in "extreme cases",
the judicial discretion
in regard to the imposition of the death
sentence should be broadened, and an automatic right of appeal
allowed to those under
sentence of death.
26
These proposals were later enacted into law by the Criminal Law
Amendment Act No. 107 of 1990.
In August 1991, the South African
Law Commission in its Interim Report on Group and Human Rights
described the imposition of
the death penalty as "highly
controversial".
27
A working paper of the Commission which preceded the Interim Report
had proposed that the right to life be recognised in a
bill of
rights, subject to the proviso that the discretionary imposition of
the sentence of death be allowed for the most serious
crimes. As a
result of the comments it received, the Law Commission decided to
change the draft and to adopt a "Solomonic
solution"
28
under which a constitutional court would be required to decide
whether a right to life expressed in unqualified terms could
be
circumscribed by a limitations clause contained in a bill of
rights.
29
"This proposed solution" it said "naturally imposes
an onerous task on the Constitutional Court. But it is a
task which
this Court will in future have to carry out in respect of many
other laws and executive and administrative acts.
The Court must
not shrink from this task, otherwise we shall be back to
parliamentary sovereignty."
30
In March 1992, the then Minister
of Justice issued a press statement in which he said:
Opinions regarding the death penalty differ
substantially. There are those who feel that the death penalty is a
cruel and inhuman
form of punishment. Others are of the opinion that
it is in some extreme cases the community's only effective safeguard
against
violent crime and that it gives effect in such cases to the
retributive and deterrent purposes of punishment.
31
He went on to say that policy in
regard to the death penalty might be settled during negotiations on
the terms of a Bill of
Fundamental Rights, and that pending the
outcome of such negotiations, execution of death sentences which
had not been commuted,
would be suspended. He concluded his
statement by saying that:
The government wishes
to see a speedy settlement of the future constitutionality of this
form of punishment and urges interested
parties to join in the
discussions on a Bill of Fundamental Rights.
32
The moratorium was in respect of
the carrying out, and not the imposition, of the death sentence.
The death sentence remained
a lawful punishment and although the
courts may possibly have been influenced by the moratorium, they
continued to impose it
in cases in which it was considered to be
the "only proper" sentence. According to the statistics
provided to us
by the Attorney General, 243 persons have been
sentenced to death since the amendment to
section
277 in
1990, and of these sentences, 143 have been confirmed by the
Appellate Division.
In the constitutional
negotiations which followed, the issue was not resolved. Instead,
the "Solomonic solution" was
adopted.
33
The death sentence was, in terms, neither sanctioned nor excluded,
and it was left to the Constitutional Court to decide whether
the
provisions of the pre-constitutional law making the death penalty a
competent sentence for murder and other crimes are
consistent with
Chapter Three of the Constitution. If they are, the death sentence
remains a competent sentence for murder
in cases in which those
provisions are applicable, unless and until Parliament otherwise
decides; if they are not, it is our
duty to say so, and to declare
such provisions to be unconstitutional.
Section 11(2) - Cruel, Inhuman or Degrading
Punishment
Death
is the most extreme form of punishment to which a convicted
criminal can be subjected. Its execution is final and irrevocable.

It puts an end not only to the right to life itself, but to all
other personal rights which had vested in the deceased under

Chapter Three of the Constitution. It leaves nothing except the
memory in others of what has been and the property that passes
to
the deceased's heirs. In the ordinary meaning of the words, the
death sentence is undoubtedly a cruel punishment. Once sentenced,

the prisoner waits on death row in the company of other prisoners
under sentence of death, for the processes of their appeals
and the
procedures for clemency to be carried out. Throughout this period,
those who remain on death row are uncertain of their
fate, not
knowing whether they will ultimately be reprieved or taken to the
gallows. Death is a cruel penalty and the legal
processes which
necessarily involve waiting in uncertainty for the sentence to be
set aside or carried out, add to the cruelty.
It is also an inhuman
punishment for it "...involves, by its very nature, a denial
of the executed person's humanity",
34
and it is degrading because it strips the convicted
person
of all dignity and treats him or her as an object to be eliminated
by the state. The question is not, however, whether
the death
sentence is a cruel, inhuman or degrading punishment in the
ordinary meaning of these words but whether it is a cruel,
inhuman
or degrading punishment within the meaning of
section
11(2) of our Constitution.
35
The accused, who rely on
section
11(2) of the Constitution, carry the initial onus of establishing
this proposition.
36
The Contentions of the Parties
The
principal arguments advanced by counsel for the accused in support
of their contention that the imposition of the death
penalty for
murder is a "cruel, inhuman or degrading punishment,"
were that the death sentence is an affront to human
dignity, is
inconsistent with the unqualified right to life entrenched in the
Constitution, cannot be corrected in case of
error or enforced in a
manner that is not arbitrary, and that it negates the essential
content of the right to life and the
other rights that flow from
it. The Attorney General argued that the death penalty is
recognised as a legitimate form of punishment
in many parts of the
world, it is a deterrent to violent crime, it meets society's need
for adequate retribution for heinous
offences, and it is regarded
by South African society as an acceptable form of punishment. He
asserted that it is, therefore,
not cruel, inhuman or degrading
within the meaning of
section
11(2) of the Constitution. These arguments for and against the
death sentence are well known and have been considered in many
of
the foreign authorities and cases to which we were referred. We
must deal with them now in the light of the provisions of
our own
Constitution.
The Effect of the Disparity in the Laws
Governing Capital Punishment
One of the anomalies of the
transition initiated by the Constitution is that the
Criminal
Procedure Act does
not apply throughout South Africa. This is a
consequence of
section
229 of the Constitution which
provides:
Subject to this Constitution, all laws which
immediately before the commencement of this Constitution were in
force in any area
which forms part of the national territory, shall
continue in force in such area, subject to any repeal or amendment
of such
laws by a competent authority.
Prior to the commencement of the
Constitution, the
Criminal Procedure Act was
in force only in the
old Republic of South Africa. Its operation did not extend to the
former Transkei, Bophuthatswana, Venda
or Ciskei, which were then
treated by South African law as independent states and had their
own legislation. Although their
respective Criminal Procedure
statutes were based on the South African legislation, there were
differences, including differences
in regard to the death penalty.
The most striking difference in this regard was in Ciskei, where
the death sentence was abolished
on June 8, 1990 by the military
regime,
37
the
de facto
government of the territory, and it ceased from
that date to be a competent sentence.
38
These differences still exist,
39
which means that the law governing the imposition of the death
sentence in South Africa is not uniform. The greatest disparity
is
in the Eastern Cape Province. A person who commits murder and is
brought to trial in that part of the province which was
formerly
Ciskei, cannot be sentenced to death, whilst a person who commits
murder and is brought to trial in another part of
the same
province, can be sentenced to death. There is no rational reason
for this distinction, which is the result of history,
and we asked
for argument to be addressed to us on the question whether this
difference has a bearing on the constitutionality
of
section
277(1)(a)
of the
Criminal Procedure Act.
Counsel
for the accused argued
that it did. They contended that in the circumstances
section
277
was not a law of general application (which is a requirement
under
section
33(1)
for the validity of any law which limits
a Chapter Three right), and that the disparate application of the
death sentence within
South Africa discriminates unfairly between
those prosecuted in the former Ciskei and those prosecuted
elsewhere in South Africa,
and offends against the right to
"equality before the law and to equal protection of the law."
40
If the disparity had been the
result of legislation enacted after the Constitution had come into
force the challenge to the
validity of
section
277 on these
grounds may well have been tenable. Criminal law and procedure is a
national competence and the national government
could not without
very convincing reasons have established a "safe haven"
in part of one of the provinces in which
the death penalty would
not be enforced. The disparity is not, however, the result of the
legislative policy of the new Parliament,
but a consequence of the
Constitution which brings together again in one country the parts
that had been separated under apartheid.
The purpose of
section
229 was to ensure an orderly transition, and an inevitable
consequence of its provisions is that there will be disparities
in
the law reflecting pre-existing regional variations, and that this
will continue until a uniform system of law has been
established by
the national and provincial legislatures within their fields of
competence as contemplated by Chapter Fifteen
of the Constitution.
The requirement of
section
229 that existing laws shall continue to be in force
subject to
the Constitution
, makes the Constitution applicable to existing
laws within each of the geographic areas. These laws have to meet
all the standards
prescribed by Chapter Three, and this no doubt
calls for consistency and parity of laws within the boundaries of
each of the
different geographic areas. It does not, however, mean
that there has to be consistency and parity between the laws of the

different geographic areas themselves.
41
Such a construction would defeat the apparent purpose of
section
229, which is to allow different legal orders to exist side by side
until a process of rationalisation has been carried out,
and would
inappropriately expose a substantial part if not the entire body of
our statutory law to challenges under
section
8 of the
Constitution. It follows that disparities between the legal orders
in different parts of the country, consequent upon
the provisions
of
section
229 of the Constitution, cannot for that reason
alone be said to constitute a breach of the equal protection
provisions of
section
8, or render the laws such that they
are not of general application.
International and Foreign Comparative Law
The death sentence is a form of
punishment which has been used throughout history by different
societies. It has long been the
subject of controversy.
42
As societies became more enlightened, they restricted the offences
for which this penalty could be imposed.
43
The movement away from the death penalty gained momentum during the
second half of the present century with the growth of the

abolitionist movement. In some countries it is now prohibited in
all circumstances, in some it is prohibited save in times
of war,
and in most countries that have retained it as a penalty for crime,
its use has been restricted to extreme cases. According
to Amnesty
International, 1,831 executions were carried out throughout the
world in 1993 as a result of sentences of death,
of which 1,419
were in China, which means that only 412 executions were carried
out in the rest of the world in that year.
44
Today, capital punishment has been abolished as a penalty for
murder either specifically or in practice by almost half the

countries of the world including the democracies of Europe and our
neighbouring countries, Namibia, Mozambique and Angola.
45
In most of those countries where it is retained, as the Amnesty
International statistics show, it is seldom used.
In the course of the arguments
addressed to us, we were referred to books and articles on the
death sentence, and to judgments
dealing with challenges made to
capital punishment in the courts of other countries and in
international tribunals. The international
and foreign authorities
are of value because they analyse arguments for and against the
death sentence and show how courts
of other jurisdictions have
dealt with this vexed issue. For that reason alone they require our
attention. They may also have
to be considered because of their
relevance to
section
35(1) of the Constitution, which
states:
In interpreting the provisions of this Chapter a court
of law shall promote the values which underlie an open and
democratic society
based on freedom and equality and shall, where
applicable, have regard to public international law applicable to
the protection
of the rights entrenched in this Chapter, and may
have regard to comparable foreign case law.
Customary international law and
the ratification and accession to international agreements is dealt
with in
section
231 of the Constitution which sets the
requirements for such law to be binding within South Africa. In the
context of
section
35(1), public international law would
include non-binding as well as binding law.
46
They may both be used under the
section
as tools of
interpretation. International agreements and customary
international law accordingly provide a framework within
which
Chapter Three can be evaluated and understood, and for that
purpose, decisions of tribunals dealing with comparable
instruments, such as the United Nations Committee on Human Rights,
47
the Inter-American Commission on Human Rights,
48
the
Inter-American Court of Human Rights,
49
the European Commission on Human Rights,
50
and the European Court of Human Rights,
51
and in appropriate cases, reports of specialised agencies such as
the International Labour Organisation may provide guidance
as to
the correct interpretation of particular provisions of Chapter
Three.
Capital punishment is not
prohibited by public international law, and this is a factor that
has to be taken into account in
deciding whether it is cruel,
inhuman or degrading punishment within the meaning of
section
11(2). International human rights agreements differ, however, from
our Constitution in that where the right to life is expressed
in
unqualified terms they either deal specifically with the death
sentence, or authorise exceptions to be made to the right
to life
by law.
52
This has influenced the way international tribunals have dealt with
issues relating to capital punishment, and is relevant
to a proper
understanding of such decisions.
Comparative "bill of rights"
jurisprudence will no doubt be of importance, particularly in the
early stages of the
transition when there is no developed
indigenous jurisprudence in this branch of the law on which to
draw. Although we are
told by
section
35(1) that we "may"
have regard to foreign case law, it is important to appreciate that
this will not necessarily
offer a safe guide to the interpretation
of Chapter Three of our Constitution.
53
This has already been pointed out in a number of decisions of the
Provincial and Local Divisions of the Supreme Court,
54
and is implicit in the injunction given to the Courts in
section
35(1), which in permissive terms allows the Courts to "have
regard to" such law. There is no injunction to do more
than
this.
When challenges to the death
sentence in international or foreign courts and tribunals have
failed, the constitution or the
international instrument concerned
has either directly sanctioned capital punishment or has
specifically provided that the
right to life is subject to
exceptions sanctioned by law. The only case to which we were
referred in which there were not such
express provisions in the
Constitution, was the decision of the Hungarian Constitutional
Court. There the challenge succeeded
and the death penalty was
declared to be unconstitutional.
55
Our Constitution expresses the
right to life in an unqualified form, and prescribes the criteria
that have to be met for the
limitation of entrenched rights,
including the prohibition of legislation that negates the essential
content of an entrenched
right. In dealing with comparative law, we
must bear in mind that we are required to construe the South
African Constitution,
and not an international instrument or the
constitution of some foreign country, and that this has to be done
with due regard
to our legal system, our history and circumstances,
and the structure and language of our own Constitution.
56
We can derive assistance from public international law and foreign
case law, but we are in no way bound to follow it.
Capital Punishment in the United States of
America
The earliest litigation on the
validity of the death sentence seems to have been pursued in the
courts of the United States
of America. It has been said there that
the "Constitution itself poses the first obstacle to [the]
argument that capital
punishment is per se unconstitutional".
57
From the beginning, the United States Constitution recognised
capital punishment as lawful. The Fifth Amendment (adopted in
1791)
refers in specific terms to capital punishment and impliedly
recognises its validity. The Fourteenth Amendment (adopted
in 1868)
obliges the states, not to "deprive any person of life,
liberty, or property, without due process of law"
and it too
impliedly recognises the right of the states to make laws for such
purposes.
58
The argument that capital punishment is unconstitutional was based
on the Eighth Amendment, which prohibits cruel and unusual

punishment.
59
Although the Eighth Amendment "has not been regarded as a
static concept"
60
and as drawing its meaning "from the evolving standards of
decency that mark the progress of a maturing society",
61
the fact that the Constitution recognises the lawfulness of capital
punishment has proved to be an obstacle in the way of the

acceptance of this argument, and this is stressed in some of the
judgments of the United States Supreme Court.
62
Although challenges under state
constitutions to the validity of the death sentence have been
successful,
63
the federal constitutionality of the death sentence as a legitimate
form of punishment for murder was affirmed by the United
States
Supreme Court in
Gregg v. Georgia
.
64
Both before and after
Gregg
's case, decisions upholding and
rejecting challenges to death penalty statutes have divided the
Supreme Court, and have led
at times to sharply-worded judgments.
65
The decisions ultimately turned on the votes of those judges who
considered the nature of the discretion given to the sentencing

authority to be the crucial factor.
Statutes providing for mandatory
death sentences, or too little discretion in sentencing, have been
rejected by the Supreme
Court because they do not allow for
consideration of factors peculiar to the convicted person facing
sentence, which may distinguish
his or her case from other cases.
66
For the same reason, statutes which allow too wide a discretion to
judges or juries have also been struck down on the grounds
that the
exercise of such discretion leads to arbitrary results.
67
In sum, therefore, if there is no discretion, too little
discretion, or an unbounded discretion, the provision authorising

the death sentence has been struck down as being contrary to the
Eighth Amendment; where the discretion has been "suitably

directed and limited so as to minimise the risk of wholly arbitrary
and capricious action",
68
the challenge to the statute has failed.
69
Arbitrariness and Inequality
Basing his argument on the
reasons which found favour with the majority of the United States
Supreme Court in
Furman v. Georgia
, Mr Trengove contended on
behalf of the accused that the imprecise language of
section
277, and the unbounded discretion vested by it in the Courts, make
its provisions unconstitutional.
Section
277
of the
Criminal Procedure Act provides
:
Sentence
of death
(1) The sentence of death may be passed by a superior
court only and only in the case of a conviction for-
(a) murder;
(b) treason committed when the Republic is in a state
of war;
(c) robbery or attempted robbery, if the court finds
aggravating circumstances to have been present;
(d) kidnapping;
(e) child-stealing;
(f) rape.
(2) The sentence of death shall be imposed-
(a) after the presiding judge conjointly with the
assessors (if any), subject to the provisions of
s 145(4)(a)
, or, in
the case of a trial by a special superior court, that court, with
due regard to any evidence and argument on sentence
in terms of
section 274
, has made a finding on the presence or absence of any
mitigating or aggravating factors; and
(b) if the presiding judge or court, as the case may
be, with due regard to that finding, is satisfied that the sentence
of death
is the proper sentence.
(3) (a) The sentence of death shall not be imposed upon
an accused who was under the age of 18 years at the time of the
commission
of the act which constituted the offence concerned.
(b) If in the application of paragraph (a) the age of
an accused is placed in issue, the onus shall be on the State to
show beyond
reasonable doubt that the accused was 18 years of age or
older at
the relevant time.
Under our court system questions
of guilt and innocence, and the proper sentence to be imposed on
those found guilty of crimes,
are not decided by juries. In capital
cases, where it is likely that the death sentence may be imposed,
judges sit with two
assessors who have an equal vote with the judge
on the issue of guilt and on any mitigating or aggravating factors
relevant
to sentence; but sentencing is the prerogative of the
judge alone. The
Criminal Procedure Act allows
a full right of
appeal to persons sentenced to death, including a right to dispute
the sentence without having to establish
an irregularity or
misdirection on the part of the trial judge. The Appellate Division
is empowered to set the sentence aside
if it would not have imposed
such sentence itself, and it has laid down criteria for the
exercise of this power by itself and
other courts.
70
If the person sentenced to death does not appeal, the Appellate
Division is nevertheless required to review the case and to
set
aside the death sentence if it is of the opinion that it is not a
proper sentence.
71
Mitigating and aggravating
factors must be identified by the Court, bearing in mind that the
onus is on the State to prove beyond
reasonable doubt the existence
of aggravating factors, and to negative beyond reasonable doubt the
presence of any mitigating
factors relied on by the accused.
72
Due regard must be paid to the personal circumstances and
subjective factors which might have influenced the accused person's

conduct,
73
and these factors must then be weighed up with the main objects of
punishment, which have been held to be: deterrence, prevention,

reformation, and retribution.
74
In this process "[e]very relevant consideration should receive
the most scrupulous care and reasoned attention",
75
and the death sentence should only be imposed in the most
exceptional cases, where there is no reasonable prospect of
reformation
and the objects of punishment would not be properly
achieved by any other sentence.
76
There seems to me to be little
difference between the guided discretion required for the death
sentence in the United States,
and the criteria laid down by the
Appellate Division for the imposition of the death sentence. The
fact that the Appellate
Division, a court of experienced judges,
takes the final decision in all cases is, in my view, more likely
to result in consistency
of sentencing, than will be the case where
sentencing is in the hands of jurors who are offered statutory
guidance as to how
that discretion should be exercised.
The argument that the imposition
of the death sentence under
section
277
is arbitrary and
capricious does not, however, end there. It also focuses on what is
alleged to be the arbitrariness inherent
in the application of
section
277
in practice. Of the thousands of persons put on
trial for murder, only a very small percentage are sentenced to
death by a
trial court, and of those, a large number escape the
ultimate penalty on appeal.
77
At every stage of the process there is an element of chance. The
outcome may be dependent upon factors such as the way the
case is
investigated by the police, the way the case is presented by the
prosecutor, how effectively the accused is defended,
the
personality and particular attitude to capital punishment of the
trial judge and, if the matter goes on appeal, the particular

judges who are selected to hear the case. Race
78
and poverty are also alleged to be factors.
Most accused facing a possible
death sentence are unable to afford legal assistance, and are
defended under the
pro deo
system. The defending counsel is
more often than not young and inexperienced, frequently of a
different race to his or her
client, and if this is the case,
usually has to consult through an interpreter.
Pro deo
counsel are paid only a nominal fee for the defence, and generally
lack the financial resources and the infrastructural support
to
undertake the necessary investigations and research, to employ
expert witnesses to give advice, including advice on matters

relevant to sentence, to assemble witnesses, to bargain with the
prosecution, and generally to conduct an effective defence.
Accused
persons who have the money to do so, are able to retain experienced
attorneys and counsel, who are paid to undertake
the necessary
investigations and research, and as a result they are less likely
to be sentenced to death than persons similarly
placed who are
unable to pay for such services.
79
It needs to be mentioned that
there are occasions when senior members of the bar act
pro
deo
in particularly difficult cases - indeed the present
case affords an example of that, for Mr Trengove and his juniors
have acted
pro deo
in the proceedings before us, and the
Legal Resources Centre who have acted as their instructing
attorneys, have done so without
charge. An enormous amount of
research has gone into the preparation of the argument and it is
highly doubtful that even the
wealthiest members of our society
could have secured a better service than they have provided. But
this is the exception and
not the rule. This may possibly change as
a result of the provisions of
section
25(3)(e) of the
Constitution, but there are limits to the available financial and
human resources, limits which are likely
to exist for the
foreseeable future, and which will continue to place poor accused
at a significant disadvantage in defending
themselves in capital
cases.
It cannot be gainsaid that
poverty, race and chance play roles in the outcome of capital cases
and in the final decision as
to who should live and who should die.
It is sometimes said that this is understood by the judges, and as
far as possible,
taken into account by them. But in itself this is
no answer to the complaint of arbitrariness; on the contrary, it
may introduce
an additional factor of arbitrariness that would also
have to be taken into account. Some, but not all accused persons
may
be acquitted because such allowances are made, and others who
are convicted, but not all, may for the same reason escape the
death sentence.
80
In holding that the imposition
and the carrying out of the death penalty in the cases then under
consideration constituted
cruel and unusual punishment in the
United States, Justice Douglas, concurring in
Furman v. Georgia
,
said that "[a]ny law which is nondiscriminatory on its face
may be applied in such a way as to violate the Equal Protection

Clause of the Fourteenth Amendment." Discretionary statutes
are:
...pregnant with
discrimination and discrimination is an ingredient not compatible
with the idea of equal protection of the laws
that is implicit in
the ban on "cruel and unusual" punishments.
81
It was contended that we should
follow this approach and hold that the factors to which I have
referred, make the application
of
section
277, in practice,
arbitrary and capricious and, for that reason, any resulting death
sentence is cruel, inhuman and degrading
punishment.
The differences that exist
between rich and poor, between good and bad prosecutions, between
good and bad defence, between severe
and lenient judges, between
judges who favour capital punishment and those who do not, and the
subjective attitudes that might
be brought into play by factors
such as race and class, may in similar ways affect any case that
comes before the courts, and
is almost certainly present to some
degree in all court systems. Such factors can be mitigated, but not
totally avoided, by
allowing convicted persons to appeal to a
higher court. Appeals are decided on the record of the case and on
findings made
by the trial court. If the evidence on record and the
findings made have been influenced by these factors, there may be
nothing
that can be done about that on appeal. Imperfection
inherent in criminal trials means that error cannot be excluded; it
also
means that persons similarly placed may not necessarily
receive similar punishment. This needs to be acknowledged. What
also
needs to be acknowledged is that the possibility of error will
be present in any system of justice and that there cannot be

perfect equality as between accused persons in the conduct and
outcome of criminal trials. We have to accept these differences
in
the ordinary criminal cases that come before the courts, even to
the extent that some may go to gaol when others similarly
placed
may be acquitted or receive non-custodial sentences. But death is
different, and the question is, whether this is acceptable
when the
difference is between life and death. Unjust imprisonment is a
great wrong, but if it is discovered, the prisoner
can be released
and compensated; but the killing of an innocent person is
irremediable.
82
In the United States, the Supreme
Court has addressed itself primarily to the requirement of due
process. Statutes have to be
clear and discretion curtailed without
ignoring the peculiar circumstances of each accused person.
Verdicts are set aside if
the defence has not been adequate,
83
and persons sentenced to death are allowed wide rights of appeal
and review. This attempt to ensure the utmost procedural fairness

has itself led to problems. The most notorious is the "death
row phenomenon" in which prisoners cling to life, exhausting

every possible avenue of redress, and using every device to put off
the date of execution, in the natural and understandable
hope that
there will be a reprieve from the Courts or the executive. It is
common for prisoners in the United States to remain
on death row
for many years, and this dragging out of the process has been
characterised as being cruel and degrading.
84
The difficulty of implementing a system of capital punishment which
on the one hand avoids arbitrariness by insisting on a
high
standard of procedural fairness, and on the other hand avoids
delays that in themselves are the cause of impermissible
cruelty
and inhumanity, is apparent. Justice Blackmun, who sided with the
majority in
Gregg
's case, ultimately came to the conclusion
that it is not possible to design a system that avoids
arbitrariness. To design a
system that avoids arbitrariness
and
delays in carrying out the sentence is even more difficult.
85
The United States jurisprudence
has not resolved the dilemma arising from the fact that the
Constitution prohibits cruel and
unusual punishments, but also
permits, and contemplates that there will be capital punishment.
The acceptance by a majority
of the United States Supreme Court of
the proposition that capital punishment is not per se
unconstitutional, but that in certain
circumstances it may be
arbitrary, and thus unconstitutional, has led to endless
litigation. Considerable expense and interminable
delays result
from the exceptionally-high standard of procedural fairness set by
the United States courts in attempting to
avoid arbitrary
decisions. The difficulties that have been experienced in following
this path, to which Justice Blackmun and
Justice Scalia have both
referred,
86
but from which they have drawn different conclusions, persuade me
that we should not follow this route.
The Right to Dignity
Although the United States
Constitution does not contain a specific guarantee of human
dignity, it has been accepted by the
United States Supreme Court
that the concept of human dignity is at the core of the prohibition
of "cruel and unusual
punishment" by the Eighth and
Fourteenth Amendments.
87
For Brennan J this was decisive of the question in
Gregg v.
Georgia
.
The fatal constitutional infirmity
in the punishment of death is that it treats "members of the
human race as nonhumans,
as objects to be toyed with and discarded.
[It is] thus inconsistent with the fundamental premise of the
Clause that even the
vilest criminal remains a human being
possessed of common human dignity."
88
Under our constitutional order
the right to human dignity is specifically guaranteed. It can only
be limited by legislation
which passes the stringent test of being
'necessary'. The weight given to human dignity by Justice Brennan
is wholly consistent
with the values of our Constitution and the
new order established by it. It is also consistent with the
approach to extreme
punishments followed by courts in other
countries.
In Germany, the Federal
Constitutional Court has stressed this aspect of punishment.
Respect for human dignity especially requires
the prohibition of
cruel, inhuman, and degrading punishments. [The state] cannot turn
the offender into an object of crime
prevention to the detriment of
his constitutionally protected right to social worth and respect.
89
That capital punishment
constitutes a serious impairment of human dignity has also been
recognised by judgments of the Canadian
Supreme Court.
Kindler v
Canada
90
was concerned with the extradition from Canada to the United States
of two fugitives, Kindler, who had been convicted of murder
and
sentenced to death in the United States, and Ng who was facing a
murder charge there and a possible death sentence. Three
of the
seven judges who heard the cases expressed the opinion that the
death penalty was cruel and unusual:
It
is the supreme indignity to the individual, the ultimate corporal
punishment, the final and complete lobotomy and the absolute
and
irrevocable castration. [It is] the ultimate desecration of human
dignity...
91
The statement was made in the context
of a discussion on punishment to be meted out in respect of murders
of wanton cruelty.
It was held that a life sentence was a competent
sentence as long as it allowed the possibility of parole for a
reformed prisoner
rehabilitated during his or her time in prison.
Three other judges were of the
opinion that:
[t]here is strong
ground for believing, having regard to the limited extent to which
the death penalty advances any valid penological
objectives and the
serious invasion of human dignity it engenders, that the death
penalty cannot, except in exceptional circumstances,
be justified in
this country.
92
In the result, however, the majority
of the Court held that the validity of the order for extradition
did not depend upon the
constitutionality of the death penalty in
Canada, or the guarantee in its Charter of Rights against cruel and
unusual punishment.
The Charter was concerned with legislative and
executive acts carried out in Canada, and an order for extradition
neither imposed
nor authorised any punishment within the borders of
Canada.
The issue in
Kindler
's
case was whether the action of the Minister of Justice, who had
authorised the extradition without any assurance that the
death
penalty would not be imposed, was constitutional. It was argued
that this executive act was contrary to
section
12 of the
Charter which requires the executive to act in accordance with
fundamental principles of justice. The Court decided
by a majority
of four to three that in the particular circumstances of the case
the decision of the Minister of Justice could
not be set aside on
these grounds. In balancing the international obligations of Canada
in respect of extradition, and another
purpose of the extradition
legislation - to prevent Canada from becoming a safe haven for
criminals, against the likelihood
that the fugitives would be
executed if returned to the United States, the view of the majority
was that the decision to return
the fugitives to the United States
could not be said to be contrary to the fundamental principles of
justice. In their view,
it would not shock the conscience of
Canadians to permit this to be done.
The International Covenant on Civil and
Political Rights
Ng and Kindler took their cases
to the Human Rights Committee of the United Nations, contending
that Canada had breached its
obligations under the International
Covenant on Civil and Political Rights. Once again, there was a
division of opinion within
the tribunal. In
Ng
's case it was
said:
The
Committee is aware that, by definition, every execution of a
sentence of death may be considered to constitute cruel and inhuman

treatment within the meaning of article 7 of the covenant.
93
There was no dissent from that
statement. But the International Covenant contains provisions
permitting, with some qualifications,
the imposition of capital
punishment for the most serious crimes. In view of these
provisions, the majority of the Committee
were of the opinion that
the extradition of fugitives to a country which enforces the death
sentence in accordance with the
requirements of the International
Covenant, should not be regarded as a breach of the obligations of
the extraditing country.
In
Ng
's case, the method of
execution which he faced if extradited was asphyxiation in a gas
chamber. This was found by a majority
of the Committee to involve
unnecessary physical and mental suffering and, notwithstanding the
sanction given to capital punishment,
to be cruel punishment within
the meaning of
article
7 of the International Covenant. In
Kindler
's case, in which the complaint was delivered at the
same time as that in the
Ng
's case, but the decision was
given earlier, it was held that the method of execution which was
by lethal injection was not
a cruel method of execution, and that
the extradition did not in the circumstances constitute a breach of
Canada's obligations
under the International Covenant.
94
The Committee also held in
Kindler
's case that prolonged judicial proceedings giving
rise to the death row phenomenon does not per se constitute cruel,
inhuman
or degrading treatment. There were dissents in both cases.
Some Commissioners in
Ng
's case held that asphyxiation was
not crueller than other forms of execution. Some in
Kindler
's
case held that the provision of the International Covenant against
the arbitrary deprivation of the right to life took priority
over
the provisions of the International Covenant which allow the death
sentence, and that Canada ought not in the circumstances
to have
extradited Kindler without an assurance that he would not be
executed.
It should be mentioned here that
although articles 6(2) to (5) of the International Covenant
specifically allow the imposition
of the death sentence under
strict controls "for the most serious crimes" by those
countries which have not abolished
it, it provides in
article
6(6) that "[n]othing in this article shall be invoked to delay
or to prevent the abolition of capital punishment by any
State
Party to the present Covenant." The fact that the
International Covenant sanctions capital punishment must be seen
in
this context. It tolerates but does not provide justification for
the death penalty.
Despite these differences of
opinion, what is clear from the decisions of the Human Rights
Committee of the United Nations is
that the death penalty is
regarded by it as cruel and inhuman punishment within the ordinary
meaning of those words, and that
it was because of the specific
provisions of the International Covenant authorising the imposition
of capital punishment by
member States in certain circumstances,
that the words had to be given a narrow meaning.
The European Convention on Human Rights
Similar issues were debated by
the European Court of Human Rights in
Soering v United Kingdom
.
95
This case was also concerned with the extradition to the United
States of a fugitive to face murder charges for which capital

punishment was a competent sentence. It was argued that this would
expose him to inhuman and degrading treatment or punishment
in
breach of
article
3 of the European Convention on Human
Rights. Article 2 of the European Convention protects the right to
life but makes an
exception in the case of "the execution of a
sentence of a court following [the] conviction of a crime for which
this
penalty is provided by law." The majority of the Court
held that
article
3 could not be construed as prohibiting
all capital punishment, since to do so would nullify
article
2. It was, however, competent to test the imposition of capital
punishment in particular cases against the requirements of
article
3 -- the manner in which it is imposed or executed, the personal
circumstances of the condemned person and the disproportionality
to
the gravity of the crime committed, as well as the conditions of
detention awaiting execution, were capable of bringing
the
treatment or punishment received by the condemned person within the
proscription.
On the facts, it was held that
extradition to the United States to face trial in Virginia would
expose the fugitive to the risk
of treatment going beyond the
threshold set by
article
3. The special factors taken into
account were the youth of the fugitive (he was 18 at the time of
the murders), an impaired
mental capacity, and the suffering on
death row which could endure for up to eight years if he were
convicted. Additionally,
although the offence for which extradition
was sought had been committed in the United States, the fugitive
who was a German
national was also liable to be tried for the same
offence in Germany. Germany, which has abolished the death
sentence, also
sought his extradition for the murders. There was
accordingly a choice in regard to the country to which the fugitive
should
be extradited, and that choice should have been exercised in
a way which would not lead to a contravention of
article
3.
What weighed with the Court was the fact that the choice facing the
United Kingdom was not a choice between extradition
to face a
possible death penalty and no punishment, but a choice between
extradition to a country which allows the death penalty
and one
which does not. We are in a comparable position. A holding by us
that the death penalty for murder is unconstitutional,
does not
involve a choice between freedom and death; it involves a choice
between death in the very few cases which would otherwise
attract
that penalty under
section
277(1)(a), and the severe penalty
of life imprisonment.
Capital Punishment in India
In the
amicus brief
of the
South African Police, reliance was placed on decisions of the
Indian Supreme Court, and it is necessary to refer briefly
to the
way the law has developed in that country.
Section
302 of the Indian
Penal Code authorises the imposition of the death sentence as a
penalty for murder. In
Bachan Singh v State of Punjab
,
96
the constitutionality of this provision was put in issue. Article
21 of the Indian Constitution provides that:
No
person shall be deprived of his life or personal liberty except
according to procedure established by law.
The wording of this
article
presented an obstacle to a challenge to the death sentence, because
there was a "law" which made provision for the
death
sentence. Moreover,
article
72 of the Constitution empowers
the President and Governors to commute sentences of death, and
article
134 refers to the Supreme Court's powers on appeal
in cases where the death sentence has been imposed. It was clear,
therefore,
that capital punishment was specifically contemplated
and sanctioned by the framers of the Indian Constitution, when it
was
adopted by them in November 1949.
97
Counsel for the accused in
Bachan
Singh
's case sought to overcome this difficulty by contending
that
article
21 had to be read with
article
19(1),
which guarantees the freedoms of speech, of assembly, of
association, of movement, of residence, and the freedom to
engage
in any occupation. These fundamental freedoms can only be
restricted under the Indian Constitution if the restrictions
are
reasonable for the attainment of a number of purposes defined in
sections
19(2) to (6). It was contended that the right to
life was basic to the enjoyment of these fundamental freedoms, and
that the
death sentence restricted them unreasonably in that it
served no social purpose, its deterrent effect was unproven and it
defiled
the dignity of the individual.
The Supreme Court analysed the
provisions of
article
19(1) and came to the conclusion, for
reasons that are not material to the present case, that the
provisions of
section
302 of the Indian Penal Code did "not
have to stand the test of
article
19(1) of the
Constitution."
98
It went on, however, to consider "arguendo" what the
outcome would be if the test of reasonableness and public interest

