amendment of such laws by a competent authority.
[29]Prior to the commencement of the Constitution, the Criminal Procedure Act was in force only in the old Republic of South Africa. Its operation did not extend to the former Transkei, Bophuthatswana, Venda or Ciskei, which were then treated by South African law as independent states and had their own legislation. Although their respective Criminal Procedure statutes were based on the South African legislation, there were differences, including differences in regard to the death penalty. The most striking difference in this regard was in Ciskei, where the death sentence was abolished on June 8, 1990 by the military regime,[1] the de facto government of the territory, and it ceased from that date to be a competent sentence.[2] These differences still exist,[3] which means that the law governing the imposition of the death sentence in South Africa is not uniform. The greatest disparity is in the Eastern Cape Province. A person who commits murder and is brought to trial in that part of the province which was formerly Ciskei, cannot be sentenced to death, whilst a person who commits murder and is brought to trial in another part of the same province, can be sentenced to death. There is no rational reason for this distinction, which is the result of history, and we asked for argument to be addressed to us on the question whether this difference has a bearing on the constitutionality of section 277(1)(a) of the Criminal Procedure Act.
[30]Counsel for the accused argued that it did. They contended that in the circumstances section 277 was not a law of general application (which is a requirement under section 33(1) for the validity of any law which limits a Chapter Three right), and that the disparate application of the death sentence within South Africa discriminates unfairly between those prosecuted in the former Ciskei and those prosecuted elsewhere in South Africa, and offends against the right to "equality before the law and to equal protection of the law."[4]
[31]If the disparity had been the result of legislation enacted after the Constitution had come into force the challenge to the validity of section 277 on these grounds may well have been tenable. Criminal law and procedure is a national competence and the national government could
- ↑ The Criminal Procedure Second Amendment Decree, 1990, Decree No. 16 of 1990 of the Council of State of the Republic of Ciskei, 8 June 1990, as amended.
- ↑ S v Qeqe and Another 1990 (2) SACR 654 (CkAD).
- ↑ In the former Transkei, Bophuthatswana and Venda the death sentence was a competent verdict for murder but the provisions of the relevant statutes in Transkei and Bophuthatswana are not identical to section 277. For the purposes of this judgment it is not necessary to analyse the differences, which relate in the main to the procedure prescribed for appeals and the powers of the court on appeal, procedures that are now subject to the provisions of section 241(1) and (1A) of the Constitution, as amended by the Constitution of the Republic of South Africa Third Amendment Act No. 13 of 1994.
- ↑ See section 8 of the Constitution.
