1er Congrès mondial contre la peine de mort
Strasbourg - 21, 22, 23 juin 2001

WORKSHOP 3

Madam Chair & Colleagues
Thank you very much for this opportunity to speak briefly about the death penalty and its abolition in South Africa.
As the death penalty was abolished by our Constitutional Court in 1995 , I am taking the liberty of departing somewhat from the suggested themes.
I wish to start with the description of a savage execution carried out in 1669:-
‘On 11 December 1669, it was reported that a female slave named Susanna was suffering from smallpox and had strangled her infant. The next day the Council (that is, Commander Borghorst and his Council), “Having considered this serious affair, at once ordered that this murderous pig be placed in confinement and be punished according to her deserts”. ‘The next day the Council decreed that she be tied in a bag and thrown alive into the sea. She was accordingly drowned the next day as ordered.” ’2’
The significance of this punishment is that it was inflicted on a slave. The history of the death penalty in SA illustrates that it was overwhelmingly imposed on the poor, the voiceless and above all the Black.3
In the period between 1911 and 1989 - 4,279 persons were executed in South Africa.4 In the 57 years between 1911 and 1968 - 2,323 executions were performed but in the 21 years between 1968 and 1989 – 1,957 persons were executed, with 164 executions taking place in 1987 at the height of apartheid repression in South Africa.5
By 1917 capital punishment in South Africa was limited to murder, treason and rape. Between 1958 and 1967 capital punishment was made applicable to robbery and housebreaking with aggravating circumstances, sabotage, the undergoing of training abroad for the purpose of furthering communism, the furthering overseas of economic and social change in South Africa by means of violent means, kidnapping and participation in terrorist activities.6 The proliferation of offences was clearly aimed at political opposition and co-incided, as Devenish has stated7, with “an intensification of political oppression.”
As most accused facing the death sentence were poor they had to rely overwhelmingly on Pro-Deo defence. The Pro-Deo system was described as follows by the President of the Constitutional Court in the Makwanyane case:8 “Most accused facing the possible death sentence are unable to afford legal assistance and are defended under the Pro-Deo system. The defending counsel is more often than not young and inexperienced, frequently of a different race to his or her client, and, if this is the case, usually has to consult through an interpreter. Pro-Deo counsel are paid only a nominal fee for the defence and generally lack the financial resources and the infrastructural support to undertake the necessary investigations and research, to employ expert witnesses to give advice, including advice on matters relevant to sentence, to assemble witnesses, to bargain with the prosecution, and generally to conduct an effective defence”.
This point was amplified by Justice Chaskalson quoting the amicus brief of Lawyers For Human Rights, Centre For Applied Legal Studies and the Society For the Abolition of the Death Penalty in SA as follows ………………………”The overwhelming majority of those sentenced to death are poor and Black. There is an enormous social and cultural divide between those sentenced to death and the Judges before whom they appear, who are presently almost all White and middle class. This in itself gives rise to problems which even the most meticulous Judge cannot avoid. The formal trial proceedings are recorded in English or Afrikaans, languages which the Judges understand and speak but which many of the accused may not understand, or of which they may only have an imperfect understanding. The evidence of witnesses and the discourse between the Judge and the accused often has to be interpreted and the way this is done influences the proceedings. The differences in the backgrounds and culture of the Judges and the accused also come into the picture, and are particularly relevant when the personal circumstances of the accused have to be evaluated for the purposes of deciding upon the sentence. All this is the result of our history, and with the demise of apartheid this will change. Race and class are, however, factors that run deep in our society and cannot simply be brushed aside as no longer being relevant”.9
In 1947, the Lansdowne Commission, presided over by a Judge, found that the case of the abolitionist had not been proved. Incredibly, the Commission found that “the racial, social and economic conditions of abolitionist countries were not so different from South Africa as to make the experience of no value, but “ few had so heterogeneous a population and none the bulk of 80% of its people still in a state of barbarism.”10
Discussing the period 1948 to 1955, C R Swart, then Minister of Justice and later the first State President of the Republic of SA, boasted that during his term as Minister of Justice no Black who had raped a White and been sentenced to death had been reprieved.11
A disturbing example of the problems facing Judges dealing with different languages is to be found in S v Mpopo.12 where the Judge drew a most unfavourable inference from the demeanour of the accused whom he and his assessor, described as a fluent Xhosa linguist, had thought was testifying in Xhosa whereas he had actually been giving evidence in Sotho, a completely different language.
