[152]Ackermann J: I concur fully in the judgment of the President, both regarding hisconclusions and his reasons therefor, save in the respects hereinafter set forth. I also agreewith the order proposed by him.
[153]I place greater emphasis on the inevitably arbitrary nature of the decision involved in theimposition of the death penalty as a form of punishment in supporting the conclusion thatit constitutes "cruel", "inhuman" and "degrading punishment" within the meaning of section 11(2) of the Constitution, which cannot be saved by section 33(1).
[154]In paragraphs [43] to [56] of his judgment the President deals with the arbitrariness andinequality of the death penalty. He deals (more particularly in paragraphs [55] and [56])with the difficulties faced by the US Supreme Court in trying to eliminate the dangers ofarbitrariness by employing the due process provisions of the Fifth and FourteenthAmendments. Such efforts cause considerable expense and interminable delays, and thePresident concludes by expressing the view that we should not follow the United Statesroute. I agree, but that does not mean that we ought not to accord greater weight toconsiderations of arbitrariness and inequality. The US Supreme Court has been obliged tofollow the route it did because, so it seems to me, their Constitution postulates (byimplication) that it is possible to devise due process mechanisms which can deal with thearbitrary and unequal features of death sentence imposition. We are not so constrained.Our right to life is not qualified in the way it is qualified in the Fifth and FourteenthAmendments of the US Constitution. We are not constitutionally constrained to accept thearbitrary consequences of the imposition of the death penalty.
[155]The preamble to the Constitution refers to the creation of a new order in a state, which,amongst other things, is described as a "constitutional state." Section 4(1) declares theConstitution to be the "supreme law of the Republic" which by virtue of section 4(2)"binds all legislative, executive and judicial organs of state at all levels of government."Every person's right to equality before the law is entrenched in section 8(1) and in section8(2) a substantial number of different grounds of unfair discrimination are prohibited. Theconstitutional importance of equality is further underscored in section 35(1) which enjoinsthe courts to promote the values which underlie an open and democratic society based onfreedom and equality in interpreting the provisions of Chapter 3.
[156]In reaction to our past, the concept and values of the constitutional state, of the "regstaat",and the constitutional right to equality before the law are deeply foundational to thecreation of the "new order" referred to in the preamble. The detailed enumeration anddescription in section 33(1) of the criteria which must be met before the legislature canlimit a right entrenched in Chapter 3 of the Constitution emphasises the importance, in ournew constitutional state, of reason and justification when rights are sought to be curtailed.We have moved from a past characterised by much which was arbitrary and unequal inthe operation of the law to a present and a future in a constitutional state where stateaction must be such that it is capable of being analysed and justified rationally. The ideaof the constitutional state presupposes a system whose operation can be rationally testedagainst or in terms of the law. Arbitrariness, by its very nature, is dissonant with thesecore concepts of our new constitutional order. Neither arbitrary action nor laws or ruleswhich are inherently arbitrary or must lead to arbitrary application can, in any real sense, be tested against the precepts or principles of the Constitution[1]. Arbitrariness must alsoinevitably, by its very nature, lead to the unequal treatment of persons. Arbitrary action,or decision making, is incapable of providing a rational explanation as to why similarlyplaced persons are treated in a substantially different way. Without such a rationaljustifying mechanism, unequal treatment must follow.
[157]It is in the context of our (textually) unqualified section 9 right to life that I find certainobservations in the US decisions supportive on the issue and consequences ofarbitrariness. We are free to look at the incidence and consequences of arbitrarinesswithout being constrained by a constitutional authorization (whether explicit or implicit)of the death penalty. One must of course constantly bear in mind that the relevant criteriain the Eighth Amendment of the US Constituion also differ from those in section 11(2) ofour Constitution. Whereas in the former they are "cruel and unusual" in the latter they are"cruel, inhuman or degrading".
[158]In Furman v. Georgia[2] the US Supreme Court had to consider a case where thedetermination of whether the penalty for murder and rape should be death or anotherpunishment was left by the State of Georgia to the discretion of the judge or of the jury. Inthe course of his judgment[3] Douglas J referred with approval to the following commentsin a journal article:
"A penalty … should be considered 'unusually' imposed if itis administered arbitrarily or discriminatingly … [t]he extreme rarity with whichapplicable death penalty provisions are put to use raises a strong inference ofarbitrariness."
