S v Makwanyane and Another/O'Regan J

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S v Makwanyane and Another
Concurring judgment of Justice O'Regan by Kate O'Regan

[318]O'Regan J: I have read the judgment of Chaskalson P and I agree with the order that he proposes. However, although I agree that the death sentence constitutes a breach of section 11(2) of the Constitution that is not justified in terms of section 33, it is my view that it also constitutes a breach of section 9 (the right to life) and section 10 (the right to dignity) for the reasons that are given in this judgment.

[319]The crimes of which the two prisoners whose case has been referred to this court have been convicted were committed during a robbery from a bank security vehicle which was delivering monthly wages to the Coronation Hospital in Johannesburg. It appears from the judgment of the Appellate Division that the two prisoners were part of a group of robbers who had cold-bloodedly planned the robbery. All the robbers had been armed with AK47s and had opened fire on the security vehicle and the accompanying vehicle when they had driven into the hospital parking area. As a result of the shooting, two policemen and two bank security officials were shot dead.

[320]There is no doubt that the crimes committed by the two prisoners were abhorrent. 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. Does our constitution permit any convicted criminal, however heinous the crime, to be put to death by the government as punishment for that crime?

[321]The Constitution entrenches certain fundamental rights. Included amongst these are the right to life (section 9), the right to the respect for and protection of dignity (section 10) and the right not to be subjected to cruel, inhuman or degrading punishment (section 11(2)). The prisoners allege that the death penalty is in conflict with each of these. The language of each of these rights is broad and capable of different interpretations. How is this court to determine the content and scope of these rights? This question is at least partially answered by section 35(1) of the constitution which enjoins this court in interpreting the rights contained in the Constitution to 'promote the values which underlie an open and democratic society based on freedom and equality'.

[322]No-one could miss the significance of the hermeneutic standard set. The values urged upon the court are not those that have informed our past. Our history is one of repression not freedom, oligarchy not democracy, apartheid and prejudice not equality, clandestine not open government. As the epilogue to the constitution states:

'This 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.'

[323]In interpreting the rights enshrined in chapter 3, therefore, the court is directed to the future: to the ideal of a new society which is to be built on the common values which made a political transition possible in our country and which are the foundation of its new constitution. This is not to say that there is nothing from our past which should be retained. Of course this is not so. As Kentridge AJ described in the first judgment of this court (S v Zuma unreported judgment of this court, 5 April 1995), many of the rights entrenched in section 25 of the constitution concerning criminal justice are longstanding principles of our law, although eroded by statute and judicial decision. In interpreting the rights contained in section 25, those common law principles will be useful guides. But generally section 35(1) instructs us, in interpreting the constitution, to look forward not backward, to recognise the evils and injustices of the past and to avoid their repetition.

[324]Section 9 of the Constitution provides that:

'Every person shall have the right to life.'

This formulation of the right to life is not one which has been used in the constitutions of other countries or in international human rights conventions. In choosing this formulation, the drafters have specifically avoided either expressly preserving the death penalty, or expressly outlawing it. In addition, they have not used the language so common in other constitutions, which provides that no-one may be deprived of life arbitrarily or without due process of law.[1] To the extent that the formulation of the right is different from that adopted in other jurisdictions, their jurisprudence will be of less value. The question is thus left for us to determine whether this right, or any of the others enshrined in chapter 3, would prima facie prohibit the death penalty.

[325]In giving meaning to section 9, we must seek the purpose for which it was included in the Constitution.[2] This purposive or teleological approach to the interpretation of rights may at times require a generous meaning to be given to provisions of chapter 3 of the Constitution, and at other times a narrower or specific meaning. It is the responsibility of the courts, and ultimately this court, to develop fully the rights entrenched in the Constitution. But that will take time. Consequently any minimum content which is attributed to a right may in subsequent cases be expanded and developed.

[326]The right to life is, in one sense, antecedent to all the other rights in the Constitution. Without life in the sense of existence, it would not be possible to exercise rights or to be the bearer of them. But the right to life was included in the Constitution not simply to enshrine the right to existence. It is not life as mere organic matter that the Constitution cherishes, but the right to human life: the right to live as a human being, to be part of a broader community, to share in the experience of humanity. This concept of human life is at the centre of our constitutional values. The constitution seeks to establish a society where the individual value of each member of the community is recognised and treasured. The right to life is central to such a society.

