Authored By: Khaliphani R Ndlovu
University of Johannesburg
INTRODUCTION
Across many jurisdictions that retained capital punishment, serious violent crimes continue to persist, raising concerns about whether capital punishment truly deters crime. The abolished death penalty continues to be a controversial topic in South Africa. Despite the landmark judgement of S v Makwanyane that abolished the death penalty and championed the right to life as inviolable, the public still calls for capital punishment, particularly due to the increasing rates of crime. This exposes a gap between public expectations, and the obligations of a state under constitutional dispensation. The writeup seeks to demonstrate that the reinstatement of the death penalty is not the real solution to high crime rates. The article will first examine the legality of the death penalty, followed by an analysis of its alleged deterrent effect. It will also analyse the underlying causes of crime, and briefly consider the negative side of the death penalty. Thereafter, public opinion will be explored, together with recidivism rates, and conclude with policy recommendations.
CONSTITUTIONALITY OF THE DEATH PENALTY
The Constitution of the Republic of South Africa enshrines the right to life as section 11 grants everyone the right to life.[1] This surely includes even the incarcerated as it was shown in Makwanyane. In this case, the court held that this type of right could not be limited in any way. The court declared the death penalty, an inhumane and cruel punishment, hence its unconstitutionality.[2] Similarly, the African Charter on Human’s Rights provides that a human being is ‘inviolable’ and no one may arbitrarily deprive one’s right to life and integrity.[3] The reinstatement of capital punishment may create further human rights concerns without addressing the actual causes of violent crime. State sanctioned killing on its own is a violation of constitutional rights and therefore cannot be a subject of consideration.
The methods of execution may vary in different jurisdictions. These may include beheading, lethal injection, electrocution just to mention a few.[4] Despite differences, each of these methods raise serious constitutional and human rights concerns such as the right to bodily integrity. In countries where these methods are legally recognised, there are reports of botched executions that prolong suffering of the criminal, leading to concerns of whether capital punishment regards human rights or not. For example, in electrocution, if botched, there may be some eruptions of flames on the person’s head, before death. Picturing all these methods, only shows that they are more of infringing on a person’s bodily integrity and dignity. As established in Makwanyane, punishment or correction must remain consistent with the constitutional values, in this case, the right to life and the right to human dignity.[5] A convicted person does not cease to be a human and the state has an obligation to respect the dignity of each person.
Moreover, the death penalty undermines the idea of transformative constitutionalism. South Africa’s constitutional dispensation is based on moving on from a past of injustice, racism and inequality, to a society characterized by freedom, human dignity and equality.[6] The preamble of the same constitution also talks about healing past injustices, and establishing a society grounded on human rights.[7] If there is an endorsement of punitive methods associated with the apartheid era, there may be an undermining of the constitutional project of reconciliation and social healing. For many South Africans who experienced apartheid, the reinstatement of the death penalty may be perceived as inconsistent with the underlying values of the constitution.
In the Ntuli case, the court held that prisons are no longer places of punishment, but of rehabilitation.[8] South Africa no longer has prisons, but correctional centres. The constitutional dispensation mandates the state to incarcerate, correct, rehabilitate and bring back to the society, of course, depending on the severity of the crime. The death penalty cannot survive in such a community, because it takes the country back to where it is trying to move away from. It is high time the justice system moves away from punitive measures that are rooted in colonialism.[9] Calling for the death penalty is the same as calling for racist laws and doctrines, as all emanate from the same source, colonialism. If South Africa wants to move on from apartheid, from colonialism, then it must also move on from colonial systems, systems that undermined one’s life and dignity, as the death penalty does.
INEFFECTIVENESS AS A DETERRANT
This part analyses, whether the death penalty if reinstated, would influence any change in the rates of crime in South Africa. During the apartheid government era, when the death penalty was in force, crime rates were still high.[10]So, if there were high levels of crime, during that ruthless, inhumane and racist era, there is no reason to believe they would be lower, in this democratic era. If people still committed serious crimes despite knowing very well that the justice system was biased towards them, they will most probably carry on, in this fair justice system. Instead of being deterred, criminals will just find new ways of committing crimes. Instead of getting lower rates of crime, there will be high rates of executions. An analysis shows that Nigeria despite retaining the death penalty, it still has high crime rates as the country experienced over 2266 killings in 2025.[11] If the death penalty is surely the cure, there must be low crime rates, but the statistics show that execution of criminals neither corrects, nor does it deter them. To get the real cure of crime, one needs to understand the real causes of crime.
