Page:S v Makwanyane and Another.djvu/86

 As observed before, the death penalty rejects the possibility of rehabilitation of the convicted persons, condemning them as "no good", once and for all, and drafting them to the death row and the gallows. One must then ask whether such rejection of rehabilitation as a possibility accords with the concept of ubuntu.

One of the relative theories of punishment (the so-called purposive theories) is the reformative theory, which considers punishment to be a means to an end, and not an end in itself—that end being the reformation of the criminal as a person, so that the person may, at a certain stage, become a normal law-abiding and useful member of the community once again. The person and the personality of the offender are the point of focus rather than the crime, although the crime is, however, not forgotten. And in terms of this theory of punishment and as a necessary consequence of its application, the offender has to be imprisoned for a long period for the purpose of rehabilitation. By treatment and training the offender is rehabilitated, or, at the very least, ceases to be a danger to society.

This, in my view, accords fully with the concept of ubuntu which is so well enunciated in the Constitution.

Our courts have found room for the exercise of ubuntu, as appears from the many cases where they have found that despite the heinousness of the offence and the brutality with which it was perpetrated, there were factors in the offenders' favour, indicating that they were, in spite of the criminal conduct of which they were convicted, responsible members of society, and were worthy and capable of rehabilitation. (See S v Mbotshwa 1993(2) SACR 468(A) at 468J–469F; S v Ramba 1990(2) SACR 334(A) at 335H–336E; S v Ngcobo 1992(2) SACR 515(A) at 515H–516A; Contra: S v Bosman 1992(1) SACR 115(A) at 116G–117F)

Against ubuntu must be seen the other side, the inhuman side of mankind, in terms of which the death penalty violates Section 11(2) of the Constitution in that it is "cruel, inhuman or degrading treatment or punishment".

In Catholic Commission for Justice and Peace in Zimbabwe v Attorney-General, Zimbabwe 1993(4) SA 239(ZSC) at 268E–H, Gubbay CJ, observed:

"From the moment he enters the condemned cell, the prisoner is enmeshed in a dehumanising environment of near hopelessness. He is in a place where the sole object is to preserve his life so that he may be executed. The condemned prisoner is 'the living dead' … He is kept only with other death sentenced prisoners—with those whose appeals have been dismissed and who await death or reprieve; or those whose appeals are still to be heard or are pending judgment. While the right to an appeal may raise the prospect of being allowed to live, the intensity of the trauma is much increased by knowledge of its dismissal. The hope of a reprieve is all that is left. Throughout all this time the condemned prisoner constantly broods over his fate. The horrifying spectre of being hanged by the neck and the apprehension of being made to suffer a painful and lingering death is, if at all, never far from mind. Grim accounts exist of hangings not properly performed."

Convicted persons in death row invariably find themselves there for a long time as they