# S v Makwanyane and Another/Ackermann J

​[152]Ackermann J: I concur fully in the judgment of the President, both regarding his conclusions and his reasons therefor, save in the respects hereinafter set forth. I also agree with the order proposed by him.
[153]I place greater emphasis on the inevitably arbitrary nature of the decision involved in the imposition of the death penalty as a form of punishment in supporting the conclusion that it constitutes "cruel", "inhuman" and "degrading punishment" within the meaning of section 11(2) of the Constitution, which cannot be saved by section 33(1).
[154]In paragraphs [43] to [56] of his judgment the President deals with the arbitrariness and inequality of the death penalty. He deals (more particularly in paragraphs [55] and [56]) with the difficulties faced by the US Supreme Court in trying to eliminate the dangers of arbitrariness by employing the due process provisions of the Fifth and Fourteenth Amendments. Such efforts cause considerable expense and interminable delays, and the President concludes by expressing the view that we should not follow the United States route. I agree, but that does not mean that we ought not to accord greater weight to considerations of arbitrariness and inequality. The US Supreme Court has been obliged to follow the route it did because, so it seems to me, their Constitution postulates (by implication) that it is possible to devise due process mechanisms which can deal with the arbitrary and unequal features of death sentence imposition. We are not so constrained. Our right to life is not qualified in the way it is qualified in the Fifth and Fourteenth Amendments of the US Constitution. We are not constitutionally constrained to accept the arbitrary consequences of the imposition of the death penalty.
[155]The preamble to the Constitution refers to the creation of a new order in a state, which, amongst other things, is described as a "constitutional state." Section 4(1) declares the Constitution to be the "supreme law of the Republic" which by virtue of section 4(2) "binds all legislative, executive and judicial organs of state at all levels of government." Every person's right to equality before the law is entrenched in section 8(1) and in section 8(2) a substantial number of different grounds of unfair discrimination are prohibited. The constitutional importance of equality is further underscored in section 35(1) which enjoins the courts to promote the values which underlie an open and democratic society based on freedom and equality in interpreting the provisions of Chapter 3.
[156]In reaction to our past, the concept and values of the constitutional state, of the "regstaat", and the constitutional right to equality before the law are deeply foundational to the creation of the "new order" referred to in the preamble. The detailed enumeration and description in section 33(1) of the criteria which must be met before the legislature can limit a right entrenched in Chapter 3 of the Constitution emphasises the importance, in our new constitutional state, of reason and justification when rights are sought to be curtailed. We have moved from a past characterised by much which was arbitrary and unequal in the operation of the law to a present and a future in a constitutional state where state action must be such that it is capable of being analysed and justified rationally. The idea of the constitutional state presupposes a system whose operation can be rationally tested against or in terms of the law. Arbitrariness, by its very nature, is dissonant with these core concepts of our new constitutional order. Neither arbitrary action nor laws or rules which are inherently arbitrary or must lead to arbitrary application can, in any real sense, ​be tested against the precepts or principles of the Constitution. Arbitrariness must also inevitably, by its very nature, lead to the unequal treatment of persons. Arbitrary action, or decision making, is incapable of providing a rational explanation as to why similarly placed persons are treated in a substantially different way. Without such a rational justifying mechanism, unequal treatment must follow.
[157]It is in the context of our (textually) unqualified section 9 right to life that I find certain observations in the US decisions supportive on the issue and consequences of arbitrariness. We are free to look at the incidence and consequences of arbitrariness without being constrained by a constitutional authorization (whether explicit or implicit) of the death penalty. One must of course constantly bear in mind that the relevant criteria in the Eighth Amendment of the US Constituion also differ from those in section 11(2) of our Constitution. Whereas in the former they are "cruel and unusual" in the latter they are "cruel, inhuman or degrading".
[158]In Furman v. Georgia the US Supreme Court had to consider a case where the determination of whether the penalty for murder and rape should be death or another punishment was left by the State of Georgia to the discretion of the judge or of the jury. In the course of his judgment Douglas J referred with approval to the following comments in a journal article:
   "A penalty … should be considered 'unusually' imposed if it is administered arbitrarily or discriminatingly … [t]he extreme rarity with which applicable death penalty provisions are put to use raises a strong inference of arbitrariness."
