Brief Summary

Constitutional Law — Death penalty — Constitutional validity of legislative provisions — Applicants, convicted and sentenced to death prior to the declaration of the death penalty's unconstitutionality, challenged the Criminal Law Amendment Act 105 of 1997 — High Court found certain provisions inconsistent with the Constitution, particularly regarding fair trial rights — Confirmation of the High Court's order sought by applicants, opposed by respondents. Court held that the impugned provisions failed to comply with constitutional fair trial rights, thus confirming the High Court's declaration of inconsistency.

Comprehensive Summary

Summary of Judgment

1. Introduction

The matter concerned constitutional confirmation proceedings in the Constitutional Court under section 172(2) of the Constitution, following an order of the Johannesburg High Court declaring certain statutory provisions unconstitutional. The impugned provisions formed part of a legislative mechanism designed to replace death sentences imposed before the abolition of the death penalty with alternative sentences.

The parties were four applicants, Willy Aaron Sibiya, Purpose Bongani Khumalo, Jacobus Petrus Geldenhuys, and David Nkuna, all of whom had been sentenced to death in the early 1990s when capital punishment was still competent. The respondents were the Director of Public Prosecutions: Johannesburg High Court, the Minister of Justice and Constitutional Development, the President of the Republic of South Africa, and the Minister of Correctional Services.

The procedural history began with High Court proceedings in which the applicants initially sought their release on the basis that their detention was unlawful. That relief was refused, and that aspect was not before the Constitutional Court. The High Court nevertheless granted two further orders: first, it declared subsections (1) to (5) of section 1 of the Criminal Law Amendment Act 105 of 1997 unconstitutional; second, it set aside a sentence imposed by the President on the second applicant pursuant to that mechanism. The applicants then sought confirmation of the constitutional invalidity order, while the respondents opposed confirmation.

The dispute’s general subject-matter was the constitutionality and fairness of the statutory procedure for substituting pre-1995 death sentences after the Constitutional Court’s decision in S v Makwanyane and Another invalidated the death penalty prospectively and prohibited executions of those already sentenced to death, while requiring that existing death sentences be lawfully set aside and replaced.

2. Material Facts

The Constitutional Court treated as central and largely undisputed the historical context that the applicants were tried, convicted, and sentenced to death in the early 1990s, before the Constitutional Court declared the death penalty unconstitutional in S v Makwanyane and Another. At the time of their sentencing, statutory procedures existed governing the imposition of the death penalty and review/appeal to the Supreme Court of Appeal (then the Appellate Division), including a regime (post-1990 amendment) in which the death penalty could become final only after confirmation by the Supreme Court of Appeal.

After Makwanyane, the death penalty was declared unconstitutional prospectively; the Court did not invalidate death sentences retroactively. Those sentences thus remained valid sentences, but the State and its organs were forbidden to execute any person already sentenced to death under invalidated provisions. The Makwanyane order also contemplated that persons sentenced to death would remain in custody under their existing sentences until those sentences were set aside in accordance with law and substituted by lawful punishments.

In response, Parliament enacted the Criminal Law Amendment Act 105 of 1997. Section 1 introduced a mechanism for substitution, with subsections (1)–(5) applying to persons who had exhausted appeal/review procedures (in context, those whose death sentences had been confirmed), requiring the Minister to refer the case to the sentencing court; the judge would consider written argument and the trial record, possibly hear oral argument, and then advise the President on an appropriate substituted sentence. The President was then required to set aside the death sentence and substitute the punishment advised, and no appeal lay against the advice or findings in terms of subsection (3).

A key fact relied upon by the Court was that, in the present litigation, it was common cause that the impugned provisions did not apply to the first, third, and fourth applicants. Only the second applicant fell within the category governed by subsections (1)–(5). By the time the matter was heard in the High Court, a judge had already advised the President on the second applicant’s substituted sentence, and the President had already set aside the second applicant’s death sentence and substituted life imprisonment.

The High Court set aside the President’s substitution decision on the basis that the process leading to the advice was irregular, focusing (as the Constitutional Court later summarised) on (i) the fact that a judge other than the original sentencing judge considered the substitution and (ii) the asserted absence of written argument furnished “on behalf of” the second applicant. Before the Constitutional Court, the existence and adequacy of written argument on the second applicant’s behalf was treated as, at best, a matter that could generate a factual dispute on the papers, rather than a resolved finding.

Finally, the Constitutional Court relied on the general background fact that—despite Makwanyane having been decided almost ten years earlier and the Act having commenced years before—there remained a significant number of pre-1995 death sentences that had not yet been substituted, which raised systemic concerns about compliance with Makwanyane’s practical implications.

