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The two accused in this matter were convicted in the Witwatersrand Local Division of the Supreme Court on four counts of murder, one count of attempted murder and one count of robbery with aggravating circumstances.
They were sentenced to death on each of the counts of murder and to long terms of imprisonment on the other counts. They appealed to the Appellate Division of the Supreme Court against the convictions and sentences. The Appellate Division dismissed the appeals against the convictions and came to the conclusion that the circumstances of the murders were such that the accused should receive the heaviest sentence permissible according to law.
Section 1 a of the Criminal Procedure Act No. Counsel for the accused was invited by the Appellate Division to consider whether this provision was consistent with the Republic of South Africa Constitution, , 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. The Appellate Division dismissed the appeals against the sentences on the counts of attempted murder and robbery, but postponed the further hearing of the appeals against the death sentence until the constitutional issues are decided by this Court. Two issues were raised: Although there was no formal reference of these issues to this Court in terms of section 6 of the Constitution, that was implicit in the judgment of the Appellate Division, and was treated as such by the parties.
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The trial was concluded before the Constitution came into force, and so the question of the constitutionality of the death sentence did not arise at the trial. Because evidence which might possibly be relevant to that issue would not have been led, we asked counsel appearing before this Court to consider whether evidence, other than undisputed information placed before us in argument, would be relevant to the determination of the question referred to us by the Appellate Division.
Apart from the issue of public opinion, with which I will deal later in this judgment, counsel were not able to point to specific material that had not already been placed before us which might be relevant to the decision on the constitutional issues raised in this case.
I am satisfied that no good purpose would be served by referring the case back to the trial court for the hearing of further evidence and that we should deal with the matter on the basis of the information and arguments that have been presented to us.
It would no doubt have been better if the framers of the Constitution had stated specifically, either that the death sentence is not a competent penalty, or that it is permissible in circumstances sanctioned by law.
This, however, was not done and it has been left to this Court to decide whether the penalty is consistent with the provisions of the Constitution. No executions have taken place in South Africa since Some of these convictions date back to , and approximately half of the persons on death row were sentenced more than two years ago. It does not deal specifically with the death penalty, but in section 11 2 , it prohibits "cruel, inhuman or degrading treatment or punishment. In S v Zuma and Two Others, 6 this Court dealt with the approach to be adopted in the interpretation of the fundamental rights enshrined in Chapter Three of the Constitution.
It gave its approval to an approach which, whilst paying due regard to the language that has been used, is "generous" and "purposive" and gives expression to the underlying values of the Constitution. The meaning of a right or freedom guaranteed by the Charter was to be ascertained by an analysis of the purpose of such a guarantee; it was to be understood, in other words, in the light of the interests it was meant to protect.
In my view this analysis is to be undertaken, and the purpose of the right or freedom in question is to be sought by reference to the character and larger objects of the Charter itself, to the language chosen to articulate the specific right or freedom, to the historical origins of the concept enshrined, and where applicable, to the meaning and purpose of the other specific rights and freedoms with which it is associated within the text of the Charter.
The interpretation should be Bizos, who represented the South African government at the hearing of this matter, informed us that the government accepts that the death penalty is a cruel, inhuman and degrading punishment and that it should be declared unconstitutional.
The Attorney General of the Witwatersrand, whose office is independent of the government, took a different view, and contended that the death penalty is a necessary and acceptable form of punishment and that it is not cruel, inhuman or degrading within the meaning of section 11 2. He argued that if the framers of the Constitution had wished to make the death penalty unconstitutional they would have said so, and that their failure to do so indicated an intention to leave the issue open to be dealt with by Parliament in the ordinary way.
It was for Parliament, and not the government, to decide whether or not the death penalty should be repealed, and Parliament had not taken such a decision. Legislative History The written argument of the South African government deals with the debate which took place in regard to the death penalty before the commencement of the constitutional negotiations.
The information that it placed before us was not disputed. It was argued that this background information forms part of the context within which the Constitution should be interpreted. Our Courts have held that it is permissible in interpreting a statute to have regard to the purpose and background of the legislation in question.