THE ROOTS OF CRIME
“By the age of 17, 6 in every 10 South African children will undergo at least one adverse childhood experience…” says Dr Makhomisane. These experiences include physical, emotional and sexual abuse and they affect a child’s brain.[12] One of the underlying causes of crime has been proven to be childhood traumas. It is said that 23,5% of men who experienced abuse in their childhood, were later involved in physical conflicts in the community.[13] On top of that, another scholar notes that that dysfunctional relationships and misery often drive people into committing serious crimes, especially men.[14] Deep rooted anger in people, does play a role in the rates of crime experienced in South Africa. One may argue that criminals are not truly in control of themselves, but are controlled by internal issues that the death penalty does not address. In the Carmichele case, the offender had problems of sexual nature since the age of 10.[15]The death penalty will not eradicate these underlying causes. The state must concentrate on ensuring safe living conditions that are safe from violence and abuse for children. The death penalty is against the final product and not the source.
Former minister Sibusiso Ndebele was quoted implying that education reduces crime in people’s minds.[16] The Constitutional court further held that the statement was ‘rightly undisputed’.[17] Lack of education is another key driver of crime, hence the promotion of education in correctional centres. An educated mind is less likely to engage in criminal activities, unlike that of an uneducated person. In another case, the court held that education imparts goodness to the mind, body and soul.[18] The state should invest in effective education for all and then assess if there is no change in the society. Education should not only focus on preparing people for white collar jobs, but also on giving them practical skills to earn a living independently, especially in a country where there is limited employment. Education influences how a person thinks and can transform one’s way of life.
RISKS AND CONSEQUENCES
Brandon Garret’s in his book notes that about two hundred and fifty people have served serious sentences without committing them.[19]This is concerning because in countries with capital punishment, innocent people could be wrongly executed. It is important therefore to understand that because the justice system does err sometimes, irreversible punishments should not be used. Having such a justice system must be enough not to embark on punitive measures that have no reversal when need be. In the Kirk Bloodsworth case, one was convicted and sentenced to death for murder and rape whilst being innocent. After technological DNA tests, it was discovered that he had been wrongfully incarcerated, after serving 8 years in prison.[20] There was compensation but it could have been worse, had he been executed. This affirms the idea that the death penalty cannot be incorporated into the society, because it can have dire consequences.
OPPOSING VIEWS
However, advocates for the reinstatement of the death penalty have compelling points. Some crimes tempt people into thinking that the only deserved punishment is death. Rapists and murderers are often the ones regarded as deserving the death penalty. These offences are undeniably and absolutely grave, as they inflict a permanent physical, psychological and emotional harm. In Makwanyane, the attorney general remarked that the public does prefer the death penalty for a certain-crimes as it gives a sense of retribution.[21] The release of a rapist after short prison sentences can traumatize victims and leave the public feeling unsafe and disappointed by the justice system.
In discussions with various individuals, a recurring concern was that the bail and parole system contribute to public anger in circumstances of felonies. This is a reasonable argument, as there are instances in which an offender is given a warning or a bail, only to subsequently commit another offence of a similar nature.[22] It is on record that 36% of criminals offended again while being on parole. It is held that the parolees had served a combined average of only 43% of their sentences, before being released.[23] This shows that they were not yet rehabilitated, as they went out and fuelled violence communities. All of this leads to intensified calls for the reinstatement of the death penalty.
In S v Motloung, a parolee who had been charged of armed robbery committed another crime by shooting and murdering someone.[24] Such only exposes that there is poor rehabilitation in correctional centres, and worse, there is negligence from prison authorities that ends up costing people. When an offender commits a crime while being on parole or bail, it becomes an aggravating factor for the sentence. However, the state should not await a loss of life by the same offender before the sentence may be aggravated. Concerns are raised that early release of offenders may endanger communities, while prison officers focus on reducing prison populations.
There is a pending case, regarding Lehlogonolo Chauke, who was charged for 2 counts of attempted murder in 2023. While out on bail, in 2025, he attacked other people by firing a firearm, and is held in custody for attempted murder.[25] It is high time the bail system is reviewed as a lot of people have been attacked by convicts out on bail. This fuels the calls for the reinstatement of the death penalty further. Nonetheless, the Constitution grants the arrested the right to be treated in ways that are consistent with human dignity.[26] This excludes any type of punishment that takes away life.
RECIDIVISM RATES
In September 2025, the National Parole Review Summit convened at Kgosi Mampuru Correctional facility. It is when the South African Minister of Correctional Services warned that parole must not be used as a measure of managing overcrowding but for those who are no longer a threat to the public. He held that in the 2024-25 financial year, 209 parolees committed murder and 330 for rape.[27] These figures should serve as a warning to the state to implement appropriate measures to ensure that justice fulfils its purpose. The system cannot continue to function in its current form while ex-convicts remain a threat. Similarly, the United Democratic Movement Women’s Organisation also published, challenging the country’s parole system as 18 052 have been recorded to have re-offended while on parole, with 493 committing murder and 624 for rape.[28] This is not just a survey, but a manifestation of destroyed lives of citizens. So, what can be done to administer justice on the offenders of the law, besides execution?
