make every effort to exhaust all possible review avenues open to them. All this time they are subjected to a fate of ever increasing fear and distress. They know not what their future is and whether their efforts will come to nought; they live under the sword of Damocles—they will be advised any day about their appointment with the hangman. It is true that they might have shown no mercy at all to their victims, but we do not and should not take our standards and values from the murderer. We must, on the other hand, impose our standards and values on the murderer.
[248]In the aforementioned Zimbabwe case, the court concluded that the incarceration of the condemned person under those conditions was in conflict with the provisions of Section 15(1) of the Zimbabwe Constitution, which like our Constitution, has entrenched guarantees against torture or inhuman and degrading punishment.
[249]The so-called "death row phenomenon" also came under attack in the case of Soering v United Kingdom (1989) 11 EHRR 439.
From the statistics supplied by the Attorney-General and from what one gleans daily from the newspapers and other media, we live at a time when the high crime rate is unprecedented, when the streets of our cities and towns rouse fear and despair in the heart, rather than pride and hope, and this in turn, robs us of objectivity and personal concern for our brethren. But, as Marshall J put it in Furman v Georgia (supra) at 371:
"The measure of a country's greatness is its ability to retain compassion in time of crisis."
[250]This, in my view, also accords with ubuntu—and calls for a balancing of the interest of society against those of the individual, for the maintenance of law and order, but not for dehumanising and degrading the individual.
[251]We must stand tallest in these troubled times and realise that every accused person who is sent to jail is not beyond being rehabilitated—properly counselled—or, at the very least, beyond losing the will and capacity to do evil.
[252]A further aspect which I wish to mention is the question of traditional African jurisprudence, and the degree to which such values have not been researched for the purposes of the determination of the issue of capital punishment.
[253]Ms Davids, who appeared on behalf of the Black Advocates Forum, in its capacity as amicus curiae, touched on but did not fully argue this matter.
[254]She submitted that we could not determine the question of the constitutionality or otherwise of the death sentence without reference to further evidence which would include the views, aspirations and opinions of the historically disadvantaged and previously oppressed people of South Africa, who also constitute the majority of our society.
[255]As I understood her argument, the issue of capital punishment could not be determined in an open and democratic society without the active participation of the black majority. This, in my view, would be tantamount to canvassing public opinion among the black