Certainly no less important than the oft repeated statement that the words and expressions used in a statute must be interpreted according to their ordinary meaning is the statement that they must be interpreted in the light of their context.
But it may be useful to stress two points in relation to the application of this principle.
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The first is that "the context", as here used, is not limited to the language of the rest of the statute regarded as throwing light of a dictionary kind on the part to be interpreted. Often of more importance is the matter of the statute, its apparent scope and purpose, and, within limits, its background. It is, however, permissible to take notice of the report of a judicial commission of enquiry for the limited purpose of ascertaining "the mischief aimed at [by] the statutory enactment in question.
In England, the courts have recently relaxed this exclusionary rule and have held, in Pepper Inspector of Taxes v Hart 14 that, subject to the privileges of the House of Commons: Even in such cases references in court to Parliamentary material should only be permitted where such material clearly discloses the mischief aimed at or the legislative intention lying behind the ambiguous or obscure words.
We are concerned with the interpretation of the Constitution, and not the interpretation of ordinary legislation. A constitution is no ordinary statute.
It is the source of legislative and executive authority. It determines how the country is to be governed and how legislation is to be enacted.
It defines the powers of the different organs of State, including Parliament, the executive, and the courts as well as the fundamental rights of every person which must be respected in exercising such powers. In countries in which the constitution is similarly the supreme law, it is not unusual for the courts to have regard to the circumstances existing at the time the constitution was adopted, including the debates and writings which formed part of the process.
The United States Supreme Court pays attention to such matters, and its judgments frequently contain reviews of the legislative history of the provision in question, including references to debates, and statements made, at the time the provision was adopted.
Gopalan v The State 22 for the proposition that whilst not taking " The final draft adopted by the forum of the Multi-Party Negotiating Process was, with few changes, adopted by Parliament.
Such background material can provide a context for the interpretation of the Constitution and, where it serves that purpose, I can see no reason why such evidence should be excluded. The precise nature of the evidence, and the purpose for which it may be tendered, will determine the weight to be given to it. It has been said in respect of the Canadian constitution that: How can one say with any confidence that within this enormous multiplicity of actors The same caution is called for in respect of the comments of individual actors in the process, no matter how prominent a role they might have played.
Background evidence may, however, be useful to show why particular provisions were or were not included in the Constitution. It is neither necessary nor desirable at this stage in the development of our constitutional law to express any opinion on whether it might also be relevant for other purposes, nor to attempt to lay down general principles governing the admissibility of such evidence.
It is sufficient to say that where the background material is clear, is not in dispute, and is relevant to showing why particular provisions were or were not included in the Constitution, it can be taken into account by a Court in interpreting the Constitution. These conditions are satisfied in the present case.
Capital punishment was the subject of debate before and during the constitution- making process, and it is clear that the failure to deal specifically in the Constitution with this issue was not accidental. As a result of the comments it received, the Law Commission decided to change the draft and to adopt a "Solomonic solution" 28 under which a constitutional court would be required to decide whether a right to life expressed in unqualified terms could be circumscribed by a limitations clause contained in a bill of rights.
But it is a task which this Court will in future have to carry out in respect of many other laws and executive and administrative acts. The Court must not shrink from this task, otherwise we shall be back to parliamentary sovereignty. Opinions regarding the death penalty differ substantially.
There are those who feel that the death penalty is a cruel and inhuman form of punishment. He concluded his statement by saying that: The government wishes to see a speedy settlement of the future constitutionality of this form of punishment and urges interested parties to join in the discussions on a Bill of Fundamental Rights.
The death sentence remained a lawful punishment and although the courts may possibly have been influenced by the moratorium, they continued to impose it in cases in which it was considered to be the "only proper" sentence.
According to the statistics provided to us by the Attorney General, persons have been sentenced to death since the amendment to section in , and of these sentences, have been confirmed by the Appellate Division. In the constitutional negotiations which followed, the issue was not resolved. Instead, the "Solomonic solution" was adopted. If they are, the death sentence remains a competent sentence for murder in cases in which those provisions are applicable, unless and until Parliament otherwise decides; if they are not, it is our duty to say so, and to declare such provisions to be unconstitutional.
