This paper deals with the history of capital punishment in South Africa and its historical background in Britain where it was abolished, except for a few instances, because it was found to serve no purpose which could not be served by other forms of punishment. In South Africa, capital punishment is a legal punishment form. Prior to 1290, C(lpital punishment was mandatory for murder, except in a few exceptional cases. Its application was amended by the Criminal Procedure Amendment Act, 107 of 1990. In terms of this Act, capital punishment was made discretionary for all capital offences., The new provisions do not remove all arguments against capital punishment. Consequently this paper recommends that capital p~shment sb_ould J:>~ _abolished. Life imprisonment without the possibility of parole is an effective alternative that will protect society and satisfy aggrieved parties. Life imprisonment has none of the problems that are normally associated with capital punishment. / Criminal & Procedural Law / L.L.M.

This paper deals with the history of capital punishment in South Africa and its historical background in Britain where it was abolished, except for a few instances, because it was found to serve no purpose which could not be served by other forms of punishment. In South Africa, capital punishment is a legal punishment form. Prior to 1290, C(lpital punishment was mandatory for murder, except in a few exceptional cases. Its application was amended by the Criminal Procedure Amendment Act, 107 of 1990. In terms of this Act, capital punishment was made discretionary for all capital offences., The new provisions do not remove all arguments against capital punishment. Consequently this paper recommends that capital p~shment sb_ould J:>~ _abolished. Life imprisonment without the possibility of parole is an effective alternative that will protect society and satisfy aggrieved parties. Life imprisonment has none of the problems that are normally associated with capital punishment. / Criminal and Procedural Law / L.L.M.

Since 25 January 1994, when the interim Constitution came into operation, South Africa's criminal justice system became subject to constitutional provisions, especially the Bill of Rights. All forms of punishment and treatment are subject to the provisions of the Constitution. The first casualties were the death penalty and corporal punishment, which were found to be unconstitutional by the Constitutional Court. Since our criminal justice jurisprudence is still in the developing stage, a comparative analysis with the Canadian and American penal systems forms part of this thesis. Provisions of the Constitution, which will have an indirect influence on punishment include, access to information, just administrative action and state institutions supporting democracy. The following provisions of the Bill of Rights are expected to have a significant impact on punishment in all its facets, equality; human dignity; life; freedom and security of the person; freedom from slavery, servitude and forced labour; and the rights of children. Judgments of the Constitutional Court, which abolished the death penalty and corporal punishment are examined since they were the first indication the Court gave on aspects of punishment. The Constitution also deals specifically with the rights of arrested, detained and accused persons. It is within this provision that 2 the rights of prisoners are spelt out. Imprisonment as a form of punishment, has to conform to the provisions of the Constitution, and the Correctional Services Act is an attempt to render imprisonment compliant. With the abolition of the death penalty and corporal punishment, the effect of constitutional provisions on conventional forms of punishment and the overpopulation of prisons, the establishment of alternative forms of punishment, which would pass constitutional muster, is imperative. The Child Justice Bill is an attempt to establish a unique system for juveniles who commit offences / Penology / D. Lit. et Phil. (Penology)

Thesis (D. Lit. et Phil.)--University of South Africa, 2001.

Since 25 January 1994, when the interim Constitution came into operation, South Africa's criminal justice system became subject to constitutional provisions, especially the Bill of Rights. All forms of punishment and treatment are subject to the provisions of the Constitution. The first casualties were the death penalty and corporal punishment, which were found to be unconstitutional by the Constitutional Court. Since our criminal justice jurisprudence is still in the developing stage, a comparative analysis with the Canadian and American penal systems forms part of this thesis. Provisions of the Constitution, which will have an indirect influence on punishment include, access to information, just administrative action and state institutions supporting democracy. The following provisions of the Bill of Rights are expected to have a significant impact on punishment in all its facets, equality; human dignity; life; freedom and security of the person; freedom from slavery, servitude and forced labour; and the rights of children. Judgments of the Constitutional Court, which abolished the death penalty and corporal punishment are examined since they were the first indication the Court gave on aspects of punishment. The Constitution also deals specifically with the rights of arrested, detained and accused persons. It is within this provision that 2 the rights of prisoners are spelt out. Imprisonment as a form of punishment, has to conform to the provisions of the Constitution, and the Correctional Services Act is an attempt to render imprisonment compliant. With the abolition of the death penalty and corporal punishment, the effect of constitutional provisions on conventional forms of punishment and the overpopulation of prisons, the establishment of alternative forms of punishment, which would pass constitutional muster, is imperative. The Child Justice Bill is an attempt to establish a unique system for juveniles who commit offences / Penology / D. Lit. et Phil. (Penology)

Text in Afrikaans / Summaries in English and Afrikaans / Die Konstitusionele Hof het ir:i S v Makwanyane besluit dat die doodstraf nie versoenbaar is met die Grondwet nie en dit ongeldig verklaar. Die kritiek teenoor die regbank en die openbare mening oor die doodstraf was nog altyd s6 prominent dat die hof nie anders kon as om hieraan aandag te skenk nie. Die hof besluit dat die openbare mening nie 'n rol speel in die hersieningsproses nie. In hierdie verhandeling word die hof se standpunte en red es daarvoor ontleed. Ek kom tot die gevolgtrekking dat die hof korrek bes I is het. Die open bare mening is onseker. Daar is 'n verskil tussen die aard van die waardes in die Grondwet en die aard van die open bare mening. Die kritiek op die uitspraak is te wyte aan die gebrek aan insig en begrip onder lede van die gemeenskap oor die nuwe bestel en die rol van die regbank daarin. / The Constitutional Court in S v Makwanyane declared that the death penalty was inconsistent with the Constitution. The criticism on courts and the public opinion on the death penalty have been so severe that the court could not have but considered these issues. The court concluded that public opinion is not relevant in constitutional review. In this dissertation, I analyze the court's viewpoints and the reasons therefor. My conclusion is that the court made the correct decision. The public opinion is uncertain, and differs from values. The judgment is criticised due to a lack of understanding amongst the public as to the meaning of the new dispensation and the role of our courts therein. / Law / Thesis (LL.M.)--Universiteit van Suid-Afrika, 1996.