​He further expressed the view that—
   "[t]he high service rendered by the 'cruel and unusual' punishment clause of the Eighth Amendment is to require legislatures to write penal laws that are evenhanded, non-selective, and nonarbitrary …"
[159]On the issue of arbitrariness Brennan J observed in Furman that—
   "In determining whether a punishment comports with human dignity, we are aided also by a second principle inherent in the [Cruel and Unusual Punishments] Clause—that the State must not arbitrarily inflict a severe punishment. This principle derives from the notion that the State does not respect human dignity when, without reason, it inflicts upon some people a severe punishment that it does not inflict upon others."
He also stated (in a context not dissimilar to ours where a vast number of murders are committed, a large number of accused charged and convicted but relatively few ultimately executed) that—
   "No one has yet suggested a rational basis that could differentiate in those terms the few who die from the many who go to prison. Crimes and criminals simply do not admit of a distinction that can be drawn so finely as to explain, on that ground, the execution of such a tiny sample of those eligible … Nor is the distinction credible in fact."
[160]Stewart J founded his judgment on the fact that the imposition of so extreme a penalty in pursuance of the Georgia statute was inevitably arbitrary. After referring to the fact that "the petitioners are among a capriciously selected random handful upon whom the sentence of death has in fact been imposed" he concludes simply by holding that—
   "the Eighth and Fourteenth Amendments cannot tolerate the infliction of a sentence of death under legal systems that permit this unique penalty to be so wantonly and so freakishly imposed"
[161]In Callins v. Collins, cert. denied, 114 S.Ct. 1127, 127 L.Ed 435 (1994) Blackmun J filed a dissenting opinion. In it he observed that—
   "[e]xperience has taught us that the constitutional goal of eliminating arbitrariness and discrimination from the administration of death, see Furman v. Georgia, supra, can never be achieved without ​compromising an equally essential component of fundamental fairness individualized sentencing. See Lockett v. Ohio, 438 U.S. 586 (1978)."
and, commenting upon its unavoidable arbitrariness, that—
   "[i]t is virtually self-evident to me now that no combination of procedural rules or substantive regulations ever can save the death penalty from its inherent constitutional deficiencies. The basic question—does the system accurately and consistently determine which defendants 'deserve' to die?—cannot be answered in the affirmative."
He further expressed the view that—
   "[a]lthough most of the public seems to desire, and the Constitution appears to permit, the penalty of death, it surely is beyond dispute that if the death penalty cannot be administered consistently and rationally, it must not be administered at all." (emphasis added)
and that, in the aftermath of the Furman judgment—
   "[i]t soon became apparent that discretion could not be eliminated from capital sentencing without threatening the fundamental fairness due a defendant when life is at stake. Just as contemporary society was no longer tolerant of the random or discriminatory infliction of the penalty of death … evolving standards of decency required due consideration of the uniqueness of each individual defendant when imposing society's ultimate penalty … [T]he consistency and rationality promised in Furman are inversely related to the fairness owed the individual when considering a sentence of death. A step toward consistency is a step away from fairness".
[162]In considering a constitutional right to life unfettered by the restraints or interpretative problems of the right in the US Constitution, I am of the view that the above dicta are appropriate to the issue of the constitutionality of the death sentence in South Africa. As general propositions, which can be applied in the context of our Constitution, I would accept and endorse the views of Blackmun J.
[163]As to the more general principle that arbitrariness conflicts with the idea of a right to equality and equality before the law I am fortified in my view by the following remarks of Bhagwati, J in Gandhi v. Union of India 1978 SC 597 at 624:
   "We must reiterate here what was pointed out by the majority in E.P. Royappa v. State of Tamil Nadu (1974) 2 SCR 348: (AIR 1974 SC 555) namely, that 'from a positivistic point of view, equality is antithetic to arbitrariness. In fact equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic, while the other, to the whim and caprice of an absolute ​monarch. Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is, therefore violative of Article 14.'"
[164]I am mindful of the fact that it is virtually impossible (save in the case of rigidly circumscribed mandatory sentences—which present other dangers) to avoid elements of arbitrariness in the imposition of any punishment. Arbitrary elements are present in the difficult decision to send an offender to prison for the first time, or in deciding what the appropriate length of the prison sentence should be in any case where it is imposed. However, the consequences of the death sentence, as a form of punishment, differ so radically from any other sentence that the death sentence differs not only in degree but also in substance from any other form of punishment. A sentence which preserves life differs incomparably from one which obliterates life. The executed person has, in fact, "lost the right to have rights." In this sense the death sentence is unique and the dimension and consequences of arbitrariness in its imposition differ fundamentally from the dimension and consequences of arbitrariness in the imposition of any other punishment.