Section 11 2 - Cruel, Inhuman or Degrading Punishment Death is the most extreme form of punishment to which a convicted criminal can be subjected. Its execution is final and irrevocable. It puts an end not only to the right to life itself, but to all other personal rights which had vested in the deceased under Chapter Three of the Constitution.
In the ordinary meaning of the words, the death sentence is undoubtedly a cruel punishment. Once sentenced, the prisoner waits on death row in the company of other prisoners under sentence of death, for the processes of their appeals and the procedures for clemency to be carried out.
Throughout this period, those who remain on death row are uncertain of their fate, not knowing whether they will ultimately be reprieved or taken to the gallows. Death is a cruel penalty and the legal processes which necessarily involve waiting in uncertainty for the sentence to be set aside or carried out, add to the cruelty.
It is also an inhuman punishment for it " The question is not, however, whether the death sentence is a cruel, inhuman or degrading punishment in the ordinary meaning of these words but whether it is a cruel, inhuman or degrading punishment within the meaning of section 11 2 of our Constitution.
He asserted that it is, therefore, not cruel, inhuman or degrading within the meaning of section 11 2 of the Constitution. These arguments for and against the death sentence are well known and have been considered in many of the foreign authorities and cases to which we were referred. We must deal with them now in the light of the provisions of our own Constitution.
This is a consequence of section of the Constitution which provides: Subject to this Constitution, all laws which immediately before the commencement of this Constitution were in force in any area which forms part of the national territory, shall continue in force in such area, subject to any repeal or amendment of such laws by a competent authority. Its operation did not extend to the former Transkei, Bophuthatswana, Venda or Ciskei, which were then treated by South African law as independent states and had their own legislation.
Although their respective Criminal Procedure statutes were based on the South African legislation, there were differences, including differences in regard to the death penalty. The most striking difference in this regard was in Ciskei, where the death sentence was abolished on June 8, by the military regime, 37 the de facto government of the territory, and it ceased from that date to be a competent sentence.
The greatest disparity is in the Eastern Cape Province. A person who commits murder and is brought to trial in that part of the province which was formerly Ciskei, cannot be sentenced to death, whilst a person who commits murder and is brought to trial in another part of the same province, can be sentenced to death.
There is no rational reason for this distinction, which is the result of history, and we asked for argument to be addressed to us on the question whether this difference has a bearing on the constitutionality of section 1 a of the Criminal Procedure Act.
Counsel for the accused argued that it did. They contended that in the circumstances section was not a law of general application which is a requirement under section 33 1 for the validity of any law which limits a Chapter Three right , and that the disparate application of the death sentence within South Africa discriminates unfairly between those prosecuted in the former Ciskei and those prosecuted elsewhere in South Africa, and offends against the right to "equality before the law and to equal protection of the law.
Criminal law and procedure is a national competence and the national government could not without very convincing reasons have established a "safe haven" in part of one of the provinces in which the death penalty would not be enforced.
The disparity is not, however, the result of the legislative policy of the new Parliament, but a consequence of the Constitution which brings together again in one country the parts that had been separated under apartheid. The purpose of section was to ensure an orderly transition, and an inevitable consequence of its provisions is that there will be disparities in the law reflecting pre-existing regional variations, and that this will continue until a uniform system of law has been established by the national and provincial legislatures within their fields of competence as contemplated by Chapter Fifteen of the Constitution.
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The requirement of section that existing laws shall continue to be in force subject to the Constitution, makes the Constitution applicable to existing laws within each of the geographic areas.
These laws have to meet all the standards prescribed by Chapter Three, and this no doubt calls for consistency and parity of laws within the boundaries of each of the different geographic areas.
It does not, however, mean that there has to be consistency and parity between the laws of the different geographic areas themselves.
It follows that disparities between the legal orders in different parts of the country, consequent upon the provisions of section of the Constitution, cannot for that reason alone be said to constitute a breach of the equal protection provisions of section 8, or render the laws such that they are not of general application.