under
article
19(1) had to be satisfied.
The Supreme Court had recognised
in a number of cases that the death sentence served as a deterrent,
and the Law Commission
of India, which had conducted an
investigation into capital punishment in 1967, had recommended that
capital punishment be
retained. The court held that in the
circumstances it was "for the petitioners to prove and
establish that the death sentence
for murder is so outmoded,
unusual or excessive as to be devoid of any rational nexus with the
purpose and object of the legislation."
99
The Court then dealt with
international authorities for and against the death sentence, and
with the arguments concerning deterrence
and retribution.
100
After reviewing the arguments for and against the death sentence,
the court concluded that:
...the
question whether or not [the] death penalty serves any penological
purpose is a difficult, complex and intractable issue
[which] has
evoked strong, divergent views. For the purpose of testing the
constitutionality of the impugned provisions as to
death penalty ...
on the grounds of reasonableness in the light of Articles 19 and 21
of the Constitution, it is not necessary
for us to express any
categorical opinion, one way or another, as to which of these
antithetical views, held by the Abolitionists
and the Retentionists,
is correct. It is sufficient to say that the very fact that persons
of reason, learning and light are
rationally and deeply divided in
their opinion on this issue, is ground among others, for rejecting
the petitioners'
argument
that retention of death penalty in the impugned provision, is
totally devoid of reason and purpose.
101
It accordingly held that
section
302 of the Indian Penal Code "violates neither the letter nor
the ethos of Article 19."
102
The Court then went on to deal
with
article
21. It said that if
article
21 were to
be expanded in accordance with the interpretative principle
applicable to legislation limiting rights under Article
19(1),
article
21 would have to be read as follows:
No
person shall be deprived of his life or personal liberty except
according to fair, just and reasonable procedure established
by a
valid law.
And thus expanded, it was clear that
the State could deprive a person of his or her life, by "fair,
just and reasonable
procedure." In the circumstances, and
taking into account the indications that capital punishment was
considered by the
framers of the constitution in 1949 to be a valid
penalty, it was asserted that "by no stretch of the
imagination can
it be said that death penalty...either per se or
because of its execution by hanging constitutes an unreasonable,
cruel or
unusual punishment" prohibited by the Constitution.
103
The wording of the relevant
provisions of our Constitution are different. The question we have
to consider is not whether the
imposition of the death sentence for
murder is "totally devoid of reason and purpose", or
whether the death sentence
for murder "is devoid of any
rational nexus" with the purpose and object of
section
277(1)(a)
of the
Criminal Procedure Act. It
is whether in the
context of our Constitution, the death penalty is cruel, inhuman or
degrading, and if it is, whether it can
be justified in terms of
section
33.
The Indian Penal Code leaves the
imposition of the death sentence to the trial judge's discretion.
In
Bachan Singh
's case there was also a challenge to the
constitutionality of the legislation on the grounds of
arbitrariness, along the lines
of the challenges that have been
successful in the United States. The majority of the Court rejected
the argument that the
imposition of the death sentence in such
circumstances is arbitrary, holding that a discretion exercised
judicially by persons
of experience and standing, in accordance
with principles crystallized by judicial decisions, is not an
arbitrary discretion.
104
To complete the picture, it should be mentioned that long delays in
carrying out the death sentence in particular cases have
apparently
been held in India to be unjust and unfair to the prisoner, and in
such circumstances the death sentence is liable
to be set aside.
105
The Right to Life
The unqualified right to life
vested in every person by
section
9 of our Constitution is
another factor crucially relevant to the question whether the death
sentence is cruel, inhuman or
degrading punishment within the
meaning of
section
11(2) of our Constitution. In this
respect our Constitution differs materially from the Constitutions
of the United States
and India. It also differs materially from the
European Convention and the International Covenant. Yet in the
cases decided
under these constitutions and treaties there were
judges who dissented and held that notwithstanding the specific
language
of the constitution or instrument concerned, capital
punishment should not be permitted.
In some instances the dissent
focused on the right to life. In
Soering
's case before the
European Court of Human Rights, Judge de Meyer, in a concurring
opinion, said that capital punishment is
"not consistent with
the present state of European civilisation"
106
and for that reason alone, extradition to the United States would
violate the fugitive's right to life.
In a dissent in the United
Nations Human Rights Committee in
Kindler
's case, Committee
member B. Wennergren also stressed the importance of the right to
life.
The value of life is immeasurable for
any human being, and the right to life enshrined in article 6 of
the Covenant is the supreme
human right. It is an obligation of
States [P]arties to the Covenant to protect the lives of all human
beings on their territory
and under their jurisdiction. If issues
arise in respect of the protection of the right to life, priority
must not be accorded
to the domestic laws of other countries or to
(bilateral) treaty articles. Discretion of any nature permitted
under an extradition
treaty cannot apply, as there is no room for
it under Covenant obligations. It is worth repeating that no
derogation from a
State's obligations under article 6, paragraph 1,
is permitted. This is why Canada, in my view, violated article 6,
paragraph
1, by consenting to extradite Mr. Kindler to the United
States, without having secured assurances that Mr. Kindler would
not
be subjected to the execution of the death sentence.
107
An individual's right to life has
been described as "[t]he most fundamental of all human
rights",
108
and was dealt with in that way in the judgments of the Hungarian
Constitutional Court declaring capital punishment to be

unconstitutional.
109
The challenge to the death sentence in Hungary was based on
section
54 of its Constitution which provides:
(1)
In the Republic of Hungary everyone has the inherent right to life
and to human dignity, and no one shall be arbitrarily deprived
of
these rights.
(2)
No one shall be subjected to torture or to cruel or inhuman or
degrading punishment
Section
8, the counterpart
of
section
33 of our Constitution, provides that laws shall
not impose any limitations on the essential content of fundamental
rights.
According to the finding of the Court, capital punishment
imposed a limitation on the essential content of the fundamental

rights to life and human dignity, eliminating them irretrievably.
As such it was unconstitutional. Two factors are stressed in
the
judgment of the Court. First, the relationship between the rights
of life and dignity, and the importance of these rights
taken
together. Secondly, the absolute nature of these two rights taken
together. Together they are the source of all other
rights. Other
rights may be limited, and may even be withdrawn and then granted
again, but their ultimate limit is to be found
in the preservation
of the twin rights of life and dignity. These twin rights are the
essential content of all rights under
the Constitution. Take them
away, and all other rights cease. I will deal later with the
requirement of our Constitution that
a right shall not be limited
in ways which negate its essential content. For the present
purposes it is sufficient to point
to the fact that the Hungarian
Court held capital punishment to be unconstitutional on the grounds
that it is inconsistent
with the right to life and the right to
dignity.
Our Constitution does not contain
the qualification found in
section
54(1) of the Hungarian
constitution, which prohibits only the arbitrary deprivation of
life. To that extent, therefore, the
right to life in
section
9 of our Constitution is given greater protection than it is by the
Hungarian Constitution.
The fact that in both the United
States and India, which sanction capital punishment, the highest
courts have intervened on
constitutional grounds in particular
cases to prevent the carrying out of death sentences, because in
the particular circumstances
of such cases, it would have been
cruel to do so, evidences the importance attached to the protection
of life and the strict
scrutiny to which the imposition and
carrying out of death sentences are subjected when a constitutional
challenge is raised.
The same concern is apparent in the decisions
of the European Court of Human Rights and the United Nations
Committee on Human
Rights. It led the Court in
Soering
's
case to order that extradition to the United States, in the
circumstances of that case, would result in inhuman or degrading

punishment, and the Human Rights Committee to declare in Ng's case
that he should not be extradited to face a possible death
by
asphyxiation in a gas chamber in California.
Public Opinion
The Attorney General argued that
what is cruel, inhuman or degrading depends to a large extent upon
contemporary attitudes within
society, and that South African
society does not regard the death sentence for extreme cases of
murder as a cruel, inhuman
or degrading form of punishment. It was
disputed whether public opinion, properly informed of the different
considerations,
would in fact favour the death penalty. I am,
however, prepared to assume that it does and that the majority of
South Africans
agree that the death sentence should be imposed in
extreme cases of murder. The question before us, however, is not
what the
majority of South Africans believe a proper sentence for
murder should be. It is whether the Constitution allows the
sentence.
Public opinion may have some
relevance to the enquiry, but in itself, it is no substitute for
the duty vested in the Courts
to interpret the Constitution and to
uphold its provisions without fear or favour. If public opinion
were to be decisive there
would be no need for constitutional
adjudication. The protection of rights could then be left to
Parliament, which has a mandate
from the public, and is answerable
to the public for the way its mandate is exercised, but this would
be a return to parliamentary
sovereignty, and a retreat from the
new legal order established by the 1993 Constitution. By the same
token the issue of the
constitutionality of capital punishment
cannot be referred to a referendum, in which a majority view would
prevail over the
wishes of any minority. The very reason for
establishing the new legal order, and for vesting the power of
judicial review
of all legislation in the courts, was to protect
the rights of minorities and others who cannot protect their rights
adequately
through the democratic process. Those who are entitled
to claim this protection include the social outcasts and
marginalised
people of our society. It is only if there is a
willingness to protect the worst and the weakest amongst us, that
all of us
can be secure that our own rights will be protected.
This Court cannot allow itself to
be diverted from its duty to act as an independent arbiter of the
Constitution by making choices
on the basis that they will find
favour with the public.
110
Justice Powell's comment in his dissent in
Furman v Georgia
bears repetition:
...the
weight of the evidence indicates that the public generally has not
accepted either the morality or the social merit of
the views so
passionately advocated by the articulate spokesmen for abolition.
But however one may assess amorphous ebb and flow
of public opinion
generally on this volatile issue, this type of inquiry lies at the
periphery - not the core - of the judicial
process in constitutional
cases. The assessment of popular opinion is essentially a
legislative, and not a judicial, function.
111
So too does the comment of Justice
Jackson in
West Virginia State Board of Education v Barnette
:
The
very purpose of a Bill of Rights was to withdraw certain subjects
from the vicissitudes of political controversy, to place
them beyond
the reach of majorities and officials and to establish them as legal
principles to be applied by the courts. One's
right to life,
liberty, and property, to free speech, a free press, freedom of
worship and assembly and other fundamental rights
may not be
submitted to vote; they depend on the outcome of no elections.
112
Cruel, Inhuman and Degrading Punishment
The United Nations Committee on
Human Rights has held that the death sentence by definition is
cruel and degrading punishment.
So has the Hungarian Constitutional
Court, and three judges of the Canadian Supreme Court. The death
sentence has also been
held to be cruel or unusual punishment and
thus unconstitutional under the state constitutions of
Massachusetts and California.
113
The California decision is
People
v. Anderson
.
114
Capital punishment was held by six of the seven judges of the
Californian Supreme Court to be "impermissibly cruel"
115
under the California Constitution which prohibited cruel or unusual
punishment. Also,
It
degrades and dehumanizes all who participate in its processes. It is
unnecessary to any legitimate goal of the state and is
incompatible
with the dignity of man and the judicial process.
116
In the Massachusetts decision in
District Attorney for the Suffolk District v. Watson,
117
where the Constitution of the State of Massachusetts prohibited
cruel or unusual punishment, the death sentence was also held,
by
six of the seven judges, to be impermissibly cruel.
118
In both cases the disjunctive
effect of "or" was referred to as enabling the Courts to
declare capital punishment
unconstitutional even if it was not
"unusual". Under our Constitution it will not meet the
requirements of
section
11(2) if it is cruel, or inhuman, or
degrading.
Proportionality is an ingredient
to be taken into account in deciding whether a penalty is cruel,
inhuman or degrading.
119
No Court would today uphold the constitutionality of a statute that
makes the death sentence a competent sentence for the cutting
down
of trees or the killing of deer, which were capital offences in
England in the 18th Century.
120
But murder is not to be equated with such "offences." The
wilful taking of an innocent life calls for a severe penalty,
and
there are many countries which still retain the death penalty as a
sentencing option for such cases. Disparity between
thecrime and
the penalty is not the only ingredient of proportionality; factors
such as the enormity and irredeemable character
of the death
sentence in circumstances where neither error nor arbitrariness can
be excluded, the expense and difficulty of
addressing the
disparities which exist in practice between accused persons facing
similar charges, and which are due to factors
such as race,
poverty, and ignorance, and the other subjective factors which have
been mentioned, are also factors that can
and should be taken into
account in dealing with this issue. It may possibly be that none
alone would be sufficient under our
Constitution to justify a
finding that the death sentence is cruel, inhuman or degrading. But
these factors are not to be evaluated
in isolation. They must be
taken together, and in order to decide whether the threshold set by
section
11(2) has been crossed
121
they must be evaluated with other relevant factors, including the
two fundamental rights on which the accused rely, the right
to
dignity and the right to life.
The carrying out of the death
sentence destroys life, which is protected without reservation
under
section
9 of our Constitution, it annihilates human
dignity which is protected under
section
10, elements of
arbitrariness are present in its enforcement and it is
irremediable. Taking these factors into account, as
well as the
assumption that I have made in regard to public opinion in South
Africa, and giving the words of
section
11(2) the broader
meaning to which they are entitled at this stage of the enquiry,
rather than a narrow meaning,
122
I am satisfied that in the context of our Constitution the death
penalty is indeed a cruel, inhuman and degrading punishment.
Is capital punishment for murder justifiable?
The question that now has to be
considered is whether the imposition of such punishment is
nonetheless justifiable as a penalty
for murder in the
circumstances contemplated by
sections
277(1)(a)
,
316A
and
322
(2A) of the
Criminal Procedure Act.
It
is difficult to conceive of
any circumstances in which torture, which is specifically
prohibited under
section
11(2)
, could ever be justified. But
that does not necessarily apply to capital punishment. Capital
punishment, unlike torture, has
not been absolutely prohibited by
public international law. It is therefore not inappropriate to
consider whether the death
penalty is justifiable under our
Constitution as a penalty for murder. This calls for an enquiry
similar to that undertaken
by Brennan J in
Furman
's case
123
in dealing with the contention that "death is a necessary
punishment because it prevents the commission of capital crimes

more effectively than any less severe punishment."
124
The same question is addressed and answered in the negative in the
judgment of Wright CJ in
People v Anderson
.
125
Under the United States Constitution and the Californian
Constitution, which have no limitation clauses, this enquiry had to

be conducted within the larger question of the definition of the
right. With us, however, the question has to be dealt with
under
section
33(1).
Section
33(1) of the
Constitution provides, in part, that:
The
rights entrenched in this Chapter may be limited by law of general
application, provided that such limitation-
(a) shall be permissible only to the extent that it is-
(i)
reasonable; and
(ii)
justifiable in an open and democratic society based on freedom
and
equality; and
(b)
shall not negate the essential content of the right in question.
Section
33(1)(b) goes on
to provide that the limitation of certain rights, including the
rights referred to in
section
10 and
section
11
"shall, in addition to being reasonable as required in
paragraph (a)(I), also be necessary."
The Two-Stage Approach
Our Constitution deals with the
limitation of rights through a general limitations clause. As was
pointed out by Kentridge AJ
in
Zuma
's case,
126
this calls for a "two-stage" approach, in which a broad
rather than a narrow interpretation is given to the fundamental

rights enshrined in Chapter Three, and limitations have to be
justified through the application of
section
33. In this it
differs from the Constitution of the United States, which does not
contain a limitation clause, as a result
of which courts in that
country have been obliged to find limits to constitutional rights
through a narrow interpretation of
the rights themselves. Although
the "two-stage" approach may often produce the same
result as the "one-stage"
approach,
127
this will not always be the case.
The practical consequences of
this difference in approach are evident in the present case. In
Gregg v. Georgia
, the conclusion reached in the judgment of
the plurality was summed up as follows:
In
sum, we cannot say that the judgment of the Georgia legislature that
capital punishment may be necessary in some cases is clearly
wrong.
Considerations of federalism, as well as respect for the ability of
a legislature to evaluate, in terms of its particular
state the
moral consensus concerning the death penalty and its social utility
as a sanction, require us to conclude in the absence
of more
convincing evidence, that the infliction of death as a punishment
for murder is not without justification, and is thus
not
unconstitutionally severe.
128
Under our Constitution, the
position is different. It is not whether the decision of the State
has been shown to be clearly
wrong; it is whether the decision of
the State is justifiable according to the criteria prescribed by
section
33. It is not whether the infliction of death as a
punishment for murder "is not without justification", it
is whether
the infliction of death as a punishment for murder has
been shown to be both reasonable and necessary, and to be
consistent
with the other requirements of
section
33. It is
for the legislature, or the party relying on the legislation, to
establish this justification, and not for the party
challenging it
to show that it was not justified.
129
The Application of Section 33
The criteria prescribed by
section
33(1) for any limitation of the rights contained in
section
11(2) are that the limitation must be justifiable in
an open and democratic society based on freedom and equality, it
must
be both reasonable and necessary and it must not negate the
essential content of the right.
The limitation of constitutional
rights for a purpose that is reasonable and necessary in a
democratic society involves the
weighing up of competing values,
and ultimately an assessment based on proportionality.
130
This is implicit in the provisions of
section
33(1). The
fact that different rights have different implications for
democracy, and in the case of our Constitution, for "an
open
and democratic society based on freedom and equality", means
that there is no absolute standard which can be laid
down for
determining reasonableness and necessity. Principles can be
established, but the application of those principles to
particular
circumstances can only be done on a case by case basis. This is
inherent in the requirement of proportionality,
which calls for the
balancing of different interests. In the balancing process, the
relevant considerations will include the
nature of the right that
is limited, and its importance to an open and democratic society
based on freedom and equality; the
purpose for which the right is
limited and the importance of that purpose to such a society; the
extent of the limitation,
its efficacy, and particularly where the
limitation has to be necessary, whether the desired ends could
reasonably be achieved
through other means less damaging to the
right in question. In the process regard must be had to the
provisions of
section
33(1), and the underlying values of
the Constitution, bearing in mind that, as a Canadian Judge has
said, "the role of
the Court is not to second-guess the wisdom
of policy choices made by legislators."
131
Limitation of Rights in Canada
In dealing with this aspect of
the case, Mr Trengove placed considerable reliance on the decision
of the Canadian Supreme Court
in
R v Oakes
.
132
The Canadian Charter of Rights, as our Constitution does, makes
provision for the limitation of rights through a general clause.
Section
1 of the Charter permits such reasonable limitations
of Charter rights "as can be demonstrably justified in a free
and
democratic society." In
Oakes
' case it was held
that in order to meet this requirement a limitation of a Charter
right had to be directed to the achievement
of an objective of
sufficient importance to warrant the limitation of the right in
question, and that there had also to be
proportionality between the
limitation and such objective. In a frequently-cited passage,
Dickson CJC described the components
of proportionality as follows:
There
are, in my view, three important components of a proportionality
test. First, the measures adopted must be carefully designed
to
achieve the objective in question. They must not be arbitrary,
unfair or based on irrational considerations. In short, they
must be
rationally connected to the objective. Second, the means, even if
rationally connected to the objective in this first
sense, should
impair "as little as possible" the right or freedom in
question: R v Big M Drug Mart Ltd. at p. 352.
Third, there must be a
proportionality between the
effects
of the measures which are responsible for limiting the Charter right
or freedom, and the objective which has been identified
as of
"sufficient importance".
133
Although there is a rational
connection between capital punishment and the purpose for which it
is prescribed, the elements
of arbitrariness, unfairness and
irrationality in the imposition of the penalty, are factors that
would have to be taken into
account in the application of the first
component of this test. As far as the second component is
concerned, the fact that
a severe punishment in the form of life
imprisonment is available as an alternative sentence, would be
relevant to the question
whether the death sentence impairs the
right as little as possible. And as I will show later, if all
relevant considerations
are taken into account, it is at least
doubtful whether a sentence of capital punishment for murder would
satisfy the third
component of the Oakes test.
The second requirement of the
Oakes
test, that the limitation should impair the right "as
little as possible" raises a fundamental problem of judicial
review. Can, and should, an unelected court substitute its own
opinion of what is reasonable or necessary for that of an elected

legislature? Since the judgment in
R v Oakes
, the Canadian
Supreme Court has shown that it is sensitive to this tension, which
is particularly acute where choices have
to be made in respect of
matters of policy. In I
rwin Toy Ltd v Quebec (Attorney
General)
,
134
Dickson CJ cautioned that courts, "must be mindful of the
legislature's representative function." In Reference re
ss.
193 and 195 (1)(c) of the Criminal Code (Manitoba),
135
it was said that "the role of the Court is not to second-guess
the wisdom of policy choices made by ...legislators";
and in
R
v Chaulk
, that the means must impair the right "as little
as is reasonably possible".
136
Where choices have to be made between "differing reasonable
policy options", the courts will allow the government
the
deference due to legislators, but "[will] not give them an
unrestricted licence to disregard an individual's Charter
Rights.
Where the government cannot show that it had a reasonable basis for
concluding that it has complied with the requirement
of minimal
impairment in seeking to attain its objectives, the legislation
will be struck down."
137
Limitation of Rights in Germany
The German Constitution does not
contain a general limitations clause but permits certain basic
rights to be limited by law.
According to Professor Grimm,
138
the Federal Constitutional Court allows such limitation "only
in order to make conflicting rights compatible or to protect
the
rights of other persons or important community interests...any
restriction of human rights not only needs constitutionally
valid
reasons but also has to be proportional to the rank and importance
of the right at stake." Proportionality is central
to the
process followed by the Federal Constitutional Court in its
adjudication upon the limitation of rights. The Court has
regard to
the purpose of the limiting legislation, whether the legislation is
suitable for the achievement of such purpose,
which brings into
consideration whether it in fact achieves that purpose, is
necessary therefor, and whether a proper balance
has been achieved
between the purpose enhanced by the limitation, and the fundamental
right that has been limited.
139
The German Constitution also has a provision similar to
section
33(1)(b) of our Constitution, but the Court apparently avoids
making use of this provision,
140
preferring to deal with extreme limitations of rights through the
proportionality test.
Limitation of Rights Under the European
Convention
The European Convention also has
no general limitations clause, but makes certain rights subject to
limitation according to
specified criteria. The proportionality
test of the European Court of Human Rights calls for a balancing of
ends and means.
The end must be a "pressing social need"
and the means used must be proportionate to the attainment of such
an end.
The limitation of certain rights is conditioned upon the
limitation being "necessary in a democratic society" for

purposes defined in the relevant provisions of the Convention. The
national authorities are allowed a discretion by the European
Court
of Human Rights in regard to what is necessary - a margin of
appreciation - but not unlimited power. The "margin
of
appreciation" that is allowed varies depending upon the nature
of the right and the nature and ambit of the restriction.
A balance
has to be achieved between the general interest, and the interest
of the individual.
141
Where the limitation is to a right fundamental to democratic
society, a higher standard of justification is required;
142
so too, where a law interferes with the "intimate aspects of
private life."
143
On the other hand, in areas such as morals or social policy greater
scope is allowed to the national authorities.
144
The jurisprudence of the European Court of Human Rights provides
some guidance as to what may be considered necessary in a

democratic society, but the margin of appreciation allowed to
national authorities by the European Court must be understood
as
finding its place in an international agreement which has to
accommodate the sovereignty of the member states. It is not

necessarily a safe guide as to what would be appropriate under
section
33 of our Constitution.
Is Capital Punishment for Murder Justifiable
under the South African Constitution?
In Zuma's case, Kentridge AJ
pointed out that the criteria developed by the Canadian Courts for
the interpretation of
section
1 of the Canadian Charter of
Rights may be of assistance to our Courts, but that there are
differences between our Constitution
and the Canadian Charter which
have a bearing on the way in which
section
33 should be
dealt with. This is equally true of the criteria developed by other
courts, such as the German Constitutional
Court and the European
Court of Human Rights. Like Kentridge AJ, "I see no reason in
this case... to attempt to fit our
analysis into the Canadian
pattern,"
145
or for that matter to fit it into the pattern followed by any of
the other courts to which reference has been made.
Section
33 prescribes in specific terms the criteria to be applied for the
limitation of different categories of rights and it is in
the light
of these criteria that the death sentence for murder has to be
justified.
"Every person" is
entitled to claim the protection of the rights enshrined in Chapter
Three, and "no" person
shall be denied the protection
that they offer. Respect for life and dignity which are at the
heart of
section
11(2) are values of the highest order under
our Constitution. The carrying out of the death penalty would
destroy these and
all other rights that the convicted person has,
and a clear and convincing case must be made out to justify such
action.
The Attorney General contended
that the imposition of the death penalty for murder in the most
serious cases could be justified
according to the prescribed
criteria. The argument went as follows. The death sentence meets
the sentencing requirements for
extreme cases of murder more
effectively than any other sentence can do. It has a greater
deterrent effect than life imprisonment;
it ensures that the worst
murderers will not endanger the lives of prisoners and warders who
would be at risk if the "worst
of the murderers" were to
be imprisoned and not executed; and it also meets the need for
retribution which is demanded
by society as a response to the high
level of crime. In the circumstances presently prevailing in the
country, it is therefore
a necessary component of the criminal
justice system. This, he said, is recognised by the Appellate
Division, which only confirms
a death sentence if it is convinced
that no other sentence would be a proper sentence.
146
The Judgements of the Appellate Division
The decisions of the Appellate
Division to which the Attorney General referred are only of limited
relevance to the questions
that have to be decided in the present
case. The law which the Appellate Division has applied prescribes
that the death sentence
is a competent sentence for murder in a
proper case. The Appellate Division has reserved this sentence for
extreme cases in
which the maximum punishment would be the
appropriate punishment. Were it to have done otherwise, and to have
refused to pass
death sentences, it would in effect have been
saying that the death sentence is never a proper sentence, and that
section
277(1)(a) should not be enforced. This was not
within its competence. The criteria set by the Appellate Division
for the passing
of a death sentence for murder are relevant to the
argument on arbitrariness, and also provide a basis for testing the
justifiability
of such a penalty. They do not, however, do more
than that.
The Judgement of the Tanzanian Court of Appeal
There is support for part of the
Attorney General's argument in the judgment of the Tanzanian Court
of Appeal in Mbushuu and
Another v The Republic.
147
It was held in this case that the death sentence amounted to cruel
and degrading punishment, which is prohibited under the
Tanzanian
Constitution, but that despite this finding, it was not
unconstitutional. The Constitution authorised derogations
to be
made from basic rights for legitimate purposes, and a derogation
was lawful if it was not arbitrary, and was reasonably
necessary
for such purpose. The legitimate purposes to which the death
sentence was directed was a constitutional requirement
that
"everyone's right to life shall be protected by law." The
death sentence was a mandatory penalty for murder,
but it was not
considered by the Court to be arbitrary because decisions as to
guilt or innocence are taken by judges. There
was no proof one way
or the other that the death sentence was necessarily a more
effective punishment than a long period of
imprisonment. In the
view of the Court, however, it was for society and not the courts
to decide whether the death sentence
was a necessary punishment.
The Court was satisfied that society favoured the death sentence,
and that in the circumstances
"the reasonable and necessary"
standard had been met. Accordingly, it held that the death sentence
was a lawful derogation
from the prohibition of cruel and degrading
punishment, and thus valid.
The approach of the Tanzanian
Court of Appeal to issues concerning the limitation of basic rights
seems to have been influenced
by the language of the Tanzanian
Constitution,
148
and rules of interpretation developed by the Courts to deal with
that language. The relevant provisions of our Constitution
are
different and the correct approach to the interpretation of the
limitations clause must be found in the language of
section
33 construed in the context of the Constitution as a whole. It is
for the Court, and not society or Parliament, to decide whether
the
death sentence is justifiable under the provisions of
section
33 of our Constitution.
149
In doing so we can have regard to societal attitudes in evaluating
whether the legislation is reasonable and necessary, but
ultimately
the decision must be ours. If the decision of the Tanzanian Court
of Appeal is inconsistent with this conclusion,
I must express my
disagreement with it.
Deterrence
The Attorney General attached
considerable weight to the need for a deterrent to violent crime.
He argued that the countries
which had abolished the death penalty
were on the whole developed and peaceful countries in which other
penalties might be
sufficient deterrents. We had not reached that
stage of development, he said. If in years to come we did so, we
could do away
with the death penalty. Parliament could decide when
that time has come. At present, however, so the argument went, the
death
sentence is an indispensable weapon if we are serious about
combatting violent crime.
The need for a strong deterrent
to violent crime is an end the validity of which is not open to
question. The state is clearly
entitled, indeed obliged, to take
action to protect human life against violation by others. In all
societies there are laws
which regulate the behaviour of people and
which authorise the imposition of civil or criminal sanctions on
those who act unlawfully.
This is necessary for the preservation
and protection of society. Without law, society cannot exist.
Without law, individuals
in society have no rights. The level of
violent crime in our country has reached alarming proportions. It
poses a threat to
the transition to democracy, and the creation of
development opportunities for all, which are primary goals of the
Constitution.
The high level of violent crime is a matter of common
knowledge and is amply borne out by the statistics provided by the
Commissioner
of Police in his amicus brief. The power of the State
to impose sanctions on those who break the law cannot be doubted.
It
is of fundamental importance to the future of our country that
respect for the law should be restored, and that dangerous
criminals
should be apprehended and dealt with firmly. Nothing in
this judgment should be understood as detracting in any way from
that
proposition. But the question is not whether criminals should
go free and be allowed to escape the consequences of their
anti-social
behaviour. Clearly they should not; and equally clearly
those who engage in violent crime should be met with the full
rigour
of the law. The question is whether the death sentence for
murder can legitimately be made part of that law. And this depends

on whether it meets the criteria prescribed by
section
33(1).
The Attorney General pointed to
the substantial increase in the incidence of violent crime over the
past five years during which
the death sentence has not been
enforced. He contended that this supported his argument that
imprisonment is not a sufficient
deterrent, and that we have not
yet reached the stage of development where we can do without the
death sentence. Throughout
this period, however, the death sentence
remained a lawful punishment, and was in fact imposed by the courts
although the sentences
were not carried out.
150
The moratorium was only announced formally on 27 March 1992.
151
A
decision could have been taken at any time to terminate the
moratorium on executions, and none of the criminals had any

assurance that the moratorium would still be in place if they were
to be caught, brought to trial, convicted and sentenced to
death.
The cause of the high incidence
of violent crime cannot simply be attributed to the failure to
carry out the death sentences
imposed by the courts. The upsurge in
violent crime came at a time of great social change associated with
political turmoil
and conflict, particularly during the period 1990
to 1994. It is facile to attribute the increase in violent crime
during this
period to the moratorium on executions.
152
It was a progression that started before the moratorium was
announced. There are many factors that have to be taken into

account in looking for the cause of this phenomenon. It is a matter
of common knowledge that the political conflict during this
period,
particularly in Natal and the Witwatersrand, resulted in violence
and destruction of a kind not previously experienced.
No-go areas,
random killings on trains, attacks and counter attacks upon
political opponents, created a violent and unstable
environment,
manipulated by political dissidents and criminal elements alike.
Homelessness, unemployment,
poverty and the frustration consequent upon such conditions are
other causes of the crime wave.
And there is also the important
factor that the police and prosecuting authorities have been unable
to cope with this. The
statistics presented in the police amicus
brief show that most violent crime is not solved, and the Attorney
General confirmed
that the risk of a criminal being apprehended and
convicted for such offences is somewhere between 30 and 40 per
cent. Throughout
the period referred to by the Attorney General the
death sentence remained on the statute book and was imposed on
convicted
murderers when the Courts considered it appropriate to do
so.
We would be deluding ourselves if
we were to believe that the execution of the few persons sentenced
to death during this period,
and of a comparatively few other
people each year from now onwards will provide the solution to the
unacceptably high rate
of crime. There will always be unstable,
desperate, and pathological people for whom the risk of arrest and
imprisonment provides
no deterrent, but there is nothing to show
that a decision to carry out the death sentence would have any
impact on the behaviour
of such people, or that there will be more
of them if imprisonment is the only sanction. No information was
placed before us
by the Attorney General in regard to the rising
crime rate other than the bare statistics, and they alone prove
nothing, other
than that we are living in a violent society in
which most crime goes unpunished - something that we all know.
The greatest deterrent to crime
is the likelihood that offenders will be apprehended, convicted and
punished. It is that which
is presently lacking in our criminal
justice system; and it is at this level and through addressing the
causes of crime that
the State must seek to combat lawlessness.
In the debate as to the deterrent
effect of the death sentence, the issue is sometimes dealt with as
if the choice to be made
is between the death sentence and the
murder going unpunished. That is of course not so. The choice to be
made is between putting
the criminal to death and subjecting the
criminal to the severe punishment of a long term of imprisonment
which, in an appropriate
case, could be a sentence of life
imprisonment.
153
Both are deterrents, and the question is whether the possibility of
being sentenced to death, rather than being sentenced to
life
imprisonment, has a marginally greater deterrent effect, and
whether the Constitution sanctions the limitation of rights

affected thereby.
In the course of his argument the
Attorney General contended that if sentences imposed by the Courts
on convicted criminals
are too lenient, the law will be brought
into disrepute, and members of society will then take the law into
their own hands.
Law is brought into disrepute if the justice
system is ineffective and criminals are not punished. But if the
justice system
is effective and criminals are apprehended, brought
to trial and in serious cases subjected to severe sentences, the
law will
not fall into disrepute. We have made the commitment to "a
future founded on the recognition of human rights, democracy and

peaceful co-existence...for all South Africans."
154
Respect for life and dignity lies at the heart of that commitment.
One of the reasons for the prohibition of capital punishment
is
"that allowing the State to kill will cheapen the value of
human life and thus [through not doing so] the State will
serve in
a sense as a role model for individuals in society."
155
Our country needs such role models.
The Attorney General also
contended that if even one innocent life should be saved by the
execution of perpetrators of vile
murders, this would provide
sufficient justification for the death penalty.
156
The hypothesis that innocent lives might be saved must be weighed
against the values underlying the Constitution, and the ability
of
the State to serve "as a role model". In the long run
more lives may be saved through the inculcation of a rights

culture, than through the execution of murderers.
The death sentence has been
reserved for the most extreme cases, and the overwhelming majority
of convicted murderers are not
and, since extenuating circumstances
became a relevant factor sixty years ago, have not been sentenced
to death in South Africa.
I referred earlier to the figures
provided by the Attorney General which show that between the
amendment of the
Criminal Procedure Act in
1990, and January 1995,
which is the date of his written argument in the present case, 243
death sentences were imposed, of
which 143 were confirmed by the
Appellate Division. Yet, according to statistics placed before us
by the Commissioner of Police
and the Attorney General, there were
on average approximately 20 000 murders committed, and 9 000 murder
cases brought to trial,
each year during this period. Would the
carrying out of the death sentence on these 143 persons have
deterred the other murderers
or saved any lives?
It was accepted by the Attorney
General that this is a much disputed issue in the literature on the
death sentence. He contended
that it is common sense that the most
feared penalty will provide the greatest deterrent, but accepted
that there is no proof
that the death sentence is in fact a greater
deterrent than life imprisonment for a long period. It is, he said,
a proposition
that is not capable of proof, because one never knows
about those who have been deterred; we know only about those who
have
not been deterred, and who have committed terrible crimes.
This is no doubt true, and the fact that there is no proof that the

death sentence is a greater deterrent than imprisonment does not
necessarily mean that the requirements of
section
33
cannot
be met. It is, however, a major obstacle in the way of the Attorney
General's argument, for he has to satisfy us that
the penalty is
reasonable and necessary, and the doubt which exists in regard to
the deterrent effect of the sentence must
weigh heavily against his
argument. "A punishment as extreme and as irrevocable as death
cannot be predicated upon speculation
as to what the deterrent
effect might be..."
157
I should add that this obstacle would not be removed by the
implementation of a suggestion in one of the amicus briefs, that
section
277(1)
of the
Criminal Procedure Act should
be made
more specific, and should identify the extreme categories of murder
for which the death sentence would be a permissible
punishment.
Prevention
Prevention is another object of
punishment. The death sentence ensures that the criminal will never
again commit murders, but
it is not the only way of doing so, and
life imprisonment also serves this purpose. Although there are
cases of gaol murders,
imprisonment is regarded as sufficient for
the purpose of prevention in the overwhelming number of cases in
which there are
murder convictions, and there is nothing to suggest
that it is necessary for this purpose in the few cases in which
death sentences
are imposed.
Retribution
Retribution is one of the objects
of punishment, but it carries less weight than deterrence.
158
The righteous anger of family and friends of the murder victim,
reinforced by the public abhorrence of vile crimes, is easily

translated into a call for vengeance. But capital punishment is not
the only way that society has of expressing its moral outrage
at
the crime that has been committed. We have long outgrown the
literal application of the biblical injunction of "an
eye for
an eye, and a tooth for a tooth". Punishment must to some
extent be commensurate with the offence, but there is
no
requirement that it be equivalent or identical to it. The state
does not put out the eyes of a person who has blinded another
in a
vicious assault, nor does it punish a rapist, by castrating him and
submitting him to the utmost humiliation in gaol.
The state does
not need to engage in the cold and calculated killing of murderers
in order to express moral outrage at their
conduct. A very long
prison sentence is also a way of expressing outrage and visiting
retribution upon the criminal.
Retribution ought not to be given
undue weight in the balancing process. The Constitution is premised
on the assumption that
ours will be a constitutional state founded
on the recognition of human rights.
159
The concluding provision on National Unity and Reconciliation
contains the following commitment:
The
adoption of this Constitution lays the secure foundation for the
people of South Africa to transcend the divisions and strife
of the
past, which generated gross violations of human rights, the
transgression of humanitarian principles in violent conflicts
and a
legacy of hatred, fear, guilt and
revenge
.
These
can now be addressed on the basis that there is a need for
understanding
but not for vengeance
, a need for reparation
but
not for retaliation
, a need for
ubuntu
but
not
for victimisation
. (Emphasis supplied)
Although this commitment has its
primary application in the field of political reconciliation, it is
not without relevance to
the enquiry we are called upon to
undertake in the present case. To be consistent with the value of
ubuntu
ours should be a society that "wishes to prevent
crime...[not] to kill criminals simply to get even with them."
160
The Essential Content of the Right
Section
33(1)(b) provides
that a limitation shall not negate the essential content of the
right. There is uncertainty in the literature
concerning the
meaning of this provision. It seems to have entered constitutional
law through the provisions of the German
Constitution, and in
addition to the South African constitution, appears, though not
precisely in the same form, in the constitutions
of Namibia,
Hungary, and possibly other countries as well. The difficulty of
interpretation arises from the uncertainty as
to what the
"essential content" of a right is, and how it is to be
determined. Should this be determined subjectively
from the point
of view of the individual affected by the invasion of the right, or
objectively, from the point of view of the
nature of the right and
its place in the constitutional order, or possibly in some other
way? Professor Currie draws attention
to the large number of
theories which have been propounded by German scholars as to the
how the "essence" of a right
should be discerned and how
the constitutional provision should be applied.
161
The German Federal Constitutional Court has apparently avoided to a
large extent having to deal with this issue by subsuming
the
enquiry into the proportionality test that it applies and the
precise scope and meaning of the provision is controversial.
162
If the essential content of the
right not to be subjected to cruel, inhuman or degrading punishment
is to be found in respect
for life and dignity, the death sentence
for murder, if viewed subjectively from the point of view of the
convicted prisoner,
clearly negates the essential content of the
right. But if it is viewed objectively from the point of view of a
constitutional
norm that requires life and dignity to be protected,
the punishment does not necessarily negate the essential content of
the
right. It has been argued before this Court that one of the
purposes of such punishment is to protect the life and hence the
dignity of innocent members of the public, and if it in fact does
so, the punishment will not negate the constitutional norm.
On this
analysis it would, however, have to be shown that the punishment
serves its intended purpose. This would involve a
consideration of
the deterrent and preventative effects of the punishment and
whether they add anything to the alternative
of life imprisonment.
If they do not, they cannot be said to serve a life protecting
purpose. If the negation is viewed both
objectively and
subjectively, the ostensible purpose of the punishment would have
to be weighed against the destruction of
the individual's life. For
the purpose of that analysis the element of retribution would have
to be excluded and the "life
saving" quality of the
punishment would have to be established.
It is, however, not necessary to
solve this problem in the present case. At the very least the
provision evinces concern that,
under the guise of limitation,
rights should not be taken away altogether. It was presumably the
same concern that influenced
Dickson CJC to say in R v Oakes that
rights should be limited "as little as possible",
163
and the German Constitutional Court to hold in the life
imprisonment case that all possibility of parole ought not to be

