captured and who are no longer a threat to the State cannot be put to death; nor can lethal force be used against rebels when it is not necessary to do so for the purposes of putting down the rebellion.
[140]The case of a police officer shooting at an escaping criminal was also raised in argument. This is permitted under section 49(2) of the Criminal Procedure Act as a last resort if it is not possible to arrest the criminal in the ordinary way. Once again, there are limits. It would not, for instance, be permissible to shoot at point blank range at a criminal who has turned his or her back upon a police officer in order to abscond, when other methods of subduing and arresting the criminal are possible. We are not concerned here with the validity of section 49(2) of the Criminal Procedure Act, and I specifically refrain from expressing any view thereon. Greater restriction on the use of lethal force may be one of the consequences of the establishment of a constitutional state which respects every person's right to life. Shooting at a fleeing criminal in the heat of the moment, is not necessarily to be equated with the execution of a captured criminal. But, if one of the consequences of this judgment might be to render the provisions of section 49(2) unconstitutional, the legislature will have to modify the provisions of the section in order to bring it into line with the Constitution. In any event, the constitutionality of the death sentence for murder does not depend upon whether it is permissible for life to be taken in other circumstances currently sanctioned by law. It depends upon whether it is justifiable as a penalty in terms of section 33 of the Constitution. In deciding this question, the fact that the person sentenced to death is denied his or her right to life is of the greatest importance.
[141]The Attorney General argued that all punishment involves an impairment of dignity. Imprisonment, which is the alternative to the death sentence, severely limits a prisoner's fundamental rights and freedoms. There is only the barest freedom of movement or of residence in prison, and other basic rights such as freedom of expression and freedom of assembly are severely curtailed.
[142]Dignity is inevitably impaired by imprisonment or any other punishment, and the undoubted power of the state to impose punishment as part of the criminal justice system, necessarily involves the power to encroach upon a prisoner's dignity. But a prisoner does not lose all his or her rights on entering prison.
[Prisoners retain] those absolute natural rights relating to personality, to which every man is entitled. True [their] freedom had been greatly impaired by the legal process of imprisonment but they were entitled to demand respect for what remained. The fact that their liberty had been legally curtailed could afford no excuse for a further legal encroachment upon it. [It was] contended that the [prisoners] once in prison could claim only such rights as the Ordinance and the regulations conferred. But the directly opposite view is surely the correct one. They were entitled to all their personal rights and personal dignity not temporarily taken away by law, or necessarily inconsistent with the circumstances in which they had been placed.[1]
- ↑ Innes J in Whittaker v Roos and Bateman 1912 AD 92 at 122–123. See also, Goldberg and Others v Minister of Prisons and Others 1979 (1) SA 14 (A) at 39H–40C; Nestor and Others v Minister of Police and Others 1984 (4) SA 230 (SWA) at 250F–251D.