A stark example of the discriminatory effect of the system was manifested in S v Motshekgwa13 where the Appellate Division accepted evidence from a Psychiatrist that the accused may have suffered from a personality defect but that the criteria used to determine whether a patient suffered from an anti-social personality disorder could not be applied to Blacks as insufficient research had been conducted in this regard.
The potential for wrongful convictions was exceeded by the possibility of the misunderstanding of evidence in extenuation or mitigation of sentence, through an inability to understand social and cultural differences.
In Callins v Collins14 Blackmun J finally accepted that the imposition of the death penalty was inherently arbitrary and capricious.
In South Africa this was obviously all the more so where repression and racism were legally institutionalized15 “At every stage of the process there is an element of chance. The outcome may be dependent upon factors such as the way the case is investigated by the police, the way the case is presented by the Prosecutor, how effectively the accused is defended, the personality and particular attitude to capital punishment of the trial Judge and, if the matter goes on appeal, the particular Judges who are selected to hear the case. Race and poverty are also alleged to be factors”.
In South Africa capital cases became a grisly lottery where one Judge would find extenuating circumstances and another would not.
Various organizations such as the Black Sash, the Society For the Abolition of the Death Penalty in South Africa, the National Association of Democratic Lawyers and Lawyers For Human Rights campaigned against the death penalty at various times.
In 1969 Mrs Helen Suzman MP called for a Commission of Inquiry into the application of the death penalty in South Africa but the Minister of Justice rejected the call on the basis that there was no public demand for abolition. In 1988 Mr D Dalling MP again called for a Commission of Inquiry but the Minister of Justice responded by denying that such a commission was warranted. 16
In 1971 the General Council of the Bar agreed that whilst individual members might debate the issue, the question was not “one of jurisprudence” and therefore that the Council as a body could not adopt any official attitude.17
In 1973 the GCB recommended an automatic right of appeal for anyone sentenced to death and in 1989 the GCB resolved to request the S A Law Commission to investigate all aspects of the death penalty including the desirability or modification thereof.18
In 1990, a moratorium on executions came into effect as a result of the ANC having set as a precondition for negotiations with the government.19
In 1994 the interim Constitution came into force incorporating a Bill of Rights including such rights as the right to life, to dignity and to freedom from cruel inhuman or degrading punishment which rights were retained in the present Constitution.
The postscript to the Constitution stated that it provided “a historic bridge between the past of a deeply divided society characterized by strife, conflict, untold suffering and injustice, and a future founded on the recognition of human rights, democracy and peaceful co-existence and development opportunities for all South Africans, irrespective of colour, race, class, belief or sex”20.
As we all know the Constitutional Court held that even in a democratic non racial society, the death penalty was unconstitutional in that it was arbitrary and capricious, and violated the right to life and dignity and that it constituted cruel and unusual punishment. As you know, the method
of execution in South Africa this century was by hanging. It was regarded as the most humane means of execution. The fallacy of the view that this savage punishment was quick and neat was graphically exposed by Professor Chris Barnard as follows:-
Put a rope around a man’s neck, tie the knot next to his ear, fasten his wrists behind his back and drop him a distance of just less than 2 meters.
If you haven’t botched it by miscalculating the length of the drop, or the strength of the rope you will achieve several things at once. The man’s spinal cord will rapture at the point where it enters the skull, electro-chemical discharges will send his limbs flaying in a grotesque dance, eyes and tongue will start from the facial apertures under the assault of the rope and his bowels and bladder may simultaneously void themselves to soil the legs and drip onto the floor – unless of course you are an efficient hangman who has thoughtfully fitted your subject with a nappy or rubber pants.21
Whatever the method used, execution is never far from the atrocious death inflicted on Susanna.
The Constitutional Court held the death penalty was incompatible with a future “Founded on the recognition of human rights, democracy and peaceful co-existence …………for all South Africans.”22
Regrettably it appears that public opinion in South Africa probably favours the death penalty. Fortunately, the democratically elected majority in Parliament has remained true to its beliefs and has declined either to hold a referendum or to tamper with the Constitution. In any event, in a constitutional State “the very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the Courts. One’s right to life, liberty and property, to free speech, a free press, freedom of worship and assembly and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.”23
Justice Didcott concluded his concurring Judgment with the following sentiments:- South Africa has experienced too much savagery. The wanton killing must stop before it makes a mockery of the civilized, humane and compassionate society to which the nation aspires and has constitutionally pledged itself and the State must set the example by demonstrating the priceless value at places on the lives of all its subjects, even the worst.”24
It is our responsibility to strive to achieve these aspirations.