excluded.
164
The Balancing Process
In the balancing process,
deterrence, prevention and retribution must be weighed against the
alternative punishments available
to the state, and the factors
which taken together make capital punishment cruel, inhuman and
degrading: the destruction of
life, the annihilation of dignity,
the elements of arbitrariness, inequality and the possibility of
error in the enforcement
of the penalty.
The Attorney General argued that
the right to life and the right to human dignity were not absolute
concepts. Like all rights
they have their limits. One of those
limits is that a person who murders in circumstances where the
death penalty is permitted
by
section
277, forfeits his or
her right to claim protection of life and dignity. He sought to
support this argument by reference to
the principles of
self-defence. If the law recognises the right to take the life of a
wrongdoer in a situation in which self-defence
is justified, then,
in order to deter others, and to ensure that the wrongdoer does not
again kill an innocent person, why
should it not recognise the
power of the state to take the life of a convicted murderer?
Conversely, if the death sentence
negates the essential content of
the right to life, how can the taking of the life of another person
in self-defence, or even
to protect the State itself during war or
rebellion, ever be justified.
This argument is fallacious. The
rights vested in every person by Chapter Three of the Constitution
are subject to limitation
under
section
33. In times of
emergency, some may be suspended in accordance with the provisions
of
section
34 of the Constitution.
165
But subject to this, the rights vest in every person, including
criminals convicted of vile crimes. Such criminals do not forfeit

their rights under the Constitution and are entitled, as all in our
country now are, to assert these rights, including the
right to
life, the right to dignity and the right not to be subjected to
cruel, inhuman or degrading punishment. Whether or
not a particular
punishment is inconsistent with these rights depends upon an
interpretation of the relevant provisions of
the Constitution, and
not upon a moral judgment that a murderer should not be allowed to
claim them.
Self-defence is recognised by all
legal systems. Where a choice has to be made between the lives of
two or more people, the
life of the innocent is given preference
over the life of the aggressor. This is consistent with
section
33(1). To deny the innocent person the right to act in self-defence
would deny to that individual his or her right to life.
The same is
true where lethal force is used against a hostage taker who
threatens the life of the hostage. It is permissible
to kill the
hostage taker to save the life of the innocent hostage. But only if
the hostage is in real danger. The law solves
problems such as
these through the doctrine of proportionality, balancing the rights
of the aggressor against the rights of
the victim, and favouring
the life or lives of innocents over the life or lives of the
guilty.
166
But there are strict limits to the taking of life, even in the
circumstances that have been described, and the law insists
upon
these limits being adhered to. In any event, there are material
respects in which killing in self-defence or necessity
differ from
the execution of a criminal by the State. Self-defence takes place
at the time of the threat to the victim's life,
at the moment of
the emergency which gave rise to the necessity and, traditionally,
under circumstances in which no less-severe
alternative is readily
available to the potential victim. Killing by the State takes place
long after the crime was committed,
at a time when there is no
emergency and under circumstances which permit the careful
consideration of alternative punishment.
The examples of war and rebellion
are also not true analogies. War and rebellion are special cases
which must be dealt with
in terms of the legal principles governing
such situations. It is implicit in any constitutional order that
the State can act
to put down rebellion and to protect itself
against external aggression. Where it is necessary in the pursuit
of such ends
to kill in the heat of battle the taking of life is
sanctioned under the Constitution by necessary implication, and as
such,
is permissible in terms of
section
4(1).
167
But here also there are limits. Thus prisoners of war who have been
captured and who are no longer a threat to the State cannot
be put
to death; nor can lethal force be used against rebels when it is
not necessary to do so for the purposes of putting
down the
rebellion.
The case of a police officer
shooting at an escaping criminal was also raised in argument. This
is permitted under
section
49(2)
of the
Criminal Procedure
Act as
a last resort if it is not possible to arrest the criminal
in the ordinary way. Once again, there are limits. It would not,

for instance, be permissible to shoot at point blank range at a
criminal who has turned his or her back upon a police officer
in
order to abscond, when other methods of subduing and arresting the
criminal are possible. We are not concerned here with
the validity
of
section
49(2)
of the
Criminal Procedure Act, and
I
specifically refrain from expressing any view thereon. Greater
restriction on the use of lethal force may be one of the
consequences of the establishment of a constitutional state which
respects every person's right to life. Shooting at a fleeing

criminal in the heat of the moment, is not necessarily to be
equated with the execution of a captured criminal. But, if one
of
the consequences of this judgment might be to render the provisions
of
section
49(2)
unconstitutional, the legislature will have
to modify the provisions of the
section
in order to bring it
into line with the Constitution. In any event, the
constitutionality of the death sentence for murder
does not depend
upon whether it is permissible for life to be taken in other
circumstances currently sanctioned by law. It
depends upon whether
it is justifiable as a penalty in terms of
section
33 of the
Constitution. In deciding this question, the fact that the person
sentenced to death is denied his or her right to
life is of the
greatest importance.
The Attorney General argued that
all punishment involves an impairment of dignity. Imprisonment,
which is the alternative to
the death sentence, severely limits a
prisoner's fundamental rights and freedoms. There is only the
barest freedom of movement
or of residence in prison, and other
basic rights such as freedom of expression and freedom of assembly
are severely curtailed.
Dignity is inevitably impaired by
imprisonment or any other punishment, and the undoubted power of
the state to impose punishment
as part of the criminal justice
system, necessarily involves the power to encroach upon a
prisoner's dignity. But a prisoner
does not lose all his or her
rights on entering prison.
[Prisoners retain] those absolute
natural rights relating to personality, to which every man is
entitled. True [their] freedom
had been greatly impaired by the
legal process of imprisonment but they were entitled to demand
respect for what remained.
The fact that their liberty had been
legally curtailed could afford no excuse for a further legal
encroachment upon it. [It
was] contended that the [prisoners] once
in prison could claim only such rights as the Ordinance and the
regulations conferred.
But the directly opposite view is surely the
correct one. They were entitled to all their personal rights and
personal dignity
not temporarily taken away by law, or necessarily
inconsistent with the circumstances in which they had been placed.
168
A prisoner is not stripped
naked, bound, gagged and chained to his or her cell. The right of
association with other prisoners,
the right to exercise, to write
and receive letters and the rights of personality referred to by
Innes J are of vital importance
to prisoners and highly valued by
them precisely because they are confined, have only limited contact
with the outside world,
and are subject to prison discipline.
Imprisonment is a severe punishment; but prisoners retain all the
rights to which every
person is entitled under Chapter Three
subject only to limitations imposed by the prison regime that are
justifiable under
section
33.
169
Of these, none are more important than the
section
11(2)
right not to be subjected to "torture of any kind...nor to
cruel, inhuman or degrading treatment or punishment."
There is
a difference between encroaching upon rights for the purpose of
punishment and destroying them altogether. It is that
difference
with which we are concerned in the present case.
Conclusion
The rights to life and dignity
are the most important of all human rights, and the source of all
other personal rights in Chapter
Three. By committing ourselves to
a society founded on the recognition of human rights we are
required to value these two rights
above all others. And this must
be demonstrated by the State in everything that it does, including
the way it punishes criminals.
This is not achieved by objectifying
murderers and putting them to death to serve as an example to
others in the expectation
that they might possibly be deterred
thereby.
In the balancing process the
principal factors that have to be weighed are on the one hand the
destruction of life and dignity
that is a consequence of the
implementation of the death sentence, the elements of arbitrariness
and the possibility of error
in the enforcement of capital
punishment, and the existence of a severe alternative punishment
(life imprisonment) and, on
the other, the claim that the death
sentence is a greater deterrent to murder, and will more
effectively prevent its commission,
than would a sentence of life
imprisonment, and that there is a public demand for retributive
justice to be imposed on murderers,
which only the death sentence
can meet.
Retribution cannot be accorded
the same weight under our Constitution as the rights to life and
dignity, which are the most
important of all the rights in Chapter
Three. It has not been shown that the death sentence would be
materially more effective
to deter or prevent murder than the
alternative sentence of life imprisonment would be. Taking these
factors into account,
as well as the elements of arbitrariness and
the possibility of error in enforcing the death penalty, the clear
and convincing
case that is required to justify the death sentence
as a penalty for murder, has not been made out. The requirements of
section
33(1) have accordingly not been satisfied, and it
follows that the provisions of
section
277(1)(a)
of the
Criminal Procedure Act, 1977
must be held to be inconsistent with
section
11(2) of the Constitution. In the circumstances, it
is not necessary for me to consider whether the
section
would also be inconsistent with
sections
8, 9 or 10 of the
Constitution if they had been dealt with separately and not treated
together as giving meaning to
section
11(2).
Section 241(8) of the Constitution
In the present case the trial had
been completed but an appeal to the Appellate Division was pending,
when the 1993 Constitution
came into force. The validity of the
trial, and the fact that the death sentences were competent
sentences at the time they
were imposed, are not in issue. What is
in issue before the Appellate Division is whether the death
sentences can and should
be confirmed. It has postponed its
judgment pending the determination of the issues referred to us for
our decision.
It is not necessary to deal with
the provisions of
section
241(8) in the present case. The
Attorney General correctly conceded that if the death penalty for
murder is unconstitutional,
it would not be competent to carry out
the death sentences that have been imposed on the accused. The
prohibition of cruel,
inhuman or degrading punishment is applicable
to all punishments implemented after the 27
th
April, and
can be invoked to prevent a punishment being carried out even if
the punishment was lawful when it was imposed.
170
The Order to be made
I have dealt in this judgment
only with the provisions of
section
277(1)(a)
of the
Criminal Procedure Act, but
it is clear that if subsection (1)(a)
is inconsistent with the Constitution, subsections (1)(c) to (1)(f)
must also be unconstitutional,
so too must provisions of
legislation corresponding to
sections
277(1)(a), (c), (d),
(e) and (f) that are in force in parts of the national territory in
terms of
section
229 of the Constitution. Different
considerations arising from
section
33(1) might possibly
apply to subsection (b) which makes provision for the imposition of
the death sentence for treason committed
when the republic is in a
state of war. No argument was addressed to us on this issue, and I
refrain from expressing any views
thereon.
The proper sentence to be imposed
on the accused is a matter for the Appellate Division and not for
us to decide. This, and
other capital cases which have been
postponed by the Appellate Division pending the decision of this
Court on the constitutionality
of the death sentence, can now be
dealt with in accordance with the order made in this case. Lest
there be any doubt on this
score, one of the effects of our
judgment is to prohibit the State, or any of its organs, from
executing persons whose appeals
against sentences of death have
been disposed of. Such persons will remain in custody under the
sentences imposed on them until
such sentences have been set aside
in accordance with law, and substituted by appropriate and lawful
punishments. This will
form part of the order made.
The following order is made:
In terms of
section
98(5)
of the Constitution, and with effect from the date of this order,
the provisions of paragraphs (a), (c), (d), (e) and
(f) of
section
277(1)
of the
Criminal Procedure Act, and
all corresponding
provisions of other legislation sanctioning capital punishment
which are in force in any part of the national
territory in terms
of
section
229
, are declared to be inconsistent with the
Constitution and, accordingly, to be invalid.
In terms of
section
98(7)
of the Constitution, and with effect from the date of this order:
the State is and all its organs
are forbidden to execute any person already sentenced to death
under any of the provisions
thus declared to be invalid; and
all such persons will remain in
custody under the sentences imposed on them, until such sentences
have been set aside in accordance
with law and substituted by
lawful punishments.
ACKERMANN J:
I concur
fully in the judgment of the President, both regarding his
conclusions and his reasons therefor, save in the respects

hereinafter set forth. I also agree with the order proposed by him.
I place greater emphasis on the
inevitably arbitrary nature of the decision involved in the
imposition of the death penalty
as a form of punishment in
supporting the conclusion that it constitutes "cruel",
"inhuman" and "degrading
punishment" within the
meaning of section 11(2) of the Constitution, which cannot be saved
by section 33(1).
In paragraphs [43] to [56] of his
judgment the President deals with the arbitrariness and inequality
of the death penalty. He
deals (more particularly in paragraphs
[55] and [56]) with the difficulties faced by the US Supreme Court
in trying to eliminate
the dangers of arbitrariness by employing
the due process provisions of the Fifth and Fourteenth Amendments.
Such efforts cause
considerable expense and interminable delays,
and the President concludes by expressing the view that we should
not follow
the United States route. I agree, but that does not mean
that we ought not to accord greater weight to considerations of
arbitrariness
and inequality. The US Supreme Court has been obliged
to follow the route it did because, so it seems to me, their
Constitution
postulates (by implication) that it is possible to
devise due process mechanisms which can deal with the arbitrary and
unequal
features of death sentence imposition. We are not so
constrained. Our right to life is not qualified in the way it is
qualified
in the Fifth and Fourteenth Amendments of the US
Constitution. We are not constitutionally constrained to accept the
arbitrary
consequences of the imposition of the death penalty.
The preamble to the Constitution
refers to the creation of a new order in a state, which, amongst
other things, is described
as a "constitutional state."
Section
4(1) declares the Constitution to be the "supreme
law of the Republic" which by virtue of section 4(2) "binds
all legislative, executive and judicial organs of state at all
levels of government." Every person's right to equality
before
the law is entrenched in section 8(1) and in section 8(2) a
substantial number of different grounds of unfair discrimination

are prohibited. The constitutional importance of equality is
further underscored in section 35(1) which enjoins the courts
to
promote the values which underlie an open and democratic society
based on freedom and equality in interpreting the provisions
of
Chapter 3.
In reaction to our past, the
concept and values of the constitutional state, of the "regstaat",
and the constitutional
right to equality before the law are deeply
foundational to the creation of the "new order" referred
to in the preamble.
The detailed enumeration and description in
section 33(1) of the
criteria
which must be met before the
legislature can limit a right entrenched in Chapter 3 of the
Constitution emphasises the importance,
in our new constitutional
state, of reason and justification when rights are sought to be
curtailed. We have moved from a past
characterised by much which
was arbitrary and unequal in the operation of the law to a present
and a future in a constitutional
state where state action must be
such that it is capable of being analysed and justified rationally.
The idea of the constitutional
state presupposes a system whose
operation can be rationally tested against or in terms of the law.
Arbitrariness, by its very
nature, is dissonant with these core
concepts of our new constitutional order. Neither arbitrary action
nor laws or rules which
are inherently arbitrary or must lead to
arbitrary application can, in any real sense, be tested against the
precepts or principles
of the Constitution
1
.
Arbitrariness must also inevitably, by its very nature, lead to the
unequal treatment of persons. Arbitrary action, or decision
making,
is incapable of providing a rational explanation as to why
similarly placed persons are treated in a substantially
different
way. Without such a rational justifying mechanism, unequal
treatment must follow.
It is in the context of our
(textually) unqualified section 9 right to life that I find certain
observations in the US decisions
supportive on the issue and
consequences of arbitrariness. We are free to look at the incidence
and consequences of arbitrariness
without being constrained by a
constitutional authorization (whether explicit or implicit) of the
death penalty. One must of
course constantly bear in mind that the
relevant criteria in the Eighth Amendment of the US Constituion
also differ from those
in section 11(2) of our Constitution.
Whereas in the former they are "cruel and unusual" in the
latter they are "cruel,
inhuman or degrading".
In
Furman v. Georgia
2
the US Supreme Court had to consider a case where the determination
of whether the penalty for murder and rape should be death
or
another punishment was left by the State of Georgia to the
discretion of the judge or of the jury. In the course of his

judgment
3
Douglas J referred with approval to the following comments in a
journal article:
"A penalty ... should be considered 'unusually'
imposed if it is administered
arbitrarily or discriminatingly ... [t]he extreme
rarity with which applicable death penalty provisions are put to use
raises
a strong inference of arbitrariness."
He further expressed the view
4
that -
"[t]he high service rendered by the 'cruel and
unusual' punishment clause of the
Eighth Amendment is to require legislatures to write
penal laws that are evenhanded, non-selective, and nonarbitrary ..."
On the issue of arbitrariness
Brennan J observed in
Furman
5
that -
"In determining whether a punishment comports with
human dignity, we are aided also by a second principle inherent in
the
[Cruel and Unusual Punishments] Clause - that the State must not
arbitrarily inflict a severe punishment. This principle derives
from
the notion that the State does not respect human dignity when,
without reason, it inflicts upon some people a severe punishment

that it does not inflict upon others."
He also stated
6
(in a context not dissimilar to ours where a vast number of murders
are committed, a large number of accused charged and convicted
but
relatively few ultimately executed) that -
"No one has yet suggested a rational basis that
could differentiate in those terms the few who die from the many who
go to
prison. Crimes and criminals simply do not admit of a
distinction that can be drawn so finely as to explain, on that
ground,
the execution of such a tiny sample of those eligible
......... Nor is the distinction credible in fact."
Stewart J founded his judgment on
the fact that the imposition of so extreme a penalty in pursuance
of the Georgia statute was
inevitably arbitrary. After referring to
the fact that "the petitioners are among a capriciously
selected random handful
upon whom the sentence of death has in fact
been imposed" he concludes simply by holding that -
"the Eighth and Fourteenth Amendments cannot
tolerate the infliction of a sentence of death under legal systems
that permit
this unique penalty to be so wantonly and so freakishly
imposed"
7
In
Callins v. Collins
,
cert. denied,
114 S.Ct. 1127
,
127 L.Ed 435
(1994) Blackmun J filed
a dissenting opinion. In it he observed that
8
-
"[e]xperience has taught us that the
constitutional goal of eliminating arbitrariness and discrimination
from the administration
of death, see
Furman v. Georgia
,
supra
, can never be achieved without compromising an
equally essential component of fundamental fairness - individualized
sentencing.
See
Lockett v. Ohio
,
[1978] USSC 154
;
438 U.S. 586
(1978)."
and, commenting upon its unavoidable arbitrariness,
that
9
-
"[i]t is virtually self-evident to me now that no
combination of procedural rules or substantive regulations ever can
save
the death penalty from its inherent constitutional
deficiencies. The basic question - does the system accurately and
consistently
determine which defendants 'deserve' to die? - cannot
be answered in the affirmative."
He further expressed the view that
10
-
“
[a]lthough most of the public seems to desire,
and the Constitution appears to permit, the penalty of death, it
surely is beyond
dispute that
if the death penalty cannot be
administered consistently and rationally
, it must not be
administered at all." (emphasis added)
and that
11
,
in the aftermath of the
Furman
judgment -
"[i]t soon became apparent that discretion could
not be eliminated from capital sentencing without threatening the
fundamental
fairness due a defendant when life is at stake. Just as
contemporary society was no longer tolerant of the random or
discriminatory
infliction of the penalty of death ... evolving
standards of decency
required
due consideration of the uniqueness of each individual defendant
when imposing society's ultimate penalty ... [T]he consistency
and
rationality promised in Furman are inversely related to the fairness
owed the individual when considering a sentence of death.
A step
toward consistency is a step away from fairness".
In considering a constitutional
right to life unfettered by the restraints or interpretative
problems of the right in the US
Constitution, I am of the view that
the above dicta are appropriate to the issue of the
constitutionality of the death sentence
in South Africa. As general
propositions, which can be applied in the context of our
Constitution, I would accept and endorse
the views of Blackmun J.
As to the more general principle
that arbitrariness conflicts with the idea of a right to equality
and equality before the law
I am fortified in my view by the
following remarks of Bhagwati, J in
Gandhi v. Union of India
1978 SC 597
at 624:
"We must reiterate here what was pointed out by
the majority in
E.P. Royappa v. State of Tamil Nadu
(1974) 2
SCR 348:
(AIR
1974 SC 555)
namely, that 'from a positivistic point
of view, equality is antithetic to arbitrariness. In fact equality
and arbitrariness
are sworn enemies; one belongs to the rule of law
in a republic, while the other, to the whim and caprice of an
absolute monarch.
Where an act is arbitrary, it is implicit in it
that it is unequal both according to political logic and
constitutional law and
is, therefore violative of Article 14.'"
I am mindful of the fact that it
is virtually impossible (save in the case of rigidly circumscribed
mandatory sentences - which
present other dangers) to avoid
elements of arbitrariness in the imposition of any punishment.
Arbitrary elements are present
in the difficult decision to send an
offender to prison for the first time, or in deciding what the
appropriate length of the
prison sentence should be in any case
where it is imposed. However, the consequences of the death
sentence, as a form of punishment,
differ so radically from any
other sentence that the death sentence differs not only in degree
but also in substance from any
other form of punishment. A sentence
which preserves life differs incomparably from one which
obliterates life. The executed
person has, in fact, "lost the
right to have rights."
12
In this sense the death sentence is unique and the dimension and
consequences of arbitrariness in its imposition differ

fundamentally from the dimension and consequences of arbitrariness
in the imposition of any other punishment.
13
In paragraphs [44] to [46] of his
judgment the President has referred to the relevant statutory
provisions prescribing the tests
to be applied for the imposition
of the death sentence and the guidelines laid down for their
application by the Appellate
Division of the Supreme Court. In the
end, whatever guidelines are employed, a process of weighing up has
to take place between
"mitigating factors" (if any) and
"aggravating factors" and thereafter a value judgment
made as to whether
"the sentence of death is the proper
sentence." I am not suggesting that the statutory provisions
could have been
better formulated or that the Appellate Division
guidelines could be improved upon.
The fact of the matter is that they
leave such a wide latitude for differences of individual
assessment, evaluation and normative
judgment, that they are
inescapably arbitrary to a marked degree. There must be many
borderline cases where two courts, with
the identical accused and
identical facts, would undoubtedly come to different conclusions. I
have no doubt that even on a
court composed of members of the
genus
Hercules
14
and Athena there would in many cases be differences of opinion,
incapable of rational elucidation, on whether to impose the
death
penalty in a particular case, where its imposition was, as in the
case of
section 277(1)
of the
Criminal Procedure Act, dependant
on
the application of widely formulated criteria and the exercise of
difficult value judgments.
The conclusion which I reach is
that the imposition of the death penalty is inevitably arbitrary
and unequal. Whatever the scope
of the right to life in section 9
of the Constitution may be, it unquestionably encompasses the right
not to be deliberately
put to death by the state in a way which is
arbitrary and unequal. I would therefore hold that
section
277(1)(a)
of the
Criminal Procedure Act is
inconsistent with the
section 9
right to life. I would moreover also hold that it is
inconsistent with
section 11(2).
Where the arbitrary and unequal
infliction of punishment occurs at the level of a punishment so
unique as the death penalty,
it strikes me as being cruel and
inhuman. For one person to receive the death sentence, where a
similarly placed person does
not, is, in my assessment of values,
cruel to the person receiving it. To allow chance, in this way, to
determine the life
or death of a person, is to reduce the person to
a cypher in a sophisticated judicial lottery. This is to treat the
sentenced
person as inhuman. When these considerations are taken in
conjunction with those set forth by the President in his judgment,
they render the death penalty a cruel, inhuman and degrading
punishment. For the reasons expounded by the President in his
judgment, and with which I fully agree, neither the infringement of
section 9
nor of
section 11(2)
by
section 277(1)(a)
of the
Criminal
Procedure Act, can
be saved by the provisions of section 33(1) of
the Constitution. Accordingly the provisions of section 277(1)(a)
must be held
to be inconsistent with
sections
9 and 11(2) of
the Constitution.
In paragraphs [132] to [134] of
his judgment the President alludes to the provision in section
33(1)(b) of the Constitution
that a limitation "shall not
negate the essential content of the right in question" but,
after referring to uncertainties
concerning its meaning, finds it
unnecessary to resolve the issue in the present case. In paragraph
[133] he postulates, however,
a subjective and an objective
approach to the problem. I do not necessarily agree with his
formulation of the objective approach.
In my view it is unnecessary
in the present case to say anything at all about the meaning to be
attached to this provision.
It is one which the framers of our
Constitution borrowed in part from article 19(2) of the German
Basic Law ("Grundgesetz")
which provides that -
"In keinem Falle darf ein Grundrecht in seinem
Wesensgehalt angetastet
werden"
("In no case may the essence of a basic right be
encroached upon"
15
)
There are obvious differences in the
wording of the qualification. Nevertheless there is a wealth of
German case law and scholarship
on the topic.
16
Without the fullest exposition of, and argument on,
inter alia
,
the German jurisprudence in this regard, I consider it undesirable
to express any view on the subject.
Members of the public are
understandably concerned, often frightened, for their life and
safety in a society where the incidence
of violent crime is high
and the rate of apprehension and conviction of the perpetrators
low. This is a pressing public concern.
However important it
undoubtedly is to emphasise the constitutional importance of
individual rights, there is a danger that
the other leg of the
constitutional state compact may not enjoy the recognition it
deserves. I refer to the fact that in a
constitutional state
individuals agree (in principle at least) to abandon their right to
self-help in the protection of their
rights only because the state,
in the constitutional state compact, assumes the obligation to
protect these rights. If the
state fails to discharge this duty
adequately, there is a danger that individuals might feel justified
in using self-help to
protect their rights. This is not a fanciful
possibility in South Africa. "The need for a strong deterrent
to violent
crime" is underscored by the President in his
judgment as is the duty of the state, through the criminal justice
system,
to ensure that offenders will be apprehended and convicted,
for these steps are conditions precedent to punishment.
17
Apart from deterring others, one
of the goals of punishment is to prevent the convicted prisoner
from committing crimes again.
Both the preventative and reformative
components of punishment are directed towards this end, although
reformation obviously
has the further commendable aim of the
betterment of the prisoner. Society as a whole is justifiably
concerned that this aim
of punishment should be achieved and
society fears the possibility that the violent criminal, upon
release from prison, will
once again harm society. Society is
particularly concerned with the possibility of this happening in
the case of an unreformed
recidivist murderer or rapist if the
death penalty is abolished.
The President has rightly pointed
out in his judgment that in considering the deterrent effect of the
death sentence the evaluation
is not to be conducted by contrasting
the death penalty with no punishment at all but between the death
sentence and "severe
punishment of a long term of imprisonment
which, in an appropriate case, could be a sentence of life
imprisonment";
18
I agree with this approach. With the abolition of the death penalty
society needs the firm assurance that the unreformed recidivist

murderer or rapist will not be released from prison, however long
the sentence served by the prisoner may have been, if there
is a
reasonable possibility that the prisoner will repeat the crime.
Society needs to be assured that in such cases the state
will see
to it that such a recidivist will remain in prison permanently.
I appreciate the concern of not
wishing to anticipate the issue as to whether life imprisonment,
however executed and administered,
is constitutional or not. At the
same time I do not believe that the two issues can be kept in
watertight separate juristic
compartments. If the death penalty is
to be abolished, as I believe it must, society is entitled to the
assurance that the
state will protect it from further harm from the
convicted unreformed recidivist killer or rapist. If there is an
individual
right not to be put to death by the criminal justice
system there is a correlative obligation on the state, through the
criminal
justice system, to protect society from once again being
harmed by the unreformed recidivist killer or rapist. The right and
the obligation are inseparably part of the same constitutional
state compact.
Article 102 of the German Basic
Law declares that capital punishment is abolished. The German
Federal Constitutional Court considered
the constitutionality of
life imprisonment in 1977.
19
The provision in the criminal code which prescribes life
imprisonment for murder was challenged on the basis that it
conflicted
with the protection afforded to human dignity (art 1.1)
and personal freedom (art 2.2) in the German Basic Law. The Court
upheld
the law on the basis that it was not shown that the serving
of a sentence of life imprisonment leads to irreparable physical or

psychological damage to the prisoner's health. The Court did
however find that the right to human dignity demands a humane

execution of the sentence. This meant that the existing law, which
made provision for executive pardon, had to be replaced
by a law
laying down objective criteria for the release of prisoners serving
life sentences. In the course of its judgment,
the Court made clear
that there is nothing constitutionally objectionable to executing a
life sentence in full in cases where
the prisoner does not meet the
criteria. At page 242 of the judgment the Court said:
"Die Menschenwürde wird auch dann nicht
verletzt, wenn der Vollzug der Strafe wegen fortdauernder
Gefährlichkeit
des Gefangenen notwendig ist und sich aus diesem
Grunde eine Begnadigung verbietet. Es ist der staatlichen
Gemeinschaft nicht
verwehrt, sich gegen einen gemeingefährlichen
Straftäter durch Freiheitsentzug zu sichern."
("Human dignity is not infringed when the
execution of the sentence remains necessary due to the continuing
danger posed
by the prisoner and clemency is for this reason
precluded. The state is not prevented from protecting the community
from dangerous
criminals by keeping them incarcerated".)
DIDCOTT J
: I agree with
Chaskalson P that our new Constitution (Act 200 of 1993) outlaws
capital punishment in South Africa for the crimes
covered by his
judgment, and I concur in the order giving effect to that
conclusion which he proposes to make.
My grounds for believing the
death penalty to be unconstitutional for the crimes in question are
these. Capital punishment violates
the right to life of every
person that is protected by section 9 of the Constitution and
contravenes the prohibition pronounced
in section 11(2) against
cruel, inhuman or degrading punishment, both of which bind the
state and its organs in terms of section
7(1). The provisions of
the
Criminal Procedure Act
( 51 of 1977) that sanction sentences of
death for such crimes are not saved from nullification in their
consequent clash with
sections 9
and
11
(2). For they fail to
satisfy the conditions which paragraph (a) of
section 33(1)
prescribes for their survival as exceptions to the general rule,
the conditions requiring that they must be reasonable in the
first
place and, in a society of the sort described there, justifiable in
the second. Nor do they pass the further test of
necessity set by
paragraph (aa) for any permissible invasion of
section 11(2).
Perhaps the essential content of
the right to life is negated in addition, an effect not
countenanced by paragraph (b) of
section 33(1)
which subjects the
legitimacy of any encroachment on the right to the extra
requirement that no such result may ever ensue.
That point may be
put aside, however, once the requirements of paragraphs (a) and
(aa) are not met. Negating the essential
content of a
constitutional right is a concept less simple and clear than it may
appear at first to be. Any definitive ruling
on its import that was
made now would have a profound bearing on other issues likely to
confront us in the future, with implications
for them which are
difficult to foresee at so early a stage in the development of our
jurisprudence. It is better, I therefore
feel, not to go into the
question on this occasion, but to leave that open for consideration
and decision on a different one
when it has to be answered.
Nor, for much the same reasons,
do I think it wise to venture at present a comprehensive and exact
definition of what is encompassed
by the constitutional right to
life. It suffices for the purposes of this case to say that the
proclamation of the right and
the respect for it demanded from the
state must surely entitle one, at the very least, not to be put to
death by the state
deliberately, systematically and as an act of
policy that denies in principle the value of the victim's life.
Those are hardly
features of deaths which the state may happen to
cause in the course of waging defensive warfare, quelling an
insurrection
or rescuing hostages, to cite some situations debated
before us in which a constitutional protection of life was said to
be
inconceivable. Such hallmarks do, however, characterise every
execution by the state of a criminal.
Whether execution ranks also as a
cruel, inhuman or degrading punishment is a question that lends
itself to no precise measurement.
It calls for a value judgment in
an area where personal opinions are prone to differ, a value
judgment that can easily become
entangled with or be influenced by
one's own moral attitude and feelings. Judgments of that order must
often be made by courts
of law, however, whose training and
experience warns them against the trap of undue subjectivity. Such
a judgment is now required
from us, at all events, and would have
been inescapable whichever way the question was answered. Nor do we
lack guidance on
it. A provision of the Zimbabwean Constitution
which banned inhuman or degrading punishment was considered by
their Supreme
Court in
Catholic Commission for Justice and Peace
in Zimbabwe v Attorney-General, Zimbabwe, and Others
1993 (4)
SA 239
(ZSC). Gubbay CJ had this to say about it (at 247 I - 248
B):
"It is a provision that embodies broad and
idealistic notions of dignity, humanity and decency. It guarantees
that punishment.....of
the individual be exercised within the ambit
of civilised standards. Any punishment.....incompatible with the
evolving standards
of decency that mark the progress of a maturing
society, or which involve the infliction of unnecessary suffering,
is repulsive.
What might not have been regarded as inhuman decades
ago may be revolting to the new sensitivities which emerge as
civilisation
advances".
The same goes, I firmly believe, for
our section 11(2). Gubbay CJ continued thus (at 248 B-C):
"(A)n application of this approach to whether a
form of ... punishment ... is inhuman or degrading is dependent upon
the
exercise of a value judgment ...; one that must not only take
account of the emerging consensus of values in the civilised
international
community (of which this country is a part) ..., but
of contemporary norms operative in Zimbabwe and the sensitivities of
its
people".
I take that view here too, where such
norms and sensitivities are demonstrated, above all else, by the
altruistic and humanitarian
philosophy which animates the
Constitution enjoyed by us nowadays.
Capital punishment was discussed
at length in
Furman v State of Georgia
[1972] USSC 170
;
(1972) 408 US 238
, a
case handled by the Supreme Court of the United States of America
in which a comparably liberal philosophy was expounded
by a number
of the judges hearing it. Stewart J described that sentence (at
306) as -
“
.....unique ...in its absolute renunciation of
all that is embodied in our
concept of humanity.”
Brennan J agreed, declaring in the
same case (at 290 and 291) that:
“
Death is truly an awesome punishment. The
calculated killing of a human being by the state involves, by its
very nature, a denial
of the executed person’s humanity. The
contrast with the plight of a person punished by imprisonment is
evident....A prisoner
remains a member of the human family...In
comparison to all other punishments...the deliberate extinguishment
of human life by
the state is uniquely degrading to human dignity”.
The distinctive features of the
penalty were emphasised by Brennan J elsewhere in his judgment,
when he wrote (at 287 and 288)
that:
“
Death is today an unusually severe punishment,
unusual in its pain, in its finality, and in its enormity. No other
existing punishment
is comparable to death in terms of physical and
mental suffering... Since the discontinuance of flogging as a
constitutionally
permissible punishment..., death remains the only
punishment that may involve the conscious infliction of physical
pain. In addition,
we know that
mental
pain is an inseparable part of our practice of punishing criminals
by death, for the prospect of pending execution exacts
a frightful
toll during the inevitable long wait between the imposition of
sentence and the actual infliction of death...
The unusual
severity of death is manifested most clearly in its finality and
enormity.
Death, in
these respects, is in a class by itself.”
In a Californian case, the one of
The People v Anderson
(1972) 493 P 2d 880
, Wright CJ
observed (at 894) that:
“
The cruelty of capital punishment lies not only
in the execution itself and the pain incident thereto, but also in
the dehumanising
effects of the lengthy imprisonment prior to
execution during which the judicial and administrative procedures
essential to due
process of law are carried out. Penologists and
medical experts agree that the process of carrying out a verdict of
death is
often so degrading and brutalising to the human spirit as
to constitute psychological torture.”
Liacos J elaborated on
that aspect of the matter in the judgment which he delivered when
District Attorney for the Suffolk District v Watson and Others
(1980) 381 Mass 648
was decided in Massachusetts. The passages
that I shall quote (at 678 - 9, 681 and 683) are vivid. They went
thus:
“
The ordeals of the condemned are inherent and
inevitable in any system that informs the condemned person of his
sentence and provides
for a gap between sentence and execution.
Whatever one believes about the cruelty of the death penalty itself,
this violence
done the prisoner’s mind must afflict the
conscience of enlightened government and give the civilised heart no
rest...
The condemned must confront this primal terror directly, and
in the most demeaning circumstances. A condemned man knows, subject

to the possibility of successful appeal or commutation, the time and
manner of his death. His thoughts about death must necessarily
be
focussed more precisely than other people’s. He must wait for
a specific death, not merely expect death in the abstract.
Apart
from cases of suicide or terminal illness, this certainty is unique
to those who are sentenced to death. The state puts
the question of
death to the condemned person, and he must grapple with it without
the consolation that he will die naturally
or with his humanity
intact. A condemned person experiences an extreme form of
debasement.... The death sentence itself is a
declaration that
society deems the prisoner a nullity, less than human and unworthy
to live. But that negation of his personality
carries through the
entire period between sentence and execution.”
A similar account was furnished by
Gubbay CJ in the
Catholic Commission
case when he said (at
268 E-H):
“
From the moment he enters the condemned cell,
the prisoner is enmeshed in a dehumanising environment of near
hopelessness. He
is in a place where the sole object is to preserve
his life so that he may be executed. The condemned prisoner is ‘the

