SOUTH AFRICA’S CURRENT LEGAL POSITION PERTAINING TO THE
DEATH PENALTY IN COMPARISON TO THAT OF THE UNITED STATES OF
AMERICA
By
Lisa Kim Louis
(63643200)
Submitted in partial fulfilment of the requirements
for the degree
LLB
In the
SCHOOL OF LAW
UNIVERSITY OF SOUTH AFRICA
SUPERVISOR: DR L PIENAAR (PRIMARY LECTURER)
(RESEARCH ASSIGNMENT 2)
1
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Table of contents
Cover page……………………………………………………………………..1
Table of contents……………………………………………………………….2
Research introduction……………………………………………………….....3
Problem statement…………………………………………………………3 – 4
Hypothesis………………………………………………………………... 4 – 5
Points of departure and assumptions…………………………………... 5 – 7
Conceptualisation of central research themes……………………….... 7 – 8
Proposed chapter outlay………………………………………………….. 8 - 9
Time Scale…………………………………………………………………….. 9
Description of proposed researched method……………………………9 – 10
Preparatory study and research………………………………………….10 -11
Conclusion…………………………………………………………………….…11
Bibliography………………………………………………………………..12 - 13
Plagiarism declaration……………………………………………………….…13
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RESEARCH INTRODUCTION
This research product investigates the field of South African Public law , in
particular that of Constitutional law.‘ 6 June 1995 marked the end of capital
punishment in South Africa’1 thus the research intends to provide an in-depth
analysis of the status quo pertaining to the death penalty as well as the
constitutional reasons which lead to the abolition of the death penalty in the
Republic of South Africa. The research also aims at the comparison of the South
African legal position to that of the American legal position , more specifically the
Texan legal position. The basic similarities and differences between the two legal
systems are compared and discussed.
In order to explain the current affairs and constitutional reasons pertaining to the
death penalty abolition , the researcher critically analyses and investigates
selected sections from the Constitution of the Republic of South Africa 1996 , the
Criminal Procedure Act 51 of 1977 as well as gives due regard to the 3
2
groundbreaking judgement made in the case of S v Makwanyane and another
1995 (3) SA 391 (CC). The South African legal position in terms of the death
penalty is discussed whilst referring to the legal position of Texas by means of
the Texas code of criminal procedure3. Relevant legislation and case law are
made use of throughout the research product.
The death penalty is a controversial topic in South Africa as well as across the
globe thus it is an important and relevant topic to modern day society in that
there is on ongoing debate as to whether it is in violation of humanity or not.
PROBLEM STATEMENT
The purpose of this research is to investigate the current affairs of and the
constitutional reasoning behind the abolishment of the Death penalty in South
Africa. The research , furthermore, attempts to identify the basic differences and
similarities between South African law and Texan law , in terms of the legal
positions pertaining to the death penalty topic. In addition , the research aims at
evaluating whether or not the death penalty should remain a barbaric ,
unconstitutional form of punishment or if possible, should it be declared a legal
form of punishment within South Africa.
1 S v Makwanyane and Another 1995 (3) SA 391 (CC)
2 S v Makwanyane
3 Texas Code of Criminal Procedure
3
• What is the current state of affairs in terms of the death penalty in South
Africa?
• What is the constitutional reasoning behind the abolition of the death
penalty in South Africa?
• What are the basic differences and similarities between the legal positions
pertaining to the death penalty in both South Africa and Texas?
• Should the death penalty remain an unconstitutional / barbaric form of
punishment or if possible, should it be re-enacted into South African law?
HYPOTHESIS
The death penalty debate is one that is global. The unconstitutionality of the
death penalty in South Africa is provisionally assumed4 , thus the researcher
aims at subjecting it to scientific analysis in order to determine its truth. The
current state of affairs in terms of the death penalty is divided between
individuals who are strongly against the re-instatement of the death penalty and
those who are urging the South African government to bring it back into law5. The
constitutional reasoning behind the abolishment of the death penalty was due to
the death penalty ‘violating’ constitutional values and principles relating to
humanity.6 However , there a currently a number of political parties as well as
citizens that are actively in support of capital punishment being re-instated due to
increasingly disturbing rates of murder and rape cases.
