Chaskalson P: The two accused in this matter were convicted in the Witwatersrand Local Division of the Supreme Court on four counts of murder, one count of attempted murder and one count of robbery with aggravating circumstances. They were sentenced to death on each of the counts of murder and to long terms of imprisonment on the other counts. They appealed to the Appellate Division of the Supreme Court against the convictions and sentences. The Appellate Division dismissed the appeals against the convictions and came to the conclusion that the circumstances of the murders were such that the accused should receive the heaviest sentence permissible according to law.
Section 277(1)(a) of the Criminal Procedure Act No. 51 of 1977 prescribes that the death penalty is a competent sentence for murder. Counsel for the accused was invited by the Appellate Division to consider whether this provision was consistent with the Republic of South Africa Constitution, 1993, which had come into force subsequent to the conviction and sentence by the trial court. He argued that it was not, contending that it was in conflict with the provisions of sections 9 and 11(2) of the Constitution.
The Appellate Division dismissed the appeals against the sentences on the counts of attempted murder and robbery, but postponed the further hearing of the appeals against the death sentence until the constitutional issues are decided by this Court. See: S v Makwanyane en 'n Ander 1994 (3) SA 868 (A). Two issues were raised: the constitutionality of section 277(1)(a) of the Criminal Procedure Act, and the implications of section 241(8) of the Constitution. Although there was no formal reference of these issues to this Court in terms of section 102(6) of the Constitution, that was implicit in the judgment of the Appellate Division, and was treated as such by the parties.
The trial was concluded before the 1993 Constitution came into force, and so the question of the constitutionality of the death sentence did not arise at the trial. Because evidence which might possibly be relevant to that issue would not have been led, we asked counsel appearing before this Court to consider whether evidence, other than undisputed information placed before us in argument, would be relevant to the determination of the question referred to us by the Appellate Division. Apart from the issue of public opinion, with which I will deal later in this judgment, counsel were not able to point to specific material that had not already been placed before us which might be relevant to the decision on the constitutional issues raised in this case. I am satisfied that no good purpose would be served by referring the case back to the trial court for the hearing of further evidence and that we should deal with the matter on the basis of the information and arguments that have been presented to us.
It would no doubt have been better if the framers of the Constitution had stated specifically, either that the death sentence is not a competent penalty, or that it is permissible in circumstances sanctioned by law. This, however, was not done and it has been left to this Court to decide whether the penalty is consistent with the provisions of the Constitution. That is the extent and limit of the Court's power in this case.
No executions have taken place in South Africa since 1989. 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. This is an intolerable situation and it is essential that it be resolved one way or another without further delay.
The Relevant Provisions of 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.
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.
Chapter Three of the Constitution sets out the fundamental rights to which every person is entitled under the Constitution and also contains provisions dealing with the way in which the Chapter is to be interpreted by the Courts. It does not deal specifically with the death penalty, but in section 11(2), it prohibits "cruel, inhuman or degrading treatment or punishment." There is no definition of what is to be regarded as "cruel, inhuman or degrading" and we therefore have to give meaning to these words ourselves.
In S v Zuma and Two Others, this Court dealt with the approach to be adopted in the interpretation of the fundamental rights enshrined in Chapter Three of the Constitution. It gave its approval to an approach which, whilst paying due regard to the language that has been used, is "generous" and "purposive" and gives expression to the underlying values of the Constitution. Kentridge AJ, who delivered the judgment of the Court, referred with approval 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.
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. It must also be construed in a way which secures for "individuals the full measure" of its protection. 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.
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.
The written argument of the South African government deals with the debate which took place in regard to the death penalty before the commencement of the constitutional negotiations. The information that it placed before us was not disputed. It was argued that this background information forms part of the context within which the Constitution should be interpreted.
Our Courts have held that it is permissible in interpreting a statute to have regard to the purpose and background of the legislation in question.
Certainly no less important than the oft repeated statement that the words and expressions used in a statute must be interpreted according to their ordinary meaning is the statement that they must be interpreted in the light of their context. But it may be useful to stress two points in relation to the application of this principle. The first is that "the context", as here used, is not limited to the language of the rest of the statute regarded as throwing light of a dictionary kind on the part to be interpreted. Often of more importance is the matter of the statute, its apparent scope and purpose, and, within limits, its background.
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." These principles were derived in part from English law. In England, the courts have recently relaxed this exclusionary rule and have held, in Pepper (Inspector of Taxes) v Hart 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.
As the judgment in Pepper's case shows, a similar relaxation of the exclusionary rule has apparently taken place in Australia and New Zealand. Whether our Courts should follow these examples and extend the scope of what is admissible as background material for the purpose of interpreting statutes does not arise in the present case. We are concerned with the interpretation of the Constitution, and not the interpretation of ordinary legislation. A constitution is no ordinary statute. It is the source of legislative and executive authority. It determines how the country is to be governed and how legislation is to be enacted. It defines the powers of the different organs of State, including Parliament, the executive, and the courts as well as the fundamental rights of every person which must be respected in exercising such powers.
In countries in which the constitution is similarly the supreme law, it is not unusual for the courts to have regard to the circumstances existing at the time the constitution was adopted, including the debates and writings which formed part of the process. The United States Supreme Court pays attention to such matters, and its judgments frequently contain reviews of the legislative history of the provision in question, including references to debates, and statements made, at the time the provision was adopted. The German Constitutional Court also has regard to such evidence. 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. It also has regard to ministerial statements in Parliament in regard to the purpose of particular legislation. 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." Seervai cites Kania CJ in A. K. Gopalan v The State for the proposition that whilst not taking "…into consideration the individual opinions of Members of Parliament or Convention to construe the meaning of a particular clause, when a question is raised whether a certain phrase or expression was up for consideration at all or not, a reference to debates may be permitted." The European Court of Human Rights and the United Nations Committee on Human Rights all allow their deliberations to be informed by travaux préparatoires.
Our Constitution was the product of negotiations conducted at the Multi-Party Negotiating Process. The final draft adopted by the forum of the Multi-Party Negotiating Process was, with few changes, adopted by Parliament. The Multi-Party Negotiating Process was advised by technical committees, and the reports of these committees on the drafts are the equivalent of the travaux préparatoires, relied upon by the international tribunals. Such background material can provide a context for the interpretation of the Constitution and, where it serves that purpose, I can see no reason why such evidence should be excluded. The precise nature of the evidence, and the purpose for which it may be tendered, will determine the weight to be given to it.
It has been said in respect of the Canadian constitution that:
…the Charter is not the product of a few individual public servants, however distinguished, but of a multiplicity of individuals who played major roles in the negotiating, drafting and adoption of the Charter. How can one say with any confidence that within this enormous multiplicity of actors … the comments of a few federal civil servants can in any way be determinative.
Our Constitution is also the product of a multiplicity of persons, some of whom took part in the negotiations, and others who as members of Parliament enacted the final draft. The same caution is called for in respect of the comments of individual actors in the process, no matter how prominent a role they might have played.
Background evidence may, however, be useful to show why particular provisions were or were not included in the Constitution. It is neither necessary nor desirable at this stage in the development of our constitutional law to express any opinion on whether it might also be relevant for other purposes, nor to attempt to lay down general principles governing the admissibility of such evidence. It is sufficient to say that where the background material is clear, is not in dispute, and is relevant to showing why particular provisions were or were not included in the Constitution, it can be taken into account by a Court in interpreting the Constitution. These conditions are satisfied in the present case.
Capital punishment was the subject of debate before and during the constitution-making process, and it is clear that the failure to deal specifically in the Constitution with this issue was not accidental.
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. These proposals were later enacted into law by the Criminal Law Amendment Act No. 107 of 1990.
In August 1991, the South African Law Commission in its Interim Report on Group and Human Rights described the imposition of the death penalty as "highly controversial". 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" 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. "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."
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.
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.
The moratorium was in respect of the carrying out, and not the imposition, of the death sentence. The death sentence remained a lawful punishment and although the courts may possibly have been influenced by the moratorium, they continued to impose it in cases in which it was considered to be the "only proper" sentence. According to the statistics provided to us by the Attorney General, 243 persons have been sentenced to death since the amendment to section 277 in 1990, and of these sentences, 143 have been confirmed by the Appellate Division.
In the constitutional negotiations which followed, the issue was not resolved. Instead, the "Solomonic solution" was adopted. The death sentence was, in terms, neither sanctioned nor excluded, and it was left to the Constitutional Court to decide whether the provisions of the pre-constitutional law making the death penalty a competent sentence for murder and other crimes are consistent with Chapter Three of the Constitution. If they are, the death sentence remains a competent sentence for murder in cases in which those provisions are applicable, unless and until Parliament otherwise decides; if they are not, it is our duty to say so, and to declare such provisions to be unconstitutional.
Section 11(2) - Cruel, Inhuman or Degrading Punishment
Death is the most extreme form of punishment to which a convicted criminal can be subjected. Its execution is final and irrevocable. It puts an end not only to the right to life itself, but to all other personal rights which had vested in the deceased under Chapter Three of the Constitution. It leaves nothing except the memory in others of what has been and the property that passes to the deceased's heirs. In the ordinary meaning of the words, the death sentence is undoubtedly a cruel punishment. Once sentenced, the prisoner waits on death row in the company of other prisoners under sentence of death, for the processes of their appeals and the procedures for clemency to be carried out. Throughout this period, those who remain on death row are uncertain of their fate, not knowing whether they will ultimately be reprieved or taken to the gallows. Death is a cruel penalty and the legal processes which necessarily involve waiting in uncertainty for the sentence to be set aside or carried out, add to the cruelty. It is also an inhuman punishment for it "…involves, by its very nature, a denial of the executed person's humanity", 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. The accused, who rely on section 11(2) of the Constitution, carry the initial onus of establishing this proposition.
