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IN THE CONSTITUTIONAL COURT OF THE REPUBLIC OF SOUTH AFRICA
Case No. CCT/3/94
In the matter of:
THE STATE
versus
T MAKWANYANE AND M MCHUNU
Heard on: 15 February to 17 February 1995
Delivered on: 6 June 1995
________________________________________________________________
JUDGMENT
________________________________________________________________
[1] CHASKALSON P: The two accused in this matter were convicted in the
Witwatersrand Local Division of the Supreme Court on four counts of murder, one
count of attempted murder and one count of robbery with aggravating
circumstances. They were sentenced to death on each of the counts of murder and
to long terms of imprisonment on the other counts. They appealed to the
Appellate Division of the Supreme Court against the convictions and
sentences. The Appellate Division dismissed the appeals against the
convictions and came to the conclusion that the circumstances of the murders
were such that the accused should receive the heaviest sentence permissible
according to law.
[2] Section 277(1)(a) of the Criminal Procedure Act No. 51 of 1977
prescribes that the death penalty is a competent sentence for murder.
Counsel for the accused was invited by the Appellate Division to consider
whether this provision was consistent with the Republic of South Africa
Constitution, 1993, which had come into force subsequent to the conviction and
sentence by the trial court. He argued that it was not, contending that it
was in conflict with the provisions of sections 9 and 11(2) of the
Constitution.
[3] The Appellate Division dismissed the appeals against the sentences on the
counts of attempted murder and robbery, but postponed the further hearing of the
appeals against the death sentence until the constitutional issues are decided
by this Court. See: S v Makwanyane en n Ander
1994 (3) SA 868 (A). Two issues were raised: the constitutionality
of section 277(1)(a) of the Criminal Procedure Act, and the implications
of section 241(8) of the Constitution. Although there was no formal
reference of these issues to this Court in terms of section 102(6) of the
Constitution, that was implicit in the judgment of the Appellate Division, and
was treated as such by the parties.
[4] The trial was concluded before the 1993 Constitution came into force, and
so the question of the constitutionality of the death sentence did not arise at
the trial.Because evidence which might possibly be relevant to that issue would
not have been led, we asked counsel appearing before this Court to consider
whether evidence, other than undisputed information placed before us in
argument, would be relevant to the determination of the question referred to us
by the Appellate Division. Apart from the issue of public opinion, with which I
will deal later in this judgment, counsel were not able to point to specific
material that had not already been placed before us which might be relevant to
the decision on the constitutional issues raised in this case. I am
satisfied that no good purpose would be served by referring the case back to the
trial court for the hearing of further evidence and that we should deal with the
matter on the basis of the information and arguments that have been presented to
us.
[5] It would no doubt have been better if the framers of the Constitution had
stated specifically, either that the death sentence is not a competent penalty,
or that it is permissible in circumstances sanctioned by law. This, however, was
not done and it has been left to this Court to decide whether the penalty is
consistent with the provisions of the Constitution. That is the extent and
limit of the Court's power in this case.
[6] No executions have taken place in South Africa since 1989.[1] There are
apparently over 300 persons, and possibly as many as 400 if persons sentenced in
the former Transkei, Bophuthatswana and Venda are taken into account, who have
been sentenced to death by the Courts and who are on death row waiting for this
issue to be resolved. Some of these convictions date back to 1988, and
approximately half of the persons on death row were sentenced more than two
years ago.[2] This is an intolerable situation and it is
essential that it be resolved one way or another without further delay. [3]
The Relevant Provisions of the Constitution
[7] The Constitution
... provides a historic bridge between the past of a deeply divided society
characterised by strife, conflict, untold suffering and injustice, and a future
founded on the recognition of human rights, democracy and peaceful co-existence
and development opportunities for all South Africans, irrespective of colour,
race, class, belief or sex. [4]
It is a transitional constitution but one which itself establishes a new
order in South Africa; an order in which human rights and democracy are
entrenched and in which the Constitution:
... shall be the supreme law of the Republic and any law or act inconsistent
with its provisions shall, unless otherwise provided expressly or by necessary
implication in this Constitution, be of no force and effect to the extent of the
inconsistency. [5]
[8] Chapter Three of the Constitution sets out the fundamental rights to
which every person is entitled under the Constitution and also contains
provisions dealing with the way in which the Chapter is to be interpreted by the
Courts. It does not deal specifically with the death penalty, but in section
11(2), it prohibits "cruel, inhuman or degrading treatment or
punishment." There is no definition of what is to be regarded as "cruel,
inhuman or degrading" and we therefore have to give meaning to these words
ourselves.
[9] In S v Zuma and Two Others, [6] this Court
dealt with the approach to be adopted in the interpretation of the fundamental
rights enshrined in Chapter Three of the Constitution. It gave its
approval to an approach which, whilst paying due regard to the language that has
been used, is "generous" and "purposive" and gives expression to the underlying
values of the Constitution. Kentridge AJ, who delivered the judgment of
the Court, referred with approval [7] to the following passage in the Canadian
case of R v Big M Drug Mart Ltd:
The meaning of a right or freedom guaranteed by the Charter was to be
ascertained by an analysis of the purpose of such a guarantee; it was to
be understood, in other words, in the light of the interests it was meant to
protect.
In my view this analysis is to be undertaken, and the purpose of the right or
freedom in question is to be sought by reference to the character and larger
objects of the Charter itself, to the language chosen to articulate the specific
right or freedom, to the historical origins of the concept enshrined, and where
applicable, to the meaning and purpose of the other specific rights and freedoms
with which it is associated within the text of the Charter. The
interpretation should be...a generous rather than legalistic one, aimed at
fulfilling the purpose of a guarantee and securing for individuals the full
benefit of the Charter's protection. [8]
[10] Without seeking in any way to qualify anything that was said in
Zuma's case, I need say no more in this judgment than that section
11(2) of the Constitution must not be construed in isolation, but in its
context, which includes the history and background to the adoption of the
Constitution, other provisions of the Constitution itself and, in particular,
the provisions of Chapter Three of which it is part. [9] It
must also be construed in a way which secures for "individuals the full measure"
of its protection. [10] Rights with which section 11(2) is
associated in Chapter Three of the Constitution, and which are of particular
importance to a decision on the constitutionality of the death penalty are
included in section 9, "every person shall have the right to life",
section 10, "every person shall have the right to respect for and
protection of his or her dignity", and section 8, "every person shall
have the right to equality before the law and to equal protection of the law."
Punishment must meet the requirements of sections 8, 9 and 10; and
this is so, whether these sections are treated as giving meaning to
Section 11(2) or as prescribing separate and independent standards with
which all punishments must comply. [11]
[11] Mr. Bizos, who represented the South African government at the hearing
of this matter, informed us that the government accepts that the death penalty
is a cruel, inhuman and degrading punishment and that it should be declared
unconstitutional. The Attorney General of the Witwatersrand, whose office is
independent of the government, took a different view, and contended that the
death penalty is a necessary and acceptable form of punishment and that it is
not cruel, inhuman or degrading within the meaning of section
11(2). He argued that if the framers of the Constitution had wished to
make the death penalty unconstitutional they would have said so, and that their
failure to do so indicated an intention to leave the issue open to be dealt with
by Parliament in the ordinary way. It was for Parliament, and not the
government, to decide whether or not the death penalty should be repealed, and
Parliament had not taken such a decision.
Legislative History
[12] The written argument of the South African government deals with the
debate which took place in regard to the death penalty before the commencement
of the constitutional negotiations. The information that it placed before
us was not disputed. It was argued that this background information forms
part of the context within which the Constitution should be interpreted.
[13] Our Courts have held that it is permissible in interpreting a statute to
have regard to the purpose and background of the legislation in question.
Certainly no less important than the oft repeated statement that the words
and expressions used in a statute must be interpreted according to their
ordinary meaning is the statement that they must be interpreted in the light of
their context. But it may be useful to stress two points in relation to
the application of this principle. The first is that "the context", as
here used, is not limited to the language of the rest of the statute regarded as
throwing light of a dictionary kind on the part to be interpreted. Often
of more importance is the matter of the statute, its apparent scope and purpose,
and, within limits, its background. [12]
[14] Debates in Parliament, including statements made by Ministers
responsible for legislation, and explanatory memoranda providing reasons for new
bills have not been admitted as background material. It is, however, permissible
to take notice of the report of a judicial commission of enquiry for the limited
purpose of ascertaining "the mischief aimed at [by] the statutory
enactment in question." [13] These principles were derived in part from
English law. In England, the courts have recently relaxed this
exclusionary rule and have held, in Pepper (Inspector of Taxes) v Hart [14]
that, subject to the privileges of the House of Commons:
...reference to Parliamentary material should be permitted as an aid to the
construction of legislation which is ambiguous or obscure or the literal meaning
of which leads to an absurdity. Even in such cases references in court to
Parliamentary material should only be permitted where such material clearly
discloses the mischief aimed at or the legislative intention lying behind the
ambiguous or obscure words. [15]
[15] As the judgment in Pepper's case shows, a similar relaxation of
the exclusionary rule has apparently taken place in Australia and New Zealand. [16]
Whether our Courts should follow these examples and extend the scope of
what is admissible as background material for the purpose of interpreting
statutes does not arise in the present case. We are concerned with the
interpretation of the Constitution, and not the interpretation of ordinary
legislation. A constitution is no ordinary statute. It is the
source of legislative and executive authority. It determines how the
country is to be governed and how legislation is to be enacted. It
defines the powers of the different organs of State, including Parliament, the
executive, and the courts as well as the fundamental rights of every person
which must be respected in exercising such powers.
[16] In countries in which the constitution is similarly the supreme law, it
is not unusual for the courts to have regard to the circumstances existing at
the time the constitution was adopted, including the debates and writings which
formed part of the process. The United States Supreme Court pays attention
to such matters, and its judgments frequently contain reviews of the legislative
history of the provision in question, including references to debates, and
statements made, at the time the provision was adopted. [17]
The German Constitutional Court also has regard to such evidence. [18]
The Canadian Supreme Court has held such evidence to be admissible, and has
referred to the historical background including the pre-confederation debates
for the purpose of interpreting provisions of the Canadian Constitution,
although it attaches less weight to such information than the United States
Supreme Court does. [19] It also has regard to ministerial statements in
Parliament in regard to the purpose of particular legislation. [20] In
India, whilst speeches of individual members of Parliament or the Convention are
apparently not ordinarily admissible, the reports of drafting committees can,
according to Seervai, "be a helpful extrinsic aid to construction." [21]
Seervai cites Kania CJ in A. K. Gopalan v The State [22] for the
proposition that whilst not taking "...into consideration the individual
opinions of Members of Parliament or Convention to construe the meaning of a
particular clause, when a question is raised whether a certain phrase or
expression was up for consideration at all or not, a reference to debates may be
permitted." The European Court of Human Rights and the United Nations
Committee on Human Rights all allow their deliberations to be informed by
travaux préparatoires. [23]
[17] Our Constitution was the product of negotiations conducted at the
Multi-Party Negotiating Process. The final draft adopted by the forum of
the Multi-Party Negotiating Process was, with few changes, adopted by
Parliament. The Multi-Party Negotiating Process was advised by technical
committees, and the reports of these committees on the drafts are the equivalent
of the travaux 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.
[18] It has been said in respect of the Canadian constitution that:
...the Charter is not the product of a few individual public servants,
however distinguished, but of a multiplicity of individuals who played major
roles in the negotiating, drafting and adoption of the Charter. How can
one say with any confidence that within this enormous multiplicity of actors ...
the comments of a few federal civil servants can in any way be determinative.
[24]
Our Constitution is also the product of a 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.
[19] Background evidence may, however, be useful to show why particular
provisions were or were not included in the Constitution. It is neither
necessary nor desirable at this stage in the development of our constitutional
law to express any opinion on whether it might also be relevant for other
purposes, nor to attempt to lay down general principles governing the
admissibility of such evidence. It is sufficient to say that where the
background material is clear, is not in dispute, and is relevant to showing why
particular provisions were or were not included in the Constitution, it can be
taken into account by a Court in interpreting the Constitution. These
conditions are satisfied in the present case.
[20] Capital punishment was the subject of debate before and during the
constitution-making process, and it is clear that the failure to deal
specifically in the Constitution with this issue was not accidental. [25]
[21] In February 1990, Mr F W de Klerk, then President of the Republic of
South Africa, stated in Parliament that "the death penalty had been the subject
of intensive discussion in recent months", which had led to concrete proposals
for reform under which the death penalty should be retained as an option to be
used in "extreme cases", the judicial discretion in regard to the imposition of
the death sentence should be broadened, and an automatic right of appeal allowed
to those under sentence of death. [26] These proposals were later
enacted into law by the Criminal Law Amendment Act No. 107 of 1990.
[22] In August 1991, the South African Law Commission in its Interim Report
on Group and Human Rights described the imposition of the death penalty as
"highly controversial". [27] A working paper of the Commission which preceded
the Interim Report had proposed that the right to life be recognised in a bill
of rights, subject to the proviso that the discretionary imposition of the
sentence of death be allowed for the most serious crimes. As a result of
the comments it received, the Law Commission decided to change the draft
and to adopt a "Solomonic solution" [28] under which a constitutional court would
be required to decide whether a right to life expressed in unqualified terms
could be circumscribed by a limitations clause contained in a bill of rights. [29]
"This proposed solution" it said "naturally imposes an onerous task on
the Constitutional Court. But it is a task which this Court will in
future have to carry out in respect of many other laws and executive and
administrative acts. The Court must not shrink from this task, otherwise
we shall be back to parliamentary sovereignty." [30]
[23] In March 1992, the then Minister of Justice issued a press statement in
which he said:
Opinions regarding the death penalty differ substantially. There are
those who feel that the death penalty is a cruel and inhuman form of punishment.
Others are of the opinion that it is in some extreme cases the
community's only effective safeguard against violent crime and that it gives
effect in such cases to the retributive and deterrent purposes of punishment.
[31]
He went on to say that policy in regard to the death penalty might be settled
during negotiations on the terms of a Bill of Fundamental Rights, and that
pending the outcome of such negotiations, execution of death sentences which had
not been commuted, would be suspended. He concluded his statement by
saying that:
The government wishes to see a speedy settlement of the future
constitutionality of this form of punishment and urges interested parties to
join in the discussions on a Bill of Fundamental Rights. [32]
[24] The moratorium was in respect of the carrying out, and not the
imposition, of the death sentence. The death sentence remained a lawful
punishment and although the courts may possibly have been influenced by the
moratorium, they continued to impose it in cases in which it was considered to
be the "only proper" sentence. According to the statistics provided to us
by the Attorney General, 243 persons have been sentenced to death since the
amendment to section 277 in 1990, and of these sentences, 143 have been
confirmed by the Appellate Division.
[25] In the constitutional negotiations which followed, the issue was not
resolved. Instead, the "Solomonic solution" was adopted. [33]
The death sentence was, in terms, neither sanctioned nor excluded, and it was
left to the Constitutional Court to decide whether the provisions of the
pre-constitutional law making the death penalty a competent sentence for murder
and other crimes are consistent with Chapter Three of the Constitution. If
they are, the death sentence remains a competent sentence for murder in cases in
which those provisions are applicable, unless and until Parliament otherwise
decides; if they are not, it is our duty to say so, and to declare such
provisions to be unconstitutional.
Section 11(2) - Cruel, Inhuman or Degrading Punishment
[26] Death is the most extreme form of punishment to which a convicted
criminal can be subjected. Its execution is final and irrevocable.
It puts an end not only to the right to life itself, but to all other personal
rights which had vested in the deceased under Chapter Three of the Constitution.