Text in Afrikaans / Summaries in English and Afrikaans / Die Konstitusionele Hof het ir:i S v Makwanyane besluit dat die doodstraf nie versoenbaar is met die Grondwet nie en dit ongeldig verklaar. Die kritiek teenoor die regbank en die openbare mening oor die doodstraf was nog altyd s6 prominent dat die hof nie anders kon as om hieraan aandag te skenk nie. Die hof besluit dat die openbare mening nie 'n rol speel in die hersieningsproses nie. In hierdie verhandeling word die hof se standpunte en red es daarvoor ontleed. Ek kom tot die gevolgtrekking dat die hof korrek bes I is het. Die open bare mening is onseker. Daar is 'n verskil tussen die aard van die waardes in die Grondwet en die aard van die open bare mening. Die kritiek op die uitspraak is te wyte aan die gebrek aan insig en begrip onder lede van die gemeenskap oor die nuwe bestel en die rol van die regbank daarin. / The Constitutional Court in S v Makwanyane declared that the death penalty was inconsistent with the Constitution. The criticism on courts and the public opinion on the death penalty have been so severe that the court could not have but considered these issues. The court concluded that public opinion is not relevant in constitutional review. In this dissertation, I analyze the court's viewpoints and the reasons therefor. My conclusion is that the court made the correct decision. The public opinion is uncertain, and differs from values. The judgment is criticised due to a lack of understanding amongst the public as to the meaning of the new dispensation and the role of our courts therein. / Law / Thesis (LL.M.)--Universiteit van Suid-Afrika, 1996.

The Criminal Law Amendment Act introduced a scheme where minimum sentences are prescribed for serious offences into the South African Criminal Law. The limitations put on the courts’ sentencing discretion were not received with unanimous approval from all quarters. The Constitutional Court declared the general working of the Act to be constitutional soon after its inception. Specific provisions pertaining to certain offences remained unpopular. The hefty sentence of 15 years imprisonment prescribed for the possession of a semi-automatic firearm is put forward as an example in this regard. High Courts avoid the minimum sentence prescribed for this offence by using different interpretational methods. Despite the sense of animosity towards the unfair contents of this provision, no ruling is made on the constitutionality thereof. An apparent deference towards the legislature could be detected on the part of the judiciary. South African jurisprudence discourages our courts to rule on the constitutionality of a law. It is only done when the defect could not be remedied by any other available means. The reluctance of our courts to make a ruling on the constitutionality of the semi-automatic provision does not promote legal certainty. High Courts attach different interpretations to the “true intention” of the legislature in order to bypass this provision. Logic dictates that inexperienced presiding officers with inferior interpretational skills would continue to hand down the minimum sentence while it remains on the law books. A sentence of fifteen years is also prescribed for robbery with aggravating circumstances. The existing common law on the interpretation of the definition of this offence provides for a wide range of human conduct to be included. Case law could be expected where the courts deviate from the prescribed sentence on a regular basis. This unscientific approach should be discouraged and a rethinking of the boundaries of this offence is suggested. The Act is doing more harm than good to our Criminal Law. The legislature could still provide other visible measures against serious crime without invading the sentencing discretion of the judiciary.

This thesis examines why courts in the United States of America (US), India and South Africa refer to foreign law in death penalty cases. To gain an understanding of what drives the apex courts of the US, India and South Africa to cite foreign law when considering domestic death penalty issues, this thesis proposes a three-part matrix to both assess the relevant case law and to analyse the academic literature on cross-citation. Firstly, it will be demonstrated that judges in national courts cross-cite comparative law out of a primary interest in constitutional interpretation. Cross-citation is used in this manner to assist judges in their domestic interpretative tasks. Secondly, it will be illustrated how courts that engage in the citation of foreign law also seek guidance from other jurisdictions as to the content of shared values, such as what type of punishment does not fundamentally and unlawfully violate the right to human dignity. Finally, this thesis assesses to what degree courts from the three selected jurisdictions are additionally referencing or applying a customary international law norm when citing foreign sources. The argument is made that the domestic courts under examination engage with comparative law in the context of a broader transnational normative project, taking the international human rights framework that developed after the Second World War as a key reference point. In doing so, this thesis argues that these courts are at times recognising and developing emerging customary norms, and at other times giving effect to and enforcing applicable international human rights law.

Although s 9 of the new Constitution 1 guarantees the right to life, there is no express provision which abolishes the death sentence. Whereas in the past the death sentence could only be avoided by the exercise of judicial discretion or political and public pressure, its imposition will now have to be entirely re-evaluated. Not only are all the laws of the country subject to the new Constitution, 2 but so too a Constitutional Court will be operational which will have the power to test the constitutionality of any such laws. By looking at the standards and relevant issues which are considered to define the constitutionality of the death sentence internationally, reviewing current application of the death sentence in South Africa, drawing comparisons, and by studying the problems unique to the South African situation, it will be the aim of this dissertation to determine how the death sentence will fare under a Constitutional Court. / Criminal & Procedural Law / LL. M.