population for the decisions of our courts. I do not agree with this submission, if it implies that this Court or any other court must function according to public opinion.
[256]In order to arrive at an answer as to the constitutionality or otherwise of the death penalty or any enactment, we do not have to canvass the opinions and attitudes of the public. Ours is to interpret the provisions of the Constitution as they stand and if any matter is in conflict with the Constitution, we have to strike it down.
[257]We, as judges, are oath bound to defend the Constitution. This obligation, in turn, requires that any enactment of Parliament should be judged by standards laid down by the Constitution. The judiciary has the duty of implementing the constitutional safeguards that protect individual rights. When the State seeks to take away the individual fundamental right to life, the safeguards of the Constitution should be examined with special diligence. When it appears that an act of Parliament conflicts with the provisions of the Constitution, we have no choice but to enforce the paramount commands of the Constitution. We are sworn to do no less.
[258]I agree with Ms Davids' submission about the need to bring in the traditional African jurisprudence to these matters, to the extent that such is applicable, and would not confine such research to South Africa only, but to Africa in general.
[259]For purposes of the determination of the question of the constitutionality of the death penalty, however, it is, in my view, not necessary or even desirable that public opinion should be sought on the matter in the manner she suggests.
[260]In my view, the death penalty does not belong to the society envisaged in the Constitution, is clearly in conflict with the Constitution generally and runs counter to the concept of ubuntu; additionally and just as importantly, it violates the provisions of Section 11(2) of the Constitution and, for those reasons, should be declared unconstitutional and of no force and effect.
[261]Mahomed J: I have had the privilege of reading the full and erudite judgment of Chaskalson P in this matter. I agree with the order proposed by him and in general with the reasons given by him for that order. Regard being had, however, to the crucial consequences of the debate on capital punishment, and the multiplicity of potential constitutional factors and nuances which impact on its resolution, I think it is desirable for me to set out briefly some of my responses to this debate in order to explain why I have come to the conclusion that capital punishment is prohibited by the Constitution.
[262]All Constitutions seek to articulate, with differing degrees of intensity and detail, the shared aspirations of a nation; the values which bind its people, and which discipline its government and its national institutions; the basic premises upon which judicial, legislative and executive power is to be wielded; the constitutional limits and the conditions upon which that power is to be exercised; the national ethos which defines and regulates that exercise; and the moral and ethical direction which that nation has identified for its future. In some countries, the Constitution only formalizes, in a legal instrument, a historical consensus of values and aspirations evolved incrementally from
