S v Makwanyane and Another/Sachs J

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S v Makwanyane and Another
Concurring judgment of Justice Sachs by Albie Sachs

[345]Sachs J: I agree fully with the judgment of the President of the court, and wish merely to elaborate on two matters, both of emphasis rather than substance, which I feel merit further treatment.

[346]The first relates to the balance between the right to life and the right to dignity. The judgment appropriately regards the two rights as mutually re-enforcing, but places greater reliance on the prohibition against cruel, inhuman or degrading punishment than it does on the right to life. For reasons which I will outline, I think the starting-off point for an analysis of capital punishment should be the right to life.

[347]Secondly, I think it important to say something about the source of values which, in terms of section 35 of the Constitution, our interpretation is required to promote.

The Right to Life and Proportionality

[348]Decent people throughout the world are divided over which arouses the greatest horror: the thought of the State deliberately killing its citizens, or the idea of allowing cruel killers to co-exist with honest citizens. For some, the fact that we cold-bloodedly kill our own kind, taints the whole of our society and makes us all accomplices to the premeditated and solemn extinction of human life. For others, on the contrary, the disgrace is that we place a higher value on the life and dignity of the killer than on that of the victim. A third group prefer a purely pragmatic approach which emphasises not the moral issues, but the inordinate stress that capital punishment puts on the judicial process and, ultimately, on the Presidency, as well as the morbid passions it arouses in the public; from a purely practical point of view, they argue, capital punishment appears to offer an illusory solution to crime, and as such actually detracts from really effective measures to protect the public.

[349]We are not called upon to decide between these positions. They are essentially emotional, moral and pragmatic in character and will no doubt occupy the attention of the Constitutional Assembly. Our function is to interpret the text of the Constitution as it stands. Accordingly, whatever our personal views on this fraught subject might be, our response must be a purely legal one.

[350]This court is unlikely to get another case which is emotionally and philosophically more elusive, and textually more direct. Section 9 states: "Every person shall have the right to life." These unqualified and unadorned words are binding on the State (sections 4 and 7) and, on the face of it, outlaw capital punishment. Section 33 does allow for limitations on fundamental rights; yet, in my view, executing someone is not limiting that person's life, but extinguishing it.

[351]Life is different. In the vivid phrase used by Mahomed J in the course of argument, the right to life is not subject to incremental invasion. Life cannot be diminished for an hour, or a day, or 'for life'. While its enjoyment can be qualified, its existence cannot. Similarly, death is different. It is total and irreversible. Just, as there are no degrees of life, so there are no degrees of death (though, as we shall see, there were once degrees of severity in relation to how the sentence of death should be carried out). A level of arbitrariness and the possibilities of mistake that might be inescapable and therefore tolerable in relation to other forms of punishment, burst the parameters of constitutionality when they impact on the deliberate taking of life. The life of any human being is inevitably subject to the ultimate vagaries of the due processes of nature; our Constitution does not permit it to be qualified by the unavoidable caprices of the due processes of law.[1]

[352]In the case of other constitutional rights, proportionate balances can be struck between the exercise of the right and permissible derogations from it. In matters such as torture, where no derogations are allowed, thresholds of permissible and impermissible conduct can be established. When it comes to execution, however, there is no scope for proportionality, while the only relevant threshold is, tragically, that to eternity.

[353]Even if one applies an objective approach in relation to the enjoyment of the right to life, namely, that the State is under a duty to create conditions to enable all persons to enjoy the right, in my view this cannot mean that the State's function can be extended to encompass complete, intentional and avoidable obliteration of any person's subjective right. Subject to further argument on the matter, my initial view is that the objective approach can be used to qualify the subjective enjoyment of the right, but not to eliminate it completely, and certainly not to eliminate the subject. It can provide the basis for limiting enjoyment of other subjective rights—to dignity, personal freedom, movement—for a period, or in relation to a concrete situation, or in respect of a physical space, if the requirements of section 33 are met. Yet, life by its very nature cannot be restricted, qualified, abridged, limited or derogated from in the same way. You are either alive or dead.

