Authored By: Mbuso Mahlangu
University Of Free State
Introduction
In this matter supremacy of the Constitution Of South Africa plays a significant role, since it is the highest law of the land meaning any law inconsistent with it shall be invalidated. The interpretation of constitutional principles is the centre of arguments between both perspectives in this matter. Provisions such as freedom, dignity, and right to life are considered following a contradictory provision by the Criminal procedure Act provision. The court in this particular matter deals with section 277(1) of the CPA against the Constitution, in which it makes provision for punishment of wrongdoers in our communities and country. The provision provides that an appropriate sentence for homicide is a death penalty. Consistency of the CPA provision is in question. The case law is a cornerstone and significant to our law as it forms the basis to fundamental rights issue. As, it became the first initial judgement in South Africa to deal with the death penalty and human rights. The judgement subsequently came at the right time when opinions circulated South Africa about death penalty being consistent or rather inconsistent to provision within the Constitution.
Facts
The parties involved in this matter are Themba Makwanyane and Muntu Mchunu. Both parties are co-accused in this matter convicted for robbery, homicide, and attempted homicide. In August on the 31st of 1990, parties convicted robbed of a vehicle which was of the bank transporting wages to the Coronation Hospital situated in Johannesburg. During the cause of the robbery police officers were killed following an assault by AK-47 weapons used to fire rounds at the police car throughout the heist. While that unfolded two persons in the bank vehicle died and one suffered bodily grievous harm. Action took place at the Witwatersrand at the court of first instance is the Local Division of The Supreme Court, the defendants found were therefore guilty of murder by the court. The constitutional court was left to establish if the penalty imposed was valid according to constitutional principles by the Local Division Of The Supreme Court. The question at hand is whether death sentence as imposed is it constitutionally applicable, and the court of first instance imposed death penalty on the accused parties. Which was according to section 277(1) of the CPA while the local court stated that the penalty is in line with principles of the constitutions.
While the court of first instance found the two accused guilty of murder, and condemned them to death. The appellant division declined both their appeals against the sentence and conviction. The case was referred to the Constitutional Court following the dismissal by Appellate Division. The highest court was faced with a question of whether death penalty valid according to the provisions within the Constitution. However, At the time of the offence the interim Constitution of 193 was still in effect. Then section 9 which prohibits against all forms of discrimination, and section 10 which protects persons and ensure they have the right to life, also the right to inherent worth which is dignity. Section 111(2) was also considered which hindered humiliating punishment or treatment either emotional or physical torture, and prohibited cruel behaviour. On that note, The Court stated that “South Africa has rising high numbers of murder across the world, and that death penalty has been implied a couple of times in the country and other countries out of Africa. In addition, it noted that the power of whether the death penalty must be implied or not will be through trying the matter in court, and considered that the statute did not clearly specify at which moment the death penalty should be applied. Until a decision was made, the applicants were still facing the death penalty. The Court acknowledged the “death row phenomenon,” which refers to “the long period of stagnation between execution and sentencing that convicted inmates endure while they await execution.
Issue
Section 277(1)(a) of the CPA is in question which it was evaluated whether it is valid according to the Constitution in South Africa. The provision declares death penalty is procedurally fair sentence for homicide. Counsel for the accused was invited by the Appellate Division to consider whether this provision was consistent with the Republic of South Africa Constitution, 1993, which had come into force. Subsequent to the conviction and sentence by the trial court. He argued that it was not, contending that it was in conflict with the provisions of sections 9 and 11(2) of the Constitution. To sum up, two issues were in question of the Constitutional Court which was the constitutionality of section 277(1)(a) of the CPA and what is actually meant by section 241(8) in the Constitution.
ARGUMENTS
Counsel for the convicted parties outlined and expressly argued against the death penalty sentence. Firstly, the counsel argued that the penalty imposed an inhuman, degrading and cruel punishment to humanity, Secondly, the counsel further stated that death penalty infringes on human dignity and the right to life which makes the penalty to be inconsistent with such provisions as in the Constitution. Third, the counsel expressed that the death sentence as penalty shall not be corrected or enforced in a matter dealing with error before the court of law in such a way which is not arbitrary. Furthermore, the penalty negates the fundamental contents within the right to life and many other rights which culminate from it. The provision of the death penalty sentence is unconstitutional and inconsistent due to its vague wording and the courts’ unlimited discretion to apply the provision. Furthermore, the unequal application of section 277 violates the equality right and the right to be equally protected by the law and is discriminatory violation section 9.