3. Legal Issues

The central legal questions the Court was required to determine were, first, whether the High Court was correct to reach and decide the constitutionality of the impugned statutory provisions, given that the second applicant had obtained an order setting aside the President’s substitution decision.

Second, the Court had to determine whether subsections (1)–(5) of section 1 of Act 105 of 1997 were constitutionally invalid. This required determining whether the substitution procedure had to comply with the fair trial rights in section 35(3) of the Constitution, and if not, what constitutional standard governed the fairness of the substitution mechanism.

Third, the Court had to address separation of powers objections raised in relation to (i) the role allocated to judges in advising the President and (ii) the role allocated to the President in substituting the sentence.

Fourth, a further issue arose concerning the High Court’s order setting aside the President’s substitution decision. Although there was no application before the Constitutional Court to confirm that part of the order, the Court had to decide whether it should nonetheless consider the correctness of that declaration, because section 172(2) requires confirmation for an order of constitutional invalidity concerning presidential conduct to have force and effect.

Finally, an additional remedial issue arose as to whether the Constitutional Court should grant supervisory relief to ensure that outstanding death sentences imposed before 5 June 1995 were substituted without further delay.

The dispute thus principally concerned the application of constitutional provisions to a unique statutory mechanism and the legal characterisation of the process (trial-related versus post-conviction substitution), involving legal interpretation, application of law to established context, and evaluative judgments about procedural fairness and institutional design.

4. Court’s Reasoning

On the preliminary point, the Court rejected the contention that the High Court should not have reached constitutionality. It reasoned that setting aside the President’s decision did not remove the second applicant from the scope of the impugned provisions, because his death sentence could still only be lawfully replaced via that statutory mechanism. The Court further held that the constitutionality of the mechanism was a matter of significant public importance, supporting the High Court’s engagement with the issue.

On the core constitutional question, the Court held that the High Court’s foundation for finding invalidity was incorrect because it proceeded from the premise that death sentences became unlawful once the death penalty was declared unconstitutional. The Constitutional Court emphasised that Makwanyane’s invalidation was not retrospective, and that persons sentenced to death before Makwanyane had been lawfully sentenced under the law as it stood at the time. Their sentences were not set aside by Makwanyane; instead, execution was prohibited and the State was directed to ensure lawful substitution.

This led to the interpretive question whether the affected persons fell within section 35(3), which guarantees fair trial rights to “every accused person”. The Court concluded that, however generously interpreted, section 35 could not be construed to include persons whose trials, convictions, and sentencing took place before the constitutional era and whose cases had already been concluded within the then-existing judicial process. The Court therefore rejected the High Court’s approach that the substitution mechanism had to replicate section 35(3) trial guarantees.

The Court nonetheless accepted that the substitution mechanism was subject to constitutional constraint, locating the relevant standard in section 12(1)(a) of the Constitution, which protects against deprivation of freedom arbitrarily or without just cause. Relying on its prior jurisprudence, the Court reiterated that section 12 protects against detention without satisfactory reason and also against detention through unfair procedure. It followed that even persons not entitled to invoke section 35 for this purpose were entitled to insist on procedural fairness under section 12.

Applying section 12, the Court found “nothing unfair” in the impugned mechanism, given its purpose and context. The Court treated the circumstances as exceptional: there were hundreds of death sentences to be replaced, the death penalty was no longer enforceable, and the cases had already been tried and reviewed or confirmed through the pre-existing capital punishment regime. The Court reasoned that a re-run, trial-like sentencing process would likely add delay and consume scarce resources without a demonstrated likelihood of producing materially new evidence relevant to the appropriate substituted sentence.

The Court dealt with the specific criticisms that had motivated the High Court—non-public proceedings, decision-making on papers, no right to adduce evidence, lack of a conventional judgment, exclusion of appeal, and the President’s role in imposing sentence—by situating them within the extraordinary context. It considered it significant that the persons concerned had already had a public trial, and that the judge considering substitution was required to consider written argument on behalf of the person sentenced, with a discretion to hear oral argument. As to the lack of an appeal under subsection (5), the Court accepted that this might be more troubling if there were no further control; however, it held that the President’s decision remained subject to judicial control and review, which mitigated the absence of a statutory appeal from the advisory process.

The Court then addressed separation of powers criticisms. It rejected the contention that the mechanism improperly required judges to perform impermissibly executive tasks. It accepted that judges can perform administrative functions provided they are not incompatible with judicial office, applying the approach articulated in earlier decisions. On the facts, the Court reasoned that assessing a record and submissions to determine an appropriate sentence is “peculiarly judicial” in nature, and the role allocated to the judge was not incompatible with judicial office nor did it materially breach the line between the judiciary and the other branches.

