S v Makwanyane and Another/Kriegler J

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S v Makwanyane and Another
Concurring judgment of Justice Kriegler by Johann Kriegler

[205]Kriegler J: I agree with the conclusions reached by Chaskalson P, endorse the bulk of his reasoning and concur in the order he has formulated. There are just two points that I wish to add though: the first by way of additional emphasis and the second to indicate a somewhat different line of reasoning.

[206]The basic issue, as Chaskalson P points out in the opening and concluding paragraphs of the main judgment, is whether the Constitution[1] has outlawed capital punishment in South Africa.[2] The issue is not whether I favour the retention or the abolition of the death penalty, nor whether this Court, Parliament or even overwhelming public opinion supports the one or the other view. The question is what the Constitution says about it.

[207]In answering that question the methods to be used are essentially legal, not moral or philosophical. To be true the judicial process cannot operate in an ethical vacuum. After all, concepts like "good faith", "unconscionable" or "reasonable" import value judgments into the daily grind of courts of law. And it would be foolish to deny that the judicial process, especially in the field of constitutional adjudication, calls for value judgments in which extra-legal considerations may loom large. Nevertheless, the starting point, the framework and the outcome of the exercise must be legal. The foundation of our state and all its organs, the rules which govern their interaction and the entrenchment of the rights of its people are to be found in an Act of Parliament, albeit a unique one.[3] That Act entrusts the enforcement of its provisions to courts of law.[4] The "court of final instance over all matters relating to the interpretation, protection and enforcement" of those provisions is this Court,[5] appointment to which is reserved for lawyers.[6] The incumbents are judges, not sages; their discipline is the law, not ethics or philosophy and certainly not politics.

[208]The exercise is to establish whether there is an invalid infringement of a right protected by Chapter Three. This

"calls for a 'two-stage' approach. First, has there been a contravention of a guaranteed right? If so, is it justified under the limitation clause?"[7]

For the first step, one need go no further than section 9 of the Constitution, which could not possibly be plainer:

"Every person shall have the right to life."

Whatever else section 9 may mean in other contexts, with regard to which I express no view, at the very least it indicates that the State may not deliberately deprive any person of his or her life. As against that general prohibition section 277(1) of the Criminal Procedure Act sanctions a judicial order for the deprivation of a person's life. The two provisions are clearly not reconcilable. Therefore, the latter provision is liable to be struck down under section 4(1) of the Constitution, unless it is saved by the second step of the analysis—application of the limitations clause.

[209]During the second step of the exercise one must ask whether that infringement of the right to life is reasonable and also whether it is justifiable in an open and democratic society based on freedom and equality (sections 33(1)(a)(i) & (ii)).[8] As I am satisfied that section 277(1)(a) does not meet the threshold test of reasonableness, I find it unnecessary to ask whether it is justifiable in the kind of society postulated. Nor do I consider the meaning of section 33(1)(b), which is discussed in paragraphs 132, 133 and 134 of the main judgment and paragraphs 193, 194 and 195 of the judgment of Kentridge AJ.[9] In respect thereof I express no opinion.

[210]I also find it unnecessary to probe the outer limits of what is reasonable. At the very least the reasonableness of a provision which flies directly in the face of an entrenched right would have to be cogently established. Furthermore a provision relating to so basic and so precious a right as the right to life itself (without which all other rights are nought), would have to be manifestly reasonable.[10]

[211]We were favoured with literally thousands of pages of material in support of and opposed to the death penalty, ranging from the religious, ethical, philosophical and ideological to the mathematical and statistical. Mr Von Lieres, SC, who argued the retentionist cause with great skill, in essence sought to bring the death sentence within the protection of section 33(1) on the strength of its deterrent and retributive value. The main judgment deals with these two considerations[11] and I merely wish to make a few additional observations regarding deterrence.[12]

[212]Nearly a quarter of a century ago the US Supreme Court decided the watershed case of Furman v Georgia.[13] In the course of a compendiously researched opinion, Marshall J reviewed virtually every scrap of Anglo-American evidence for and against capital punishment. In the course of his "long and tedious journey" (his own description) he made the crucial finding that 200 years of research had established

"that capital punishment serves no purpose that life imprisonment could not serve equally well."[14]