living dead’..... He is kept only with other death sentence
prisoners - with those whose appeals have been dismissed and
who
await death or reprieve; or those whose appeals are still to be
heard or are pending judgment. While the right to an appeal
may
raise the prospect of being allowed to live, the intensity of the
trauma is much increased by knowledge of its dismissal.
The hope of
a reprieve is all that is left. Throughout all this time the
condemned prisoner constantly broods over his fate.
The horrifying
spectre of being hanged by the neck and the apprehension of being
made to suffer a painful....death is ....never
far from mind.”
The Constitutions of California
and Massachusetts forbade cruel punishments. Sentences of death
were held in each state to be
contraventions of the prohibition
which could not stand. The decision reached in the case of the
District Attorney for Suffolk
was announced by Hennessey CJ,
who said (at 664 and 665):
“
(T)he death penalty is unacceptable under
contemporary standards of decency in its unique and inherent
capacity to inflict pain.
The mental agony is, simply and beyond
question, a horror.... We conclude..... that the death penalty, with
its full panoply
of concomitant physical and mental tortures, is
impermissibly cruel.....when judged by contemporary standards of
decency.”
Executions were not outlawed
altogether, on the other hand, in either
Furman v State of
Georgia
or the case of the
Catholic Commission
, despite
the castigation that they then underwent. The reason lay in the
special provisions of the governing charters, the
Constitutions of
the United States and Zimbabwe, each of which impliedly authorised
the punishment, or appeared at least to
do so, by protecting the
right to life in terms that specifically excluded deaths thus
caused. So, while executions could be
and were banned in the
particular circumstances of the two cases, insufficient room was
visible for the total embargo which
Brennan J and Gubbay CJ would
no doubt have preferred to impose on them. No such obstacle was
presented by the Constitution
of Massachusetts or found to be
raised at that time by the Californian one. None of this detracts,
however, from my purpose
in repeating the harrowing descriptions
given on all four occasions of the ordeal suffered by criminals
awaiting and experiencing
execution. I am unaware of any criticism
ever levelled at those descriptions, which were not disputed before
us when reliance
was placed on them in argument, and I have no
reason to believe that they may have been inaccurate or exaggerated
in any material
respect. They suffice on the whole to convince me
that every sentence of death must be stamped, for the purposes of
section
11(2), as an intrinsically cruel, inhuman and degrading
punishment.
I pass to the question whether
capital punishment is nevertheless allowed by section 33(1) for the
crimes that concern us now.
I am not sure that a sentence with a
sequel of such cruelty, inhumanity and degradation can ever be
rightly regarded in a civilised
society as a reasonable or
justifiable measure, let alone a necessary one. But I shall assume
that the penalty is not innately
incapable of meeting those
requirements.
The most familiar argument
advanced in support of capital punishment, and the main contention
we have to consider under the
heading of its suggested
permissibility, is that executions operate as a unique deterrent
against the future commission of
the crimes visited with them. That
proposition, if sound indeed, deserves to be taken seriously. It
then provides the strongest
reason, in cases of murder at all
events, for rating the sentence of death as an expedient which,
though regrettable, passes
constitutional muster. For section 9
protects likewise the lives of the innocent, the lives of potential
victims. And that
is a factor which must enter the reckoning,
especially at present when the crimes of violence perpetrated here
have become
so prevalent and reached a level so appalling that
acute anxiety is felt everywhere about the danger to life lurking
around
the corner. Such a time was said to be hardly propitious
for, such a state of affairs to be scarcely conducive to, any
relaxation
in the rigour of the law. We dared not exacerbate the
danger, we were warned, by reducing the force of deterrence in the
combat
with it. I agree that the nation cannot afford our doing so,
and we would not wish it anyhow. Sight must never be lost, however,

of this. The question is not whether capital punishment has a
deterrent effect, but whether its deterrent effect happens to
be
significantly greater than that of the alternative sentence
available, a suitably severe sentence of imprisonment which
not
only gets passed but may also be expected to run its course.
The debate surrounding that
question, an old one both here and elsewhere, has often been marked
by the production of statistical
evidence tendered to show that the
death penalty either does not or does serve a uniquely deterrent
purpose, as the case may
be. The rate of capital crimes committed
in a state performing executions is compared with that of the
selfsame crimes experienced
contemporaneously in some place or
another where none occurs. The records of countries that executed
convicts formerly, but
have ceased doing so, are also examined.
Comparisons are then drawn between the rates of those crimes found
there before the
punishment was abandoned and the ones encountered
afterwards. Such statistics, when analysed, have always turned out
to be
inconclusive in the end. The pictures that they purport to
present differ in the first place. The clarity of the sketching is

impaired, in the second, by all sorts of variable factors for which
no allowance is or can be made. One thinks, for instance,
of
differences and fluctuations in moral codes and values, in the
efficiency and success of police forces in preventing and

investigating crimes, in the climate for the collaboration and
assistance that they need to obtain from the public and the
extent
of it which they manage to gain, in the organisation and skills of
criminal conspirators and, above all perhaps, in
the social and
economic conditions that have so profound a bearing everywhere on
the incidence of crimes. It therefore did
not surprise me to hear
that no great store was set in argument by figures of that kind.
Others were drawn to our attention,
which related to South Africa
alone. They recorded the number of alleged murders that were
reported here during every year
from 1988 until 1993, inclusive of
both. A globular increase emerged, the rate of which over the whole
period of six years
amounted approximately to 35% and accordingly
to an annual average of almost 6%, calculated for convenience by
means of a straight
division that inflates the rate slightly, to be
sure, since it disregards the effect on the percentage of the
change from year
to year in the figure on which it ought actually
to be based. Interesting to notice, however, is this. The number of
alleged
murders rose by a mere 1% or thereabouts during 1993, in
contrast with the average rate of 6% postulated, and by 9% during

the time from the beginning of 1992 until the end of 1993, which
remained lower than the corresponding average of 12% for that

period of two years. The significance of the arithmetic lies in the
fact that the moratorium on executions was announced, formally
and
firmly, in March 1992. What the exercise appears to illustrate, if
statistics prove anything in such an area, is the irrelevance
of
the announcement to the rate of murders alleged, which had grown
steadily while executions were carried out and was not
accelerated
by the halt in hangings. The results of my analysis, for what they
are worth, may be added to the cogent and stronger
reasons which
Chaskalson P has supplied in paragraphs [119] and [120] for
rejecting the contention addressed to us that the
moratorium had
contributed materially to the increase.
Without empirical proof of the
extent to which capital punishment worked as a deterrent, neither
side could present any argument
on the point better than the appeal
to common sense that tends to be lodged whenever the debate is
conducted. That the extreme
penalty must inevitably be more
terrifying than anything else was said, on the one hand, to speak
for itself. It spoke superficially,
we were told on the other, and
unrealistically too. What stood to reason was this instead. A very
large proportion of murderers
were in no mood or state of mind at
the time to contemplate or care about the consequences of their
killings which they might
personally suffer. Those rational enough
to take account of them gambled by and large on their escape from
detection and arrest,
where the odds in their favour were often
rather high. The prospect of conviction and punishment was much
less immediate and
seldom entered their thinking. It was fanciful,
should that happen on relatively rare occasions, to imagine their
being daunted
by the possibility of a journey to the gallows, a
journey taken by only a small percentage of convicted murderers
even at the
height of executions in this country, but not by the
probability of incarceration in a jail for many years and perhaps
for
the rest of their lives. The second school of thought is the
one which gets to grips with the realities of the matter, in my
opinion, appraising them with a lot more plausibility and
persuasiveness than any that attaches to the stark proposition of

the first school.
It is unnecessary, however, to go
so far. The protagonists of capital punishment bear the burden of
satisfying us that it is
permissible under section 33(1). To the
extent that their case depends upon the uniquely deterrent effect
attributed to it,
they must therefore convince us that it indeed
serves such a purpose. Nothing less is expected from them in any
event when
human lives are at stake, lives which may not continue
to be destroyed on the mere possibility that some good will come of

it. In that task they have failed and, as far as one can see, could
never have succeeded.
In his judgment Chaskalson P has
discussed retribution as another goal of punishment, and the
arbitrariness and inequality contaminating
our processes that
culminate in executions. His treatment of the first subject will be
found in paragraphs [129] to [131] and
of the second one in
paragraphs [48] to [54]. I share the view taken by him that
retribution smacks too much of vengeance to
be accepted, either on
its own or in combination with other aims, as a worthy purpose of
punishment in the enlightened society
to which we South Africans
have now committed ourselves, and that the expression of moral
outrage which is its further and
more defensible object can be
communicated effectively by severe sentences of imprisonment. The
inequality of which he has
written may be curable in the long run,
once it is not the result of the arbitrariness described by him.
The same does not
go, however, for the arbitrariness itself, a flaw
in the edifice which Ackermann J has examined as well in paragraphs
[158]
to [165]. The problem of that is quite as intractable here as
it has proved to be in the United States of America, where the

courts have wrestled with it constantly and by no means to their
satisfaction. For such arbitrariness is largely inherent in
the
nature of the proceedings from start to finish. Similar trouble may
be inescapable, to be sure, in cases that are not capital
ones. But
in those producing sentences of death the arbitrariness is
intolerable because of the irreversibility of the punishment
once
that gets put into force and the consequent irremediability of
mistakes discovered afterwards, mistakes which do occur
now and
then notwithstanding the myth to the contrary. The defect then
militates forcefully, I believe, against the reasonableness
and
justifiability of capital punishment.
The conclusion to which I have
thus come, echoing the one reached by Chaskalson P, is that the
death penalty cannot survive
our constitutional scrunity of it. The
line I have taken in arriving there differs in some parts from that
preferred by him,
occasionally approaching a topic from another
angle and sometimes placing the emphasis elsewhere. It has also
called for less
elaboration in the light of his meticulous research
into a mountain of material and his erudite exposition of the
themes developed
from that. In general, however, I agree with his
judgment, a profound and monumental work with which I feel proud to
associate
myself.
I wish before ending this
judgment to add my voice to that of Chaskalson P in dealing with a
couple of points raised in argument
on which he has commented
already but which I have not yet mentioned.
Whether capital punishment ought
to be abolished or retained amounted, so it was said, to a question
of policy which Parliament
should decide, representing as it did
the citizens of the country and expressing their general will. The
issue is also, however,
a constitutional one. It has been put
before us squarely and properly. We cannot delegate to Parliament
the duty that we bear
to determine it, or evade that duty
otherwise, but must perform it ourselves. In doing so, we were
counselled in the alternative,
we had to pay great attention to
public opinion, which was said to favour the retention of the death
penalty. We have no means
of ascertaining whether that is indeed
so, but I shall assume it to be the case. One may also assume, with
a fair measure of
confidence, that most members of the public who
support capital punishment do so primarily in the belief that,
owing to its
uniquely deterrent force, they and their families are
safer with than without its protection. The feeling is quite
understandable,
given its basis. But it deserves no further homage
if the premise underlying and accounting for it is fallacious or
unfounded,
as I consider that one to be. To allow ourselves to be
influenced unduly by public opinion would, in any event, be wrong.
Powell
J disparaged such external pressures on constitutional
adjudication when he said in
Furman v State of Georgia
(at
443):
“
(T)he weight of the evidence indicates that the
public generally has not accepted either the morality or the social
merit of the
views so passionately advocated by the articulate
spokesmen for abolition. But however one may assess (the) amorphous
ebb and
flow of public opinion generally on this volatile issue,
this type of enquiry lies at the periphery - not the core - of the
judicial
process in constitutional cases. The assessment of popular
opinion is essentially a legislative, not a judicial, function.”
In similar vein were these remarks
passed by Jackson J on the earlier occasion of
West Virginia
State Board of Education v Barnette and Others
(1942) 319 U5
624 (at 638):
“
The very purpose of a bill of rights was to
withdraw certain subjects from the vicissitudes of political
controversy, to place
them beyond the reach of majorities... and to
establish them as legal principles to be applied by the courts.
One’s right
to life.... and other fundamental rights may not
be submitted to vote; they depend on the outcome of no elections.”
The other point was not so much a
contention as a complaint, one registered against the sympathy with
murderers, and the lack
of any felt for the victims and their
families, which some proponents of capital punishment have seen as
the motivation behind
every attack on it. It is unnecessary, I
hope, for this court to answer that canard. In rebuttal of the
criticism, lest it
be levelled at us all the same, one can do no
better than to repeat the following excerpts from the judgment
which Wright CJ
wrote in
The People v Anderson
(at 896 and
899):
“
We are fully aware that many condemned
prisoners have committed crimes of the utmost cruelty and depravity
and that such persons
are not entitled to the slightest sympathy
from society in the administration of justice or otherwise.... Our
conclusion that
the death penalty may no longer be exacted in
California.... is not grounded in sympathy for those who would
commit crimes of
violence, but in concern for the society that
diminishes itself whenever it takes the life of one of its members.
Lord Chancellor
Gardiner reminded the House of Lords, debating
abolition of capital punishment in England: ‘When we abolished
the punishment
for treason that you should be hanged, and then cut
down while still alive, and then disembowelled while still alive,
and then
quartered, we did not abolish that punishment because we
sympathised with traitors, but because we took the view that it was

a punishment no longer consistent with our self-respect’.”
South Africa has experienced too
much savagery. The wanton killing must stop before it makes a
mockery of the civilised, humane
and compassionate society to which
the nation aspires and has constitutionally pledged itself. And the
state must set the example
by demonstrating the priceless value it
places on the lives of all its subjects, even the worst.
KENTRIDGE AJ:
I agree with
the order proposed by Chaskalson P and with the reasons for it
contained in his judgment and in the judgment of
Didcott J In view
of the importance of the issue and in deference to the forceful
submissions of Mr von Lieres SC, the Attorney-General
of the
Witwatersrand, I add some remarks of my own.
Capital punishment is an issue on
which many members of the public hold strong and conflicting views.
To many of them it may
seem strange that so difficult and important
a public issue should be decided by the eleven appointed judges of
this court.
It must be understood that we undertake this task not
because we claim a superior wisdom for ourselves but, as Chaskalson
P
has explained in his judgment, because the framers of the
Constitution have imposed on us the inescapable duty of deciding

whether the death penalty for murder is consistent with Chapter
Three of the Constitution. It should not be overlooked that a

decision holding the death penalty to be constitutional would have
been just as far-reaching an exercise of judicial power
as the
decision to strike it down.
Some public commentators on the
question before this court have supposed that any doubt as to the
unconstitutionality of the
death penalty was foreclosed by section
9 of the Constitution, which proclaims in unqualified terms that
every person shall
have the right of life, read with section
33(1)(b), which provides that no statutory limitation on that or
any other constitutional
right shall "negate the essential
content of the right in question." The execution of a
condemned prisoner, it is
suggested, must negate entirely his right
to life and must therefore
ipso facto
be in conflict with
the constitution. For my part, I do not believe that this
supposedly simple solution bears examination.
Although the right to
life is stated in unqualified terms its full scope and implications
remain to be worked out in future
cases. Certainly, as the
President of the Court has pointed out, the right to life must
accommodate the right to kill in lawful
self-defence of one's own
life or the lives of others, as well as the right of the State to
defend itself against insurrection.
The right to life may also be
seen as entailing a duty on the State to protect the lives of its
citizens by ensuring, as far
as it is able, that unlawful killing
is visited with condign punishment. That punishment like any other,
must fall within the
limits imposed by section 11(2) of the
Constitution. As to section 33(1)(b), I agree with Chaskalson P
that our decision in
this case can be reached without requiring the
Court to give an authoritative interpretation of that clause. We
did, however,
hear argument on the clause and I should like to
state briefly why I do not think that it provides the short answer
to the
problem of the constitutionality of the death penalty.
The source of section 33(1)(b) is
presumably the similar provision in the Constitution of the Federal
Republic of Germany. As
far as I am aware the German Constitutional
Court has never given any definite interpretation to that clause.
Varying constructions
of it have been suggested by the authors
cited by Chaskalson P in the footnotes to paragraphs 108 and 132 of
his Judgment;
see also the discussion by Rautenbach in
1991 TSAR
403.
For present purposes it is sufficient to mention two possible
interpretations of section 33(1)(b). The first is that it requires

one to consider the effect of any State action on the individual
concerned - sometimes called the subjective approach. On this
basis
the infliction of the death penalty must conflict with section
33(1)(b) because in destroying life it must negate the
essence of
the right to life. I do not find this so-called subjective
interpretation convincing. It cannot accommodate the
many State
measures which must be necessary and justifiable in any society,
such as long-term imprisonment for serious crimes.
It is true that
a prisoner, even one held under secure conditions, retains some
residual rights. See
Whittaker v Roos
1912 A.D. 92
, 122-3,
per Innes J. But I find it difficult to comprehend how, on any
rational use of language, it could be denied that while
he is in
prison the essence of the prisoner's right to freedom (section 11),
of his or her right to leave the Republic (section
20) or to pursue
a livelihood anywhere in the national territory (section 26) is not
negated. Many other examples could be
given which in my view rule
out the subjective approach of the sub-section.
The other approach (sometimes,
not altogether appropriately, called the objective approach) is to
examine the law which is sought
to be justified under section 33.
That section states that rights entrenched in Chapter Three may be
limited by laws of general
application provided that such
limitation complies with the requirements of paragraph (a) of
sub-section 1 and provided further
that it does not negate the
essential content of the right in question. What must pass scrutiny
under section 33 is the limitation
contained in the law of general
application. This means in my opinion that it is the law itself
which must pass the test. On
this basis a law providing for
imprisonment for defined criminal conduct, cannot be said to negate
the essential content of
the right to freedom, whatever the effect
on the individual prisoner serving a sentence under that law.
Similarly such a law
would not negate the essential content of the
right of free movement. Those are general rights entrenched in the
Constitution,
and a law which preserves those rights for most
people at most times does not negate the essential content of those
rights.
An example of a law which might negate the essence of the
right to freedom of movement would be a law (such as the Departure
from the Republic Act, 1955) under which no person may leave the
Republic without the express or implied consent of the Government.

Another possible example could relate to the right of freedom of
speech. A law providing for general censorship of all publications

would on the face of it negate the essence of the right to freedom
of speech. On the other hand a law providing penalties for
what is
colloquially referred to as "hate speech" would not, I
think, negate the essence of that right. (Whether
or not it would
meet the other criteria of section 33 is a different question.)
It follows that in my opinion
that the true issue for decision is whether or not the death
penalty for murder is a "cruel,
inhuman or degrading
punishment", although the entrenched right to life, like the
right to dignity and to equality of
treatment, does illuminate the
issue. As both Chaskalson P and Didcott J have emphasised, capital
punishment is qualitatively
something quite apart from even the
longest term of imprisonment. It entails the calculated destruction
of a human life. Inequalities
in its incidence are probably
unavoidable. In the infliction of capital punishment judicial and
executive error can never be
wholly excluded nor, of course,
repaired. With regard to the uniquely cruel and inhuman nature of
the death penalty I would
refer to the ample citation of American
authority by Didcott J in paragraphs 6 and 7 of his Judgment and to
the various decisions
of international tribunals cited by
Chaskalson P. I would add to these the judgment of Blackmun J in
Callins v Collins
114 S. Ct. 1127
(1994). The statement of
Stewart J in
Furman v Georgia
[1972] USSC 170
;
408 US 238
at 306 cited by
Scalia J in
Harmelin v Michigan
[1991] USSC 120
;
501 US 957
(1991), also
deserves repetition:
"The penalty of death differs from all other forms
of criminal punishment, not in degree but in kind. It is unique in
its
total irrevocability. It is unique in its rejection of
rehabilitation of the convict as a basic purpose of criminal
justice.
And it is unique, finally, in its absolute renunciation of
all that is embodied in our concept of humanity."
The "death row" phenomenon
as a factor in the cruelty of capital punishment has been
eloquently described by Lord
Griffiths in
Pratt v Johnson
[1994] 2 AC 1
and by Gubbay CJ in
Catholic Commission for
Justice and Peace in Zimbabwe v Attorney General Zimbabwe
1994
(4) SA 329.
Those were cases of inordinately extended delay in the
carrying out of the death sentence, but the mental agony of the
criminal,
in its alternation of fear, hope and despair must be
present even when the time between sentence and execution is
measured
in months or weeks rather than years.
It may be said that if the
punishment is cruel so was the act of the murderer. That cannot and
should not be denied. In the
present case the Appellants committed
murders of horrifying callousness motivated by nothing but greed.
In some of the cases
summarised in the Attorney-General's written
submissions, all of them cases in which the Appellate Division had
confirmed the
sentence of death, the accused had, if that were
possible, committed even more revolting acts of cruelty against
their victims.
I agree with Chaskalson P that proportionality is an
ingredient to be taken into account in deciding whether a penalty
is cruel,
inhuman or degrading. But that does not mean that the
State should respond to the murderer's cruelty with a deliberate
and
matching cruelty of its own. As Simon Jenkins said in a recent
article on the death penalty in "The Times" (London),

that would imply that punishment must not merely fit the crime, but
repeat the crime.
Section
35 of the Constitution requires us to "promote the values
which underlie an open and democratic society based on freedom
and
equality." We are thus entitled and obliged to consider the
practices of such societies. That exercise shows us that
most of
the countries which we would naturally include in that category
have abolished capital punishment as a penalty for
murder, either
by legislation or by disuse. These countries include the
neighbouring States of Namibia, Angola and Mozambique.
The
principal exceptions are the great democracies of India and the
United States. In each of those countries the written constitution

expressly contemplates the legitimacy, subject to safeguards, of
the death penalty. Thus the Fifth Amendment to the Constitution
of
the United States begins with the words, "No person shall be
held to answer for a capital, or otherwise infamous crime,
unless
on a presentment or indictment of a Grand Jury..." There are
similar express indications of the acceptability of
the death
sentence in Article 21 of the Constitution of India. It is
therefore understandable that the Supreme Courts of those
two
countries have found themselves unable to hold that the death
penalty is per se unconstitutional. Nonetheless, in our attempt
to
identify objectively the values of an open and democratic society
what I find impressive is that individual judges of great

distinction such as Brennan J in the United States and Bhagwati J
in India have held, notwithstanding those constitutional

provisions, that the death penalty is impermissible when measured
against the standards of humanity and decency which have
evolved
since the date of their respective constitutions. Similarly, courts
to which considerable respect is due, such as the
Supreme Court of
California in
People v Anderson
493 P.2d 880
(1972) and the
Supreme Judicial Court of Massachusetts in
District Attorney for
the Suffolk District v Watson
381 Mass 648
(1980) have held the
death penalty to be a "cruel and inhuman punishment" and
therefore in conflict with their respective
State constitutions. In
the California case that decision was arrived at notwithstanding
clauses in the State Constitution
which, like the United States
Constitution, recognised the existence of capital punishment. (
See
Anderson
's case at 886-7).
The reference to "evolving
standards of decency" is taken from the judgment of Warren CJ
in
Trop v Dulles
356 US 86
at 101 (1958) where, speaking for
the Court, he adopted as the measure of permissible punishment
under the Eighth Amendment
of the United States Constitution "the
evolving standards of decency that mark the progress of a maturing
society."
Commenting on this dictum in
Thomson v Oklahoma
[1988] USSC 156
;
487 US 815
(1988) Scalia J (dissenting) said at 865:
"Of course, the risk of assessing evolving
standards is that it is all too easy to believe that evolution has
culminated
in one's own views."
This is a pertinent warning which I
have, I hope, kept in mind. I believe, nonetheless, that there is
ample objective evidence
that evolving standards of civilisation
demonstrate the unacceptability of the death penalty in countries
which are or aspire
to be free and democratic societies. Most
democratic countries have abandoned the death penalty for murder.
Even in countries
which have the death penalty on the statute books
there is a decline in its use. Although one cannot say that the
death penalty
is as yet contrary to international law, Chaskalson P
has demonstrated that that is the direction in which international
law
is developing. I shall come later to the question of public
opinion and the guidance to be obtained from it, but what is clear

to my mind is that in general in civilised democratic societies the
imposition of the death penalty has been found to be unacceptably

cruel, inhuman and degrading, not only to those subjected to it but
also to the society which inflicts it. Simon Jenkins, in
the
article which I have already quoted, says that the State is (or
should be) "institutionalised civilisation."
I would
agree, and add that this is especially true of the State created by
our new Constitution. The deliberate execution
of a human, however
depraved and criminal his conduct, must degrade the new society
which is coming into being.
In the course of argument before
us much was said about public opinion on the death penalty in South
Africa. Both Chaskalson
P and Didcott J have shown that public
opinion, even if expressed in acts of Parliament, cannot be
decisive. If we were simply
to defer to public opinion we would be
abdicating from our constitutional function. Yet, were public
opinion on the question
clear it could not be entirely ignored. The
accepted mores of one's own society must have some relevance to the
assessment
whether a punishment is impermissibly cruel and inhuman.
In
Furman v Georgia
[1972] USSC 170
;
408 US 238
(1972) Brennan J at 277 said
that one of the principles inherent in the constitutional
prohibition of cruel and unusual punishments
was that "a
severe punishment must not be unacceptable to contemporary
society." Much earlier, in
Weems v United States
[1910] USSC 127
;
217 US
349
, 378 (1910) the United States Supreme Court had held that that
provision of the Constitution was "not fastened to the

obsolete", but might "acquire meaning as public opinion
becomes enlightened by a human justice." I would, with
all
respect, suggest that the principle propounded by Brennan J may
give too much weight to prevailing opinion - an opinion
which may
swing with public moods and varying public concerns. But in any
event, whether or not a punishment is acceptable
to contemporary
society is not to be judged by the results of informal public
opinion polls, still less by letters to the press.
In
People v
Anderson
(
supra
) Wright CJ speaking for the Supreme
Court of California said at 893-4:
"Public acceptance of capital punishment is a
relevant but not controlling factor in assessing whether it is
consonant with
contemporary standards of decency. But public
acceptance cannot be measured by the existence of death penalty
statutes or by
the fact that some juries impose death on criminal
defendants. Nor are public opinion polls about a process which is
far removed
from the experience of those responding helpful in
determining whether capital punishment would be acceptable to an
informed
public were it even-handedly applied to a substantial
proportion of the persons potentially subject to execution."
In
Gregg v Georgia
[1976] USSC 171
;
428 US 153
(1976) a judgment given four years after
Furman v Georgia
,
supra
, Stewart J at 179-180 found that developments during
that period had shown that "a large proportion of American
society
continues to regard it (capital punishment) as an
appropriate and necessary criminal sanction." The principal
evidence
on which Stewart J based this finding was that since the
Furman
case the legislatures of 35 of the United States had
enacted new death penalty statutes. Further, the Congress of the
United
States had enacted a statute providing the death penalty for
aircraft piracy. In addition, he referred to an official State-wide

referendum in the State of California adopting a constitutional
amendment that authorised capital punishment.
Needless to say, there was no
similar evidence before us. Public opinion has not expressed itself
in a referendum, nor in any
recent legislation. Certainly, there is
no evidence of a general social acceptance of the death penalty for
murderers such
as might conceivably have influenced our
conclusions. On the contrary, developments in South Africa point in
the opposite direction.
It is to be noted that even at the time,
during the previous decade, when South Africa had the unenviable
reputation for carrying
out more executions than any other country
in the western world, only a proportion of those convicted of
murder were sentenced
to death, and of those many were reprieved.
The amendment to the
Criminal Procedure Act introduced
by Act No
107 of 1990 drastically reduced the number of convicted murderers
sentenced to death. The subsequent developments
described by
Chaskalson P including the official executive moratorium on the
death penalty announced in March 1992, while not
evidence of
general opinion, do cast serious doubt on the acceptability of
capital punishment in South Africa. In fact, we
are informed, since
1989 there has been no judicial execution in South Africa. Thus
there has been in this country no indication
whatsoever of what
Stewart J in
Gregg
's case referred to as "society's
endorsement of the death penalty for murder." In the
Constitution itself such endorsement
is markedly absent.
Consequently, in all the circumstances, the appeal to public
opinion could not affect our decision.
There is little I wish to add to
what has been said by other members of the Court on the application
of section 33. On the question
whether a death penalty can be
justified by its deterrent effect the statistical and other
evidence is inconclusive, as it
was bound to be. As the analysis of
Chaskalson P shows the statistical evidence comes nowhere near
establishing that the death
penalty is an effective deterrent
against murder. Nor on the other hand can it be shown that it is
not a deterrent. As Mr von
Lieres pointed out, only those who were
not deterred enter the statistics; the number who were deterred
cannot be known. In
Burns' well-known lines, "What's done we
often may compute/But know not what's resisted." The most
impressive argument
of Mr von Lieres on this aspect of the case was
that, statistics aside, the awfulness of the death penalty must in
its nature
deter some would-be murderers. In the face of the
appalling murder rates in this country, he said, we cannot afford
to relinquish
any possible weapon in the fight against violent
crime. That is a powerful argument but, given the cruelty and
inhumanity of
the death penalty, it is an argument which cannot in
the end prevail. It relies essentially on the mere possibility that
the
death sentence may deter some murderers. That is not a
sufficient justification for the continued existence of such an
extreme
punishment.
I have little to add, too, to
what Chaskalson P has said on the element of retribution as an
element in punishment. The Attorney-General's
argument was that the
criminal law including the modes of punishment must adequately
reflect the moral outrage felt by society
when a vicious and
cold-blooded murder is committed. This too I regard as an argument
of weight. One can understand in particular
the reaction of the
families of victims of murderers and the feeling that the culprits
"deserve to die". But the
choice, as Chaskalson P has
pointed out, is not between death penalty on the one hand and the
condonation of the murderer's
act on the other. The choice is
between the death penalty and a long term of imprisonment which
might in appropriate cases
include life imprisonment in the fullest
sense of the term. As a civilised society it is not open to us, in
my opinion, to
express our moral outrage by executing even the
worst of murderers any more than we could do so by the public
hangings or mutilations
of a bygone time.
In conclusion I would endorse
what Didcott J has cogently stated; the striking down of the death
penalty entails no sympathy
whatsoever for the murderer, nor any
condonation of his crime. What our decision does entail is a
recognition that even the
worst and most vicious criminals are not
excluded from the protections of the Constitution. In 1910 Mr
Winston Churchill speaking
in the House of Commons said this:
"The mood and temper of the public in regard to
the treatment of crime and
criminals is one of the most unfailing tests of the
civilisation of any country. A calm dispassionate recognition of the
rights
of the accused, and even of the convicted criminal, against
the State - a constant heart-searching by all charged with the duty

of punishment - a desire and eagerness to rehabilitate in the world
of industry those who have paid their due in the hard coinage
of
punishment: tireless efforts towards discovery of curative and
regenerative processes: unfailing faith that there is a treasure,
if
you can only find it, in the heart of every man. These are the
symbols, which, in the treatment of crime and criminal, mark
and
measure the stored-up strength of a nation, and are sign and proof
of the living virtue in it."
KRIEGLER J:
I agree with
the conclusions reached by Chaskalson P, endorse the bulk of his
reasoning and concur in the order he has formulated.
There are just
two points that I wish to add though: the first by way of
additional emphasis and the second to indicate a somewhat
different
line of reasoning.
The basic issue, as Chaskalson P
points out in the opening and concluding paragraphs of the main
judgment, is whether the Constitution
1
has outlawed capital punishment in South Africa.
2
The issue is not whether I favour the retention or the abolition of
the death penalty, nor whether this Court, Parliament or
even
overwhelming public opinion supports the one or the other view. The
question is what the Constitution says about it.
In answering that question the
methods to be used are essentially legal, not moral or
philosophical. To be true the judicial
process cannot operate in an
ethical vacuum. After all, concepts like "good faith",
"unconscionable" or
"reasonable" import value
judgments into the daily grind of courts of law. And it would be
foolish to deny that the
judicial process, especially in the field
of constitutional adjudication, calls for value judgments in which
extra-legal considerations
may loom large. Nevertheless, the
starting point, the framework and the outcome of the exercise must
be legal. The foundation
of our state and all its organs, the rules
which govern their interaction and the entrenchment of the rights
of its people
are to be found in an Act of Parliament, albeit a
unique one.
3
That Act entrusts the enforcement of its provisions to courts of
law.
4
The "court of final instance over all matters relating to the
interpretation, protection and enforcement" of those

provisions is this Court,
5
appointment to which is reserved for lawyers.
6
The incumbents are judges, not sages; their discipline is the law,
not ethics or philosophy and certainly not politics.
The exercise is to establish
whether there is an invalid infringement of a right protected by
Chapter Three. This "calls
for a 'two-stage' approach. First,
has there been a contravention of a guaranteed right? If so, is it
justified under the limitation
clause?"
7
For the first step, one need go no
further than section 9 of the Constitution, which could not
possibly be plainer:
"Every person shall have the right to life."
Whatever else section 9 may mean in
other contexts, with regard to which I express no view, at the very
least it indicates that
the State may not deliberately deprive any
person of his or her life. As against that general prohibition
section 277(1)
of the
Criminal Procedure Act sanctions
a judicial
order for the deprivation of a person's life. The two provisions
are clearly not reconcilable. Therefore, the latter
provision is
liable to be struck down under section 4(1) of the Constitution,
unless it is saved by the second step of the
analysis -application
of the limitations clause.
During the second step of the
exercise one must ask whether that infringement of the right to
life is reasonable and also whether
it is justifiable in an open
and democratic society based on freedom and equality (sections
33(1)(a)(i) & (ii)).
8
As I am satisfied that section 277(1)(a) does not meet the
threshold test of reasonableness, I find it unnecessary to ask
whether it is justifiable in the kind of society postulated. Nor do
I consider the meaning of section 33(1)(b), which is discussed
in
paragraphs 132, 133 and 134 of the main judgment and paragraphs
193, 194 and 195 of the judgment of Kentridge AJ.
9
In respect thereof I express no opinion.
I also find it unnecessary to
probe the outer limits of what is reasonable. At the very least the
reasonableness of a provision
which flies directly in the face of
an entrenched right would have to be cogently established.
Furthermore a provision relating
to so basic and so precious a
right as the right to life itself (without which all other rights
are nought), would have to
be manifestly reasonable.
10
We were favoured with literally
thousands of pages of material in support of and opposed to the
death penalty, ranging from
the religious, ethical, philosophical
and ideological to the mathematical and statistical. Mr Von Lieres,
SC, who argued the
retentionist cause with great skill, in essence
sought to bring the death sentence within the protection of section
33(1) on
the strength of its deterrent and retributive value. The
main judgment deals with these two considerations
11
and I merely wish to make a few additional observations regarding
deterrence.
12
Nearly a quarter of a century ago
the US Supreme Court decided the watershed case of
Furman v
Georgia
.
13
In the course of a compendiously researched opinion, Marshall J
reviewed virtually every scrap of Anglo-American evidence for
and
against capital punishment. In the course of his "long and
tedious journey" (his own description) he made the
crucial
finding that 200 years of research had established "that
capital punishment serves no purpose that life imprisonment
could
not serve equally well."
14
A
decade later the Indian Supreme Court surveyed the international
authorities for and against the death penalty in
Bachan Singh
's
case.
15
Since then a great deal more has been written in support of both
the abolitionist and the retentionist schools. But when all
is said
and done the answer is still what it was to Marshall J in
Furman
's
case: the death penalty has no demonstrable penological value over
and above that of long-term imprisonment. No empirical
study, no
statistical exercise and no theoretical analysis has been able to
demonstrate that capital punishment has any deterrent
force greater
than that of a really heavy sentence of imprisonment. That is the
ineluctable conclusion to be drawn from the
mass of data so
thoroughly canvassed in the written and oral arguments presented to
us.
Another equally ineluctable
conclusion then is that capital punishment cannot be vindicated by
the provisions of section 33(1)
of the Constitution.
16
It simply cannot be reasonable to the Republic is in a state of
war, do not arise for consideration in this case. That is a
wholly
different situation which requires independent evaluation.
Having concluded that capital
punishment is inconsistent with section 9 of the Constitution and
cannot be saved by section 33(1),
I find it unnecessary to consider
its possible inconsistency with any other fundamental rights
protected by Chapter Three.
Vigilant protection of the right to
human dignity (section 10) and of the immunity from cruel, inhuman
or degrading punishment
(section 11(2)) is undoubtedly essential.
So too arbitrariness in the imposition of any sentence is fatally
inconsistent with
the demand for equality so emphatically mandated
in sections 8(1) and (2). I do not want to be understood as
disagreeing with
the views expressed by any of my colleagues in
regard to those rights and their importance; but in the hierarchy
of values
and fundamental rights guaranteed under chapter 3, I see
them as ranking below the right to life. Indeed, they are subsumed

by that most basic of rights. Inasmuch as capital punishment, by
definition, strikes at the heart of the right to life, the debate