[165]In paragraphs [44] to [46] of his judgment the President has referred to the relevant statutory provisions prescribing the tests to be applied for the imposition of the death sentence and the guidelines laid down for their application by the Appellate Division of the Supreme Court. In the end, whatever guidelines are employed, a process of weighing up has to take place between "mitigating factors" (if any) and "aggravating factors" and thereafter a value judgment made as to whether "the sentence of death is the proper sentence." I am not suggesting that the statutory provisions could have been better formulated or that the Appellate Division guidelines could be improved upon. The fact of the matter is that they leave such a wide latitude for differences of individual assessment, evaluation and normative judgment, that they are inescapably arbitrary to a marked degree. There must be many borderline cases where two courts, with the identical accused and identical facts, would undoubtedly come to different conclusions. ​I have no doubt that even on a court composed of members of the genus Hercules and Athena there would in many cases be differences of opinion, incapable of rational elucidation, on whether to impose the death penalty in a particular case, where its imposition was, as in the case of section 277(1) of the Criminal Procedure Act, dependant on the application of widely formulated criteria and the exercise of difficult value judgments.
[166]The conclusion which I reach is that the imposition of the death penalty is inevitably arbitrary and unequal. Whatever the scope of the right to life in section 9 of the Constitution may be, it unquestionably encompasses the right not to be deliberately put to death by the state in a way which is arbitrary and unequal. I would therefore hold that section 277(1)(a) of the Criminal Procedure Act is inconsistent with the section 9 right to life. I would moreover also hold that it is inconsistent with section 11(2). Where the arbitrary and unequal infliction of punishment occurs at the level of a punishment so unique as the death penalty, it strikes me as being cruel and inhuman. For one person to receive the death sentence, where a similarly placed person does not, is, in my assessment of values, cruel to the person receiving it. To allow chance, in this way, to determine the life or death of a person, is to reduce the person to a cypher in a sophisticated judicial lottery. This is to treat the sentenced person as inhuman. When these considerations are taken in conjunction with those set forth by the President in his judgment, they render the death penalty a cruel, inhuman and degrading punishment. For the reasons expounded by the President in his judgment, and with which I fully agree, neither the infringement of section 9 nor of section 11(2) by section 277(1)(a) of the Criminal Procedure Act, can be saved by the provisions of section 33(1) of the Constitution. Accordingly the provisions of section 277(1)(a) must be held to be inconsistent with sections 9 and 11(2) of the Constitution.
[167]In paragraphs [132] to [134] of his judgment the President alludes to the provision in section 33(1)(b) of the Constitution that a limitation "shall not negate the essential content of the right in question" but, after referring to uncertainties concerning its meaning, finds it unnecessary to resolve the issue in the present case. In paragraph [133] he postulates, however, a subjective and an objective approach to the problem. I do not necessarily agree with his formulation of the objective approach. In my view it is unnecessary in the present case to say anything at all about the meaning to be attached to this provision. It is one which the framers of our Constitution borrowed in part from article 19(2) of the [[Basic Law for the Federal Republic of Germany|German Basic Law ("Grundgesetz") which provides that—
   "In keinem Falle darf ein Grundrecht in seinem Wesensgehalt angetastet werden"
   ("In no case may the essence of a basic right be encroached upon")
There are obvious differences in the wording of the qualification. Nevertheless there is a wealth of German case law and scholarship on the topic. Without the fullest exposition of, and argument on, ​inter alia, the German jurisprudence in this regard, I consider it undesirable to express any view on the subject.
[168]Members of the public are understandably concerned, often frightened, for their life and safety in a society where the incidence of violent crime is high and the rate of apprehension and conviction of the perpetrators low. This is a pressing public concern. However important it undoubtedly is to emphasise the constitutional importance of individual rights, there is a danger that the other leg of the constitutional state compact may not enjoy the recognition it deserves. I refer to the fact that in a constitutional state individuals agree (in principle at least) to abandon their right to self-help in the protection of their rights only because the state, in the constitutional state compact, assumes the ​obligation to protect these rights. If the state fails to discharge this duty adequately, there is a danger that individuals might feel justified in using self-help to protect their rights. This is not a fanciful possibility in South Africa. "The need for a strong deterrent to violent crime" is underscored by the President in his judgment as is the duty of the state, through the criminal justice system, to ensure that offenders will be apprehended and convicted, for these steps are conditions precedent to punishment.
