Page:S v Makwanyane and Another.djvu/60

   monarch. Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is, therefore violative of Article 14.'"

I am mindful of the fact that it is virtually impossible (save in the case of rigidly circumscribed mandatory sentences—which present other dangers) to avoid elements of arbitrariness in the imposition of any punishment. Arbitrary elements are present in the difficult decision to send an offender to prison for the first time, or in deciding what the appropriate length of the prison sentence should be in any case where it is imposed. However, the consequences of the death sentence, as a form of punishment, differ so radically from any other sentence that the death sentence differs not only in degree but also in substance from any other form of punishment. A sentence which preserves life differs incomparably from one which obliterates life. The executed person has, in fact, "lost the right to have rights." In this sense the death sentence is unique and the dimension and consequences of arbitrariness in its imposition differ fundamentally from the dimension and consequences of arbitrariness in the imposition of any other punishment.

In paragraphs [44] to [46]  of his judgment the President has referred to the relevant statutory provisions prescribing the tests to be applied for the imposition of the death sentence and the guidelines laid down for their application by the Appellate Division of the Supreme Court. In the end, whatever guidelines are employed, a process of weighing up has to take place between "mitigating factors" (if any) and "aggravating factors" and thereafter a value judgment made as to whether "the sentence of death is the proper sentence." I am not suggesting that the statutory provisions could have been better formulated or that the Appellate Division guidelines could be improved upon. The fact of the matter is that they leave such a wide latitude for differences of individual assessment, evaluation and normative judgment, that they are inescapably arbitrary to a marked degree. There must be many borderline cases where two courts, with the identical accused and identical facts, would undoubtedly come to different conclusions.