The Contentions of the Parties
The principal arguments advanced by counsel for the accused in support of their contention that the imposition of the death penalty for murder is a "cruel, inhuman or degrading punishment," were that the death sentence is an affront to human dignity, is inconsistent with the unqualified right to life entrenched in the Constitution, cannot be corrected in case of error or enforced in a manner that is not arbitrary, and that it negates the essential content of the right to life and the other rights that flow from it. The Attorney General argued that the death penalty is recognised as a legitimate form of punishment in many parts of the world, it is a deterrent to violent crime, it meets society's need for adequate retribution for heinous offences, and it is regarded by South African society as an acceptable form of punishment. He asserted that it is, therefore, not cruel, inhuman or degrading within the meaning of section 11(2) of the Constitution. These arguments for and against the death sentence are well known and have been considered in many of the foreign authorities and cases to which we were referred. We must deal with them now in the light of the provisions of our own Constitution.
The Effect of the Disparity in the Laws Governing Capital Punishment
One of the anomalies of the transition initiated by the Constitution is that the Criminal Procedure Act does not apply throughout South Africa. This is a consequence of section 229 of the Constitution which provides:
Subject to this Constitution, all laws which immediately before the commencement of this Constitution were in force in any area which forms part of the national territory, shall continue in force in such area, subject to any repeal or amendment of such laws by a competent authority.
Prior to the commencement of the Constitution, the Criminal Procedure Act was in force only in the old Republic of South Africa. Its operation did not extend to the former Transkei, Bophuthatswana, Venda or Ciskei, which were then treated by South African law as independent states and had their own legislation. Although their respective Criminal Procedure statutes were based on the South African legislation, there were differences, including differences in regard to the death penalty. The most striking difference in this regard was in Ciskei, where the death sentence was abolished on June 8, 1990 by the military regime, the de facto government of the territory, and it ceased from that date to be a competent sentence. These differences still exist, which means that the law governing the imposition of the death sentence in South Africa is not uniform. The greatest disparity is in the Eastern Cape Province. A person who commits murder and is brought to trial in that part of the province which was formerly Ciskei, cannot be sentenced to death, whilst a person who commits murder and is brought to trial in another part of the same province, can be sentenced to death. There is no rational reason for this distinction, which is the result of history, and we asked for argument to be addressed to us on the question whether this difference has a bearing on the constitutionality of section 277(1)(a) of the Criminal Procedure Act.
Counsel for the accused argued that it did. They contended that in the circumstances section 277 was not a law of general application (which is a requirement under section 33(1) for the validity of any law which limits a Chapter Three right), and that the disparate application of the death sentence within South Africa discriminates unfairly between those prosecuted in the former Ciskei and those prosecuted elsewhere in South Africa, and offends against the right to "equality before the law and to equal protection of the law."
If the disparity had been the result of legislation enacted after the Constitution had come into force the challenge to the validity of section 277 on these grounds may well have been tenable. Criminal law and procedure is a national competence and the national government could not without very convincing reasons have established a "safe haven" in part of one of the provinces in which the death penalty would not be enforced. The disparity is not, however, the result of the legislative policy of the new Parliament, but a consequence of the Constitution which brings together again in one country the parts that had been separated under apartheid. The purpose of section 229 was to ensure an orderly transition, and an inevitable consequence of its provisions is that there will be disparities in the law reflecting pre-existing regional variations, and that this will continue until a uniform system of law has been established by the national and provincial legislatures within their fields of competence as contemplated by Chapter Fifteen of the Constitution.
The requirement of section 229 that existing laws shall continue to be in force subject to the Constitution, makes the Constitution applicable to existing laws within each of the geographic areas. These laws have to meet all the standards prescribed by Chapter Three, and this no doubt calls for consistency and parity of laws within the boundaries of each of the different geographic areas. It does not, however, mean that there has to be consistency and parity between the laws of the different geographic areas themselves. Such a construction would defeat the apparent purpose of section 229, which is to allow different legal orders to exist side by side until a process of rationalisation has been carried out, and would inappropriately expose a substantial part if not the entire body of our statutory law to challenges under section 8 of the Constitution. It follows that disparities between the legal orders in different parts of the country, consequent upon the provisions of section 229 of the Constitution, cannot for that reason alone be said to constitute a breach of the equal protection provisions of section 8, or render the laws such that they are not of general application.
International and Foreign Comparative Law
The death sentence is a form of punishment which has been used throughout history by different societies. It has long been the subject of controversy. As societies became more enlightened, they restricted the offences for which this penalty could be imposed. 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. 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. In most of those countries where it is retained, as the Amnesty International statistics show, it is seldom used.
In the course of the arguments addressed to us, we were referred to books and articles on the death sentence, and to judgments dealing with challenges made to capital punishment in the courts of other countries and in international tribunals. The international and foreign authorities are of value because they analyse arguments for and against the death sentence and show how courts of other jurisdictions have dealt with this vexed issue. For that reason alone they require our attention. They may also have to be considered because of their relevance to section 35(1) of the Constitution, which states:
In interpreting the provisions of this Chapter a court of law shall promote the values which underlie an open and democratic society based on freedom and equality and shall, where applicable, have regard to public international law applicable to the protection of the rights entrenched in this Chapter, and may have regard to comparable foreign case law.
Customary international law and the ratification and accession to international agreements is dealt with in section 231 of the Constitution which sets the requirements for such law to be binding within South Africa. In the context of section 35(1), public international law would include non-binding as well as binding law. 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, the Inter-American Commission on Human Rights, the Inter-American Court of Human Rights, the European Commission on Human Rights, and the European Court of Human Rights, and in appropriate cases, reports of specialised agencies such as the International Labour Organisation may provide guidance as to the correct interpretation of particular provisions of Chapter Three.
Capital punishment is not prohibited by public international law, and this is a factor that has to be taken into account in deciding whether it is cruel, inhuman or degrading punishment within the meaning of section 11(2). International human rights agreements differ, however, from our Constitution in that where the right to life is expressed in unqualified terms they either deal specifically with the death sentence, or authorise exceptions to be made to the right to life by law. This has influenced the way international tribunals have dealt with issues relating to capital punishment, and is relevant to a proper understanding of such decisions.
Comparative "bill of rights" jurisprudence will no doubt be of importance, particularly in the early stages of the transition when there is no developed indigenous jurisprudence in this branch of the law on which to draw. Although we are told by section 35(1) that we "may" have regard to foreign case law, it is important to appreciate that this will not necessarily offer a safe guide to the interpretation of Chapter Three of our Constitution. This has already been pointed out in a number of decisions of the Provincial and Local Divisions of the Supreme Court, and is implicit in the injunction given to the Courts in section 35(1), which in permissive terms allows the Courts to "have regard to" such law. There is no injunction to do more than this.
When challenges to the death sentence in international or foreign courts and tribunals have failed, the constitution or the international instrument concerned has either directly sanctioned capital punishment or has specifically provided that the right to life is subject to exceptions sanctioned by law. The only case to which we were referred in which there were not such express provisions in the Constitution, was the decision of the Hungarian Constitutional Court. There the challenge succeeded and the death penalty was declared to be unconstitutional.
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. We can derive assistance from public international law and foreign case law, but we are in no way bound to follow it.
Capital Punishment in the United States of America
The earliest litigation on the validity of the death sentence seems to have been pursued in the courts of the United States of America. It has been said there that the "Constitution itself poses the first obstacle to [the] argument that capital punishment is per se unconstitutional". 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. The argument that capital punishment is unconstitutional was based on the Eighth Amendment, which prohibits cruel and unusual punishment. Although the Eighth Amendment "has not been regarded as a static concept" and as drawing its meaning "from the evolving standards of decency that mark the progress of a maturing society", 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.
Although challenges under state constitutions to the validity of the death sentence have been successful, 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. 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. The decisions ultimately turned on the votes of those judges who considered the nature of the discretion given to the sentencing authority to be the crucial factor.
Statutes providing for mandatory death sentences, or too little discretion in sentencing, have been rejected by the Supreme Court because they do not allow for consideration of factors peculiar to the convicted person facing sentence, which may distinguish his or her case from other cases. 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. 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", the challenge to the statute has failed.
Arbitrariness and Inequality
Basing his argument on the reasons which found favour with the majority of the United States Supreme Court in Furman v. Georgia, Mr Trengove contended on behalf of the accused that the imprecise language of section 277, and the unbounded discretion vested by it in the Courts, make its provisions unconstitutional.
Section 277 of the Criminal Procedure Act provides:
Sentence of death
(1) The sentence of death may be passed by a superior court only and only in the case of a conviction for— (a) murder; (b) treason committed when the Republic is in a state of war; (c) robbery or attempted robbery, if the court finds aggravating circumstances to have been present; (d) kidnapping; (e) child-stealing; (f) rape. (2) The sentence of death shall be imposed— (a) after the presiding judge conjointly with the assessors (if any), subject to the provisions of s 145(4)(a), or, in the case of a trial by a special superior court, that court, with due regard to any evidence and argument on sentence in terms of section 274, has made a finding on the presence or absence of any mitigating or aggravating factors; and (b) if the presiding judge or court, as the case may be, with due regard to that finding, is satisfied that the sentence of death is the proper sentence. (3) (a) The sentence of death shall not be imposed upon an accused who was under the age of 18 years at the time of the commission of the act which constituted the offence concerned. (b) If in the application of paragraph (a) the age of an accused is placed in issue, the onus shall be on the State to show beyond reasonable doubt that the accused was 18 years of age or older at the relevant time.
Under our court system questions of guilt and innocence, and the proper sentence to be imposed on those found guilty of crimes, are not decided by juries. In capital cases, where it is likely that the death sentence may be imposed, judges sit with two assessors who have an equal vote with the judge on the issue of guilt and on any mitigating or aggravating factors relevant to sentence; but sentencing is the prerogative of the judge alone. The Criminal Procedure Act allows a full right of appeal to persons sentenced to death, including a right to dispute the sentence without having to establish an irregularity or misdirection on the part of the trial judge. The Appellate Division is empowered to set the sentence aside if it would not have imposed such sentence itself, and it has laid down criteria for the exercise of this power by itself and other courts. 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.