It leaves nothing except the memory in others of what has been and the
property that passes to the deceased's heirs. In the ordinary meaning of
the words, the death sentence is undoubtedly a cruel punishment. Once sentenced,
the prisoner waits on death row in the company of other prisoners under sentence
of death, for the processes of their appeals and the procedures for clemency to
be carried out. Throughout this period, those who remain on death row are
uncertain of their fate, not knowing whether they will ultimately be reprieved
or taken to the gallows. Death is a cruel penalty and the legal processes
which necessarily involve waiting in uncertainty for the sentence to be set
aside or carried out, add to the cruelty. It is also an inhuman punishment
for it "...involves, by its very nature, a denial of the executed person's
humanity", [34] and it is degrading because it strips the convicted
person of all dignity and treats him or her as an object to be eliminated by the
state. The question is not, however, whether the death sentence is a
cruel, inhuman or degrading punishment in the ordinary meaning of these words
but whether it is a cruel, inhuman or degrading punishment within the meaning of
section 11(2) of our Constitution. [35]
The accused, who rely on section 11(2) of the Constitution, carry the
initial onus of establishing this proposition. [36]
The Contentions of the Parties
[27] The principal arguments advanced by counsel for the accused in support
of their contention that the imposition of the death penalty for murder is a
"cruel, inhuman or degrading punishment," were that the death sentence is an
affront to human dignity, is inconsistent with the unqualified right to life
entrenched in the Constitution, cannot be corrected in case of error or enforced
in a manner that is not arbitrary, and that it negates the essential content of
the right to life and the other rights that flow from it. The Attorney
General argued that the death penalty is recognised as a legitimate form of
punishment in many parts of the world, it is a deterrent to violent crime, it
meets society's need for adequate retribution for heinous offences, and it is
regarded by South African society as an acceptable form of punishment. He
asserted that it is, therefore, not cruel, inhuman or degrading within the
meaning of section 11(2) of the Constitution. These arguments for
and against the death sentence are well known and have been considered in many
of the foreign authorities and cases to which we were referred. We must
deal with them now in the light of the provisions of our own Constitution.
The Effect of the Disparity in the Laws Governing Capital
Punishment
[28] One of the anomalies of the transition initiated by the Constitution is
that the Criminal Procedure Act does not apply throughout South Africa.
This is a consequence of section 229 of the Constitution which
provides:
Subject to this Constitution, all laws which immediately before the
commencement of this Constitution were in force in any area which forms part of
the national territory, shall continue in force in such area, subject to any
repeal or amendment of such laws by a competent authority.
[29] Prior to the commencement of the Constitution, the Criminal Procedure
Act was in force only in the old Republic of South Africa. Its operation
did not extend to the former Transkei, Bophuthatswana, Venda or Ciskei, which
were then treated by South African law as independent states and had their own
legislation. Although their respective Criminal Procedure statutes were
based on the South African legislation, there were differences, including
differences in regard to the death penalty. The most striking difference
in this regard was in Ciskei, where the death sentence was abolished on June 8,
1990 by the military regime, [37] the de facto government of the
territory, and it ceased from that date to be a competent sentence. [38]
These differences still exist, [39] which means that the law governing the
imposition of the death sentence in South Africa is not uniform. The greatest
disparity is in the Eastern Cape Province. A person who commits murder and
is brought to trial in that part of the province which was formerly Ciskei,
cannot be sentenced to death, whilst a person who commits murder and is brought
to trial in another part of the same province, can be sentenced to death.
There is no rational reason for this distinction, which is the result of
history, and we asked for argument to be addressed to us on the question whether
this difference has a bearing on the constitutionality of section
277(1)(a) of the Criminal Procedure Act.
[30] Counsel for the accused argued that it did. They contended that in
the circumstances section 277 was not a law of general application (which
is a requirement under section 33(1) for the validity of any law which
limits a Chapter Three right), and that the disparate application of the death
sentence within South Africa discriminates unfairly between those prosecuted in
the former Ciskei and those prosecuted elsewhere in South Africa, and offends
against the right to "equality before the law and to equal protection of the
law."
[40]
[31] If the disparity had been the result of legislation enacted after the
Constitution had come into force the challenge to the validity of section
277 on these grounds may well have been tenable. Criminal law and
procedure is a national competence and the national government could not without
very convincing reasons have established a "safe haven" in part of one of the
provinces in which the death penalty would not be enforced. The disparity
is not, however, the result of the legislative policy of the new Parliament, but
a consequence of the Constitution which brings together again in one country the
parts that had been separated under apartheid. The purpose of section
229 was to ensure an orderly transition, and an inevitable consequence of
its provisions is that there will be disparities in the law reflecting
pre-existing regional variations, and that this will continue until a uniform
system of law has been established by the national and provincial legislatures
within their fields of competence as contemplated by Chapter Fifteen of the
Constitution.
[32] The requirement of section 229 that existing laws shall continue
to be in force subject to the Constitution, makes the Constitution
applicable to existing laws within each of the geographic areas. These
laws have to meet all the standards prescribed by Chapter Three, and this no
doubt calls for consistency and parity of laws within the boundaries of each of
the different geographic areas. It does not, however, mean that there has
to be consistency and parity between the laws of the different geographic areas
themselves. [41] Such a construction would defeat the apparent
purpose of section 229, which is to allow different legal orders to exist
side by side until a process of rationalisation has been carried out, and would
inappropriately expose a substantial part if not the entire body of our
statutory law to challenges under section 8 of the Constitution. It
follows that disparities between the legal orders in different parts of the
country, consequent upon the provisions of section 229 of the
Constitution, cannot for that reason alone be said to constitute a breach of the
equal protection provisions of section 8, or render the laws such that
they are not of general application.
International and Foreign Comparative Law
[33] The death sentence is a form of punishment which has been used
throughout history by different societies. It has long been the subject of
controversy. [42] As societies became more enlightened, they
restricted the offences for which this penalty could be imposed. [43]
The movement away from the death penalty gained momentum during the second half
of the present century with the growth of the abolitionist movement. In
some countries it is now prohibited in all circumstances, in some it is
prohibited save in times of war, and in most countries that have retained it as
a penalty for crime, its use has been restricted to extreme cases.
According to Amnesty International, 1,831 executions were carried out throughout
the world in 1993 as a result of sentences of death, of which 1,419 were in
China, which means that only 412 executions were carried out in the rest of the
world in that year. [44] Today, capital punishment has been abolished as
a penalty for murder either specifically or in practice by almost half the
countries of the world including the democracies of Europe and our neighbouring
countries, Namibia, Mozambique and Angola. [45] In
most of those countries where it is retained, as the Amnesty International
statistics show, it is seldom used.
[34] In the course of the arguments addressed to us, we were referred to
books and articles on the death sentence, and to judgments dealing with
challenges made to capital punishment in the courts of other countries and in
international tribunals. The international and foreign authorities are of
value because they analyse arguments for and against the death sentence and show
how courts of other jurisdictions have dealt with this vexed issue. For
that reason alone they require our attention. They may also have to be
considered because of their relevance to section 35(1) of the
Constitution, which states:
In interpreting the provisions of this Chapter a court of law shall promote
the values which underlie an open and democratic society based on freedom and
equality and shall, where applicable, have regard to public international law
applicable to the protection of the rights entrenched in this Chapter, and may
have regard to comparable foreign case law.
[35] Customary international law and the ratification and accession to
international agreements is dealt with in section 231 of the Constitution
which sets the requirements for such law to be binding within South
Africa. In the context of section 35(1), public international law
would include non-binding as well as binding law. [46]
They may both be used under the section as tools of interpretation.
International agreements and customary international law accordingly
provide a framework within which Chapter Three can be evaluated and understood,
and for that purpose, decisions of tribunals dealing with comparable
instruments, such as the United Nations Committee on Human Rights, [47] the
Inter-American Commission on Human Rights, [48] the
Inter-American Court of Human Rights, [49] the European Commission on Human
Rights,
[50] and the European Court of Human Rights, [51] and in
appropriate cases, reports of specialised agencies such as the International
Labour Organisation may provide guidance as to the correct interpretation of
particular provisions of Chapter Three.
[36] Capital punishment is not prohibited by public international law, and
this is a factor that has to be taken into account in deciding whether it is
cruel, inhuman or degrading punishment within the meaning of section
11(2). International human rights agreements differ, however, from our
Constitution in that where the right to life is expressed in unqualified terms
they either deal specifically with the death sentence, or authorise exceptions
to be made to the right to life by law. [52]
This has influenced the way international tribunals have dealt with issues
relating to capital punishment, and is relevant to a proper understanding of
such decisions.
[37] Comparative "bill of rights" jurisprudence will no doubt be of
importance, particularly in the early stages of the transition when there is no
developed indigenous jurisprudence in this branch of the law on which to draw.
Although we are told by section 35(1) that we "may" have regard to
foreign case law, it is important to appreciate that this will not necessarily
offer a safe guide to the interpretation of Chapter Three of our Constitution. [53]
This has already been pointed out in a number of decisions of the
Provincial and Local Divisions of the Supreme Court, [54] and is
implicit in the injunction given to the Courts in section 35(1), which in
permissive terms allows the Courts to "have regard to" such law. There is
no injunction to do more than this.
[38] When challenges to the death sentence in international or foreign courts
and tribunals have failed, the constitution or the international instrument
concerned has either directly sanctioned capital punishment or has specifically
provided that the right to life is subject to exceptions sanctioned by law.
The only case to which we were referred in which there were not such
express provisions in the Constitution, was the decision of the Hungarian
Constitutional Court. There the challenge succeeded and the death penalty
was declared to be unconstitutional. [55]
[39] Our Constitution expresses the right to life in an unqualified form, and
prescribes the criteria that have to be met for the limitation of entrenched
rights, including the prohibition of legislation that negates the essential
content of an entrenched right. In dealing with comparative law, we must
bear in mind that we are required to construe the South African Constitution,
and not an international instrument or the constitution of some foreign country,
and that this has to be done with due regard to our legal system, our history
and circumstances, and the structure and language of our own Constitution. [56]
We can derive assistance from public international law and foreign case
law, but we are in no way bound to follow it.
Capital Punishment in the United States of America
[40] The earliest litigation on the validity of the death sentence seems to
have been pursued in the courts of the United States of America. It has
been said there that the "Constitution itself poses the first obstacle to [the]
argument that capital punishment is per se unconstitutional". [57]
From the beginning, the United States Constitution recognised capital punishment
as lawful. The Fifth Amendment (adopted in 1791) refers in specific
terms to capital punishment and impliedly recognises its validity. The
Fourteenth Amendment (adopted in 1868) obliges the states, not to "deprive any
person of life, liberty, or property, without due process of law" and it too
impliedly recognises the right of the states to make laws for such purposes. [58]
The argument that capital punishment is unconstitutional was based on the
Eighth Amendment, which prohibits cruel and unusual punishment. [59]
Although the Eighth Amendment "has not been regarded as a static concept" [60]
and as drawing its meaning "from the evolving standards of decency that mark the
progress of a maturing society", [61] the fact that the Constitution
recognises the lawfulness of capital punishment has proved to be an obstacle in
the way of the acceptance of this argument, and this is stressed in some of the
judgments of the United States Supreme Court. [62]
[41] Although challenges under state constitutions to the validity of the
death sentence have been successful, [63] the federal constitutionality of the
death sentence as a legitimate form of punishment for murder was affirmed by the
United States Supreme Court in Gregg v. Georgia. [64]
Both before and after Gregg's case, decisions upholding and
rejecting challenges to death penalty statutes have divided the Supreme Court,
and have led at times to sharply-worded judgments. [65]
The decisions ultimately turned on the votes of those judges who considered the
nature of the discretion given to the sentencing authority to be the crucial
factor.
[42] Statutes providing for mandatory death sentences, or too little
discretion in sentencing, have been rejected by the Supreme Court because they
do not allow for consideration of factors peculiar to the convicted person
facing sentence, which may distinguish his or her case from other cases. [66]
For the same reason, statutes which allow too wide a discretion to judges
or juries have also been struck down on the grounds that the exercise of such
discretion leads to arbitrary results. [67] In sum, therefore, if there is no
discretion, too little discretion, or an unbounded discretion, the provision
authorising the death sentence has been struck down as being contrary to the
Eighth Amendment; where the discretion has been "suitably directed and limited
so as to minimise the risk of wholly arbitrary and capricious action", [68]
the challenge to the statute has failed. [69]
Arbitrariness and Inequality
[43] Basing his argument on the reasons which found favour with the majority
of the United States Supreme Court in Furman v. Georgia, Mr Trengove
contended on behalf of the accused that the imprecise language of section
277, and the unbounded discretion vested by it in the Courts, make its
provisions unconstitutional.
[44] Section 277 of the Criminal Procedure Act provides:
Sentence of death
(1) The sentence of death may be passed by a superior court only and
only in the case of a conviction for-
- murder;
- treason committed when the Republic is in a state of war;
- robbery or attempted robbery, if the court finds aggravating circumstances
to have been present;
- kidnapping;
- child-stealing;
- rape.
(2) The sentence of death shall be imposed-
- 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
- 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)
- 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.
- If in the application of paragraph (a) the age of an accused is placed in
issue, the onus shall be on the State to show beyond reasonable doubt that the
accused was 18 years of age or older at the relevant time.
[45] Under our court system questions of guilt and innocence, and the proper
sentence to be imposed on those found guilty of crimes, are not decided by
juries. In capital cases, where it is likely that the death sentence may
be imposed, judges sit with two assessors who have an equal vote with the judge
on the issue of guilt and on any mitigating or aggravating factors relevant to
sentence; but sentencing is the prerogative of the judge alone. The
Criminal Procedure Act allows a full right of appeal to persons sentenced to
death, including a right to dispute the sentence without having to establish an
irregularity or misdirection on the part of the trial judge. The Appellate
Division is empowered to set the sentence aside if it would not have imposed
such sentence itself, and it has laid down criteria for the exercise of this
power by itself and other courts. [70] If the person sentenced to death
does not appeal, the Appellate Division is nevertheless required to review the
case and to set aside the death sentence if it is of the opinion that it is not
a proper sentence. [71]
[46] Mitigating and aggravating factors must be identified by the Court,
bearing in mind that the onus is on the State to prove beyond reasonable doubt
the existence of aggravating factors, and to negative beyond reasonable doubt
the presence of any mitigating factors relied on by the accused. [72]
Due regard must be paid to the personal circumstances and subjective factors
which might have influenced the accused person's conduct, [73] and these
factors must then be weighed up with the main objects of punishment, which have
been held to be: deterrence, prevention, reformation, and retribution. [74]
In this process "[e]very relevant consideration should receive the most
scrupulous care and reasoned attention", [75] and the
death sentence should only be imposed in the most exceptional cases, where there
is no reasonable prospect of reformation and the objects of punishment would not
be properly achieved by any other sentence. [76]
[47] There seems to me to be little difference between the guided discretion
required for the death sentence in the United States, and the criteria laid down
by the Appellate Division for the imposition of the death sentence. The
fact that the Appellate Division, a court of experienced judges, takes the final
decision in all cases is, in my view, more likely to result in consistency of
sentencing, than will be the case where sentencing is in the hands of jurors who
are offered statutory guidance as to how that discretion should be
exercised.
[48] The argument that the imposition of the death sentence under section
277 is arbitrary and capricious does not, however, end there. It also
focuses on what is alleged to be the arbitrariness inherent in the application
of section 277 in practice. Of the thousands of persons put on trial for
murder, only a very small percentage are sentenced to death by a trial court,
and of those, a large number escape the ultimate penalty on appeal. [77] At
every stage of the process there is an element of chance. The outcome may
be dependent upon factors such as the way the case is investigated by the
police, the way the case is presented by the prosecutor, how effectively the
accused is defended, the personality and particular attitude to capital
punishment of the trial judge and, if the matter goes on appeal, the particular
judges who are selected to hear the case. Race [78] and
poverty are also alleged to be factors.
[49] Most accused facing a possible death sentence are unable to afford legal
assistance, and are defended under the pro deo system. The defending
counsel is more often than not young and inexperienced, frequently of a
different race to his or her client, and if this is the case, usually has to
consult through an interpreter. Pro deo counsel are paid only a
nominal fee for the defence, and generally lack the financial resources and the
infrastructural support to undertake the necessary investigations and research,
to employ expert witnesses to give advice, including advice on matters relevant
to sentence, to assemble witnesses, to bargain with the prosecution, and
generally to conduct an effective defence. Accused persons who have the
money to do so, are able to retain experienced attorneys and counsel, who are
paid to undertake the necessary investigations and research, and as a result
they are less likely to be sentenced to death than persons similarly placed who
are unable to pay for such services. [79]
[50] It needs to be mentioned that there are occasions when senior members of
the bar act pro deo in particularly difficult cases - indeed the present
case affords an example of that, for Mr Trengove and his juniors have acted
pro deo in the proceedings before us, and the Legal Resources Centre who
have acted as their instructing attorneys, have done so without charge.
An enormous amount of research has gone into the preparation of the argument and
it is highly doubtful that even the wealthiest members of our society could have
secured a better service than they have provided. But this is the
exception and not the rule. This may possibly change as a result of the
provisions of section 25(3)(e) of the Constitution, but there are limits
to the available financial and human resources, limits which are likely to exist
for the foreseeable future, and which will continue to place poor accused at a
significant disadvantage in defending themselves in capital cases.