The State argued that the death sentence protects society on possible future offences by rendering the perpetrator permanently incapacitated. Furthermore, the repondent argued that the death sentence has a retributive function. Meaning that It was further stated that such justice is required where a perpetrator of the most serious crimes like murder in particular forfeits their own life. He claimed that the penalty of death is not inhuman, degraing or inhuman in the sense of section 11(2) enshrined in Constitution. Because, towards violent crimes in societies it satisfies society’s need for sufficient retribution for heinous offenses, and is viewed as an appicable and legitimate form to punish by the society of South African. The respondent relied on retribution, deterrence, prevention, According to the State, the death sentence deters violent crimes. It was contended that eliminating the penalty may convey to prospective criminals that the state lacks commitment to fighting crime The state contended that in a country like ours with a rising rate of violent crime, the death sentence is an essential deterrent.
Reasoning and Analysis
Section 277(1)(a) of the CPA that makes provision and establishes death to be a suitable punishment for murder was directly evaluated by the Constitutional Court. The main question was whether the penalty could simultaneously exist along with the interim Constitution of the year 1993, particularly with regards to constitutional right to dignity, freedom, and life. Furthermore, while it is said to be harsh, inhuman, or humiliating punishment. The Court firstly made an interpretation of the Rights in section 2 of the Constitution of South Africa through a purposeful manner not by isolation. Based on the the ruling section 9 a right to life in the interim constitution made provision for all human beings not to get killed intentionally by the government through a planned act systematically by sanctioned execution of the State. Then, In accordance with section 11 of the interim constitution the Court made an evaluation on adapting standards of decency. The court did so by citing the Supreme Court of Zimbabwe, which it stated that the clause embodies idealistic, and broad ideas which are decent based on dignity and humanity.
The death sentence was evaluated in light of the fundamental principles of freedom, equality, and dignity enshrined in the Constitution rather than in light of pre-constitutional custom. The limitation clause section 33 was also considered by the Court. The State had to demonstrate that any limitation on rights was reasonable, and justifiable in an open and democratic society. Although, the Attorney General was responsible for proving this, but failed to do so, and the court upheld that. Then, the court applied Foreign and international laws, and relied on Furman v Georgia to support its claim that discretion whom are unguided leads to arbitrary outcomes. It noted that forced or unguided death sentence leads to the violation of due process which was further highlighted by Woodson, Roberts, and Lockett. Additionally included was Bachan Singh and the Indian Law Commission, who acknowledged the global discussion but concluded that the empirical argument of deterrence was not supported.
The court said that it is a significant and fundamental basis that our constitutional right are immediately available to everyone in South Africa irrespective of their crimes. It was believed that state execution dehumanised perpetrators along with those who carried it out. However, the Court acknowledged that these are justifiable objectives, and it did not find any evidence that death was a more effective deterrent than life in prison. It also maintained that correction and prevention must take precedence over retaliation. The Court weighed constitutional rights against opinions of the society in order to reduce crime. it maintained that our state must lead through upholding dignity and human life. Apart from acknowledging crime rate and the governments obligation to safeguard everyone.
Ratio
The Court illustrated that the clause making provision for the death penalty for murder was unconstitutional. Two, right to dignity, life and Section 11(2) a right which prohibited inhuman, degrading, and cruel punishment were all said to been violated by the imposed penalty. Three, according to the Court, the limitation was not justifiable and reasonable in an open and democratic society. However, the appeals by applicants against their conviction had already been rejected by the Appellate Division. The Constitutional Court’s decision only addressed punishment. The Court ruled that the penalty should not be upheld, yet it did not actually impose a penalty.
The Court ruled that the CPA section 277(1)(a), which provides that death penalty is a penalty for murder, was unconstitutional. The order by court had the following effect prohibiting any organs, and the state from the execution of persons whom their appeals on the sentence of death were declined. Until their sentences are overturned in compliance with the law and replaced with suitable and legal penalties, such individuals will continue to be detained under the terms of their sentences. Lastly, the Court left the determination of the “proper sentence to be imposed on the accused” to the *Appellate Division*. All other pending capital cases postponed pending this decision could “now be dealt with in accordance with the order made in this case.