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. Due regard must be paid to the personal circumstances and subjective factors which might have influenced the accused person's conduct, 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. In this process "[e]very relevant consideration should receive the most scrupulous care and reasoned attention", 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.
There seems to me to be little difference between the guided discretion required for the death sentence in the United States, and the criteria laid down by the Appellate Division for the imposition of the death sentence. The fact that the Appellate Division, a court of experienced judges, takes the final decision in all cases is, in my view, more likely to result in consistency of sentencing, than will be the case where sentencing is in the hands of jurors who are offered statutory guidance as to how that discretion should be exercised.
The argument that the imposition of the death sentence under section 277 is arbitrary and capricious does not, however, end there. It also focuses on what is alleged to be the arbitrariness inherent in the application of section 277 in practice. Of the thousands of persons put on trial for murder, only a very small percentage are sentenced to death by a trial court, and of those, a large number escape the ultimate penalty on appeal. At every stage of the process there is an element of chance. The outcome may be dependent upon factors such as the way the case is investigated by the police, the way the case is presented by the prosecutor, how effectively the accused is defended, the personality and particular attitude to capital punishment of the trial judge and, if the matter goes on appeal, the particular judges who are selected to hear the case. Race and poverty are also alleged to be factors.
Most accused facing a possible death sentence are unable to afford legal assistance, and are defended under the pro deo system. The defending counsel is more often than not young and inexperienced, frequently of a different race to his or her client, and if this is the case, usually has to consult through an interpreter. Pro deo counsel are paid only a nominal fee for the defence, and generally lack the financial resources and the infrastructural support to undertake the necessary investigations and research, to employ expert witnesses to give advice, including advice on matters relevant to sentence, to assemble witnesses, to bargain with the prosecution, and generally to conduct an effective defence. Accused persons who have the money to do so, are able to retain experienced attorneys and counsel, who are paid to undertake the necessary investigations and research, and as a result they are less likely to be sentenced to death than persons similarly placed who are unable to pay for such services.
It needs to be mentioned that there are occasions when senior members of the bar act pro deo in particularly difficult cases—indeed the present case affords an example of that, for Mr Trengove and his juniors have acted pro deo in the proceedings before us, and the Legal Resources Centre who have acted as their instructing attorneys, have done so without charge. An enormous amount of research has gone into the preparation of the argument and it is highly doubtful that even the wealthiest members of our society could have secured a better service than they have provided. But this is the exception and not the rule. This may possibly change as a result of the provisions of section 25(3)(e) of the Constitution, but there are limits to the available financial and human resources, limits which are likely to exist for the foreseeable future, and which will continue to place poor accused at a significant disadvantage in defending themselves in capital cases.
It cannot be gainsaid that poverty, race and chance play roles in the outcome of capital cases and in the final decision as to who should live and who should die. It is sometimes said that this is understood by the judges, and as far as possible, taken into account by them. But in itself this is no answer to the complaint of arbitrariness; on the contrary, it may introduce an additional factor of arbitrariness that would also have to be taken into account. Some, but not all accused persons may be acquitted because such allowances are made, and others who are convicted, but not all, may for the same reason escape the death sentence.
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.
It was contended that we should follow this approach and hold that the factors to which I have referred, make the application of section 277, in practice, arbitrary and capricious and, for that reason, any resulting death sentence is cruel, inhuman and degrading punishment.
The differences that exist between rich and poor, between good and bad prosecutions, between good and bad defence, between severe and lenient judges, between judges who favour capital punishment and those who do not, and the subjective attitudes that might be brought into play by factors such as race and class, may in similar ways affect any case that comes before the courts, and is almost certainly present to some degree in all court systems. Such factors can be mitigated, but not totally avoided, by allowing convicted persons to appeal to a higher court. Appeals are decided on the record of the case and on findings made by the trial court. If the evidence on record and the findings made have been influenced by these factors, there may be nothing that can be done about that on appeal. Imperfection inherent in criminal trials means that error cannot be excluded; it also means that persons similarly placed may not necessarily receive similar punishment. This needs to be acknowledged. What also needs to be acknowledged is that the possibility of error will be present in any system of justice and that there cannot be perfect equality as between accused persons in the conduct and outcome of criminal trials. We have to accept these differences in the ordinary criminal cases that come before the courts, even to the extent that some may go to gaol when others similarly placed may be acquitted or receive non-custodial sentences. But death is different, and the question is, whether this is acceptable when the difference is between life and death. Unjust imprisonment is a great wrong, but if it is discovered, the prisoner can be released and compensated; but the killing of an innocent person is irremediable.
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, 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. The difficulty of implementing a system of capital punishment which on the one hand avoids arbitrariness by insisting on a high standard of procedural fairness, and on the other hand avoids delays that in themselves are the cause of impermissible cruelty and inhumanity, is apparent. Justice Blackmun, who sided with the majority in Gregg's case, ultimately came to the conclusion that it is not possible to design a system that avoids arbitrariness. To design a system that avoids arbitrariness and delays in carrying out the sentence is even more difficult.
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, but from which they have drawn different conclusions, persuade me that we should not follow this route.
The Right to Dignity
Although the United States Constitution does not contain a specific guarantee of human dignity, it has been accepted by the United States Supreme Court that the concept of human dignity is at the core of the prohibition of "cruel and unusual punishment" by the Eighth and Fourteenth Amendments. 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."
Under our constitutional order the right to human dignity is specifically guaranteed. It can only be limited by legislation which passes the stringent test of being 'necessary'. The weight given to human dignity by Justice Brennan is wholly consistent with the values of our Constitution and the new order established by it. It is also consistent with the approach to extreme punishments followed by courts in other countries.
In Germany, the Federal Constitutional Court has stressed this aspect of punishment.
Respect for human dignity especially requires the prohibition of cruel, inhuman, and degrading punishments. [The state] cannot turn the offender into an object of crime prevention to the detriment of his constitutionally protected right to social worth and respect.
That capital punishment constitutes a serious impairment of human dignity has also been recognised by judgments of the Canadian Supreme Court. Kindler v Canada 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…
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.
In the result, however, the majority of the Court held that the validity of the order for extradition did not depend upon the constitutionality of the death penalty in Canada, or the guarantee in its Charter of Rights against cruel and unusual punishment. The Charter was concerned with legislative and executive acts carried out in Canada, and an order for extradition neither imposed nor authorised any punishment within the borders of Canada.
The issue in Kindler's case was whether the action of the Minister of Justice, who had authorised the extradition without any assurance that the death penalty would not be imposed, was constitutional. It was argued that this executive act was contrary to section 12 of the Charter which requires the executive to act in accordance with fundamental principles of justice. The Court decided by a majority of four to three that in the particular circumstances of the case the decision of the Minister of Justice could not be set aside on these grounds. In balancing the international obligations of Canada in respect of extradition, and another purpose of the extradition legislation—to prevent Canada from becoming a safe haven for criminals, against the likelihood that the fugitives would be executed if returned to the United States, the view of the majority was that the decision to return the fugitives to the United States could not be said to be contrary to the fundamental principles of justice. In their view, it would not shock the conscience of Canadians to permit this to be done.
The International Covenant on Civil and Political Rights
Ng and Kindler took their cases to the Human Rights Committee of the United Nations, contending that Canada had breached its obligations under the International Covenant on Civil and Political Rights. Once again, there was a division of opinion within the tribunal. In Ng's case it was said:
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.
The Committee also held in Kindler's case that prolonged judicial proceedings giving rise to the death row phenomenon does not per se constitute cruel, inhuman or degrading treatment. There were dissents in both cases. Some Commissioners in Ng's case held that asphyxiation was not crueller than other forms of execution. Some in Kindler's case held that the provision of the International Covenant against the arbitrary deprivation of the right to life took priority over the provisions of the International Covenant which allow the death sentence, and that Canada ought not in the circumstances to have extradited Kindler without an assurance that he would not be executed.
It should be mentioned here that although articles 6(2) to (5) of the International Covenant specifically allow the imposition of the death sentence under strict controls "for the most serious crimes" by those countries which have not abolished it, it provides in article 6(6) that "[n]othing in this article shall be invoked to delay or to prevent the abolition of capital punishment by any State Party to the present Covenant." The fact that the International Covenant sanctions capital punishment must be seen in this context. It tolerates but does not provide justification for the death penalty.
Despite these differences of opinion, what is clear from the decisions of the Human Rights Committee of the United Nations is that the death penalty is regarded by it as cruel and inhuman punishment within the ordinary meaning of those words, and that it was because of the specific provisions of the International Covenant authorising the imposition of capital punishment by member States in certain circumstances, that the words had to be given a narrow meaning.
The European Convention on Human Rights
Similar issues were debated by the European Court of Human Rights in Soering v United Kingdom. This case was also concerned with the extradition to the United States of a fugitive to face murder charges for which capital punishment was a competent sentence. It was argued that this would expose him to inhuman and degrading treatment or punishment in breach of article 3 of the European Convention on Human Rights. Article 2 of the European Convention protects the right to life but makes an exception in the case of "the execution of a sentence of a court following [the] conviction of a crime for which this penalty is provided by law." The majority of the Court held that article 3 could not be construed as prohibiting all capital punishment, since to do so would nullify article 2. It was, however, competent to test the imposition of capital punishment in particular cases against the requirements of article 3—the manner in which it is imposed or executed, the personal circumstances of the condemned person and the disproportionality to the gravity of the crime committed, as well as the conditions of detention awaiting execution, were capable of bringing the treatment or punishment received by the condemned person within the proscription.
