Page:S v Makwanyane and Another.djvu/37

 meaning, I am satisfied that in the context of our Constitution the death penalty is indeed a cruel, inhuman and degrading punishment.

Is capital punishment for murder justifiable?

The question that now has to be considered is whether the imposition of such punishment is nonetheless justifiable as a penalty for murder in the circumstances contemplated by sections 277(1)(a), 316A and 322(2A) of the Criminal Procedure Act.

It is difficult to conceive of any circumstances in which torture, which is specifically prohibited under section 11(2), could ever be justified. But that does not necessarily apply to capital punishment. Capital punishment, unlike torture, has not been absolutely prohibited by public international law. It is therefore not inappropriate to consider whether the death penalty is justifiable under our Constitution as a penalty for murder. This calls for an enquiry similar to that undertaken by Brennan J in Furman's case in dealing with the contention that "death is a necessary punishment because it prevents the commission of capital crimes more effectively than any less severe punishment." The same question is addressed and answered in the negative in the judgment of Wright CJ in People v Anderson. Under the United States Constitution and the Californian Constitution, which have no limitation clauses, this enquiry had to be conducted within the larger question of the definition of the right. With us, however, the question has to be dealt with under section 33(1).

Section 33(1) of the Constitution provides, in part, that: The rights entrenched in this Chapter may be limited by law of general application, provided that such limitation—

shall be permissible only to the extent that it is—

reasonable; and justifiable in an open and democratic society based on freedom and equality; and

shall not negate the essential content of the right in question.