As to the President’s role, the Court accepted that the determination of sentence is ordinarily a judicial function, but distinguished between determining the sentence and merely substituting the advised sentence after the judicial process has concluded. It emphasised that the President had no discretion under subsection (4) to depart from the judge’s advice. The Court further reasoned that the President is constitutionally empowered to grant pardons and reprieves and to remit penalties, and that statutory provisions historically permitted commutation of death sentences. In that setting, the Court held that the President’s substitution of a sentence for a convicted person after completion of the judicial process did not, in this mechanism, amount to an impermissible intrusion into the judicial domain, and that taking judicial advice did not itself create a separation of powers violation.

Turning to the High Court’s setting aside of the President’s substitution decision, the Court held that this constituted a declaration of invalidity of presidential conduct requiring confirmation under section 172(2). Although there was no application to confirm that part of the order, the Court considered it undesirable to leave the issue unresolved because the High Court’s declaration created uncertainty as to the effectiveness of the President’s decision and the matter had not become moot.

On the merits, the Court held that the High Court’s reasons did not justify confirmation. Concerning the allocation of the matter to a judge other than the trial judge, the Court reasoned that section 1(2) required designation by the Judge President if the matter could not be dealt with by the original sentencing judge, and it inferred from the circumstances that the Judge President had made that determination. The Court regarded the reason for the trial judge’s unavailability as irrelevant to the constitutional question, and it considered that any attack on the Judge President’s decision-making could not properly be sustained without hearing the Judge President. Concerning whether written argument had been furnished on behalf of the second applicant, the Court held that scepticism about the judge’s statement to the President was speculative and that, at best, there was a factual dispute on the papers that could not be resolved without evidence. The Court also considered it relevant that the conduct of the judge who advised the President was implicated, and that such conduct should not ordinarily be declared unlawful without joining that judge.

Finally, the Court addressed systemic delay in substituting death sentences. It described the overall progress as unsatisfactory, accepted that further efforts were being made to complete substitutions, but considered that delays had been so extensive that reliance on assurances would be inadvisable. The Court held it had jurisdiction to issue a mandamus and exercise supervisory jurisdiction to ensure execution of its earlier order’s practical implications, and considered supervisory relief appropriate in the circumstances.

5. Outcome and Relief

The Constitutional Court refused to confirm the High Court’s order declaring subsections (1)–(5) of section 1 of the Criminal Law Amendment Act 105 of 1997 unconstitutional. It likewise refused to confirm the High Court’s order setting aside the sentence imposed by the President in terms of section 1(4).

The Court granted supervisory and mandatory relief directing the respondents to take all steps necessary to ensure that all death sentences imposed before 5 June 1995 were set aside and replaced by appropriate alternative sentences in terms of section 1 of the Act as soon as possible. It required the respondents to report to the Constitutional Court by 15 August 2005 with specified information concerning persons on death row as at 5 June 1995, substitutions already effected, and persons whose death sentences remained in place, as well as details of steps taken and availability of records. It further directed that appropriate affidavits be filed by the same date explaining why each death sentence had not yet been substituted, what steps would be taken, and motivating any further order required to facilitate substitution. The Court indicated it would issue further directions regarding supervision if necessary.

No order as to costs was made, in part because counsel had acted at the request of the Court without charging the applicants, and the applicants had incurred no costs.

Cases Cited

S v Makwanyane and Another [1995] ZACC 3; 1995 (3) SA 391 (CC); 1995 (6) BCLR 665 (CC).

Sibiya and Others v Director of Public Prosecutions and Others [2005] 1 All SA 105 (W).

President, Ordinary Court Martial, and Others v Freedom of Expression Institute and Others [1999] ZACC 10; 1999 (4) SA 682 (CC); 1999 (11) BCLR 1219 (CC).

National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others [1999] ZACC 17; 2000 (2) SA 1 (CC); 2000 (1) BCLR 39 (CC).

Independent Electoral Commission v Langeberg Municipality [2001] ZACC 23; 2001 (3) SA 925 (CC); 2001 (9) BCLR 883 (CC).

Uthukela District Municipality and Others v President of Republic of South Africa and Others [2002] ZACC 11; 2003 (1) SA 678 (CC); 2002 (11) BCLR 1220 (CC).

De Lange v Smuts NO and Others [1998] ZACC 6; 1998 (3) SA 785 (CC); 1998 (7) BCLR 779 (CC).

Nel v Le Roux NO and Others [1996] ZACC 6; 1996 (3) SA 562 (CC); 1996 (4) BCLR 592 (CC).