[169]Apart from deterring others, one of the goals of punishment is to prevent the convicted prisoner from committing crimes again. Both the preventative and reformative components of punishment are directed towards this end, although reformation obviously has the further commendable aim of the betterment of the prisoner. Society as a whole is justifiably concerned that this aim of punishment should be achieved and society fears the possibility that the violent criminal, upon release from prison, will once again harm society. Society is particularly concerned with the possibility of this happening in the case of an unreformed recidivist murderer or rapist if the death penalty is abolished.
[170]The President has rightly pointed out in his judgment that in considering the deterrent effect of the death sentence the evaluation is not to be conducted by contrasting the death penalty with no punishment at all but between the death sentence and "severe punishment of a long term of imprisonment which, in an appropriate case, could be a sentence of life imprisonment"; I agree with this approach. With the abolition of the death penalty society needs the firm assurance that the unreformed recidivist murderer or rapist will not be released from prison, however long the sentence served by the prisoner may have been, if there is a reasonable possibility that the prisoner will repeat the crime. Society needs to be assured that in such cases the state will see to it that such a recidivist will remain in prison permanently.
[171]I appreciate the concern of not wishing to anticipate the issue as to whether life imprisonment, however executed and administered, is constitutional or not. At the same time I do not believe that the two issues can be kept in watertight separate juristic compartments. If the death penalty is to be abolished, as I believe it must, society is entitled to the assurance that the state will protect it from further harm from the convicted unreformed recidivist killer or rapist. If there is an individual right not to be put to death by the criminal justice system there is a correlative obligation on the state, through the criminal justice system, to protect society from once again being harmed by the unreformed recidivist killer or rapist. The right and the obligation are inseparably part of the same constitutional state compact.
[172]Article 102 of the German Basic Law declares that capital punishment is abolished. The German Federal Constitutional Court considered the constitutionality of life imprisonment in 1977. The provision in the criminal code which prescribes life imprisonment for murder was challenged on the basis that it conflicted with the protection afforded to human dignity (art 1.1) and personal freedom (art 2.2) in the German Basic Law. The Court upheld the law on the basis that it was not shown that the serving of a sentence of life imprisonment leads to irreparable physical or psychological damage to the prisoner's health. The Court did however find that the right to human dignity demands a humane execution of the sentence. This meant that the existing law, which made provision for executive pardon, had to be replaced by a law laying down objective criteria for the release of prisoners serving life sentences. In the course of its judgment, the Court made clear that there is nothing constitutionally objectionable to executing a life sentence in full in cases where the prisoner does not meet the criteria. At page 242 of the judgment the Court said:
   "Die Menschenwürde wird auch dann nicht verletzt, wenn der Vollzug der Strafe wegen fortdauernder Gefährlichkeit des Gefangenen notwendig ist und sich aus diesem Grunde eine Begnadigung verbietet. Es ist der staatlichen Gemeinschaft nicht verwehrt, sich gegen einen gemeingefährlichen ​Straftäter durch Freiheitsentzug zu sichern."
   ("Human dignity is not infringed when the execution of the sentence remains necessary due to the continuing danger posed by the prisoner and clemency is for this reason precluded. The state is not prevented from protecting the community from dangerous criminals by keeping them incarcerated".)
* ↑ See in general Prof. E Mureinik 'A Bridge to Where? Introducing the Interim Bill of Rights' 10 (1994) SAJHR 31. At 32 the learned author points out that— "If the new Constitution is a bridge away from a culture of authority, it is clear what it must be a bridge to. It must lead to a culture of justification—a culture in which every exercise of power is expected to be justified; … If the Constitution is to be a bridge in this direction, it is plain that the Bill of Rights must be its chief strut". At 38 he points out that Chapter 3 of the Constitution, and in particular section 24, the administrative justice clause— "gives a lead which, properly followed, would put South Africa at the frontiers of the search for a culture of justification."
* ↑ 408 US 238 (1972).
* ↑ Id. at 249.
* ↑ Id. at 256.
* ↑ Id. at 274.
* ↑ Id. at 294.
* ↑ Id. at 309–310.
* ↑ Callins v. Collins, supra, at 1129.
* ↑ Id. at 1130.
* ↑ Id. at 1131.
* ↑ Id. at 1132.
