Is the return of the death penalty a viable sentencing option in South Africa’s constitutional dispensation?

In early September 2019, residents of Cape Town took to the streets after a series of gruesome murders of women during National Women’s Month, many of them demanding that the death penalty be reinstated as a form of punishment for those who commit violent crimes against women and children. After a three-day protest from 3 to 5 September 2019, President Cyril Ramaphosa eventually addressed the crowd outside Parliament but he did not engage the protesters on their call for the death penalty. Instead, he proposed, amongst other things, that Parliament increase minimum sentences for serious crimes. He further averred that he concurred with the masses that bail and parole be opposed in order to fight the crimes committed against women and children.

However, the general public remains largely unaware that minimum sentencing requirements already exist within our legislation, but that in itself has not deterred accused persons from committing serious offences. Moreover, the call to oppose bail will be quite problematic, bearing in mind that the Criminal Procedure Act states that an accused is entitled to be released on bail should he/ she meet the requirements imposed by section 50(6). This contention has been expressly upheld by the courts, who stated that no one ought to be deprived of his/her freedom arbitrarily and, if the interests of justice so permit, the arrested person is entitled to be released.

Thus, the question remains whether the death penalty is a viable sentencing option in South Africa’s constitutional dispensation. Section 11 of the Constitution guarantees the right to life to all within the Republic. Section 37(5) further states that this right to life is a non-derogable right in its entirety, and therefore no limitation can be imposed on it, whether by legislation or the Constitution itself.

In the case of S v Makwanyane, the Constitutional Court found it imperative to abolish the death penalty as a form of punishment and held that it directly infringed on the right to life, guaranteed under section 11. It is important to note that the court when making this decision also considered the adverse effect on the right to dignity provided for in section 10 of the Constitution of South Africa. Thus, the court held that it cannot be right that a person be punished in such an inhumane and unnatural manner under a constitutional dispensation.

It is understandable that as a result of the prevailing violent crimes committed against women and children there is wide contention for the reinstatement of the death penalty to serve as a deterrent form of punishment. However, as the court stated in the case of Makwanyane, even though wide contentions may be held by a majority of the people, the court’s duty is only to act as an independent arbiter of the Constitution and not merely as an agent for public opinion.

As provided above, constitutional sovereignty does not operate on an eye for an eye basis. As such, it is safe to conclude that the return of the death penalty is not a viable sentencing option under South Africa’s constitutional dispensation. It is therefore evident that a lot more work needs to be done in relation to crime prevention strategies, rehabilitation and the sustainability of the reintegration of offenders into communities. What is your thought in topic? I believe death sentence will reduce gender base violence and violence in general in South Africa.

2 Likes

Hello and thank you for posting to the forum! Can you share some background reading for fellow members who may not be as familiar with the death penalty issue in South Africa? Links to news reports and campaign websites would be a great start. Thanks! :seedling:

2 Likes

Thank you Tobias

The Capital punishment in South Africa was abolished on 6 June 1995 by the ruling of the Constitutional Court of South Africa in the case of [S v Makwanyane] , following a five-year and four-month moratorium since February 1990.

The last execution carried out by the South African government was the hanging of [Solomon Ngobeni] in November 1989. The last woman executed was Sandra Smith on 2 June the same year along with her boyfriend Yassiem Harris, in all cases following a murder conviction. In February 1990, a moratorium was declared by President [De Klerk]. Two further executions were, however, carried out in the nominally independent “homelands (Bantustan)” of [Boputhatswana] and [Venda] in 1990 and 1991 respectively.

Although the death penalty was abolished in 1995, opinion polls suggest significant public support for its reinstatement.A 2014 poll in South Africa found that 76 percent of [millennium generation] South Africans support re-introduction of the death penalty. This topic was debated long before in South Africa even though voting poll was rife to re-introduce but it was ignored during the administration Former President Zuma. Toby i believe I have gave enough background as you requested.

Also there are a number of parties in South Africa that currently support the return of the death penalty. They are the [National Party South Africa] the [African Christian Democratic Party] [African Covenant] , the [African Transformation Movement] and the [National Conservative Party of South Africa]).

2018 saw growing calls for the return of the death penalty. On 20 July the [Inkatha Freedom Party] (IFP) stated that the time had come to discuss the possibility of reinstating the [death penalty] in South Africa, and on the 8th of August the [National Freedom Party] called for the restoration of the death penalty in South Africa after the death of Khensani Maseko, in a call similar to that of the IFP weeks before.

3 Likes

Dear Moruti,

There are countries where there is no death penalty and violent crimes almost zero, while there are others which have the death penalty but still violent crimes are very high.

The death penalty is no deterrent for violent crimes while we have an ineffective and corrupt police and prosecuting authority.

The Government legalised the pornography industry and turned a blind eye to the sex industry shortly after 1994 which have sparked the high rate of organised crime especially drug dealing. This further have sparked that people in key positions have been caught in sex scandals to extort and intimidate them in becoming part of these organised crime networks or else face exposure.

It is up to communities to expose clients of sex workers and drug dealers and users and name and shame them. Pagad was a great movement, until the SSA infiltrated it due to the contribution the drug industry is having on our economy. Capitalism can’t survive without crime and we have seen this happening not only in SA but also in Russia after the fall of communism.

As long as we support capitalism as the preferred method of trade in SA, our country will never overcome our high crime risks. We have also not realised that we first need to expose the criminals around us we know, before we have the right to complain about our crime.

3 Likes

I agree with you Reyno, it may not be as easy as it sounds though. You can just imagine the best that Pagad was doing and yet it all came to nothing. So lets just imagine me for instance trying to name and shame a prominent politician or leader.

My sad opinion is that most people mind their own business and that seems to be the root of all evil. I just wonder what intervention is needed with regard to Moruti and your points of view.

Clearly theres a lot more concerted individuals like you guys out there. If more people are enlightened and engage in shaping better policies. We could be shifting to a better view.

Lets not give up but stand and take iniative! @drnkunyane @ReynoDB

2 Likes

Hello everyone, In Canada there is no capital punishment and the country has low crime. There are many community organizations who work for prevention and social integration of the most vulnerable people. This is the solution in my view. Truly yours, Alexandar @drnkunyane @tobiaseigen @mahlokgotleng @ReynoDB

2 Likes

You are right that the death penalty has proved over the years that it is no deterrant to any crime. It is all about family values. Break down the family unit and then you are faced with born and bred criminals for the future. In South Africa our families have been broken down into majority single parent households, mostly grandparents having to look after their grandchildren, HIV/AIDS is probably responsible for 70% of all mortalities, yet our Government now has implemented a school curriculum where our children are now forced to start touching one another for sex education at primary school level (12 year old)!..

1 Like

How likely are you to recommend the Global Legal Empowerment Network?



Thank you. What can we do better?

Thank you. What can be improved?

Fabulous! What do you like most?

Thanks for giving feedback! If you’re reporting a problem, please tell us what you were doing when the problem occurred, what you expected to happen and what actually happened.

 

skip this step