President of the Republic of South Africa and Others v South African Rugby Football Union and Others 2000 (1) SA 1 (CC); 1999 (10) BCLR 1059 (CC).

South African Association of Personal Injury Lawyers v Heath and Others [2000] ZACC 22; 2001 (1) SA 883 (CC); 2001 (1) BCLR 77 (CC).

President of the Republic of South Africa and Others v South African Rugby Football Union and Others [1998] ZACC 21; 1999 (2) SA 14 (CC); 1999 (2) BCLR 175 (CC).

City of Cape Town and Another v Robertson and Another [2004] ZACC 21; 2005 (2) SA 323 (CC); 2005 (3) BCLR 199 (CC).

Minister of Health and Others v Treatment Action Campaign and Others (No 2) [2002] ZACC 15; 2002 (5) SA 721 (CC); 2002 (10) BCLR 1075 (CC).

Legislation Cited

Constitution of the Republic of South Africa, 1996 (sections 12(1)(a), 35(3), 84(2)(j), 172(2)).

Criminal Law Amendment Act 105 of 1997 (section 1, including subsections (1)–(5) and (7)–(10)).

Criminal Procedure Act 51 of 1977 (sections 277, 205, 316A(1), 326).

Criminal Law Amendment Act 107 of 1990 (amending section 277 of the Criminal Procedure Act 51 of 1977; section 20).

Correctional Services Act 111 of 1998 (section 82).

Rules of Court Cited

Rule 16 of the Constitutional Court Rules.

Held

The Court held that subsections (1)–(5) of section 1 of the Criminal Law Amendment Act 105 of 1997 were not unconstitutional, and that the High Court’s order declaring them invalid could not be confirmed.

The Court held that the substitution mechanism did not trigger the fair trial guarantees in section 35(3) for this category of persons, because the death sentences were imposed before the constitutional era and were not retrospectively invalidated by Makwanyane. The relevant constitutional constraint was section 12(1)(a), requiring that deprivations of liberty occur through a procedure that is not unfair, and the Court found the impugned mechanism sufficiently fair given the exceptional context.

The Court held that the mechanism did not offend the separation of powers, because the judge’s role was compatible with judicial office and the President’s role was confined to substituting the sentence advised without discretion, in a context where post-conviction executive alteration of sentence is constitutionally and historically recognised.

The Court held that the High Court’s declaration of invalidity concerning the President’s substitution decision could not be confirmed, particularly given the inadequacy of the factual basis for finding irregularity on the papers and the implications for persons not joined.

The Court held that systemic delay justified supervisory relief, and it issued mandatory directions and reporting requirements to ensure outstanding pre-1995 death sentences were set aside and substituted as soon as possible.

LEGAL PRINCIPLES

The decision reaffirmed that a declaration of constitutional invalidity may operate prospectively, and that where invalidity is not retrospective, sentences imposed under the prior legal regime remain lawful sentences unless and until lawfully set aside, even if they can no longer be executed.

It applied the principle that section 35(3) fair trial rights, framed as rights of “every accused person”, concern the trial, sentencing, and appeal of persons prosecuted in the constitutional era, and do not automatically extend to require a fresh, trial-like sentencing process for persons whose trials and capital sentencing occurred before the Bill of Rights applied and whose sentences were not retrospectively invalidated.

The judgment applied the principle that section 12(1)(a) protects not only against deprivation of liberty without satisfactory reason, but also against deprivation of liberty through unfair procedure, thereby providing procedural protection to persons who cannot rely on section 35 for the specific context at issue.

On separation of powers, the Court applied the approach that judges may perform non-judicial functions where those functions are not incompatible with judicial office and do not materially compromise judicial independence, and that compatibility depends on a contextual assessment of the nature of the function.

It also applied the principle that, in the post-conviction setting, the executive’s constitutional and statutory powers to pardon, reprieve, and remit penalties help define the permissible space for executive involvement in sentence alteration, and that the executive’s reliance on judicial advice, in itself, does not necessarily create an unconstitutional intrusion into the judicial domain.

Finally, it applied the principle that the Constitutional Court may grant mandatory and supervisory orders to secure compliance with constitutional obligations and to supervise implementation where systemic delay threatens effective realisation of the Court’s orders and constitutional requirements.

Sibiya and Others v Director of Public Prosecutions: Johannesburg High Court and Others (CCT45/04) [2005] ZACC 6; 2005 (5) SA 315 (CC); 2005 (8) BCLR 812 (CC); 2006 (1) SACR 220 (CC); [2005] JOL 14514 (CC) (25 May 2005)