DEPARTMENT: JUSTICE AND CONSTITUTIONAL DEVELOPMENT
REPUBLIC OF SOUTH AFRICA
NATIONAL ASSEMBLY
PARLIAMENTARY QUESTION FOR WRITTEN REPLY
QUESTION NO.: 1835
DATE OF PUBLICATION: 16 OCTOBER 2009
Mr N Singh to ask the Minister of Justice and Constitutional Development:
In view of the fact that the “shoot to kill” directive has been given to police in certain circumstances, whether this is not the time to reinvestigate the reintroduction of the death penalty. If not, why not? If so, what are the details? Whether the Minister will make a statement?
REPLY
I would like to refer the Honourable Member to parts of a speech that I gave at the
International Meeting of Ministers of Justice in Rome on 24 May 2009 which addresses this issue:-
″Our interim Constitution included a chapter on fundamental rights. So it came about that the right to life became entrenched in the Constitution as one of the fundamental rights.
We therefore abolished capital punishment in South Africa. In the past, under successive apartheid governments, the death penalty was used indiscriminately and largely against the majority black people of our country who in many instances had no legal representation. In alarming numbers most of those executed were later found to have been innocent. In June
726831177 1

1995, in the S v Makwanyane, the highest court in our country, the Constitutional Court finally abolished the death penalty.
The Constitutional Court ruled that the imposition of the death penalty is incompatible with the right to life as enshrined in the Bill of Rights in our Constitution. The reason we have a
Bill of Rights in our Constitution, which needs a special majority to be amended, is to protect the rights of all South Africans, including the marginalised and the minorities. In its ruling, the Constitutional Court said, “It is only if there is a willingness to protect the worst and the weakest amongst us that all of us can be secure that our own rights will be protected.”
The court also found that, “no empirical study, no statistical exercises and no theoretical analysis has been able to demonstrate that capital punishment has any deterrent force greater than that of a really heavy sentence of imprisonment.” The Constitutional Court, in interpreting provisions of the interim Constitution, abolished the death penalty and held that capital punishment violated the right not to be subjected to cruel, inhumane or degrading treatment or punishment.
The majority of the Court concluded that capital punishment constituted cruel, inhuman and degrading treatment or punishment on four primary grounds: -
* The almost inherent arbitrariness in sentencing
* The failure of the sentence to treat the guilty party as a human being worthy of respect
* The irremediable nature of the punishment
* The cruelty that inevitably flows from the delays which convicted individuals face when awaiting execution and often the nature of the execution itself.
Our national legislature responded to the decision of the Constitutional Court by adopting the Criminal Law Amended Act (Act 105 of 1997), which makes provision for the setting aside of sentences of death and also makes provision for setting aside of the sentences of death in accordance with law and their substitution by lawful punishments. After the
Constitutional Court judgement all the prisoners sentenced to death for political crimes and other crimes, had their sentences commuted to life imprisonment.
Over the years, due to the crime situation and a belief that capital punishment would deter criminals, there have been calls from some that capital punishment be reinstated. Many
726831177 2

legal systems globally, over a period of time, have moved away from the ‘an eye for an eye,’ a ‘tooth for a tooth’ brand of justice. As South Africans we do not want to go back to that principle of retribution, for the simple reason that it embraces violence as the core value of society. To us, now living in a democratic society based on respect for human rights, such a principle of retribution is unacceptable. To many the death penalty is regarded as a deterrent to serious crime. But we know from our history in South Africa that despite the liberal use of the death penalty, the apartheid government was unable to deter serious crime.
The situation in the 1980s reached crisis point with hundreds on death row sufficient to compel the then government to suspend all executions. This was recognition of the failure of capital punishment and in preparation for a dispensation which would entrench the right to life in our Constitution."
-------------------------------------------------
MR J T RADEBE, MP
MINISTER: JUSTICE AND
CONSTITUTIONAL DEVELOPMENT
726831177 3