A decade later the Indian Supreme Court surveyed the international authorities for and against the death penalty in Bachan Singh's case.[15] Since then a great deal more has been written in support of both the abolitionist and the retentionist schools. But when all is said and done the answer is still what it was to Marshall J in Furman's case: the death penalty has no demonstrable penological value over and above that of long-term imprisonment. No empirical study, no statistical exercise and no theoretical analysis has been able to demonstrate that capital punishment has any deterrent force greater than that of a really heavy sentence of imprisonment. That is the ineluctable conclusion to be drawn from the mass of data so thoroughly canvassed in the written and oral arguments presented to us.

[213]Another equally ineluctable conclusion then is that capital punishment cannot be vindicated by the provisions of section 33(1) of the Constitution.[16] It simply cannot be reasonable to sanction judicial killing without knowing whether it has any marginal deterrent value.

[214]Having concluded that capital punishment is inconsistent with section 9 of the Constitution and cannot be saved by section 33(1), I find it unnecessary to consider its possible inconsistency with any other fundamental rights protected by Chapter Three. Vigilant protection of the right to human dignity (section 10) and of the immunity from cruel, inhuman or degrading punishment (section 11(2)) is undoubtedly essential. So too arbitrariness in the imposition of any sentence is fatally inconsistent with the demand for equality so emphatically mandated in sections 8(1) and (2). I do not want to be understood as disagreeing with the views expressed by any of my colleagues in regard to those rights and their importance; but in the hierarchy of values and fundamental rights guaranteed under chapter 3, I see them as ranking below the right to life. Indeed, they are subsumed by that most basic of rights. Inasmuch as capital punishment, by definition, strikes at the heart of the right to life, the debate need go no further.

  1. Constitution of The Republic of South Africa, Act No. 200 of 1993, as amended.
  2. As sanctioned by section 277(1) of the Criminal Procedure Act, 1977, as amended and the corresponding provisions of the former Transkei, Bophuthatswana and Venda.
  3. Section 4 of the Constitution describes it as "the supreme law of the Republic … [which] shall bind all legislative, executive and judicial organs of state at all levels of government." Section 7 makes Chapter 3, containing fundamental rights, binding on "all legislative and executive organs of state at all levels of government" and provides that it "shall apply to all law in force and all administrative decisions taken and acts performed during the period of operation of this Constitution."
  4. See Chapter 7 of the Constitution.
  5. Section 98(2) of the Constitution.
  6. See section 99(2)(c) of the Constitution which requires an appointee to be a person who "(i) is a judge of the Supreme Court or is qualified to be admitted as an advocate or attorney and has, for a cumulative period of at least 10 years after having so qualified, practised as an advocate or an attorney or lectured in law at a university; or (ii) is a person who, by reason of his or her training and experience, has expertise in the field of constitutional law relevant to the application of this Constitution and the law of the Republic."
  7. Per Kentridge AJ, in S v Zuma and Others 1995 (4) BCLR 401, 414 (SA). The "limitation clause" he refers to is section 33(1) of the Constitution.
  8. The questions may well be asked what the distinction is between reasonable and justifiable and whether one test can be met and not the other. Be that as it may, this case is so clear that the distinction, if any, between the two criteria need not be considered.
  9. Relating to the meaning and effect of the prohibition in section 33(1)(b) against a limitation which "negate[s] the essential content of the right in question."
  10. The reasonableness of other limitations on the right to life does not arise here. Suffice it to say that there must always be a proportionality between any right and the limitation thereof sought to be saved under section 33(1).
  11. Paragraphs 116 to 127 on deterrence and 129 to 131 on retribution.
  12. No more need be said about retribution than has been said by my colleagues. See also paragraph 203 of the judgment of Kentridge AJ and paragraph 185 of the judgment of Didcott J.
  13. 408 US 238 (1972).
  14. Id. at 359.
  15. Bachan Singh v State of Punjab (1980) 2 SCC 684, quoted in paragraph 76 of the main judgment.
  16. The provisions of section 277(1)(b), which sanction the death penalty for treason committed at a time when the Republic is in a state of war, do not arise for consideration in this case. That is a wholly different situation which requires independent evaluation.