[51] It cannot be gainsaid that poverty, race and chance play roles in
the outcome of capital cases and in the final decision as to who should live and
who should die. It is sometimes said that this is understood by the
judges, and as far as possible, taken into account by them. But in itself
this is no answer to the complaint of arbitrariness; on the contrary, it may
introduce an additional factor of arbitrariness that would also have to be taken
into account. Some, but not all accused persons may be acquitted because
such allowances are made, and others who are convicted, but not all, may for the
same reason escape the death sentence. [80]
[52] In holding that the imposition and the carrying out of the death penalty
in the cases then under consideration constituted cruel and unusual punishment
in the United States, Justice Douglas, concurring in Furman v. Georgia,
said that "[a]ny law which is nondiscriminatory on its face may be applied in
such a way as to violate the Equal Protection Clause of the Fourteenth
Amendment." Discretionary statutes are:
...pregnant with discrimination and discrimination is an ingredient not
compatible with the idea of equal protection of the laws that is implicit in the
ban on "cruel and unusual" punishments. [81]
[53] It was contended that we should follow this approach and hold that the
factors to which I have referred, make the application of section 277, in
practice, arbitrary and capricious and, for that reason, any resulting death
sentence is cruel, inhuman and degrading punishment.
[54] The differences that exist between rich and poor, between good and bad
prosecutions, between good and bad defence, between severe and lenient judges,
between judges who favour capital punishment and those who do not, and the
subjective attitudes that might be brought into play by factors such as race and
class, may in similar ways affect any case that comes before the courts, and is
almost certainly present to some degree in all court systems. Such
factors can be mitigated, but not totally avoided, by allowing convicted persons
to appeal to a higher court. Appeals are decided on the record of the case
and on findings made by the trial court. If the evidence on record and
the findings made have been influenced by these factors, there may be nothing
that can be done about that on appeal. Imperfection inherent in criminal
trials means that error cannot be excluded; it also means that persons similarly
placed may not necessarily receive similar punishment. This needs to be
acknowledged. What also needs to be acknowledged is that the possibility
of error will be present in any system of justice and that there cannot be
perfect equality as between accused persons in the conduct and outcome of
criminal trials. We have to accept these differences in the ordinary
criminal cases that come before the courts, even to the extent that some may go
to gaol when others similarly placed may be acquitted or receive non-custodial
sentences. But death is different, and the question is, whether this is
acceptable when the difference is between life and death. Unjust
imprisonment is a great wrong, but if it is discovered, the prisoner can be
released and compensated; but the killing of an innocent person is
irremediable. [82]
[55] In the United States, the Supreme Court has addressed itself primarily
to the requirement of due process. Statutes have to be clear and discretion
curtailed without ignoring the peculiar circumstances of each accused person.
Verdicts are set aside if the defence has not been adequate, [83] and
persons sentenced to death are allowed wide rights of appeal and review.
This attempt to ensure the utmost procedural fairness has itself led to
problems. The most notorious is the "death row phenomenon" in which
prisoners cling to life, exhausting every possible avenue of redress, and using
every device to put off the date of execution, in the natural and understandable
hope that there will be a reprieve from the Courts or the executive. It
is common for prisoners in the United States to remain on death row for many
years, and this dragging out of the process has been characterised as being
cruel and degrading. [84] The difficulty of implementing a system of
capital punishment which on the one hand avoids arbitrariness by insisting on a
high standard of procedural fairness, and on the other hand avoids delays that
in themselves are the cause of impermissible cruelty and inhumanity, is
apparent. Justice Blackmun, who sided with the majority in Gregg's
case, ultimately came to the conclusion that it is not possible to design a
system that avoids arbitrariness. [85] To design a system that avoids
arbitrariness and delays in carrying out the sentence is even more
difficult.
[56] The United States jurisprudence has not resolved the dilemma arising
from the fact that the Constitution prohibits cruel and unusual punishments, but
also permits, and contemplates that there will be capital punishment. The
acceptance by a majority of the United States Supreme Court of the proposition
that capital punishment is not per se unconstitutional, but that in certain
circumstances it may be arbitrary, and thus unconstitutional, has led to endless
litigation. Considerable expense and interminable delays result from the
exceptionally-high standard of procedural fairness set by the United States
courts in attempting to avoid arbitrary decisions. The difficulties that
have been experienced in following this path, to which Justice Blackmun and
Justice Scalia have both referred, [86] but from which they have drawn different
conclusions, persuade me that we should not follow this route.
The Right to Dignity
[57] Although the United States Constitution does not contain a specific
guarantee of human dignity, it has been accepted by the United States Supreme
Court that the concept of human dignity is at the core of the prohibition of
"cruel and unusual punishment" by the Eighth and Fourteenth Amendments. [87]
For Brennan J this was decisive of the question in Gregg v.
Georgia.
The fatal constitutional infirmity in the punishment of death is that it
treats "members of the human race as nonhumans, as objects to be toyed with and
discarded. [It is] thus inconsistent with the fundamental premise of the Clause
that even the vilest criminal remains a human being possessed of common human
dignity." [88]
[58] Under our constitutional order the right to human dignity is
specifically guaranteed. It can only be limited by legislation which
passes the stringent test of being 'necessary'. The weight given to human
dignity by Justice Brennan is wholly consistent with the values of our
Constitution and the new order established by it. It is also consistent
with the approach to extreme punishments followed by courts in other
countries.
[59] In Germany, the Federal Constitutional Court has stressed this aspect of
punishment.
Respect for human dignity especially requires the prohibition of cruel,
inhuman, and degrading punishments. [The state] cannot turn the offender
into an object of crime prevention to the detriment of his constitutionally
protected right to social worth and respect. [89]
[60] That capital punishment constitutes a serious impairment of human
dignity has also been recognised by judgments of the Canadian Supreme Court.
Kindler v Canada [90] was concerned with the extradition from
Canada to the United States of two fugitives, Kindler, who had been convicted of
murder and sentenced to death in the United States, and Ng who was facing a
murder charge there and a possible death sentence. Three of the seven
judges who heard the cases expressed the opinion that the death penalty was
cruel and unusual:
It is the supreme indignity to the individual, the ultimate corporal
punishment, the final and complete lobotomy and the absolute and irrevocable
castration. [It is] the ultimate desecration of human dignity...
[91]
[61] Three other judges were of the opinion that:
[t]here is strong ground for believing, having regard to the limited extent
to which the death penalty advances any valid penological objectives and the
serious invasion of human dignity it engenders, that the death penalty cannot,
except in exceptional circumstances, be justified in this country. [92]
In the result, however, the majority of the Court held that the validity of
the order for extradition did not depend upon the constitutionality of the death
penalty in Canada, or the guarantee in its Charter of Rights against cruel and
unusual punishment. The Charter was concerned with legislative and
executive acts carried out in Canada, and an order for extradition neither
imposed nor authorised any punishment within the borders of Canada.
[62] The issue in Kindler's case was whether the action of the
Minister of Justice, who had authorised the extradition without any assurance
that the death penalty would not be imposed, was constitutional. It was
argued that this executive act was contrary to section 12 of the Charter
which requires the executive to act in accordance with fundamental principles of
justice. The Court decided by a majority of four to three that in the particular
circumstances of the case the decision of the Minister of Justice could not be
set aside on these grounds. In balancing the international obligations of
Canada in respect of extradition, and another purpose of the extradition
legislation - to prevent Canada from becoming a safe haven for criminals,
against the likelihood that the fugitives would be executed if returned to the
United States, the view of the majority was that the decision to return the
fugitives to the United States could not be said to be contrary to the
fundamental principles of justice. In their view, it would not shock the
conscience of Canadians to permit this to be done.
The International Covenant on Civil and Political Rights
[63] Ng and Kindler took their cases to the Human Rights
Committee of the United Nations, contending that Canada had breached its
obligations under the International Covenant on Civil and Political Rights.
Once again, there was a division of opinion within the tribunal. In
Ng's case it was said:
The Committee is aware that, by definition, every execution of a sentence of
death may be considered to constitute cruel and inhuman treatment within the
meaning of article 7 of the covenant. [93]
[64] There was no dissent from that statement. But the International
Covenant contains provisions permitting, with some qualifications, the
imposition of capital punishment for the most serious crimes. In view of
these provisions, the majority of the Committee were of the opinion that
the extradition of fugitives to a country which enforces the death sentence in
accordance with the requirements of the International Covenant, should not be
regarded as a breach of the obligations of the extraditing country. In
Ng's case, the method of execution which he faced if extradited was
asphyxiation in a gas chamber. This was found by a majority of the
Committee to involve unnecessary physical and mental suffering and,
notwithstanding the sanction given to capital punishment, to be cruel punishment
within the meaning of article 7 of the International Covenant. In
Kindler's case, in which the complaint was delivered at the same time as
that in the Ng's case, but the decision was given earlier, it was held
that the method of execution which was by lethal injection was not a cruel
method of execution, and that the extradition did not in the circumstances
constitute a breach of Canada's obligations under the International Covenant.
[94]
[65] The Committee also held in Kindler's case that prolonged judicial
proceedings giving rise to the death row phenomenon does not per se
constitute cruel, inhuman or degrading treatment. There were dissents in
both cases. Some Commissioners in Ng's case held that asphyxiation
was not crueller than other forms of execution. Some in Kindler's
case held that the provision of the International Covenant against the arbitrary
deprivation of the right to life took priority over the provisions of the
International Covenant which allow the death sentence, and that Canada ought not
in the circumstances to have extradited Kindler without an assurance that he
would not be executed.
[66] It should be mentioned here that although articles 6(2) to (5) of
the International Covenant specifically allow the imposition of the death
sentence under strict controls "for the most serious crimes" by those countries
which have not abolished it, it provides in article 6(6) that "[n]othing
in this article shall be invoked to delay or to prevent the abolition of capital
punishment by any State Party to the present Covenant." The fact that the
International Covenant sanctions capital punishment must be seen in this
context. It tolerates but does not provide justification for the death
penalty.
[67] Despite these differences of opinion, what is clear from the decisions
of the Human Rights Committee of the United Nations is that the death penalty is
regarded by it as cruel and inhuman punishment within the ordinary meaning of
those words, and that it was because of the specific provisions of the
International Covenant authorising the imposition of capital punishment by
member States in certain circumstances, that the words had to be given a narrow
meaning.
The European Convention on Human Rights
[68] Similar issues were debated by the European Court of Human Rights in
Soering v United Kingdom. [95] This case was also concerned with
the extradition to the United States of a fugitive to face murder charges for
which capital punishment was a competent sentence. It was argued that this
would expose him to inhuman and degrading treatment or punishment in breach of
article 3 of the European Convention on Human Rights.
Article 2 of the European Convention protects the right to life but makes
an exception in the case of "the execution of a sentence of a court following
[the] conviction of a crime for which this penalty is provided by law."
The majority of the Court held that article 3 could not be construed as
prohibiting all capital punishment, since to do so would nullify article
2. It was, however, competent to test the imposition of capital
punishment in particular cases against the requirements of article 3 --
the manner in which it is imposed or executed, the personal circumstances of the
condemned person and the disproportionality to the gravity of the crime
committed, as well as the conditions of detention awaiting execution, were
capable of bringing the treatment or punishment received by the condemned person
within the proscription.
[69] On the facts, it was held that extradition to the United States to face
trial in Virginia would expose the fugitive to the risk of treatment going
beyond the threshold set by article 3. The special factors taken
into account were the youth of the fugitive (he was 18 at the time of the
murders), an impaired mental capacity, and the suffering on death row which
could endure for up to eight years if he were convicted. Additionally,
although the offence for which extradition was sought had been committed in the
United States, the fugitive who was a German national was also liable to be
tried for the same offence in Germany. Germany, which has abolished the
death sentence, also sought his extradition for the murders. There was
accordingly a choice in regard to the country to which the fugitive should be
extradited, and that choice should have been exercised in a way which would not
lead to a contravention of article 3. What weighed with the Court
was the fact that the choice facing the United Kingdom was not a choice between
extradition to face a possible death penalty and no punishment, but a choice
between extradition to a country which allows the death penalty and one which
does not. We are in a comparable position. A holding by us that the
death penalty for murder is unconstitutional, does not involve a choice between
freedom and death; it involves a choice between death in the very few cases
which would otherwise attract that penalty under section 277(1)(a), and
the severe penalty of life imprisonment.
Capital Punishment in India
[70] In the amicus brief of the South African Police, reliance was
placed on decisions of the Indian Supreme Court, and it is necessary to refer
briefly to the way the law has developed in that country.
[71] Section 302 of the Indian Penal Code authorises the imposition of
the death sentence as a penalty for murder. In Bachan Singh v State of
Punjab, [96] the constitutionality of this provision was put in
issue. Article 21 of the Indian Constitution provides that:
No person shall be deprived of his life or personal liberty except
according to procedure established by law.
[72] The wording of this article presented an obstacle to a challenge to the
death sentence, because there was a "law" which made provision for the death
sentence. Moreover, article 72 of the Constitution empowers the
President and Governors to commute sentences of death, and article 134
refers to the Supreme Court's powers on appeal in cases where the death
sentence has been imposed. It was clear, therefore, that capital
punishment was specifically contemplated and sanctioned by the framers of the
Indian Constitution, when it was adopted by them in November 1949. [97]
[73] Counsel for the accused in Bachan Singh's case sought to overcome
this difficulty by contending that article 21 had to be read with
article 19(1), which guarantees the freedoms of speech, of assembly, of
association, of movement, of residence, and the freedom to engage in any
occupation. These fundamental freedoms can only be restricted under the
Indian Constitution if the restrictions are reasonable for the attainment of a
number of purposes defined in sections 19(2) to (6). It was
contended that the right to life was basic to the enjoyment of these fundamental
freedoms, and that the death sentence restricted them unreasonably in that it
served no social purpose, its deterrent effect was unproven and it defiled the
dignity of the individual.
[74] The Supreme Court analysed the provisions of article 19(1) and
came to the conclusion, for reasons that are not material to the present case,
that the provisions of section 302 of the Indian Penal Code did "not have
to stand the test of article 19(1) of the Constitution." [98] It
went on, however, to consider "arguendo" what the outcome would be if the test
of reasonableness and public interest under article 19(1) had to be
satisfied.
[75] The Supreme Court had recognised in a number of cases that the death
sentence served as a deterrent, and the Law Commission of India, which had
conducted an investigation into capital punishment in 1967, had recommended that
capital punishment be retained. The court held that in the circumstances
it was "for the petitioners to prove and establish that the death sentence for
murder is so outmoded, unusual or excessive as to be devoid of any rational
nexus with the purpose and object of the legislation." [99]
[76] The Court then dealt with international authorities for and against the
death sentence, and with the arguments concerning deterrence and retribution.
[100] After reviewing the arguments for and against the death
sentence, the court concluded that:
...the question whether or not [the] death penalty serves any penological
purpose is a difficult, complex and intractable issue [which] has evoked strong,
divergent views. For the purpose of testing the constitutionality of the
impugned provisions as to death penalty ... on the grounds of reasonableness in
the light of Articles 19 and 21 of the Constitution, it is not necessary for us
to express any categorical opinion, one way or another, as to which of these
antithetical views, held by the Abolitionists and the Retentionists, is correct.
It is sufficient to say that the very fact that persons of reason,
learning and light are rationally and deeply divided in their opinion on this
issue, is ground among others, for rejecting the petitioners' argument that
retention of death penalty in the impugned provision, is totally devoid of
reason and purpose. [101]
It accordingly held that section 302 of the Indian Penal Code
"violates neither the letter nor the ethos of Article 19." [102]
[77] The Court then went on to deal with article 21. It said that if
article 21 were to be expanded in accordance with the interpretative
principle applicable to legislation limiting rights under Article 19(1),
article 21 would have to be read as follows:
No person shall be deprived of his life or personal liberty except according
to fair, just and reasonable procedure established by a valid law.
And thus expanded, it was clear that the State could deprive a person of his
or her life, by "fair, just and reasonable procedure." In the
circumstances, and taking into account the indications that capital
punishment was considered by the framers of the constitution in 1949 to be a
valid penalty, it was asserted that "by no stretch of the imagination can it be
said that death penalty...either per se or because of its execution by hanging
constitutes an unreasonable, cruel or unusual punishment" prohibited by the
Constitution. [103]
[78] The wording of the relevant provisions of our Constitution are
different. The question we have to consider is not whether the imposition
of the death sentence for murder is "totally devoid of reason and purpose", or
whether the death sentence for murder "is devoid of any rational nexus" with the
purpose and object of section 277(1)(a) of the Criminal Procedure
Act. It is whether in the context of our Constitution, the death penalty
is cruel, inhuman or degrading, and if it is, whether it can be justified in
terms of section 33.