[354]In my view, section 33 permits limitations on rights, not their extinction. Our Constitution in this sense is different from those that expressly authorise deprivation of life if due process of law is followed, or those that prohibit the arbitrary taking of life. The unqualified statement that 'every person has the right to life', in effect outlaws capital punishment. Instead of establishing a constitutional framework within which the State may deprive citizens of their lives, as it could have done, our Constitution commits the State to affirming and protecting life. Because section 33 is not concerned with creating circumstances in which the right of any person may be disregarded altogether, nor with establishing exceptions which qualify the nature of the right itself, or exclude its operation, it cannot be invoked as an authorization for capital punishment.

[355]A full conceptualization of the right to life will have to await examination of a multitude of complex issues, each of which has its own contextual setting and particularities. In contrast to capital punishment, there are circumstances relating to the right to life where proportionality could well play an important role in balancing out competing interests. Whether or not section 33 would be applicable in each case, or whether proportionality will enter into the definition of the ambit of the right itself, or whether it relates simply to competition between two or more people to exercise the right when it is under immediate threat, need not be decided here. Thus, the German Constitutional Court has relied heavily on the principle of proportionality in relation to the question of when person-hood and legally protected life begin and, in particular of how to balance foetal rights as against the rights of the woman concerned.[2] Force used by the State in cases of self-defence or dealing with hostage-takers or mutineers, must be proportionate to the danger apprehended; the issue arises because two or more persons compete for the right to life; for the one to live, the other must die. The imminence of danger is fundamental: to kill an assailant or hostage-taker or prisoner of war after he or she has been disarmed, is regarded as murder.

[356]Executing a trussed human being long after the violence has ended, totally lacks proportionality in relation to the use of force, and does not fall within the principles of self-defence. From one point of view capital punishment, unless cruelly performed, is a contradiction in terms. The 'capital' part ends rather than expresses the 'punishment', in the sense that the condemned person is eliminated, not punished. A living being held for years in prison is punished; a corpse cannot be punished, only mutilated. Thus, execution ceases to be a punishment of a human being in terms of the Constitution, and becomes instead the obliteration of a sub-human from the purview of the Constitution.

[357]At its core, constitutionalism is about the protection and development of rights, not their extinction. In the absence of the clearest contextual indications that the framers of the Constitution intended that the State's sovereignty should be so extended as to allow it deliberately to take of the life of its citizens, Section 9 should be read to mean exactly what it says: Every person shall have the right to life. If not, the killer unwittingly achieves a final and perverse moral victory by making the state a killer too, thus reducing social abhorrence at the conscious extinction of human beings.

The Source of Values

[358]The second issue that caused me special concern was the source of the values that we are to apply in assessing whether or not capital punishment is a cruel, inhuman or degrading punishment as constitutionally understood. The matter was raised in an amicus brief and argued orally before us by Ms. Davids on behalf of the Black Advocates Forum.

[359]Her main contention was that we should not pronounce on the subject of capital punishment until we had been apprised by sociological analysis of the relevant expectations, sensitivities and interests of society as a whole. In the past, she stated, the all-white minority had imposed Eurocentric values on the majority, and an all-white judiciary had taken cognisance merely of the interests of white society. Now, for the first time, she added, we had the opportunity to nurture an open and democratic society and to have due regard to an emerging national consensus on values to be upheld in relation to punishment.

[360]Many of the points she made had a political rather than a legal character, and as such should have been directed to the Constitutional Assembly rather than to the Constitutional Court. Nevertheless, much of her argument has a bearing on the way this court sees its functions, and deserves the courtesy of a reply.

[361]To begin with, I wish firmly to express my agreement with the need to take account of the traditions, beliefs and values of all sectors of South African society when developing our jurisprudence.

[362]In broad terms, the function given to this court by the Constitution is to articulate the fundamental sense of justice and right shared by the whole nation as expressed in the text of the Constitution. The Constitution was the first public document of legal force in South African history to emerge from an inclusive process in which the overwhelming majority were represented. Reference in the Constitution to the role of public international law [sections 35(1) and 231] underlines our common adherence to internationally accepted principles. Whatever the status of earlier legislation and jurisprudence may be, the Constitution speaks for the whole of society and not just one section.