need go no further.
LANGA J:
I agree with the
conclusions reached by Chaskalson P and generally with the reasons
he advances in his exhaustive and erudite
judgment. I concur in the
order he has proposed. I wish to put additional emphasis on some of
the aspects he has dealt with.
The death sentence, in terms of
the provisions of
section 277
of the
Criminal Procedure Act, No. 51
of 1977
, is unconstitutional, violating as it does:
the
right to life which is guaranteed to every person by section 9 of
the Constitution;
the
right to respect for human dignity guaranteed in section 10;
the right not to be subjected to cruel, inhuman and degrading punishment as set out in section 11(2).
For
the reasons set out in Didcott J's judgment, I place more emphasis
on the right to life. Section 9 of the Constitution proclaims
it in
unqualified terms. It is the most fundamental of all rights,
1
the supreme human right.
2
I do not consider it necessary or desirable to define the exact
scope of the right, save to make two points, namely:
It does mean that every person has the right not to be deliberately put to death by the State as punishment, as envisaged in
section 277
of the
Criminal Procedure Act.
I
do not exclude the application of the limitations clause to the right to life. Any law which seeks to limit the right will have to
comply with the requirements of section 33(1) of the Constitution. For the reasons set out in Chaskalson P's judgment, the requirements
have not been met; the State has been unable to justify the limitation which is imposed on the right to life by
section 277
of the
Criminal Procedure Act. I
cannot accept that it is "reasonable," as required by section 33(1) of the Constitution, to override what is the most fundamental
of all rights, without clear proof that the deterrence value of the penalty is substantially higher than that which the imposition
of a suitably long period of imprisonment has. This has not been proved. Because of the view I take, I find it unnecessary to deal
with the other requirements of section 33(1) of the Constitution.
The
emphasis I place on the right to life is, in part, influenced by
the recent experiences of our people in this country. The
history
of the past decades has been such that the value of life and human
dignity have been demeaned. Political, social and
other factors
created a climate of violence resulting in a culture of retaliation
and vengeance. In the process, respect for
life and for the
inherent dignity of every person became the main casualties. The
State has been part of this degeneration,
not only because of its
role in the conflicts of the past, but also by retaining
punishments which did not testify to a high
regard for the dignity
of the person and the value of every human life.
The
primacy of the right to life and its relationship to punishment
needs to be emphasized also in view of our constitutional
history.
The doctrine of parliamentary sovereignty meant, virtually, that
the State could do anything, enact any law, subject
only to
procedural correctness.
3
When the Constitution was
enacted, it signalled a dramatic change in the system of governance
from one based on rule by parliament
to a constitutional state in
which the rights of individuals are guaranteed by the Constitution.
It also signalled a new dispensation,
as it were, where rule by
force would be replaced by democratic principles and a governmental
system based on the precepts
of equality and freedom.
It may well be that for millions
in this country, the effect of the change has yet to be felt in a
material sense. For all of
us though, a framework has been created
in which a new culture must take root and develop.
Implicit in the provisions and
tone of the Constitution are values of a more mature society, which
relies on moral persuasion
rather than force; on example rather
than coercion. In this new context, then, the role of the State
becomes clear. For good
or for worse, the State is a role model for
our society.
4
A culture of respect for human life and dignity, based on the
values reflected in the Constitution, has to be engendered, and
the
State must take the lead. In acting out this role, the State not
only preaches respect for the law and that the killing
must stop,
but it demonstrates in the best way possible, by example, society’s
own regard for human life and dignity
by refusing to destroy that
of the criminal. Those who are inclined to kill need to be told why
it is wrong. The reason surely
must be the principle that the value
of human life is inestimable, and it is a value which the State
must uphold by example
as well. As pointed out by Mr Justice
Schaefer of the Supreme Court of Illinois:
5
"The methods we employ in the enforcement of our
criminal law have aptly been called the measures by which the
quality of
our civilisation may be judged."
The ethos of the new culture is
expressed in the much-quoted provision on National Unity and
Reconciliation which forms part
of the Constitution. Chaskalson P
quotes the various components of it in paragraphs 7 and 130 of his
judgment. It describes
the Constitution as a "bridge"
between the past and the future; from "the past of a deeply
divided society characterised
by strife, conflict, untold suffering
and injustice, and a future founded on the recognition of human
rights, ... for all South
Africans ..."; and finally, it
suggests a change in mental attitude from vengeance to an
appreciation of the need for
understanding, from retaliation to
reparation and from victimisation to
ubuntu
. The
Constitution does not define this last-mentioned concept.
The concept is of some relevance
to the values we need to uphold. It is a culture which places some
emphasis on communality
and on the interdependence of the members
of a community. It recognises a person's status as a human being,
entitled to unconditional
respect, dignity, value and acceptance
from the members of the community such person happens to be part
of. It also entails
the converse, however. The person has a
corresponding duty to give the same respect, dignity, value and
acceptance to each
member of that community. More importantly, it
regulates the exercise of rights by the emphasis it lays on sharing
and co-responsibility
and the mutual enjoyment of rights by all. It
is perhaps best illustrated in the following remarks in the
judgment of the Court
of Appeal of the Republic of Tanzania in
DPP
v Pete
,
6
"The second important principle or characteristic
to be borne in mind when interpreting our Constitution is a
corollary of
the reality of co-existence of the individual and
society, and also the reality of co-existence of rights and duties
of the individual
on the one hand, and the collective of
communitarian rights and duties of society on the other. In effect
this co-existence means
that the rights and duties of the individual
are limited by the rights and duties of society, and vice versa."
An outstanding feature of
ubuntu
in a community sense is the value it puts on life and human
dignity. The dominant theme of the culture is that the life of

another person is at least as valuable as one's own. Respect for
the dignity of every person is integral to this concept. During

violent conflicts and times when violent crime is rife, distraught
members of society decry the loss of
ubuntu
. Thus heinous
crimes are the antithesis of
ubuntu
. Treatment that is
cruel, inhuman or degrading is bereft of
ubuntu
.
We have all been affected, in
some way or other, by the "strife, conflict, untold suffering
and injustice" of the
recent past. Some communities have been
ravaged much more than others. In some, there is hardly anyone who
has not been a victim
in some way or who has not lost a close
relative in senseless violence. Some of the violence has been
perpetrated through the
machinery of the State, in order to ensure
the perpetuation of a
status quo
that was fast running out
of time. But all this was violence on human beings by human beings.
Life became cheap, almost worthless.
It was against a background of
the loss of respect for human life and the inherent dignity with
attaches to every person that
a spontaneous call has arisen among
sections of the community for a return to
ubuntu
. A number
of references to
ubuntu
have already been made in various
texts but largely without explanation of the concept.
7
It has however always been mentioned in the context of it being
something to be desired, a commendable attribute which the
nation
should strive for.
At first blush, it may sound odd
that the issue of the right to life is being decided on the basis
of persons condemned to death
for killing other human beings. In
this regard, it is relevant to note that there are some 400 people
presently under sentence
of death for acts of violence. That in
itself means that there are probably an equivalent number of
victims whose lives have
been prematurely, violently, terminated.
They died without having had any recourse to law. For them there
was no "due
process."
That is why, during argument, a
tentative proposition was made that a person who has killed another
has forfeited the right
to life. Although the precise implications
of this suggestion were not thoroughly canvassed, this cannot be
so. The test of
our commitment to a culture of rights lies in our
ability to respect the rights not only of the weakest, but also of
the worst
among us. A person does not become "fair game"
to be killed at the behest of the State, because he has killed.
The protection afforded by the
Constitution is applicable to every person. That includes the weak,
the poor and the vulnerable.
It includes others as well who might
appear not to need special protection; it includes criminals and
all those who have placed
themselves on the wrong side of the law.
The Constitution guarantees them their right, as persons, to life,
to dignity and
to protection against torture or cruel, inhuman or
degrading punishment or treatment.
The violent acts of those who
destroy life cannot be condoned, neither should anyone think that
the abolition of the sentence
of death means that the crime is
regarded as anything but one of extreme seriousness. The sentence
itself was an indication
of society's abhorrence for the cruel and
inhuman treatment of others. That moral outrage has been expressed
in the strongest
terms that society could muster.
Severe punishments must be meted
out where deserved, but they should never be excessive. As Brennan
J observed in his concurring
judgment in
Furman v Georgia
,
8
". . . a severe punishment must not be excessive.
A punishment is excessive under this principle if it is unnecessary
. .
. [i]f there is a significantly less severe punishment adequate
to achieve the purposes for which the punishment is inflicted,
the
punishment inflicted is unnecessary and therefore excessive."
Righteous anger against those who
destroy the human life and dignity of others must be appropriately
expressed by the Courts;
9
but in doing so, the State must not send the wrong message, namely,
that the value of human life is variable.
10
Society cannot now succumb to the doctrine of “an eye for an
eye.” Its actions must be informed by the high values
which
reflect the quality of this nation's civilization.
The Constitution constrains
society to express its condemnation and its justifiable anger in a
manner which preserves society's
own morality. The State should not
make itself guilty of conduct which violates that which it is in
the community's interests
to nurture. The Constitution, in
deference to our humanity and sense of dignity, does not allow us
to kill in cold blood in
order to deter others from killing. Nor
does it allow us to “kill criminals simply to get even with
them."
11
We are not to stoop to the level of the criminal.
It follows from the remarks above
that as a ‘punishment’ the death penalty is a violation
of the right to life.
It is cruel, inhuman
and
degrading. It
is also a severe affront to human dignity. The ‘death row
phenomenon’ merely aggravates the position.
Section 277
of
the
Criminal Procedure Act cannot
be saved by the provisions of
section 33(1) of the Constitution in respect of any of the rights
affected. The punishment is
not reasonable on any basis. In view of
the available alternative sentence of a long term of imprisonment,
it is also unnecessary.
MADALA J:
I am in
agreement with the views expressed in the judgment of Chaskalson P
and with his decision on the unconstitutionality
of the death
penalty. The punishment, is in my view, clearly offensive to the
cardinal principles for which our Constitution
stands.
However, while I concur, as
aforesaid, I believe that there are some additional matters that
need to be mentioned and aspects
that should be emphasised, and I
proceed to do so briefly.
The death penalty is unique. As
stated by Stewart J in
Furman v Georgia
408 US at 306:
"The penalty of death differs from all other forms
of criminal punishment, not in degree but in kind. It is unique in
its
total irrevocability. It is unique in its rejection of
rehabilitation of the convict as a basic purpose of criminal
justice.
And it is unique, finally, in its absolute renunciation of
all that is embodied in our concept of humanity."
This statement was more recently
(1991) re-affirmed by Scalia J, who delivered the judgment of the
court in
Harmelin v Michigan
[1991] USSC 120
;
501 US 957
, and noted that even
the most severe sentence of life imprisonment cannot compare with
death.
The Constitution in its
post-amble declares:
"... there is a need for understanding but not
vengeance, and for reparation but not for retaliation, a need for
ubuntu
but not victimisation."
The concept "
ubuntu
"
appears for the first time in the post-amble, but it is a concept
that permeates the Constitution generally and more
particularly
Chapter Three which embodies the entrenched fundamental human
rights. The concept carries in it the ideas of humaneness,
social
justice and fairness.
It was argued by Mr Bizos, on
behalf of the Government, that the post-amble enjoins the people of
South Africa to open a new
chapter which envisages the country
playing a leading role in the upholding of human rights. He
submitted further, that the
Government favoured the abolition of
the death penalty because it believed that such punishment could
not be reconciled with
the fundamental rights contained in the
Constitution, and that its application diminished the dignity of
our society as a whole.
In my rejection of the death
penalty as a form of punishment, I do not intend, nor do my
colleagues, to condone murder, rape,
armed robbery with aggravating
circumstances and those other crimes which are punishable by a
sentence of death in terms of
Section 277
of the
Criminal Procedure
Act 51 of 1977
. These criminal acts are, and remain, as heinous,
vicious and as reprehensible as they ever were, and do not belong
in civilised
society. The death penalty is a punishment which
involves so much pain and suffering that civilised society ought
not to tolerate
it even in spite of the present high rate of crime.
And society ought to tolerate the death penalty even less when
considering
that it has not been proved that it has any greater
deterrent effect on would-be murderers than life imprisonment.
The aspect of irrevocability of
the death penalty has been canvassed adequately in the judgment of
Chaskalson P and I propose
to say no more on that score (
See
paragraphs 26 and 54).
As observed before, the death
penalty rejects the possibility of rehabilitation of the convicted
persons, condemning them as
"no good", once and for all,
and drafting them to the death row and the gallows. One must then
ask whether such rejection
of rehabilitation as a possibility
accords with the concept of
ubuntu
.
One of the relative theories of
punishment (the so-called purposive theories) is the reformative
theory, which considers punishment
to be a means to an end, and not
an end in itself - that end being the reformation of the criminal
as a person, so that the
person may, at a certain stage, become a
normal law-abiding and useful member of the community once again.
The person and
the personality of the offender are the point of
focus rather than the crime, although the crime is, however, not
forgotten.
And in terms of this theory of punishment and as a
necessary consequence of its application, the offender has to be
imprisoned
for a long period for the purpose of rehabilitation. By
treatment and training the offender is rehabilitated, or, at the
very
least, ceases to be a danger to society.
This, in my view, accords fully
with the concept of
ubuntu
which is so well enunciated in
the Constitution.
Our courts have found room for
the exercise of
ubuntu
, as appears from the many cases where
they have found that despite the heinousness of the offence and the
brutality with which
it was perpetrated, there were factors in the
offenders' favour, indicating that they were, in spite of the
criminal conduct
of which they were convicted, responsible members
of society, and were worthy and capable of rehabilitation. (
See
S v Mbotshwa
1993(2) SACR 468 (A) at 468J-469F;
S v Ramba
1990 (2) SACR 334
(A) at 335H-336E;
S v Ngcobo
1992(2) SACR
515 (A) at 515H-516A; Contra:
S v Bosman
1992 (1) SACR 115
(A) at 116G-117F)
Against
ubuntu
must be
seen the other side, the inhuman side of mankind, in terms of which
the death penalty violates Section 11(2) of the
Constitution in
that it is "cruel, inhuman or degrading treatment or
punishment".
In
Catholic Commission for
Justice and Peace in Zimbabwe v Attorney-General, Zimbabwe
1993
(4) SA 239(ZSC)
at 268E-H, Gubbay CJ, observed:
"From the moment he enters the condemned cell, the
prisoner is enmeshed in a dehumanising environment of near
hopelessness.
He is in a place where the sole object is to preserve
his life so that he may be executed. The condemned prisoner is 'the
living
dead' ... He is kept only with other death sentenced
prisoners - with those whose appeals have been dismissed and who
await death
or reprieve; or those whose appeals are still to be
heard or are pending judgment. While the right to an appeal may
raise the
prospect
of being allowed to live, the intensity of the trauma
is much increased by knowledge of its dismissal. The hope of a
reprieve
is all that is left. Throughout all this time the condemned
prisoner constantly broods over his fate. The horrifying spectre of

being hanged by the neck and the apprehension of being made to
suffer a painful and lingering death is, if at all, never far
from
mind. Grim accounts exist of hangings not properly
performed."
Convicted persons in death row
invariably find themselves there for a long time as they make every
effort to exhaust all possible
review avenues open to them. All
this time they are subjected to a fate of ever increasing fear and
distress. They know not
what their future is and whether their
efforts will come to nought; they live under the sword of Damocles
- they will be advised
any day about their appointment with the
hangman. It is true that they might have shown no mercy at all to
their victims, but
we do not and should not take our standards and
values from the murderer. We must, on the other hand, impose our
standards
and values on the murderer.
In the aforementioned Zimbabwe
case, the court concluded that the incarceration of the condemned
person under those conditions
was in conflict with the provisions
of Section 15(1) of the Zimbabwe Constitution, which like our
Constitution, has entrenched
guarantees against torture or inhuman
and degrading punishment.
The so-called "death row
phenomenon" also came under attack in the case of
Soering v
United Kingdom
[1989] ECHR 14
;
(1989) 11 EHRR 439.
From the statistics supplied by
the Attorney-General and from what one gleans daily from the
newspapers and other media, we
live at a time when the high crime
rate is unprecedented, when the streets of our cities and towns
rouse fear and despair in
the heart, rather than pride and hope,
and this in turn, robs us of objectivity and personal concern for
our brethren. But,
as Marshall J put it in
Furman v Georgia
(
supra
) at 371:
"The measure of a country's greatness is its
ability to retain compassion in time of crisis."
This, in my view, also accords
with
ubuntu
- and calls for a balancing of the interest of
society against those of the individual, for the maintenance of law
and order,
but not for dehumanising and degrading the individual.
We must stand tallest in these
troubled times and realise that every accused person who is sent to
jail is not beyond being
rehabilitated - properly counselled - or,
at the very least, beyond losing the will and capacity to do evil.
A further aspect which I wish to
mention is the question of traditional African jurisprudence, and
the degree to which such
values have not been researched for the
purposes of the determination of the issue of capital punishment.
Ms Davids, who appeared on behalf
of the Black Advocates Forum, in its capacity as
amicus curiae
,
touched on but did not fully argue this matter.
She submitted that we could not
determine the question of the constitutionality or otherwise of the
death sentence without reference
to further evidence which would
include the views, aspirations and opinions of the historically
disadvantaged and previously
oppressed people of South Africa, who
also constitute the majority of our society.
As I understood her argument, the
issue of capital punishment could not be determined in an open and
democratic society without
the active participation of the black
majority. This, in my view, would be tantamount to canvassing
public opinion among the
black population for the decisions of our
courts. I do not agree with this submission, if it implies that
this Court or any
other court must function according to public
opinion.
In order to arrive at an answer
as to the constitutionality or otherwise of the death penalty or
any enactment, we do not have
to canvass the opinions and attitudes
of the public. Ours is to interpret the provisions of the
Constitution as they stand
and if any matter is in conflict with
the Constitution, we have to strike it down.
We, as judges, are oath bound to
defend the Constitution. This obligation, in turn, requires that
any enactment of Parliament
should be judged by standards laid down
by the Constitution. The judiciary has the duty of implementing the
constitutional
safeguards that protect individual rights. When the
State seeks to take away the individual fundamental right to life,
the
safeguards of the Constitution should be examined with special
diligence. When it appears that an act of Parliament conflicts
with
the provisions of the Constitution, we have no choice but to
enforce the paramount commands of the Constitution. We are
sworn to
do no less.
I agree with Ms Davids'
submission about the need to bring in the traditional African
jurisprudence to these matters, to the
extent that such is
applicable, and would not confine such research to South Africa
only, but to Africa in general.
For purposes of the determination
of the question of the constitutionality of the death penalty,
however, it is, in my view,
not necessary or even desirable that
public opinion should be sought on the matter in the manner she
suggests.
In my view, the death penalty
does not belong to the society envisaged in the Constitution, is
clearly in conflict with the
Constitution generally and runs
counter to the concept of
ubuntu
; additionally and just as
importantly, it violates the provisions of Section 11(2) of the
Constitution and, for those reasons,
should be declared
unconstitutional and of no force and effect.
MAHOMED J:
I have had the
privilege of reading the full and erudite judgment of Chaskalson P
in this matter. I agree with the order proposed
by him and in
general with the reasons given by him for that order. Regard being
had, however, to the crucial consequences
of the debate on capital
punishment, and the multiplicity of potential constitutional
factors and nuances which impact on its
resolution, I think it is
desirable for me to set out briefly some of my responses to this
debate in order to explain why I
have come to the conclusion that
capital punishment is prohibited by the Constitution.
All Constitutions seek to
articulate, with differing degrees of intensity and detail, the
shared aspirations of a nation; the
values which bind its people,
and which discipline its government and its national institutions;
the basic premises upon which
judicial, legislative and executive
power is to be wielded; the constitutional limits and the
conditions upon which that power
is to be exercised; the national
ethos which defines and regulates that exercise; and the moral and
ethical direction which
that nation has identified for its future.
In some countries, the Constitution only formalizes, in a legal
instrument, a historical
consensus of values and aspirations
evolved incrementally from a stable and unbroken past to
accommodate the needs of the future.
The South African Constitution
is different: it retains from the past only what is defensible and
represents a decisive break
from, and a ringing rejection of, that
part of the past which is disgracefully racist, authoritarian,
insular, and repressive
and a vigorous identification of and
commitment to a democratic, universalistic, caring and
aspirationally egalitarian ethos,
expressly articulated in the
Constitution. The contrast between the past which it repudiates and
the future to which it seeks
to commit the nation is stark and
dramatic. The past institutionalized and legitimized racism. The
Constitution expresses in
its preamble the need for a "new
order .. in which there is equality between ... people of all
races". Chapter 3
of the Constitution extends the contrast, in
every relevant area of endeavour (subject only to the obvious
limitations of section
33). The past was redolent with statutes
which assaulted the human dignity of persons on the grounds of race
and colour alone;
section 10 constitutionally protects that
dignity. The past accepted, permitted, perpetuated and
institutionalized pervasive
and manifestly unfair discrimination
against women and persons of colour; the preamble, section 8 and
the postamble seek to
articulate an ethos which not only rejects
its rationale but unmistakenly recognizes the clear justification
for the reversal
of the accumulated legacy of such discrimination.
The past permitted detention without trial; section 11(1) prohibits
it. The
past permitted degrading treatment of persons; section
11(2) renders it unconstitutional. The past arbitrarily repressed
the
freedoms of expression, assembly, association and movement;
sections 15, 16, 17 and 18 accord to these freedoms the status of

"fundamental rights". The past limited the right to vote
to a minority; section 21 extends it to every citizen. The
past
arbitrarily denied to citizens on the grounds of race and colour,
the right to hold and acquire property; section 26 expressly

secures it. Such a jurisprudential past created what the postamble
to the Constitution recognizes as a society "characterized
by
strife, conflict, untold suffering and injustice". What the
Constitution expressly aspires to do is to provide a transition

from these grossly unacceptable features of the past to a
conspicuously contrasting
"future founded on the recognition of human
rights, democracy and
peaceful co-existence and development opportunities for
all South
Africans, irrespective of colour, race, class, belief
or sex".
The postamble to the
Constitution gives expression to the new ethos of the nation by a
commitment to "open a new chapter
in the history of our
country", by lamenting the transgressions of "human
rights" and "humanitarian principles"
in the past,
and articulating a
"need for understanding, but not for vengeance, a
need for reparation but not retaliation, a need for
ubuntu
but not for victimization".
"The need for
ubuntu
"
expresses the ethos of an instinctive capacity for and enjoyment of
love towards our fellow men and women; the joy and
the fulfilment
involved in recognizing their innate humanity; the reciprocity this
generates in interaction within the collective
community; the
richness of the creative emotions which it engenders and the moral
energies which it releases both in the givers
and the society which
they serve and are served by.
It is against this historical
background and ethos that the constitutionality of capital
punishment must be determined.
The death penalty sanctions the
deliberate annihilation of life. As I have previously said it
"is the ultimate and the most incomparably extreme
form of punishment... It is the last, the most devastating and the
most
irreversible recourse of the criminal law, involving as it
necessarily does, the planned and calculated termination of life
itself;
the destruction of the greatest and most precious gift which
is bestowed on all humankind" (
S v Mhlongo
1994 (1) SACR
584(A)
at 587 e-g
).
This "planned and calculated
termination of life itself" was permitted in the past which
preceded the Constitution.
Is it
now
permissible? Those
responsible for the enactment of the Constitution, could, if they
had so wished, have treated the issue
as a substantially political
and moral issue justifying a political choice, clearly expressed in
the Constitution, either retaining
or prohibiting the death
sentence. They elected not to do so, leaving it to this Court to
resolve the issue, as a constitutional
issue.
The difference between a
political election made by a legislative organ and decisions
reached by a judicial organ, like the
Constitutional Court, is
crucial. The legislative organ exercises a political discretion,
taking into account the
political preferences
of the
electorate which votes political decision-makers into office.
Public opinion therefore legitimately plays a significant,

sometimes even decisive, role in the resolution of a public issue
such as the death penalty. The judicial process is entirely

different. What the Constitutional Court is required to do in order
to resolve an issue, is to examine the relevant provisions
of the
Constitution, their text and their context; the interplay between
the different provisions; legal precedent relevant
to the
resolution of the problem both in South Africa and abroad; the
domestic common law and public international law impacting
on its
possible solution; factual and historical considerations bearing on
the problem; the significance and meaning of the
language used in
the relevant provisions; the content and the sweep of the ethos
expressed in the structure of the Constitution;
the balance to be
struck between different and sometimes potentially conflicting
considerations reflected in its text; and
by a judicious
interpretation and assessment of all these factors to determine
what the
Constitution
permits and what it prohibits.
Adopting that approach, I am
satisfied that the death penalty as a form of punishment violates
crucial sections of the Constitution
and that it is not saved by
the limitations permitted in terms of section 33. I wish briefly to
set out my reasons for that
conclusion.
In the first place, it offends
section 9 of the Constitution which prescribes in peremptory terms
that "every person shall
have the right to life". What
does that mean? What is a "person"? When does
"personhood" and "life"
begin? Can there be a
conflict between the "right to life" in section 9 and the
right of a mother to "personal
privacy" in terms of
section 13 and her possible right to the freedom and control of her
body? Does the "right to
life", within the meaning of
section 9, preclude the practitioner of scientific medicine from
withdrawing the modern mechanisms
which mechanically and
artificially enable physical breathing in a terminal patient to
continue, long beyond the point, when
the "brain is dead"
and beyond the point when a human being ceases to be "human"
although some unfocussed
claim to qualify as a "being" is
still retained? If not, can such a practitioner go beyond the point
of passive withdrawal
into the area of active intervention? When?
Under what circumstances?
It is, for the purposes of the
present case, unnecessary to give to the word "life" in
section 9 a comprehensive legal
definition, which will accommodate
the answer to these and other complex questions. Whatever be the
proper resolution of such
issues, should they arise in the future,
it is possible to approach the constitutionality of the death
sentence by a question
with a sharper and narrower focus, thus:
"Does the right to life guaranteed by section 9,
include the right of every person, not to be deliberately killed by
the
State, through a systematically planned act of execution
sanctioned by the State as a mode of punishment and performed by an

executioner remunerated for this purpose from public funds?"
The answer to that question, is in my
view: "Yes, every person has that right". It immediately
distinguishes that
right from some other obvious rights referred to
in argument, such as for example the right of a person in
life-threatening
circumstances to take the life of the aggressor in
self-defence or even the acts of the State, in confronting an
insurrection
or in the course of War.
The deliberate annihilation of
the life of a person, systematically planned by the State, as a
mode of punishment, is wholly
and qualitatively different. It is
not like the act of killing in self-defence, an act justifiable in
the defence of the clear
right of the victim to the preservation of
his life. It is not performed in a state of sudden emergency, or
under the extraordinary
pressures which operate when insurrections
are confronted or when the State defends itself during War. It is
systematically
planned long after - sometimes years after - the
offender has committed the offence for which he is to be punished,
and whilst
he waits impotently in custody, for his date with the
hangman. In its obvious and awesome finality, it makes every other
right,
so vigorously and eloquently guaranteed by Chapter 3 of the
Constitution, permanently impossible to enjoy. Its inherently
irreversible
consequence, makes any reparation or correction
impossible, if subsequent events establish, as they have sometimes
done, the
innocence of the executed or circumstances which
demonstrate manifestly that he did not deserve the sentence of
death.
The death sentence must, in some
measure, manifest a philosophy of indefensible despair in its
execution, accepting as it must
do, that the offender it seeks to
punish is so beyond the pale of humanity as to permit of no
rehabilitation, no reform, no
repentance, no inherent spectre of
hope or spirituality; nor the slightest possibility that he might
one day, successfully
and deservedly be able to pursue and to enjoy
the great rights of dignity and security and the fundamental
freedoms protected
in Chapter 3 of the Constitution, the exercise
of which is possible only if the "right to life" is not
destroyed.
The finality of the death penalty allows for none of
these redeeming possibilities. It annihilates the potential for
their
emergence. Moreover, it cannot accomplish its objective
without invading in a very deep and distressing way, the guarantee

of human dignity afforded by section 10 of the Constitution, as the
person sought to be executed spends long periods in custody,

anguished by the prospect of being "hanged by the neck until
he is dead" in the language of section 279(4) of Act
51 of
1977. The invasion of his dignity is inherent. He is effectively
told: "You are beyond the pale of humanity. You
are not fit to
live among humankind. You are not entitled to life. You are not
entitled to dignity. You are not human. We will
therefore
annihilate your life". (
See
the observations of
Brennan
J in Trop v Dulles
356 US 84
at 100
).
It is not necessarily only the
dignity of the person to be executed which is invaded. Very
arguably the dignity of all of us,
in a caring civilization, must
be compromised, by the act of repeating, systematically and
deliberately, albeit for a wholly
different objective, what we find
to be so repugnant in the conduct of the offender in the first
place (see
Furman v Georgia
[1972] USSC 170
;
408 US 238
at 273
(1972)(Brennan
J, concurring)).
I also have very considerable
difficulty in reconciling the guarantee of the right to equality
which is protected by section
8 of the Constitution, with the death
penalty. I have no doubt whatever that Judges seek conscientiously
and sedulously to
avoid, any impermissibly unequal treatment
between different accused whom they are required to sentence, but
there is an inherent
risk of arbitrariness in the process, which
makes it impossible to determine and predict which accused person
guilty of a capital
offence will escape the death penalty and which
will not. The fault is not of the sentencing Court, but in the
process itself.
The ultimate result depends not on the predictable
application of objective criteria, but on a vast network of
variable factors
which include, the poverty or affluence of the
accused and his ability to afford experienced and skillful counsel
and expert
testimony; his resources in pursuing potential avenues
of investigation, tracing and procuring witnesses and establishing
facts
relevant to his defence and credibility; the temperament and
sometimes unarticulated but perfectly
bona fide
values of
the sentencing officer and their impact on the weight to be
attached to mitigating and aggravating factors; the inadequacy
of
resources which compels the
pro - deo
system to depend
substantially on the services of mostly very conscientious but
inexperienced and relatively junior counsel;
the levels of literacy
and communication skills of the different accused in effectively
transmitting to counsel the nuances
of fact and inference often
vital to the probabilities; the level of training and linguistic
facilities of busy interpreters;
the environmental milieu of the
accused and the difference between that and the comparative
environment of those who defend,
prosecute and judge him; class,
race, gender and age differences which influence
bona fide
perceptions, relevant to the determination of the ultimate
sentence; the energy, skill and intensity of police investigations

in a particular case; and the forensic skills and experience of
counsel for the prosecution. There are many other such factors

which influence the result and which determine who gets executed
and who survives. The result is not susceptible to objective

prediction. Some measure of arbitrariness seems inherent in the
process. This truth has caused Blackmun J, one of the most

experienced Judges of the United States Supreme Court, finally to
conclude that it
"is virtually self-evident to me now that no
combination of procedural rules or substantive regulations ever can
save the
death penalty from its inherent constitutional
deficiencies. The basic question - does the system accurately and
consistently
determine which defendants 'deserve' to die? - cannot
be answered in the affirmative" (
Callins v Collins
114 S.
Ct. 1127
; 127 L.Ed.2d 435 (1994)(Blackmun J, dissenting)
).
It must, of course, be conceded
that the factors which ensure arbitrariness in the judicial
application of the death sentence,
must in some considerable
measure also influence a sentence of imprisonment, but there is an
enormous difference between the
death sentence and imprisonment or
any other sentence. It is a qualitative and not just a quantitative
difference. The unfair
consequences of a wrong sentence of
imprisonment can be reversed. Death, however, is final and
irreversible. The accused, who
is imprisoned, is still able to
exercise, within the discipline of the prison, in varying degrees,
some of the other rights
which the Constitution guarantees to every
person. The executed prisoner loses the right to pursue any other
right. He simply
dies.
For substantially the reasons
given by Chaskalson P, I am further of the view that the death
penalty is also inconsistent with
section 11(2) of the Constitution
which provides that:
"No person shall be subject to torture of any
kind, whether physical, mental or emotional, nor shall any person be
subject
to cruel, inhuman or degrading treatment or punishment."
The different parts of section
11(2) must be read disjunctively. The death sentence would (subject
to section 33) offend section
11(2) if it constitutes
torture;
or
cruel
treatment; or
cruel
punishment; or
inhuman
treatment; or
inhuman
punishment; or
degrading
treatment; or
degrading
punishment.
(See
Ex Parte Attorney-General, Namibia: In re Corporal Punishment
1991 (3) SA 76
(NmSC) at 86B-D
)
In my view, the death sentence
does indeed constitute cruel, inhuman or degrading punishment
within the meaning of those expressions
in section 11(2).
Undoubtedly, this conclusion does
involve in some measure a value judgment, but it is a value
judgment which requires objectively
to be formulated, having regard
to the ordinary meaning of the words used in section 11(2); its
consistency with the other
rights protected by the Constitution and
the constitutional philosophy and humanism expressed both in the
preamble and the
postamble to the Constitution; its harmony with
the national ethos which the Constitution identifies; the
historical background
to the structures and objectives of the
Constitution; the discipline of proportionality to which it must
legitimately be subject;
the effect of the death sentence on the
right to life protected by the Constitution; its inherent
arbitrariness in application;
its impact on human dignity; and its
consistency with constitutional perceptions evolving both within
South Africa and the
world outside with which our country shares
emerging values central to the permissible limits and objectives of
punishment
in the civilized community.
I have dealt with some of these
issues, in analysing the proper approach to the interpretation of
the Constitution, and in focusing
on the rights protected by
sections 8, 9 and 10 of the Constitution. Some of the other issues
relevant to the exercise, have
been dealt with in the comprehensive
judgment of the President and the persuasive comments of some of my
colleagues.
Applying the relevant
considerations which emerge from the proper approach in assessing
whether capital punishment is "cruel,
inhuman or degrading
punishment", I share the conclusions arrived at by the United
Nations Committee on Human Rights,
and the Hungarian Constitutional
Court, (
Decision 23/1990 (X31) AB
) that the death sentence
is cruel and degrading punishment and the conclusion of the
Californian Supreme Court that it is "impermissibly
cruel"
(
People v Anderson
493 P.2d 880
(1972)
).
In my view, it also constitutes
inhuman
punishment. It invades irreversibly the humanity of
the offender by annihilating the minimum content of the right to
life protected
by section 9; by degrading impermissibly the
humanity inherent in his right to dignity; by the inevitable
arbitrariness with
which its objective is implemented; by the
continuing and corrosive denigration of his humanity in the long
periods preceding
his formal execution; by the inescapable denial
of his humanity inherently involved in a sentence which directs his
elimination
from society.
I am accordingly of the view that
the death penalty does
prima facie
invade the right to life;
the right to equality; the right to dignity; and the right not to
be subject to cruel inhuman or
degrading punishment, respectively
protected by sections 9, 8, 10 and 11(2) of the Constitution.
Notwithstanding that conclusion
however, it would be our duty to uphold the constitutionality of
the death penalty if it was
saved by section 33 of the
Constitution, which provides that the rights entrenched by Chapter
3 may be limited by a law of
general application, provided that
such limitation
"(a) shall be permissible only to the extent that
it is
(i) reasonable; and
(ii) justifiable in an open and democratic society
based on freedom and equality; and
(b) shall not negate the essential content of the right
in question, and provided that any limitation to
(aa) a right entrenched in section 10, 11, 12, 14(1),
21, 25 or 30(1)(d) or (e) or (2);
or
(bb) .........
shall in addition to being reasonable as required in
paragraph (a)(i) also be necessary".
On a proper construction of section
33, a "law of general application" which invades a right
entrenched in Chapter
3, will be declared unconstitutional unless
the party relying on such law is able to establish that it fulfils
each of the
conditions prescribed by this section, for its
justification.
In order to qualify as a
permissible limitation in terms of section 33 the State must
therefore establish that the invasions
on the right to life, the
right to be protected from unfair discrimination, the right to
dignity and the right to be protected
from cruel, inhuman or
degrading punishment, which the application of the death penalty
causes, satisfy at least the three
separate elements specified in
sections 33(1)(a)(i), (ii) and 33(1)(b). In the case of a
limitation on the right to dignity
and the right to be protected
from cruel, inhuman or degrading punishment, the fourth element of
"necessity" contained
in section 33(1)(aa) must further
be satisfied.
The most plausible argument in
support of the submission that the death penalty does satisfy these
onerous conditions prescribed
by section 33 is the submission that
it acts as a deterrent. That argument has dominated perceptions in
support of the death
penalty, both in South Africa and abroad.
It must readily be conceded that
if it could be established that the death sentence does indeed
deter the commission of serious
offences in respect of which the
death penalty is a competent sentence, it would indeed be a very
relevant and at least a potentially
persuasive consideration in
support of its justification in terms of section 33. There are,
however, some serious difficulties
involved in the acceptance of
the proposition that the death penalty is, or ever has been, a
demonstrable deterrence.
The legitimacy of the argument
must to a substantial degree be premised on an assumption which
appears to me to be fallacious
and at the least, highly speculative
and rationally unconvincing. That assumption is that a criminal,
contemplating the commission
of a serious offence, weighs the risk
that he might be sentenced to death against the risk that he might
not be sentenced to
death but only to a long term of imprisonment
of twenty years or more. The assumption is that he would decide to
commit the
offence even at the risk of receiving a long term of
imprisonment but that if the death sentence was the risk, he would
refrain
from committing the offence at all. I have serious
difficulties with these assumptions. In the first place they are
not supported
by any empirical evidence or research in this country
or abroad. Secondly, this argument attributes to the offender a
capacity
for reflection and contemplation and a maturity of
analysis which appears to me to be unrealistic. Thirdly, and more
fundamentally,
it ignores what is possibly the real factor in any
risk assessment which might activate a potentially serious
offender: the
risk which he considers is that he will not be
caught. If he believed that there was a real risk of being
apprehended, charged
and convicted he would not willingly assume
the prospect of many years of quite punishing imprisonment.
If, as I believe, such offenders
commit the crimes contemplated because of a belief that they will
probably not be apprehended
at all, it is a belief which is
regrettably justified. On the information that was common cause in
argument before us, sixty
or seventy percent of offenders who
commit serious crimes are not apprehended at all and a substantial
proportion of those
who are, are never convicted. The risk is
therefore worth taking, not because the death penalty would, in the
perception of
the offender, not be imposed but because no
punishment is likely to result at all. The levels of serious crimes
committed in
South Africa are indeed disturbing. For many in the
community, life has become dangerous and intolerable. Criminals do
need
vigorously to be deterred from conduct which endangers the
security and freedom of citizens to a very distressing degree but,

on the available evidence, it is facile to assume that the
retention of the death penalty will provide the deterrence which
is
clearly needed. I have analysed such statistics as were debated in
argument. In comparisons between States in the United
States of
America which retained the death penalty and those which did not,
there is no manifest proof that the rate of serious
crime was
greater in the States which did not sanction capital punishment. In
the case of those which did abolish capital punishment,
there was
no convincing proof that the rate of serious crime was greater
after such act of abolition (
Peterson and Bailey, "Murder
and Capital Punishment in the context of the Post-Furman Era (1988)
66
Social Forces
774; Thorsten Sellin, The
Death Penalty, 1982
).
Following a survey of research
findings the United Nations concluded that -
"this research has failed to provide scientific
proof that executions have a greater deterrent effect than life
imprisonment
- such proof is unlikely to be following. The evidence
as a whole still gives no possible support to the deterrent
hypothesis".
(
United Nations: The Question of the Death
Penalty and the New Contributions of Criminal Science to the Matter
(1988) at 110
).
We were not furnished with any
reliable research dealing with the relationship between the rate of
serious offences and the
proportion of successful apprehensions and
convictions following on the commission of serious offences. This
would have been
a significant enquiry. It appears to me to be an
inherent probability that the more successful the police are in
solving serious
crimes and the more successful they are in
apprehending the criminals concerned and securing their
convictions, the greater
will be the perception of risk for those
contemplating such offences. That increase in the perception of
risk, contemplated
by the offender, would bear a relationship to
the rate at which serious offences are committed. Successful arrest
and conviction
must operate as a deterrent and the State should,
within the limits of its undoubtedly constrained resources, seek to
deter
serious crime by adequate remuneration for the police force;
by incentives to improve their training and skill; by augmenting

