S v Makwanyane and Another/Mahomed J

S v Makwanyane and Another
Concurring judgment of Justice Mahomed by Ismail Mahomed

[261]Mahomed J: I have had the privilege of reading the full and erudite judgment of Chaskalson P in this matter. I agree with the order proposed by him and in general with the reasons given by him for that order. Regard being had, however, to the crucial consequences of the debate on capital punishment, and the multiplicity of potential constitutional factors and nuances which impact on its resolution, I think it is desirable for me to set out briefly some of my responses to this debate in order to explain why I have come to the conclusion that capital punishment is prohibited by the Constitution.

[262]All Constitutions seek to articulate, with differing degrees of intensity and detail, the shared aspirations of a nation; the values which bind its people, and which discipline its government and its national institutions; the basic premises upon which judicial, legislative and executive power is to be wielded; the constitutional limits and the conditions upon which that power is to be exercised; the national ethos which defines and regulates that exercise; and the moral and ethical direction which that nation has identified for its future. In some countries, the Constitution only formalizes, in a legal instrument, a historical consensus of values and aspirations evolved incrementally from a stable and unbroken past to accommodate the needs of the future. The South African Constitution is different: it retains from the past only what is defensible and represents a decisive break from, and a ringing rejection of, that part of the past which is disgracefully racist, authoritarian, insular, and repressive and a vigorous identification of and commitment to a democratic, universalistic, caring and aspirationally egalitarian ethos, expressly articulated in the Constitution. The contrast between the past which it repudiates and the future to which it seeks to commit the nation is stark and dramatic. The past institutionalized and legitimized racism. The Constitution expresses in its preamble the need for a "new order … in which there is equality between … people of all races". Chapter 3 of the Constitution extends the contrast, in every relevant area of endeavour (subject only to the obvious limitations of section 33). The past was redolent with statutes which assaulted the human dignity of persons on the grounds of race and colour alone; section 10 constitutionally protects that dignity. The past accepted, permitted, perpetuated and institutionalized pervasive and manifestly unfair discrimination against women and persons of colour; the preamble, section 8 and the postamble seek to articulate an ethos which not only rejects its rationale but unmistakenly recognizes the clear justification for the reversal of the accumulated legacy of such discrimination. The past permitted detention without trial; section 11(1) prohibits it. The past permitted degrading treatment of persons; section 11(2) renders it unconstitutional. The past arbitrarily repressed the freedoms of expression, assembly, association and movement; sections 15, 16, 17 and 18 accord to these freedoms the status of "fundamental rights". The past limited the right to vote to a minority; section 21 extends it to every citizen. The past arbitrarily denied to citizens on the grounds of race and colour, the right to hold and acquire property; section 26 expressly secures it. Such a jurisprudential past created what the postamble to the Constitution recognizes as a society "characterized by strife, conflict, untold suffering and injustice". What the Constitution expressly aspires to do is to provide a transition from these grossly unacceptable features of the past to a conspicuously contrasting

"future founded on the recognition of human rights, democracy and peaceful co-existence and development opportunities for all South Africans, irrespective of colour, race, class, belief or sex".

[263]The postamble to the Constitution gives expression to the new ethos of the nation by a commitment to "open a new chapter in the history of our country", by lamenting the transgressions of "human rights" and "humanitarian principles" in the past, and articulating a

"need for understanding, but not for vengeance, a need for reparation but not retaliation, a need for ubuntu but not for victimization".

"The need for ubuntu" expresses the ethos of an instinctive capacity for and enjoyment of love towards our fellow men and women; the joy and the fulfilment involved in recognizing their innate humanity; the reciprocity this generates in interaction within the collective community; the richness of the creative emotions which it engenders and the moral energies which it releases both in the givers and the society which they serve and are served by.

[264]It is against this historical background and ethos that the constitutionality of capital punishment must be determined.

[265]The death penalty sanctions the deliberate annihilation of life. As I have previously said it

"is the ultimate and the most incomparably extreme form of punishment.… It is the last, the most devastating and the most irreversible recourse of the criminal law, involving as it necessarily does, the planned and calculated termination of life itself; the destruction of the greatest and most precious gift which is bestowed on all humankind" (S v Mhlongo 1994 (1) SACR 584(A) at 587 e–g).

This "planned and calculated termination of life itself" was permitted in the past which preceded the Constitution. Is it now permissible? Those responsible for the enactment of the Constitution, could, if they had so wished, have treated the issue as a substantially political and moral issue justifying a political choice, clearly expressed in the Constitution, either retaining or prohibiting the death sentence. They elected not to do so, leaving it to this Court to resolve the issue, as a constitutional issue.