* ↑ Trop v. Dulles 356 US 84 (1958) at 102 quoted with approval by Brennan J in Furman, supra note 2, at 289. See also Stewart J in Furman at 306: "The penalty of death differs from all other forms of criminal punishment, not in degree but in kind. It is unique in its total irrevocability. It is unique in its rejection of rehabilitation of the convict as a basic purpose of criminal justice. And it is unique, finally, in its absolute renunciation of all that is embodied in our concept of humanity."
* ↑ In Callins v. Collins, supra, at 1132, Blackmun J, quoting from the opinion of Stewart, Powell and Stevens JJ in Woodson v. North Carolina 428 US 280 (1976) at 305, pointed out that because of the qualitative difference of the death penalty, "there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case."
* ↑ Prof. Dworkin's lawyer "of superhuman skill, learning, patience and acumen"; see Taking Rights Seriously (1978) 105.
* ↑ From the official translation published by the Press and Information Office of the Federal Government, Bonn (1994).
* ↑ Decisions of the Federal Constitutional Court: 2 BVerfGE 266 at 285; 6 BVerfGE 32 at 41; 7 BVerfGE 377 at 411; 13 BVerfGE 97 at 122; 15 BVerfGE 126 at 144; 16 BVerfGE 194 at 201; 21 BVerfGE 92 at 93; 22 BVerfGE 180 at 218; 27 BVerfGE 344 at 350; 30 BVerfGE 1 at 24; 30 BVerfGE 47 at 53; 31 BVerfGE 58 at 61; 32 BVerfGE 373 at 379; 34 BVerfGE 238 at 245; 58 BVerfGE 300 at 348; 61 BVerfGE 82 at 113; 80 BVerfGE 367 at 373. Decisions of the Federal Administrative Court: 1 BVerwGE 92 at 93; 1 BVerwGE 269 at 270; 2 BVerwGE 85 at 87; BVerwGE reported in 90 Deutsches Verwaltungsblatt at 709. Decisions of the Federal Court of Justice: 4 BGHSt 375 at 377 (also reported in 1955 Die Öffentliche Verwaltung at 176); 4 BGHSt 385; 5 BGHSt 375; 6 BGHZ 270 at 275; 22 BGHZ 168 at 176. General academic works: Von Münch/Kunig Grundgesetz Kommentar (1992) 997–1004; Leibholz-Rinck-Hesselberger Grundgesetz Kommentar an Hand der Rechtsprechung des Bundesverfassungsgerichts (1994) (commentary on art.19) 16–18; Maunz-Dürig-Herzog Grundgesetz Kommentar (1991) (commentary on art.19II) 1–14; Jarass/Pieroth Grundgesetz für die Bundesrepublik Deutschland (1992) 336–8; J Isensee & P Kirchhof (eds) Handbuch des Staatsrechts vol 5 (1992) 795; E Denninger in Reihe Alternativkommentare Kommentar zum Grundgesetz für die Bundesrepublik Deutschland (1984) 1179; Schmidt-Bleibtreu-Klein Kommentar zum Grundgesetz (1990) 397-9; K Hesse Grundzüge des Verfassungsrechts der Bundesrepublik Deutschland (1991) 140; Von Mangoldt/Klein Das Bonner Grundgesetz (1966) 551; K Doehring Allgemeine Staatslehre (1991) 222; Maunz-Zippelius Deutsches Staatsrecht (1991) 161. Specialist literature on art.19(2) GG: P Häberle Die Wesensgehaltgarantie des Artikels 19 Abs. 2 Grundgesetz (1983); E von Hippel Grenzen und Wesensgehalt der Grundrechte (1965); H Krüger 'Der Wesensgehalt der Grundrechte des Art.19 GG' (1955) Die Öffentliche Verwaltung 597; L Scheider Der Schutz des Wesensgehalts von Grundrechten nach Art.19 Abs.2 GG (1983); G Herbert 'Der Wesensgehalt der Grundrechte' 12 (1985) Europäische Grundrechte Zeitschrift 321; Zivier Der Wesensgehalt der Grundrechte Diss. Berlin (1960); J Chlosta Der Wesensgehalt der Eigentumsgewährleistung (1975); P Lerche Übermass und Verfassungsrecht (1961); Kaufmann 'Über den 'Wesensgehalt' der Grund- und Menschenrechte' (1984) Archiv für Rechts- und Sozialphilosophie 384; E Denninger 'Zum Begriff des 'Wesensgehaltes' in der Rechtsprechung (Art.19.Abs.II GG)' (1960) Die Öffentliche Verwaltung 812.
* ↑ Para. 117.
* ↑ Para. 123.
* ↑ 45 BVerfGE 187.