[363]The preamble, postamble and the principles of freedom and equality espoused in sections 8, 33 and 35 of the Constitution, require such an amplitude of vision. The principle of inclusivity shines through the language provisions in section 3, and underlies the provisions which led to the adoption of the new flag and anthem, and the selection of public holidays.

[364]The secure and progressive development of our legal system demands that it draw the best from all the streams of justice in our country. This would include benefiting from the learning of those judges who in the previous era managed to articulate a sense of justice that transcended the limits of race, as well as acknowledging the challenging writings of academics such as the late Dr. Barend van Niekerk, who bravely broke the taboos on criticism of the legal system.[3]

[365]Above all, however, it means giving long overdue recognition to African law and legal thinking as a source of legal ideas, values and practice. We cannot, unfortunately, extend the equality principle backwards in time to remove the humiliations and indignities suffered by past generations, but we can restore dignity to ideas and values that have long been suppressed or marginalized.

[366]Redressing the balance in a conceptually sound, methodologically secure and functionally efficient way, will be far from easy. Extensive research and public debate will be required. Legislation will play a key role; indeed, the Constitution expressly acknowledges situations where legal pluralism based on religion can be recognised [14(3)], and where indigenous law can be applied (s.181). Constitutional Principle XIII declares that "…… Indigenous law, like common law, shall be recognised and applied by the courts, subject to the fundamental rights contained in the Constitution and to legislation dealing specifically therewith".

[367]Yet the issue raised by Ms Davids goes beyond the question of achieving recognition of different systems of personal law.

[368]In interpreting Chapter 3 of the Constitution, which deals with fundamental rights, all courts must promote the values of an open and democratic society based on freedom and equality [s.35(1)]. One of the values of an open and democratic society is precisely that the values of all sections of society must be taken into account and given due weight when matters of public import are being decided. Ms. David's concern is that when it comes to interpreting Chapter 3, and in particular, the concept of punishment, the values of only one section of the community are taken into account.

[369]Paul Sieghart points out that "the hallmarks of a democratic society are pluralism, tolerance and broad-mindedness. Although individual interests must on occasion be subordinated to those of a group, democracy does not mean that the views of a majority must always prevail: a balance must be achieved which ensures the fair and proper treatment of minorities and avoids any abuse of a dominant position".[4] The principle that cognisance must be taken of minority opinions should apply with at least equal force to majority opinions; if one of the functions of the Constitution is to protect unpopular minorities from abuse, another must surely be to rescue the majority from marginalization.

[370]In a democratic society such as we are trying to establish, this is primarily the task of Parliament, where the will of the majority can be directly expressed within the framework of a system of fundamental rights. Our function as members of this court—as I see it—is, when interpreting the Constitution, to pay due regard to the values of all sections of society, and not to confine ourselves to the values of one portion only, however, exalted or subordinate it might have been in the past.

[371]It is a distressing fact that our law reports and legal textbooks contain few references to African sources as part of the general law of the country. That is no reason for this court to continue to ignore the legal institutions and values of a very large part of the population, moreover, of that section that suffered the most violations of fundamental rights under previous legal regimes, and that perhaps has the most to hope for from the new constitutional order.

[372]Appropriate source material is limited and any conclusions that individual members of this court might wish to offer would inevitably have to be tentative rather than definitive. We would certainly require much fuller research and argument than we had in the present case. The paucity of materials, however, is a reason for putting the issue on the agenda, not a justification for postponing it.

[373]The evolution of core values in all sections of the community is particularly relevant to the characterization of what at any moment are regarded as cruel, inhuman and degrading punishments [s.11(2)]. 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.