[266]The difference between a political election made by a legislative organ and decisions reached by a judicial organ, like the Constitutional Court, is crucial. The legislative organ exercises a political discretion, taking into account the political preferences of the electorate which votes political decision-makers into office. Public opinion therefore legitimately plays a significant, sometimes even decisive, role in the resolution of a public issue such as the death penalty. The judicial process is entirely different. What the Constitutional Court is required to do in order to resolve an issue, is to examine the relevant provisions of the Constitution, their text and their context; the interplay between the different provisions; legal precedent relevant to the resolution of the problem both in South Africa and abroad; the domestic common law and public international law impacting on its possible solution; factual and historical considerations bearing on the problem; the significance and meaning of the language used in the relevant provisions; the content and the sweep of the ethos expressed in the structure of the Constitution; the balance to be struck between different and sometimes potentially conflicting considerations reflected in its text; and by a judicious interpretation and assessment of all these factors to determine what the Constitution permits and what it prohibits.

[267]Adopting that approach, I am satisfied that the death penalty as a form of punishment violates crucial sections of the Constitution and that it is not saved by the limitations permitted in terms of section 33. I wish briefly to set out my reasons for that conclusion.

[268]In the first place, it offends section 9 of the Constitution which prescribes in peremptory terms that "every person shall have the right to life". What does that mean? What is a "person"? When does "personhood" and "life" begin? Can there be a conflict between the "right to life" in section 9 and the right of a mother to "personal privacy" in terms of section 13 and her possible right to the freedom and control of her body? Does the "right to life", within the meaning of section 9, preclude the practitioner of scientific medicine from withdrawing the modern mechanisms which mechanically and artificially enable physical breathing in a terminal patient to continue, long beyond the point, when the "brain is dead" and beyond the point when a human being ceases to be "human" although some unfocussed claim to qualify as a "being" is still retained? If not, can such a practitioner go beyond the point of passive withdrawal into the area of active intervention? When? Under what circumstances?

[269]It is, for the purposes of the present case, unnecessary to give to the word "life" in section 9 a comprehensive legal definition, which will accommodate the answer to these and other complex questions. Whatever be the proper resolution of such issues, should they arise in the future, it is possible to approach the constitutionality of the death sentence by a question with a sharper and narrower focus, thus:

"Does the right to life guaranteed by section 9, include the right of every person, not to be deliberately killed by the State, through a systematically planned act of execution sanctioned by the State as a mode of punishment and performed by an executioner remunerated for this purpose from public funds?"

The answer to that question, is in my view: "Yes, every person has that right". It immediately distinguishes that right from some other obvious rights referred to in argument, such as for example the right of a person in life-threatening circumstances to take the life of the aggressor in self-defence or even the acts of the State, in confronting an insurrection or in the course of War.

[270]The deliberate annihilation of the life of a person, systematically planned by the State, as a mode of punishment, is wholly and qualitatively different. It is not like the act of killing in self-defence, an act justifiable in the defence of the clear right of the victim to the preservation of his life. It is not performed in a state of sudden emergency, or under the extraordinary pressures which operate when insurrections are confronted or when the State defends itself during War. It is systematically planned long after—sometimes years after—the offender has committed the offence for which he is to be punished, and whilst he waits impotently in custody, for his date with the hangman. In its obvious and awesome finality, it makes every other right, so vigorously and eloquently guaranteed by Chapter 3 of the Constitution, permanently impossible to enjoy. Its inherently irreversible consequence, makes any reparation or correction impossible, if subsequent events establish, as they have sometimes done, the innocence of the executed or circumstances which demonstrate manifestly that he did not deserve the sentence of death.

[271]The death sentence must, in some measure, manifest a philosophy of indefensible despair in its execution, accepting as it must do, that the offender it seeks to punish is so beyond the pale of humanity as to permit of no rehabilitation, no reform, no repentance, no inherent spectre of hope or spirituality; nor the slightest possibility that he might one day, successfully and deservedly be able to pursue and to enjoy the great rights of dignity and security and the fundamental freedoms protected in Chapter 3 of the Constitution, the exercise of which is possible only if the "right to life" is not destroyed. The finality of the death penalty allows for none of these redeeming possibilities. It annihilates the potential for their emergence. Moreover, it cannot accomplish its objective without invading in a very deep and distressing way, the guarantee of human dignity afforded by section 10 of the Constitution, as the person sought to be executed spends long periods in custody, anguished by the prospect of being "hanged by the neck until he is dead" in the language of section 279(4) of Act 51 of 1977. The invasion of his dignity is inherent. He is effectively told: "You are beyond the pale of humanity. You are not fit to live among humankind. You are not entitled to life. You are not entitled to dignity. You are not human. We will therefore annihilate your life". (See the observations of Brennan J in Trop v Dulles 356 US 84 at 100).