He further expressed the view[4] that—
"[t]he high service rendered by the 'cruel and unusual'punishment clause of the Eighth Amendment is to require legislatures to write penallaws that are evenhanded, non-selective, and nonarbitrary …"
[159]On the issue of arbitrariness Brennan J observed in Furman[5] that—
"In determining whether a punishment comports with humandignity, we are aided also by a second principle inherent in the [Cruel and UnusualPunishments] Clause—that the State must not arbitrarily inflict a severe punishment.This principle derives from the notion that the State does not respect human dignitywhen, without reason, it inflicts upon some people a severe punishment that it doesnot inflict upon others."
He also stated[6] (in a context not dissimilar to ours where a vast number of murdersare committed, a large number of accused charged and convicted but relatively fewultimately executed) that—
"No one has yet suggested a rational basis that coulddifferentiate in those terms the few who die from the many who go to prison. Crimesand criminals simply do not admit of a distinction that can be drawn so finely as toexplain, on that ground, the execution of such a tiny sample of those eligible …Nor is the distinction credible in fact."
[160]Stewart J founded his judgment on the fact that the imposition of so extreme a penalty inpursuance of the Georgia statute was inevitably arbitrary. After referring to the fact that"the petitioners are among a capriciously selected random handful upon whom thesentence of death has in fact been imposed" he concludes simply by holding that—
"the Eighth and Fourteenth Amendments cannot tolerate theinfliction of a sentence of death under legal systems that permit this unique penalty tobe so wantonly and so freakishly imposed"[7]
[161]In Callins v. Collins, cert. denied, 114 S.Ct. 1127, 127 L.Ed 435 (1994) BlackmunJ filed a dissenting opinion. In it he observed that[8]—
"[e]xperience has taught us that the constitutionalgoal of eliminating arbitrariness and discrimination from the administrationof death, see Furman v. Georgia, supra, can never be achieved without compromising an equally essential component of fundamental fairness individualized sentencing. See Lockett v. Ohio, 438 U.S. 586 (1978)."
and, commenting upon its unavoidable arbitrariness, that[9]—
"[i]t is virtually self-evident to me now that no combinationof procedural rules or substantive regulations ever can save the death penalty from itsinherent constitutional deficiencies. The basic question—does the system accuratelyand consistently determine which defendants 'deserve' to die?—cannot be answered inthe affirmative."
He further expressed the view that[10]—
"[a]lthough most of the public seems to desire, and theConstitution appears to permit, the penalty of death, it surely is beyond dispute that ifthe death penalty cannot be administered consistently and rationally, it must not beadministered at all." (emphasis added)
and that[11], in the aftermath of the Furman judgment—
"[i]t soon became apparent that discretion could not beeliminated from capital sentencing without threatening the fundamental fairness duea defendant when life is at stake. Just as contemporary society was no longer tolerantof the random or discriminatory infliction of the penalty of death … evolving standardsof decency required due consideration of the uniqueness of each individual defendantwhen imposing society's ultimate penalty … [T]he consistency and rationalitypromised in Furman are inversely related to the fairness owed the individual whenconsidering a sentence of death. A step toward consistency is a step away fromfairness".
[162]In considering a constitutional right to life unfettered by the restraints or interpretativeproblems of the right in the US Constitution, I am of the view that the above dicta areappropriate to the issue of the constitutionality of the death sentence in South Africa. Asgeneral propositions, which can be applied in the context of our Constitution, I wouldaccept and endorse the views of Blackmun J.
[163]As to the more general principle that arbitrariness conflicts with the idea of a right toequality and equality before the law I am fortified in my view by the following remarks ofBhagwati, J in Gandhi v. Union of India 1978 SC 597 at 624:
"We must reiterate here what was pointed out by themajority in E.P. Royappa v. State of Tamil Nadu (1974) 2 SCR 348: (AIR 1974 SC555) namely, that 'from a positivistic point of view, equality is antithetic toarbitrariness. In fact equality and arbitrariness are sworn enemies; one belongs to therule of law in a republic, while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary, it is implicit in it that it is unequal both accordingto political logic and constitutional law and is, therefore violative of Article 14.'"