[374]I must stress that what follows relates to matters not properly canvassed in argument. The statements I make should not be regarded as an attempt on my part to 'lay down the law' on subjects that might well be controversial. Rather, the materials are presented for their possible relevance to the search for core and enduring values consistent with the text and spirit of the Constitution. It is unfortunate they were not placed before us to enable their reliability and their merits to be debated; they are intended to indicate that, speaking for myself, these are the kinds of scholarly sources which I would have regarded as helpful in determining questions such as the present one, if Ms. Davids had presented them to us rather than complain about their absence. I might add that there is nothing to indicate that had these sources been properly presented and subjected to the rigorous analysis which our judicial procedure calls for, the decision of this Court would have been different. There does not appear to be any foundation for her plea that we postpone the matter. On the contrary, the materials that I will refer to point to a source of values entirely consistent with the overall thrust of the President's judgment, and, in particular, with his reference to the constitutionally acknowledged principle of ubuntu.[5]

[375]Our libraries contain a large number of studies by African and other scholars of repute, which delineate in considerable detail how disputes were resolved and punishments meted out in traditional African society. There are a number of references to capital punishment and I can only repeat that it is unfortunate that their import was never canvassed in the present matter.

[376]In the first place, the sources indicate that it is necessary to acknowledge that systems of law enforcement based on rational procedures were well entrenched in traditional society. In his classic study of the Tsonga-speaking people, Henri Junod observes that "… the Bantus possess a strong sense of justice. They believe in social order and in the observance of the laws, and, although these laws were not written, they are universal and perfectly well known".[6] The Cape Law Journal, in a long and admiring report on what it refers to as a Kafir Law Suit, declares that in a typical trial 'the Socratic method of debate appears in all its perfection.'[7] John Henderson Soga points out that offences were considered to be against the community or tribe rather than the individual, and punishment of a constructive or corrective nature was administered for disturbing the balance of tribal life.[8]

[377]More directly for our purposes, the materials suggest that amongst the Cape Nguni, the death penalty was practically confined to cases of suspected witchcraft, and was normally spontaneously carried out after accusation by the diviners.[9] Soga says that the death penalty was never imposed, the reasoning being as follows: 'Why sacrifice a second life for one already lost?'[10] Professor Z.K. Mathews is in broad agreement.[11] The Cape Law Journal notes that summary executions were usually inflicted for assault on the wives of chiefs or aggravated cases of witchcraft, but otherwise the death sentence 'seldom followed even murder, when committed without the aid of supernatural powers; and as banishment, imprisonment and corporal punishment are all unknown in (African) jurisprudence, the property of the people constitutes the great fund out of which debts of justice are paid'.[12]

[378]Similar approaches were apparently followed in other African communities. The Sotho King Moshoeshoe was said to be well known for his opposition to capital punishment, even for supposed witchcraft,[13] as was Montshiwa during his long reign as King of the Barolong.[14] The absence of capital punishment among the Zulu people apparently angered Shepstone, Lieutenant Governor of Natal. Donald Morris writes as follows:


'Hearken to Shepstone on November 25, 1850, substituting capital punishment for the native system of cattle fines in the case of murder:


"… Know ye all … a man's life has no price : no cattle can pay for it. He who intentionally kills another, whether for Witchcraft or otherwise, Shall die himself."'[15]

[381]Thus, if these sources are reliable, it would appear that the relatively well-developed judicial processes of indigenous societies did not in general encompass capital punishment for murder. Such executions as took place were the frenzied, extra-judicial killings of supposed witches, a spontaneous and irrational form of crowd behaviour that has unfortunately continued to this day in the form of necklacing and witch-burning. In addition, punishments by military leaders in terms of military discipline were frequently of the harshest kind and accounted for the lives of many persons. Yet, the sources referred to above indicate that, where judicial procedures were followed, capital punishment was in general not applied as a punishment for murder.

[382]In seeking the kind of values which should inform our broad approach to interpreting the Constitution, I have little doubt as to which of these three contrasted aspects of tradition we should follow and which we should reject. The rational and humane adjudicatory approach is entirely consistent with and reenforcing of the fundamental rights enshrined in our Constitution; the exorcist and militarist concepts are not.

