the effect on the individual prisoner serving a sentence under that law. Similarly such a law would not negate the essential content of the right of free movement. Those are general rights entrenched in the Constitution, and a law which preserves those rights for most people at most times does not negate the essential content of those rights. An example of a law which might negate the essence of the right to freedom of movement would be a law (such as the Departure from the Republic Act, 1955) under which no person may leave the Republic without the express or implied consent of the Government. Another possible example could relate to the right of freedom of speech. A law providing for general censorship of all publications would on the face of it negate the essence of the right to freedom of speech. On the other hand a law providing penalties for what is colloquially referred to as "hate speech" would not, I think, negate the essence of that right. (Whether or not it would meet the other criteria of section 33 is a different question.)
[196]It follows that in my opinion that the true issue for decision is whether or not the death penalty for murder is a "cruel, inhuman or degrading punishment", although the entrenched right to life, like the right to dignity and to equality of treatment, does illuminate the issue. As both Chaskalson P and Didcott J have emphasised, capital punishment is qualitatively something quite apart from even the longest term of imprisonment. It entails the calculated destruction of a human life. Inequalities in its incidence are probably unavoidable. In the infliction of capital punishment judicial and executive error can never be wholly excluded nor, of course, repaired. With regard to the uniquely cruel and inhuman nature of the death penalty I would refer to the ample citation of American authority by Didcott J in paragraphs 6 and 7 of his Judgment and to the various decisions of international tribunals cited by Chaskalson P. I would add to these the judgment of Blackmun J in Callins v Collins 114 S. Ct. 1127 (1994). The statement of Stewart J in Furman v Georgia 408 US 238 at 306 cited by Scalia J in Harmelin v Michigan 501 US 957 (1991), also deserves repetition:
"The penalty of death differs from all other forms of criminal punishment, not in degree but in kind. It is unique in its total irrevocability. It is unique in its rejection of rehabilitation of the convict as a basic purpose of criminal justice. And it is unique, finally, in its absolute renunciation of all that is embodied in our concept of humanity."
The "death row" phenomenon as a factor in the cruelty of capital punishment has been eloquently described by Lord Griffiths in Pratt v Johnson [1994] 2 AC 1 and by Gubbay CJ in Catholic Commission for Justice and Peace in Zimbabwe v Attorney General Zimbabwe 1994 (4) SA 329. Those were cases of inordinately extended delay in the carrying out of the death sentence, but the mental agony of the criminal, in its alternation of fear, hope and despair must be present even when the time between sentence and execution is measured in months or weeks rather than years.
[197]It may be said that if the punishment is cruel so was the act of the murderer. That cannot and should not be denied. In the present case the Appellants committed murders of horrifying callousness motivated by nothing but greed. In some of the cases summarised in the Attorney-General's written submissions, all of them cases in which the Appellate
