Chief Justice of South Africa

“ Our society cannot and does not condone brutal murder or robbery. Perpetrators of crimes such as these must be punished severely according to our system of criminal justice. In this case, the prisoners have been tried, convicted and sentenced. The question that this court must answer is not whether the prisoners committed these crimes, nor whether they should be punished. It has been established by the proper courts that they did commit crimes, and for that they must be punished. What this court must consider is whether the form of punishment that has been imposed is constitutional. ”

“ 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." ”

“ In many ways, it trampled on the basic humanity of citizens. We cannot in all conscience declare, as did a United States Supreme Court justice in Furman v Georgia 408 US 238, at 296 (1972) with reference to the American context, that respect for and protection of human dignity has been a central value in South African jurisprudence. We cannot view the death penalty as fundamentally inconsistent with our harsh legal heritage. ”

“ It has to be borne in mind that the presence of various options in a number of legislative provisions may not always reflect practical realities. It is important that resources should be made available and that they should be utilised properly, so that the values expressed in the Constitution may be upheld and maintained. It bears mentioning that although changes in the criminal justice system have been occurring, albeit at a painfully slow pace, there has been a perceptible shift in approach and attitude towards punishment. ”

“ The legislative organ exercises a political discretion, taking into account the political preferences of the electorate which votes political decision-makers into office. Public opinion therefore legitimately plays a significant, sometimes even decisive, role in the resolution of a public issue such as the death penalty. The judicial process is entirely different. What the Constitutional Court is required to do in order to resolve an issue, is to examine the relevant provisions of the Constitution, their text and their context ”

“ We are working hard to ensure that everyone in South Africa feels safe and is safe. We will take further our work to reduce serious and violent crimes, and ensure that the justice system works efficiently. We are implementing plans to increase the number of policemen and women by 10% over the next three years. We have identified the fight against hijacking, business and house robberies, as well as contact crimes such as murder, rape and assault, as top priorities. We all have a role to play. Let us participate in community safety forums. ”

“ Thus it sets a norm; measures that assail the dignity and self esteem of an individual will need to be justified; there is no place for brutal and dehumanising treatment and punishment. The Constitution has allocated to the State and its organs a role as the protectors and guarantors of those rights to ensure that they are available to all. In the process, it sets the State up as a model for society as it endeavours to move away from a violent past. It is therefore reasonable to expect that the State must be foremost in upholding those values which are the guiding light of civilised societies. ”

“ Every human being shall be entitled to respect for his life and the integrity of the person. No one may be arbitrarily deprived of this right.'
Article 2 (1) of the European Convention on Human Rights provides that 'Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.' But in 1983 a protocol to the Convention was adopted which provided that capital punishment should be abolished. ”

“ Anyone listed in this section has the right to approach a competent court, alleging that a right in the Bill of Rights has been infringed or threatened, and the court may grant appropriate relief, including a declaration of rights. The persons who may approach a court are —
(a)
anyone acting in their own interest; (b)
anyone acting on behalf of another person who cannot act in their own name ”

“ The determinative test will be the values we find inherent in or worthy of pursuing in this society which has only recently embarked on the road to democracy. Already South Africa has lagged behind. The Constitution now offers an opportunity for South Africans to join the mainstream of a world community that is progressively moving away from punishments that place undue emphasis on retribution and vengeance rather than on correction, prevention and the recognition of human rights. ”

“ In my view, s.35 (1) requires this court not only to have regard to public international law and foreign case law, but also to all the dimensions of the evolution of South African law which may help us in our task of promoting freedom and equality. This would require reference not only to what in legal discourse is referred to as 'our common law' but also to traditional African jurisprudence. ”

“ The Court did however find that the right to human dignity demands a humane execution of the sentence. This meant that the existing law, which made provision for executive pardon, had to be replaced by a law laying down objective criteria for the release of prisoners serving life sentences. In the course of its judgment, the Court made clear that there is nothing constitutionally objectionable to executing a life sentence in full in cases where the prisoner does not meet the criteria. ”

“ In our context an appropriate remedy must mean an effective remedy, for without effective remedies for breach, the values underlying and the rights entrenched in the Constitution cannot properly be upheld or enhanced. Particularly in a country where so few have the means to enforce their rights through the courts, it is essential that on those occasions when the legal process does establish that an infringement of an entrenched right has occurred, it be effectively vindicated. ”