[327]The right to life, thus understood, incorporates the right to dignity. So the rights to human dignity and life are entwined. The right to life is more than existence, it is a right to be treated as a human being with dignity: without dignity, human life is substantially diminished. Without life, there cannot be dignity. This was recognised by the Hungarian constitutional court in the case in which it considered the constitutionality of the death penalty:

'It is the untouchability and equality contained in the right to human dignity that results in man's right to life being a specific right to human life (over and above animals' and artificial subjects' right to being); on the other hand, dignity as a fundamental right does not have meaning for the individual if he or she is dead. … Human dignity is a naturally accompanying quality of human life.' (Decision No 23/1990, (X.31.) AB, George Feher translation)

[328]The right to dignity is enshrined in our Constitution in section 10:

'Every person shall have the right to respect for and protection of his or her dignity'.

The importance of dignity as a founding value of the new Constitution cannot be overemphasised. Recognising a right to dignity is an acknowledgement of the intrinsic worth of human beings: human beings are entitled to be treated as worthy of respect and concern.[3] This right therefore is the foundation of many of the other rights that are specifically entrenched in chapter 3. As Brennan J held when speaking of forms of cruel and unusual punishments in the context of the American constitution:

'The true significance of these punishments is that they treat members of the human race as non-humans, as objects to be toyed with and discarded. They are thus inconsistent with the fundamental premise of the Clause that even the vilest criminal remains a human being possessed of common human dignity.' (Furman v Georgia 408 US 238 at 272,3 (1972))

[329]Respect for the dignity of all human beings is particularly important in South Africa. 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.

[330]But human dignity is important to all democracies. In an aphorism coined by Ronald Dworkin 'Because we honour dignity, we demand democracy'.[4] Its importance was recognised too by Cory J in Kindler v Canada (1992) 6 CRR (2nd) 193 (SCC) at 237 in which he held that '[i]t is the dignity and importance of the individual which is the essence and the cornerstone of democratic government'.[5]

[331]The Attorney-General argued that the prisoners, and others like them, who are convicted of crimes for which the death penalty is currently competent, have forfeited their right to life and dignity. This cannot be correct. It is a fundamental premise of our constitution that the rights in chapter 3 are available to all South Africans no matter how atrocious their conduct. As Gubbay CJ held in Catholic Commission for Justice and Peace, Zimbabwe v Attorney-General, Zimbabwe 1993 (4) SA 239 (ZS) at 247 g–h:

'It cannot be doubted that prison walls do not keep out fundamental rights and protections. Prisoners are not, by mere reason of a conviction, denuded of all the rights they otherwise possess. No matter the magnitude of the crime, they are not reduced to non-persons. They retain all basic rights, save those inevitably removed from them by law, expressly or by implication.'

[332]It must be emphasised that the entrenchment of a Bill of Rights, enforceable by a judiciary, is designed, in part, to protect those who are the marginalised, the dispossessed and the outcasts of our society. They are the test of our commitment to a common humanity and cannot be excluded from it.

[333]Are the rights to life and dignity breached by the death penalty? The death sentence has been part of South African law since the colonial era. Not only has the law permitted the death sentence, but it has been regularly imposed by courts and carried out by the government. For many years, South Africa had the doubtful honour of being a world leader in the number of judicial executions carried out. Although there is some uncertainty about the statistics, it appears that between 1981 and 1990 approximately 1100 people were executed in South Africa, including the Transkei, Ciskei, Bophuthatswana and Venda.[6] The death sentence was imposed sometimes for crimes that were motivated by political ideals. In this way the death penalty came to be seen by some as part of the repressive machinery of the former government. Towards the end of the 1980s there were several major public campaigns to halt the execution of people who were perceived to be political opponents of the government. There is no doubt that these campaigns to prevent the execution of amongst others, the 'Sharpeville Six' and the 'Upington 26' were partly responsible for the government's decision in 1990 to suspend the implementation of sentences of death.