The main difference between the legal positions of South Africa and Texas is that
the death penalty is regarded as legal in the latter country. In Texas , if one is
convicted of a ‘capital felony’, he may be subject to a punishment of death.7’ In
South Africa , Section 276(1)(b) of the CPA8 makes provision for a life
imprisonment sentence as an alternative to the death penalty. Forms of capital
punishment execution as of 1977, in Texas implements the punishment by
means of ‘lethal injection’ whereas pre-democratic South Africa carried out the
punishment in the form of ‘hanging’ or the ‘electric chair’. The crimes for which
the death penalty could be imposed for in terms of the Texas penal code are
similar to the crimes that were set out in the Criminal Procedure Act 51 of 1977,
prior to the amendment act.
4 S v Makwanyane ; The Constitution of the Republic of South Africa , 1996
5 Businesstech article [Link]
the-death-penalty-to-be-reinstated-heres-what-government-says/
6
De Sousa Chantelle ‘The death penalty and Extradition from South Africa’ 2013 Amicus Journal 28
7
Texas Code of Criminal procedure , s 37.071(h)
8
Criminal Procedure Act 51 of 1977
4
The research will reasonably question whether or not the death penalty is in fact
a ‘barbaric’ form of punishment when dealing with persons who are guilty of
committing very serious and blatantly unacceptable crimes against humanity.
The researcher , is however , of the opinion that death penalty should be applied
in terms of ‘limiting the right to life’ as per section 369 of the Constitution , which
provides for a limitation of rights in terms of a law of general application to the
extent that the limitation is reasonable and justifiable in an open and democratic
society.
4
POINT OF DEPARTURE AND ASSUMPTIONS
The method of research is a comparative study between South Africa and Texas
with regards to the current standing of the death penalty laws in an effort to
determine whether the death penalty is a violation to humanity.
10The bill of rights is the corner stone of democracy in South Africa , it affirms the
rights of all the people in South Africa as well as the democratic values of human
dignity , equality and freedom. Section 11 of the constitution provides that ‘
everyone has the right to life , however under apartheid law , the death penalty
could be handed down as an appropriate sentence in terms of section 277(1)(a)
of the Criminal Procedure act 51 of 1977.
‘Chaskalson P , claimed that the death penalty was not invalidated on the basis
of its conflict with the right to life but rather because it was a cruel , inhuman ,
degrading punishment and should therefore be deemed unconstitutional.11’ In the
American case of Gregg v Georgia12 , the Supreme court held that the death
sentence was not unconstitutional , in that it is meant to serve two principle social
purposes, namely retribution and deterrence.’ The researcher is of the opinion
that the death penalty should not be unconstitutional when it comes to matters of
extreme crime thus it is not a cruel , inhuman and degrading punishment when
the sentence of death is proportionate to the crime committed.’ Where a life has
been deliberately taken , the death sentence is not unconstitutional per se.’
13Ursulabentele suggests that ‘a dramatic historical fact is common to both the
United States and South Africa, being that both societies punished conduct more
9 The Constitution , section 36 ; Limitation clause
10 The constitution , chapter 2
11 Iain Currie and Johan de Waal The Bill of Rights Handbook , 6th ed ( Juta Cape Town 2013) 257
12 Gregg v Georgia , 428 U.S. 153 (1976)
13Ursula Bentele, Race and Capital Punishment in the United States and South Africa, 19
[Link]'lL.235 (1993)
5
severely if it was committed by a black offender, particularly when the victim of
the crime was white’ Thus , innocent people were sometimes put on death row.
However , the case of McCleskey v Kemp14 determines that the fact that the
death penalty has been disproportionately applied to African Americans, or to
people who kill white versus African American victims, is not sufficient grounds to
make capital punishment unconstitutional15. The researcher agrees that in the
past , capital punishment may have been used as a racist weapon against black
people however in present day South Africa , the Constitution protects all its who
live in , from racial inequality. The re-instatement of the death penalty must not
be ruled out purely based on racist legacy. The Constitution is based on
principles of ubuntu and humanity thus people should live by these principles and
bear the consequences when in extreme violation of them, despite the colour of
their skin. It must also be added , that the death penalty should only be applied in
extreme criminal cases whereby the state has proved onus beyond reasonable
against the accused
16‘We don’t support the death penalty, we don’t at all. Anyone who says we must
bring (back) the death penalty must come and present scientific evidence of
where the death penalty has succeeded in reducing crime’ , says Julius Malema.