The imposed death penalty as a perpetrators punishment was rendered inconsistent with the rights dignity, and life. Also, freedom from degrading, inhuman, and cruel punishment guaranteed by the Constitution and are not justifiable the limitation clause. As a result, the Criminal Procedure provision, which makes provision for the death penalty, is unconstitutional. The ruling that death penalty is unconstitutional and courts being prohibited from imposing a death sentence must be throughout adhered to by other South African courts. Any law that purports to authorise death sentence shall be overturned since it violates the Constitutional provision. On that note, to make a distinction between ration and obiter dictor. Ratio is the conclusion that death penalty is unconstitutional because it violates the Constitution, and It is significant and biding to the decision. Then, obiter dicta is the in depth analyses by the court, public opinion, deterrent data, international legislation, the death row phenomena, and the state’s position as a moral function. These contributed to the context and reasoning of the legal decision that the death sentence is unconstitutional, yet not significant.
Critical Analysis
S v Makwanyane is South Africa is a legal precedent for any case law which may deal with death penalty, and it is an addition to constitutional law principles. The decision sets foundation and it is the basis of new order for social justice or a democratic society purporting Ubuntu. The judgement in this matter made it clear that death penalty hinders on fundamental human rights, and cannot co-exist with provisions of the constitution. The court further aligned international standards and domestic laws doing so in an expressive way, through interpretation of degrading, inhuman and cruel in section 11 against decency standards which are contemporary. While at that it shifted South Africa into African and global growth on punishment of perpetrators on heinous crimes. The finding had subsequent aftermath which was the abolishment of the penalty and which was applicable to everyone who was awaiting such penalty. The ruling made for legal practice solidified dignity as a significant provision to all human rights, and set the process for litigation where the Bill Of Rights is concerned, which is rights analysis through s33 limitation clause. It navigated and forced for change in public laws to make life sentence a maximum penalty. The case has been used consistently in multiple cases. For instance, S v. Dodo, Dawood, and the National Coalition for Gay and Lesbian Equality have all referenced it for its dignity jurisprudence. Despite being broadly accepted, the ruling has also drawn political criticism in public discourse, especially in relation to crime and deterrence, but the courts have not overturned it. The Court’s value based reasoning is one of its main advantages. The Court had to avoid norms of a past era and gave the Constitution substantial content by basing the decision on dignity. The penalty was not justifiable and reasonable according to the Court’s strict s33 review, which also required confirmation that alternatives which are acceptable existed.
Conclusion
In conclusion the man issue in this matter was the imposed death penalty as a punishment for murder. Following sequence of event committed by the applicants. The issue in question was whether the penalty in place could co-exist with fundamental constitutional rights. Within the arguments between the applicants and the respondents. It was argued that death penalty is an ,appropriate punishment for heinous crimes like murder by the respondent. While in that scenario the applicant argued that such penalty violated fundamental right in the interim constitution. The rights infringed by the penalty was right to life and dignity. Both which are inalienable meaning they cannot be taken away from legal persons. Now the Constitutional Court in this matter was left with a question of whether death penalty was valid according to the Constitution. In that fact the court did not over look the fact that it was an infringement but it analysed the limitation of rights to an extent that in this particular issue the respondent sis not establish such even though it bears the onus. In a nutshell the penalty was said to be unconstitutional since we can not overlook human rights. It very much evident that along interpretation and application of international law, this matter sets the doctrine of precedence in the country for matters which follow after based of the application of the Bill of Rights.
BIBLIOGRPHY
Catholic Commission for Justice and Peace in Zimbabwe v Attorney-General, Zimbabwe and Others 1993 (4) SA 239 (ZSC)
S v Dodo_ 2001 (3) SA 382 (CC).
Dawood and Another v Minister of Home Affairs and Others_ 2000 (3) SA 936 (CC).
National Coalition for Gay and Lesbian Equality and Another v Minister of Justice and Others_ 1999 (1) SA 6 (CC).
Furman v Georgia_ 408 US 238 (1972).
Gregg v Georgia_ 428 US 153 (1976).
R v Oakes_ 1 SCR 103 (SCC).(1986)
Legislation
The Constitution Of The Republic Of South Africa Act 108 1996
Criminal Procedure Act 51 of 1977.
