the affirmative" (Callins v Collins 114 S. Ct. 1127; 127 L.Ed.2d 435 (1994) (Blackmun J, dissenting)).
[274]It must, of course, be conceded that the factors which ensure arbitrariness in the judicial application of the death sentence, must in some considerable measure also influence a sentence of imprisonment, but there is an enormous difference between the death sentence and imprisonment or any other sentence. It is a qualitative and not just a quantitative difference. The unfair consequences of a wrong sentence of imprisonment can be reversed. Death, however, is final and irreversible. The accused, who is imprisoned, is still able to exercise, within the discipline of the prison, in varying degrees, some of the other rights which the Constitution guarantees to every person. The executed prisoner loses the right to pursue any other right. He simply dies.
[275]For substantially the reasons given by Chaskalson P, I am further of the view that the death penalty is also inconsistent with section 11(2) of the Constitution which provides that:
"No person shall be subject to torture of any kind, whether physical, mental or emotional, nor shall any person be subject to cruel, inhuman or degrading treatment or punishment."
[276]The different parts of section 11(2) must be read disjunctively. The death sentence would (subject to section 33) offend section 11(2) if it constitutes
(See Ex Parte Attorney-General, Namibia: In re Corporal Punishment 1991 (3) SA 76 (NmSC) at 86B–D)
[277]In my view, the death sentence does indeed constitute cruel, inhuman or degrading punishment within the meaning of those expressions in section 11(2).
[278]Undoubtedly, this conclusion does involve in some measure a value judgment, but it is a value judgment which requires objectively to be formulated, having regard to the ordinary meaning of the words used in section 11(2); its consistency with the other rights protected by the Constitution and the constitutional philosophy and humanism expressed both in the preamble and the postamble to the Constitution; its harmony with the national ethos which the Constitution identifies; the historical background to the structures and objectives of the Constitution; the discipline of proportionality to which it must legitimately be subject; the effect of the death sentence on the right to life protected by the Constitution; its inherent arbitrariness in application; its impact on human dignity; and its consistency with constitutional perceptions evolving both within South Africa and the world outside with which our country shares emerging values central to the permissible limits and objectives of punishment in the civilized community.