REFORM-ORIENTED RECOMMENDATIONS
The South African Constitution establishes that the arrested has the right, “to be released from detention if the interests of justice permit”.[29] Looking at all the afore mentioned cases, it is clear that the bail and parole conditions should be made stricter. It is high time the state ceases to grant paroles or bails for people who are charged for serious crimes. The Criminal Procedure Act provides that bail may not be granted if there is a possibility of the accused influencing or intimidating the witnesses.[30] When a rapist is released on bail, they go back to the same community where people who must testify against him reside. Already that is an intimidation to the witnesses as they begin to live in fear and insecurity. Additionally, bail must not be granted if the release would disturb the public order. When a person charged for rape or murder is released on bail while the affected family is still coming to terms with the incident, it may lead to unrest within the community and understandably so. Some may seek revenge while others may experience heightened insecurity. This should be sufficient enough to justify continued detention, thereby precluding the granting of bail. Such an approach could allow the public to heal and gradually come to terms with the incident. The author therefore suggests that individuals accused of such serious offences should not in principle be granted bail.
The Criminal Law Amendment Act prescribes the minimum sentence for murder to be not less than 15 years, while a second offender is to be sentenced to not less than 20 years. As for rape, the sentence is to be not less than ten years, while a second offender is to be sentenced for not less than fifteen years.[31] These provisions seem to suggest that an individual who commits an offence once, is less culpable than one who offends multiple times. A sentence of 10 years for a rape offender is arguably insufficient to achieve meaningful rehabilitation. Likewise, a 15-year sentence for murder may not adequately reflect the gravity of the harm suffered, or provide victims with a sense that justice has been served. Judging by the number of people who re-offend even after serving their sentences, the author argues that custodial terms should be extended, as the current sentencing framework has failed to achieve its intended rehabilitative and deterrent objectives. The state should not wait for a criminal to re-offend before taking them as a serious perpetrator and imposing appropriately severe sentences. This article suggests that any individual who is charged with rape or murder should receive a minimum sentence of at least 20 years imprisonment.
CONCLUSION
Upon exploring the situation from multiple perspectives, this article demonstrated that the reinstatement of the death penalty will not solve the problem of high crime rates in South Africa. It has been shown that capital punishment is not consistent with the constitutional rights together with international provisions. Before analysing the real causes of crime, the article proved that the death penalty is ineffective as a deterrent, has negative effects and does not address the real source of crime. Looking at the rates of recidivism and public opinion, the author understood the perspective of those advocating for the death penalty. This is what led to a number of policy recommendations, as a way of closing the gap between the public perception and the law. Nevertheless, the arguments against the reinstatement of capital punishment remain more compelling.
BIBLIOGRAPHY
Cases
Carmichele v Minister of Safety and Security 2002 1 SACR 79 (CC).
Federation of Governing Bodies for South African schools v Member of the Executive Council for Education, Gauteng 2016 14 SA 546 (CC).
Hennie v Minister of Correctional Services 2015 JDR 0885 (GP) (unreported).
Minister of Justice and Correctional Services v Ntuli 2024 1 ALL SA 333 (SCA).
Minister of Justice and Correctional Services v Ntuli 2025 2 SACR 125 (CC).
S v Makwanyane 1995 2 SACR 391 (CC).
S v Motloung 2016 2 SACR 243 (SCA).
Legislation
The Constitution of the Republic of South Africa, 1996.
The Criminal Law Amendment Act 105 of 1997.
The Criminal Procedure Act 51 of 1977.