[79] The Indian Penal Code leaves the imposition of the death sentence to the
trial judge's discretion. In Bachan Singh's case there was also a
challenge to the constitutionality of the legislation on the grounds of
arbitrariness, along the lines of the challenges that have been successful in
the United States. The majority of the Court rejected the argument that
the imposition of the death sentence in such circumstances is arbitrary, holding
that a discretion exercised judicially by persons of experience and standing, in
accordance with principles crystallized by judicial decisions, is not an
arbitrary discretion. [104] To complete the picture, it should be
mentioned that long delays in carrying out the death sentence in particular
cases have apparently been held in India to be unjust and unfair to the
prisoner, and in such circumstances the death sentence is liable to be set
aside. [105]
The Right to Life
[80] The unqualified right to life vested in every person by section 9
of our Constitution is another factor crucially relevant to the question whether
the death sentence is cruel, inhuman or degrading punishment within the meaning
of section 11(2) of our Constitution. In this respect our
Constitution differs materially from the Constitutions of the United States and
India. It also differs materially from the European Convention and the
International Covenant. Yet in the cases decided under these
constitutions and treaties there were judges who dissented and held that
notwithstanding the specific language of the constitution or instrument
concerned, capital punishment should not be permitted.
[81] In some instances the dissent focused on the right to life. In
Soering's case before the European Court of Human Rights, Judge de Meyer,
in a concurring opinion, said that capital punishment is "not consistent with
the present state of European civilisation" [106] and
for that reason alone, extradition to the United States would violate the
fugitive's right to life.
[82] In a dissent in the United Nations Human Rights Committee in
Kindler's case, Committee member B. Wennergren also stressed the
importance of the right to life.
The value of life is immeasurable for any human being, and the right to life
enshrined in article 6 of the Covenant is the supreme human right. It is
an obligation of States [P]arties to the Covenant to protect the lives of all
human beings on their territory and under their jurisdiction. If issues
arise in respect of the protection of the right to life, priority must not be
accorded to the domestic laws of other countries or to (bilateral) treaty
articles. Discretion of any nature permitted under an extradition treaty
cannot apply, as there is no room for it under Covenant obligations. It is
worth repeating that no derogation from a State's obligations under article 6,
paragraph 1, is permitted. This is why Canada, in my view, violated
article 6, paragraph 1, by consenting to extradite Mr. Kindler to the United
States, without having secured assurances that Mr. Kindler would not be
subjected to the execution of the death sentence. [107]
[83] An individual's right to life has been described as "[t]he most
fundamental of all human rights", [108] and was dealt with in that way in the
judgments of the Hungarian Constitutional Court declaring capital punishment to
be unconstitutional. [109] The challenge to the death sentence in Hungary
was based on section 54 of its Constitution which provides:
(1) In the Republic of Hungary everyone has the inherent right to life
and to human dignity, and no one shall be arbitrarily deprived of these
rights.
(2) No one shall be subjected to torture or to cruel or inhuman or degrading
punishment
[84] Section 8, the counterpart of section 33 of our
Constitution, provides that laws shall not impose any limitations on the
essential content of fundamental rights. According to the finding of the
Court, capital punishment imposed a limitation on the essential content of the
fundamental rights to life and human dignity, eliminating them
irretrievably. As such it was unconstitutional. Two factors are
stressed in the judgment of the Court. First, the relationship between the
rights of life and dignity, and the importance of these rights taken
together. Secondly, the absolute nature of these two rights taken
together. Together they are the source of all other rights. Other
rights may be limited, and may even be withdrawn and then granted again, but
their ultimate limit is to be found in the preservation of the twin rights of
life and dignity. These twin rights are the essential content of all
rights under the Constitution. Take them away, and all other rights cease.
I will deal later with the requirement of our Constitution that a right
shall not be limited in ways which negate its essential content.
For the present purposes it is sufficient to point to the fact that the
Hungarian Court held capital punishment to be unconstitutional on the grounds
that it is inconsistent with the right to life and the right to dignity.
[85] Our Constitution does not contain the qualification found in
section 54(1) of the Hungarian constitution, which prohibits only the
arbitrary deprivation of life. To that extent, therefore, the right
to life in section 9 of our Constitution is given greater protection than
it is by the Hungarian Constitution.
[86] The fact that in both the United States and India, which sanction
capital punishment, the highest courts have intervened on constitutional grounds
in particular cases to prevent the carrying out of death sentences, because in
the particular circumstances of such cases, it would have been cruel to do so,
evidences the importance attached to the protection of life and the strict
scrutiny to which the imposition and carrying out of death sentences are
subjected when a constitutional challenge is raised. The same concern is
apparent in the decisions of the European Court of Human Rights and the United
Nations Committee on Human Rights. It led the Court in Soering's
case to order that extradition to the United States, in the circumstances of
that case, would result in inhuman or degrading punishment, and the Human Rights
Committee to declare in Ng's case that he should not be extradited to
face a possible death by asphyxiation in a gas chamber in California.
Public Opinion
[87] The Attorney General argued that what is cruel, inhuman or degrading
depends to a large extent upon contemporary attitudes within society, and that
South African society does not regard the death sentence for extreme cases of
murder as a cruel, inhuman or degrading form of punishment. It was disputed
whether public opinion, properly informed of the different considerations, would
in fact favour the death penalty. I am, however, prepared to assume that
it does and that the majority of South Africans agree that the death sentence
should be imposed in extreme cases of murder. The question before us,
however, is not what the majority of South Africans believe a proper sentence
for murder should be. It is whether the Constitution allows the
sentence.
[88] Public opinion may have some relevance to the enquiry, but in itself, it
is no substitute for the duty vested in the Courts to interpret the Constitution
and to uphold its provisions without fear or favour. If public opinion
were to be decisive there would be no need for constitutional
adjudication. The protection of rights could then be left to Parliament,
which has a mandate from the public, and is answerable to the public for the way
its mandate is exercised, but this would be a return to parliamentary
sovereignty, and a retreat from the new legal order established by the 1993
Constitution. By the same token the issue of the constitutionality of
capital punishment cannot be referred to a referendum, in which a majority view
would prevail over the wishes of any minority. The very reason for
establishing the new legal order, and for vesting the power of judicial review
of all legislation in the courts, was to protect the rights of minorities and
others who cannot protect their rights adequately through the democratic
process. Those who are entitled to claim this protection include the
social outcasts and marginalised people of our society. It is only
if there is a willingness to protect the worst and the weakest amongst us, that
all of us can be secure that our own rights will be protected.
[89] This Court cannot allow itself to be diverted from its duty to act as an
independent arbiter of the Constitution by making choices on the basis that they
will find favour with the public. [110] Justice Powell's comment in
his dissent in Furman v Georgia bears repetition:
...the weight of the evidence indicates that the public generally has not
accepted either the morality or the social merit of the views so passionately
advocated by the articulate spokesmen for abolition. But however one may
assess amorphous ebb and flow of public opinion generally on this volatile
issue, this type of inquiry lies at the periphery - not the core - of the
judicial process in constitutional cases. The assessment of popular
opinion is essentially a legislative, and not a judicial, function. [111]
So too does the comment of Justice Jackson in West Virginia State Board of
Education v Barnette:
The very purpose of a Bill of Rights was to withdraw certain subjects from
the vicissitudes of political controversy, to place them beyond the reach of
majorities and officials and to establish them as legal principles to be applied
by the courts. One's right to life, liberty, and property, to free speech,
a free press, freedom of worship and assembly and other fundamental rights may
not be submitted to vote; they depend on the outcome of no elections. [112]
Cruel, Inhuman and Degrading Punishment
[90] The United Nations Committee on Human Rights has held that the death
sentence by definition is cruel and degrading punishment. So has the
Hungarian Constitutional Court, and three judges of the Canadian Supreme
Court. The death sentence has also been held to be cruel or unusual
punishment and thus unconstitutional under the state constitutions of
Massachusetts and California. [113]
[91] The California decision is People v. Anderson. [114]
Capital punishment was held by six of the seven judges of the Californian
Supreme Court to be "impermissibly cruel" [115] under
the California Constitution which prohibited cruel or unusual punishment.
Also,
It degrades and dehumanizes all who participate in its processes. It is
unnecessary to any legitimate goal of the state and is incompatible with the
dignity of man and the judicial process. [116]
[92] In the Massachusetts decision in District Attorney for the Suffolk
District v. Watson, [117] where the Constitution of the State
of Massachusetts prohibited cruel or unusual punishment, the death sentence was
also held, by six of the seven judges, to be impermissibly cruel. [118]
[93] In both cases the disjunctive effect of "or" was referred to as enabling
the Courts to declare capital punishment unconstitutional even if it was not
"unusual". Under our Constitution it will not meet the requirements of
section 11(2) if it is cruel, or inhuman, or degrading.
[94] Proportionality is an ingredient to be taken into account in deciding
whether a penalty is cruel, inhuman or degrading. [119]
No Court would today uphold the constitutionality of a statute that makes
the death sentence a competent sentence for the cutting down of trees or the
killing of deer, which were capital offences in England in the 18th
Century. [120] But murder is not to be equated with such
"offences." The wilful taking of an innocent life calls for a severe
penalty, and there are many countries which still retain the death penalty as a
sentencing option for such cases. Disparity between the crime and the
penalty is not the only ingredient of proportionality; factors such as the
enormity and irredeemable character of the death sentence in circumstances where
neither error nor arbitrariness can be excluded, the expense and difficulty of
addressing the disparities which exist in practice between accused persons
facing similar charges, and which are due to factors such as race, poverty, and
ignorance, and the other subjective factors which have been mentioned, are also
factors that can and should be taken into account in dealing with this
issue. It may possibly be that none alone would be sufficient under our
Constitution to justify a finding that the death sentence is cruel, inhuman or
degrading. But these factors are not to be evaluated in isolation. They must be
taken together, and in order to decide whether the threshold set by
section 11(2) has been crossed [121] they must be evaluated with other
relevant factors, including the two fundamental rights on which the accused
rely, the right to dignity and the right to life.
[95] The carrying out of the death sentence destroys life, which is protected
without reservation under section 9 of our Constitution, it annihilates
human dignity which is protected under section 10, elements of
arbitrariness are present in its enforcement and it is irremediable.
Taking these factors into account, as well as the assumption that I have made in
regard to public opinion in South Africa, and giving the words of section
11(2) the broader meaning to which they are entitled at this stage of the
enquiry, rather than a narrow meaning, [122]
I am satisfied that in the context of our Constitution the death penalty
is indeed a cruel, inhuman and degrading punishment.
Is capital punishment for murder justifiable?
[96] The question that now has to be considered is whether the imposition of
such punishment is nonetheless justifiable as a penalty for murder in the
circumstances contemplated by sections 277(1)(a), 316A and 322(2A) of the
Criminal Procedure Act.
[97] It is difficult to conceive of any circumstances in which torture, which
is specifically prohibited under section 11(2), could ever be
justified. But that does not necessarily apply to capital punishment.
Capital punishment, unlike torture, has not been absolutely prohibited by
public international law. It is therefore not inappropriate to consider
whether the death penalty is justifiable under our Constitution as a penalty for
murder. This calls for an enquiry similar to that undertaken by Brennan J
in Furman's case [123] in dealing with the contention that
"death is a necessary punishment because it prevents the commission of capital
crimes more effectively than any less severe punishment." [124]
The same question is addressed and answered in the negative in the
judgment of Wright CJ in People v Anderson. [125]
Under the United States Constitution and the Californian Constitution,
which have no limitation clauses, this enquiry had to be conducted within the
larger question of the definition of the right. With us, however, the
question has to be dealt with under section 33(1).
[98] Section 33(1) of the Constitution provides, in part, that:
The rights entrenched in this Chapter may be limited by law of general
application, provided that such limitation-
(a) shall be permissible only to the extent that it is-
(i) reasonable; and
(ii) justifiable in an open and democratic society based on freedom and
equality; and
(b) shall not negate the essential content of the right in question.
[99] Section 33(1)(b) goes on to provide that the limitation of
certain rights, including the rights referred to in section 10 and
section 11 "shall, in addition to being reasonable as required in
paragraph (a)(I), also be necessary."
The Two-Stage Approach
[100] Our Constitution deals with the limitation of rights through a general
limitations clause. As was pointed out by Kentridge AJ in Zuma's
case, [126] this calls for a "two-stage" approach, in which a
broad rather than a narrow interpretation is given to the fundamental rights
enshrined in Chapter Three, and limitations have to be justified through the
application of section 33. In this it differs from the
Constitution of the United States, which does not contain a limitation clause,
as a result of which courts in that country have been obliged to find limits to
constitutional rights through a narrow interpretation of the rights themselves.
Although the "two-stage" approach may often produce the same result as
the "one-stage" approach, [127] this will not always be the case.
[101] The practical consequences of this difference in approach are evident
in the present case. In Gregg v. Georgia, the conclusion reached in
the judgment of the plurality was summed up as follows:
In sum, we cannot say that the judgment of the Georgia legislature that
capital punishment may be necessary in some cases is clearly wrong.
Considerations of federalism, as well as respect for the ability of a
legislature to evaluate, in terms of its particular state the moral consensus
concerning the death penalty and its social utility as a sanction, require us to
conclude in the absence of more convincing evidence, that the infliction of
death as a punishment for murder is not without justification, and is thus not
unconstitutionally severe. [128]
[102] Under our Constitution, the position is different. It is not
whether the decision of the State has been shown to be clearly wrong; it is
whether the decision of the State is justifiable according to the criteria
prescribed by section 33. It is not whether the infliction of death
as a punishment for murder "is not without justification", it is whether the
infliction of death as a punishment for murder has been shown to be both
reasonable and necessary, and to be consistent with the other requirements of
section 33. It is for the legislature, or the party relying on the
legislation, to establish this justification, and not for the party challenging
it to show that it was not justified. [129]
The Application of Section 33
[103] The criteria prescribed by section 33(1) for any limitation
of the rights contained in section 11(2) are that the limitation
must be justifiable in an open and democratic society based on freedom and
equality, it must be both reasonable and necessary and it must not negate the
essential content of the right.
[104] The limitation of constitutional rights for a purpose that is
reasonable and necessary in a democratic society involves the weighing up of
competing values, and ultimately an assessment based on proportionality.
[130] This is implicit in the provisions of section 33(1).
The fact that different rights have different implications for democracy,
and in the case of our Constitution, for "an open and democratic society
based on freedom and equality", means that there is no absolute standard which
can be laid down for determining reasonableness and necessity. Principles
can be established, but the application of those principles to particular
circumstances can only be done on a case by case basis. This is inherent
in the requirement of proportionality, which calls for the balancing of
different interests. In the balancing process, the relevant
considerations will include the nature of the right that is limited, and its
importance to an open and democratic society based on freedom and equality; the
purpose for which the right is limited and the importance of that purpose to
such a society; the extent of the limitation, its efficacy, and particularly
where the limitation has to be necessary, whether the desired ends could
reasonably be achieved through other means less damaging to the right in
question. In the process regard must be had to the provisions of
section 33(1), and the underlying values of the Constitution, bearing in
mind that, as a Canadian Judge has said, "the role of the Court is not to
second-guess the wisdom of policy choices made by legislators." [131]
Limitation of Rights in Canada
[105] In dealing with this aspect of the case, Mr Trengove placed
considerable reliance on the decision of the Canadian Supreme Court in R v
Oakes. [132] The Canadian Charter of Rights, as our
Constitution does, makes provision for the limitation of rights through a
general clause. Section 1 of the Charter permits such reasonable
limitations of Charter rights "as can be demonstrably justified in a free and
democratic society." In Oakes' case it was held that in order to
meet this requirement a limitation of a Charter right had to be directed to the
achievement of an objective of sufficient importance to warrant the limitation
of the right in question, and that there had also to be proportionality between
the limitation and such objective. In a frequently-cited passage, Dickson
CJC described the components of proportionality as follows:
There are, in my view, three important components of a proportionality
test. First, the measures adopted must be carefully designed to achieve
the objective in question. They must not be arbitrary, unfair or based on
irrational considerations. In short, they must be rationally connected to
the objective. Second, the means, even if rationally connected to the
objective in this first sense, should impair "as little as possible" the right
or freedom in question: R v Big M Drug Mart Ltd. at p. 352. Third,
there must be a proportionality between the effects of the measures which
are responsible for limiting the Charter right or freedom, and the objective
which has been identified as of "sufficient importance". [133]
[106] Although there is a rational connection between capital punishment and
the purpose for which it is prescribed, the elements of arbitrariness,
unfairness and irrationality in the imposition of the penalty, are factors that
would have to be taken into account in the application of the first component of
this test. As far as the second component is concerned, the fact that a
severe punishment in the form of life imprisonment is available as an
alternative sentence, would be relevant to the question whether the death
sentence impairs the right as little as possible. And as I will show
later, if all relevant considerations are taken into account, it is at least
doubtful whether a sentence of capital punishment for murder would satisfy the
third component of the Oakes test.