[272]It is not necessarily only the dignity of the person to be executed which is invaded. Very arguably the dignity of all of us, in a caring civilization, must be compromised, by the act of repeating, systematically and deliberately, albeit for a wholly different objective, what we find to be so repugnant in the conduct of the offender in the first place (see Furman v Georgia 408 US 238 at 273 (1972) (Brennan J, concurring)).

[273]I also have very considerable difficulty in reconciling the guarantee of the right to equality which is protected by section 8 of the Constitution, with the death penalty. I have no doubt whatever that Judges seek conscientiously and sedulously to avoid, any impermissibly unequal treatment between different accused whom they are required to sentence, but there is an inherent risk of arbitrariness in the process, which makes it impossible to determine and predict which accused person guilty of a capital offence will escape the death penalty and which will not. The fault is not of the sentencing Court, but in the process itself. The ultimate result depends not on the predictable application of objective criteria, but on a vast network of variable factors which include, the poverty or affluence of the accused and his ability to afford experienced and skillful counsel and expert testimony; his resources in pursuing potential avenues of investigation, tracing and procuring witnesses and establishing facts relevant to his defence and credibility; the temperament and sometimes unarticulated but perfectly bona fide values of the sentencing officer and their impact on the weight to be attached to mitigating and aggravating factors; the inadequacy of resources which compels the pro-deo system to depend substantially on the services of mostly very conscientious but inexperienced and relatively junior counsel; the levels of literacy and communication skills of the different accused in effectively transmitting to counsel the nuances of fact and inference often vital to the probabilities; the level of training and linguistic facilities of busy interpreters; the environmental milieu of the accused and the difference between that and the comparative environment of those who defend, prosecute and judge him; class, race, gender and age differences which influence bona fide perceptions, relevant to the determination of the ultimate sentence; the energy, skill and intensity of police investigations in a particular case; and the forensic skills and experience of counsel for the prosecution. There are many other such factors which influence the result and which determine who gets executed and who survives. The result is not susceptible to objective prediction. Some measure of arbitrariness seems inherent in the process. This truth has caused Blackmun J, one of the most experienced Judges of the United States Supreme Court, finally to conclude that it

"is virtually self-evident to me now that no combination of procedural rules or substantive regulations ever can save the death penalty from its inherent constitutional deficiencies. The basic question—does the system accurately and consistently determine which defendants 'deserve' to die?—cannot be answered in the affirmative" (Callins v Collins 114 S. Ct. 1127; 127 L.Ed.2d 435 (1994) (Blackmun J, dissenting)).

[274]It must, of course, be conceded that the factors which ensure arbitrariness in the judicial application of the death sentence, must in some considerable measure also influence a sentence of imprisonment, but there is an enormous difference between the death sentence and imprisonment or any other sentence. It is a qualitative and not just a quantitative difference. The unfair consequences of a wrong sentence of imprisonment can be reversed. Death, however, is final and irreversible. The accused, who is imprisoned, is still able to exercise, within the discipline of the prison, in varying degrees, some of the other rights which the Constitution guarantees to every person. The executed prisoner loses the right to pursue any other right. He simply dies.

[275]For substantially the reasons given by Chaskalson P, I am further of the view that the death penalty is also inconsistent with section 11(2) of the Constitution which provides that:

"No person shall be subject to torture of any kind, whether physical, mental or emotional, nor shall any person be subject to cruel, inhuman or degrading treatment or punishment."

[276]The different parts of section 11(2) must be read disjunctively. The death sentence would (subject to section 33) offend section 11(2) if it constitutes

(a)

torture; or

(b)

cruel treatment; or

(c)

cruel punishment; or

(d)

inhuman treatment; or

(e)

inhuman punishment; or

(f)

degrading treatment; or

(g)

degrading punishment.

(See Ex Parte Attorney-General, Namibia: In re Corporal Punishment 1991 (3) SA 76 (NmSC) at 86B–D)

[277]In my view, the death sentence does indeed constitute cruel, inhuman or degrading punishment within the meaning of those expressions in section 11(2).