On the facts, it was held that extradition to the United States to face trial in Virginia would expose the fugitive to the risk of treatment going beyond the threshold set by article 3. The special factors taken into account were the youth of the fugitive (he was 18 at the time of the murders), an impaired mental capacity, and the suffering on death row which could endure for up to eight years if he were convicted. Additionally, although the offence for which extradition was sought had been committed in the United States, the fugitive who was a German national was also liable to be tried for the same offence in Germany. Germany, which has abolished the death sentence, also sought his extradition for the murders. There was accordingly a choice in regard to the country to which the fugitive should be extradited, and that choice should have been exercised in a way which would not lead to a contravention of article 3. What weighed with the Court was the fact that the choice facing the United Kingdom was not a choice between extradition to face a possible death penalty and no punishment, but a choice between extradition to a country which allows the death penalty and one which does not. We are in a comparable position. A holding by us that the death penalty for murder is unconstitutional, does not involve a choice between freedom and death; it involves a choice between death in the very few cases which would otherwise attract that penalty under section 277(1)(a), and the severe penalty of life imprisonment.
Capital Punishment in India
In the amicus brief of the South African Police, reliance was placed on decisions of the Indian Supreme Court, and it is necessary to refer briefly to the way the law has developed in that country.
Section 302 of the Indian Penal Code authorises the imposition of the death sentence as a penalty for murder. In Bachan Singh v State of Punjab, the constitutionality of this provision was put in issue. Article 21 of the Indian Constitution provides that:
No person shall be deprived of his life or personal liberty except according to procedure established by law.
The wording of this article presented an obstacle to a challenge to the death sentence, because there was a "law" which made provision for the death sentence. Moreover, article 72 of the Constitution empowers the President and Governors to commute sentences of death, and article 134 refers to the Supreme Court's powers on appeal in cases where the death sentence has been imposed. It was clear, therefore, that capital punishment was specifically contemplated and sanctioned by the framers of the Indian Constitution, when it was adopted by them in November 1949.
Counsel for the accused in Bachan Singh's case sought to overcome this difficulty by contending that article 21 had to be read with article 19(1), which guarantees the freedoms of speech, of assembly, of association, of movement, of residence, and the freedom to engage in any occupation. These fundamental freedoms can only be restricted under the Indian Constitution if the restrictions are reasonable for the attainment of a number of purposes defined in sections 19(2) to (6). It was contended that the right to life was basic to the enjoyment of these fundamental freedoms, and that the death sentence restricted them unreasonably in that it served no social purpose, its deterrent effect was unproven and it defiled the dignity of the individual.
The Supreme Court analysed the provisions of article 19(1) and came to the conclusion, for reasons that are not material to the present case, that the provisions of section 302 of the Indian Penal Code did "not have to stand the test of article 19(1) of the Constitution." It went on, however, to consider "arguendo" what the outcome would be if the test of reasonableness and public interest under article 19(1) had to be satisfied.
The Supreme Court had recognised in a number of cases that the death sentence served as a deterrent, and the Law Commission of India, which had conducted an investigation into capital punishment in 1967, had recommended that capital punishment be retained. The court held that in the circumstances it was "for the petitioners to prove and establish that the death sentence for murder is so outmoded, unusual or excessive as to be devoid of any rational nexus with the purpose and object of the legislation."
The Court then dealt with international authorities for and against the death sentence, and with the arguments concerning deterrence and retribution. 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.
It accordingly held that section 302 of the Indian Penal Code "violates neither the letter nor the ethos of Article 19."
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.
The wording of the relevant provisions of our Constitution are different. The question we have to consider is not whether the imposition of the death sentence for murder is "totally devoid of reason and purpose", or whether the death sentence for murder "is devoid of any rational nexus" with the purpose and object of section 277(1)(a) of the Criminal Procedure Act. It is whether in the context of our Constitution, the death penalty is cruel, inhuman or degrading, and if it is, whether it can be justified in terms of section 33.
The Indian Penal Code leaves the imposition of the death sentence to the trial judge's discretion. In Bachan Singh's case there was also a challenge to the constitutionality of the legislation on the grounds of arbitrariness, along the lines of the challenges that have been successful in the United States. The majority of the Court rejected the argument that the imposition of the death sentence in such circumstances is arbitrary, holding that a discretion exercised judicially by persons of experience and standing, in accordance with principles crystallized by judicial decisions, is not an arbitrary discretion. 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.
The Right to Life
The unqualified right to life vested in every person by section 9 of our Constitution is another factor crucially relevant to the question whether the death sentence is cruel, inhuman or degrading punishment within the meaning of section 11(2) of our Constitution. In this respect our Constitution differs materially from the Constitutions of the United States and India. It also differs materially from the European Convention and the International Covenant. Yet in the cases decided under these constitutions and treaties there were judges who dissented and held that notwithstanding the specific language of the constitution or instrument concerned, capital punishment should not be permitted.
In some instances the dissent focused on the right to life. In Soering's case before the European Court of Human Rights, Judge de Meyer, in a concurring opinion, said that capital punishment is "not consistent with the present state of European civilisation" and for that reason alone, extradition to the United States would violate the fugitive's right to life.
In a dissent in the United Nations Human Rights Committee in Kindler's case, Committee member B. Wennergren also stressed the importance of the right to life.
The value of life is immeasurable for any human being, and the right to life enshrined in article 6 of the Covenant is the supreme human right. It is an obligation of States [P]arties to the Covenant to protect the lives of all human beings on their territory and under their jurisdiction. If issues arise in respect of the protection of the right to life, priority must not be accorded to the domestic laws of other countries or to (bilateral) treaty articles. Discretion of any nature permitted under an extradition treaty cannot apply, as there is no room for it under Covenant obligations. It is worth repeating that no derogation from a State's obligations under article 6, paragraph 1, is permitted. This is why Canada, in my view, violated article 6, paragraph 1, by consenting to extradite Mr. Kindler to the United States, without having secured assurances that Mr. Kindler would not be subjected to the execution of the death sentence.
An individual's right to life has been described as "[t]he most fundamental of all human rights", and was dealt with in that way in the judgments of the Hungarian Constitutional Court declaring capital punishment to be unconstitutional. The challenge to the death sentence in Hungary was based on section 54 of its Constitution which provides:
(1) In the Republic of Hungary everyone has the inherent right to life and to human dignity, and no one shall be arbitrarily deprived of these rights.
(2) No one shall be subjected to torture or to cruel or inhuman or degrading punishment
Section 8, the counterpart of section 33 of our Constitution, provides that laws shall not impose any limitations on the essential content of fundamental rights. According to the finding of the Court, capital punishment imposed a limitation on the essential content of the fundamental rights to life and human dignity, eliminating them irretrievably. As such it was unconstitutional. Two factors are stressed in the judgment of the Court. First, the relationship between the rights of life and dignity, and the importance of these rights taken together. Secondly, the absolute nature of these two rights taken together. Together they are the source of all other rights. Other rights may be limited, and may even be withdrawn and then granted again, but their ultimate limit is to be found in the preservation of the twin rights of life and dignity. These twin rights are the essential content of all rights under the Constitution. Take them away, and all other rights cease. I will deal later with the requirement of our Constitution that a right shall not be limited in ways which negate its essential content. For the present purposes it is sufficient to point to the fact that the Hungarian Court held capital punishment to be unconstitutional on the grounds that it is inconsistent with the right to life and the right to dignity.
Our Constitution does not contain the qualification found in section 54(1) of the Hungarian constitution, which prohibits only the arbitrary deprivation of life. To that extent, therefore, the right to life in section 9 of our Constitution is given greater protection than it is by the Hungarian Constitution.
The fact that in both the United States and India, which sanction capital punishment, the highest courts have intervened on constitutional grounds in particular cases to prevent the carrying out of death sentences, because in the particular circumstances of such cases, it would have been cruel to do so, evidences the importance attached to the protection of life and the strict scrutiny to which the imposition and carrying out of death sentences are subjected when a constitutional challenge is raised. The same concern is apparent in the decisions of the European Court of Human Rights and the United Nations Committee on Human Rights. It led the Court in Soering's case to order that extradition to the United States, in the circumstances of that case, would result in inhuman or degrading punishment, and the Human Rights Committee to declare in Ng's case that he should not be extradited to face a possible death by asphyxiation in a gas chamber in California.
The Attorney General argued that what is cruel, inhuman or degrading depends to a large extent upon contemporary attitudes within society, and that South African society does not regard the death sentence for extreme cases of murder as a cruel, inhuman or degrading form of punishment. It was disputed whether public opinion, properly informed of the different considerations, would in fact favour the death penalty. I am, however, prepared to assume that it does and that the majority of South Africans agree that the death sentence should be imposed in extreme cases of murder. The question before us, however, is not what the majority of South Africans believe a proper sentence for murder should be. It is whether the Constitution allows the sentence.
Public opinion may have some relevance to the enquiry, but in itself, it is no substitute for the duty vested in the Courts to interpret the Constitution and to uphold its provisions without fear or favour. If public opinion were to be decisive there would be no need for constitutional adjudication. The protection of rights could then be left to Parliament, which has a mandate from the public, and is answerable to the public for the way its mandate is exercised, but this would be a return to parliamentary sovereignty, and a retreat from the new legal order established by the 1993 Constitution. By the same token the issue of the constitutionality of capital punishment cannot be referred to a referendum, in which a majority view would prevail over the wishes of any minority. The very reason for establishing the new legal order, and for vesting the power of judicial review of all legislation in the courts, was to protect the rights of minorities and others who cannot protect their rights adequately through the democratic process. Those who are entitled to claim this protection include the social outcasts and marginalised people of our society. It is only if there is a willingness to protect the worst and the weakest amongst us, that all of us can be secure that our own rights will be protected.
This Court cannot allow itself to be diverted from its duty to act as an independent arbiter of the Constitution by making choices on the basis that they will find favour with the public. 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.
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.
Cruel, Inhuman and Degrading Punishment
The United Nations Committee on Human Rights has held that the death sentence by definition is cruel and degrading punishment. So has the Hungarian Constitutional Court, and three judges of the Canadian Supreme Court. The death sentence has also been held to be cruel or unusual punishment and thus unconstitutional under the state constitutions of Massachusetts and California.