“ I would agree, and add that this is especially true of the State created by our new Constitution. The deliberate execution of a human, however depraved and criminal his conduct, must degrade the new society which is coming into being.
[200] ⁠In the course of argument before us much was said about public opinion on the death penalty in South Africa. Both Chaskalson P and Didcott J have shown that public opinion, even if expressed in acts of Parliament, cannot be decisive. If we were simply to defer to public opinion we would be abdicating from our constitutional function. ”

“ In relation to the argument on “restorative justice”, since the establishment and work of the South African TRC, the global legal landscape has changed, and there is wide recognition that amnesties for certain crimes are no longer permissible. ”

“ The subsequent developments described by Chaskalson P including the official executive moratorium on the death penalty announced in March 1992, while not evidence of general opinion, do cast serious doubt on the acceptability of capital punishment in South Africa. In fact, we are informed, since 1989 there has been no judicial execution in South Africa. Thus there has been in this country no indication whatsoever of what Stewart J in Gregg's case referred to as "society's endorsement of the death penalty for murder." In the Constitution itself such endorsement is markedly absent. ”

“ For apartheid was a denial of a common humanity. Black people were refused respect and dignity and thereby the dignity of all South Africans was diminished. The new constitution rejects this past and affirms the equal worth of all South Africans. Thus recognition and protection of human dignity is the touchstone of the new political order and is fundamental to the new constitution. ”

“ It is well known that all Magistrates, including those at the Cape, are paid to administer every legislative instrument, whether sensible or absurd, passed by the partly literate Parliament of the Union of South Africa. Hence, these Magistrates, in ordering Natives off their farms, and turning native cattle off the grazing areas, are only carrying out Section 1 of the Natives' Land Act. One Cape Magistrate who ruled that to plough on a farm was no breach of the law, WAS "dealt with by the Union Government", for a peremptory order came from Pretoria declaring such a decision to be illegal. ”

“ In the period which has elapsed since the establishment of British rule at the Cape the law has been considerably modified and altered, both by legislation and by judicial decisions, and it is not too much to say that at the present time there exists hardly any material difference in principle over the greater part of the field of jurisprudence between the law of England and the law of South Africa. ”

“ Pass laws, which to the Africans are among the most hated bits of legislation in South Africa, render any African liable to police surveillance at any time. I doubt whether there is a single African male in South Africa who has not at some stage had a brush with the police over his pass. Hundreds and thousands of Africans are thrown into jail each year under pass laws. ”

“ 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." ”

“ The constitution creates for South Africa a union entirely different from that of the provinces of Canada or the States of the American Republic. The government is not federal, but unitary. The provinces become areas of local governments, with local elected councils to administer them, but the South-African Parliament reigns supreme. It is to know nothing of the nice division of jurisdiction set up by the American constitution and by the British North America Act. ”

“ Although South Africans have a history of deep divisions characterised by strife and conflict, one shared value and ideal that runs like a golden thread across cultural lines, is the value of ubuntu—a notion now coming to be generally articulated in this country. It is well accepted that the transitional Constitution is a culmination of a negotiated political settlement. It is a bridge between a history of gross violations of human rights and humanitarian principles, and a future of reconstruction and reconciliation. ”

“ This Court has held that in interpreting the rights enshrined in Chapter 3 of the Constitution, a purposive approach should be adopted. [72] In seeking the purpose of the particular rights, it is important to place them in the context of South African society. It is regrettable, but undeniable, that since the middle 1980's our society has been subjected to an unprecedented wave of violence. Disputes, whether political, industrial or personal, often end in violent assaults. ”

“ 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. ”

“ On the information that was common cause in argument before us, sixty or seventy percent of offenders who commit serious crimes are not apprehended at all and a substantial proportion of those who are, are never convicted. The risk is therefore worth taking, not because the death penalty would, in the perception of the offender, not be imposed but because no punishment is likely to result at all. The levels of serious crimes committed in South Africa are indeed disturbing. For many in the community, life has become dangerous and intolerable. ”

“ Urgently reiterates its appeal to the Government of the Republic of South Africa to liberate all persons imprisoned, interned or subjected to other restrictions for having opposed the policies of apartheid ”