[278]Undoubtedly, this conclusion does involve in some measure a value judgment, but it is a value judgment which requires objectively to be formulated, having regard to the ordinary meaning of the words used in section 11(2); its consistency with the other rights protected by the Constitution and the constitutional philosophy and humanism expressed both in the preamble and the postamble to the Constitution; its harmony with the national ethos which the Constitution identifies; the historical background to the structures and objectives of the Constitution; the discipline of proportionality to which it must legitimately be subject; the effect of the death sentence on the right to life protected by the Constitution; its inherent arbitrariness in application; its impact on human dignity; and its consistency with constitutional perceptions evolving both within South Africa and the world outside with which our country shares emerging values central to the permissible limits and objectives of punishment in the civilized community.

[279]I have dealt with some of these issues, in analysing the proper approach to the interpretation of the Constitution, and in focusing on the rights protected by sections 8, 9 and 10 of the Constitution. Some of the other issues relevant to the exercise, have been dealt with in the comprehensive judgment of the President and the persuasive comments of some of my colleagues.

[280]Applying the relevant considerations which emerge from the proper approach in assessing whether capital punishment is "cruel, inhuman or degrading punishment", I share the conclusions arrived at by the United Nations Committee on Human Rights, and the Hungarian Constitutional Court, (Decision 23/1990 (X31) AB) that the death sentence is cruel and degrading punishment and the conclusion of the Californian Supreme Court that it is "impermissibly cruel" (People v Anderson 493 P.2d 880 (1972)).

[281]In my view, it also constitutes inhuman punishment. It invades irreversibly the humanity of the offender by annihilating the minimum content of the right to life protected by section 9; by degrading impermissibly the humanity inherent in his right to dignity; by the inevitable arbitrariness with which its objective is implemented; by the continuing and corrosive denigration of his humanity in the long periods preceding his formal execution; by the inescapable denial of his humanity inherently involved in a sentence which directs his elimination from society.

[282]I am accordingly of the view that the death penalty does prima facie invade the right to life; the right to equality; the right to dignity; and the right not to be subject to cruel inhuman or degrading punishment, respectively protected by sections 9, 8, 10 and 11(2) of the Constitution.

[283]Notwithstanding that conclusion however, it would be our duty to uphold the constitutionality of the death penalty if it was saved by section 33 of the Constitution, which provides that the rights entrenched by Chapter 3 may be limited by a law of general application, provided that such limitation

"(a)

shall be permissible only to the extent that it is

(i)

reasonable; and

(ii)

justifiable in an open and democratic society based on freedom and equality; and

(b)

shall not negate the essential content of the right in question,

and provided that any limitation to

(aa)

a right entrenched in section 10, 11, 12, 14(1), 21, 25 or 30(1)(d) or (e) or (2); or

(bb)

……

shall in addition to being reasonable as required in paragraph (a)(i) also be necessary".

On a proper construction of section 33, a "law of general application" which invades a right entrenched in Chapter 3, will be declared unconstitutional unless the party relying on such law is able to establish that it fulfils each of the conditions prescribed by this section, for its justification.

[284]In order to qualify as a permissible limitation in terms of section 33 the State must therefore establish that the invasions on the right to life, the right to be protected from unfair discrimination, the right to dignity and the right to be protected from cruel, inhuman or degrading punishment, which the application of the death penalty causes, satisfy at least the three separate elements specified in sections 33(1)(a)(i), (ii) and 33(1)(b). In the case of a limitation on the right to dignity and the right to be protected from cruel, inhuman or degrading punishment, the fourth element of "necessity" contained in section 33(1)(aa) must further be satisfied.

[285]The most plausible argument in support of the submission that the death penalty does satisfy these onerous conditions prescribed by section 33 is the submission that it acts as a deterrent. That argument has dominated perceptions in support of the death penalty, both in South Africa and abroad.

[286]It must readily be conceded that if it could be established that the death sentence does indeed deter the commission of serious offences in respect of which the death penalty is a competent sentence, it would indeed be a very relevant and at least a potentially persuasive consideration in support of its justification in terms of section 33. There are, however, some serious difficulties involved in the acceptance of the proposition that the death penalty is, or ever has been, a demonstrable deterrence.

