Constitution, carry the initial onus of establishing this proposition.[1]
The Contentions of the Parties
[27]The principal arguments advanced by counsel for the accused in support of their contention that the imposition of the death penalty for murder is a "cruel, inhuman or degrading punishment," were that the death sentence is an affront to human dignity, is inconsistent with the unqualified right to life entrenched in the Constitution, cannot be corrected in case of error or enforced in a manner that is not arbitrary, and that it negates the essential content of the right to life and the other rights that flow from it. The Attorney General argued that the death penalty is recognised as a legitimate form of punishment in many parts of the world, it is a deterrent to violent crime, it meets society's need for adequate retribution for heinous offences, and it is regarded by South African society as an acceptable form of punishment. 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.
The Effect of the Disparity in the Laws Governing Capital Punishment
[28]One of the anomalies of the transition initiated by the Constitution is that the Criminal Procedure Act does not apply throughout South Africa. This is a consequence of section 229 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
- ↑ Matinkinca and Another v Council of State, Ciskei and Another 1994 (1) BCLR 17 (Ck) at 34B–D; Qozeleni v Minister of Law and Order and Another 1994 (1) BCLR 75(E) at 87D–E. Cf. Kindler v Canada (Minister of Justice) (1992) 6 CRR (2d) 193 at 214.