The researcher is of the opinion that , it is not purely whether or not the death
penalty reduces the crime rate but also has to do with making sure that Justice is
served for victims , families and the society at large. ‘The state has no business
administering the death penalty’
17Over 500,000 South Africans have signed a petition for the reinstatement of
the death penalty in South Africa, as they "hold a firm view that a very strong
message needs to be sent to all the murderers and rapists, that the country will
not tolerate this kind of abhorrent behavior”. Cyril Ramaphosa responded by
saying “Our constitution has enshrined the right to life. This means that the state
should not be the one to terminate a life. The surge in criminality should be
addressed in other ways rather than ending people’s lives,” The researcher is of
the opinion that the ANC could have a strong opposition to the death penalty in
that , shortly after the Makwanyane case reached a verdict in 1995 , nearly 75%
of South Africans from all population groups favored the re-instatement of the
death penalty despites its use as a part of the apartheid regime , most felt that it
provided credible deterrent against violent crime and appropriate punishment to
14 McCleskey v. Kemp, 481 U.S. 279 (1987)
15
Wilbur R. Miller The social history of crime and punishment in America : an encyclopedia (Thousand
Oaks, Calif SAGE 2012) xivii
16
Businesstech online article [Link]
says-julius-malema-32225690
17
Businesstech article [Link]
for-the-death-penalty-to-be-reinstated-heres-what-government-says/
6
those who were convicted. Public opinion was however rejected as a way of
asserting the courts constitutional role18. The state has a duty to protect the
constitutional rights of their citizens not to enshrine rights to people who blatantly
do not deserve these rights. The state should be allowed to administer Capital
punishment to those who without a doubt deserve it. In essence , society will also
become a much safer place , in that criminals will be fearful of the law , fellow
South Africans will feel safer knowing that there is a ‘working’ law system
whereby criminals will be held accountable for their actions and blatant disregard
for the law.
19‘JusticeChaskalson held that the very purpose of having a supreme-law
Constitution is to elevate constitutional values to a position of normative
superiority, where that was not so, there would be no point in having a supreme-
law Constitution and, more importantly, no point in having a Constitutional Court.
The researcher is of the opinion , that elevating the constitutional values means
protecting law – abiding , innocent citizens.20 Why should individuals who have
deliberately killed another still be entitled to their ‘right to life’ or individuals who
have committed the crime of rape repeatedly, still be entitled to the ‘right to
human dignity’ – they have blatantly disregarded the constitution so why should
the constitution still protect them in these instances. It is merely unfair to apply
the constitution in an unequal manner.
CONCEPTUALISATION OF CENTERAL RESEARCH THEMES
1. DEATH PENALTY21
1. A sentence or punishment of death by execution
2. The practice or legal sanction of allowing the imposition of punishment of
death for people convicted of certain crimes
The term ‘Capital Punishment’ is synonymous to that of the term ‘ death
penalty’
2. CAPITAL PUNISHMENT 22
1. The legally authorized killing of someone as punishment for a crime
‘ Capital punishment ’ is synonymous to the term ‘death penalty’
18
De Sousa Chantelle ‘The death penalty and Extradition from South Africa’ 2013 Amicus Journal 30
19
S v Makwanyane
20 Klug, Heinz. "Striking down Death - S v. Makwanyane and Another." South African Journal on Human
Rights, vol. 12, no. 1, 1996, p. 61-70. HeinOnline.
21
Oxford UP The oxford dictionary of English ( Oxford University Press South Africa2010)
22
Oxford dictionary 119
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3. HUMANITY 23
1. Human beings collectively.
2. The state of being human
3. The quality of being humane; benevolence
‘appalling crimes against humanity’
‘our differences matter but our common humanity matters more’
4. RIGHTS 24
1. A moral or legal entitlement to have , obtain or act in a certain manner
2. Something that people are allowed to do or have
‘All human beings have the right to life’
5. UNCONSTITUTIONAL 25
1. Not in accordance with the rules , laws and values set out in the
constitution.
‘The constitution is the supreme law of the land within Southern Africa’
6. DEATH ROW26
1. A prison block or section for those sentenced to death
‘ he is on death row’
7. EXECUTION 27
1. The carrying out of a plan ,order or course of action
‘Execution of the death penalty’
PROPOSED CHAPTER OUTLAY
Chapter 1: conceptualisation of the research problem and contextualization of
research themes
Chapter one introduces the central terms and concepts fundamental to the research , in
addition to this , it provides for an introduction to the death penalty, the researcher’s
hypothesis and outlines the methodology of the research product. Chapter one aims at
providing a general conceptualization of the research problem thus it conceptualizes
aspects necessary for the development of the dissertation in the chapters to follow.
