based on freedom and equality (sections 33(1)(a)(i) & (ii)).[1] As I am satisfied that section 277(1)(a) does not meet the threshold test of reasonableness, I find it unnecessary to ask whether it is justifiable in the kind of society postulated. Nor do I consider the meaning of section 33(1)(b), which is discussed in paragraphs 132, 133 and 134 of the main judgment and paragraphs 193, 194 and 195 of the judgment of Kentridge AJ.[2] In respect thereof I express no opinion.
[210]I also find it unnecessary to probe the outer limits of what is reasonable. At the very least the reasonableness of a provision which flies directly in the face of an entrenched right would have to be cogently established. Furthermore a provision relating to so basic and so precious a right as the right to life itself (without which all other rights are nought), would have to be manifestly reasonable.[3]
[211]We were favoured with literally thousands of pages of material in support of and opposed to the death penalty, ranging from the religious, ethical, philosophical and ideological to the mathematical and statistical. Mr Von Lieres, SC, who argued the retentionist cause with great skill, in essence sought to bring the death sentence within the protection of section 33(1) on the strength of its deterrent and retributive value. The main judgment deals with these two considerations[4] and I merely wish to make a few additional observations regarding deterrence.[5]
[212]Nearly a quarter of a century ago the US Supreme Court decided the watershed case of Furman v Georgia.[6] In the course of a compendiously researched opinion, Marshall J reviewed virtually every scrap of Anglo-American evidence for and against capital punishment. In the course of his "long and tedious journey" (his own description) he made the crucial finding that 200 years of research had established
"that capital punishment serves no purpose that life imprisonment could not serve
- ↑ The questions may well be asked what the distinction is between reasonable and justifiable and whether one test can be met and not the other. Be that as it may, this case is so clear that the distinction, if any, between the two criteria need not be considered.
- ↑ Relating to the meaning and effect of the prohibition in section 33(1)(b) against a limitation which "negate[s] the essential content of the right in question."
- ↑ The reasonableness of other limitations on the right to life does not arise here. Suffice it to say that there must always be a proportionality between any right and the limitation thereof sought to be saved under section 33(1).
- ↑ Paragraphs 116 to 127 on deterrence and 129 to 131 on retribution.
- ↑ No more need be said about retribution than has been said by my colleagues. See also paragraph 203 of the judgment of Kentridge AJ and paragraph 185 of the judgment of Didcott J.
- ↑ 408 US 238 (1972).