[383]We do not automatically invoke each and every aspect of traditional law as a source of values, just as we do not rely on all features of the common law. Thus, we reject the once powerful common law traditions associated with patriarchy and the subordination of servants to masters, which are inconsistent with freedom and equality, and we uphold and develop those many aspects of the common law which feed into and enrich the fundamental rights enshrined in the Constitution. I am sure that there are many aspects and values of traditional African law which will also have to be discarded or developed in order to ensure compatibility with the principles of the new constitutional order.

[384]It is instructive to look at the evolution of values in the colonial settlement as well as in African society. In the Dutch settlement, as yet unaffected by the changes sweeping Europe, torture was used until the end of the 18th century as an integral part of the judicial process.[16] Persons were not only condemned to death, the judges specified in detail gruesome modes of execution designed to produce maximum pain and greatest indignity over the longest period of time. The concept of a dignified execution was seen as a contradiction in terms. The public was invited to witness the lingering death, the mutilation and the turning of human beings into carrion for the birds. This is logical. If executions are to deter, they should receive the maximum publicity, and the killers should undergo an agony equal to that to which they subjected their victims.

[385]Yet the British colonial administration that took over at the time of the Napoleonic wars, adopted a different position. Torture was abolished. The multiple degrees of severity of capital punishment were replaced by the single relatively swift mode of hanging. The reason for this was that torture and cruel modes of execution were regarded as barbaric in themselves and degrading to the society which practised them. The incumbent judges protested that whatever might have been appropriate in Britain, in the conditions of the Cape to rely merely on hangings, corporal punishment and prison was to invite slave uprisings and mayhem. The public executioner was so distressed that he hanged himself. All this is a matter of record.[17]

[386]Two centuries have passed since then, and it would not be surprising if the framers of the Constitution felt that a further qualitative evolution had taken place. Current practices in the Southern African region as a whole with regard to capital punishment, testify to such an evolution. Information placed before this court[18] showed that of six countries sharing a frontier with South Africa, only one has carried out executions in recent years (Zimbabwe). The last judicial execution in Lesotho was in 1984, in Swaziland in 1983 and in Botswana in 1986, although capital punishment still remains on the statute books and people have in fact been sentenced to death in these countries. Mozambique and Namibia both expressly outlaw capital punishment in their constitutions.

[387]The positions adopted by the framers of the Mozambican and Namibian constitutions were not apparently based on bending the knee to foreign ideas, as was implicit in Ms. David's contention, but rather on memories of massacres and martyrdom in their own countries. As Churchill is reputed to have said, the grass never grows green under the gallows.[19] Germany after Nazism, Italy after fascism, and Portugal, Peru, Nicaragua, Brazil, Argentina, the Philippines and Spain all abolished capital punishment for peacetime offences after emerging from periods of severe repression. They did so mostly through constitutional provisions.[20]

[388]It is not unreasonable to think that similar considerations influenced the framers of our Constitution as well. In avoiding any direct or indirect reference to the death sentence, they were able to pay due regard to the fact that one of this country's greatest assets was the passion for freedom, democracy and human rights amongst the generation of persons who fought hardest against injustice in the past. Included in this was a deep respect, amounting to veneration, for life. The emerging nation could squander this precious asset at its peril. The framers could not have been unaware of the fact that the time to guard against future repression was when memories of past injustice and pain were still fresh. If they chose sweeping language in favour of life, this could well in part have been because of a realisation that this was the moment to remove any temptation in coming years to attempt to solve grave social and political problems by means of executing opponents.

[389]Historically, constitutionalism was a product of the age of enlightenment. It was associated with the overthrow of arbitrary power and the attempt to ensure that government functioned according to established principles and processes and in the light of enduring values. It came together with the abolition of torture and the opening up of dungeons. It based itself on the twin propositions that all persons had certain inherent rights that came with their humanity, and that no one had a God-given right to rule over others.

[390]The second great wave of constitutionalism after World War II, was also a reaction to gross abuse of power, institutionalised inhumanity and organised disrespect for life. Human rights were not merely declared to exist: against the background of genocide and crimes against humanity committed in the name of a racial ideology linked to state sovereignty, firm constitutional limits were placed on state power. In particular, the more that life had been cheapened and the human personality disregarded, the greater the entrenchment of the rights to life and dignity.