Chapter 2: contextualisation of research topic
23
Oxford dictionary 66
24
Oxford dictionary 221
25
Oxford dictionary 386
26
Oxford dictionary 119
27
Oxford dictionary 160
8
The research topic is contextualised in a general manner within chapter two. The topic
is contextualised within a South African framework and thus includes relevant legislation
case law , the constitution as well as the historical aspect pertaining to the topic.
Chapter two critically examines relevant case law as well as the relevant sections of the
Constitution and the Criminal Procedure Act 51 of 1977 which pertain to the
development and legal standpoint of the law dealing with the death penalty.
Chapter 3 : A comparative study : South Africa and Texas
Chapter three compares the South African legal standpoint on the death penalty against
a Texas legal standpoint on the death penalty. The chapter , furthermore , aims to
highlight the basic differences and similarities between the Republic of South Africa and
the State of Texas, in terms of the death penalty topic.
Chapter 4 : Conclusions and recommendations
Chapter four provides for the researchers conclusions on the research topic , which she
has formed from previous chapters. The researcher , further indicates , for future
reference recommendations as to how the topic of the death penalty should be death
with and what should be taken into consideration when dealing with the death penalty
debate.
PROPOSED SUBMISSION TIME-FRAME
CHAPTER SUBMISSION DATE
Submit draft proposal 22 February
Receive draft proposal with comment 30 February
Resubmit corrected research proposal 15 March
Register for thesis 27 March
Submit chapter 1 30 April
Submit chapter 2 30 June
Submit chapter 3 30 July
Submit chapter 4 30 August
Revise and resubmit chapters 1- 4 30 September
Submit for examination 30 October
DESCRIPTION OF PROPROSED RESEARCH METHOD
The researcher will be conducting qualitative research. The researcher will be taking a legal
comparative approach to the topic. The legal comparative approach entails the study of how ones
research topic is dealt with by different legal systems , rules and instructions of the world with the
aim of obtaining critical insights. The purpose of the legal research is to compare, discuss and
evaluate the similarities between the legal stand points of South Africa and Texas , in regard to
the death penalty in order to conclude whether the death sentence is actually all that ‘barbaric’ as
9
a form of punishment. Thus, the researcher intends to make use of library sources , legislation,
case law , textbooks , newspaper articles and online resources – within a local and international
context.
5
PREPARATORY STUDY AND RESEARCH
1. The Constitution of the Republic of South Africa , 1996
The south African constitution is the supreme law of the land , all who live in South
Africa are bind by it. The death penalty cannot be discussed without referring to the
constitution as well as the Bill of Rights which is contained in chapter 2.
2. The Criminal Procedure Act 51 OF 1977
The Criminal Procedure Act lays down the procedure , rules and laws that must be
followed when dealing with criminal cases and punishment in South Africa which has
since been amended to adhere to the constitutional requirements of our country in
terms of the issue of Capital punishment
3. Texas Code of Criminal Procedure / Texas Penal Code
The Texas Code of Criminal procedure lays down the procedure , rules and laws which
must be adhered to when dealing with criminal cases and punishment in the State of
Texas , USA. The Texas code of criminal procedure as it must be put against the South
African Criminal Procedure Act to establish comparison. The Texas penal code lays
down the offences which may constitute the death sentence
4. S v Makwanyane and Another 1995 (3) SA 391 (CC)
This case dealt with the issue of the death penalty in South Africa , whereby the
constitutional court ruled the death penalty unconstitutional.
5. Iain Currie and Johan de Waal The Bill of Rights Handbook , 6th ed ( Juta Cape
Town 2013)
Textbook dealing with topics such as fundamental rights and constitutionality. The
textbook discusses the bill of rights in detail as well as the ‘ right not to be killed’ which
is of relevance to the death penalty research.
6. Gregg v Georgia , 428 U.S. 153 (1976)
Case dealing with the imposition of the death sentence whereby the defendant was
found guilty of murder and armed robbery. Case is relevant because it supports the
death penalty in respect of extreme crimes such as murder.