The California decision is People v. Anderson. Capital punishment was held by six of the seven judges of the Californian Supreme Court to be "impermissibly cruel" 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.
In the Massachusetts decision in District Attorney for the Suffolk District v. Watson, 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.
In both cases the disjunctive effect of "or" was referred to as enabling the Courts to declare capital punishment unconstitutional even if it was not "unusual". Under our Constitution it will not meet the requirements of section 11(2) if it is cruel, or inhuman, or degrading.
Proportionality is an ingredient to be taken into account in deciding whether a penalty is cruel, inhuman or degrading. 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. 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 crossed they must be evaluated with other relevant factors, including the two fundamental rights on which the accused rely, the right to dignity and the right to life.
The carrying out of the death sentence destroys life, which is protected without reservation under section 9 of our Constitution, it annihilates human dignity which is protected under section 10, elements of arbitrariness are present in its enforcement and it is irremediable. Taking these factors into account, as well as the assumption that I have made in regard to public opinion in South Africa, and giving the words of section 11(2) the broader meaning to which they are entitled at this stage of the enquiry, rather than a narrow meaning, I am satisfied that in the context of our Constitution the death penalty is indeed a cruel, inhuman and degrading punishment.
Is capital punishment for murder justifiable?
The question that now has to be considered is whether the imposition of such punishment is nonetheless justifiable as a penalty for murder in the circumstances contemplated by sections 277(1)(a), 316A and 322(2A) of the Criminal Procedure Act.
It is difficult to conceive of any circumstances in which torture, which is specifically prohibited under section 11(2), could ever be justified. But that does not necessarily apply to capital punishment. Capital punishment, unlike torture, has not been absolutely prohibited by public international law. It is therefore not inappropriate to consider whether the death penalty is justifiable under our Constitution as a penalty for murder. This calls for an enquiry similar to that undertaken by Brennan J in Furman's case 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." The same question is addressed and answered in the negative in the judgment of Wright CJ in People v Anderson. Under the United States Constitution and the Californian Constitution, which have no limitation clauses, this enquiry had to be conducted within the larger question of the definition of the right. With us, however, the question has to be dealt with under section 33(1).
Section 33(1) of the Constitution provides, in part, that:
The rights entrenched in this Chapter may be limited by law of general application, provided that such limitation—
Section 33(1)(b) goes on to provide that the limitation of certain rights, including the rights referred to in section 10 and section 11 "shall, in addition to being reasonable as required in paragraph (a)(i), also be necessary."
The Two-Stage Approach
Our Constitution deals with the limitation of rights through a general limitations clause. As was pointed out by Kentridge AJ in Zuma's case, 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, this will not always be the case.
The practical consequences of this difference in approach are evident in the present case. In Gregg v. Georgia, the conclusion reached in the judgment of the plurality was summed up as follows:
In sum, we cannot say that the judgment of the Georgia legislature that capital punishment may be necessary in some cases is clearly wrong. Considerations of federalism, as well as respect for the ability of a legislature to evaluate, in terms of its particular state the moral consensus concerning the death penalty and its social utility as a sanction, require us to conclude in the absence of more convincing evidence, that the infliction of death as a punishment for murder is not without justification, and is thus not unconstitutionally severe.
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.
The Application of Section 33
The criteria prescribed by section 33(1) for any limitation of the rights contained in section 11(2) are that the limitation must be justifiable in an open and democratic society based on freedom and equality, it must be both reasonable and necessary and it must not negate the essential content of the right.
The limitation of constitutional rights for a purpose that is reasonable and necessary in a democratic society involves the weighing up of competing values, and ultimately an assessment based on proportionality. 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."
Limitation of Rights in Canada
In dealing with this aspect of the case, Mr Trengove placed considerable reliance on the decision of the Canadian Supreme Court in R v Oakes.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".
Although there is a rational connection between capital punishment and the purpose for which it is prescribed, the elements of arbitrariness, unfairness and irrationality in the imposition of the penalty, are factors that would have to be taken into account in the application of the first component of this test. As far as the second component is concerned, the fact that a severe punishment in the form of life imprisonment is available as an alternative sentence, would be relevant to the question whether the death sentence impairs the right as little as possible. And as I will show later, if all relevant considerations are taken into account, it is at least doubtful whether a sentence of capital punishment for murder would satisfy the third component of the Oakes test.
The second requirement of the Oakes test, that the limitation should impair the right "as little as possible" raises a fundamental problem of judicial review. Can, and should, an unelected court substitute its own opinion of what is reasonable or necessary for that of an elected legislature? Since the judgment in R v Oakes, the Canadian Supreme Court has shown that it is sensitive to this tension, which is particularly acute where choices have to be made in respect of matters of policy. In Irwin Toy Ltd v Quebec (Attorney General), 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), 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". 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."
Limitation of Rights in Germany
The German Constitution does not contain a general limitations clause but permits certain basic rights to be limited by law. According to Professor Grimm, 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. 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, preferring to deal with extreme limitations of rights through the proportionality test.
Limitation of Rights Under the European Convention
The European Convention also has no general limitations clause, but makes certain rights subject to limitation according to specified criteria. The proportionality test of the European Court of Human Rights calls for a balancing of ends and means. The end must be a "pressing social need" and the means used must be proportionate to the attainment of such an end. The limitation of certain rights is conditioned upon the limitation being "necessary in a democratic society" for purposes defined in the relevant provisions of the Convention. The national authorities are allowed a discretion by the European Court of Human Rights in regard to what is necessary—a margin of appreciation—but not unlimited power. The "margin of appreciation" that is allowed varies depending upon the nature of the right and the nature and ambit of the restriction. A balance has to be achieved between the general interest, and the interest of the individual. Where the limitation is to a right fundamental to democratic society, a higher standard of justification is required; so too, where a law interferes with the "intimate aspects of private life." On the other hand, in areas such as morals or social policy greater scope is allowed to the national authorities. The jurisprudence of the European Court of Human Rights provides some guidance as to what may be considered necessary in a democratic society, but the margin of appreciation allowed to national authorities by the European Court must be understood as finding its place in an international agreement which has to accommodate the sovereignty of the member states. It is not necessarily a safe guide as to what would be appropriate under section 33 of our Constitution.
Is Capital Punishment for Murder Justifiable under the South African Constitution?
In Zuma's case, Kentridge AJ pointed out that the criteria developed by the Canadian Courts for the interpretation of section 1 of the Canadian Charter of Rights may be of assistance to our Courts, but that there are differences between our Constitution and the Canadian Charter which have a bearing on the way in which section 33 should be dealt with. This is equally true of the criteria developed by other courts, such as the German Constitutional Court and the European Court of Human Rights. Like Kentridge AJ, "I see no reason in this case… to attempt to fit our analysis into the Canadian pattern," or for that matter to fit it into the pattern followed by any of the other courts to which reference has been made. Section 33 prescribes in specific terms the criteria to be applied for the limitation of different categories of rights and it is in the light of these criteria that the death sentence for murder has to be justified.
"Every person" is entitled to claim the protection of the rights enshrined in Chapter Three, and "no" person shall be denied the protection that they offer. Respect for life and dignity which are at the heart of section 11(2) are values of the highest order under our Constitution. The carrying out of the death penalty would destroy these and all other rights that the convicted person has, and a clear and convincing case must be made out to justify such action.
The Attorney General contended that the imposition of the death penalty for murder in the most serious cases could be justified according to the prescribed criteria. The argument went as follows. The death sentence meets the sentencing requirements for extreme cases of murder more effectively than any other sentence can do. It has a greater deterrent effect than life imprisonment; it ensures that the worst murderers will not endanger the lives of prisoners and warders who would be at risk if the "worst of the murderers" were to be imprisoned and not executed; and it also meets the need for retribution which is demanded by society as a response to the high level of crime. In the circumstances presently prevailing in the country, it is therefore a necessary component of the criminal justice system. This, he said, is recognised by the Appellate Division, which only confirms a death sentence if it is convinced that no other sentence would be a proper sentence.
The Judgements of the Appellate Division
The decisions of the Appellate Division to which the Attorney General referred are only of limited relevance to the questions that have to be decided in the present case. The law which the Appellate Division has applied prescribes that the death sentence is a competent sentence for murder in a proper case. The Appellate Division has reserved this sentence for extreme cases in which the maximum punishment would be the appropriate punishment. Were it to have done otherwise, and to have refused to pass death sentences, it would in effect have been saying that the death sentence is never a proper sentence, and that section 277(1)(a) should not be enforced. This was not within its competence. The criteria set by the Appellate Division for the passing of a death sentence for murder are relevant to the argument on arbitrariness, and also provide a basis for testing the justifiability of such a penalty. They do not, however, do more than that.
The Judgement of the Tanzanian Court of Appeal
There is support for part of the Attorney General's argument in the judgment of the Tanzanian Court of Appeal in Mbushuu and Another v The Republic. It was held in this case that the death sentence amounted to cruel and degrading punishment, which is prohibited under the Tanzanian Constitution, but that despite this finding, it was not unconstitutional. The Constitution authorised derogations to be made from basic rights for legitimate purposes, and a derogation was lawful if it was not arbitrary, and was reasonably necessary for such purpose. The legitimate purposes to which the death sentence was directed was a constitutional requirement that "everyone's right to life shall be protected by law." The death sentence was a mandatory penalty for murder, but it was not considered by the Court to be arbitrary because decisions as to guilt or innocence are taken by judges. There was no proof one way or the other that the death sentence was necessarily a more effective punishment than a long period of imprisonment. In the view of the Court, however, it was for society and not the courts to decide whether the death sentence was a necessary punishment. The Court was satisfied that society favoured the death sentence, and that in the circumstances "the reasonable and necessary" standard had been met. Accordingly, it held that the death sentence was a lawful derogation from the prohibition of cruel and degrading punishment, and thus valid.
The approach of the Tanzanian Court of Appeal to issues concerning the limitation of basic rights seems to have been influenced by the language of the Tanzanian Constitution, 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. 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.
