paragraphs 116–131 of his judgment albeit only in the context of a breach of section 11(2). The Attorney-General argued that the purpose of section 277 was the deterrence and prevention of crime, and retribution. Although deterrence is an important goal, as Chaskalson P has described, the deterrent effect of the death penalty remains unproven, perhaps unprovable.
[341]The question of retribution is a more complex one. I agree with Chaskalson P that in a democratic society retribution as a goal of punishment should not be given undue weight. Indeed, I am unconvinced that, where the punishment is held to constitute a breach of a fundamental right, retribution would ever, on its own, be a sufficient ground for justification. As Marshall J noted in Furman v Georgia 408 US 238 at 344–5 (1972):
'To preserve the integrity of the Eighth Amendment, the Court has consistently denigrated retribution as a permissible goal of punishment. It is undoubtedly correct that there is a demand for vengeance on the part of many persons in a community against one who is convicted of a particularly offensive act. At times a cry is heard that morality requires vengeance to evidence society's abhorrence of the act. But the Eighth Amendment is our insulation from our baser selves. The 'cruel and unusual' language limits the avenues through which vengeance can be channelled. Were this not so, the language would be empty and a return to the rack and other tortures would be possible in a given case.'
[342]It remains then to balance the purposes of section 277 with the infringement of sections 9 and 10 it causes. In this exercise, it is undeniable that sections 9 and 10 are rights which lie at the heart of our constitutional framework and that section 277 grievously infringes the ambit of these rights. They weigh very heavily in the scales of proportionality. On the other hand, while the goals of deterrence and prevention which are the purpose of section 277 are important legislative purposes, it has not been satisfactorily demonstrated that they could not be sufficiently and realistically achieved by other means. After a careful consideration of the nature of the rights, the extent of the infringement of those rights, and the purposes of section 277, I remain unpersuaded that section 277 is a constitutionally acceptable limitation upon the rights to life and dignity.
[343]Section 33(1)(b) provides that, in addition to being reasonable and justifiable (and where appropriate, necessary) a limitation upon a right should not negate the essential contents of the right in question. As section 277 does not meet the requirements of reasonableness, justifiability and necessity, it is not necessary and it would be inadvisable to consider whether it negates the essential contents of the rights in question.
[344]In conclusion, then, the death penalty is unconstitutional. It is a breach of the rights to life and dignity that are entrenched in sections 9 and 10 of our Constitution, as well as a breach of the prohibition of cruel, inhuman and degrading punishment contained in section 11(2). The new Constitution stands as a monument to this society's commitment to a future in which all human beings will be accorded equal dignity and respect. We cannot postpone giving effect to that commitment.
[345]Sachs J: I agree fully with the judgment of the President of the court, and wish merely to