[334]The purpose of the death penalty is to kill convicted criminals. Its very purpose lies in the deprivation of existence. Its inevitable result is the denial of human life. It is hard to see how this methodical and deliberate destruction of life by the government can be anything other than a breach of the right to life.

[335]The implementation of the death penalty is also a denial of the individual's right to dignity. The execution of the death penalty was described by Professor Chris Barnard as follows:

'The man's spinal cord will rupture at the point where it enters the skull, electrochemical discharges will send his limbs flailing in a grotesque dance, eyes and tongue will start from the facial apertures under the assault of the rope and his bowels and bladder may simultaneously void themselves to soil the legs and drip on the floor…' (Rand Daily Mail 12 June 1978, cited in Appellants' heads)

This frank description of the execution process leaves little doubt that it is one which is destructive of human dignity. As Cory J held in Kindler v Canada (1992) 6 CRR (2nd) 193 (SCC) at 241:

'The death penalty not only deprives the prisoner of all vestiges of human dignity, it is the ultimate desecration of the individual as a human being. It is the annihilation of the very essence of human dignity.'

[336]But it is not only the manner of execution which is destructive of dignity, the circumstances in which convicted criminals await the execution of their sentence also constitutes a breach of dignity. These circumstances have been amply and aptly described by Gubbay CJ in Catholic Commission for Justice and Peace, Zimbabwe v Attorney-General, Zimbabwe 1993(4) SA 239 (ZS) at 268–9. Although little evidence has been placed before us to describe the experience of condemned prisoners in South Africa, it seems all too probable that it resembles the conditions described by Gubbay CJ. Indeed, the moratorium on the implementation of the death sentence described by Chaskalson P has probably aggravated the conditions of condemned prisoners considerably.

[337]Section 277 of the Criminal Procedure Act is therefore not only a breach of section 11(2) of the Constitution as held by Chaskalson P, but it is also a breach of section 9 (the right to life) and section 10 (the right to dignity). It is unnecessary and would be inappropriate to consider the further scope of these rights.

[338]The Constitution does recognise in section 33 that the rights it entrenches may be limited by law of general application if a law is reasonable and justifiable (and in some circumstances, necessary) in an open and democratic society based on freedom and equality. The infringement of the rights to life and dignity occasioned by section 277 of the Criminal Procedure Act needs to be measured against this test. In this regard, it should be noted that a law which infringes the right to dignity must be shown to be a reasonable, justifiable and necessary limitation, whereas a law which contains a limitation upon the right to life need only be shown to be reasonable and justifiable.

[339]The purpose of the bifurcated levels of justification need not detain us here. What is clear is that section 33 introduces different levels of scrutiny for laws which cause an infringement of rights. The requirement of reasonableness and justifiability which attaches to some of the section 33 rights clearly envisages a less stringent constitutional standard than does the requirement of necessity. In both cases, the enquiry concerns proportionality: to measure the purpose, effects and importance of the infringing legislation against the infringement caused. In addition, it will need to be shown that the ends sought by the legislation cannot be achieved sufficiently and realistically by other means which would be less destructive of entrenched rights. Where the constitutional standard is necessity, the considerations are similar, but the standard is more stringent.

[340]In determining whether the breaches of sections 9 and 10 are justified in terms of section 33, the relevant considerations are the same as those traversed by Chaskalson P at paragraphs 116–131 of his judgment albeit only in the context of a breach of section 11(2). The Attorney-General argued that the purpose of section 277 was the deterrence and prevention of crime, and retribution. Although deterrence is an important goal, as Chaskalson P has described, the deterrent effect of the death penalty remains unproven, perhaps unprovable.