The Attorney General attached considerable weight to the need for a deterrent to violent crime. He argued that the countries which had abolished the death penalty were on the whole developed and peaceful countries in which other penalties might be sufficient deterrents. We had not reached that stage of development, he said. If in years to come we did so, we could do away with the death penalty. Parliament could decide when that time has come. At present, however, so the argument went, the death sentence is an indispensable weapon if we are serious about combatting violent crime.
The need for a strong deterrent to violent crime is an end the validity of which is not open to question. The state is clearly entitled, indeed obliged, to take action to protect human life against violation by others. In all societies there are laws which regulate the behaviour of people and which authorise the imposition of civil or criminal sanctions on those who act unlawfully. This is necessary for the preservation and protection of society. Without law, society cannot exist. Without law, individuals in society have no rights. The level of violent crime in our country has reached alarming proportions. It poses a threat to the transition to democracy, and the creation of development opportunities for all, which are primary goals of the Constitution. The high level of violent crime is a matter of common knowledge and is amply borne out by the statistics provided by the Commissioner of Police in his amicus brief. The power of the State to impose sanctions on those who break the law cannot be doubted. It is of fundamental importance to the future of our country that respect for the law should be restored, and that dangerous criminals should be apprehended and dealt with firmly. Nothing in this judgment should be understood as detracting in any way from that proposition. But the question is not whether criminals should go free and be allowed to escape the consequences of their anti-social behaviour. Clearly they should not; and equally clearly those who engage in violent crime should be met with the full rigour of the law. The question is whether the death sentence for murder can legitimately be made part of that law. And this depends on whether it meets the criteria prescribed by section 33(1).
The Attorney General pointed to the substantial increase in the incidence of violent crime over the past five years during which the death sentence has not been enforced. He contended that this supported his argument that imprisonment is not a sufficient deterrent, and that we have not yet reached the stage of development where we can do without the death sentence. Throughout this period, however, the death sentence remained a lawful punishment, and was in fact imposed by the courts although the sentences were not carried out. The moratorium was only announced formally on 27 March 1992. A decision could have been taken at any time to terminate the moratorium on executions, and none of the criminals had any assurance that the moratorium would still be in place if they were to be caught, brought to trial, convicted and sentenced to death.
The cause of the high incidence of violent crime cannot simply be attributed to the failure to carry out the death sentences imposed by the courts. The upsurge in violent crime came at a time of great social change associated with political turmoil and conflict, particularly during the period 1990 to 1994. It is facile to attribute the increase in violent crime during this period to the moratorium on executions. It was a progression that started before the moratorium was announced. There are many factors that have to be taken into account in looking for the cause of this phenomenon. It is a matter of common knowledge that the political conflict during this period, particularly in Natal and the Witwatersrand, resulted in violence and destruction of a kind not previously experienced. No-go areas, random killings on trains, attacks and counter attacks upon political opponents, created a violent and unstable environment, manipulated by political dissidents and criminal elements alike.
Homelessness, unemployment, poverty and the frustration consequent upon such conditions are other causes of the crime wave. And there is also the important factor that the police and prosecuting authorities have been unable to cope with this. The statistics presented in the police amicus brief show that most violent crime is not solved, and the Attorney General confirmed that the risk of a criminal being apprehended and convicted for such offences is somewhere between 30 and 40 per cent. Throughout the period referred to by the Attorney General the death sentence remained on the statute book and was imposed on convicted murderers when the Courts considered it appropriate to do so.
We would be deluding ourselves if we were to believe that the execution of the few persons sentenced to death during this period, and of a comparatively few other people each year from now onwards will provide the solution to the unacceptably high rate of crime. There will always be unstable, desperate, and pathological people for whom the risk of arrest and imprisonment provides no deterrent, but there is nothing to show that a decision to carry out the death sentence would have any impact on the behaviour of such people, or that there will be more of them if imprisonment is the only sanction. No information was placed before us by the Attorney General in regard to the rising crime rate other than the bare statistics, and they alone prove nothing, other than that we are living in a violent society in which most crime goes unpunished—something that we all know.
The greatest deterrent to crime is the likelihood that offenders will be apprehended, convicted and punished. It is that which is presently lacking in our criminal justice system; and it is at this level and through addressing the causes of crime that the State must seek to combat lawlessness.
In the debate as to the deterrent effect of the death sentence, the issue is sometimes dealt with as if the choice to be made is between the death sentence and the murder going unpunished. That is of course not so. The choice to be made is between putting the criminal to death and subjecting the criminal to the severe punishment of a long term of imprisonment which, in an appropriate case, could be a sentence of life imprisonment. Both are deterrents, and the question is whether the possibility of being sentenced to death, rather than being sentenced to life imprisonment, has a marginally greater deterrent effect, and whether the Constitution sanctions the limitation of rights affected thereby.
In the course of his argument the Attorney General contended that if sentences imposed by the Courts on convicted criminals are too lenient, the law will be brought into disrepute, and members of society will then take the law into their own hands. Law is brought into disrepute if the justice system is ineffective and criminals are not punished. But if the justice system is effective and criminals are apprehended, brought to trial and in serious cases subjected to severe sentences, the law will not fall into disrepute. We have made the commitment to "a future founded on the recognition of human rights, democracy and peaceful co-existence…for all South Africans." 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." Our country needs such role models.
The Attorney General also contended that if even one innocent life should be saved by the execution of perpetrators of vile murders, this would provide sufficient justification for the death penalty. The hypothesis that innocent lives might be saved must be weighed against the values underlying the Constitution, and the ability of the State to serve "as a role model". In the long run more lives may be saved through the inculcation of a rights culture, than through the execution of murderers.
The death sentence has been reserved for the most extreme cases, and the overwhelming majority of convicted murderers are not and, since extenuating circumstances became a relevant factor sixty years ago, have not been sentenced to death in South Africa. I referred earlier to the figures provided by the Attorney General which show that between the amendment of the Criminal Procedure Act in 1990, and January 1995, which is the date of his written argument in the present case, 243 death sentences were imposed, of which 143 were confirmed by the Appellate Division. Yet, according to statistics placed before us by the Commissioner of Police and the Attorney General, there were on average approximately 20 000 murders committed, and 9 000 murder cases brought to trial, each year during this period. Would the carrying out of the death sentence on these 143 persons have deterred the other murderers or saved any lives?
It was accepted by the Attorney General that this is a much disputed issue in the literature on the death sentence. He contended that it is common sense that the most feared penalty will provide the greatest deterrent, but accepted that there is no proof that the death sentence is in fact a greater deterrent than life imprisonment for a long period. It is, he said, a proposition that is not capable of proof, because one never knows about those who have been deterred; we know only about those who have not been deterred, and who have committed terrible crimes. This is no doubt true, and the fact that there is no proof that the death sentence is a greater deterrent than imprisonment does not necessarily mean that the requirements of section 33 cannot be met. It is, however, a major obstacle in the way of the Attorney General's argument, for he has to satisfy us that the penalty is reasonable and necessary, and the doubt which exists in regard to the deterrent effect of the sentence must weigh heavily against his argument. "A punishment as extreme and as irrevocable as death cannot be predicated upon speculation as to what the deterrent effect might be…" 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 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 is one of the objects of punishment, but it carries less weight than deterrence. The righteous anger of family and friends of the murder victim, reinforced by the public abhorrence of vile crimes, is easily translated into a call for vengeance. But capital punishment is not the only way that society has of expressing its moral outrage at the crime that has been committed. We have long outgrown the literal application of the biblical injunction of "an eye for an eye, and a tooth for a tooth". Punishment must to some extent be commensurate with the offence, but there is no requirement that it be equivalent or identical to it. The state does not put out the eyes of a person who has blinded another in a vicious assault, nor does it punish a rapist, by castrating him and submitting him to the utmost humiliation in gaol. The state does not need to engage in the cold and calculated killing of murderers in order to express moral outrage at their conduct. A very long prison sentence is also a way of expressing outrage and visiting retribution upon the criminal.
Retribution ought not to be given undue weight in the balancing process. The Constitution is premised on the assumption that ours will be a constitutional state founded on the recognition of human rights. The concluding provision on National Unity and Reconciliation contains the following commitment:
The adoption of this Constitution lays the secure foundation for the people of South Africa to transcend the divisions and strife of the past, which generated gross violations of human rights, the transgression of humanitarian principles in violent conflicts and a legacy of hatred, fear, guilt and revenge.
These can now be addressed on the basis that there is a need for understanding but not for vengeance, a need for reparation but not for retaliation, a need for ubuntu but not for victimisation. (Emphasis supplied)
Although this commitment has its primary application in the field of political reconciliation, it is not without relevance to the enquiry we are called upon to undertake in the present case. To be consistent with the value of ubuntu ours should be a society that "wishes to prevent crime…[not] to kill criminals simply to get even with them."
The Essential Content of the Right
Section 33(1)(b) provides that a limitation shall not negate the essential content of the right. There is uncertainty in the literature concerning the meaning of this provision. It seems to have entered constitutional law through the provisions of the German Constitution, and in addition to the South African constitution, appears, though not precisely in the same form, in the constitutions of Namibia, Hungary, and possibly other countries as well. The difficulty of interpretation arises from the uncertainty as to what the "essential content" of a right is, and how it is to be determined. Should this be determined subjectively from the point of view of the individual affected by the invasion of the right, or objectively, from the point of view of the nature of the right and its place in the constitutional order, or possibly in some other way? Professor Currie draws attention to the large number of theories which have been propounded by German scholars as to the how the "essence" of a right should be discerned and how the constitutional provision should be applied. 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.