[391]Constitutionalism in our country also arrives simultaneously with the achievement of equality and freedom, and of openness, accommodation and tolerance. When reviewing the past, the framers of our Constitution rejected not only the laws and practices that imposed domination and kept people apart, but those that prevented free discourse and rational debate, and those that brutalised us as people and diminished our respect for life.

[392]Accordingly, the idealism that we uphold with this judgment is to be found not in the minds of the judges, but in both the explicit text of the Constitution itself, and the values it enshrines. I have no doubt that even if, as the President's judgment suggests, the framers subjectively intended to keep the issue open for determination by this court, they effectively closed the door by the language they used and the values they required us to uphold. It is difficult to see how they could have done otherwise. In a founding document dealing with fundamental rights, you either authorize the death sentence or you do not. In my view, the values expressed by section 9 are conclusive of the matter. Everyone, including the most abominable of human beings, has the right to life, and capital punishment is therefore unconstitutional.

  1. The issue, of course, is whether inescapable caprice prevents the process from being 'due' when the consequences are so drastic.
  2. 88 BVerfGE 203 (2nd Abortion Case).
  3. Cf. 1969 SALJ 455 and 1970 SALJ 60; S v Van Niekerk 1970 (3) SA 655.
  4. The International Law of Human Rights, Oxford 1983, reprinted 1992, at p. 93 referring to James, Young and Webster v U.K. Judgment of the European Court of Human Rights on 13/08/81.
  5. See the postamble, also referred to as the epilogue or afterword, where reference is made to the "need for ubuntu".
  6. Junod, Henri A—The Life of a South African Tribe 2nd Edition published Macmillan 1927 at p. 436.
  7. 1889 CLJ 87—Extracts from Maclean's Handbook.
  8. John Henderson Soga—The Ama-Xosa: Life and Customs, published Lovedale Press, South Africa; London, Kegan Paul, at p. 46.
  9. Hammond-Tooke D: The 'other side' of frontier history: a model of Cape Nguni political process, in African Societies in Southern Africa ed. Leonard Thompson, London 1969, at p. 255.
  10. Soga supra at p. 46.
  11. Bantu Law and Western Civilisation in South Africa—a study in the clash of cultures (1934 Yale University MA Thesis).
  12. 1889 CLJ 89, 1890 CLJ 23 at 34.
  13. J M Orpen: History of the Basutus of South Africa, Cape Argus 1857, Reprinted UCT 1955.
  14. Molema SM: Montshiwa (1815–1896) Barolong Chief and Patriot (published C. Struik 1966).
  15. Donald R Morris: The washing of the Spears—A History of the Rise of the Zulu Nation under Shaka and its Fall in the Zulu war of 1879. Jonathan Cape 1965, Random House 1995, p. 174–5.
  16. C. Graham Botha 1915 SALJ 319. More generally, see footnote 15. These matters were referred to but not developed in Applicants' written argument.
  17. Sir John Barrow, FRS: Travels into the Interior of Southern Africa Volume 2 p. 138–9. London 1806 quoted in C. Graham Botha 1915 SALJ 322, also by E. Kahn, the Death Penalty 1970 THRHR, p. 110. Letter by British Commander to Cape Court of Justice quoted by C. Graham Botha 1913 SALJ 294; reply by Court quoted in 1915 SALJ 327; see also, V. de Kock—Those in Bondage, an account of the life of the slave at the Cape, George Allen and Unwin, London 1950 p 158–60. For punishments generally see de V Roos 1897 CLJ 11–23, C.H. van Zyl 1907 SALJ 352, 370; 1908 SALJ 4, 264.
  18. Applicants' heads of argument, taken from When the State Kills—The Death Penalty v. Human Rights, Amnesty International, London 1989.
  19. This is confirmed by South African experience ranging from Slachters Nek to the Cape Rebels to the 1922 Strike leaders to Vuyisile Mini and Solomon Mahlangu in recent times.
  20. Amnesty International op cit. There has also been a marked move away from capital punishment in the countries of Eastern Europe after the ending of authoritarian one-party rule there.