[107] The second requirement of the Oakes test, that the limitation
should impair the right "as little as possible" raises a fundamental problem of
judicial review. Can, and should, an unelected court substitute its own
opinion of what is reasonable or necessary for that of an elected legislature?
Since the judgment in R v Oakes, the Canadian Supreme Court has
shown that it is sensitive to this tension, which is particularly acute where
choices have to be made in respect of matters of policy. In Irwin Toy
Ltd v Quebec (Attorney General), [134] Dickson CJ cautioned that courts,
"must be mindful of the legislature's representative function." In
Reference re ss. 193 and 195 (1)(c) of the Criminal Code (Manitoba),
[135] it was said that "the role of the Court is not to second-guess the
wisdom of policy choices made by ...legislators"; and in R v Chaulk, that
the means must impair the right "as little as is reasonably possible".
[136] Where choices have to be made between "differing reasonable
policy options", the courts will allow the government the deference due to
legislators, but "[will] not give them an unrestricted licence to disregard an
individual's Charter Rights. Where the government cannot show that it had
a reasonable basis for concluding that it has complied with the requirement of
minimal impairment in seeking to attain its objectives, the legislation will be
struck down." [137]
Limitation of Rights in Germany
[108] The German Constitution does not contain a general limitations clause
but permits certain basic rights to be limited by law. According to
Professor Grimm, [138] the Federal Constitutional Court allows such
limitation "only in order to make conflicting rights compatible or to protect
the rights of other persons or important community interests...any restriction
of human rights not only needs constitutionally valid reasons but also has to be
proportional to the rank and importance of the right at stake."
Proportionality is central to the process followed by the Federal Constitutional
Court in its adjudication upon the limitation of rights. The Court has
regard to the purpose of the limiting legislation, whether the legislation is
suitable for the achievement of such purpose, which brings into consideration
whether it in fact achieves that purpose, is necessary therefor, and whether a
proper balance has been achieved between the purpose enhanced by the limitation,
and the fundamental right that has been limited. [139]
The German Constitution also has a provision similar to section
33(1)(b) of our Constitution, but the Court apparently avoids making use of this
provision, [140] preferring to deal with extreme limitations of rights
through the proportionality test.
Limitation of Rights Under the European Convention
[109] The European Convention also has no general limitations clause, but
makes certain rights subject to limitation according to specified criteria.
The proportionality test of the European Court of Human Rights calls for
a balancing of ends and means. The end must be a "pressing social need"
and the means used must be proportionate to the attainment of such an end.
The limitation of certain rights is conditioned upon the limitation being
"necessary in a democratic society" for purposes defined in the relevant
provisions of the Convention. The national authorities are allowed a
discretion by the European Court of Human Rights in regard to what is necessary
- a margin of appreciation - but not unlimited power. The "margin of
appreciation" that is allowed varies depending upon the nature of the right and
the nature and ambit of the restriction. A balance has to be achieved
between the general interest, and the interest of the individual. [141]
Where the limitation is to a right fundamental to democratic society, a
higher standard of justification is required; [142] so
too, where a law interferes with the "intimate aspects of private life."
[143] On the other hand, in areas such as morals or social policy
greater scope is allowed to the national authorities. [144]
The jurisprudence of the European Court of Human Rights provides some
guidance as to what may be considered necessary in a democratic society, but the
margin of appreciation allowed to national authorities by the European Court
must be understood as finding its place in an international agreement which has
to accommodate the sovereignty of the member states. It is not necessarily
a safe guide as to what would be appropriate under section 33 of our
Constitution.
Is Capital Punishment for Murder Justifiable under the South African
Constitution?
[110] In Zuma's case, Kentridge AJ pointed out that the
criteria developed by the Canadian Courts for the interpretation of
section 1 of the Canadian Charter of Rights may be of assistance to our
Courts, but that there are differences between our Constitution and the Canadian
Charter which have a bearing on the way in which section 33 should be
dealt with. This is equally true of the criteria developed by other
courts, such as the German Constitutional Court and the European Court of Human
Rights. Like Kentridge AJ, "I see no reason in this case... to attempt to
fit our analysis into the Canadian pattern," [145] or
for that matter to fit it into the pattern followed by any of the other courts
to which reference has been made. Section 33 prescribes in specific
terms the criteria to be applied for the limitation of different categories of
rights and it is in the light of these criteria that the death sentence for
murder has to be justified.
[111] "Every person" is entitled to claim the protection of the rights
enshrined in Chapter Three, and "no" person shall be denied the protection that
they offer. Respect for life and dignity which are at the heart of
section 11(2) are values of the highest order under our Constitution.
The carrying out of the death penalty would destroy these and all other
rights that the convicted person has, and a clear and convincing case must be
made out to justify such action.
[112] The Attorney General contended that the imposition of the death
penalty for murder in the most serious cases could be justified according to the
prescribed criteria. The argument went as follows. The death
sentence meets the sentencing requirements for extreme cases of murder more
effectively than any other sentence can do. It has a greater deterrent
effect than life imprisonment; it ensures that the worst murderers will not
endanger the lives of prisoners and warders who would be at risk if the "worst
of the murderers" were to be imprisoned and not executed; and it also meets the
need for retribution which is demanded by society as a response to the high
level of crime. In the circumstances presently prevailing in the country,
it is therefore a necessary component of the criminal justice system.
This, he said, is recognised by the Appellate Division, which only confirms a
death sentence if it is convinced that no other sentence would be a proper
sentence. [146]
The Judgements of the Appellate Division
[113] The decisions of the Appellate Division to which the Attorney General
referred are only of limited relevance to the questions that have to be decided
in the present case. The law which the Appellate Division has applied
prescribes that the death sentence is a competent sentence for murder in a
proper case. The Appellate Division has reserved this sentence for
extreme cases in which the maximum punishment would be the appropriate
punishment. Were it to have done otherwise, and to have refused to pass
death sentences, it would in effect have been saying that the death sentence is
never a proper sentence, and that section 277(1)(a) should not be
enforced. This was not within its competence. The criteria set by
the Appellate Division for the passing of a death sentence for murder are
relevant to the argument on arbitrariness, and also provide a basis for testing
the justifiability of such a penalty. They do not, however, do more than
that.
The Judgement of the Tanzanian Court of Appeal
[114] There is support for part of the Attorney General's argument in the
judgment of the Tanzanian Court of Appeal in Mbushuu and Another v The
Republic. [147] It was held in this case that the death
sentence amounted to cruel and degrading punishment, which is prohibited under
the Tanzanian Constitution, but that despite this finding, it was not
unconstitutional. The Constitution authorised derogations to be made from basic
rights for legitimate purposes, and a derogation was lawful if it was not
arbitrary, and was reasonably necessary for such purpose. The legitimate
purposes to which the death sentence was directed was a constitutional
requirement that "everyone's right to life shall be protected by law." The
death sentence was a mandatory penalty for murder, but it was not considered by
the Court to be arbitrary because decisions as to guilt or innocence are taken
by judges. There was no proof one way or the other that the death sentence was
necessarily a more effective punishment than a long period of
imprisonment. In the view of the Court, however, it was for society and
not the courts to decide whether the death sentence was a necessary
punishment. The Court was satisfied that society favoured the death
sentence, and that in the circumstances "the reasonable and necessary" standard
had been met. Accordingly, it held that the death sentence was a lawful
derogation from the prohibition of cruel and degrading punishment, and thus
valid.
[115] The approach of the Tanzanian Court of Appeal to issues concerning the
limitation of basic rights seems to have been influenced by the language of the
Tanzanian Constitution, [148] and rules of interpretation developed
by the Courts to deal with that language. The relevant provisions of our
Constitution are different and the correct approach to the interpretation of the
limitations clause must be found in the language of section 33 construed
in the context of the Constitution as a whole. It is for the Court, and
not society or Parliament, to decide whether the death sentence is justifiable
under the provisions of section 33 of our Constitution. [149]
In doing so we can have regard to societal attitudes in evaluating
whether the legislation is reasonable and necessary, but ultimately the decision
must be ours. If the decision of the Tanzanian Court of Appeal is
inconsistent with this conclusion, I must express my disagreement with it.
Deterrence
[116] The Attorney General attached considerable weight to the need for a
deterrent to violent crime. He argued that the countries which had
abolished the death penalty were on the whole developed and peaceful countries
in which other penalties might be sufficient deterrents. We had not
reached that stage of development, he said. If in years to come we did so,
we could do away with the death penalty. Parliament could decide when that
time has come. At present, however, so the argument went, the death
sentence is an indispensable weapon if we are serious about combatting violent
crime.
[117] The need for a strong deterrent to violent crime is an end the validity
of which is not open to question. The state is clearly entitled, indeed
obliged, to take action to protect human life against violation by others.
In all societies there are laws which regulate the behaviour of people and which
authorise the imposition of civil or criminal sanctions on those who act
unlawfully. This is necessary for the preservation and protection of
society. Without law, society cannot exist. Without law, individuals
in society have no rights. The level of violent crime in our country has
reached alarming proportions. It poses a threat to the transition to
democracy, and the creation of development opportunities for all, which are
primary goals of the Constitution. The high level of violent crime is a
matter of common knowledge and is amply borne out by the statistics provided by
the Commissioner of Police in his amicus brief. The power of the
State to impose sanctions on those who break the law cannot be doubted. It
is of fundamental importance to the future of our country that respect for the
law should be restored, and that dangerous criminals should be apprehended and
dealt with firmly. Nothing in this judgment should be understood as
detracting in any way from that proposition. But the question is not
whether criminals should go free and be allowed to escape the consequences of
their anti-social behaviour. Clearly they should not; and equally clearly
those who engage in violent crime should be met with the full rigour of the law.
The question is whether the death sentence for murder can legitimately be
made part of that law. And this depends on whether it meets the criteria
prescribed by section 33(1).
[118] The Attorney General pointed to the substantial increase in the
incidence of violent crime over the past five years during which the death
sentence has not been enforced. He contended that this supported his
argument that imprisonment is not a sufficient deterrent, and that we have not
yet reached the stage of development where we can do without the death
sentence. Throughout this period, however, the death sentence remained a
lawful punishment, and was in fact imposed by the courts although the sentences
were not carried out. [150] The moratorium was only announced formally on
27 March 1992. [151] A decision could have been taken at any time
to terminate the moratorium on executions, and none of the criminals had any
assurance that the moratorium would still be in place if they were to be caught,
brought to trial, convicted and sentenced to death.
[119] The cause of the high incidence of violent crime cannot simply be
attributed to the failure to carry out the death sentences imposed by the
courts. The upsurge in violent crime came at a time of great social
change associated with political turmoil and conflict, particularly during the
period 1990 to 1994. It is facile to attribute the increase in violent
crime during this period to the moratorium on executions. [152]
It was a progression that started before the moratorium was
announced. There are many factors that have to be taken into account in
looking for the cause of this phenomenon. It is a matter of common
knowledge that the political conflict during this period, particularly in Natal
and the Witwatersrand, resulted in violence and destruction of a kind not
previously experienced. No-go areas, random killings on trains, attacks
and counter attacks upon political opponents, created a violent and unstable
environment, manipulated by political dissidents and criminal elements
alike.
[120] Homelessness, unemployment, poverty and the frustration consequent upon
such conditions are other causes of the crime wave. And there is also the
important factor that the police and prosecuting authorities have been unable to
cope with this. The statistics presented in the police amicus brief show
that most violent crime is not solved, and the Attorney General confirmed that
the risk of a criminal being apprehended and convicted for such offences is
somewhere between 30 and 40 per cent. Throughout the period referred to
by the Attorney General the death sentence remained on the statute book and was
imposed on convicted murderers when the Courts considered it appropriate to do
so.
[121] We would be deluding ourselves if we were to believe that the execution
of the few persons sentenced to death during this period, and of a comparatively
few other people each year from now onwards will provide the solution to the
unacceptably high rate of crime. There will always be unstable, desperate,
and pathological people for whom the risk of arrest and imprisonment provides no
deterrent, but there is nothing to show that a decision to carry out the death
sentence would have any impact on the behaviour of such people, or that there
will be more of them if imprisonment is the only sanction. No information
was placed before us by the Attorney General in regard to the rising crime rate
other than the bare statistics, and they alone prove nothing, other than that we
are living in a violent society in which most crime goes unpunished - something
that we all know.
[122] The greatest deterrent to crime is the likelihood that offenders will
be apprehended, convicted and punished. It is that which is presently lacking in
our criminal justice system; and it is at this level and through addressing the
causes of crime that the State must seek to combat lawlessness.
[123] In the debate as to the deterrent effect of the death sentence, the
issue is sometimes dealt with as if the choice to be made is between the death
sentence and the murder going unpunished. That is of course not so. The
choice to be made is between putting the criminal to death and subjecting the
criminal to the severe punishment of a long term of imprisonment which, in an
appropriate case, could be a sentence of life imprisonment. [153]
Both are deterrents, and the question is whether the possibility of being
sentenced to death, rather than being sentenced to life imprisonment, has a
marginally greater deterrent effect, and whether the Constitution sanctions the
limitation of rights affected thereby.
[124] In the course of his argument the Attorney General contended that if
sentences imposed by the Courts on convicted criminals are too lenient, the law
will be brought into disrepute, and members of society will then take the law
into their own hands. Law is brought into disrepute if the justice system
is ineffective and criminals are not punished. But if the justice system
is effective and criminals are apprehended, brought to trial and in serious
cases subjected to severe sentences, the law will not fall into disrepute.
We have made the commitment to "a future founded on the recognition
of human rights, democracy and peaceful co-existence...for all South
Africans." [154] Respect for life and dignity lies at the heart
of that commitment. One of the reasons for the prohibition of capital
punishment is "that allowing the State to kill will cheapen the value of human
life and thus [through not doing so] the State will serve in a sense as a role
model for individuals in society." [155] Our country needs such role
models.
[125] The Attorney General also contended that if even one innocent life
should be saved by the execution of perpetrators of vile murders, this would
provide sufficient justification for the death penalty. [156]
The hypothesis that innocent lives might be saved must be weighed against
the values underlying the Constitution, and the ability of the State to serve
"as a role model". In the long run more lives may be saved through the
inculcation of a rights culture, than through the execution of murderers.
[126] The death sentence has been reserved for the most extreme cases, and
the overwhelming majority of convicted murderers are not and, since extenuating
circumstances became a relevant factor sixty years ago, have not been sentenced
to death in South Africa. I referred earlier to the figures provided by
the Attorney General which show that between the amendment of the Criminal
Procedure Act in 1990, and January 1995, which is the date of his written
argument in the present case, 243 death sentences were imposed, of which 143
were confirmed by the Appellate Division. Yet, according to statistics
placed before us by the Commissioner of Police and the Attorney General, there
were on average approximately 20 000 murders committed, and 9 000 murder
cases brought to trial, each year during this period. Would the carrying
out of the death sentence on these 143 persons have deterred the other murderers
or saved any lives?
[127] It was accepted by the Attorney General that this is a much disputed
issue in the literature on the death sentence. He contended that it is
common sense that the most feared penalty will provide the greatest deterrent,
but accepted that there is no proof that the death sentence is in fact a greater
deterrent than life imprisonment for a long period. It is, he said, a
proposition that is not capable of proof, because one never knows about those
who have been deterred; we know only about those who have not been deterred, and
who have committed terrible crimes. This is no doubt true, and the fact
that there is no proof that the death sentence is a greater deterrent than
imprisonment does not necessarily mean that the requirements of section
33 cannot be met. It is, however, a major obstacle in the way of the
Attorney General's argument, for he has to satisfy us that the penalty is
reasonable and necessary, and the doubt which exists in regard to the deterrent
effect of the sentence must weigh heavily against his argument. "A
punishment as extreme and as irrevocable as death cannot be predicated upon
speculation as to what the deterrent effect might be..." [157]
I should add that this obstacle would not be removed by the
implementation of a suggestion in one of the amicus briefs, that
section 277(1) of the Criminal Procedure Act should be made more
specific, and should identify the extreme categories of murder for which the
death sentence would be a permissible punishment.
Prevention
[128] Prevention is another object of punishment. The death sentence
ensures that the criminal will never again commit murders, but it is not the
only way of doing so, and life imprisonment also serves this purpose.
Although there are cases of gaol murders, imprisonment is regarded as sufficient
for the purpose of prevention in the overwhelming number of cases in which there
are murder convictions, and there is nothing to suggest that it is necessary for
this purpose in the few cases in which death sentences are imposed.
