S v Makwanyane and Another/Langa J

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S v Makwanyane and Another by Pius Langa
Concurring judgment of Justice Langa

[215] Langa J: I agree with the conclusions reached by Chaskalson P and generally with the reasons he advances in his exhaustive and erudite judgment. I concur in the order he has proposed. I wish to put additional emphasis on some of the aspects he has dealt with.

[216] The death sentence, in terms of the provisions of section 277 of the Criminal Procedure Act, No. 51 of 1977, is unconstitutional, violating as it does:

(a) the right to life which is guaranteed to every person by section 9 of the Constitution;

(b) the right to respect for human dignity guaranteed in section 10;

(c) the right not to be subjected to cruel, inhuman and degrading punishment as set out in section 11(2).

[217] For the reasons set out in Didcott J's judgment, I place more emphasis on the right to life. Section 9 of the Constitution proclaims it in unqualified terms. It is the most fundamental of all rights,[1] the supreme human right.[2] I do not consider it necessary or desirable to define the exact scope of the right, save to make two points, namely:

(a) It does mean that every person has the right not to be deliberately put to death by the State as punishment, as envisaged in section 277 of the Criminal Procedure Act.

(b) I do not exclude the application of the limitations clause to the right to life. Any law which seeks to limit the right will have to comply with the requirements of section 33(1) of the Constitution. For the reasons set out in Chaskalson P's judgment, the requirements have not been met; the State has been unable to justify the limitation which is imposed on the right to life by section 277 of the Criminal Procedure Act. I cannot accept that it is "reasonable," as required by section 33(1) of the Constitution, to override what is the most fundamental of all rights, without clear proof that the deterrence value of the penalty is substantially higher than that which the imposition of a suitably long period of imprisonment has. This has not been proved. Because of the view I take, I find it unnecessary to deal with the other requirements of section 33(1) of the Constitution.

[218] The emphasis I place on the right to life is, in part, influenced by the recent experiences of our people in this country. The history of the past decades has been such that the value of life and human dignity have been demeaned. Political, social and other factors created a climate of violence resulting in a culture of retaliation and vengeance. In the process, respect for life and for the inherent dignity of every person became the main casualties. The State has been part of this degeneration, not only because of its role in the conflicts of the past, but also by retaining punishments which did not testify to a high regard for the dignity of the person and the value of every human life.

[219] The primacy of the right to life and its relationship to punishment needs to be emphasized also in view of our constitutional history. The doctrine of parliamentary sovereignty meant, virtually, that the State could do anything, enact any law, subject only to procedural correctness.[3]

[220] When the Constitution was enacted, it signalled a dramatic change in the system of governance from one based on rule by parliament to a constitutional state in which the rights of individuals are guaranteed by the Constitution. It also signalled a new dispensation, as it were, where rule by force would be replaced by democratic principles and a governmental system based on the precepts of equality and freedom.

[221] It may well be that for millions in this country, the effect of the change has yet to be felt in a material sense. For all of us though, a framework has been created in which a new culture must take root and develop.

[222] Implicit in the provisions and tone of the Constitution are values of a more mature society, which relies on moral persuasion rather than force; on example rather than coercion. In this new context, then, the role of the State becomes clear. For good or for worse, the State is a role model for our society.[4] A culture of respect for human life and dignity, based on the values reflected in the Constitution, has to be engendered, and the State must take the lead. In acting out this role, the State not only preaches respect for the law and that the killing must stop, but it demonstrates in the best way possible, by example, society's own regard for human life and dignity by refusing to destroy that of the criminal. Those who are inclined to kill need to be told why it is wrong. The reason surely must be the principle that the value of human life is inestimable, and it is a value which the State must uphold by example as well. As pointed out by Mr Justice Schaefer of the Supreme Court of Illinois:[5]

"The methods we employ in the enforcement of our criminal law have aptly been called the measures by which the quality of our civilisation may be judged."

[223] The ethos of the new culture is expressed in the much-quoted provision on National Unity and Reconciliation which forms part of the Constitution. Chaskalson P quotes the various components of it in paragraphs 7 and 130 of his judgment. It describes the Constitution as a "bridge" between the past and the future; from "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, … for all South Africans …"; and finally, it suggests a change in mental attitude from vengeance to an appreciation of the need for understanding, from retaliation to reparation and from victimisation to ubuntu. The Constitution does not define this last-mentioned concept.

[224] The concept is of some relevance to the values we need to uphold. It is a culture which places some emphasis on communality and on the interdependence of the members of a community. It recognises a person's status as a human being, entitled to unconditional respect, dignity, value and acceptance from the members of the community such person happens to be part of. It also entails the converse, however. The person has a corresponding duty to give the same respect, dignity, value and acceptance to each member of that community. More importantly, it regulates the exercise of rights by the emphasis it lays on sharing and co-responsibility and the mutual enjoyment of rights by all. It is perhaps best illustrated in the following remarks in the judgment of the Court of Appeal of the Republic of Tanzania in DPP v Pete,[6]

"The second important principle or characteristic to be borne in mind when interpreting our Constitution is a corollary of the reality of co-existence of the individual and society, and also the reality of co-existence of rights and duties of the individual on the one hand, and the collective of communitarian rights and duties of society on the other. In effect this co-existence means that the rights and duties of the individual are limited by the rights and duties of society, and vice versa."

