relating to capital punishment, and is relevant to a proper understanding of such decisions.
[37]Comparative "bill of rights" jurisprudence will no doubt be of importance, particularly in the early stages of the transition when there is no developed indigenous jurisprudence in this branch of the law on which to draw. Although we are told by section 35(1) that we "may" have regard to foreign case law, it is important to appreciate that this will not necessarily offer a safe guide to the interpretation of Chapter Three of our Constitution.[1] This has already been pointed out in a number of decisions of the Provincial and Local Divisions of the Supreme Court,[2] and is implicit in the injunction given to the Courts in section 35(1), which in permissive terms allows the Courts to "have regard to" such law. There is no injunction to do more than this.
[38]When challenges to the death sentence in international or foreign courts and tribunals have failed, the constitution or the international instrument concerned has either directly sanctioned capital punishment or has specifically provided that the right to life is subject to exceptions sanctioned by law. The only case to which we were referred in which there were not such express provisions in the Constitution, was the decision of the Hungarian Constitutional Court. There the challenge succeeded and the death penalty was declared to be unconstitutional.[3]
[39]Our Constitution expresses the right to life in an unqualified form, and prescribes the criteria that have to be met for the limitation of entrenched rights, including the prohibition of legislation that negates the essential content of an entrenched right. In dealing with comparative law, we must bear in mind that we are required to construe the South African Constitution, and not an international instrument or the constitution of some foreign country, and that this has to be done with due regard to our legal system, our history and circumstances, and the structure and language of our own Constitution.[4] We can derive assistance from public international law and foreign case law, but we are in no way bound to follow it.
Capital Punishment in the United States of America
- ↑ See S v Zuma and Two Others, supra note 6.
- ↑ See, e.g., Qozeleni, supra note 36, at 80B–C; S v Botha and Others 1994 (3) BCLR 93 (W) at 110F–G.
- ↑ Decision No. 23/1990 (X.31.) AB of the (Hungarian) Constitutional Court (George Feher trans.).
- ↑ The judgment of Kentridge AJ in S v Zuma and Two Others, supra note 6, discusses the relevance of foreign case law in the context of the facts of that case, and demonstrates the use that can be made of such authorities in appropriate circumstances.