Retribution
[129] Retribution is one of the objects of punishment, but it carries less
weight than deterrence. [158] The righteous anger of family
and friends of the murder victim, reinforced by the public abhorrence of vile
crimes, is easily translated into a call for vengeance. But capital
punishment is not the only way that society has of expressing its moral outrage
at the crime that has been committed. We have long outgrown the literal
application of the biblical injunction of "an eye for an eye, and a tooth for a
tooth". Punishment must to some extent be commensurate with the offence,
but there is no requirement that it be equivalent or identical to it. The
state does not put out the eyes of a person who has blinded another in a vicious
assault, nor does it punish a rapist, by castrating him and submitting him to
the utmost humiliation in gaol. The state does not need to engage in the
cold and calculated killing of murderers in order to express moral outrage at
their conduct. A very long prison sentence is also a way of expressing
outrage and visiting retribution upon the criminal.
[130] Retribution ought not to be given undue weight in the balancing
process. The Constitution is premised on the assumption that ours will be
a constitutional state founded on the recognition of human rights. [159]
The concluding provision on National Unity and Reconciliation contains
the following commitment:
The adoption of this Constitution lays the secure foundation for the people
of South Africa to transcend the divisions and strife of the past, which
generated gross violations of human rights, the transgression of humanitarian
principles in violent conflicts and a legacy of hatred, fear, guilt and
revenge.
These can now be addressed on the basis that there is a need for
understanding but not for vengeance, a need for reparation but not for
retaliation, a need for ubuntu but not for victimisation.
(Emphasis supplied)
[131] Although this commitment has its primary application in the field of
political reconciliation, it is not without relevance to the enquiry we are
called upon to undertake in the present case. To be consistent with the
value of ubuntu ours should be a society that "wishes to prevent
crime...[not] to kill criminals simply to get even with them." [160]
The Essential Content of the Right
[132] Section 33(1)(b) provides that a limitation shall not negate the
essential content of the right. There is uncertainty in the literature
concerning the meaning of this provision. It seems to have entered
constitutional law through the provisions of the German Constitution, and in
addition to the South African constitution, appears, though not precisely in the
same form, in the constitutions of Namibia, Hungary, and possibly other
countries as well. The difficulty of interpretation arises from the
uncertainty as to what the "essential content" of a right is, and how it is to
be determined. Should this be determined subjectively from the point of
view of the individual affected by the invasion of the right, or objectively,
from the point of view of the nature of the right and its place in the
constitutional order, or possibly in some other way? Professor Currie
draws attention to the large number of theories which have been propounded by
German scholars as to the how the "essence" of a right should be discerned and
how the constitutional provision should be applied. [161]
The German Federal Constitutional Court has apparently avoided to a large
extent having to deal with this issue by subsuming the enquiry into the
proportionality test that it applies and the precise scope and meaning of the
provision is controversial. [162]
[133] If the essential content of the right not to be subjected to cruel,
inhuman or degrading punishment is to be found in respect for life and dignity,
the death sentence for murder, if viewed subjectively from the point of view of
the convicted prisoner, clearly negates the essential content of the right.
But if it is viewed objectively from the point of view of a
constitutional norm that requires life and dignity to be protected, the
punishment does not necessarily negate the essential content of the right.
It has been argued before this Court that one of the purposes of such punishment
is to protect the life and hence the dignity of innocent members of the public,
and if it in fact does so, the punishment will not negate the constitutional
norm. On this analysis it would, however, have to be shown that the
punishment serves its intended purpose. This would involve a
consideration of the deterrent and preventative effects of the punishment and
whether they add anything to the alternative of life imprisonment. If
they do not, they cannot be said to serve a life protecting purpose. If
the negation is viewed both objectively and subjectively, the ostensible purpose
of the punishment would have to be weighed against the destruction of the
individual's life. For the purpose of that analysis the element of
retribution would have to be excluded and the "life saving" quality of the
punishment would have to be established.
[134] It is, however, not necessary to solve this problem in the present
case. At the very least the provision evinces concern that, under the
guise of limitation, rights should not be taken away altogether. It was
presumably the same concern that influenced Dickson CJC to say in R v
Oakes that rights should be limited "as little as possible", [163] and
the German Constitutional Court to hold in the life imprisonment case that all
possibility of parole ought not to be excluded. [164]
The Balancing Process
[135] In the balancing process, deterrence, prevention and retribution must
be weighed against the alternative punishments available to the state, and the
factors which taken together make capital punishment cruel, inhuman and
degrading: the destruction of life, the annihilation of dignity, the
elements of arbitrariness, inequality and the possibility of error in the
enforcement of the penalty.
[136] The Attorney General argued that the right to life and the right to
human dignity were not absolute concepts. Like all rights they have their
limits. One of those limits is that a person who murders in circumstances
where the death penalty is permitted by section 277, forfeits his or her
right to claim protection of life and dignity. He sought to support this
argument by reference to the principles of self-defence. If the law
recognises the right to take the life of a wrongdoer in a situation in which
self-defence is justified, then, in order to deter others, and to ensure that
the wrongdoer does not again kill an innocent person, why should it not
recognise the power of the state to take the life of a convicted murderer?
Conversely, if the death sentence negates the essential content of the right to
life, how can the taking of the life of another person in self-defence, or even
to protect the State itself during war or rebellion, ever be justified.
[137] This argument is fallacious. The rights vested in every person by
Chapter Three of the Constitution are subject to limitation under section
33. In times of emergency, some may be suspended in accordance with the
provisions of section 34 of the Constitution. [165]
But subject to this, the rights vest in every person, including criminals
convicted of vile crimes. Such criminals do not forfeit their rights under the
Constitution and are entitled, as all in our country now are, to assert these
rights, including the right to life, the right to dignity and the right not to
be subjected to cruel, inhuman or degrading punishment. Whether or not a
particular punishment is inconsistent with these rights depends upon an
interpretation of the relevant provisions of the Constitution, and not upon a
moral judgment that a murderer should not be allowed to claim them.
[138] Self-defence is recognised by all legal systems. Where a choice
has to be made between the lives of two or more people, the life of the innocent
is given preference over the life of the aggressor. This is consistent
with section 33(1). To deny the innocent person the right to act
in self-defence would deny to that individual his or her right to life.
The same is true where lethal force is used against a hostage taker who
threatens the life of the hostage. It is permissible to kill the hostage
taker to save the life of the innocent hostage. But only if the hostage is
in real danger. The law solves problems such as these through the
doctrine of proportionality, balancing the rights of the aggressor against the
rights of the victim, and favouring the life or lives of innocents over the life
or lives of the guilty. [166] But there are strict limits to
the taking of life, even in the circumstances that have been described, and the
law insists upon these limits being adhered to. In any event, there are
material respects in which killing in self-defence or necessity differ from the
execution of a criminal by the State. Self-defence takes place at the
time of the threat to the victim's life, at the moment of the emergency which
gave rise to the necessity and, traditionally, under circumstances in which no
less-severe alternative is readily available to the potential victim.
Killing by the State takes place long after the crime was committed, at a time
when there is no emergency and under circumstances which permit the careful
consideration of alternative punishment.
[139] The examples of war and rebellion are also not true analogies.
War and rebellion are special cases which must be dealt with in terms of the
legal principles governing such situations. It is implicit in any
constitutional order that the State can act to put down rebellion and to protect
itself against external aggression. Where it is necessary in the pursuit
of such ends to kill in the heat of battle the taking of life is sanctioned
under the Constitution by necessary implication, and as such, is permissible in
terms of section 4(1). [167] But here also there are
limits. Thus prisoners of war who have been captured and who are no
longer a threat to the State cannot be put to death; nor can lethal force be
used against rebels when it is not necessary to do so for the purposes of
putting down the rebellion.
[140] The case of a police officer shooting at an escaping criminal was also
raised in argument. This is permitted under section 49(2) of the
Criminal Procedure Act as a last resort if it is not possible to arrest the
criminal in the ordinary way. Once again, there are limits. It would
not, for instance, be permissible to shoot at point blank range at a criminal
who has turned his or her back upon a police officer in order to abscond, when
other methods of subduing and arresting the criminal are possible. We are
not concerned here with the validity of section 49(2) of the Criminal
Procedure Act, and I specifically refrain from expressing any view thereon.
Greater restriction on the use of lethal force may be one of the
consequences of the establishment of a constitutional state which respects every
person's right to life. Shooting at a fleeing criminal in the heat of the
moment, is not necessarily to be equated with the execution of a captured
criminal. But, if one of the consequences of this judgment might be to
render the provisions of section 49(2) unconstitutional, the legislature
will have to modify the provisions of the section in order to bring it into line
with the Constitution. In any event, the constitutionality of the death
sentence for murder does not depend upon whether it is permissible for life to
be taken in other circumstances currently sanctioned by law. It depends
upon whether it is justifiable as a penalty in terms of section 33 of the
Constitution. In deciding this question, the fact that the person
sentenced to death is denied his or her right to life is of the greatest
importance.
[141] The Attorney General argued that all punishment involves an impairment
of dignity. Imprisonment, which is the alternative to the death sentence,
severely limits a prisoner's fundamental rights and freedoms. There is
only the barest freedom of movement or of residence in prison, and other
basic rights such as freedom of expression and freedom of assembly are
severely curtailed.
[142] Dignity is inevitably impaired by imprisonment or any other punishment,
and the undoubted power of the state to impose punishment as part of the
criminal justice system, necessarily involves the power to encroach upon a
prisoner's dignity. But a prisoner does not lose all his or her rights on
entering prison.
[Prisoners retain] those absolute natural rights relating to personality, to
which every man is entitled. True [their] freedom had been greatly
impaired by the legal process of imprisonment but they were entitled to demand
respect for what remained. The fact that their liberty had been legally
curtailed could afford no excuse for a further legal encroachment upon it. [It
was] contended that the [prisoners] once in prison could claim only such rights
as the Ordinance and the regulations conferred. But the directly opposite
view is surely the correct one. They were entitled to all their personal
rights and personal dignity not temporarily taken away by law, or necessarily
inconsistent with the circumstances in which they had been placed. [168]
[143] A prisoner is not stripped naked, bound, gagged and chained to his or
her cell. The right of association with other prisoners, the right to
exercise, to write and receive letters and the rights of personality referred to
by Innes J are of vital importance to prisoners and highly valued by them
precisely because they are confined, have only limited contact with the outside
world, and are subject to prison discipline. Imprisonment is a severe
punishment; but prisoners retain all the rights to which every person is
entitled under Chapter Three subject only to limitations imposed by the prison
regime that are justifiable under section 33. [169]
Of these, none are more important than the section 11(2) right not
to be subjected to "torture of any kind...nor to cruel, inhuman or
degrading treatment or punishment." There is a difference between
encroaching upon rights for the purpose of punishment and destroying them
altogether. It is that difference with which we are concerned in the
present case.
Conclusion
[144] The rights to life and dignity are the most important of all human
rights, and the source of all other personal rights in Chapter Three. By
committing ourselves to a society founded on the recognition of human rights we
are required to value these two rights above all others. And this must be
demonstrated by the State in everything that it does, including the way it
punishes criminals. This is not achieved by objectifying murderers and
putting them to death to serve as an example to others in the expectation that
they might possibly be deterred thereby.
[145] In the balancing process the principal factors that have to be weighed
are on the one hand the destruction of life and dignity that is a consequence of
the implementation of the death sentence, the elements of arbitrariness and the
possibility of error in the enforcement of capital punishment, and the existence
of a severe alternative punishment (life imprisonment) and, on the other, the
claim that the death sentence is a greater deterrent to murder, and will more
effectively prevent its commission, than would a sentence of life imprisonment,
and that there is a public demand for retributive justice to be imposed on
murderers, which only the death sentence can meet.
[146] Retribution cannot be accorded the same weight under our Constitution
as the rights to life and dignity, which are the most important of all the
rights in Chapter Three. It has not been shown that the death sentence
would be materially more effective to deter or prevent murder than the
alternative sentence of life imprisonment would be. Taking these factors
into account, as well as the elements of arbitrariness and the possibility of
error in enforcing the death penalty, the clear and convincing case that is
required to justify the death sentence as a penalty for murder, has not been
made out. The requirements of section 33(1) have accordingly not
been satisfied, and it follows that the provisions of section 277(1)(a)
of the Criminal Procedure Act, 1977 must be held to be inconsistent with
section 11(2) of the Constitution. In the circumstances, it is not
necessary for me to consider whether the section would also be inconsistent with
sections 8, 9 or 10 of the Constitution if they had been dealt with
separately and not treated together as giving meaning to section
11(2).
Section 241(8) of the Constitution
[147] In the present case the trial had been completed but an appeal to the
Appellate Division was pending, when the 1993 Constitution came into force.
The validity of the trial, and the fact that the death sentences were
competent sentences at the time they were imposed, are not in issue. What
is in issue before the Appellate Division is whether the death sentences can and
should be confirmed. It has postponed its judgment pending the
determination of the issues referred to us for our decision.
[148] It is not necessary to deal with the provisions of section
241(8) in the present case. The Attorney General correctly conceded that
if the death penalty for murder is unconstitutional, it would not be competent
to carry out the death sentences that have been imposed on the accused.
The prohibition of cruel, inhuman or degrading punishment is applicable to all
punishments implemented after the 27th April, and can be invoked to
prevent a punishment being carried out even if the punishment was lawful when it
was imposed. [170]
The Order to be made
[149] I have dealt in this judgment only with the provisions of
section 277(1)(a) of the Criminal Procedure Act, but it is clear that if
subsection (1)(a) is inconsistent with the Constitution, subsections (1)(c) to
(1)(f) must also be unconstitutional, so too must provisions of legislation
corresponding to sections 277(1)(a), (c), (d), (e) and (f) that are in
force in parts of the national territory in terms of section 229 of the
Constitution. Different considerations arising from section 33(1)
might possibly apply to subsection (b) which makes provision for the imposition
of the death sentence for treason committed when the republic is in a state of
war. No argument was addressed to us on this issue, and I refrain from
expressing any views thereon.
[150] The proper sentence to be imposed on the accused is a matter for the
Appellate Division and not for us to decide. This, and other capital cases
which have been postponed by the Appellate Division pending the decision of this
Court on the constitutionality of the death sentence, can now be dealt with in
accordance with the order made in this case. Lest there be any doubt on
this score, one of the effects of our judgment is to prohibit the State, or any
of its organs, from executing persons whose appeals against sentences of death
have been disposed of. Such persons will remain in custody under the
sentences imposed on them until such sentences have been set aside in accordance
with law, and substituted by appropriate and lawful punishments. This will
form part of the order made.
[151] The following order is made:
1. In terms of section 98(5) of the Constitution, and with
effect from the date of this order, the provisions of paragraphs (a), (c), (d),
(e) and (f) of section 277(1) of the Criminal Procedure Act, and all
corresponding provisions of other legislation sanctioning capital punishment
which are in force in any part of the national territory in terms of
section 229, are declared to be inconsistent with the Constitution and,
accordingly, to be invalid.
2. In terms of section 98(7) of the Constitution, and
with effect from the date of this order:
- the State is and all its organs are forbidden to execute any person already
sentenced to death under any of the provisions thus declared to be invalid; and
- all such persons will remain in custody under the sentences imposed on them,
until such sentences have been set aside in accordance with law and substituted
by lawful punishments.
A. CHASKALSON
PRESIDENT, CONSTITUTIONAL COURT
[1]
The last execution in South Africa occurred on 14 November 1989. See
infra note 26.
[2]
This information was contained in the written argument filed on behalf of the
South African Government and was not disputed.
[3]
The mental anguish suffered by convicted persons awaiting the death sentence is
well documented. A prolonged delay in the execution of a death sentence
may in itself be cause for the invalidation of a sentence of death that was
lawfully imposed. In India, Zimbabwe and Jamaica, where the death
sentence is not unconstitutional, sentences of death have been set aside on
these grounds. The relevant authorities are collected and discussed by
Gubbay CJ in Catholic Commission for Justice and Peace in Zimbabwe v
Attorney-General, Zimbabwe and Others 1993 (4) SA 239 (ZSC), and by Lord
Griffiths in Pratt v Attorney-General for Jamaica [1993] 3 WLR 995 (JPC).
[4]
These words are taken from the first paragraph of the provision on National
Unity and Reconciliation with which the Constitution concludes. Section 232(4)
provides that for the purposes of interpreting the Constitution, this
provision shall be deemed to be part of the substance of the
Constitution, and shall not have a lesser status than any other provision of the
Constitution.
[5]
Section 4(1) of the Constitution.