their numbers in key areas; and by facilitating their legitimacy in
the perception of the communities in which they work.
Successful deterrence of serious
crime also involves the need for substantial redress in the
socio-economic conditions of those
ravaged by poverty, debilitated
by disease and malnutrition and disempowered by illiteracy. Rapid
amelioration in these areas
must have some concomitant effect on
the levels of crime. There has to be a corresponding campaign among
the communities affected
by serious crime to harness their own
legitimacy and their own infrastructures, in interaction with the
security agencies of
the State. The power and influence of agencies
of moral authority such as teachers, school principals and
religious leaders
must rapidly be restored. Crime is a
multi-faceted phenomenon. It has to be assaulted on a
multi-dimensional level to facilitate
effective deterrence.
The moratorium on the execution
of the death penalty, which has been effectively in operation since
1990, is also relevant in
offering some insight into the veracity
of the proposition that executions for capital crimes operate as a
deterrent. That
proposition, as Didcott J has correctly analysed,
is not cogently supported by the statistics made available to us
for the
period following upon the moratorium; nor is it supported
by the rate at which crime levels increased during periods in our

history when executions were administered with vigour.
Bringing to bear upon the issue,
therefore, a rational and judicial judgment, I have not been
persuaded that the fear of the
death penalty rationally or
practically operates as a demonstrable deterrent for offenders
seeking to perpetrate serious crimes.
It remains, for the reasons I
have previously discussed, an impermissibly cruel invasion of
rights, the sustenance of which
is fundamental to a defensible
civilization, protected in South Africa by the ethos of a
Constitution, which is manifestly
humanistic and caring in its
content.
Even if the fallacious and
speculative assumptions which motivate the argument in support of
the proposition that the death
sentence does act as a deterrent
against serious crime were to be accepted, rationally the fear of
the death penalty would
only operate on the mind of the potential
offender if there was a serious risk that he could be so punished.
On the information
made available to us, however, that risk is in
any event so minimal, as to constitute a remote statistical
possibility, which,
as Mr Trengove argued, might be no more
significant than the risk of dying in a motor accident. It is
difficult to appreciate
how such a remote statistical possibility
acts as a deterrent on the minds of potential offenders.
On a judicial application of all
the relevant considerations and the facts made available to us, I
therefore cannot conclude
that the State has successfully
established that the death penalty per se has any deterrent effect
on the potential perpetrators
of serious offences.
Is there any other basis on which
the death penalty can be justified? The only serious alternative
basis suggested in argument
was that it is justifiable as an act of
retribution. Retribution has indeed constituted one of the
permissible objects of criminal
punishment because there is an
inherent legitimacy about the claim that the individual victims and
society generally should,
and are entitled to, enforce punishment
as an expression of their moral outrage and sense of grievance. I
have, however, some
serious difficulties with the justification of
the
death sentence
as a form of retribution. The proper
approach is not to contrast the legitimacy of the death sentence as
a form of retribution
against no retribution at all. That is
plainly untenable and manifestly indefensible. The relevant
contrast is between the
death sentence and the alternative of a
very lengthy period of imprisonment, in appropriate cases. It is
difficult to appreciate
why a sentence which compels the offender
to spend years and years in prison, away from his family, in
conditions of deliberate
austerity and rigid discipline,
substantially and continuously impeding his enjoyment of the
elementary riches and gifts of
civilized living, is not an
effective and adequate expression of moral outrage. The
unarticulated fallacy in the argument that
it is not, is the
proposition that it must indeed be equivalent in form to the
offence committed. That is an impermissible
argument. The burning
of the house of the offender is not a permissible punishment for
arson. The rape of the offender is not
a permissible punishment of
a rapist. Why should murder be a permissible punishment for murder?
Indeed, there are good reasons
why it should not, because its
execution might desensitize respect for life
per se
. More
crucially, within the context of the South African Constitution, it
appears to be at variance with its basic premise
and ethos which I
analysed earlier in this judgment. On these considerations, I find
it difficult to hold that the death sentence
has been demonstrated
by the State to be "justifiable in an open and democratic
society based on freedom and equality".
That conclusion should make it
unnecessary for me to deal with the other elements of justification
set out in section 33, but
I am in any event of the view that the
State has not established that the limitations the death penalty
imposes on the relevant
rights in Chapter 3, which I have
discussed, can be said to be "necessary". That is a
material element for justification
in terms of section 33 where
what is limited is the right to human dignity in section 10 or the
right to be protected from
cruel, inhuman or degrading punishment
in terms of section 11(2). The failure to satisfy that element is
fatal to the attempt
to establish justification in terms of section
33. Section 277(1)(a) of Act 51 of 1977 must therefore be the
constitutional
casualty of this conclusion and therefore be struck
down. The reasons which have prompted that conclusion are
substantially
also of application to sub-paragraphs (c) (d) (e) and
(f) of section 277(1) and must therefore endure the same fate. For
the
reasons given by Chaskalson P, Iagree that the issue as to
whether section 277(1)(b) is unconstitutional should be left open.
It also follows from my approach
and the conclusions to which I have arrived, that it is unnecessary
to decide whether or not
the death penalty does "negate the
essential content of the right in question" within the meaning
of section 33(1)(b).
I also prefer to leave this question open. In
the absence of full argument, I do not consider it desirable to
determine what
the meaning of the reference to the "essential
content of the right" is. Chaskalson P, in paragraph 132 of
his judgment,
has, without deciding, referred to two approaches
which he describes as the "objective" and "subjective"
determination of the essential content. Arguably, it is possible to
consider a third angle which focuses on the distinction
between the
"essential content" of a right and some other content.
This distinction might justify a relative approach
to the
determination of what is the essential content of a right by
distinguishing the central core of the right from its peripheral

outgrowth and subjecting "a law of general application"
limiting an entrenched right, to the discipline of not invading
the
core, as distinct from the peripheral outgrowth. In this regard,
there may conceivably be a difference between rights which
are
inherently capable of incremental invasion and those that are not.
We have not heard proper argument on any of these distinctions

which justify debate in the future in a proper case. I say no more.
Consistent with my approach to
the judicial process involved in the determination of the
constitutionality of the death sentence,
I am accordingly
privileged to concur in the order supported by all my colleagues.
MOKGORO J:
I am in
agreement with the judgement of Chaskalson P, its reasoning, and
its conclusions, and I concur in the order that gives
effect to
those conclusions. I give this brief concurring opinion to
highlight what I regard as important: namely that, when
our courts
promote the underlying values of an open and democratic society in
terms of Section 35 when considering the constitutionality
of laws,
they should recognise that indigenous South African values are not
always irrelevant nor unrelated to this task. In
my view, these
values are embodied in the Constitution and they impact directly on
the death penalty as a form of punishment.
Now that constitutionalism has
become central to the new emerging South African jurisprudence,
legislative interpretation will
be radically different from what it
used to be in the past legal order. In that legal order, due to the
sovereignty of parliament,
the supremacy of legislation and the
absence of judicial review of parliamentary statutes, courts
engaged in simple statutory
interpretation, giving effect to the
clear and unambiguous language of the legislative text - no matter
how unjust the legislative
provision. The view of the court in
Bongopi v Council of the State, Ciskei
1992 (3) SA 250
(CK)
at 265 H - I, as per Pickard CJ is instructive in this regard:
‘
This court has always stated openly that it is
not the maker of laws. It will
enforce the law as it finds it. To attempt to promote
policies that are not to be found in the law itself or to prescribe
what
it believes to be the current public attitudes or standards in
regard to these policies is not its function’.
With the entrenchment of a Bill
of Fundamental Rights and Freedoms in a supreme constitution,
however, the interpretive task
frequently involves making
constitutional choices by balancing competing fundamental rights
and freedoms. This can often only
be done by reference to a system
of values extraneous to the constitutional text itself, where these
principles constitute
the historical context in which the text was
adopted and which help to explain the meaning of the text. The
constitution makes
it particularly imperative for courts to develop
the entrenched fundamental rights in terms of a cohesive set of
values, ideal
to an open and democratic society. To this end common
values of human rights protection the world over and foreign
precedent
may be instructive.
While it is important to
appreciate that in the matter before us the court had been called
upon to decide an issue of constitutionality
and not to engage in
debate on the desirability of abolition or retention, it is equally
important to appreciate that the nature
of the court’s role
in constitutional interpretation, and the duty placed on courts by
Section 35, will of necessity
draw them into the realm of making
necessary value choices.
The application of the limitation
clause embodied in Section 33(1) to any law of general application
which competes with a Chapter
3 right is essentially also an
exercise in balancing opposing rights. To achieve the required
balance will of necessity involve
value judgements. This is the
nature of constitutional interpretation. Indeed Section 11(2) which
is the counterpart of Section
15(1) of the Constitution of
Zimbabwe
1
,
and provides protection against cruel, inhuman or degrading
punishment, embodies broad idealistic notions of dignity and
humanity. If applied to determine whether the death penalty was a
form of torture, treatment or punishment which is cruel, inhuman
or
degrading it also involves making value choices, as was held
per
Gubbay CJ in
Catholic Commision for Justice and Peace, Zimbabwe
v Attorney-General, Zimbabwe
,
1993 (4) SA 239
(ZS) at 241. In
order to guard against what Didcott J, in his concurring judgement
terms the trap of undue subjectivity, the
interpretation clause
prescribes that courts seek guidance in international norms and
foreign judicial precedent, reflective
of the values which underlie
an open and democratic society based on freedom and equality. By
articulating rather than suppressing
values which underlie our
decisions, we are not being subjective. On the contrary, we set out
in a transparent and objective
way the foundations of our
interpretive choice and make them available for criticism. Section
35 seems to acknowledge the paucity
of home-grown judicial
precedent upholding human rights, which is not surprising
considering the repressive nature of the past
legal order. It
requires courts to proceed to public international law and foreign
case law for guidance in constitutional
interpretation, thereby
promoting the ideal and internationally accepted values in the
cultivation of a human rights jurisprudence
for South Africa.
However, I am of the view that our own (ideal) indigenous value
systems are a premise from which we need
to proceed and are not
wholly unrelated to our goal of a society based on freedom and
equality. This, in my view too, is the
relevance of the submissions
of Adv. Davids, appearing as
amicus curiae
on behalf of the
Black Advocates’ Forum, albeit that these submissions were
inappropriately presented.
In
Dudgeon v United Kingdom
[1981] ECHR 5
;
(1982) 4 EHRR 149
, the European Court of Human Rights, per Walsh J,
expressed the view that:
“
... in a democracy the law cannot afford to
ignore the moral consensus of the community. If the law is out of
touch with the moral
consensus of the
community, whether by being either too far below it or
too far above it, the law is brought into contempt” (at 184).
Although this view was expressed in
relation to the legislative process, in as far as courts have to
comply with the requirements
of Section 35 of the Constitution the
approach it embodies is not wholly inapplicable in constitutional
adjudication. Enduring
values, however, are not the same as
fluctuating public opinion. In his argument before the court, the
Attorney General submitted
that:
“
... the overwhelming public opinion in favour of
the retention of the death
sentence is sufficiently well-known to be accepted as
the true voice of the
South African society. This opinion of the South
African public is evidenced by newspaper articles, letters to
newspapers, debates
in the media and representations to the
authorities...”
The described sources of public
opinion can hardly be regarded as scientific. Yet even if they
were, constitutional adjudication
is quite different from the
legislative process, because “the court is not a politically
responsible institution”
2
to be seized every five years by majoritarian opinion. The values
intended to be promoted by Section 35 are not founded on
what may
well be uninformed or indeed prejudiced public opinion. One of the
functions of the court is precisely to ensure that
vulnerable
minorities are not deprived of their constitutional rights.
In support of her main
contention, Adv. Davids quite appropriately expressed concern for
the need to consider the value systems
of the formerly marginalised
sectors of society in creating a South African jurisprudence.
However, for reasons outlined in
the concurring opinion of Sachs J,
the issue was regrettably not argued. Indeed even if her
submissions might not have influenced
the final decision of the
court, the opportunity to present and argue properly adduced
evidence of those undistorted values
historically disregarded in
South African judicial law-making would have created an opportunity
of important historical value,
injecting such values into the
mainstream of South African jurisprudence. The experience would, in
my view, also have served
to emphasise that the need to develop an
all-inclusive South African jurisprudence is not only incumbent
upon the judiciary,
let alone the Constitutional Court. The broad
legal profession, academia and those sectors of organised civil
society particularly
concerned with public interest law, have an
equally important responsibility and role to play by combining
efforts and resources
to place the required evidence in argument
before the courts. It is not as if these resources are lacking;
what has been absent
has been the will, and the acknowledgment of
the importance of the material concerned.
In interpreting the Bill of
Fundamental Rights and Freedoms, as already mentioned, an
all-inclusive value system, or common
values in South Africa, can
form a basis upon which to develop a South African human rights
jurisprudence. Although South Africans
have a history of deep
divisions characterised by strife and conflict, one shared value
and ideal that runs like a golden thread
across cultural lines, is
the value of
ubuntu
- a notion now coming to be generally
articulated in this country. It is well accepted that the
transitional Constitution is
a culmination of a negotiated
political settlement. It is a bridge between a history of gross
violations of human rights and
humanitarian principles, and a
future of reconstruction and reconciliation. The post-amble of the
Constitution expressly provides,
“
... there is a need for understanding but not
for vengeance, a need for
reparation but not for retaliation, a need for
ubuntu
but not for victimisation...”
Not only is the notion of
ubuntu
expressly provided for in the epilogue of the Constitution, the
underlying idea and its accompanying values are also expressed
in
the preamble. These values underlie, first and foremost, the whole
idea of adopting a Bill of Fundamental Rights and Freedoms
in a new
legal order. They are central to the coherence of all the rights
entrenched in Chapter 3 - where the right to life
and the right to
respect for and protection of human dignity are embodied in
Sections 9 and 10 respectively.
Generally,
ubuntu
translates as
humaneness
. In its most fundamental sense, it
translates as
personhood
and
morality
.
Metaphorically, it expresses itself in
umuntu ngumuntu ngabantu
,
describing the significance of group solidarity on survival issues
so central to the survival of communities. While it envelops
the
key values of group solidarity, compassion, respect, human dignity,
conformity to basic norms and collective unity, in
its fundamental
sense it denotes humanity and morality. Its spirit emphasises
respect for human dignity, marking a shift from
confrontation to
conciliation.
3
In South Africa
ubuntu
has become a notion with particular
resonance in the building of a democracy. It is part of our
“rainbow” heritage,
though it might have operated and
still operates differently in diverse community settings. In the
Western cultural heritage,
respect and the value for life,
manifested in the all-embracing concepts of
humanity
and
menswaardigheid
are also highly priced. It is values like
these that Section 35 requires to be promoted. They give meaning
and texture to the
principles of a society based on freedom and
equality.
In American jurisprudence, courts
have recognised that the dignity of the individual in American
society is the supreme value.
Even the most evil offender, it has
been held, “remains a human being possessed of a common human
dignity” (
Furman v Georgia
[1972] USSC 170
;
408 US 238
at 273 (1972)),
thereby making the calculated process of the death penalty
inconsistent with this basic, fundamental value.
In Hungarian
jurisprudence, the right to life and the right to human dignity are
protected as twin rights in Section 54(1)
of that Constitution.
4
They are viewed as an inseparable unity of rights. Not only are
they regarded as a unity of indivisible rights, but they also
have
been held to be the genesis of all rights. In international law, on
the other hand, human dignity is generally considered
the fountain
of all rights. The International Covenant on Civil and Political
Rights (1966) G.A. Res 2200 (XXI), 21 U.N. GAOR,
SUPP. (No, 16) at
52, U.N. DOC. A/6316(1966), in its preamble, makes references to
“the inherent dignity of all members
of the human family”
and concludes that “human rights derive from the inherent
dignity of the human person”.
This, in my view, is not
different from what the spirit of
ubuntu
embraces.
It is common cause, however, that
the legal system in South Africa, and the socio-political system
within which it operated,
has for decades traumatised the human
spirit. In many ways, it trampled on the basic humanity of
citizens. We cannot in all
conscience declare, as did a United
States Supreme Court justice in
Furman v Georgia
[1972] USSC 170
;
408 US 238
,
at 296 (1972) with reference to the American context, that respect
for and protection of human dignity has been a central
value in
South African jurisprudence. We cannot view the death penalty as
fundamentally inconsistent with our harsh legal heritage.
Indeed,
it was an integral part of a system of law enforcement that imposed
severe penalties on those who aspired to achieve
the values
enshrined in our Constitution today.
South Africa now has a new
constitution however, which creates a constitutional state. This
state is in turn founded on the
recognition and protection of basic
human rights, and although this constitutes a revolutionary change
in legal terms, the
idea is consistent with the inherited
traditional value systems of South Africans in general -
traditional values which hardly
found the chance to bring South
Africa on par with the rest of the world.
As this constitution evolves to
overcome the culture of gross human rights violations of the past,
jurisprudence in South Africa
will simultaneously develop a culture
of respect for and protection of basic human rights. Central to
this commitment is the
need to revive the value of human dignity in
South Africa, and in turn re-define and recognise the right to and
protection
of human dignity as a right concomitant to life itself
and inherent in all human beings, so that South Africans may also
appreciate
that “even the vilest criminal remains a human
being”(
Furman v Georgia
,
supra
). In my view,
life and dignity are like two sides of the same coin. The concept
of
ubuntu
embodies them both.
In the past legal order, basic
human rights in South Africa, including the right to life and human
dignity, were not protected
in a Bill of Fundamental Rights and
Freedoms, in a supreme constitution, as is the case today.
Parliament then was sovereign,
and could pass any law it deemed
fit. Legislation was supreme, and due to the absence of judicial
review, no court of law could
set aside any statute or its
provision on grounds of violating fundamental rights. Hence,
Section 277
of the
Criminal Procedure Act, 51 of 1977
, could
survive untested to this day.
Our new Constitution, unlike its
dictatorial predecessor, is value-based. Among other things, it
guarantees the protection of
basic human rights, including the
right to life and human dignity, two basic values supported by the
spirit of
ubuntu
and protected in Sections 9 and 10
respectively. In terms of Section 35, this Constitution now commits
the state to base the
worth of human beings on the ideal values
espoused by open democratic societies the world over and not on
race colour, political,
economic and social class. Although it has
been argued that the currently high level of crime in the country
is indicative
of the breakdown of the moral fabric of society, it
has not been conclusively shown that the death penalty, which is an
affront
to these basic values, is the best available practical form
of punishment to reconstruct that moral fabric. In the second
place,
even if the end was desirable, that would not justify the
means. The death penalty violates the essential content of the
right
to life embodied in Section 9, in that it extinguishes life
itself. It instrumentalises the offender for the objectives of

state policy. That is dehumanising. It is degrading and it violates
the rights to respect for and protection of human dignity
embodied
in Section 10 of the Constitution.
Once the life of a human being is
taken in the deliberate and calculated fashion that characterises
the described methods of
execution the world over, it constitutes
the ultimate cruelty with which any living creature could ever be
treated. This extreme
level of cruel treatment of a human being,
however despicably such person might have treated another human
being, is still
inherently cruel. It is inhuman and degrading to
the humanity of the individual, as well as to the humanity of those
who carry
it out.
Taking the life of a human being
will always be reprehensible. Those citizens who kill deserve the
most severe punishment, if
it deters and rehabilitates and
therefore effectively addresses deviance of this nature. Punishment
by death cannot achieve
these objectives. The high rate of crime in
this country is indeed disturbing and the state has a duty to
protect the lives
of all citizens - including those who kill.
However, it should find more humane and effective integrated
approaches to manage
its penal system, and to rehabilitate
offenders.
The state is representative of
its people and in many ways sets the standard for moral values
within society. If it sanctions
by law punishment for killing by
killing, it sanctions vengeance by law. If it does so with a view
to deterring others, it
dehumanises the person and objectifies him
or her as a tool for crime control. This objectification through
the calculated
killing of a human being, to serve state objectives,
strips the offender of his or her human dignity and dehumanises,
such
a person constituting a violation of Section 10 of the
Constitution.
Although the Attorney General
placed great reliance on the deterrent nature of the death penalty
in his argument, it was conceded
that this has not been
conclusively proven. It has also not been shown that this form of
punishment was the best available
option for the rehabilitation of
the offender. Retaining the death penalty for this purpose is
therefore unnecessary. Section
277(1) which authorises the death
penalty under these unnecessarily inhuman and degrading
circumstances is inconsistent with
the right to life and human
dignity embodied in Sections 9 and 10 of the Constitution,
respectively, and is in direct conflict
with the values that
Section 35 aims to promote in the interpretation of these sections.
Taking the life of a person under
such deliberate and calculated
circumstances, with the methods already described in the judgement
of Chaskalson P, is cruel,
inhuman or degrading treatment or
punishment. It is inconsistent with Section 11(2) of the
Constitution. In my view, therefore,
the death penalty is
unconstitutional. Not only does it violate the right not be
subjected to cruel, inhuman or degrading treatment
or punishment,
it also violates the right to life and human dignity.
O'REGAN J:
I have read the
judgment of Chaskalson P and I agree with the order that he
proposes. However, although I agree that the death
sentence
constitutes a breach of section 11(2) of the Constitution that is
not justified in terms of section 33, it is my view
that it also
constitutes a breach of section 9 (the right to life) and section
10 (the right to dignity) for the reasons that
are given in this
judgment.
The crimes of which the two
prisoners whose case has been referred to this court have been
convicted were committed during a
robbery from a bank security
vehicle which was delivering monthly wages to the Coronation
Hospital in Johannesburg. It appears
from the judgment of the
Appellate Division that the two prisoners were part of a group of
robbers who had cold-bloodedly planned
the robbery. All the robbers
had been armed with AK-47s and had opened fire on the security
vehicle and the accompanying vehicle
when they had driven into the
hospital parking area. As a result of the shooting, two policemen
and two bank security officials
were shot dead.
There is no doubt that the crimes
committed by the two prisoners were abhorrent. Our society cannot
and does not condone brutal
murder or robbery. Perpetrators of
crimes such as these must be punished severely according to our
system of criminal justice.
In this case, the prisoners have been
tried, convicted and sentenced. The question that this court must
answer is not whether
the prisoners committed these crimes, nor
whether they should be punished. It has been established by the
proper courts that
they did commit crimes, and for that they must
be punished. What this court must consider is whether the form of
punishment
that has been imposed is constitutional. Does our
constitution permit any convicted criminal, however heinous the
crime, to
be put to death by the government as punishment for that
crime?
The Constitution entrenches
certain fundamental rights. Included amongst these are the right to
life (section 9), the right
to the respect for and protection of
dignity (section 10) and the right not to be subjected to cruel,
inhuman or degrading
punishment (section 11(2)). The prisoners
allege that the death penalty is in conflict with each of these.
The language of
each of these rights is broad and capable of
different interpretations. How is this court to determine the
content and scope
of these rights? This question is at least
partially answered by section 35(1) of the constitution which
enjoins this court
in interpreting the rights contained in the
Constitution to 'promote the values which underlie an open and
democratic society
based on freedom and equality'.
No-one could miss the
significance of the hermeneutic standard set. The values urged upon
the court are not those that have
informed our past. Our history is
one of repression not freedom, oligarchy not democracy, apartheid
and prejudice not equality,
clandestine not open government. As the
epilogue to the constitution states:
`This constitution provides a historic bridge between
the past of a deeply divided society characterised by strife,
conflict,
untold suffering and injustice, and a future founded on
the recognition of human rights, democracy and peaceful co-existence

and development opportunities for all South Africans, irrespective
of colour, race, class, belief or sex.'
In interpreting the rights
enshrined in chapter 3, therefore, the court is directed to the
future: to the ideal of a new society
which is to be built on the
common values which made a political transition possible in our
country and which are the foundation
of its new constitution. This
is not to say that there is nothing from our past which should be
retained. Of course this is
not so. As Kentridge AJ described in
the first judgment of this court (
S v Zuma
unreported
judgment of this court, 5 April 1995), many of the rights
entrenched in section 25 of the constitution concerning
criminal
justice are longstanding principles of our law, although eroded by
statute and judicial decision. In interpreting
the rights contained
in section 25, those common law principles will be useful guides.
But generally section 35(1) instructs
us, in interpreting the
constitution, to look forward not backward, to recognise the evils
and injustices of the past and to
avoid their repetition.
Section 9 of the Constitution
provides that:
'Every person shall have the right to life.'
This formulation of the right to life
is not one which has been used in the constitutions of other
countries or in international
human rights conventions. In choosing
this formulation, the drafters have specifically avoided either
expressly preserving
the death penalty, or expressly outlawing it.
In addition, they have not used the language so common in other
constitutions,
which provides that no-one may be deprived of life
arbitrarily or without due process of law.
1
To the extent that the formulation of the right is different from
that adopted in other jurisdictions, their jurisprudence
will be of
less value. The question is thus left for us to determine whether
this right, or any of the others enshrined in
chapter 3, would
prima facie
prohibit the death penalty.
In giving meaning to section 9,
we must seek the purpose for which it was included in the
Constitution.
2
This purposive or teleological approach to the interpretation of
rights may at times require a generous meaning to be given
to
provisions of chapter 3 of the Constitution, and at other times a
narrower or specific meaning. It is the responsibility
of the
courts, and ultimately this court, to develop fully the rights
entrenched in the Constitution. But that will take time.

Consequently any minimum content which is attributed to a right may
in subsequent cases be expanded and developed.
The right to life is, in one
sense, antecedent to all the other rights in the Constitution.
Without life in the sense of existence,
it would not be possible to
exercise rights or to be the bearer of them. But the right to life
was included in the Constitution
not simply to enshrine the right
to existence. It is not life as mere organic matter that the
Constitution cherishes, but the
right to human life: the right to
live as a human being, to be part of a broader community, to share
in the experience of humanity.
This concept of human life is at the
centre of our constitutional values. The constitution seeks to
establish a society where
the individual value of each member of
the community is recognised and treasured. The right to life is
central to such a society.
The right to life, thus
understood, incorporates the right to dignity. So the rights to
human dignity and life are entwined.
The right to life is more than
existence, it is a right to be treated as a human being with
dignity: without dignity, human
life is substantially diminished.
Without life, there cannot be dignity. This was recognised by the
Hungarian constitutional
court in the case in which it considered
the constitutionality of the death penalty:
`It is the untouchability and equality contained in the
right to human dignity that results in man's right to life being a
specific
right to human life (over and above animals' and artificial
subjects' right to being); on the other hand, dignity as a
fundamental
right does not have meaning for the individual if he or
she is dead. ... Human dignity is a naturally accompanying quality
of
human life.' (Decision No 23/1990, (X.31.) AB, George Feher
translation)
The right to dignity is enshrined
in our Constitution in section 10:
`Every person shall have the right to respect for and
protection of his or her dignity'.
The importance of dignity as a
founding value of the new Constitution cannot be overemphasised.
Recognising a right to dignity
is an acknowledgement of the
intrinsic worth of human beings: human beings are entitled to be
treated as worthy of respect
and concern.
3
This right therefore is the foundation of many of the other rights
that are specifically entrenched in chapter 3. As Brennan
J held
when speaking of forms of cruel and unusual punishments in the
context of the American constitution:
`The true significance of these punishments is that
they treat members of the human race as non-humans, as objects to be
toyed
with and discarded. They are thus inconsistent with the
fundamental premise of the Clause that even the vilest criminal
remains
a human being possessed of common human dignity.' (
Furman
v Georgia
[1972] USSC 170
;
408 US 238
at 272,3 (1972))
Respect for the dignity of all
human beings is particularly important in South Africa. For
apartheid was a denial of a common
humanity. Black people were
refused respect and dignity and thereby the dignity of all South
Africans was diminished. The new
constitution rejects this past and
affirms the equal worth of all South Africans. Thus recognition and
protection of human
dignity is the touchstone of the new political
order and is fundamental to the new constitution.
But human dignity is important to
all democracies. In an aphorism coined by Ronald Dworkin `Because
we honour dignity, we demand
democracy'.
4
Its importance was recognised too by Cory J in
Kindler v Canada
(1992) 6 CRR (2nd) 193
(SCC) at 237 in which he held that `[i]t is
the dignity and importance of the individual which is the essence
and the cornerstone
of democratic government'.
5
The Attorney-General argued that
the prisoners, and others like them, who are convicted of crimes
for which the death penalty
is currently competent, have forfeited
their right to life and dignity. This cannot be correct. It is a
fundamental premise
of our constitution that the rights in chapter
3 are available to all South Africans no matter how atrocious their
conduct.
As Gubbay CJ held in
Catholic Commission for Justice
and Peace, Zimbabwe v Attorney-General, Zimbabwe
1993 (4) SA
239
(ZS) at 247 g -h:
`It cannot be doubted that prison walls do not keep out
fundamental rights and protections. Prisoners are not, by mere
reason
of a conviction, denuded of all the rights they otherwise
possess. No matter the magnitude of the crime, they are not reduced
to non-persons. They retain all basic rights, save those inevitably
removed from them by law, expressly or by implication.'
It must be emphasised that the
entrenchment of a Bill of Rights, enforceable by a judiciary, is
designed, in part, to protect
those who are the marginalised, the
dispossessed and the outcasts of our society. They are the test of
our commitment to a
common humanity and cannot be excluded from it.
Are the rights to life and
dignity breached by the death penalty? The death sentence has been
part of South African law since
the colonial era. Not only has the
law permitted the death sentence, but it has been regularly imposed
by courts and carried
out by the government. For many years, South
Africa had the doubtful honour of being a world leader in the
number of judicial
executions carried out. Although there is some
uncertainty about the statistics, it appears that between 1981 and
1990 approximately
1100 people were executed in South Africa,
including the Transkei, Ciskei, Bophuthatswana and Venda.
6
The death sentence was imposed
sometimes for crimes that were motivated by political ideals. In
this way the death penalty came
to be seen by some as part of the
repressive machinery of the former government. Towards the end of
the 1980s there were several
major public campaigns to halt the
execution of people who were perceived to be political opponents of
the government. There
is no doubt that these campaigns to prevent
the execution of amongst others, the 'Sharpeville Six' and the
'Upington 26' were
partly responsible for the government's decision
in 1990 to suspend the implementation of sentences of death.
The purpose of the death penalty
is to kill convicted criminals. Its very purpose lies in the
deprivation of existence. Its
inevitable result is the denial of
human life. It is hard to see how this methodical and deliberate
destruction of life by
the government can be anything other than a
breach of the right to life.
The implementation of the death
penalty is also a denial of the individual's right to dignity. The
execution of the death penalty
was described by Professor Chris
Barnard as follows:
`The man's spinal cord will rupture at the point where
it enters the skull, electrochemical discharges will send his limbs
flailing
in a grotesque dance, eyes and tongue will start from the
facial apertures under the assault of the rope and his bowels and
bladder
may simultaneously void themselves to soil the legs and drip
on the floor....' (
Rand Daily Mail
12 June 1978, cited in
Appellants' heads)
This frank description of the
execution process leaves little doubt that it is one which is
destructive of human dignity. As
Cory J held in
Kindler v Canada
(1992) 6 CRR (2nd) 193
(SCC) at 241:
`The death penalty not only deprives the prisoner of
all vestiges of human dignity, it is the ultimate desecration of the
individual
as a human being. It is the annihilation of the very
essence of human dignity.'
But it is not only the manner of
execution which is destructive of dignity, the circumstances in
which convicted criminals await
the execution of their sentence
also constitutes a breach of dignity. These circumstances have been
amply and aptly described
by Gubbay CJ in
Catholic Commission
for Justice and Peace, Zimbabwe v Attorney-General, Zimbabwe
1993(4) SA 239 (ZS) at 268-9. Although little evidence has been
placed before us to describe the experience of condemned prisoners

in South Africa, it seems all too probable that it resembles the
conditions described by Gubbay CJ. Indeed, the moratorium
on the
implementation of the death sentence described by Chaskalson P has
probably aggravated the conditions of condemned prisoners

considerably.
Section 277
of the
Criminal
Procedure Act is
therefore not only a breach of section 11(2) of
the Constitution as held by Chaskalson P, but it is also a breach
of section
9 (the right to life) and section 10 (the right to
dignity). It is unnecessary and would be inappropriate to consider
the further
scope of these rights.
The Constitution does recognise
in section 33 that the rights it entrenches may be limited by law
of general application if
a law is reasonable and justifiable (and
in some circumstances, necessary) in an open and democratic society
based on freedom
and equality. The infringement of the rights to
life and dignity occasioned by
section 277
of the
Criminal
Procedure Act needs
to be measured against this test. In this
regard, it should be noted that a law which infringes the right to
dignity must be
shown to be a reasonable, justifiable and necessary
limitation, whereas a law which contains a limitation upon the
right to
life need only be shown to be reasonable and justifiable.
The purpose of the bifurcated
levels of justification need not detain us here. What is clear is
that
section 33
introduces different levels of scrutiny for laws
which cause an infringement of rights. The requirement of
reasonableness and
justifiability which attaches to some of the
section 33
rights clearly envisages a less stringent constitutional
standard than does the requirement of necessity. In both cases, the
enquiry concerns proportionality: to measure the purpose, effects
and importance of the infringing legislation against the
infringement caused. In addition, it will need to be shown that the
ends sought by the legislation cannot be achieved sufficiently
and
realistically by other means which would be less destructive of
entrenched rights. Where the constitutional standard is
necessity,
the considerations are similar, but the standard is more stringent.
In determining whether the
breaches of
sections 9
and
10
are justified in terms of
section 33
,
the relevant considerations are the same as those traversed by
Chaskalson P at paragraphs 116 - 131 of his judgment albeit
only in
the context of a breach of
section 11(2).
The Attorney-General
argued that the purpose of
section 277
was the deterrence and
prevention of crime, and retribution. Although deterrence is an
important goal, as Chaskalson P has
described, the deterrent effect
of the death penalty remains unproven, perhaps unprovable.
The question of retribution is a
more complex one. I agree with Chaskalson P that in a democratic
society retribution as a goal
of punishment should not be given
undue weight. Indeed, I am unconvinced that, where the punishment
is held to constitute a
breach of a fundamental right, retribution
would ever, on its own, be a sufficient ground for justification.
As Marshall J
noted in
Furman v Georgia
[1972] USSC 170
;
408 US 238
at 344-5
(1972):
`To preserve the integrity of the Eighth Amendment, the
Court has consistently denigrated retribution as a permissible goal
of
punishment. It is undoubtedly correct that there is a demand for
vengeance on the part of many persons in a community against one
who
is convicted of a particularly offensive act. At times a cry is
heard that morality requires vengeance to evidence society's