If the essential content of the right not to be subjected to cruel, inhuman or degrading punishment is to be found in respect for life and dignity, the death sentence for murder, if viewed subjectively from the point of view of the convicted prisoner, clearly negates the essential content of the right. But if it is viewed objectively from the point of view of a constitutional norm that requires life and dignity to be protected, the punishment does not necessarily negate the essential content of the right. It has been argued before this Court that one of the purposes of such punishment is to protect the life and hence the dignity of innocent members of the public, and if it in fact does so, the punishment will not negate the constitutional norm. On this analysis it would, however, have to be shown that the punishment serves its intended purpose. This would involve a consideration of the deterrent and preventative effects of the punishment and whether they add anything to the alternative of life imprisonment. If they do not, they cannot be said to serve a life protecting purpose. If the negation is viewed both objectively and subjectively, the ostensible purpose of the punishment would have to be weighed against the destruction of the individual's life. For the purpose of that analysis the element of retribution would have to be excluded and the "life saving" quality of the punishment would have to be established.
It is, however, not necessary to solve this problem in the present case. At the very least the provision evinces concern that, under the guise of limitation, rights should not be taken away altogether. It was presumably the same concern that influenced Dickson CJC to say in R v Oakes that rights should be limited "as little as possible", and the German Constitutional Court to hold in the life imprisonment case that all possibility of parole ought not to be excluded.
The Balancing Process
In the balancing process, deterrence, prevention and retribution must be weighed against the alternative punishments available to the state, and the factors which taken together make capital punishment cruel, inhuman and degrading: the destruction of life, the annihilation of dignity, the elements of arbitrariness, inequality and the possibility of error in the enforcement of the penalty.
The Attorney General argued that the right to life and the right to human dignity were not absolute concepts. Like all rights they have their limits. One of those limits is that a person who murders in circumstances where the death penalty is permitted by section 277, forfeits his or her right to claim protection of life and dignity. He sought to support this argument by reference to the principles of self-defence. If the law recognises the right to take the life of a wrongdoer in a situation in which self-defence is justified, then, in order to deter others, and to ensure that the wrongdoer does not again kill an innocent person, why should it not recognise the power of the state to take the life of a convicted murderer? Conversely, if the death sentence negates the essential content of the right to life, how can the taking of the life of another person in self-defence, or even to protect the State itself during war or rebellion, ever be justified.
This argument is fallacious. The rights vested in every person by Chapter Three of the Constitution are subject to limitation under section 33. In times of emergency, some may be suspended in accordance with the provisions of section 34 of the Constitution. But subject to this, the rights vest in every person, including criminals convicted of vile crimes. Such criminals do not forfeit their rights under the Constitution and are entitled, as all in our country now are, to assert these rights, including the right to life, the right to dignity and the right not to be subjected to cruel, inhuman or degrading punishment. Whether or not a particular punishment is inconsistent with these rights depends upon an interpretation of the relevant provisions of the Constitution, and not upon a moral judgment that a murderer should not be allowed to claim them.
Self-defence is recognised by all legal systems. Where a choice has to be made between the lives of two or more people, the life of the innocent is given preference over the life of the aggressor. This is consistent with section 33(1). To deny the innocent person the right to act in self-defence would deny to that individual his or her right to life. The same is true where lethal force is used against a hostage taker who threatens the life of the hostage. It is permissible to kill the hostage taker to save the life of the innocent hostage. But only if the hostage is in real danger. The law solves problems such as these through the doctrine of proportionality, balancing the rights of the aggressor against the rights of the victim, and favouring the life or lives of innocents over the life or lives of the guilty. But there are strict limits to the taking of life, even in the circumstances that have been described, and the law insists upon these limits being adhered to. In any event, there are material respects in which killing in self-defence or necessity differ from the execution of a criminal by the State. Self-defence takes place at the time of the threat to the victim's life, at the moment of the emergency which gave rise to the necessity and, traditionally, under circumstances in which no less-severe alternative is readily available to the potential victim. Killing by the State takes place long after the crime was committed, at a time when there is no emergency and under circumstances which permit the careful consideration of alternative punishment.
The examples of war and rebellion are also not true analogies. War and rebellion are special cases which must be dealt with in terms of the legal principles governing such situations. It is implicit in any constitutional order that the State can act to put down rebellion and to protect itself against external aggression. Where it is necessary in the pursuit of such ends to kill in the heat of battle the taking of life is sanctioned under the Constitution by necessary implication, and as such, is permissible in terms of section 4(1). But here also there are limits. Thus prisoners of war who have been captured and who are no longer a threat to the State cannot be put to death; nor can lethal force be used against rebels when it is not necessary to do so for the purposes of putting down the rebellion.
The case of a police officer shooting at an escaping criminal was also raised in argument. This is permitted under section 49(2) of the Criminal Procedure Act as a last resort if it is not possible to arrest the criminal in the ordinary way. Once again, there are limits. It would not, for instance, be permissible to shoot at point blank range at a criminal who has turned his or her back upon a police officer in order to abscond, when other methods of subduing and arresting the criminal are possible. We are not concerned here with the validity of section 49(2) of the Criminal Procedure Act, and I specifically refrain from expressing any view thereon. Greater restriction on the use of lethal force may be one of the consequences of the establishment of a constitutional state which respects every person's right to life. Shooting at a fleeing criminal in the heat of the moment, is not necessarily to be equated with the execution of a captured criminal. But, if one of the consequences of this judgment might be to render the provisions of section 49(2) unconstitutional, the legislature will have to modify the provisions of the section in order to bring it into line with the Constitution. In any event, the constitutionality of the death sentence for murder does not depend upon whether it is permissible for life to be taken in other circumstances currently sanctioned by law. It depends upon whether it is justifiable as a penalty in terms of section 33 of the Constitution. In deciding this question, the fact that the person sentenced to death is denied his or her right to life is of the greatest importance.
The Attorney General argued that all punishment involves an impairment of dignity. Imprisonment, which is the alternative to the death sentence, severely limits a prisoner's fundamental rights and freedoms. There is only the barest freedom of movement or of residence in prison, and other basic rights such as freedom of expression and freedom of assembly are severely curtailed.
Dignity is inevitably impaired by imprisonment or any other punishment, and the undoubted power of the state to impose punishment as part of the criminal justice system, necessarily involves the power to encroach upon a prisoner's dignity. But a prisoner does not lose all his or her rights on entering prison.
[Prisoners retain] those absolute natural rights relating to personality, to which every man is entitled. True [their] freedom had been greatly impaired by the legal process of imprisonment but they were entitled to demand respect for what remained. The fact that their liberty had been legally curtailed could afford no excuse for a further legal encroachment upon it. [It was] contended that the [prisoners] once in prison could claim only such rights as the Ordinance and the regulations conferred. But the directly opposite view is surely the correct one. They were entitled to all their personal rights and personal dignity not temporarily taken away by law, or necessarily inconsistent with the circumstances in which they had been placed.
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. 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.
The rights to life and dignity are the most important of all human rights, and the source of all other personal rights in Chapter Three. By committing ourselves to a society founded on the recognition of human rights we are required to value these two rights above all others. And this must be demonstrated by the State in everything that it does, including the way it punishes criminals. This is not achieved by objectifying murderers and putting them to death to serve as an example to others in the expectation that they might possibly be deterred thereby.
In the balancing process the principal factors that have to be weighed are on the one hand the destruction of life and dignity that is a consequence of the implementation of the death sentence, the elements of arbitrariness and the possibility of error in the enforcement of capital punishment, and the existence of a severe alternative punishment (life imprisonment) and, on the other, the claim that the death sentence is a greater deterrent to murder, and will more effectively prevent its commission, than would a sentence of life imprisonment, and that there is a public demand for retributive justice to be imposed on murderers, which only the death sentence can meet.
Retribution cannot be accorded the same weight under our Constitution as the rights to life and dignity, which are the most important of all the rights in Chapter Three. It has not been shown that the death sentence would be materially more effective to deter or prevent murder than the alternative sentence of life imprisonment would be. Taking these factors into account, as well as the elements of arbitrariness and the possibility of error in enforcing the death penalty, the clear and convincing case that is required to justify the death sentence as a penalty for murder, has not been made out. The requirements of section 33(1) have accordingly not been satisfied, and it follows that the provisions of section 277(1)(a) of the Criminal Procedure Act, 1977 must be held to be inconsistent with section 11(2) of the Constitution. In the circumstances, it is not necessary for me to consider whether the section would also be inconsistent with sections 8, 9 or 10 of the Constitution if they had been dealt with separately and not treated together as giving meaning to section 11(2).
Section 241(8) of the Constitution
In the present case the trial had been completed but an appeal to the Appellate Division was pending, when the 1993 Constitution came into force. The validity of the trial, and the fact that the death sentences were competent sentences at the time they were imposed, are not in issue. What is in issue before the Appellate Division is whether the death sentences can and should be confirmed. It has postponed its judgment pending the determination of the issues referred to us for our decision.
It is not necessary to deal with the provisions of section 241(8) in the present case. The Attorney General correctly conceded that if the death penalty for murder is unconstitutional, it would not be competent to carry out the death sentences that have been imposed on the accused. The prohibition of cruel, inhuman or degrading punishment is applicable to all punishments implemented after the 27th April, and can be invoked to prevent a punishment being carried out even if the punishment was lawful when it was imposed.
The Order to be made
I have dealt in this judgment only with the provisions of section 277(1)(a) of the Criminal Procedure Act, but it is clear that if subsection (1)(a) is inconsistent with the Constitution, subsections (1)(c) to (1)(f) must also be unconstitutional, so too must provisions of legislation corresponding to sections 277(1)(a), (c), (d), (e) and (f) that are in force in parts of the national territory in terms of section 229 of the Constitution. Different considerations arising from section 33(1) might possibly apply to subsection (b) which makes provision for the imposition of the death sentence for treason committed when the republic is in a state of war. No argument was addressed to us on this issue, and I refrain from expressing any views thereon.
The proper sentence to be imposed on the accused is a matter for the Appellate Division and not for us to decide. This, and other capital cases which have been postponed by the Appellate Division pending the decision of this Court on the constitutionality of the death sentence, can now be dealt with in accordance with the order made in this case. Lest there be any doubt on this score, one of the effects of our judgment is to prohibit the State, or any of its organs, from executing persons whose appeals against sentences of death have been disposed of. Such persons will remain in custody under the sentences imposed on them until such sentences have been set aside in accordance with law, and substituted by appropriate and lawful punishments. This will form part of the order made.