[6]
Constitutional Court Case No. CCT/5/94 (5 April 1995).
[7]
Id. at para. 15.
[8]
(1985) 13 CRR 64 at 103. As O'Regan J points out in her concurring
judgment, there may possibly be instances where the "generous" and "purposive"
interpretations do not coincide. That problem does not arise in the
present case.
[9]
Jaga v Dönges, N.O. and Another 1950 (4) SA 653 (A) at 662-663.
[10] Minister of Home Affairs (Bermuda) v Fisher [1980] AC 319
(PC) at 328-329.
[11] In the analysis that follows sections 8, 9 and 10 are
treated together as giving meaning to section 11(2), which is the provision of
Chapter Three that deals specifically with punishment.
[12] Per Schreiner JA in Jaga v Dönges, N.O. and Another, supra
note 9, at 662G-H.
[13] Attorney-General, Eastern Cape v Blom and Others 1988 (4)
SA 645 (A) at 668H-669F; Westinghouse Brake & Equipment (Pty) Ltd v
Bilger Engineering (Pty) Ltd 1986(2) SA 555(A) at 562C-563A.
[14] 1993 AC 593 HL (E).
[15] Per Lord Browne-Wilkinson at 634D-E, who went on to say
that "as at present advised I cannot foresee that any statement other than the
statement of the Minister or other promoter of the Bill is likely to meet these
criteria".
[16] Id. at 637 F.
[17] Rotunda and Nowak, Treatise on Constitutional Law:
Substance and Procedure §23.6 (2d ed. 1992).
[18] In the decision on the constitutionality of life
imprisonment, [1977] 45 BVerfGE 187, the German Federal Constitutional Court
took into account that life imprisonment was seen by the framers of the
constitution as the alternative to the death sentence when they decided to
abolish capital punishment. Kommers, The Constitutional Jurisprudence of
the Federal Republic of Germany 315 (1989).
[19] Reference re s.94(2) of the Motor Vehicle Act (British
Columbia) (1986) 18 CRR 30 at 47-50; United States v Cotroni (1990) 42 CRR 101
at 109; Mahe v Alberta (1990) 46 CRR 193 at 214.
[20] Irwin Toy Ltd. v Quebec (AG) (1989) 39 CRR 193 at 241.
[21] H M Seervai, Constitutional Law of India, 3rd ed. (1983)
Vol. I, para. 2.35 et seq.
[22] (1950) SCR 88 at 111, as cited in Seervai, id., Vol. II,
para. 24.7, note 25.
[23]
Article 32 of the Vienna Convention of Treaties 1969, 8 ILM 679 (1969) permits
the use of travaux préparatoires for the purpose of interpreting treaties.
For examples of the application of this principle, see Keith Cox v Canada,
United Nations Committee on Human Rights, Communication No. 539/1993, 3 November
1993, at 19, stating:
Ng v Canada, United Nations Committee on Human Rights, Communication No
469/1991, 5 November 1993, at 9; Young, James and Webster v United Kingdom
(1981) 3 EHRR 20, para. 166; Lithgow v United Kingdom (1986) 8 EHRR 329, para.
117; and more generally J.G. Starke, Introduction to International Law 481 (10th
ed., Butterworths)(1989).
[24] Reference re s.94(2) of the Motor Vehicle Act (British
Columbia), supra note 19, at 49.
[25]
The brief account that follows is taken from the written submissions of the
South African Government. These facts were not disputed at the
hearing.
[26] Address to Parliament on 2 February 1990. In this
speech it was said that the last execution in South Africa had been on 14
November 1989.
[27] South African Law Commission, Interim Report on Group and
Human Rights, Project 58, August 1991, para. 7.31.
[28] "The Commission ... considers that a Solomonic solution is
necessary: a middle course between the retention of capital punishment and
the abolition thereof must be chosen in the proposed bill of rights." Id. at
7.33.
[29] Id. at para. 7.36.
[30] Id. at para. 7.37.
[31] South African Government Heads of Argument, Vol 1,
authorities, 32-34.
[32] Id.
[33]
This is apparent from the reports of the Technical Committee on Fundamental
Rights and, in particular, the Fourth to the Seventh reports, which were brought
to our attention by counsel. The reports show that the question whether
the death penalty should be made an exception to the right to life was "up for
debate" in the Negotiating Council. The Sixth Report contained the
following references to the right to life:
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:
style='font-size:12.0pt;mso-bidi-font-size:[Comment:
The Ad Hoc Committee appointed by the Planning Committee recommends the
unqualified inclusion of this right in the Chapter. We support this proposal.]
Seventh Report, 29 July 1993 at 3.
[34] Furman v. Georgia, 408 U.S. 238, 290 (1972)(Brennan, J.,
concurring).
[35] This has been the approach of certain of the justices of
the United States Supreme Court. Thus, White, J., concurring, who said in
Furman v. Georgia, supra note 34, at 312, that "[T]he imposition and execution
of the death penalty are obviously cruel in the dictionary sense", was one of
the justices who held in Gregg v Georgia, infra note 60, that capital punishment
was not per se cruel and unusual punishment within the meaning of the Fifth and
Fourteenth Amendments of the United States Constitution. Burger, CJ.,
dissenting, refers in Furman's case at 379, 380, and 382 to a punishment being
cruel "in the constitutional sense". See also, comments by Justice
Stewart, concurring in Furman's case at 309, "... the death sentences now before
us are the product of a legal system that brings them, I believe, within the
very core of the... guarantee against cruel and unusual punishments...it is
clear that these sentences are 'cruel' in the sense that they excessively go
beyond, not in degree but in kind, the punishments that the legislatures have
determined to be necessary [citing Weems v. United States, 217 U.S. 349
(1910)]...death sentences [imposed arbitrarily] are cruel and unusual in the
same way that being struck by lightning is cruel and unusual".
[36] Matinkinca and Another v Council of State, Ciskei and
Another 1994 (1) BCLR 17 (Ck) at 34B-D; Qozeleni v Minister of Law and Order and
Another 1994 (1) BCLR 75(E) at 87D-E. Cf. Kindler v Canada (Minister of
Justice) (1992) 6 CRR (2d) 193 at 214.
[37] The Criminal Procedure Second Amendment Decree, 1990,
Decree No. 16 of 1990 of the Council of State of the Republic of Ciskei, 8 June
1990, as amended.
[38] S v Qeqe and Another 1990 (2) SACR 654 (CkAD).
[39] In the former Transkei, Bophuthatswana and Venda the death
sentence was a competent verdict for murder but the provisions of the relevant
statutes in Transkei and Bophuthatswana are not identical to section 277.
For the purposes of this judgment it is not necessary to analyse the
differences, which relate in the main to the procedure prescribed for appeals
and the powers of the court on appeal, procedures that are now subject to the
provisions of section 241(1) and (1A) of the Constitution, as amended by the
Constitution of the Republic of South Africa Third Amendment Act No. 13 of
1994.
[40] See section 8 of the Constitution.
[41] AK Entertainment CC v Minister of Safety and Security and
Others 1995 (1) SACLR 130 (E) at 135-136.
[42] An account of the history of the death sentence, the growth
of the abolitionist movement, and the application of the death sentence by South
African courts is given by Prof. B. van Niekerk in Hanged by the Neck Until You
Are Dead, (1969) 86 SALJ 457; Professor E. Kahn in The Death Penalty in South
Africa, (1970) 33 THRHR 108; and by Professor G. Devenish in The historical and
jurisprudential evolution and background to the application of the death penalty
in South Africa and its relationship with constitutional and political reform,
SACJ (1992) 1. For analysis of trends in capital punishment
internationally, see Amnesty International, When the State Kills...The death
penalty v. human rights (1989).
[43] See generally, Amnesty International, The Death Penalty:
List of Abolitionist and Retentionist Countries (December 1, 1993), AI
Index ACT 50/02/94.
[44] Amnesty International, Update to Death Sentences and
executions in 1993, AI Index ACT 51/02/94.
[45] Supra note 43.
[46]
J. Dugard in Rights and Constitutionalism: the New South African Legal Order
192-195 (Dawid van Wyk et al.eds., Juta & Co., Ltd., 1994). Professor
Dugard suggests, at 193-194, that section 35 requires regard to be had to "all
the sources of international law recognised by article 38(1) of the Statute of
the International Court of Justice, ie:
(a)
international conventions, whether general or particular, establishing rules
expressly recognised by the contesting states;
(b)
international custom, as evidence of a general practice accepted as law;
(c)
the general principles of law recognized by civilized nations; [and]
(d)
... judicial decisions and the teachings of the most highly qualified publicists
of the various nations, as subsidiary means for the determination of rules of
law."
[47] Established under article 28 of the International Covenant
on Civil and Political Rights (ICCPR or International Covenant) 1966.
[48] Established in terms of article 33 of the American
Convention on Human Rights 1969.
[49] Id.
[50] Established in terms of article 19 of the European
Convention for the Protection of Human Rights and Fundamental Freedoms, 1950
("European Convention").
[51] Id.
[52]
The pertinent part of article 6 of the ICCPR reads:
1.
Every human being has the inherent right to life. This right shall be protected
by law. No one shall be arbitrarily deprived of his life.
2.
...sentence of death may be imposed only for the most serious crimes in
accordance with the law in force at the time of the commission of the crime and
not contrary to the provisions of the present covenant ...
Article
4(2) of the American Convention on Human Rights and article 2 of the European
Convention of Human Rights contain similar provisions. Article 4 of the
African Charter of Human an People's Rights provides:
style='font-size:12.0pt;mso-bidi-font-size:Human
beings are inviolable. Every human being shall be entitled to respect for
his life and the integrity of his person. No one may be arbitrarily
deprived of this right. (Emphasis supplied)
[53] See S v Zuma and Two Others, supra note 6.
[54] See, e.g., Qozeleni, supra note 36, at 80B-C; S v Botha and
Others 1994 (3) BCLR 93 (W) at 110F-G.
[55] Decision No. 23/1990 (X.31.) AB of the (Hungarian)
Constitutional Court (George Feher trans.).
[56] The judgment of Kentridge AJ in S v Zuma and Two Others,
supra note 6, discusses the relevance of foreign case law in the context of the
facts of that case, and demonstrates the use that can be made of such
authorities in appropriate circumstances.
[57] Furman v. Georgia, supra note 34, at 418 (Powell, J.,
joined by Burger, CJ., Blackmun, J. and Rehnquist, J., dissenting).
[58] See Furman v. Georgia, supra note 34.
[59] Id.
[60] Gregg v. Georgia, 428 U.S. 153, 173 (1976)(Stewart, Powell
and Stevens, JJ.).
[61] Trop v. Dulles, 356 U.S. 86, 101 (1958).
[62] See Furman v. Georgia, supra note 34, at 380-384, and at
417-420 (Burger, CJ., and Powell, J., respectively, dissenting). See
also, Gregg v. Georgia, supra note 60, at 176-180; and Callins v Collins, 114
S.Ct. 1127 (1994)(judgement denying cert.)(Scalia, J., concurring). Those
who take the contrary view say that these provisions do no more than recognise
the existence of the death penalty at the time of the adoption of the
Constitution, but do not exempt it from the cruel and unusual punishment
clause. Furman v Georgia at 283-284 (Brennan, J., concurring); People v.
Anderson, 493 P.2d 880, 886 (Cal. 1972)(Wright, CJ.).
[63] See infra paras. 91-92.
[64] Supra note 60, at 187.
[65] See, e.g., the concurring opinion of Scalia, J., in Callins
v. Collins, supra note 62; the opinions of Rehnquist, J., concurring in part and
dissenting in part, in Lockett v. Ohio, supra note 66, at 628 et seq., and
dissenting in Woodson v. North Carolina, supra note 66, at 308 et seq.
[66] Woodson v. North Carolina, 428 U.S. 280 (1976); Roberts v.
Louisiana, 428 U.S. 325 (1976), reh'g denied 429 U.S. 890 (1976); Lockett v.
Ohio, 438 U.S. 586 (1978)(system for imposing death sentences invalid to the
extent it precludes consideration by sentencing jury or judge of potentially
mitigating factors).
[67] See Green v. Georgia 442 U.S. 95 (1979).
[68] Gregg v. Georgia, supra note 60, at 189.
[69]
Id. See also, Proffitt v. Florida, 428 U.S. 242 (1976). The nature
of the offence for which the sentence is imposed is also relevant. Coker
v. Georgia, 433 U.S. 584 (1977).
[70] Criminal Procedure Act No. 51 of 1977, section 322(2A)(as
amended by section 13 of Act No. 107 of 1990).
[71] Id. section 316A(4)(a).
[72] S v Nkwanyana and Others 1990 (4) SA 735 (A) at
743E-745A.
[73] S v Masina and Others 1990 (4) SA 709 (A) at 718G-H.
[74] S v J 1989 (1) SA 669 (A) at 682G. "Generally speaking,
however, retribution has tended to yield ground to the aspects of correction and
prevention, and it is deterrence (including prevention) which has been described
as the 'essential', 'all important', 'paramount' and 'universally admitted'
object of punishment". Id. at 682I-J (cited with approval in S v P 1991
(1) SA 517 (A) at 523G-H). Cf. R v Swanepoel 1945 AD 444 at 453-455.
[75] Per Holmes JA in S v Letsolo 1970 (3) SA 476 (A) at 477B
(cited with approval by Nicholas AJA in S v Dlamini 1992 (1) SA 18 (A) at
31I-32A in the context of the approach to sentencing under section 322(2A)(b) of
the Criminal Procedure Act No. 51 of 1977).
[76] S v Senonohi 1990 (4) SA 727 (A) at 734F-G; S v Nkwanyana,
supra note 72, at 749A-D.
[77] According to the statistics referred to in the amicus brief
of the South African Police approximately 9 000 murder cases are brought to
trial each year. In the more than 40 000 cases that have been heard since
the amendment to section 277 of the Criminal Procedure Act, only 243 persons
were sentenced to death, and of these sentences, only 143 were ultimately
confirmed on appeal. See also, Devenish, supra note 42, at 8 and 13.
[78] In the amicus brief of Lawyers for Human Rights, Centre for
Applied Legal Studies and the Society for the Abolition of the Death Penalty in
South Africa it is pointed out that the overwhelming majority of those sentenced
to death are poor and black. There is an enormous social and cultural
divide between those sentenced to death and the judges before whom they appear,
who are presently almost all white and middle class. This in itself gives
rise to problems which even the most meticulous judge cannot avoid.
The formal trial proceedings are recorded in English or Afrikaans, languages
which the judges understand and speak, but which many of the accused may not
understand, or of which they may have only an imperfect understanding.
The evidence of witnesses and the discourse between the judge and the accused
often has to be interpreted, and the way this is done influences the
proceedings. The differences in the backgrounds and culture of the judges
and the accused also comes into the picture, and is particularly relevant when
the personal circumstances of the accused have to be evaluated for the purposes
of deciding upon the sentence. All this is the result of our history, and
with the demise of apartheid this will change. Race and class are, however,
factors that run deep in our society and cannot simply be brushed aside as no
longer being relevant.
[79] I do not want to be understood as being critical of the pro
deo counsel who perform an invaluable service, often under extremely difficult
conditions, and to whom the courts are much indebted. But the unpalatable
truth is that most capital cases involve poor people who cannot afford and do
not receive as good a defence as those who have means. In this process,
the poor and the ignorant have proven to be the most vulnerable, and are the
persons most likely to be sentenced to death.
[80] See the comments of Curlewis, J in [1991] SAJHR, Vol. 7, p.
229, arguing that judges who do not impose the death sentence when they should
do so are not doing their duty. "Let me return to the point that troubles
the authors: 'that a person's life may depend upon who sits in judgment.'
Of course this happens. I do not know why the authors are so hesitant in saying
so. Their own reasoning, let alone their tables, proves this". Id.
at 230.
[81] Furman v. Georgia, supra note 34, at 257.
[82] "While this court has the power to correct constitutional
or other errors retroactively...it cannot, of course, raise the dead."
Suffolk District v. Watson and Others, 381 Mass. 648, 663 (1980)(Hennessy,
CJ.)(plurality decision holding the death penalty unconstitutionally cruel under
the Massachusetts State Constitution). "Death, in its finality, differs
more from life imprisonment than a 100-year prison term differs from one of only
a year or two. Because of the qualitative difference, there is a
corresponding difference in the need for reliability in the determination that
death is the appropriate punishment in a specific case". Woodson v. North
Carolina, supra note 66, at 305 (Stewart, Powell and Stevens, JJ.).
[83] Voyles v. Watkins, 489 F.Supp 901 (D.D.C.: N.D.Miss. 1980).
See also, People v. Frierson, 599 P.2d. 587 (1979). Cf. Powell v.
