Page:S v Makwanyane and Another.djvu/84

 Constitution guarantees them their right, as persons, to life, to dignity and to protection against torture or cruel, inhuman or degrading punishment or treatment.

The violent acts of those who destroy life cannot be condoned, neither should anyone think that the abolition of the sentence of death means that the crime is regarded as anything but one of extreme seriousness. The sentence itself was an indication of society's abhorrence for the cruel and inhuman treatment of others. That moral outrage has been expressed in the strongest terms that society could muster.

Severe punishments must be meted out where deserved, but they should never be excessive. As Brennan J observed in his concurring judgment in Furman v Georgia,

"… a severe punishment must not be excessive. A punishment is excessive under this principle if it is unnecessary …[i]f there is a significantly less severe punishment adequate to achieve the purposes for which the punishment is inflicted, the punishment inflicted is unnecessary and therefore excessive."

Righteous anger against those who destroy the human life and dignity of others must be appropriately expressed by the Courts; but in doing so, the State must not send the wrong message, namely, that the value of human life is variable. Society cannot now succumb to the doctrine of an eye for an eye. Its actions must be informed by the high values which reflect the quality of this nation's civilization.

The Constitution constrains society to express its condemnation and its justifiable anger in a manner which preserves society's own morality. The State should not make itself guilty of conduct which violates that which it is in the community's interests to nurture. The Constitution, in deference to our humanity and sense of dignity, does not allow us to kill in cold blood in order to deter others from killing. Nor does it allow us to kill criminals simply to get even with them." We are not to stoop to the level of the criminal.

It follows from the remarks above that as a punishment the death penalty is a violation of the right to life. It is cruel, inhuman and degrading. It is also a severe affront to human dignity. The death row phenomenon merely aggravates the position. Section 277 of the Criminal Procedure Act cannot be saved by the provisions of section 33(1) of the Constitution in respect of any of the rights affected. The punishment is not reasonable on any basis. In view of the available alternative sentence of a long term of imprisonment, it is also unnecessary.  MADALA J I am in agreement with the views expressed in the judgment of Chaskalson P 