Page:S v Makwanyane and Another.djvu/85

 P and with his decision on the unconstitutionality of the death penalty. The punishment, is in my view, clearly offensive to the cardinal principles for which our Constitution stands.

However, while I concur, as aforesaid, I believe that there are some additional matters that need to be mentioned and aspects that should be emphasised, and I proceed to do so briefly.

The death penalty is unique. As stated by Stewart J in Furman v Georgia 408 US at 306:

"The penalty of death differs from all other forms of criminal punishment, not in degree but in kind. It is unique in its total irrevocability. It is unique in its rejection of rehabilitation of the convict as a basic purpose of criminal justice. And it is unique, finally, in its absolute renunciation of all that is embodied in our concept of humanity."

This statement was more recently (1991) re-affirmed by Scalia J, who delivered the judgment of the court in Harmelin v Michigan 501 US 957, and noted that even the most severe sentence of life imprisonment cannot compare with death.

The Constitution in its post-amble declares:

"... there is a need for understanding but not vengeance, and for reparation but not for retaliation, a need for ubuntu but not victimisation."

The concept "ubuntu" appears for the first time in the post-amble, but it is a concept that permeates the Constitution generally and more particularly Chapter Three which embodies the entrenched fundamental human rights. The concept carries in it the ideas of humaneness, social justice and fairness.

It was argued by Mr Bizos, on behalf of the Government, that the post-amble enjoins the people of South Africa to open a new chapter which envisages the country playing a leading role in the upholding of human rights. He submitted further, that the Government favoured the abolition of the death penalty because it believed that such punishment could not be reconciled with the fundamental rights contained in the Constitution, and that its application diminished the dignity of our society as a whole.

In my rejection of the death penalty as a form of punishment, I do not intend, nor do my colleagues, to condone murder, rape, armed robbery with aggravating circumstances and those other crimes which are punishable by a sentence of death in terms of Section 277 of the Criminal Procedure Act 51 of 1977. These criminal acts are, and remain, as heinous, vicious and as reprehensible as they ever were, and do not belong in civilised society. The death penalty is a punishment which involves so much pain and suffering that civilised society ought not to tolerate it even in spite of the present high rate of crime. And society ought to tolerate the death penalty even less when considering that it has not been proved that it has any greater deterrent effect on would-be murderers than life imprisonment.

The aspect of irrevocability of the death penalty has been canvassed adequately in the judgment of Chaskalson P and I propose to say no more on that score (See paragraphs 26  and  54  ).