Alabama, 287 U.S. 45 (1932).
[84]
Furman v. Georgia, supra note 34, at 288-289 (Brennan, J., concurring).
Although in the United States prolonged delay extending even to more than ten
years has not been held, in itself, a reason for setting aside a death sentence,
Richmond v. Lewis, 948 F.2d 1473, 1491 (9th Cir. 1990)(rejecting a claim that
execution after sixteen years on death row would constitute curel and unusual
punishment in violation of the Eighth and Fourteenth Amendments), in other
jurisdictions a different view is taken.
Pratt v Attorney-General for Jamaica, supra note 3, at 1014.
[85] Callins v. Collins, supra note 62, (Blackmun, J.,
dissenting).
[86] Id. (compare Scalia, J., concurring, with Blackmun, J.,
dissenting).
[87] Trop v. Dulles, supra note 61, at 100. See also,
Furman v. Georgia, supra note 34, at 270-281 (Brennan, J., concurring); Gregg v
Georgia, supra note 60, at 173; People v. Anderson, supra note 62, at 895 ("The
dignity of man, the individual and the society as a whole, is today demeaned by
our continued practice of capital punishment.").
[88] Gregg v. Georgia, supra note 60, at 230 (Brennan, J.,
dissenting) (quoting his opinion in Furman v. Georgia, at 273). See also,
Furman v. Georgia, supra note 34, at 296, where Brennan, J., concurring,
states: "The country has debated whether a society for which the dignity
of the individual is the supreme value can, without a fundamental inconsistency,
follow the practice of deliberately putting some of its members to death."
[89] [1977] 45 BVerfGE 187, 228 (Life Imprisonment case)(as
translated in Kommers, supra note 18, at 316). The statement was made in
the context of a discussion on punishment to be meted out in respect of murders
of wanton cruelty. It was held that a life sentence was a competent
sentence as long as it allowed the possibility of parole for a reformed prisoner
rehabilitated during his or her time in prison.
[90] (1992) 6 CRR (2d) 193 SC.
[91] Id. at 241 (per Cory, J, dissenting with Lamer, CJC,
concurring). See also, Sopinka, J, dissenting (with Lamer, CJC,
concurring) at 220.
[92] Id. at 202 (per La Forest, J)(L'Heureux-Dube and Gonthier,
JJ concurring).
[93] Ng v Canada, supra note 23, at 21.
[94] Joseph Kindler v Canada, United Nations Committee on Human
Rights, Communication No 470/1991, 30 July 1993.
[95] (1989) 11 EHRR 439 at paras. 103, 105 and 111.
[96] (1980) 2 SCC 684.
[97] Id. at 730, para. 136.
[98] Id. at 709, para. 61.
[99] Id. at 712, para. 71.
[100] I have not yet dealt specifically with the issues of
deterrence, prevention and retribution, on which the Attorney General placed
reliance in his argument. These are all factors relevant to the purpose of
punishment and are present both in capital punishment, and in the alternative of
imprisonment. Whether they serve to make capital punishment a more
effective punishment than imprisonment is relevant to the argument on
justification, and will be considered when that argument is dealt with. For the
moment it is sufficient to say that they do not have a bearing on the nature of
the punishment, and need not be taken into account at this stage of the
enquiry.
[101] Supra note 96, at 729, para. 132.
[102] Id.
[103] Supra note 96, at 730-731, para. 136. For similar
reasons, the death penalty was held not to be inconsistent with the Constitution
of Botswana, or with the Constitution of the former Bophuthatswana. S v
Ntesang 1995 (4) BCLR 426 (Botswana); S v Chabalala 1986 (3) SA 623 (B AD).
[104] Id. at 740, para. 165. Bhagwati J dissented.
The dissenting judgement is not available to me, but according to Amnesty
International, When the State Kills, supra note 42, at 147, Bhagwati J asserted
in his judgement that "[t]he prevailing standards of human decency are
incompatible with [the] death penalty."
[105] Triveniben v State of Gujarat [1992] LRC(Const.) 425
(Sup. Ct. of India); Daya Singh v Union of India [1992] LRC(Const.) 452 (Sup.
Ct. of India).
[106] Supra note 95, at 484.
[107] Joseph Kindler v Canada, supra note 94, at 23.
[108] Per Lord Bridge in R v Home Secretary, Ex parte Bugdaycay
(1987) AC 514 at 531G.
[109] Supra note 55.
[110] "The cruel or unusual punishment clause of the California
Constitution, like other provisions of the Declaration of Rights, operates to
restrain legislative and executive action and to protect fundamental individual
and minority rights against encroachment by the majority. It is the
function of the court to examine legislative acts in the light of such
constitutional mandates to ensure that the promise of the Declaration of Rights
is a reality to the individual (citations omitted)...Were it otherwise, the
Legislature would ever be the sole judge of the permissible means and extent of
punishment and article I, section 6, of the Constitution would be superfluous."
People v. Anderson, supra note 62, at 888. This was also the
approach of the President of the Hungarian Constitutional Court in his
concurring opinion on the constitutionality of capital punishment, where he
said: "The Constitutional Court is not bound either by the will of the majority
or by public sentiments." Supra note 55, at 12. See also, Gregg v.
Georgia, supra note 60, at 880. In the decisive judgment of the Court,
Justices Stewart, Powell and Stevens, accepted that "...the Eighth Amendment
demands more than that a challenged punishment be acceptable to contemporary
society. The Court also must ask whether it comports with the basic
concept of human dignity at the core of the Amendment." (citation omitted)
[111] Supra note 34, at 443.
[112] 319 U.S. 624, 638 (1943).
[113] The Californian Constitution was subsequently amended to
sanction capital punishment.
[114] Supra note 62.
[115] Id. at 899. The cruelty lay "...not only in the
execution itself and the pain incident thereto, but also in the dehumanizing
effects of the lengthy imprisonment prior to the execution during which the
judicial and administrative procedures essential to due process of law are
carried out." Id. at 894 (citations omitted).
[116] Id. at 899.
[117] 381 Mass. 648 (1980).
[118] "...[T]he death penalty is unacceptable under
contemporary standards of decency in its unique and inherent capacity to inflict
pain. The mental agony is, simply and beyond question, a horror." Id. at
664. "All murderers are extreme offenders. Fine distinctions,
designed to select a very few from the many, are inescapably capricious when
applied to murders and murderers." Id. at 665. "...[A]rbitrariness and
discrimination...inevitably persist even under a statute which meets the demands
of Furman." Id. at 670. "...[T]he supreme punishment of death, inflicted
as it is by chance and caprice, may not stand." Id. at 671. "The death sentence
itself is a declaration that society deems the prisoner a nullity, less than
human and unworthy to live. But that negation of his personality carries
through the entire period between sentence and execution." Id. at 683 (Liacos,
J., concurring).
[119] E.g., Coker v. Georgia, 433 U.S. 782 (1977)(imposition of
the death penalty for rape violates due process guarantees because the sentence
is grossly disproportionate punishment for a nonlethal offence). See
also, Gregg v. Georgia, supra note 60, at 187 ("[W]e must consider whether the
punishment of death is disproportionate in relation to the crime for which it is
imposed."), and Furman v. Georgia, supra note 34, at 273 ("...a punishment may
be degrading simply by reason of its enormity.").
[120] The Black Act: 9 George I. C.22, as cited in E.P.
Thompson, Whigs and Hunters, The Origin of the Black Act 211 (Pantheon).
The author notes that these provisions were described by Lord Chief Justice
Hardwicke as "necessary for the present state and condition of things and to
suppress mischiefs, which were growing frequent among us."
[121] This was the approach of Brennan, J., in Furman v.
Georgia, supra note 34, at 282 ("The test, then, will ordinarily be a cumulative
one: If a punishment is unusually severe, if there is a strong
probability that it is inflicted arbitrarily, if it is substantially rejected by
contemporary society [a determination he makes based on the infrequency
of use in relation to the number of offences for which such punishment may
apply], and if there is no reason to believe that it serves any penal purpose
more effectively than some less severe punishment, then the continued infliction
of that punishment violates the [clause prohibiting cruel and unusual
punishment].").
[122] S v Zuma and Two Others, supra note 6, para. 21.
[123] Furman v. Georgia, supra note 34, at 300. Brennan,
J., was dealing here with the proposition that "an unusually severe and
degrading punishment may not be excessive in view of the purposes for which it
is inflicted."
[124] Id.
[125] "The People concede that capital punishment is cruel to
the individual involved. They argue, however, that only "unnecessary"
cruelty is constitutionally proscribed, and that if a cruel punishment can be
justified it is not forbidden by article I, section 6, of the California
Constitution." Supra note 62, at 895.
[126] S v Zuma and Two Others, supra note 6.
[127] Attorney-General of Hong Kong v Lee Kwong-Kut, (1993) AC
951 at 970-972 (PC).
[128] Supra note 60, at 186-187.
[129] S v Zuma and Two Others, supra note 6.
[130] A proportionality test is applied to the limitation of
fundamental rights by the Canadian courts, the German Federal Constitutional
Court and the European Court of Human Rights. Although the approach of these
Courts to proportionality is not identical, all recognise that proportionality
is an essential requirement of any legitimate limitation of an entrenched right.
Proportionality is also inherent in the different levels of scrutiny applied by
United States courts to governmental action.
[131] Reference re ss. 193 and 195(1)(c) of the Criminal Code
of Manitoba, infra note 135.
[132] (1986) 19 CRR 308.
[133] Id. at 337.
[134] (1989) 39 CRR 193 at 248.
[135] (1990) 48 CRR 1 at 62.
[136] (1991) 1 CRR (2d) 1 at 30.
[137] Per La Forest J in Tetreault-Gadoury v Canada (Employment
and Immigration Commission) (1991), 4 CRR(2d) 12 at 26. See also,
Rodriquez v British Columbia (AG) (1994) 17 CRR(2d) 192 at 222 and 247.
[138] Dieter Grimm, Human Rights and Judicial Review in
Germany, in Human Rights and Judicial Review: A Comparative Perspective 267, 275
(David H. Beatty, ed., Martinus Nijhoff publ.)(1994). Prof. Grimm is
presently a member of the German Federal Constitutional Court.
[139] Id. For a discussion of the application of the principle
of proportionality in German Constitutional jurisprudence, see Currie, The
Constitution of the Federal Republic of Germany 18-20, 307-310 (Univ. of Chicago
Press)(1994). Prof. Currie outlines the genesis of proportionality,
intimated in the Magna Carta and generally described by Blackstone, and notes
that it was further developed by Carl Gottleib Svarez, a celebrated thinker of
the German Enlightenment. "Svarez insisted on proportionality both
between ends and means and between costs and benefits; both aspects of the
principle are reflected in the jurisprudence of the Constitutional Court."
Currie at 307.
[140] Currie, id., at 178, note 15 and accompanying text.
See also infra note 161.
[141] R v France (1993) 16 EHRR 1, para. 63.
[142] Handyside v United Kingdom (1979-80) 1 EHRR 737, para.
49.
[143] Dudgeon v United Kingdom (1981) 4 EHRR 149, para. 52;
Norris v Ireland (1988) 13 EHRR 186, para. 46; Modinos v Cyprus (1993) 16 EHRR
485.
[144] "...[T]he margin of appreciation available to the
legislature in implementing social and economic policies should be a wide
one..." James v United Kingdom (1986) 8 EHRR 123, para. 46. See
also, Lithgow v United Kingdom (1986) 8 EHRR 329, para. 122.
[145] S v Zuma and Two Others, supra note 122, para. 35.
[146] S v Senonohi, supra note 76, at 734F-G.
[147] Criminal Appeal No. 142 of 1994; 30 January 1995.
[148] Id., wherein Ramadhani JA., highlights with respect to
the Republic of Tanzania Constitution, that article 30(2) provides that laws,
and actions taken in accordance with such laws, shall not be invalidated under
the Constitution if such laws (or actions) make provision, inter alia, for
"ensuring that the rights and freedom of other or the public interest are not
prejudiced by the misuse of the individual rights and freedom." Id. at p. 23.
The judgment refers to "derogations" and not to "limitations".
[149] See discussion on public opinion supra paras. 87 to
89.
[150] S v W 1993(2) SACR 74, at 76H-I.
[151] In the Statement of Minister of Justice dated 27 March
1992, supra note 31, para. 22.
[152] Indeed, such a hypothesis is not born out by the
statistics analysed by Justice Didcott in his concurring opinion at para
182.
[153] Since 1991, section 64 of the Correctional Service Act 8
of 1959 has provided that a person sentenced to life imprisonment may only be
released from prison in the following circumstances: (a) the advisory
release board "with due regard to the interest of society", recommends that the
prisoner be released and (b) the Minister of Correctional Services accepts that
recommendation and authorizes the release of the prisoner. This means that
the Minister of Correctional Services must accept responsibility for the release
of the prisoner, and can only do so if the advisory release board is in favour
of the prisoner being released.
[154] This statement is taken from the provision on National
Reconciliation.
[155] Sopinka J (La Forest, Gonthier, Iacobucci and Major JJ,
concurring) in Rodriquez v British Columbia (1994) 17 CRR(2d) 193 at 218.
[156] This proposition is advanced in greater detail by J
Price, (1995) "De Rebus" 89.
[157] Wright, CJ., in People v. Anderson, supra note 62, at
897.
[158] S v P 1991 (1) SA 517 (A) at 523D-F. See also supra
note 74.
[159] The Preamble to the Constitution records that the new
order will be a "constitutional state in which...all citizens shall be able to
enjoy and exercise their fundamental rights and freedoms." The commitment
to recognition of human rights is reaffirmed in the concluding provision on
National Unity and Reconciliation.
[160] Brennan, J., in Furman v. Georgia, supra note 34, at
305.
[161] Currie, supra note 139, refers to an analysis of the
'remarkable variety of views' on the meaning of 'essence'. Id. at 178 (citing 2
Maunz/Durig, Art. 19, Abs. II, Rdnr. 16).
[162] Grimm, supra note 138, at page 276 states, "operating at
an earlier stage than the essential content limit in Article 19(2), the
proportionality principle has rendered the former almost insignificant."
Currie, supra note 139, notes that the German Federal Constitutional Court has
remarked in at least one case that dealt with the 'essential content' question
that the Court "state[d] an alternative ground that, because of its greater
stringency [the proportionality test], has made it unnecessary in most cases to
inquire whether a restriction invades the 'essential content' of a basic
right." Currie, supra note 139, at 306-307 (citing 22 BVerfGE 180, 220
(1967)).
[163] R v Oakes, supra note 132, at 337 (citing R v Big M Drug
Mart Ltd., supra, at 352).
[164] See Kommers supra note 18.
[165] Sections 8(2), 9, 10 and 11(2) are in fact non-derogable
rights and in terms of section 34(5)(c) cannot be suspended during an
emergency.
[166] Self-defence is treated in our law as a species of
private defence. It is not necessary for the purposes of this judgement to
examine the limits of private defence. Until now, our law has allowed
killing in defence of life, but also has allowed killing in defence of property,
or other legitimate interest, in circumstances where it is reasonable and
necessary to do so. S v Van Wyk 1967 (1) SA 488 (A). Whether this is
consistent with the values of our new legal order is not a matter which arises
for consideration in the present case. What is material is that the law
applies a proportionality test, weighing the interest protected against the
interest of the wrongdoer. These interests must now be weighed in the
light of the Constitution.
[167] "The inherent right of the State to assume extraordinary
powers and to use all means at its disposal in order to defend itself when its
existence is at stake is recognized by our common law as an exceptional and
extreme constitutional tool." Per Selikowitz J in End Conscription
Campaign v Minister of Defence 1989 (2) SA 180(C) at 199H. Here too it is
not necessary to examine the limits of this "inherent right", or the limitations
(if any) imposed on it by the Constitution. All that need be said is that
it is of an entirely different character than the alleged "right" of the State
to execute murderers, and subject to different considerations.
[168]Innes J in Whittaker v Roos and Bateman 1912 AD 92 at
122-123. See also, Goldberg and Others v Minister of Prisons and Others 1979 (1)
SA 14 (A) at 39H-40C; Nestor and Others v Minister of Police and Others 1984 (4)
SA 230 (SWA) at 250F-251D.
[169] See also, Woods v Minister of Justice, Legal and
Parliamentary Affairs and Others, 1995 BCLR 56(ZSC) at 58F-G; Turner v. Safley,
482 U.S. 78, 84-85 (1987).
[170]See Pratt v Attorney General for Jamaica; and Catholic
Commission for Justice in Zimbabwe v The Attorney General, Zimbabwe, and Others,
supra note 3.
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