[225] An outstanding feature of ubuntu in a community sense is the value it puts on life and human dignity. The dominant theme of the culture is that the life of another person is at least as valuable as one's own. Respect for the dignity of every person is integral to this concept. During violent conflicts and times when violent crime is rife, distraught members of society decry the loss of ubuntu. Thus heinous crimes are the antithesis of ubuntu. Treatment that is cruel, inhuman or degrading is bereft of ubuntu.

[226] We have all been affected, in some way or other, by the "strife, conflict, untold suffering and injustice" of the recent past. Some communities have been ravaged much more than others. In some, there is hardly anyone who has not been a victim in some way or who has not lost a close relative in senseless violence. Some of the violence has been perpetrated through the machinery of the State, in order to ensure the perpetuation of a status quo that was fast running out of time. But all this was violence on human beings by human beings. Life became cheap, almost worthless.

[227] It was against a background of the loss of respect for human life and the inherent dignity with attaches to every person that a spontaneous call has arisen among sections of the community for a return to ubuntu. A number of references to ubuntu have already been made in various texts but largely without explanation of the concept.[7] It has however always been mentioned in the context of it being something to be desired, a commendable attribute which the nation should strive for.

[228] At first blush, it may sound odd that the issue of the right to life is being decided on the basis of persons condemned to death for killing other human beings. In this regard, it is relevant to note that there are some 400 people presently under sentence of death for acts of violence. That in itself means that there are probably an equivalent number of victims whose lives have been prematurely, violently, terminated. They died without having had any recourse to law. For them there was no "due process."

[229] That is why, during argument, a tentative proposition was made that a person who has killed another has forfeited the right to life. Although the precise implications of this suggestion were not thoroughly canvassed, this cannot be so. The test of our commitment to a culture of rights lies in our ability to respect the rights not only of the weakest, but also of the worst among us. A person does not become "fair game" to be killed at the behest of the State, because he has killed.

[230] The protection afforded by the Constitution is applicable to every person. That includes the weak, the poor and the vulnerable. It includes others as well who might appear not to need special protection; it includes criminals and all those who have placed themselves on the wrong side of the law. The Constitution guarantees them their right, as persons, to life, to dignity and to protection against torture or cruel, inhuman or degrading punishment or treatment.

[231] The violent acts of those who destroy life cannot be condoned, neither should anyone think that the abolition of the sentence of death means that the crime is regarded as anything but one of extreme seriousness. The sentence itself was an indication of society's abhorrence for the cruel and inhuman treatment of others. That moral outrage has been expressed in the strongest terms that society could muster.

[232] Severe punishments must be meted out where deserved, but they should never be excessive. As Brennan J observed in his concurring judgment in Furman v Georgia,[8]

"… a severe punishment must not be excessive. A punishment is excessive under this principle if it is unnecessary …[i]f there is a significantly less severe punishment adequate to achieve the purposes for which the punishment is inflicted, the punishment inflicted is unnecessary and therefore excessive."

Righteous anger against those who destroy the human life and dignity of others must be appropriately expressed by the Courts;[9] but in doing so, the State must not send the wrong message, namely, that the value of human life is variable.[10] Society cannot now succumb to the doctrine of an eye for an eye. Its actions must be informed by the high values which reflect the quality of this nation's civilization.

[233] The Constitution constrains society to express its condemnation and its justifiable anger in a manner which preserves society's own morality. The State should not make itself guilty of conduct which violates that which it is in the community's interests to nurture. The Constitution, in deference to our humanity and sense of dignity, does not allow us to kill in cold blood in order to deter others from killing. Nor does it allow us to kill criminals simply to get even with them."[11] We are not to stoop to the level of the criminal.

[234] It follows from the remarks above that as a punishment the death penalty is a violation of the right to life. It is cruel, inhuman and degrading. It is also a severe affront to human dignity. The death row phenomenon merely aggravates the position. Section 277 of the Criminal Procedure Act cannot be saved by the provisions of section 33(1) of the Constitution in respect of any of the rights affected. The punishment is not reasonable on any basis. In view of the available alternative sentence of a long term of imprisonment, it is also unnecessary.

  1. See the remarks of Lord Bridge in Bugdaycay v Secretary of State 1987(1) All ER 940 at 952b.
  2. See paragraph 82 of Chaskalson P's judgment.
  3. S v Tuhadeleni and Others 1969(1) SA 153 (A) at 172D–173F; Baxter, Administrative Law, page 30 (1984).
  4. Brandeis J in his dissenting opinion in Olmstead v United States, 277 US 438, 485 (1928) put it succinctly: "Our Government is the potent, the omni-present teacher. For good or for ill, it teaches the whole of our people by its example."
  5. In his Oliver Wendell Holmes lecture at the Harvard Law School, reprinted under the heading Federalism and State Criminal Procedure, 70 Harv. L. Rev. 1, 26 (1956). The passage was referred to with approval in Coppedge v United States, 369 US 438, 449 (1962).
  6. [1991] LRC (Const) 553 at 566b–d, per Nyalali CJ, Makame and Ramadhani JJA.
  7. See paragraphs 130 and 131 of Chaskalson P's judgment. The concept has been referred to also by Madala J, Mahomed J and Mokgoro J in their separate concurring judgments in this matter.
  8. 408 US 238, 279 (1972).
  9. See R v Karg 1961(1) SA 231(A) at 236A.
  10. Brennan J in Furman v Georgia, supra, at 273 expressed himself thus: "… even the vilest criminal remains a human being possessed of common human dignity."
  11. Per Brennan J in Furman v Georgia, supra, at 305.