Secondary sources
Abrahams N, Jewkes R, “Effects of South African men’s having witnessed abuse of their mothers during childhood on their levels of violence in adulthood” (2005) American Journal of Public Health, 95(10), 1811-1816
Amnesty International, Death penalty, Methods of Execution used around the world, (2015)
Department of Correctional Services, Minister Groenewald Calls for Parole Review Centred on Public Safety and Victim Justice, 2025
Garret B, Convicting the Innocent: Where Criminal Prosecutions Go Wrong (Havard University Press 2011) 6
Gotsell N, DA demands parole reform, as 36% of parolees re-offend in some Cape Flats areas, fueling gang and drug violence, (2025) < https://www.da.org.za/2025/04/da-demands-parole-reform-as-36-of-parolees-re-offend-in-some-cape-flats-areas-fuelling-gang-and-drug-violence> accessed 14 May 2026
Kempen A, “Anger and Crime- is there a link?” (2020) Servamus Community-based Safety and Security Magazine 2
Magobotiti CD, “Historical reflections on the deterrent effect of the death penalty on capital crimes in South Africa: Lessons from 1917 – 1995” (2022) South African Journal for Military Studies 13
Makhomisane W, “Children Exposed to Trauma and Violence May have Their Adulthood Threatened” Mental Health Matters (2024) 1
National Prosecuting Authority, Limpopo musician facing multiple offences denied bail, 2025
Nkanjeni U, “Zuma’s arrest remains painful, says Malema” The Sowetan (27 July 2021) < https://www.sowetan.co.za/news/south-africa/2021-07-27-zumas-arrest-remains-painful-says-malema/> accessed 14 May 2026
Nortje W, “Decolonizing the South African Criminal Procedure: towards a critical approach to the use of Ubuntu in sentencing” Potchefstroom Electronic Law Journal (2024) 9
The Guardian Nigeria. What is the crime rate in Nigeria (2026) < https://guardian.ng/nigerian/what-is-the-crime-rate-in-nigeria/> accessed 14 May 2026
The Innocence Project, First DNA-Based Death Row Exoneree Kirk Bloodsworth Marks 25 Years of Freedom, (2018) < https://innocenceproject.org/news/kirk-bloodsworth-25years/> accessed 14 May 2026
United Democratic Movement, Reform parole, protect victims: UDEMWO’s call for action, (2025) < https://udm.org.za/post/reform-parole-protect-victims-udemwos-call-for-action> accessed 14 May 2026
International treaties and Conventions
African Charter on Human and People’s Rights (adopted 27 June, 1981, entered into force 21 October 1986) (1982) 21 ILM 58 (African Charter).
Reference(S):
[1] The Constitution of the Republic of South Africa, 1996.
[2] S v Makwanyane 1995 2 SACR 391 (CC).
[3] African Charter on Human and People’s Rights (adopted 27 June, 1981) art 4.
[4] Amnesty International, Death penalty, Methods of Execution used around the world, (2015).
[5] Makwanyane (n2) par 144.
[6] Section 7 of the constitution (n1).
[7] Preamble of the constitution (n1).
[8] Minister of Justice and Correctional Services v Ntuli 2024 1 ALL SA 333 (SCA) par 17.
[9] Windell Nortje, “Decolonizing the South African Criminal Procedure: towards a critical approach to the use of Ubuntu in sentencing” (2024) 9.
[10] Chris D Magobotiti, “Historical reflections on the deterrent effect of the death penalty on capital crimes in South Africa: Lessons from 1917 – 1995” (2022) SAJMS 13.
[11] The Guardian Nigeria. What is the crime rate in Nigeria (2026).
[12]Wisani Makhomisane, “Children Exposed to Trauma and Violence May have Their Adulthood Threatened” (2024) 1.
[13] Naeemah Abrahams, Rachel Jewkes, “Effects of South African men’s having witnessed abuse of their mothers during childhood on their levels of violence in adulthood” (2005) AJPH 1811.
[14] Annalise Kempen, “Anger and Crime- is there a link?” (2020) SARP 2.
[15] Carmichele v Minister of Safety and Security 2002 1 SACR 79 (CC) par 6.
[16] Hennie v Minister of Correctional Services 2015 JDR 0885 (GP) (unreported) par 40.
[17] Minister of Justice and Correctional Services v Ntuli 2025 2 SACR 125 (CC) par 43.
[18] Federation of Governing Bodies for South African schools v Member of the Executive Council for Education, Gauteng 2016 14 SA 546 (CC) par 1.
[19] Brandon Garret, Convicting the Innocent: Where Criminal Prosecutions Go Wrong (Havard University Press 2011) 6.
[20] The Innocence Project, First DNA-Based Death Row Exoneree Kirk Bloodsworth Marks 25 Years of Freedom, (2018).
[21] Makwanyane (n2) par 112.
[22] Carmichele (n15) par 23.
[23] Nichollas Gotsell, DA demands parole reform, as 36% of parolees re-offend in some Cape Flats areas, fueling gang and drug violence, 2025.
[24] S v Motloung 2016 2 SACR 243 (SCA) par 4.
[25] National Prosecuting Authority, Limpopo musician facing multiple offences denied bail, 2025.
[26] Section 35(2)(e) of the constitution (n1).
[27] Department of Correctional Services, Minister Groenewald Calls for Parole Review Centred on Public Safety and Victim Justice, 2025.
[28] United Democratic Movement, Reform parole, protect victims: UDEMWO’s call for action, 2025.
[29] Section 35(1)(f) of the constitution (n1).
[30] Section 60(4)(c) and (e) of the Criminal Procedure Act 1977.
[31] Section 51 of the Criminal Law Amendment Act 1997.