[164]I am mindful of the fact that it is virtually impossible (save in the case of rigidlycirc*mscribed mandatory sentences—which present other dangers) to avoid elements ofarbitrariness in the imposition of any punishment. Arbitrary elements are present in thedifficult decision to send an offender to prison for the first time, or in deciding what theappropriate length of the prison sentence should be in any case where it is imposed.However, the consequences of the death sentence, as a form of punishment, differ soradically from any other sentence that the death sentence differs not only in degree butalso in substance from any other form of punishment. A sentence which preserves life differsincomparably from one which obliterates life. The executed person has, in fact, "lost theright to have rights."[12] In this sense the death sentence is unique and the dimension andconsequences of arbitrariness in its imposition differ fundamentally from the dimensionand consequences of arbitrariness in the imposition of any other punishment[13].
[165]In paragraphs [44] to [46] of his judgment the President has referred to the relevant statutory provisionsprescribing the tests to be applied for the imposition of the death sentence and the guidelines laid downfor their application by the Appellate Division of the Supreme Court. In the end, whatever guidelines areemployed, a process of weighing up has to take place between "mitigating factors" (if any) and"aggravating factors" and thereafter a value judgment made as to whether "the sentence of death is theproper sentence." I am not suggesting that the statutory provisions could have been better formulated orthat the Appellate Division guidelines could be improved upon. The fact of the matter is that they leavesuch a wide latitude for differences of individual assessment, evaluation and normative judgment, thatthey are inescapably arbitrary to a marked degree. There must be many borderline cases where twocourts, with the identical accused and identical facts, would undoubtedly come to different conclusions. I have no doubt that even on a court composed of members of the genus Hercules[14] and Athenathere would in many cases be differences of opinion, incapable of rational elucidation, onwhether to impose the death penalty in a particular case, where its imposition was, as inthe case of section 277(1) of the Criminal Procedure Act, dependant on the application ofwidely formulated criteria and the exercise of difficult value judgments.
[166]The conclusion which I reach is that the imposition of the death penalty is inevitably arbitrary andunequal. Whatever the scope of the right to life in section 9 of the Constitution may be, itunquestionably encompasses the right not to be deliberately put to death by the state in a way which isarbitrary and unequal. I would therefore hold that section 277(1)(a) of the Criminal Procedure Act isinconsistent with the section 9 right to life. I would moreover also hold that it is inconsistent withsection 11(2). Where the arbitrary and unequal infliction of punishment occurs at the level of apunishment so unique as the death penalty, it strikes me as being cruel and inhuman. For one person toreceive the death sentence, where a similarly placed person does not, is, in my assessment of values,cruel to the person receiving it. To allow chance, in this way, to determine the life or death of a person,is to reduce the person to a cypher in a sophisticated judicial lottery. This is to treat the sentencedperson as inhuman. When these considerations are taken in conjunction with those set forth by thePresident in his judgment, they render the death penalty a cruel, inhuman and degrading punishment. Forthe reasons expounded by the President in his judgment, and with which I fully agree, neither theinfringement of section 9 nor of section 11(2) by section 277(1)(a) of the Criminal Procedure Act, canbe saved by the provisions of section 33(1) of the Constitution. Accordingly the provisions of section277(1)(a) must be held to be inconsistent with sections 9 and 11(2) of the Constitution.
[167]In paragraphs [132] to [134] of his judgment the President alludes to the provision in section 33(1)(b)of the Constitution that a limitation "shall not negate the essential content of the right in question" but,after referring to uncertainties concerning its meaning, finds it unnecessary to resolve the issue in thepresent case. In paragraph [133] he postulates, however, a subjective and an objective approach to theproblem. I do not necessarily agree with his formulation of the objective approach. In my view it isunnecessary in the present case to say anything at all about the meaning to be attached to this provision.It is one which the framers of our Constitution borrowed in part from article 19(2) of the [[Basic Law for the Federal Republic of Germany|German Basic Law ("Grundgesetz") which provides that—
"In keinem Falle darf ein Grundrecht in seinem Wesensgehalt angetastet werden"
("In no case may the essence of a basic right be encroached upon"[15])
There are obvious differences in the wording of the qualification. Nevertheless there is a wealthof German case law and scholarship on the topic[16]. Without the fullest exposition of, and argument on, inter alia, the German jurisprudence in this regard, I consider it undesirable to express any view on thesubject.