[341]The question of retribution is a more complex one. I agree with Chaskalson P that in a democratic society retribution as a goal of punishment should not be given undue weight. Indeed, I am unconvinced that, where the punishment is held to constitute a breach of a fundamental right, retribution would ever, on its own, be a sufficient ground for justification. As Marshall J noted in Furman v Georgia 408 US 238 at 344–5 (1972):

'To preserve the integrity of the Eighth Amendment, the Court has consistently denigrated retribution as a permissible goal of punishment. It is undoubtedly correct that there is a demand for vengeance on the part of many persons in a community against one who is convicted of a particularly offensive act. At times a cry is heard that morality requires vengeance to evidence society's abhorrence of the act. But the Eighth Amendment is our insulation from our baser selves. The 'cruel and unusual' language limits the avenues through which vengeance can be channelled. Were this not so, the language would be empty and a return to the rack and other tortures would be possible in a given case.'

[342]It remains then to balance the purposes of section 277 with the infringement of sections 9 and 10 it causes. In this exercise, it is undeniable that sections 9 and 10 are rights which lie at the heart of our constitutional framework and that section 277 grievously infringes the ambit of these rights. They weigh very heavily in the scales of proportionality. On the other hand, while the goals of deterrence and prevention which are the purpose of section 277 are important legislative purposes, it has not been satisfactorily demonstrated that they could not be sufficiently and realistically achieved by other means. After a careful consideration of the nature of the rights, the extent of the infringement of those rights, and the purposes of section 277, I remain unpersuaded that section 277 is a constitutionally acceptable limitation upon the rights to life and dignity.

[343]Section 33(1)(b) provides that, in addition to being reasonable and justifiable (and where appropriate, necessary) a limitation upon a right should not negate the essential contents of the right in question. As section 277 does not meet the requirements of reasonableness, justifiability and necessity, it is not necessary and it would be inadvisable to consider whether it negates the essential contents of the rights in question.

[344]In conclusion, then, the death penalty is unconstitutional. It is a breach of the rights to life and dignity that are entrenched in sections 9 and 10 of our Constitution, as well as a breach of the prohibition of cruel, inhuman and degrading punishment contained in section 11(2). The new Constitution stands as a monument to this society's commitment to a future in which all human beings will be accorded equal dignity and respect. We cannot postpone giving effect to that commitment.

  1. The Universal Declaration of Human Rights contains an unconditional form of the right: article 3 provides that 'Everyone has the right to life, liberty and security of the person.' On the other hand, many other international rights instruments contain qualified protections of the right to life. Article 6(1) of the International Convention on Civil and Political Rights stipulates that '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.' Subsections 2–5 of article 6 then provide for minimum standards for countries which have not abolished the death penalty, and article 6(6) provides that: 'Nothing in this article shall be invoked to delay or prevent the abolition of capital punishment by any state party to the present covenant.' In addition in 1989 an optional protocol was adopted by the General Assembly of the United Nations, article 1 of which provides that 'No-one within the jurisdiction of state parties to the present optional protocol shall be executed'.

    Article 4 of the Banjul Charter on Human and People's Rights (African Charter) provides that 'Human beings are inviolable. 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. The protocol has been widely ratified. See Van Dijk and Van Hoof Theory and Practice of the European Convention on Human Rights 2nd ed (1990) pp 502–3.

  2. See S v Zuma (unreported judgment of the Constitutional Court, 5 April 1995) para 15 in which Kentridge AJ referred to the judgment of Dickson J in R v Big M Drug Mart Ltd (1985) 18 DLR (4th) 321 at 395–6 with approval. See also Law Society of British Columbia and another v Andrews and another (1989) 36 CRR 193 (SCC) at 224–225.
  3. See, for discussion of the right to dignity and the death penalty, the judgment of Solyom J in the Hungarian case concerning the constitutionality of the death penalty (Decision no 23/1990 (X.31.) AB, George Feher translation).
  4. See Ronald Dworkin Life's Dominion: An argument about abortion and euthanasia (1993) at 239.
  5. See also S v Ncube 1988 (2) SA 702 (ZS) at 717 B–D.
  6. See Murray 'Hangings in Southern Africa: The last ten years' (1990) 6 SAJHR 439–441; Keightley 'Hangings in Southern Africa: the last ten years' (1991) 7 SAJHR 347–349; 'The Death Penalty in SA: Statistics' (1989) 2 SACJ 251; Amnesty International 'When the State Kills… The Death Penalty vs Human Rights' (1989) 204–207.