Opinions regarding the death penalty differ substantially. There are those who feel that the death penalty is a cruel and inhuman form of punishment. Others are of the opinion that it is in some extreme cases the community's only effective safeguard against violent crime and that it gives effect in such cases to the retributive and deterrent purposes of punishment.[1]
He went on to say that policy in regard to the death penalty might be settled during negotiations on the terms of a Bill of Fundamental Rights, and that pending the outcome of such negotiations, execution of death sentences which had not been commuted, would be suspended. He concluded his statement by saying that:
The government wishes to see a speedy settlement of the future constitutionality of this form of punishment and urges interested parties to join in the discussions on a Bill of Fundamental Rights.[2]
[24]The moratorium was in respect of the carrying out, and not the imposition, of the death sentence. The death sentence remained a lawful punishment and although the courts may possibly have been influenced by the moratorium, they continued to impose it in cases in which it was considered to be the "only proper" sentence. According to the statistics provided to us by the Attorney General, 243 persons have been sentenced to death since the amendment to section 277 in 1990, and of these sentences, 143 have been confirmed by the Appellate Division.
[25]In the constitutional negotiations which followed, the issue was not resolved. Instead, the "Solomonic solution" was adopted.[3] The death sentence was, in terms, neither
- ↑ South African Government Heads of Argument, Vol 1, authorities, 32–34.
- ↑ Id.
- ↑ This is apparent from the reports of the Technical Committee on Fundamental Rights and, in particular, the Fourth to the Seventh reports, which were brought to our attention by counsel. The reports show that the question whether the death penalty should be made an exception to the right to life was "up for debate" in the Negotiating Council. The Sixth Report contained the following references to the right to life:
Life: (1) Every person shall have the right to life. (2) A law in force at the commencement of subsection (1) relating to capital punishment or abortion shall remain in force until repealed or amended by the [legislature]. (3) No sentence of death shall be carried out until the [Constitutional Assembly] has pronounced finally on the abolition or retention of capital punishment.
[Comment: The Council still has to decide on the inclusion of this right and if so whether its formulation should admit of qualification of the type suggested above. The unqualified inclusion of the right will result in the [Constitutional Court] having to decide on the validity of any law relating to capital punishment or abortion.] Sixth Report, 15 July 1993 at 5.
In the Seventh Report the right to life was formulated in the terms in which it now appears in section 9 of the Constitution. The report contained the following comment:
[Comment: The Ad Hoc Committee appointed by the Planning Committee recommends the unqualified inclusion of this right in the Chapter. We support this proposal.] Seventh Report, 29 July 1993 at 3.
