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In its very first decision, South Africa's newly created supreme court (called the Constitutional Court)
abolished the death penalty. This is the opinion written by Arthur Chaskalson, President of the Constitutional Court.
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
______________________________________________________________
[1] 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.
[2] 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.
[3] 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 (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.
[4] 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.
[5] 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.
[6] 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
[7] 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
[8] 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.
[9] 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 approval7 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
[10] 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
[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
[12] 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.
[13] 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
[14] 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 Hart14 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
[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.
[16] 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 State22 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
prhparatoires.23
[17] 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
prhparatoires, 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.
[18] 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 multiplici
ty of
persons
, some
of whom
took
part in
the
negotia
tions,
and
others
who as
members
of
Parliam
ent
enacted
the
final
draft.
The
same
caution
is
called
for in
respect
of the
comment
s of
individ
ual
actors
in the
process
, no
matter
how
promine
nt a
role
they
might
have
played.
[19] 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.
[20] 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
[21] 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.
[22] 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
[23] 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
[24] 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.
[25] 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
[26] 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
[27] 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
[28] 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.
[29] 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.
[30] 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
[31] 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.
[32] 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
[33] 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.
[34] 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.
[35] 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.
[36] 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.
[37] 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.
[38] 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
[39] 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
[40] 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
[41] 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.
[42] 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
[43] 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.
[44] 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.
[45] 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
[46] 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
[47] 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.
[48] 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. Race78 and poverty are also
alleged to be factors.
[49] 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
[50] 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.
[51] 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
[52] 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
[53] 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.
[54] 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
[55] 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.85
To design a system that avoids arbitrariness and delays
in carrying out the sentence is even more difficult.
[56] 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
[57] 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
[58] 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.
[59] 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
[60] That capital punishment constitutes a serious
impairment of human dignity has also been recognised by
judgments of the Canadian Supreme Court. Kindler v
Canada90 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
[61] 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.
[62] 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
[63] 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
[64] 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
[65] 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.
[66] 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.
[67] 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
[68] 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.
[69] 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
[70] 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.
[71] 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.
[72] 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
[73] 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.
[74] 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.
[75] 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
[76] 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
[77] 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
[78] 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.
[79] 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
[80] 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.
[81] 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.
[82] 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
[83] 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
[84] 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.
[85] 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.
[86] 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
[87] 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.
[88] 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.
[89] 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
[90] 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
[91] 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
[92] 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
[93] 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.
[94] 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 the
crime 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 crossed121 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.
[95] 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?
[96] 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.
[97] 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 case123 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).
[98] 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.
[99] 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
[100] 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.
[101] 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
[102] 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
[103] 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.
[104] 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
[105] 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
[106] 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.
[107] 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 Irwin 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
[108] 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
[109] 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?
[110] 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.
[111] "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.
[112] 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
[113] 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
[114] 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.
[115] 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
[116] 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.
[117] 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).
[118] 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.
[119] 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.
[120] 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.
[121] 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.
[122] 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.
[123] 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.
[124] 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.
[125] 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.
[126] 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?
[127] 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
[128] 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
[129] 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.
[130] 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)
[131] 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
[132] 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
[133] 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.
[134] 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
[135] 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.
[136] 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.
[137] 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.
[138] 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.
[139] 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.
[140] 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.
[141] 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.
[142] 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
[143] 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
[144] 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.
[145] 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.
[146] 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
[147] 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.
[148] 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 27th 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
[149] 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.
[150] 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.
[151] The following order is made:
1. 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.
2. In terms of section 98(7) of the Constitution, and
with effect from the date of this order:
(a) 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
(b) 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.
A. CHASKALSON
PRESIDENT, CONSTITUTIONAL COURT
_______________________________
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 Dunges, 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 Dunges, 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 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 º23.6 (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 prhparatoires 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 prhparatoires.
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, 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, 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, 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, 428 U.S. 280 (1976); Roberts v.
Louisiana, 428 U.S. 325 (1976), reh'g denied 429 U.S. 890
(1976); Lockett v. Ohio, 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, 428 U.S. 242 (1976).
The nature of the offence for which the sentence is imposed is
also relevant. Coker v. Georgia, 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 (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 (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). 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.
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) 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 be 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
(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.
112 319 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 (1993) 16 EHRR 1, para. 63.
142 Handyside v United Kingdom (1979-80) 1 EHRR 737, para. 49.
143 Dudgeon v United Kingdom (1981) 4 EHRR 149, para. 52; Norris
v Ireland (1988) 13 EHRR 186, para. 46; Modinos v Cyprus
(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) 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.