[168]Members of the public are understandably concerned, often frightened, for their life and safety in asociety where the incidence of violent crime is high and the rate of apprehension and conviction of theperpetrators low. This is a pressing public concern. However important it undoubtedly is to emphasisethe constitutional importance of individual rights, there is a danger that the other leg of theconstitutional state compact may not enjoy the recognition it deserves. I refer to the fact that in aconstitutional state individuals agree (in principle at least) to abandon their right to self-help in theprotection of their rights only because the state, in the constitutional state compact, assumes the obligation to protect these rights. If the state fails to discharge this duty adequately, there is a danger thatindividuals might feel justified in using self-help to protect their rights. This is not a fanciful possibilityin South Africa. "The need for a strong deterrent to violent crime" is underscored by the President in hisjudgment as is the duty of the state, through the criminal justice system, to ensure that offenders will beapprehended and convicted, for these steps are conditions precedent to punishment.[17]
[169]Apart from deterring others, one of the goals of punishment is to prevent the convicted prisoner fromcommitting crimes again. Both the preventative and reformative components of punishment are directedtowards this end, although reformation obviously has the further commendable aim of the betterment ofthe prisoner. Society as a whole is justifiably concerned that this aim of punishment should be achievedand society fears the possibility that the violent criminal, upon release from prison, will once again harmsociety. Society is particularly concerned with the possibility of this happening in the case of anunreformed recidivist murderer or rapist if the death penalty is abolished.
[170]The President has rightly pointed out in his judgment that in considering the deterrent effect of the deathsentence the evaluation is not to be conducted by contrasting the death penalty with no punishment at allbut between the death sentence and "severe punishment of a long term of imprisonment which, in anappropriate case, could be a sentence of life imprisonment";[18] I agree with this approach. With theabolition of the death penalty society needs the firm assurance that the unreformed recidivist murdereror rapist will not be released from prison, however long the sentence served by the prisoner may havebeen, if there is a reasonable possibility that the prisoner will repeat the crime. Society needs to beassured that in such cases the state will see to it that such a recidivist will remain in prison permanently.
[171]I appreciate the concern of not wishing to anticipate the issue as to whether life imprisonment, howeverexecuted and administered, is constitutional or not. At the same time I do not believe that the two issuescan be kept in watertight separate juristic compartments. If the death penalty is to be abolished, as Ibelieve it must, society is entitled to the assurance that the state will protect it from further harm fromthe convicted unreformed recidivist killer or rapist. If there is an individual right not to be put to deathby the criminal justice system there is a correlative obligation on the state, through the criminal justicesystem, to protect society from once again being harmed by the unreformed recidivist killer or rapist.The right and the obligation are inseparably part of the same constitutional state compact.
[172]Article 102 of the German Basic Law declares that capital punishment is abolished. The German FederalConstitutional Court considered the constitutionality of life imprisonment in 1977[19]. The provision inthe criminal code which prescribes life imprisonment for murder was challenged on the basis that itconflicted with the protection afforded to human dignity (art 1.1) and personal freedom (art 2.2) in theGerman Basic Law. The Court upheld the law on the basis that it was not shown that the serving of asentence of life imprisonment leads to irreparable physical or psychological damage to the prisoner'shealth. The Court did however find that the right to human dignity demands a humane execution of thesentence. This meant that the existing law, which made provision for executive pardon, had to bereplaced by a law laying down objective criteria for the release of prisoners serving life sentences. In thecourse of its judgment, the Court made clear that there is nothing constitutionally objectionable toexecuting a life sentence in full in cases where the prisoner does not meet the criteria. At page 242 ofthe judgment the Court said:
"Die Menschenwürde wird auch dann nicht verletzt, wenn der Vollzug der Strafe wegen fortdauernder Gefährlichkeit des Gefangenen notwendig ist und sich aus diesem Grunde eine Begnadigung verbietet. Es ist der staatlichen Gemeinschaft nicht verwehrt, sich gegen einen gemeingefährlichen Straftäter durch Freiheitsentzug zu sichern."
("Human dignity is not infringed when the execution of thesentence remains necessary due to the continuing danger posed by the prisoner andclemency is for this reason precluded. The state is not prevented from protecting thecommunity from dangerous criminals by keeping them incarcerated".)
