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electrochemical discharges will send his limbs flailing 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 on the floor…' (Rand Daily Mail 12 June 1978, cited in Appellants' heads)

This frank description of the execution process leaves little doubt that it is one which is destructive of human dignity. As Cory J held in Kindler v Canada (1992) 6 CRR (2nd) 193 (SCC) at 241:

'The death penalty not only deprives the prisoner of all vestiges of human dignity, it is the ultimate desecration of the individual as a human being. It is the annihilation of the very essence of human dignity.'

But it is not only the manner of execution which is destructive of dignity, the circumstances in which convicted criminals await the execution of their sentence also constitutes a breach of dignity. These circumstances have been amply and aptly described by Gubbay CJ in Catholic Commission for Justice and Peace, Zimbabwe v Attorney-General, Zimbabwe 1993(4) SA 239 (ZS) at 268–9. Although little evidence has been placed before us to describe the experience of condemned prisoners in South Africa, it seems all too probable that it resembles the conditions described by Gubbay CJ. Indeed, the moratorium on the implementation of the death sentence described by Chaskalson P has probably aggravated the conditions of condemned prisoners considerably.

Section 277 of the Criminal Procedure Act is therefore not only a breach of section 11(2) of the Constitution as held by Chaskalson P, but it is also a breach of section 9 (the right to life) and section 10 (the right to dignity). It is unnecessary and would be inappropriate to consider the further scope of these rights.

The Constitution does recognise in section 33 that the rights it entrenches may be limited by law of general application if a law is reasonable and justifiable (and in some circumstances, necessary) in an open and democratic society based on freedom and equality. The infringement of the rights to life and dignity occasioned by section 277 of the Criminal Procedure Act needs to be measured against this test. In this regard, it should be noted that a law which infringes the right to dignity must be shown to be a reasonable, justifiable and necessary limitation, whereas a law which contains a limitation upon the right to life need only be shown to be reasonable and justifiable.

The purpose of the bifurcated levels of justification need not detain us here. What is clear is that section 33 introduces different levels of scrutiny for laws which cause an infringement of rights. The requirement of reasonableness and justifiability which attaches to some of the section 33 rights clearly envisages a less stringent constitutional standard than does the requirement of necessity. In both cases, the enquiry concerns proportionality: to measure the purpose, effects and importance of the infringing legislation against the infringement caused. In addition, it will need to be shown that the ends sought by the legislation cannot be achieved sufficiently and realistically by other means which would be less destructive of entrenched rights. Where the constitutional standard is necessity, the considerations are similar, but the standard is more stringent.

In determining whether the breaches of sections 9 and 10 are justified in terms of section 33, the relevant considerations are the same as those traversed by Chaskalson P at