[287]The legitimacy of the argument must to a substantial degree be premised on an assumption which appears to me to be fallacious and at the least, highly speculative and rationally unconvincing. That assumption is that a criminal, contemplating the commission of a serious offence, weighs the risk that he might be sentenced to death against the risk that he might not be sentenced to death but only to a long term of imprisonment of twenty years or more. The assumption is that he would decide to commit the offence even at the risk of receiving a long term of imprisonment but that if the death sentence was the risk, he would refrain from committing the offence at all. I have serious difficulties with these assumptions. In the first place they are not supported by any empirical evidence or research in this country or abroad. Secondly, this argument attributes to the offender a capacity for reflection and contemplation and a maturity of analysis which appears to me to be unrealistic. Thirdly, and more fundamentally, it ignores what is possibly the real factor in any risk assessment which might activate a potentially serious offender: the risk which he considers is that he will not be caught. If he believed that there was a real risk of being apprehended, charged and convicted he would not willingly assume the prospect of many years of quite punishing imprisonment.

[288]If, as I believe, such offenders commit the crimes contemplated because of a belief that they will probably not be apprehended at all, it is a belief which is regrettably justified. On the information that was common cause in argument before us, sixty or seventy percent of offenders who commit serious crimes are not apprehended at all and a substantial proportion of those who are, are never convicted. The risk is therefore worth taking, not because the death penalty would, in the perception of the offender, not be imposed but because no punishment is likely to result at all. The levels of serious crimes committed in South Africa are indeed disturbing. For many in the community, life has become dangerous and intolerable. Criminals do need vigorously to be deterred from conduct which endangers the security and freedom of citizens to a very distressing degree but, on the available evidence, it is facile to assume that the retention of the death penalty will provide the deterrence which is clearly needed. I have analysed such statistics as were debated in argument. In comparisons between States in the United States of America which retained the death penalty and those which did not, there is no manifest proof that the rate of serious crime was greater in the States which did not sanction capital punishment. In the case of those which did abolish capital punishment, there was no convincing proof that the rate of serious crime was greater after such act of abolition (Peterson and Bailey, "Murder and Capital Punishment in the context of the Post-Furman Era (1988)66 Social Forces 774; Thorsten Sellin, The Death Penalty, 1982).

[289]Following a survey of research findings the United Nations concluded that

"this research has failed to provide scientific proof that executions have a greater deterrent effect than life imprisonment—such proof is unlikely to be following. The evidence as a whole still gives no possible support to the deterrent hypothesis". (United Nations: The Question of the Death Penalty and the New Contributions of Criminal Science to the Matter (1988) at 110).

[290]We were not furnished with any reliable research dealing with the relationship between the rate of serious offences and the proportion of successful apprehensions and convictions following on the commission of serious offences. This would have been a significant enquiry. It appears to me to be an inherent probability that the more successful the police are in solving serious crimes and the more successful they are in apprehending the criminals concerned and securing their convictions, the greater will be the perception of risk for those contemplating such offences. That increase in the perception of risk, contemplated by the offender, would bear a relationship to the rate at which serious offences are committed. Successful arrest and conviction must operate as a deterrent and the State should, within the limits of its undoubtedly constrained resources, seek to deter serious crime by adequate remuneration for the police force; by incentives to improve their training and skill; by augmenting their numbers in key areas; and by facilitating their legitimacy in the perception of the communities in which they work.

[291]Successful deterrence of serious crime also involves the need for substantial redress in the socio-economic conditions of those ravaged by poverty, debilitated by disease and malnutrition and disempowered by illiteracy. Rapid amelioration in these areas must have some concomitant effect on the levels of crime. There has to be a corresponding campaign among the communities affected by serious crime to harness their own legitimacy and their own infrastructures, in interaction with the security agencies of the State. The power and influence of agencies of moral authority such as teachers, school principals and religious leaders must rapidly be restored. Crime is a multi-faceted phenomenon. It has to be assaulted on a multi-dimensional level to facilitate effective deterrence.

[292]The moratorium on the execution of the death penalty, which has been effectively in operation since 1990, is also relevant in offering some insight into the veracity of the proposition that executions for capital crimes operate as a deterrent. That proposition, as Didcott J has correctly analysed, is not cogently supported by the statistics made available to us for the period following upon the moratorium; nor is it supported by the rate at which crime levels increased during periods in our history when executions were administered with vigour.

[293]Bringing to bear upon the issue, therefore, a rational and judicial judgment, I have not been persuaded that the fear of the death penalty rationally or practically operates as a demonstrable deterrent for offenders seeking to perpetrate serious crimes. It remains, for the reasons I have previously discussed, an impermissibly cruel invasion of rights, the sustenance of which is fundamental to a defensible civilization, protected in South Africa by the ethos of a Constitution, which is manifestly humanistic and caring in its content.

