not without very convincing reasons have established a "safe haven" in part of one of the provinces in which the death penalty would not be enforced. The disparity is not, however, the result of the legislative policy of the new Parliament, but a consequence of the Constitution which brings together again in one country the parts that had been separated under apartheid. The purpose of section 229 was to ensure an orderly transition, and an inevitable consequence of its provisions is that there will be disparities in the law reflecting pre-existing regional variations, and that this will continue until a uniform system of law has been established by the national and provincial legislatures within their fields of competence as contemplated by Chapter Fifteen of the Constitution.
[32]The requirement of section 229 that existing laws shall continue to be in force subject to the Constitution, makes the Constitution applicable to existing laws within each of the geographic areas. These laws have to meet all the standards prescribed by Chapter Three, and this no doubt calls for consistency and parity of laws within the boundaries of each of the different geographic areas. It does not, however, mean that there has to be consistency and parity between the laws of the different geographic areas themselves.[1] Such a construction would defeat the apparent purpose of section 229, which is to allow different legal orders to exist side by side until a process of rationalisation has been carried out, and would inappropriately expose a substantial part if not the entire body of our statutory law to challenges under section 8 of the Constitution. It follows that disparities between the legal orders in different parts of the country, consequent upon the provisions of section 229 of the Constitution, cannot for that reason alone be said to constitute a breach of the equal protection provisions of section 8, or render the laws such that they are not of general application.
International and Foreign Comparative Law
[33]The death sentence is a form of punishment which has been used throughout history by different societies. It has long been the subject of controversy.[2] As societies became
- ↑ AK Entertainment CC v Minister of Safety and Security and Others 1995 (1) SACLR 130 (E) at 135–136.
- ↑ An account of the history of the death sentence, the growth of the abolitionist movement, and the application of the death sentence by South African courts is given by Prof. B. van Niekerk in Hanged by the Neck Until You Are Dead, (1969) 86 SALJ 457; Professor E. Kahn in The Death Penalty in South Africa, (1970) 33 THRHR 108; and by Professor G. Devenish in The historical and jurisprudential evolution and background to the application of the death penalty in South Africa and its relationship with constitutional and political reform, SACJ (1992) 1. For analysis of trends in capital punishment internationally, see Amnesty International, When the State Kills…The death penalty v. human rights (1989).