abhorrence of the act. But the Eighth Amendment is our insulation
from our baser selves. The `cruel and unusual' language limits
the
avenues through which vengeance can be channelled. Were this not so,
the language would be empty and a return to the rack
and other
tortures would be possible in a given case.'
It remains then to balance the
purposes of
section 277
with the infringement of
sections 9
and
10
it causes. In this exercise, it is undeniable that
sections 9
and
10
are rights which lie at the heart of our constitutional
framework and that
section 277
grievously infringes the ambit of
these rights. They weigh very heavily in the scales of
proportionality. On the other hand,
while the goals of deterrence
and prevention which are the purpose of
section 277
are important
legislative purposes, it has not been satisfactorily demonstrated
that they could not be sufficiently and realistically
achieved by
other means. After a careful consideration of the nature of the
rights, the extent of the infringement of those
rights, and the
purposes of
section 277
, I remain unpersuaded that
section 277
is a
constitutionally acceptable limitation upon the rights to life and
dignity.
Section 33(1)(b)
provides that,
in addition to being reasonable and justifiable (and where
appropriate, necessary) a limitation upon a right
should not negate
the essential contents of the right in question. As
section 277
does not meet the requirements of reasonableness, justifiability
and necessity, it is not necessary and it would be inadvisable
to
consider whether it negates the essential contents of the rights in
question.
In conclusion, then, the death
penalty is unconstitutional. It is a breach of the rights to life
and dignity that are entrenched
in
sections 9
and
10
of our
Constitution, as well as a breach of the prohibition of cruel,
inhuman and degrading punishment contained in section
11(2). The
new Constitution stands as a monument to this society's commitment
to a future in which all human beings will be
accorded equal
dignity and respect. We cannot postpone giving effect to that
commitment.
SACHS J
: I agree fully
with the judgment of the President of the court, and wish merely to
elaborate on two matters, both of emphasis
rather than substance,
which I feel merit further treatment.
The first relates to the balance
between the right to life and the right to dignity. The judgment
appropriately regards the
two rights as mutually re-enforcing, but
places greater reliance on the prohibition against cruel, inhuman
or degrading punishment
than it does on the right to life. For
reasons which I will outline, I think the starting-off point for an
analysis of capital
punishment should be the right to life.
Secondly, I think it important to
say something about the source of values which, in terms of section
35 of the Constitution,
our interpretation is required to promote.
The Right to Life and Proportionality
Decent people throughout the
world are divided over which arouses the greatest horror: the
thought of the State deliberately
killing its citizens, or the idea
of allowing cruel killers to co-exist with honest citizens. For
some, the fact that we cold-bloodedly
kill our own kind, taints the
whole of our society and makes us all accomplices to the
premeditated and solemn extinction of
human life. For others, on
the contrary, the disgrace is that we place a higher value on the
life and dignity of the killer
than on that of the victim. A third
group prefer a purely pragmatic approach which emphasises not the
moral issues, but the
inordinate stress that capital punishment
puts on the judicial process and, ultimately, on the Presidency, as
well as the morbid
passions it arouses in the public; from a purely
practical point of view, they argue, capital punishment appears to
offer an
illusory solution to crime, and as such actually detracts
from really effective measures to protect the public.
We are not called upon to decide
between these positions. They are essentially emotional, moral and
pragmatic in character and
will no doubt occupy the attention of
the Constitutional Assembly. Our function is to interpret the text
of the Constitution
as it stands. Accordingly, whatever our
personal views on this fraught subject might be, our response must
be a purely legal
one.
This court is unlikely to get
another case which is emotionally and philosophically more elusive,
and textually more direct.
Section 9 states: "Every person
shall have the right to life." These unqualified and unadorned
words are binding
on the State (sections 4 and 7) and, on the face
of it, outlaw capital punishment. Section 33 does allow for
limitations on
fundamental rights; yet, in my view, executing
someone is not limiting that person's life, but extinguishing it.
Life is different. In the vivid
phrase used by Mahomed J in the course of argument, the right to
life is not subject to incremental
invasion. Life cannot be
diminished for an hour, or a day, or 'for life'. While its
enjoyment can be qualified, its existence
cannot. Similarly, death
is different. It is total and irreversible. Just, as there are no
degrees of life, so there are no
degrees of death (though, as we
shall see, there were once degrees of severity in relation to how
the sentence of death should
be carried out). A level of
arbitrariness and the possibilities of mistake that might be
inescapable and therefore tolerable
in relation to other forms of
punishment, burst the parameters of constitutionality when they
impact on the deliberate taking
of life. The life of any human
being is inevitably subject to the ultimate vagaries of the due
processes of nature; our Constitution
does not permit it to be
qualified by the unavoidable caprices of the due processes of law.
5
In the case of other
constitutional rights, proportionate balances can be struck between
the exercise of the right and permissible
derogations from it. In
matters such as torture, where no derogations are allowed,
thresholds of permissible and impermissible
conduct can be
established. When it comes to execution, however, there is no scope
for proportionality, while the only relevant
threshold is,
tragically, that to eternity.
Even if one applies an objective
approach in relation to the enjoyment of the right to life, namely,
that the State is under
a duty to create conditions to enable all
persons to enjoy the right, in my view this cannot mean that the
State's function
can be extended to encompass complete, intentional
and avoidable obliteration of any person's subjective right.
Subject to
further argument on the matter, my initial view is that
the objective approach can be used to qualify the subjective
enjoyment
of the right, but not to eliminate it completely, and
certainly not to eliminate the subject. It can provide the basis
for
limiting enjoyment of other subjective rights - to dignity,
personal freedom, movement - for a period, or in relation to a

concrete situation, or in respect of a physical space, if the
requirements of section 33 are met. Yet, life by its very nature

cannot be restricted, qualified, abridged, limited or derogated
from in the same way. You are either alive or dead.
In my view, section 33 permits
limitations on rights, not their extinction. Our Constitution in
this sense is different from
those that expressly authorise
deprivation of life if due process of law is followed, or those
that prohibit the arbitrary
taking of life. The unqualified
statement that 'every person has the right to life', in effect
outlaws capital punishment.
Instead of establishing a
constitutional framework within which the State may deprive
citizens of their lives, as it could
have done, our Constitution
commits the State to affirming and protecting life. Because section
33 is not concerned with creating
circumstances in which the right
of any person may be disregarded altogether, nor with establishing
exceptions which qualify
the nature of the right itself, or exclude
its operation, it cannot be invoked as an authorization for capital
punishment.
A full conceptualization of the
right to life will have to await examination of a multitude of
complex issues, each of which
has its own contextual setting and
particularities. In contrast to capital punishment, there are
circumstances relating to
the right to life where proportionality
could well play an important role in balancing out competing
interests. Whether or
not section 33 would be applicable in each
case, or whether proportionality will enter into the definition of
the ambit of
the right itself, or whether it relates simply to
competition between two or more people to exercise the right when
it is under
immediate threat, need not be decided here. Thus, the
German Constitutional Court has relied heavily on the principle of
proportionality
in relation to the question of when personhood and
legally protected life begin and, in particular of how to balance
foetal
rights as against the rights of the woman concerned.
6
Force used by the State in cases of self-defence or dealing with
hostage-takers or mutineers, must be proportionate to the
danger
apprehended; the issue arises because two or more persons compete
for the right to life; for the one to live, the other
must die. The
imminence of danger is fundamental: to kill an assailant or
hostage-taker or prisoner of war after he or she
has been disarmed,
is regarded as murder.
Executing a trussed human being
long after the violence has ended, totally lacks proportionality in
relation to the use of force,
and does not fall within the
principles of self-defence. From one point of view capital
punishment, unless cruelly performed,
is a contradiction in terms.
The 'capital' part ends rather than expresses the 'punishment', in
the sense that the condemned
person is eliminated, not punished. A
living being held for years in prison is punished; a corpse cannot
be punished, only
mutilated. Thus, execution ceases to be a
punishment of a human being in terms of the Constitution, and
becomes instead the
obliteration of a sub-human from the purview of
the Constitution.
At its core, constitutionalism is
about the protection and development of rights, not their
extinction. In the absence of the
clearest contextual indications
that the framers of the Constitution intended that the State's
sovereignty should be so extended
as to allow it deliberately to
take of the life of its citizens, Section 9 should be read to mean
exactly what it says: Every
person shall have the right to life. If
not, the killer unwittingly achieves a final and perverse moral
victory by making the
state a killer too, thus reducing social
abhorrence at the conscious extinction of human beings.
The Source of Values
The second issue that caused me
special concern was the source of the values that we are to apply
in assessing whether or not
capital punishment is a cruel, inhuman
or degrading punishment as constitutionally understood. The matter
was raised in an
amicus brief and argued orally before us by Ms.
Davids on behalf of the Black Advocates Forum.
Her main contention was that we
should not pronounce on the subject of capital punishment until we
had been apprised by sociological
analysis of the relevant
expectations, sensitivities and interests of society as a whole. In
the past, she stated, the all-white
minority had imposed
Eurocentric values on the majority, and an all-white judiciary had
taken cognisance merely of the interests
of white society. Now, for
the first time, she added, we had the opportunity to nurture an
open and democratic society and
to have due regard to an emerging
national consensus on values to be upheld in relation to
punishment.
Many of the points she made had a
political rather than a legal character, and as such should have
been directed to the Constitutional
Assembly rather than to the
Constitutional Court. Nevertheless, much of her argument has a
bearing on the way this court sees
its functions, and deserves the
courtesy of a reply.
To begin with, I wish firmly to
express my agreement with the need to take account of the
traditions, beliefs and values of
all sectors of South African
society when developing our jurisprudence.
In broad terms, the function
given to this court by the Constitution is to articulate the
fundamental sense of justice and right
shared by the whole nation
as expressed in the text of the Constitution. The Constitution was
the first public document of
legal force in South African history
to emerge from an inclusive process in which the overwhelming
majority were represented.
Reference in the Constitution to the
role of public international law [sections 35(1) and 231]
underlines our common adherence
to internationally accepted
principles. Whatever the status of earlier legislation and
jurisprudence may be, the Constitution
speaks for the whole of
society and not just one section.
The preamble, postamble and the
principles of freedom and equality espoused in sections 8, 33 and
35 of the Constitution, require
such an amplitude of vision. The
principle of inclusivity shines through the language provisions in
section 3, and underlies
the provisions which led to the adoption
of the new flag and anthem, and the selection of public holidays.
The secure and progressive
development of our legal system demands that it draw the best from
all the streams of justice in
our country. This would include
benefiting from the learning of those judges who in the previous
era managed to articulate
a sense of justice that transcended the
limits of race, as well as acknowledging the challenging writings
of academics such
as the late Dr. Barend van Niekerk, who bravely
broke the taboos on criticism of the legal system.
7
Above all, however, it means
giving long overdue recognition to African law and legal thinking
as a source of legal ideas, values
and practice. We cannot,
unfortunately, extend the equality principle backwards in time to
remove the humiliations and indignities
suffered by past
generations, but we can restore dignity to ideas and values that
have long been suppressed or marginalized.
Redressing the balance in a
conceptually sound, methodologically secure and functionally
efficient way, will be far from easy.
Extensive research and public
debate will be required. Legislation will play a key role; indeed,
the Constitution expressly
acknowledges situations where legal
pluralism based on religion can be recognised [14(3)], and where
indigenous law can be
applied (s.181). Constitutional Principle
XIII declares that "......
Indigenous law, like common law,
shall be recognised and applied by the courts, subject to the
fundamental rights contained
in the Constitution and to legislation
dealing specifically therewith
".
Yet the issue raised by Ms Davids
goes beyond the question of achieving recognition of different
systems of personal law.
In interpreting Chapter 3 of the
Constitution, which deals with fundamental rights, all courts must
promote the values of an
open and democratic society based on
freedom and equality [s.35(1)]. One of the values of an open and
democratic society is
precisely that the values of all sections of
society must be taken into account and given due weight when
matters of public
import are being decided. Ms. David's concern is
that when it comes to interpreting Chapter 3, and in particular,
the concept
of punishment, the values of only one section of the
community are taken into account.
Paul Sieghart points out that
"
the hallmarks of a democratic society are pluralism,
tolerance and broad-mindedness. Although individual interests must
on occasion
be subordinated to those of a group, democracy does not
mean that the views of a majority must always prevail: a balance
must
be achieved which ensures the fair and proper treatment of
minorities and avoids any abuse of a dominant position
".
8
The principle that cognisance must be taken of minority opinions
should apply with at least equal force to majority opinions;
if one
of the functions of the Constitution is to protect unpopular
minorities from abuse, another must surely be to rescue
the
majority from marginalization.
In a democratic society such as
we are trying to establish, this is primarily the task of
Parliament, where the will of the
majority can be directly
expressed within the framework of a system of fundamental rights.
Our function as members of this
court - as I see it - is, when
interpreting the Constitution, to pay due regard to the values of
all sections of society, and
not to confine ourselves to the values
of one portion only, however, exalted or subordinate it might have
been in the past.
It is a distressing fact that our
law reports and legal textbooks contain few references to African
sources as part of the general
law of the country. That is no
reason for this court to continue to ignore the legal institutions
and values of a very large
part of the population, moreover, of
that section that suffered the most violations of fundamental
rights under previous legal
regimes, and that perhaps has the most
to hope for from the new constitutional order.
Appropriate source material is
limited and any conclusions that individual members of this court
might wish to offer would inevitably
have to be tentative rather
than definitive. We would certainly require much fuller research
and argument than we had in the
present case. The paucity of
materials, however, is a reason for putting the issue on the
agenda, not a justification for postponing
it.
The evolution of core values in
all sections of the community is particularly relevant to the
characterization of what at any
moment are regarded as cruel,
inhuman and degrading punishments [s.11(2)]. In my view, s.35(1)
requires this court not only
to have regard to public international
law and foreign case law, but also to all the dimensions of the
evolution of South African
law which may help us in our task of
promoting freedom and equality. This would require reference not
only to what in legal
discourse is referred to as 'our common law'
but also to traditional African jurisprudence.
I must stress that what follows
relates to matters not properly canvassed in argument. The
statements I make should not be regarded
as an attempt on my part
to 'lay down the law' on subjects that might well be controversial.
Rather, the materials are presented
for their possible relevance to
the search for core and enduring values consistent with the text
and spirit of the Constitution.
It is unfortunate they were not
placed before us to enable their reliability and their merits to be
debated; they are intended
to indicate that, speaking for myself,
these are the kinds of scholarly sources which I would have
regarded as helpful in determining
questions such as the present
one, if Ms. Davids had presented them to us rather than complain
about their absence. I might
add that there is nothing to indicate
that had these sources been properly presented and subjected to the
rigorous analysis
which our judicial procedure calls for, the
decision of this Court would have been different. There does not
appear to be any
foundation for her plea that we postpone the
matter. On the contrary, the materials that I will refer to point
to a source
of values entirely consistent with the overall thrust
of the President's judgment, and, in particular, with his reference
to
the constitutionally acknowledged principle of
ubuntu
.
9
Our libraries contain a large
number of studies by African and other scholars of repute, which
delineate in considerable detail
how disputes were resolved and
punishments meted out in traditional African society. There are a
number of references to capital
punishment and I can only repeat
that it is unfortunate that their import was never canvassed in the
present matter.
In the first place, the sources
indicate that it is necessary to acknowledge that systems of law
enforcement based on rational
procedures were well entrenched in
traditional society. In his classic study of the Tsonga-speaking
people, Henri Junod observes
that "
... the Bantus possess a
strong sense of justice. They believe in social order and in the
observance of the laws, and, although
these laws were not written,
they are universal and perfectly well known
".
10
The Cape Law Journal, in a long and admiring report on what it
refers to as a Kafir Law Suit, declares that in a typical trial

'the Socratic method of debate appears in all its perfection.'
11
John Henderson Soga points out that offences were considered to be
against the community or tribe rather than the individual,
and
punishment of a constructive or corrective nature was administered
for disturbing the balance of tribal life.
12
More directly for our purposes,
the materials suggest that amongst the Cape Nguni, the death
penalty was practically confined
to cases of suspected witchcraft,
and was normally spontaneously carried out after accusation by the
diviners.
13
Soga says that the death penalty was never imposed, the reasoning
being as follows: 'Why sacrifice a second life for one already

lost?'
14
Professor Z.K. Mathews is in broad agreement.
15
The Cape Law Journal notes that summary executions were usually
inflicted for assault on the wives of chiefs or aggravated
cases of
witchcraft, but otherwise the death sentence 'seldom followed even
murder, when committed without the aid of supernatural
powers; and
as banishment, imprisonment and corporal punishment are all unknown
in (African) jurisprudence, the property of
the people constitutes
the great fund out of which debts of justice are paid'.
16
Similar approaches were
apparently followed in other African communities. The Sotho King
Moshoeshoe was said to be well known
for his opposition to capital
punishment, even for supposed witchcraft,
17
as was Montshiwa during his long reign as King of the Barolong.
18
The absence of capital punishment among the Zulu people apparently
angered Shepstone, Lieutenant Governor of Natal. Donald
Morris
writes as follows:
'Hearken to Shepstone on November
25, 1850, substituting capital punishment for the native system of
cattle fines in the case
of murder:
"...
Know ye all .... a man's life has no price : no cattle can pay for
it. He who intentionally kills another, whether
for Witchcraft or
otherwise, Shall die himself."'
19
Thus, if these sources are
reliable, it would appear that the relatively well-developed
judicial processes of indigenous societies
did not in general
encompass capital punishment for murder. Such executions as took
place were the frenzied, extra-judicial
killings of supposed
witches, a spontaneous and irrational form of crowd behaviour that
has unfortunately continued to this
day in the form of necklacing
and witch-burning. In addition, punishments by military leaders in
terms of military discipline
were frequently of the harshest kind
and accounted for the lives of many persons. Yet, the sources
referred to above indicate
that, where judicial procedures were
followed, capital punishment was in general not applied as a
punishment for murder.
In seeking the kind of values
which should inform our broad approach to interpreting the
Constitution, I have little doubt as
to which of these three
contrasted aspects of tradition we should follow and which we
should reject. The rational and humane
adjudicatory approach is
entirely consistent with and re-enforcing of the fundamental rights
enshrined in our Constitution;
the exorcist and militarist concepts
are not.
We do not automatically invoke
each and every aspect of traditional law as a source of values,
just as we do not rely on all
features of the common law. Thus, we
reject the once powerful common law traditions associated with
patriarchy and the subordination
of servants to masters, which are
inconsistent with freedom and equality, and we uphold and develop
those many aspects of the
common law which feed into and enrich the
fundamental rights enshrined in the Constitution. I am sure that
there are many aspects
and values of traditional African law which
will also have to be discarded or developed in order to ensure
compatibility with
the principles of the new constitutional order.
It is instructive to look at the
evolution of values in the colonial settlement as well as in
African society. In the Dutch
settlement, as yet unaffected by the
changes sweeping Europe, torture was used until the end of the 18th
century as an integral
part of the judicial process.
20
Persons were not only condemned to death, the judges specified in
detail gruesome modes of execution designed to produce maximum
pain
and greatest indignity over the longest period of time. The concept
of a dignified execution was seen as a contradiction
in terms. The
public was invited to witness the lingering death, the mutilation
and the turning of human beings into carrion
for the birds. This is
logical. If executions are to deter, they should receive the
maximum publicity, and the killers should
undergo an agony equal to
that to which they subjected their victims.
Yet the British colonial
administration that took over at the time of the Napoleonic wars,
adopted a different position. Torture
was abolished. The multiple
degrees of severity of capital punishment were replaced by the
single relatively swift mode of
hanging. The reason for this was
that torture and cruel modes of execution were regarded as barbaric
in themselves and degrading
to the society which practised them.
The incumbent judges protested that whatever might have been
appropriate in Britain, in
the conditions of the Cape to rely
merely on hangings, corporal punishment and prison was to invite
slave uprisings and mayhem.
The public executioner was so
distressed that he hanged himself. All this is a matter of record.
21
Two centuries have passed since
then, and it would not be surprising if the framers of the
Constitution felt that a further
qualitative evolution had taken
place. Current practices in the Southern African region as a whole
with regard to capital punishment,
testify to such an evolution.
Information placed before this court
22
showed that of six countries sharing a frontier with South Africa,
only one has carried out executions in recent years (Zimbabwe).
The
last judicial execution in Lesotho was in 1984, in Swaziland in
1983 and in Botswana in 1986, although capital punishment
still
remains on the statute books and people have in fact been sentenced
to death in these countries. Mozambique and Namibia
both expressly
outlaw capital punishment in their constitutions.
The positions adopted by the
framers of the Mozambican and Namibian constitutions were not
apparently based on bending the knee
to foreign ideas, as was
implicit in Ms. David's contention, but rather on memories of
massacres and martyrdom in their own
countries. As Churchill is
reputed to have said, the grass never grows green under the
gallows.
23
Germany after Nazism, Italy after fascism, and Portugal, Peru,
Nicaragua, Brazil, Argentina, the Philippines and Spain all

abolished capital punishment for peacetime offences after emerging
from periods of severe repression. They did so mostly through

constitutional provisions.
24
It is not unreasonable to think
that similar considerations influenced the framers of our
Constitution as well. In avoiding
any direct or indirect reference
to the death sentence, they were able to pay due regard to the fact
that one of this country's
greatest assets was the passion for
freedom, democracy and human rights amongst the generation of
persons who fought hardest
against injustice in the past. Included
in this was a deep respect, amounting to veneration, for life. The
emerging nation
could squander this precious asset at its peril.
The framers could not have been unaware of the fact that the time
to guard
against future repression was when memories of past
injustice and pain were still fresh. If they chose sweeping
language in
favour of life, this could well in part have been
because of a realisation that this was the moment to remove any
temptation
in coming years to attempt to solve grave social and
political problems by means of executing opponents.
Historically, constitutionalism
was a product of the age of enlightenment. It was associated with
the overthrow of arbitrary
power and the attempt to ensure that
government functioned according to established principles and
processes and in the light
of enduring values. It came together
with the abolition of torture and the opening up of dungeons. It
based itself on the twin
propositions that all persons had certain
inherent rights that came with their humanity, and that no one had
a God-given right
to rule over others.
The second great wave of
constitutionalism after World War II, was also a reaction to gross
abuse of power, institutionalised
inhumanity and organised
disrespect for life. Human rights were not merely declared to
exist: against the background of genocide
and crimes against
humanity committed in the name of a racial ideology linked to state
sovereignty, firm constitutional limits
were placed on state power.
In particular, the more that life had been cheapened and the human
personality disregarded, the
greater the entrenchment of the rights
to life and dignity.
Constitutionalism in our country
also arrives simultaneously with the achievement of equality and
freedom, and of openness,
accommodation and tolerance. When
reviewing the past, the framers of our Constitution rejected not
only the laws and practices
that imposed domination and kept people
apart, but those that prevented free discourse and rational debate,
and those that
brutalised us as people and diminished our respect
for life.
Accordingly, the idealism that we
uphold with this judgment is to be found not in the minds of the
judges, but in both the explicit
text of the Constitution itself,
and the values it enshrines. I have no doubt that even if, as the
President's judgment suggests,
the framers subjectively intended to
keep the issue open for determination by this court, they
effectively closed the door
by the language they used and the
values they required us to uphold. It is difficult to see how they
could have done otherwise.
In a founding document dealing with
fundamental rights, you either authorize the death sentence or you
do not. In my view,
the values expressed by section 9 are
conclusive of the matter. Everyone, including the most abominable
of human beings, has
the right to life, and capital punishment is
therefore unconstitutional.
CASE NO
: CCT/3/94
COUNSEL FOR APPLICANT
: W.
Trengove SC
GJ Marcus
PHJ Van Vuuren
INSTRUCTED BY
: GM Budlender
NDB Orleyn-Sekete
Legal Resources Center
COUNSEL FOR RESPONDENT
: KPCO
Von Lieres und Wilkau SC
TP McNally SC
JSM Henning SC
HE Van Jaarsveld
R Bhika
RJ Chinner
PP Stander
AJ Van Rensburg
AAL Neill
PJ Wasserman
COUNSEL FOR THE GOVERNMENT OF
THE REPUBLIC OF SOUTH AFRICA
:
G Bizos SC
L M Molopa
INSTRUCTED BY
: The State
Attorney
COUNSEL FOR AMICUSCURIAE
-
BLACK ADVOCATES FORUM (BAFO)
:
FE Davids
GM Makhanya
INSTRUCTED BY
: Nat A Victor
COUNSEL FOR AMICUS CURIAE
-
LAWYERS FOR HUMAN RIGHTS
,
CENTRE FOR APPLIED LEGAL
STUDIES, AND THE SOCIETY FOR
THE ABOLITION OF THE DEATH
PENALTY IN SOUTH AFRICA
: DM
Davis
DI Berger
INSTRUCTED BY
: A Motala &
S Ebrahim
COUNSEL FOR AMICUS
CURIAE - IAN GLAUBER
: E Zar SC
INSTRUCTED BY
: K Mundell
1
The last execution in South
Africa occurred on 14 November 1989. See infra note 26.
2
This
information was contained in the written argument filed on behalf of
the South African Government and was not disputed.
3
The
mental anguish suffered by convicted persons awaiting the death
sentence is well documented. A prolonged delay in the execution
of a
death sentence may in itself be cause for the invalidation of a
sentence of death that was lawfully imposed. In India, Zimbabwe
and
Jamaica, where the death sentence is not unconstitutional, sentences
of death have been set aside on these grounds. The relevant

authorities are collected and discussed by Gubbay CJ in Catholic
Commission for Justice and Peace in Zimbabwe v Attorney-General,

Zimbabwe and Others
1993 (4) SA 239
(ZSC), and by Lord Griffiths in
Pratt v Attorney-General for Jamaica
[1993] 3 WLR 995
(JPC).
4
These
words are taken from the first paragraph of the provision on
National Unity and Reconciliation with which the Constitution

concludes. Section 232(4) provides that for the purposes of
interpreting the Constitution, this provision shall be deemed to
be
part of the substance of the Constitution, and shall not have a
lesser status than any other provision of the Constitution.
5
Section
4(1) of the Constitution.
6
Constitutional Court Case No. CCT/5/94 (5 April 1995).
7
Id. at para. 15.
8
(1985) 13 CRR 64
at 103. As O'Regan J points out in her concurring
judgment, there may possibly be instances where the "generous"
and
"purposive" interpretations do not coincide. That
problem does not arise in the present case.
9
Jaga v Dönges, N.O. and Another
1950 (4) SA 653
(A) at 662-663.
10
Minister of Home Affairs (Bermuda) v Fisher
[1980] AC 319
(PC) at
328-329.
11
In
the analysis that follows sections 8, 9 and 10 are treated together
as giving meaning to section 11(2), which is the provision
of
Chapter Three that deals specifically with punishment.
12
Per
Schreiner JA in Jaga v Dönges, N.O. and Another,
supra
note 9, at 662G-H.
13
Attorney-General,
Eastern Cape v Blom and Others
1988 (4) SA 645
(A) at 668H-669F;
Westinghouse Brake & Equipment (Pty) Ltd v Bilger Engineering
(Pty) Ltd
1986 (2) SA 555
(A) at 562C-563A.
14
[1992] UKHL 3
;
1993 AC 593
HL (E).
15
Per
Lord Browne-Wilkinson at 634D-E, who went on to say that "as at
present advised I cannot foresee that any statement other
than the
statement of the Minister or other promoter of the Bill is likely to
meet these criteria".
16
Id.
at
637 F.
17
ROTUNDA
AND NOWAK, TREATISE ON CONSTITUTIONAL LAW: SUBSTANCE AND PROCEDURE
§23.6 (2d ed. 1992).
18
In
the decision on the constitutionality of life imprisonment, [1977]
45 BVerfGE 187, the German Federal Constitutional Court
took into
account that life imprisonment was seen by the framers of the
constitution as the alternative to the death sentence
when they
decided to abolish capital punishment. KOMMERS, THE CONSTITUTIONAL
JURISPRUDENCE OF THE FEDERAL REPUBLIC OF GERMANY
315 (1989).
19
Reference re s.94(2) of the Motor Vehicle Act (British Columbia)
(1986) 18 CRR 30
at 47-50; United States v Cotroni
(1990) 42 CRR 101
at 109; Mahe v Alberta
(1990) 46 CRR 193
at 214.
20
Irwin Toy Ltd. v Quebec (AG)
(1989) 39 CRR 193
at 241.
21
H
M SEERVAI, CONSTITUTIONAL LAW OF INDIA, 3rd ed. (1983) Vol. I, para.
2.35 et seq.
22
(1950)
SCR 88
at 111, as cited in Seervai, id., Vol. II, para. 24.7, note
25.
23
Article
32 of the Vienna Convention of Treaties 1969, 8 ILM 679 (1969)
permits the use of travaux préparatoires for the
purpose of
interpreting treaties. For examples of the application of this
principle, see Keith Cox v Canada, United Nations Committee
on Human
Rights, Communication No. 539/1993, 3 November 1993, at 19, stating:
Nonetheless, when giving a broad interpretation to any human rights
treaty, care must be taken not to frustrate or circumvent
the
ascertainable will of the drafters. Here the rules of interpretation
set forth in article 32 of the Vienna Convention on
the Law of
Treaties help us by allowing the use of the travaux préparatoires.
Ng v Canada, United Nations Committee on Human
Rights, Communication No 469/1991, 5 November 1993, at 9; Young,
James and Webster
v United Kingdom
(1981) 3 EHRR 20
, para. 166;
Lithgow v United Kingdom
(1986) 8 EHRR 329
, para. 117; and more
generally J.G. STARKE, INTRODUCTION TO INTERNATIONAL LAW 481 (10th
ed., Butterworths)(1989).
24
Reference
re s.94(2) of the Motor Vehicle Act (British Columbia),
supra
note 19, at 49.
25
The
brief account that follows is taken from the written submissions of
the South African Government. These facts were not disputed
at the
hearing.
26
Address
to Parliament on 2 February 1990. In this speech it was said that
the last execution in South Africa had been on 14 November
1989.
27
South
African Law Commission, Interim Report on Group and Human Rights,
Project 58, August 1991, para. 7.31.
28
"The
Commission ... considers that a Solomonic solution is necessary: a
middle course between the retention of capital punishment
and the
abolition thereof must be chosen in the proposed bill of rights."
Id. at 7.33.
29
Id.
at para. 7.36.
30
Id.
at para. 7.37.
31
South
African Government Heads of Argument, Vol 1, authorities, 32-34.
32
Id.
33
This
is apparent from the reports of the Technical Committee on
Fundamental Rights and, in particular, the Fourth to the Seventh

reports, which were brought to our attention by counsel. The reports
show that the question whether the death penalty should
be made an
exception to the right to life was "up for debate" in the
Negotiating Council. The Sixth Report contained
the following
references to the right to life:
Life: (1) Every person shall have the right to life. (2) A law in
force at the commencement of subsection (1) relating to capital

punishment or abortion shall remain in force until repealed or
amended by the [legislature]. (3) No sentence of death shall be

carried out until the [Constitutional Assembly] has pronounced
finally on the abolition or retention of capital punishment.
[Comment: The Council still has to decide on the inclusion of this
right and if so whether its formulation should admit of

qualification of the type suggested above. The unqualified inclusion
of the right will result in the [Constitutional Court] having
to
decide on the validity of any law relating to capital punishment or
abortion.] Sixth Report, 15 July 1993 at 5.
In the Seventh Report the right to life was
formulated in the terms in which it now appears in section 9 of the
Constitution.
The report contained the following comment:
[Comment: The Ad Hoc Committee appointed by
the Planning Committee recommends the
unqualified inclusion of this right in the
Chapter. We support this proposal.] Seventh Report, 29 July 1993 at
3.
34
Furman
v. Georgia,
[1972] USSC 170
;
408 U.S. 238
, 290 (1972)(Brennan, J., concurring).
35
This has been the approach of certain of the justices of the United
States Supreme Court. Thus, White, J., concurring, who said
in
Furman v. Georgia,
supra
note 34, at 312, that "[T]he
imposition and execution of the death penalty are obviously cruel in
the dictionary sense",
was one of the justices who held in
Gregg
v Georgia, infra note 60, that capital punishment was
not per se cruel and unusual punishment within the meaning of the
Fifth
and Fourteenth Amendments of the United States Constitution.
Burger, CJ., dissenting, refers in Furman's case at 379, 380, and

382 to a punishment being cruel "in the constitutional sense".
See also, comments by Justice Stewart, concurring in
Furman's case
at 309, "... the death sentences now before us are the product
of a legal system that brings them, I believe,
within the very core
of the... guarantee against cruel and unusual punishments...it is
clear that these sentences are 'cruel'
in the sense that they
excessively go beyond, not in degree but in kind, the punishments
that the legislatures have determined
to be necessary [citing Weems
v. United States,
[1910] USSC 127
;
217 U.S. 349
(1910)]...death sentences [imposed
arbitrarily] are cruel and unusual in the same way that being struck
by lightning is cruel
and unusual".
36
Matinkinca
and Another v Council of State, Ciskei and Another
1994 (1) BCLR 17
(Ck) at 34B-D; Qozeleni v Minister of Law and Order and Another
1994
(1) BCLR 75(E)
at 87D-E. Cf. Kindler v Canada (Minister of Justice)
(1992) 6 CRR (2d) 193 at 214.
37
The
Criminal Procedure Second Amendment Decree, 1990, Decree No. 16 of
1990 of the Council of State of the Republic of Ciskei,
8 June 1990,
as amended.
38
S
v Qeqe and Another
1990 (2) SACR 654
(CkAD).
39
In
the former Transkei, Bophuthatswana and Venda the death sentence was
a competent verdict for murder but the provisions of the
relevant
statutes in Transkei and Bophuthatswana are not identical to section
277. For the purposes of this judgment it is not
necessary to
analyse the differences, which relate in the main to the procedure
prescribed for appeals and the powers of the
court on appeal,
procedures that are now subject to the provisions of section 241(1)
and (1A) of the Constitution, as amended
by the Constitution of the
Republic of South Africa Third Amendment Act No. 13 of 1994.
40
See
section 8 of the Constitution.
41
AK
Entertainment CC v Minister of Safety and Security and Others
1995
(1) SACLR 130
(E) at 135-136.
42
An
account of the history of the death sentence, the growth of the
abolitionist movement, and the application of the death sentence
by
South African courts is given by Prof. B. van Niekerk in
Hanged
by the Neck Until You Are Dead
,
(1969) 86 SALJ 457
; Professor E.
Kahn in
The Death Penalty in South Africa
,
(1970) 33 THRHR
108
; and by Professor G. Devenish in
The historical and
jurisprudential evolution and background to the application of the
death penalty in South Africa and its relationship
with
constitutional and political reform
, SACJ (1992) 1. For analysis
of trends in capital punishment internationally, see AMNESTY
INTERNATIONAL, WHEN THE STATE KILLS...THE
DEATH PENALTY V. HUMAN
RIGHTS (1989).
43
See
generally, Amnesty International,
The Death Penalty: List of
Abolitionist and Retentionist Countries
(December 1, 1993), AI
Index ACT 50/02/94.
44
Amnesty
International,
Update to Death Sentences and executions in 1993
,
AI Index ACT 51/02/94.
45
Supra
note 43.
46
J. Dugard in RIGHTS AND CONSTITUTIONALISM: THE NEW SOUTH AFRICAN
LEGAL ORDER 192-195 (Dawid van Wyk et al.eds., Juta & Co.,
Ltd.,
1994). Professor Dugard suggests, at 193-194, that section 35
requires regard to be had to "all the sources of international

law recognised by article 38(1) of the Statute of the International
Court of Justice, ie:
(a) international conventions, whether general
or particular, establishing rules expressly
recognised by the contesting states;
(b) international custom, as evidence of a
general practice accepted as law;
(c) the general principles of law recognized
by civilized nations; [and]
(d) ... judicial decisions and the teachings
of the most highly qualified publicists of the various
nations, as subsidiary means for the
determination of rules of law."
47
Established under article 28 of the International Covenant on Civil
and Political Rights (ICCPR or International Covenant) 1966.
48
Established in terms of article 33 of the American Convention on
Human Rights 1969.
49
Id.
50
Established
in terms of article 19 of the European Convention for the Protection
of Human Rights and Fundamental Freedoms, 1950
("European
Convention").
51
Id.
52
The pertinent part of article 6 of the ICCPR reads:
1. Every human
being has the inherent right to life. This right shall be
protected by law.
No one shall be arbitrarily deprived of his life.
2. ...sentence of
death may be imposed only for the most serious crimes in
accordance with
the law in force at the time of the commission of the
crime and not
contrary to the provisions of the present covenant ...
Article 4(2) of the American Convention on
Human Rights and article 2 of the European Convention of Human
Rights contain similar
provisions. Article 4 of the African Charter
of Human an People's Rights provides:
Human beings are
inviolable. Every human being shall be entitled to respect for his
life and
the integrity of his
person. No one may be
arbitrarily
deprived of this right.
(Emphasis
supplied)
53
See S v Zuma and
Two Others,
supra
note 6.
54
See, e.g., Qozeleni,
supra
note 36, at 80B-C; S v Botha and
Others
1994 (3) BCLR 93
(W) at 110F-G.
55
Decision No. 23/1990 (X.31.) AB of the (Hungarian) Constitutional
Court (George Feher trans.).
56
The judgment of Kentridge AJ in S v Zuma and Two Others,
supra
note 6, discusses the relevance of foreign case law in the context
of the facts of that case, and demonstrates the use that can
be made
of such authorities in appropriate circumstances.
57
Furman v. Georgia,
supra
note 34, at 418 (Powell, J., joined
by Burger, CJ., Blackmun, J. and Rehnquist, J., dissenting).
58
See Furman v. Georgia,
supra
note 34.
59
Id.
60
Gregg v. Georgia
,
[1976] USSC 171
;
428 U.S. 153
, 173 (1976)(Stewart, Powell
and Stevens, JJ.).
61
Trop v. Dulles,
356 U.S. 86
, 101 (1958).
62
See
Furman v. Georgia,
supra
note 34, at 380-384, and
at 417-420 (Burger, CJ., and Powell, J., respectively, dissenting).
See
also,
Gregg v. Georgia
,
supra
note 60, at
176-180; and Callins v Collins,
114 S.Ct. 1127
(1994)(judgement
denying cert.)(Scalia, J., concurring). Those who take the contrary
view say that these provisions do no more
than recognise the
existence of the death penalty at the time of the adoption of the
Constitution, but do not exempt it from
the cruel and unusual
punishment clause. Furman v Georgia at 283-284 (Brennan, J.,
concurring); People v. Anderson,
493 P.2d 880
, 886 (Cal.
1972)(Wright, CJ.).
63
See
infra paras. 91-92.
64
Supra note 60, at 187.
65
See
,
e.g., the concurring opinion of Scalia, J., in Callins v. Collins,
supra
note 62; the opinions of Rehnquist, J., concurring in
part and dissenting in part, in Lockett v. Ohio,
supra
note
66, at 628 et seq., and dissenting in Woodson v. North Carolina,
supra
note 66, at 308 et seq.
66
Woodson v. North Carolina,
[1976] USSC 164
;
428 U.S. 280
(1976); Roberts v.
Louisiana,
[1976] USSC 183
;
428 U.S. 325
(1976), reh'g denied
429 U.S. 890
(1976);
Lockett v. Ohio,
[1978] USSC 154
;
438 U.S. 586
(1978)(system for imposing death
sentences invalid to the extent it precludes consideration by
sentencing jury or judge of potentially
mitigating factors).
67
See
Green v. Georgia
442 U.S. 95
(1979).
68
Gregg v. Georgia
,
supra
note 60, at 189.
69
Id.
See
also, Proffitt v. Florida,
[1976] USSC 172
;
428 U.S. 242
(1976). The
nature of the offence for which the sentence is imposed is also
relevant. Coker v. Georgia,
[1977] USSC 151
;
433 U.S. 584
(1977).
70
Criminal Procedure Act No. 51 of 1977
,
section 322(2A)(as
amended by
section 13
of Act No. 107 of 1990).
71
Id. section 316A(4)(a).
72
S v Nkwanyana and Others
[1990] ZASCA 95
;
1990 (4) SA 735
(A) at 743E-745A
73
S v Masina and Others
1990 (4) SA 709
(A) at 718G-H.
74
S v J
1989 (1) SA 669
(A) at 682G. "Generally speaking,
however, retribution has tended to yield ground to the aspects of
correction and prevention,
and it is deterrence (including
prevention) which has been described as the 'essential', 'all
important', 'paramount' and 'universally
admitted' object of
punishment". Id. at 682I-J (cited with approval in S v P
1991
(1) SA 517
(A) at 523G-H). Cf. R v Swanepoel
1945 AD 444
at 453-455.
75
Per Holmes JA in S v Letsolo
1970 (3) SA 476
(A) at 477B (cited with
approval by Nicholas AJA in S v Dlamini
1992 (1) SA 18
(A) at
31I-32A in the context of the approach to sentencing under
section
322(2A)(b)
of the
Criminal Procedure Act No. 51 of 1977
).
76
S v Senonohi
[1990] ZASCA 93
;
1990 (4) SA 727
(A) at 734F-G; S v Nkwanyana,
supra
note 72, at 749A-D.
77
According to the statistics referred to in the amicus brief of the
South African Police approximately 9 000 murder cases are
brought to
trial each year. In the more than 40 000 cases that have been heard
since the amendment to
section 277
of the
Criminal Procedure Act,
only
243 persons were sentenced to death, and of these sentences,
only 143 were ultimately confirmed on appeal.
See
also,
Devenish,
supra
note 42, at 8 and 13.
78
In the amicus brief of Lawyers for Human Rights, Centre for Applied
Legal Studies and the Society for the Abolition of the Death
Penalty
in South Africa it is pointed out that the overwhelming majority of
those sentenced to death are poor and black. There
is an enormous
social and cultural divide between those sentenced to death and the
judges before whom they appear, who are presently
almost all white
and middle class. This in itself gives rise to problems which even
the most meticulous judge cannot avoid. The
formal trial proceedings
are recorded in English or Afrikaans, languages which the judges
understand and speak, but which many
of the accused may not
understand, or of which they may have only an imperfect
understanding. The evidence of witnesses and the
discourse between
the judge and the accused often has to be interpreted, and the way
this is done influences the proceedings.
The differences in the
backgrounds and culture of the judges and the accused also comes
into the picture, and is particularly
relevant when the personal
circumstances of the accused have to be evaluated for the purposes
of deciding upon the sentence.
All this is the result of our
history, and with the demise of apartheid this will change. Race and
class are, however, factors
that run deep in our society and cannot
simply be brushed aside as no longer being relevant.
79
I do not want to be understood as being critical of the
pro deo
counsel who perform an invaluable service, often under extremely
difficult conditions, and to whom the courts are much indebted.
But
the unpalatable truth is that most capital cases involve poor people
who cannot afford and do not receive as good a defence
as those who
have means. In this process, the poor and the ignorant have proven
to be the most vulnerable, and are the persons
most likely to be
sentenced to death.
80
See
the comments of Curlewis, J in [1991] SAJHR, Vol. 7, p.
229, arguing that judges who do not impose the death sentence when
they
should do so are not doing their duty. "Let me return to
the point that troubles the authors: 'that a person's life may

depend upon who sits in judgment.' Of course this happens. I do not
know why the authors are so hesitant in saying so. Their own

reasoning, let alone their tables, proves this". Id. at 230.
81
Furman v. Georgia,
supra
note 34, at 257.
82
"While this court has the power to correct constitutional or
other errors retroactively...it cannot, of course, raise the
dead."
Suffolk District v. Watson and Others,
381 Mass. 648
, 663
(1980)(Hennessy, CJ.)(plurality decision holding the death penalty
unconstitutionally cruel under the Massachusetts State