[294]Even if the fallacious and speculative assumptions which motivate the argument in support of the proposition that the death sentence does act as a deterrent against serious crime were to be accepted, rationally the fear of the death penalty would only operate on the mind of the potential offender if there was a serious risk that he could be so punished. On the information made available to us, however, that risk is in any event so minimal, as to constitute a remote statistical possibility, which, as Mr Trengove argued, might be no more significant than the risk of dying in a motor accident. It is difficult to appreciate how such a remote statistical possibility acts as a deterrent on the minds of potential offenders.

[295]On a judicial application of all the relevant considerations and the facts made available to us, I therefore cannot conclude that the State has successfully established that the death penalty per se has any deterrent effect on the potential perpetrators of serious offences.

[296]Is there any other basis on which the death penalty can be justified? The only serious alternative basis suggested in argument was that it is justifiable as an act of retribution. Retribution has indeed constituted one of the permissible objects of criminal punishment because there is an inherent legitimacy about the claim that the individual victims and society generally should, and are entitled to, enforce punishment as an expression of their moral outrage and sense of grievance. I have, however, some serious difficulties with the justification of the death sentence as a form of retribution. The proper approach is not to contrast the legitimacy of the death sentence as a form of retribution against no retribution at all. That is plainly untenable and manifestly indefensible. The relevant contrast is between the death sentence and the alternative of a very lengthy period of imprisonment, in appropriate cases. It is difficult to appreciate why a sentence which compels the offender to spend years and years in prison, away from his family, in conditions of deliberate austerity and rigid discipline, substantially and continuously impeding his enjoyment of the elementary riches and gifts of civilized living, is not an effective and adequate expression of moral outrage. The unarticulated fallacy in the argument that it is not, is the proposition that it must indeed be equivalent in form to the offence committed. That is an impermissible argument. The burning of the house of the offender is not a permissible punishment for arson. The rape of the offender is not a permissible punishment of a rapist. Why should murder be a permissible punishment for murder? Indeed, there are good reasons why it should not, because its execution might desensitize respect for life per se. More crucially, within the context of the South African Constitution, it appears to be at variance with its basic premise and ethos which I analysed earlier in this judgment. On these considerations, I find it difficult to hold that the death sentence has been demonstrated by the State to be "justifiable in an open and democratic society based on freedom and equality".

[297]That conclusion should make it unnecessary for me to deal with the other elements of justification set out in section 33, but I am in any event of the view that the State has not established that the limitations the death penalty imposes on the relevant rights in Chapter 3, which I have discussed, can be said to be "necessary". That is a material element for justification in terms of section 33 where what is limited is the right to human dignity in section 10 or the right to be protected from cruel, inhuman or degrading punishment in terms of section 11(2). The failure to satisfy that element is fatal to the attempt to establish justification in terms of section 33. Section 277(1)(a) of Act 51 of 1977 must therefore be the constitutional casualty of this conclusion and therefore be struck down. The reasons which have prompted that conclusion are substantially also of application to sub-paragraphs (c) (d) (e) and (f) of section 277(1) and must therefore endure the same fate. For the reasons given by Chaskalson P, I agree that the issue as to whether section 277(1)(b) is unconstitutional should be left open.

[298]It also follows from my approach and the conclusions to which I have arrived, that it is unnecessary to decide whether or not the death penalty does "negate the essential content of the right in question" within the meaning of section 33(1)(b). I also prefer to leave this question open. In the absence of full argument, I do not consider it desirable to determine what the meaning of the reference to the "essential content of the right" is. Chaskalson P, in paragraph 132 of his judgment, has, without deciding, referred to two approaches which he describes as the "objective" and "subjective" determination of the essential content. Arguably, it is possible to consider a third angle which focuses on the distinction between the "essential content" of a right and some other content. This distinction might justify a relative approach to the determination of what is the essential content of a right by distinguishing the central core of the right from its peripheral outgrowth and subjecting "a law of general application" limiting an entrenched right, to the discipline of not invading the core, as distinct from the peripheral outgrowth. In this regard, there may conceivably be a difference between rights which are inherently capable of incremental invasion and those that are not. We have not heard proper argument on any of these distinctions which justify debate in the future in a proper case. I say no more.

[299]Consistent with my approach to the judicial process involved in the determination of the constitutionality of the death sentence, I am accordingly privileged to concur in the order supported by all my colleagues.