10
7. Ursula Bentele, Race and Capital Punishment in the United States and South
Africa, 19 [Link]'lL.235 (1993)
Article deals with race and the use of capital punishment within a South African context
as well as an American context. Relevant in terms of which race suffered most in terms
of the death penalty law
8. ONLINE NEWSPAPER ARTICLES : ‘ SOUTH AFRICANS ARE CALLING FOR
THE DEATH PENALTY TO BE REINSTATED / ‘ DEATH PENALTY IS NOT THE
ANSWER SAYS MALEMA’
[Link]
for-the-death-penalty-to-be-reinstated-heres-what-government-says/
[Link]
malema-32225690
Online newspaper articles reporting on the current affairs of the country , in terms of the
death penalty petition and debate.
9. Klug, Heinz. "Striking down Death - S v. Makwanyane and Another." South
African Journal on Human Rights, vol. 12, no. 1, 1996, p. 61-70. HeinOnline.
Article discussing the Makwanyane case as well as the aftermath arising from the
striking down of the death penalty in South Africa
10. Wilbur R. Miller The social history of crime and punishment in America : an
encyclopedia (Thousand Oaks, Calif SAGE 2012)
[Link]
in+America.
An online encyclopedia that discusses the American criminal justice system in a past
and present context. Makes special mention of Capital punishment , especially in the
state of Texas
CONCLUSION
To conclude , the researchers preliminary findings are that the death penalty is definitely
a controversial topic in that many people are against it and many people are for it. The
death penalty laws differ from country to country and it all depends on the ruling party at
the end of the day despite actual public opinion. The researcher intends to provide more
research findings in this section.
11
BIBLIOGRAPHY
Books
• Iain Currie and Johan de Waal The Bill of Rights Handbook , 6th ed ( Juta Cape
Town 2013)
• Oxford UP The oxford dictionary of English ( Oxford University Press South
Africa2010)
• Wilbur R. Miller The social history of crime and punishment in America : an
encyclopedia (Thousand Oaks, Calif SAGE 2012)
CASE LAW
• S v Makwanyane and Another 1995 (3) SA 391 (CC)
• McCleaskey v Kemo ,481 U.S 279 (1987)
• Gregg v Georgia , 428 U.S. 153 (1976)
JOURNAL ARTICLES
• de Sousa Chantelle ‘The death penalty and Extradition from South Africa’ 2013
Amicus Journal
• Klug, Heinz. "Striking down Death - S v. Makwanyane and Another." South African
Journal on Human Rights, vol. 12, no. 1, 1996, p. 61-70. HeinOnline.
• Ursula Bentele, Race and Capital Punishment in the United States and South Africa,
19 [Link]'lL.235 (1993)
LEGISLATION
• The Criminal Procedure Act 51 of 1977
• The Constitution of the Republic of South Africa , 1996
• Texas Code of Criminal Procedure
• Texas Penal code
ONLINE RESOURCES
• Businesstech “South Africans call for the death penalty to be reinstated ”
[Link]
calling-for-the-death-penalty-to-be-reinstated-heres-what-government-says/
• Businesstech “ Penalty is not the answer says Julius”
[Link]
julius-malema-32225690
12
11. Wilbur R. Miller The social history of crime and punishment in America : an
encyclopedia (Thousand Oaks, Calif SAGE 2012)
[Link]
in+America.
ACADEMIC HONESTY DECLARATION
Declaration: Lisa Kim Louis
1. I understand what academic dishonesty entails and am aware of Unisa’s policies in this
regard.
2. I declare that this assignment is my own, original work. Where I have used someone
else’s work, I have indicated this by using the prescribed style of referencing. Every
contribution to, and quotation in, this assignment from the work or works of other people
has been referenced according to this style.
3. I have not allowed, and will not allow, anyone to copy my work with the intention of
passing it off as his or her own work.
4. I did not make use of another student’s work and submitted it as my own.
NAME : Lisa Kim Louis
SIGNATURE : LISA KIM LOUIS
STUDENT NUMBER : 63643200
MODULE CODE : LEM3701
DATE : 9 SEPTEMBER 2019
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RESULTS
Total = 69 / 100 (69%)
COMMENTS
1 Number your headings
2 Number the headings.
3 Each mention of a case law, legislation, legal author is referenced in the footnote. Footnotes are
inserted after the source. After a point or comma.
4 What assumptions did you make, what are you excluding?
5 You were required to reference it in the footnotes.