Constitution). "Death, in its finality, differs more from life
imprisonment than a 100-year prison term differs from one
of only a
year or two. Because of the qualitative difference, there is a
corresponding difference in the need for reliability
in the
determination that death is the appropriate punishment in a specific
case". Woodson v. North Carolina,
supra
note 66, at 305
(Stewart, Powell and Stevens, JJ.).
83
Voyles v. Watkins, 489 F.Supp 901 (D.D.C.: N.D.Miss. 1980).
See
also
, People v. Frierson,
599 P.2d. 587
(1979). Cf. Powell v.
Alabama,
287 U.S. 45
(1932).
84
Furman v. Georgia,
supra
note 34, at 288-289 (Brennan, J.,
concurring). Although in the United States prolonged delay extending
even to more than ten
years has not been held, in itself, a reason
for setting aside a death sentence, Richmond v. Lewis,
948 F.2d
1473
, 1491 (9th Cir. 1990)(rejecting a claim that execution after
sixteen years on death row would constitute curel and unusual
punishment
in violation of the Eighth and Fourteenth Amendments), in
other jurisdictions a different view is taken.
It is part of the
human condition that a condemned man will take every opportunity to
save his life
through use of the appellate procedure. If the
appellate procedure enables the prisoner to prolong the appellate
hearings over
a period of years, the fault is to attributed to the
appellate system that permits such delay and not to the prisoner who
takes
advantage of it. Appellate procedures that echo down the years
are not compatible with capital punishment. The death row phenomenon

must not become established as a part of our jurisprudence.
Pratt v Attorney-General for Jamaica,
supra
note 3, at 1014.
85
Callins v. Collins,
supra
note 62, (Blackmun, J.,
dissenting).
86
Id. (compare Scalia, J., concurring, with Blackmun, J., dissenting).
87
Trop v. Dulles,
supra
note 61, at 100.
See
also,
Furman v. Georgia,
supra
note 34, at 270-281 (Brennan, J.,
concurring); Gregg v Georgia,
supra
note 60, at 173; People
v. Anderson,
supra
note 62, at 895 ("The dignity of man,
the individual and the society as a whole, is today demeaned by our
continued practice
of capital punishment.").
88
Gregg
v. Georgia
,
supra
note 60, at 230 (Brennan, J.,
dissenting) (quoting his opinion in Furman v. Georgia, at 273).
See
also, Furman v. Georgia,
supra
note 34, at 296, where
Brennan, J., concurring, states:
"The country
has debated whether a society for which the dignity of the
individual is the supreme value can, without a fundamental

inconsistency, follow the practice of deliberately putting some of
its members to death."
89
[1977] 45 BVerfGE 187, 228 (
Life Imprisonment case
)(as
translated in Kommers,
supra
note 18, at 316).
90
(1992) 6 CRR (2d)
193 SC.
91
Id. at 241 (per Cory, J, dissenting with Lamer, CJC, concurring).
See
also, Sopinka, J, dissenting (with Lamer, CJC,
concurring) at 220.
92
Id. at 202 (per La Forest, J)(L'Heureux-Dube and Gonthier, JJ
concurring).
93
Ng v Canada,
supra
note 23, at 21.
94
Joseph Kindler v Canada, United Nations Committee on Human Rights,
Communication No 470/1991, 30 July 1993.
95
[1989] ECHR 14
;
(1989) 11 EHRR 439
at paras. 103, 105 and 111.
96
(1980) 2 SCC 684.
97
Id. at 730, para. 136.
98
Id. at 709, para. 61.
99
Id. at 712, para. 71.
100
I have not yet dealt specifically with the issues of deterrence,
prevention and retribution, on which the Attorney General placed

reliance in his argument. These are all factors relevant to the
purpose of punishment and are present both in capital punishment,

and in the alternative of imprisonment. Whether they serve to make
capital punishment a more effective punishment than imprisonment
is
relevant to the argument on justification, and will be considered
when that argument is dealt with. For the moment it is sufficient
to
say that they do not have a bearing on the nature of the punishment,
and need not be taken into account at this stage of the
enquiry.
101
Supra note 96, at 729, para. 132.
102
Id.
103
Supra note 96, at 730-731, para. 136. For similar reasons, the death
penalty was held not to b
e
inconsistent
with the Constitution of Botswana, or with the Constitution of the
former Bophuthatswana. S v Ntesang
1995 (4) BCLR 426
(Botswana); S v
Chabalala
1986 (3) SA 623
(B AD).
104
Id. at 740, para. 165. Bhagwati J dissented. The dissenting
judgement is not available to me, but according to AMNESTY
INTERNATIONAL,
WHEN THE STATE KILLS,
supra
note 42, at 147,
Bhagwati J asserted in his judgement that "[t]he prevailing
standards of human decency are incompatible
with [the] death
penalty."
105
Triveniben v State of Gujarat
[1992] LRC(Const.) 425
(Sup. Ct. of India); Daya Singh v Union of
India
[1992] LRC(Const.) 452
(Sup. Ct. of India).
106
Supra note 95, at 484.
107
Joseph Kindler v Canada,
supra
note 94, at 23.
108
Per Lord Bridge in R v Home Secretary, Ex parte Bugdaycay
[1986] UKHL 3
;
(1987) AC
514
at 531G.
109
Supra note 55.
110
"The
cruel or unusual punishment clause of the California Constitution,
like other provisions of the Declaration of Rights,
operates to
restrain legislative and executive action and to protect fundamental
individual and minority rights against encroachment
by the majority.
It is the function of the court to examine legislative acts in the
light of such constitutional mandates to
ensure that the promise of
the Declaration of Rights is a reality to the individual (citations
omitted)...Were it otherwise,
the Legislature would ever be the sole
judge of the permissible means and extent of punishment and article
I, section 6, of the
Constitution would be superfluous." People
v. Anderson,
supra
note 62, at 888. This was also the approach of the President of the
Hungarian Constitutional Court in his concurring opinion
on the
constitutionality of capital punishment, where he said: "The
Constitutional Court is not bound
either
by the will of the majority or by public sentiments."
Supra note 55, at 12.
See
also,
Gregg
v. Georgia
,
supra
note 60, at 880. In the decisive
judgment of the Court, Justices Stewart, Powell and Stevens,
accepted that "...the Eighth
Amendment demands more than that a
challenged punishment be acceptable to contemporary society. The
Court also must ask whether
it comports with the basic concept of
human dignity at the core of the Amendment." (citation omitted)
111
Supra note 34, at 443.
112
[1943] USSC 130
;
319 U.S. 624
, 638 (1943).
113
The Californian Constitution was subsequently amended to sanction
capital punishment.
114
Supra note 62.
115
Id. at 899. The cruelty lay "...not only in the execution
itself and the pain incident thereto, but also in the dehumanizing

effects of the lengthy imprisonment prior to the execution during
which the judicial and administrative procedures essential
to due
process of law are carried out." Id. at 894 (citations
omitted).
116
Id. at 899.
117
381 Mass. 648
(1980).
118
"...[T]he death penalty is unacceptable under contemporary
standards of decency in its unique and inherent capacity to inflict

pain. The mental agony is, simply and beyond question, a horror."
Id. at 664. "All murderers are extreme offenders.
Fine
distinctions, designed to select a very few from the many, are
inescapably capricious when applied to murders and murderers."

Id. at 665. "...[A]rbitrariness and discrimination...inevitably
persist even under a statute which meets the demands of
Furman."
Id. at 670.
"...[T]he supreme punishment of death,
inflicted as it is by chance and caprice, may not stand." Id.
at 671. "The
death sentence itself is a declaration that
society deems the prisoner a nullity, less than human and unworthy
to live. But that
negation of his personality carries through the
entire period between sentence and execution." Id. at 683
(Liacos, J., concurring).
119
E.g., Coker v. Georgia,
433 U.S. 782
(1977)(imposition of the death
penalty for rape violates due process guarantees because the
sentence is grossly disproportionate
punishment for a nonlethal
offence).
See
also,
Gregg v. Georgia
,
supra
note 60, at 187 ("[W]e must consider whether the punishment of
death is disproportionate in relation to the crime for which
it is
imposed."), and Furman v. Georgia,
supra
note 34, at 273
("...a punishment may be degrading simply by reason of its
enormity.").
120
The Black Act: 9 George I. C.22, as cited in E.P. THOMPSON, WHIGS
AND HUNTERS, THE ORIGIN OF THE BLACK ACT 211 (Pantheon). The
author
notes that these provisions were described by Lord Chief Justice
Hardwicke as "necessary for the present state and
condition of
things and to suppress mischiefs, which were growing frequent among
us."
121
This was the approach of Brennan, J., in Furman v. Georgia,
supra
note 34, at 282 ("The test, then, will ordinarily be a
cumulative one: If a punishment is unusually severe, if there is
a
strong probability that it is inflicted arbitrarily, if it is
substantially rejected by contemporary society [a determination
he
makes based on the infrequency of use in relation to the number of
offences for which such punishment may apply], and if there
is no
reason to believe that it serves any penal purpose more effectively
than some less severe punishment, then the continued
infliction of
that punishment violates the [clause prohibiting cruel and unusual
punishment].").
122
S v Zuma and Two Others,
supra
note 6, para. 21.
123
Furman v. Georgia,
supra
note 34, at 300. Brennan, J., was
dealing here with the proposition that "an unusually severe and
degrading punishment may
not be excessive in view of the purposes
for which it is inflicted."
124
Id.
125
"The People concede that capital punishment is cruel to the
individual involved. They argue, however, that only "unnecessary"

cruelty is constitutionally proscribed, and that if a cruel
punishment can be justified it is not forbidden by article I,
section
6, of the California Constitution." Supra note 62, at
895.
126
S v Zuma and Two Others,
supra
note 6.
127
Attorney-General of Hong Kong v Lee Kwong-Kut,
(1993) AC 951
at
970-972 (PC).
128
Supra note 60, at 186-187.
129
S v Zuma and Two Others,
supra
note 6.
130
A proportionality test is applied to the limitation of fundamental
rights by the Canadian courts, the German Federal Constitutional

Court and the European Court of Human Rights. Although the approach
of these Courts to proportionality is not identical, all
recognise
that proportionality is an essential requirement of any legitimate
limitation of an entrenched right. Proportionality
is also inherent
in the different levels of scrutiny applied by United States courts
to governmental action.
131
Reference re ss. 193 and 195(1)(c) of the Criminal Code of Manitoba,
infra note 135.
132
(1986) 19 CRR 308.
133
Id. at 337.
134
(1989) 39 CRR 193
at 248.
135
(1990) 48 CRR 1
at 62.
136
(1991) 1 CRR (2d) 1 at 30.
137
Per La Forest J in Tetreault-Gadoury v Canada (Employment and
Immigration Commission)
(1991), 4 CRR(2d) 12
at 26.
See
also
,
Rodriquez v British Columbia (AG)
(1994) 17 CRR(2d) 192
at 222 and
247.
138
Dieter Grimm, Human Rights and Judicial Review in Germany, in HUMAN
RIGHTS AND JUDICIAL REVIEW: A COMPARATIVE PERSPECTIVE 267,
275
(David H. Beatty, ed., Martinus Nijhoff publ.)(1994). Prof. Grimm is
presently a member of the German Federal Constitutional
Court.
139
Id. For a discussion of the application of the principle of
proportionality in German Constitutional jurisprudence, see CURRIE,

THE CONSTITUTION OF THE FEDERAL REPUBLIC OF GERMANY 18-20, 307-310
(Univ. of Chicago Press)(1994). Prof. Currie outlines the
genesis of
proportionality, intimated in the Magna Carta and generally
described by Blackstone, and notes that it was further
developed by
Carl Gottleib Svarez, a celebrated thinker of the German
Enlightenment. "Svarez insisted on proportionality
both between
ends and means and between costs and benefits; both aspects of the
principle are reflected in the jurisprudence
of the Constitutional
Court." Currie at 307.
140
Currie, id., at 178, note 15 and accompanying text.
See
also
infra note 161.
141
R v France
[1992] ECHR 40
;
(1993) 16 EHRR 1
, para. 63.
142
Handyside v United Kingdom
[1976] ECHR 5
;
(1979-80) 1 EHRR 737
, para. 49.
143
Dudgeon v United Kingdom
[1981] ECHR 5
;
(1981) 4 EHRR 149
, para. 52; Norris v
Ireland
[1988] ECHR 22
;
(1988) 13 EHRR 186
, para. 46; Modinos v Cyprus
[1993] ECHR 19
;
(1993) 16
EHRR 485.
144
"...[T]he margin of appreciation available to the legislature
in implementing social and economic policies should be a wide

one..." James v United Kingdom
[1986] ECHR 2
;
(1986) 8 EHRR 123
, para. 46.
See
also, Lithgow v United Kingdom
(1986) 8 EHRR 329
, para. 122.
145
S v Zuma and Two Others,
supra
note 122, para. 35.
146
S v Senonohi,
supra
note 76, at 734F-G.
147
Criminal Appeal No. 142 of 1994; 30 January 1995.
148
Id., wherein Ramadhani JA., highlights with respect to the Republic
of Tanzania Constitution, that article 30(2) provides that
laws, and
actions taken in accordance with such laws, shall not be invalidated
under the Constitution if such laws (or actions)
make provision,
inter alia, for "ensuring that the rights and freedom of other
or the public interest are not prejudiced
by the misuse of the
individual rights and freedom." Id. at p. 23.
The judgment refers to "derogations"
and not to "limitations".
149
See
discussion on public opinion
supra
paras. 87 to
89.
150
S v W
1993 (2) SACR 74
, at 76H-I.
151
In the Statement of Minister of Justice dated 27 March 1992,
supra
note 31, para. 22.
152
Indeed, such a hypothesis is not born out by the statistics analysed
by Justice Didcott in his concurring opinion at para 182.
153
Since 1991, section 64 of the Correctional Service Act 8 of 1959 has
provided that a person sentenced to life imprisonment may
only be
released from prison in the following circumstances: (a) the
advisory release board "with due regard to the interest
of
society", recommends that the prisoner be released and (b) the
Minister of Correctional Services accepts that recommendation
and
authorizes the release of the prisoner. This means that the Minister
of Correctional Services must accept responsibility
for the release
of the prisoner, and can only do so if the advisory release board is
in favour of the prisoner being released.
154
This statement is taken from the provision on National
Reconciliation.
155
Sopinka J (La Forest, Gonthier, Iacobucci and Major JJ, concurring)
in Rodriquez v British Columbia (1994) 17 CRR (2d) 193 at
218.
156
This proposition is advanced in greater detail by J Price, (1995)
"De Rebus" 89.
157
Wright, CJ., in People v. Anderson,
supra
note 62, at 897.
158
S v P
1991 (1) SA 517
(A) at 523D-F.
See
also
supra
note 74.
159
The Preamble to the Constitution records that the new order will be
a "constitutional state in which...all citizens shall
be able
to enjoy and exercise their fundamental rights and freedoms."
The commitment to recognition of human rights is reaffirmed
in the
concluding provision on National Unity and Reconciliation.
160
Brennan, J., in Furman v. Georgia,
supra
note 34, at 305.
161
Currie,
supra
note 139, refers to an analysis of the
'remarkable variety of views' on the meaning of 'essence'. Id. at
178 (citing 2 Maunz/Durig,
Art. 19, Abs. II, Rdnr. 16).
162
Grimm,
supra
note 138, at page 276 states, "operating at
an earlier stage than the essential content limit in Article 19(2),
the proportionality
principle has rendered the former almost
insignificant." Currie,
supra
note 139, notes that the
German Federal Constitutional Court has remarked in at least one
case that dealt with the 'essential
content' question that the Court
"state[d] an alternative ground that, because of its greater
stringency [the proportionality
test], has made it unnecessary in
most cases to inquire whether a restriction invades the 'essential
content' of a basic right."
Currie,
supra
note 139, at
306-307 (citing 22 BVerfGE 180, 220 (1967)).
163
R v Oakes,
supra
note 132, at 337 (citing R v Big M Drug Mart
Ltd.,
supra
, at 352).
164
See
Kommers
supra
note 18.
165
Sections 8(2), 9, 10 and 11(2) are in fact non-derogable rights and
in terms of section 34(5)(c) cannot be suspended during an

emergency.
166
Self-defence is treated in our law as a species of private defence.
It is not necessary for the purposes of this judgement to
examine
the limits of private defence. Until now, our law has allowed
killing in defence of life, but also has allowed killing
in defence
of property, or other legitimate interest, in circumstances where it
is reasonable and necessary to do so. S v Van
Wyk
1967 (1) SA 488
(A). Whether this is consistent with the values of our new legal
order is not a matter which arises for consideration in the
present
case. What is material is that the law applies a proportionality
test, weighing the interest protected against the interest
of the
wrongdoer. These interests must now be weighed in the light of the
Constitution.
167
"The inherent right of the State to assume extraordinary powers
and to use all means at its disposal in order to defend
itself when
its existence is at stake is recognized by our common law as an
exceptional and extreme constitutional tool."
Per Selikowitz J
in End Conscription Campaign v Minister of Defence
1989 (2) SA 180
(C) at 199H. Here too it is not necessary to examine the limits of
this "inherent right", or the limitations (if any)
imposed
on it by the Constitution. All that need be said is that it is of an
entirely different character than the alleged "right"
of
the State to execute murderers, and subject to different
considerations.
168
Innes J in Whittaker v Roos and Bateman
1912 AD 92
at 122-123.
See
also, Goldberg and Others v Minister of Prisons and Others
1979 (1)
SA 14
(A) at 39H-40C; Nestor and Others v Minister of Police and
Others
1984 (4) SA 230
(SWA) at 250F-251D.
169
See
also, Woods v Minister of Justice, Legal and
Parliamentary Affairs and Others,
1995 BCLR 56(ZSC)
at 58F-G; Turner
v. Safley,
482 U.S. 78
, 84-85 (1987).
170
See
Pratt v Attorney General for Jamaica; and Catholic
Commission for Justice in Zimbabwe v The Attorney General, Zimbabwe,
and Others,
supra
note 3.
1
See
in general Prof. E Mureinik 'A Bridge to Where?
Introducing the Interim Bill of Rights'
10 (1994)
SAJHR
31.
At 32 the learned author points out that -
"If the new Constitution is a bridge away from a culture of
authority, it is clear what it must be a bridge to. It must
lead to
a culture of justification - a culture in which every exercise of
power is expected to be justified; ... If the Constitution
is to be
a bridge in this direction, it is plain that the Bill of Rights must
be its chief strut".
At 38 he points out that Chapter 3 of the
Constitution, and in particular section 24, the administrative
justice
clause -
"gives a lead which, properly followed, would put South Africa
at the frontiers of the search for a culture of justification."
2
[1972] USSC 170
;
408 US 238
(1972).
3
Id. at 249.
4
Id. at 256.
5
Id. at 274.
6
Id. at 294.
7
Id. at 309 - 310.
8
Callins v. Collins
,
supra
, at 1129.
9
Id. at 1130.
10
Id. at 1131.
11
Id. at 1132.
12
Trop v. Dulles
356 US 84
(1958) at 102 quoted with approval
by Brennan J in
Furman
,
supra
note 2, at 289.
See
also Stewart J in
Furman
at 306:
"The penalty of death differs from all other forms of criminal
punishment, not in degree but in kind. It is unique in its
total
irrevocability. It is unique in its rejection of rehabilitation of
the convict as a basic purpose of criminal justice.
And it is
unique, finally, in its absolute renunciation of all that is
embodied in our concept of humanity."
13
In
Callins v. Collins
,
supra
, at 1132, Blackmun J,
quoting from the opinion of Stewart, Powell and Stevens JJ in
Woodson v. North Carolina
[1976] USSC 164
;
428 US 280
(1976) at 305, pointed
out that because of the qualitative difference of the death penalty,
"there is a corresponding difference
in the need for
reliability in the determination that death is the appropriate
punishment in a specific case."
14
Prof. Dworkin's lawyer "of superhuman skill, learning, patience
and acumen"; see
Taking Rights Seriously
(1978) 105.
15
From the official translation published by the Press and Information
Office of the Federal Government, Bonn (1994).
16
Decisions of the Federal Constitutional Court
: 2 BVerfGE 266 at
285; 6 BVerfGE 32 at 41; 7 BVerfGE 377at 411; 13 BVerfGE 97 at 122;
15 BVerfGE 126 at 144; 16 BVerfGE 194 at
201; 21 BVerfGE 92 at 93;
22 BVerfGE 180 at 218; 27 BVerfGE 344 at 350; 30 BVerfGE 1 at 24; 30
BVerfGE 47 at 53; 31 BVerfGE 58
at 61; 32 BVerfGE 373 at 379; 34
BVerfGE 238 at 245; 58 BVerfGE 300 at 348; 61 BVerfGE 82 at 113; 80
BVerfGE 367 at 373.
Decisions of the Federal Administrative
Court
: 1 BVerwGE 92 at 93; 1 BVerwGE 269 at 270; 2
BVerwGE 85 at 87; BVerwGE reported in 90
Deutsches Verwaltungsblatt
at 709.
Decisions of the Federal Court of Justice
:
4 BGHSt 375 at 377 (also reported in 1955
Die Öffentliche
Verwaltung
at 176); 4 BGHSt 385; 5 BGHSt 375; 6 BGHZ 270 at 275;
22 BGHZ 168 at 176.
General academic works
: Von Münch/Kunig
Grundgesetz Kommentar
(1992) 997-1004; Leibholz-
Rinck-Hesselberger
Grundgesetz Kommentar an
Hand der Rechtsprechung des Bundesverfassungsgerichts
(1994)
(commentary on art. 19) 16-18; Maunz-Dürig-Herzog
Grundgesetz
Kommentar
(1991) (commentary on art.19II) 1-14; Jarass/Pieroth
Grundgesetz für die Bundesrepublik Deutschland
(1992)
336-8; J Isensee & P Kirchhof (eds)
Handbuch des Staatsrechts
vol 5 (1992) 795; E Denninger in
Reihe Alternativkommentare
Kommentar zum Grundgesetz für die Bundesrepublik Deutschland
(1984) 1179; Schmidt-Bleibtreu-Klein
Kommentar zum Grundgesetz
(1990) 397-9; K Hesse
Grundzüge des Verfassungsrechts der
Bundesrepublik Deutschland
(1991) 140; Von Mangoldt/Klein
Das
Bonner Grundgesetz
(1966) 551; K Doehring
Allgemeine
Staatslehre
(1991)
222
;
Maunz-Zippelius
Deutsches
Staatsrecht
(1991) 161.
Specialist literature on art.19(2) GG
:
P Häberle
Die Wesensgehaltgarantie des Artikels 19 Abs. 2
Grundgesetz
(1983); E von Hippel
Grenzen und
Wesensgehalt der Grundrechte
(1965); H Krüger ‘Der Wesensgehalt der Grundrechte des
Art.19 GG’ (1955)
Die
Öffentliche Verwaltung
597; L Scheider
Der Schutz des
Wesensgehalts von Grundrechten nach Art.19 Abs.2 GG
(1983); G Herbert ‘Der Wesensgehalt der Grundrechte’ 12
(1985)
Europäische Grundrechte
Zeitschrift
321; Zivier
Der Wesensgehalt der
Grundrechte Diss. Berlin
(1960); J Chlosta
Der Wesensgehalt der
Eigentumsgewährleistung
(1975); P Lerche
Übermass und
Verfassungsrecht
(1961); Kaufmann ‘Über den ‘Wesensgehalt’ der
Grund- und Menschenrechte’ (1984)
Archiv
für Rechts- und Sozialphilosophie
384; E Denninger ‘Zum Begriff des ‘Wesensgehaltes’
in der Rechtsprechung (Art.19.Abs.II GG)’ (1960)
Die
Öffentliche Verwaltung
812.
17
Para. 117.
18
Para. 123.
19
1945 BVerfGE 187.
1
Constitution of The Republic of South Africa, Act No. 200 of 1993,
as amended.
2
As sanctioned by
section 277(1)
of the
Criminal Procedure Act, 1977
,
as amended and the corresponding provisionsof the former Transkei,
Bophuthatswana and Venda.
3
Section
4 of the Constitution describes it as "the
supreme law of the Republic ... [which] shall bind all legislative,
executive
and judicial organs of state at all levels of government."
Section
7 makes Chapter 3, containing fundamental rights,
binding on "all legislative and executive organs of state at
all levels
of government" and provides that it "shall
apply to all law in force and all administrative decisions taken and
acts
performed during the period of operation of this Constitution."
4
See
Chapter 7 of the Constitution.
5
Section
98(2) of the Constitution
6
See
section 99(2)(c) of the Constitution which requires on
appointee to be a person who "(i) is a judge of the Supreme
Court
or is qualified to be admitted as an advocate or attorney and
has, for a cumulative period of at least 10 years after having so

qualified, practised as an advocate or an attorney or lectured in
law at a university; or (ii) is a person who, by reason of
his or
her training and experience, has expertise in the field of
constitutional law relevant to the application of this Constitution

and the law of the Republic."
7
Per Kentridge AJ, in
S v Zuma and Others
[1995] ZACC 1
;
1995 (4) BCLR 401
,
414 (SA). The "limitation clause" he refers to is section
33(1) of the Constitution.
8
The questions may well be asked what the distinction is between
reasonable and justifiable and whether one test can be met and
not
the other. Be that as it may, this case is so clear that the
distinction, if any, between the two criteria need not be

considered.
9
Relating to the meaning and effect of the prohibition in section
33(1)(b) against a limitation which "negate[s] the essential

content of the right in question."
10
The reasonableness of other limitations on the right to life does
not arise here. Suffice it to say that there must always be
a
proportionality between any right and the limitation thereof sought
to be saved under section 33(1).
11
Paragraphs 116 to 127 on deterrence and 129 to 131 on retribution.
12
No more need be said about retribution than has been said by my
colleagues.
See
also paragraph 203 of the judgment of
Kentridge AJ and paragraph 185 of the judgment of Didcott J.
13
[1972] USSC 170
;
408 US 238
(1972).
14
Id. at 359.
15
Bachan Singh v State of Punjab
(1980) 2 SCC 684
, quoted in
paragraph 76 of the main judgment.
16
The provisions of section 277(1)(b), which sanction the death
penalty for treason committed at a time when sanction judicial

killing without knowing whether it has any marginal deterrent value.
1
See
the remarks of Lord Bridge in Bugdaycay v Secretary of
State 1987(1) All ER 940 at 952b.
2
See
paragraph 82 of Chaskalson P’s judgment.
3
S v Tuhadeleni and Others 1969(1) SA 153 (A) at 172D - 173F; Baxter,
Administrative Law
, page 30 (1984).
4
Brandeis J in his dissenting opinion in Olmstead v United States,
[1928] USSC 133
;
277 US 438
, 485 (1928) put it succinctly:
"Our Government is the potent, the
omni-present teacher. For good or for ill, it teaches the whole of
our people by its example."
5
In his Oliver Wendell Holmes lecture at the Harvard Law School,
reprinted under the heading Federalism and State Criminal Procedure,

70 Harv. L. Rev. 1, 26 (1956). The passage was referred to with
approval in Coppedge v United States,
[1962] USSC 62
;
369 US 438
, 449 (1962).
6
[1991] LRC (Const) 553
at 566b-d, per Nyalali CJ, Makame and
Ramadhani JJA.
7
See
paragraphs 130 and 131 of Chaskalson P's judgment. The
concept has been referred to also by Madala J, Mahomed J and Mokgoro
J
in their separate concurring judgments in this matter.
8
[1972] USSC 170
;
408 US 238
, 279 (1972).
9
See
R v Karg 1961(1) SA 231(A) at 236A.
10
Brennan J in
Furman v
Georgia
,
supra
, at 273 expressed himself thus: ".
. . even the vilest criminal remains a human being possessed of
common human dignity."
11
Per Brennan J in Furman v Georgia,
supra
, at 305.
1
Act No 12 of 1979.
2
See
Jesse Choper quoted in Rights and Constitutionalism;
The New South African Legal Order; Van Wyk D. et al, Juta, 1994 p.
9
. The suggestion is that the judiciary is not wholly removed
from the political process, where it plays a supervisory role,
restraining
the majority will through judicial review.
3
Mbigi, L., with J. Maree,
UBUNTU - The Spirit of African
Transformation Management
, Knowledge Resources, 1995, pp. 1-16.
4
See
analysis in the English translation of Decision No
23/1990 (X31) AB of the Hungarian Constitutional Court.
1
The Universal Declaration of Human Rights contains an unconditional
form of the right: article 3 provides that `Everyone has
the right
to life, liberty and security of the person.' On the other hand,
many other international rights instruments contain
qualified
protections of the right to life. Article 6(1) of the International
Convention on Civil and Political Rights stipulates
that `Every
human being has the inherent right to life. This right shall be
protected by law. No-one shall be arbitrarily deprived
of his life.'
Subsections 2 - 5 of article 6 then provide for minimum standards
for countries which have not abolished the death
penalty, and
article 6(6) provides that: `Nothing in this article shall be
invoked to delay or prevent the abolition of capital
punishment by
any state party to the present covenant.' In addition in 1989 an
optional protocol was adopted by the General Assembly
of the United
Nations, article 1 of which provides that `No-one within the
jurisdiction of state parties to the present optional
protocol shall
be executed'.
Article 4 of the Banjul Charter on Human and
People's Rights (African Charter) provides that `Human beings are
inviolable. Every
human being shall be entitled to respect for his
life and the integrity of the person. No one may be arbitrarily
deprived of
this right.'
Article 2(1) of the European
Convention on Human Rights provides that ` Everyone's right to life
shall be protected by law. No
one shall be deprived of his life
intentionally save in the execution of a sentence of a court
following his conviction of a
crime for which this penalty is
provided by law.' But in 1983 a protocol to the Convention was
adopted which provided that capital
punishment should be abolished.
The protocol has been widely ratified.
See
Van Dijk and Van
Hoof
Theory and Practice of the European Convention on Human
Rights 2nd ed (1990)
pp 502 -3.
2
See
S v Zuma
(unreported judgment of the
Constitutional Court, 5 April 1995) para 15 in which Kentridge AJ
referred to the judgment of Dickson
J in
R v Big M Drug Mart Ltd
(1985) 18 DLR (4th) 321 at 395 - 6 with approval.
See
also
Law Society of British Columbia and another v Andrews and another
(1989) 36 CRR 193
(SCC) at 224 - 225.
3
See
, for discussion of the right to dignity and the death
penalty, the judgment of Solyom J in the Hungarian case concerning
the
constitutionality of the death penalty (Decision no 23/1990
(X.31.) AB, George Feher translation).
4
See
Ronald Dworkin
Life's Dominion: An argument about
abortion and euthanasia
(1993) at 239.
5
See
also
S v Ncube
1988 (2) SA 702
(ZS) at 717 B - D.
6
See
Murray `Hangings in Southern Africa: The last ten years'
(1990) 6
SAJHR
439
- 441; Keightley `Hangings in Southern
Africa: the last ten years'
(1991) 7
SAJHR
347
- 349; `The
Death Penalty in SA: Statistics'
(1989) 2
SACJ
251
; Amnesty
International `When the State Kills... The Death Penalty vs Human
Rights' (1989) 204 - 207.
5
The issue, of course, is whether inescapable caprice prevents the
process from being 'due' when the consequences are so drastic.
6
88 BVerfGE 203 (2nd Abortion Case).
7
Cf.
1969 SALJ 455
and
1970 SALJ 60
; S v Van Niekerk
1970 (3) SA 655.
8
The International Law of Human Rights, Oxford 1983, reprinted 1992,
at p. 93 referring to
James, Young and Webster v U.K.
Judgment of the European Court of Human Rights on 13/08/81.
9
See
the postamble, also referred to as the epilogue or
afterword, where reference is made to the "need for
ubuntu
".
10
Junod, Henri A - The Life of a South African Tribe 2nd Edition
published Macmillan 1927 at p. 436.
11
1889 CLJ 87
- Extracts from Maclean's Handbook.
12
John Henderson Soga - The Ama-Xosa: Life and Customs, published
Lovedale Press , South Africa; London, Kegan Paul, at p. 46.
13
Hammond-Tooke D: The 'other side' of frontier history: a model of
Cape Nguni political process, in African Societies in Southern

Africa ed. Leonard Thompson, London 1969, at p. 255.
14
Soga
supra
at p. 46.
15
Bantu Law and Western Civilisation in South Africa - a study in the
clash of cultures (1934 Yale University MA Thesis).
16
1889 CLJ 89
,
1890 CLJ 23
at 34.
17
J M Orpen: History of the Basutus of South Africa, Cape Argus 1857,
Reprinted UCT 1955.
18
Molema SM: Montshiwa (1815 - 1896) Barolong Chief and Patriot
(published C. Struik 1966).
19
Donald R Morris: The washing of the Spears - A History of the Rise
of the Zulu Nation under Shaka and its Fall in the Zulu war
of 1879.
Jonathan Cape 1965, Random House 1995, p. 174-5.
20
C. Graham Botha
1915 SALJ 319.
More generally, see footnote 15.
These matters were referred to but not developed in Applicants'
written argument.
21
Sir John Barrow, FRS: Travels into the Interior of Southern Africa
Volume 2 p. 138 -9. London 1806 quoted in C. Graham Botha
1915 SALJ
322
, also by E. Kahn, the Death Penalty 1970 THRHR, p. 110. Letter
by British Commander to Cape Court of Justice quoted by C. Graham

Botha
1913 SALJ 294
; reply by Court quoted in
1915 SALJ 327
; see
also, V. de Kock - Those in Bondage, an account of the life of the
slave at the Cape, George Allen and Unwin, London 1950
p 158-60. For
punishments generally see de V Roos
1897 CLJ 11-23
, C.H. van Zyl
1907 SALJ 352
, 370; 1908 SALJ 4, 264.
22
Applicants' heads of argument, taken from When the State Kills - The
Death Penalty v. Human Rights, Amnesty International, London
1989.
23
This is confirmed by South African experience ranging from Slachters
Nek to the Cape Rebels to the 1922 Strike leaders to Vuyisile
Mini
and Solomon Mahlangu in recent times.
24
Amnesty International op cit. There has also been a marked move away
from capital punishment in the countries of Eastern Europe
after the
ending of authoritarian one-party rule there.