The following order is made:
President, Constitutional Court
- The last execution in South Africa occurred on 14 November 1989. See infra note 26.
- This information was contained in the written argument filed on behalf of the South African Government and was not disputed.
- 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  3 WLR 995 (JPC).
- 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.
- Section 4(1) of the Constitution.
- Constitutional Court Case No. CCT/5/94 (5 April 1995).
- Id. at para. 15.
- (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.
- Jaga v Dönges, N.O. and Another 1950 (4) SA 653 (A) at 662-663.
- Minister of Home Affairs (Bermuda) v Fisher  AC 319 (PC) at 328–329.
- 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.
- Per Schreiner JA in Jaga v Dönges, N.O. and Another, supra note 9, at 662G–H.
- 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.
- 1993 AC 593 HL (E).
- 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".
- Id. at 637 F.
- Rotunda and Nowak, Treatise on Constitutional Law: Substance and Procedure §23.6 (2d ed. 1992).
- In the decision on the constitutionality of life imprisonment,  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).
- 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.
- Irwin Toy Ltd. v Quebec (AG) (1989) 39 CRR 193 at 241.
- H M Seervai, Constitutional Law of India, 3rd ed. (1983) Vol. I, para. 2.35 et seq.
- (1950) SCR 88 at 111, as cited in Seervai, id., Vol. II, para. 24.7, note 25.
- Article 32 of the Vienna Convention of Treaties 1969, 8 ILM 679 (1969) permits the use of travaux préparatoires for the purpose of interpreting treaties. For examples of the application of this principle, see Keith Cox v Canada, United Nations Committee on Human Rights, Communication No. 539/1993, 3 November 1993, at 19, stating:
Nonetheless, when giving a broad interpretation to any human rights treaty, care must be taken not to frustrate or circumvent the ascertainable will of the drafters. Here the rules of interpretation set forth in article 32 of the Vienna Convention on the Law of Treaties help us by allowing the use of the travaux préparatoires.
Ng v Canada, United Nations Committee on Human Rights, Communication No 469/1991, 5 November 1993, at 9; Young, James and Webster v United Kingdom (1981) 3 EHRR 20, para. 166; Lithgow v United Kingdom (1986) 8 EHRR 329, para. 117; and more generally J.G. Starke, Introduction to International Law 481 (10th ed., Butterworths) (1989).
- Reference re s.94(2) of the Motor Vehicle Act (British Columbia), supra note 19, at 49.
- The brief account that follows is taken from the written submissions of the South African Government. These facts were not disputed at the hearing.
- 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.
- South African Law Commission, Interim Report on Group and Human Rights, Project 58, August 1991, para. 7.31.
- "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.
- Id. at para. 7.36.
- Id. at para. 7.37.
- South African Government Heads of Argument, Vol 1, authorities, 32–34.
- 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.
- Furman v. Georgia, 408 U.S. 238, 290 (1972) (Brennan, J., concurring).
- 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".
- 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.
- 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.
- S v Qeqe and Another 1990 (2) SACR 654 (CkAD).
- 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.
- See section 8 of the Constitution.
- AK Entertainment CC v Minister of Safety and Security and Others 1995 (1) SACLR 130 (E) at 135–136.
- 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).
- See generally, Amnesty International, The Death Penalty: List of Abolitionist and Retentionist Countries (December 1, 1993), AI Index ACT 50/02/94.
- Amnesty International, Update to Death Sentences and executions in 1993, AI Index ACT 51/02/94.
- Supra note 43.
- 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:
- Established under article 28 of the International Covenant on Civil and Political Rights (ICCPR or International Covenant) 1966.
- Established in terms of article 33 of the American Convention on Human Rights 1969.
- Established in terms of article 19 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, 1950 ("European Convention").
- 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 and 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)
- See S v Zuma and Two Others, supra note 6.
- See, e.g., Qozeleni, supra note 36, at 80B–C; S v Botha and Others 1994 (3) BCLR 93 (W) at 110F–G.
- Decision No. 23/1990 (X.31.) AB of the (Hungarian) Constitutional Court (George Feher trans.).
- 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.
- Furman v. Georgia, supra note 34, at 418 (Powell, J., joined by Burger, CJ., Blackmun, J. and Rehnquist, J., dissenting).
- See Furman v. Georgia, supra note 34.
- Gregg v. Georgia, 428 U.S. 153, 173 (1976) (Stewart, Powell and Stevens, JJ.).
- Trop v. Dulles, 356 U.S. 86, 101 (1958).
- 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.).
- See infra paras. 91–92.
- Supra note 60, at 187.
- 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.
- 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).
- See Green v. Georgia 442 U.S. 95 (1979).
- Gregg v. Georgia, supra note 60, at 189.
- 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).
- Criminal Procedure Act No. 51 of 1977, section 322(2A) (as amended by section 13 of Act No. 107 of 1990).
- Id. section 316A(4)(a).
- S v Nkwanyana and Others 1990 (4) SA 735 (A) at 743E–745A.
- S v Masina and Others 1990 (4) SA 709 (A) at 718G–H.
- 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.
- 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).
- S v Senonohi 1990 (4) SA 727 (A) at 734F–G; S v Nkwanyana, supra note 72, at 749A–D.
- 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.
- 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.
- 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.
- See the comments of Curlewis, J in  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.
- Furman v. Georgia, supra note 34, at 257.
- "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).
- 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.
- Callins v. Collins, supra note 62, (Blackmun, J., dissenting).
- Id. (compare Scalia, J., concurring, with Blackmun, J., dissenting).
- 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.").
- 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."
-  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.
- (1992) 6 CRR (2d) 193 SC.
- Id. at 241 (per Cory, J, dissenting with Lamer, CJC, concurring). See also, Sopinka, J, dissenting (with Lamer, CJC, concurring) at 220.
- Id. at 202 (per La Forest, J) (L'Heureux-Dubé and Gonthier, JJ concurring).
- Ng v Canada, supra note 23, at 21.
- Joseph Kindler v Canada, United Nations Committee on Human Rights, Communication No 470/1991, 30 July 1993.
- (1989) 11 EHRR 439 at paras. 103, 105 and 111.
- (1980) 2 SCC 684.
- Id. at 730, para. 136.
- Id. at 709, para. 61.
- Id. at 712, para. 71.
- 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.
- Supra note 96, at 729, para. 132.
- 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).
- 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."
- Triveniben v State of Gujarat  LRC(Const.) 425 (Sup. Ct. of India); Daya Singh v Union of India  LRC(Const.) 452 (Sup. Ct. of India).
- Supra note 95, at 484.
- Joseph Kindler v Canada, supra note 94, at 23.
- Per Lord Bridge in R v Home Secretary, Ex parte Bugdaycay (1987) AC 514 at 531G.
- Supra note 55.
- "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)
- Supra note 34, at 443.
- 319 U.S. 624, 638 (1943).
- The Californian Constitution was subsequently amended to sanction capital punishment.
- Supra note 62.
- 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).
- Id. at 899.
- 381 Mass. 648 (1980).
- "…[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).
- 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.").
- 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."
- 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].").
- S v Zuma and Two Others, supra note 6, para. 21.
- 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."
- "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.
- S v Zuma and Two Others, supra note 6.
- Attorney-General of Hong Kong v Lee Kwong-Kut, (1993) AC 951 at 970–972 (PC).
- Supra note 60, at 186–187.
- S v Zuma and Two Others, supra note 6.
- 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.
- Reference re ss. 193 and 195(1)(c) of the Criminal Code of Manitoba, infra note 135.
- (1986) 19 CRR 308.
- Id. at 337.
- (1989) 39 CRR 193 at 248.
- (1990) 48 CRR 1 at 62.
- (1991) 1 CRR (2d) 1 at 30.
- 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.
- 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.
- 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.
- Currie, id., at 178, note 15 and accompanying text. See also infra note 161.
- R v France (1993) 16 EHRR 1, para. 63.
- Handyside v United Kingdom (1979-80) 1 EHRR 737, para. 49.
- 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.
- "…[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.
- S v Zuma and Two Others, supra note 122, para. 35.
- S v Senonohi, supra note 76, at 734F–G.
- Criminal Appeal No. 142 of 1994; 30 January 1995.
- 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".
- See discussion on public opinion supra paras. 87 to 89.
- S v W 1993(2) SACR 74, at 76H–I.
- In the Statement of Minister of Justice dated 27 March 1992, supra note 31, para. 22.
- Indeed, such a hypothesis is not born out by the statistics analysed by Justice Didcott in his concurring opinion at para 182.
- 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.
- This statement is taken from the provision on National Reconciliation.
- Sopinka J (La Forest, Gonthier, Iacobucci and Major JJ, concurring) in Rodriquez v British Columbia (1994) 17 CRR(2d) 193 at 218.
- This proposition is advanced in greater detail by J Price, (1995) "De Rebus" 89.
- Wright, CJ., in People v. Anderson, supra note 62, at 897.
- S v P 1991 (1) SA 517 (A) at 523D–F. See also supra note 74.
- 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.
- Brennan, J., in Furman v. Georgia, supra note 34, at 305.
- 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).
- 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)).
- R v Oakes, supra note 132, at 337 (citing R v Big M Drug Mart Ltd., supra, at 352).
- See Kommers supra note 18.
- 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.
- 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.
- "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.
- 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.
- See also, Woods v Minister of Justice, Legal and Parliamentary Affairs and Others, 1995 BCLR 56(ZSC) at 58FG; Turner v. Safley, 482 U.S. 78, 84–85 (1987).
- See Pratt v Attorney General for Jamaica; and Catholic Commission for Justice in Zimbabwe v The Attorney General, Zimbabwe, and Others, supra note 3.