Does the Death Penalty Exist in South Africa?

Capital punishment has been a controversial topic in almost every country that has considered it. Whether you’re for or against it, you will usually find no shortage of kindred spirits who feel just as strongly about the subject. South Africa is no exception. Since the country’s founding, arguments have been made both in support and in opposition to the contentious decision. So, what does the law have to say on this subject? Is there such a thing as the death penalty in South Africa?

The death penalty does not exist in South Africa, following a moratorium in 1990, capital punishment was officially abolished throughout the country in 1995.

Why does The death penalty not exist in South Africa? In February 1990 a temporary prohibition was established while the topic was discussed. Eventually, on the 6th of June 1995, a landmark case was decided by the Constitutional Court that abolished capital punishment throughout the country and prohibited the executions of death row inmates that were awaiting punishment.

The court’s ruling on the matter as well as the outcome of the original case has been widely criticized with many still calling for the reinstatement of the death penalty in recent years. This begs the question, what was the landmark case and how was it decided?

What case caused the death penalty to be abolished in South Africa?

S v Makwanyane and Another was originally a case involving the sentencing of T Makwanyane and M Mchunu after the accused were found guilty on four counts of murder and one count of robbery with aggravating circumstances.

The pair were sentenced to death and subsequent appeals were dismissed. The case fundamentally shifted in scope however when the legal team of the defendants argued that the death penalty was at odds with sections 9 and 11(2) of the constitution.

Section 11 was specifically cited as a provision for the right to life. Judicial execution was thus argued as being antithetical to this right. It is important to note however that this section does not explicitly outlaw the practice of the death penalty, rather the courts interpreted the language of the text as implying it.

The basic argument was that the constitution of South Africa held certain rights to be of paramount importance, namely, the right to life and dignity while remaining free from cruel and inhuman punishments.

The defense argued that capital punishment infringed upon these constitutional rights and the case was ultimately turned over to the Constitutional Court.

After much deliberation, the court unanimously agreed to the abolishment of the death penalty, however, all judges based their decisions on different factors.

The two primary influences for the judges were:

• The prohibition of cruel or inhumane treatment – Judge Arthur Chaskalson and others repeatedly pointed out the constitution’s protections that guarded against ‘cruel punishments’ and argued that these protections were incongruous with the concept of capital punishment.
•  The element of chance – The judges considered that any given sentence is comprised of multiple instances of ‘chance’ ranging from the efforts of the police investigations to the skill of the lawyers. Simply put, there were too many variables that may impact a case – this highlights the importance of the appeals. If a case has been wrongly decided, it may yet be appealed to a different court. Once the death penalty is enacted, however, the appeals can no longer reverse or correct the punishment.

Perhaps the chief contention made against the court’s decision was with regard to the matter of interpretation of the law.

How is the constitution interpreted and what is Constitutional Silence?

As previously mentioned, capital punishment was not explicitly referenced in the Constitution as being permissible as a judicial punishment. It was, however, not stated as being a cruel or inhumane punishment either.

When an aspect of the law is not specifically covered by the constitution, the role of the interpreter is usually passed on to judges.

The ‘International Journal of Constitutional Law, Volume 16, Issue 3’ refers to these instances as ‘Constitutional Silence’. When S v Makwanyane and Another reached the legal system, the judges found themselves in this very situation. Neither the Interim Constitution (which was in use during the original sentencing) or the current Constitution comprehensively covers the legality or morality of capital punishment. Thus, the constitutional court of the time had to interpret the law as they saw fit.

They determined that the death penalty was not in line with the constitution of the country.

Dissent and Objections to the Ruling

As pointed out, the 11 sitting judges at the time unanimously decided that the death penalty should be abolished. The Attorney General did, however, express the belief that the majority of South Africans at the time were probably in favour of the death penalty, regardless he asserted that the court’s decisions would not be swayed by public opinion.

He stated that “The question before us, however, is not what the majority of South Africans believe a proper sentence for murder should be. It is whether the Constitution allows the sentence.”

But what does the general populace think of capital punishment now? Do South Africans want the death penalty to be reinstated?

Some opinion polls show the majority of South Africans are in favour of a reinstatement of the death penalty. In recent years the argument has resurfaced multiple times and there seems to still be a healthy number of citizens who would prefer that the death penalty be brought back. At the time of writing, a Change.org petition that calls for the return of the death penalty has over 650,000 signatures.

Many advocates have drawn attention to issues such as gender-based violence and child homicide as sufficient reasoning for a repeal of the current ruling. President Ramaphosa has responded in decisive terms stating that the government will not enter into the business of judicial executions.

Arguments for and Against

Moral arguments for and against the death penalty are both numerous and complex and unfortunately, many countries lack the raw polling data to grasp the nation’s underlying ethical viewpoint.

In lieu of local data, we can turn briefly to studies conducted in the United States which show a gradual decrease in the number of individuals who view the death penalty as morally acceptable while public support for the issue is concurrently diminishing.

A less abstract argument is the one between Deterrence and Incapacitation.

The argument in favour of Deterrence suggests that the possibility of receiving a death sentence will dissuade potential crimes that may carry such a punishment whereas the argument for Incapacitation posits that the execution of certain criminals will prevent them from committing further, similar crimes.

The Issue with Deterrence and the cost of Punishment

Many studies have been conducted over the years to try and determine the overall effectiveness of capital punishment as a deterrent for some of the more heinous crimes. Other studies have tried to revise the potential economic benefits or drawbacks of the death penalty, for example, ‘How much money would the state save if prisoners serving life without parole were executed rather than living in prison for decades wherein they require food, water, shelter, electricity, etc.

The same issue affects both these questions and almost all of the related studies, namely – The subject pool is generally too small to measure accurately or to be of much real-world consequence.

Put simply, when considering whether or not the death penalty is an effective deterrent, most data ends up being more or less inconclusive as it is usually such a rare punishment imposed upon equally rare criminals that determining its real-world effects is almost impossible. Likewise, any potential economic upshots are of little importance as the relevant costs pale in comparison to government spending in almost any other realm.

It should be considered that many reputable sources, such as criminologist Jeffrey Fagan, a professor of law at Columbia University, have claimed that no credible data suggests that deterrence via the death penalty is realistically achieved. Additionally, the South African court responsible for making the decision on the abolishment of capital punishment also found no evidence to show that the death penalty was a more effective deterrent than life imprisonment.

In Conclusion – Does the Death Penalty exist in South Africa and what arguments surround it?

The death penalty does not exist in South Africa, following a moratorium in 1990, capital punishment was officially abolished throughout the country in 1995.

The basis for the abolition was multifaceted but the most prominent factor was the constitutional court’s interpretation of Section 11 of the constitution which prohibited cruel and inhumane punishments. The act of judicial execution was viewed as cruel and inhumane and was thus at odds with the country’s new governing principles.

The decision was mostly unpopular at the time and has remained a focal point of much debate and discussion ever since. Many South Africans are in favour of reinstating capital punishment with many believing that it will act as a deterrent against gender-based violence and infanticide, although, many researchers and data sets seem to show no real difference between the deterrent abilities of the death penalty and live imprisonment.    

Disclaimer LAW101: All of our posts are for research purposes only. Law 101 aims to assist its readers with useful information on the laws of our country that can guide you to make decisions in line with the South African Governmental Laws currently in place. Although in many instances, our posts cite the constitution, they are intended to assist readers who are looking to expand their knowledge of the law. Should you require specific legal advice we advise you to get in touch with a qualified legal expert.

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