Page:S v Makwanyane and Another.djvu/59

 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"."

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.

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