Address by the Deputy Minister of Justice and Constitutional Development, the Hon John Jeffery, MP at the 10th International Meeting of Ministers of Justice, Via di Campo Marzio, Rome, Italy, 28 November 2017
Members of the Community of Sant’Egidio
Ladies and gentlemen
Lord Joel Joffe was the instructing attorney of the defence team who represented Nelson Mandela at the Rivonia trial of 1963.
It was to become known as the trail that changed South Africa. The maximum sentence that could be imposed was the death penalty.
Lord Joffe passed away in June this year. In one of the reflections on the trial, he wrote:
“My first meeting with Nelson Mandela was in October 1963 in the Interview Room at Pretoria Jail. I as the attorney for the leaders of the banned ANC, and Bram Fischer, George Bizos and Arthur Chaskalson who were the Advocates had just begun our consultation with Walter Sisulu, Govan Mbeki and the other leaders of the ANC who had been arrested ninety days earlier at the Rivonia Farm in Johannesburg….
We explained to them exactly how serious the charges were against them. They were to be charged for attempting to overthrow the State by violent revolution. Under the Sabotage Act a person could be sentenced to death for throwing a stone through a window with political intent. Accordingly, it was clear that for the offence which Nelson Mandela and the others were charged, death by hanging was almost inevitable if they were found guilty.”
How radically different our country and the world would have been if the three judges who had found Nelson Mandela guilty on that day had imposed the death penalty.
It is significant that when South Africa's Constitutional Court was established, as part of a free and democratic South Africa, its first act was to abolish the death penalty.
The case of S v Makwanyane was the first case ever heard by the Constitutional Court and all eleven judges found that the death penalty was unconstitutional. Justice Arthur Chaskalson, then President of the Court, handing down the judgment, said –
“Death is the most extreme form of punishment to which a convicted criminal can be subjected. Its execution is final and irrevocable.”
The Court also held that -
"Everyone, including the most abominable of human beings, has a right to life, and capital punishment is therefore unconstitutional....
Retribution cannot be accorded the same weight under our Constitution as the right to life and dignity. It has not been shown that the death sentence would be materially more effective to deter or prevent murder than the alternative sentence of life imprisonment would be.”
The court held that the punishment of anyone by death was cruel and inhumane and therefore unconstitutional as it violates the right to human dignity and the right to life in our Bill of Rights.
The court further ordered that the provisions of s 277(1) of the Criminal Procedure Act (Act 51 of 1977), and all corresponding legislation and provisions were declared to be unconstitutional and therefore invalid and it further ordered that the state and all its organs were forbidden from executing any person already sentenced to death.
Official records indicate that there were 430 people who had been under sentence of death at the time of the Makwanyane judgment.
As a result of that judgment, legislation – the Criminal Law Amendment Act of 1997 - was passed to provide for the procedure to be followed in setting aside the death sentences and the substitution of such sentences with an appropriate sentence.
The last execution in South Africa occurred in 1989, and thereafter the State issued a moratorium on executions.
According to the South African Institute of Race Relations, between 1910 and 1975, that is over a period of 65years, altogether 2,740 people were executed, but over an eight year period between 1981 and 1989 1 100 people were executed.
Until it was abolished, capital punishment had been implemented not only for murder but also for rape, housebreaking and robbery or attempted robbery with aggravating circumstances, sabotage, training abroad to further the aims of communism, kidnapping, terrorism and treason. It had also at one stage been mandatory until courts were authorised to impose lesser sentences if they found “extenuating circumstances”.
Historically, South Africa had one of the highest rates of judicial execution in the world.
In the late 1960s, South African abolitionist lawyer Professor Barend van Niekerk estimated that 47% of all executions in the world took place in South Africa.
In the period from 1985 to 1988 South Africa had the second highest execution rate in the world, second only to Iran. In 1987 South Africa executed more people than China or the United States of America, countries with much higher population figures.
Race played a distinct role in executions.
Figures show that of the 2,740 persons executed between 1910 and 1975, fewer than 100 were white. On study found that 288 white people were convicted of raping black people between 1947 and 1966 but that not one of them had been sentenced to death. On the other hand, 844 black people had been convicted of raping white people over the same period and 122 had been executed.
A further factor was that executions were used as a political tool.
Between 1960 and 1990, at least between 130 and 140 individuals were hanged for politically motivated offences. All those sentenced to death in South African courts were transferred to Pretoria Central Maximum Security prison, where the gallows were situated, to await their execution.
Those on Death Row were held under strict controls to avoid the possibility of suicide – lights were on twenty four hours, prisoners were watched through a grille. Once all legal processes had been completed and any petition for clemency granted or denied, notification would be received listing a date of execution for seven days hence. Those condemned would be moved to the ‘pot’, a waiting section reserved for their last seven days alive.
During this final week, the condemned were measured in terms of height, weight, and thickness of neck to prepare the correct conditions for their execution. Their families were notified of the impending execution, given a second class train ticket to Pretoria where they were able to visit the prisoner. These were non-contact visits, the last of which would be the afternoon before the execution.
Up to seven persons could be executed at one time. The noosed and hooded prisoners were lined up along the trapdoor. The executioner would pull a lever that would drop the trapdoor, plunging the prisoners some six or seven feet.
After some few minutes, the medical officer would examine the body and confirm the death. The bodies were placed naked in coffins. An interdenominational service with the closed coffins would be held for the family in a prison chapel below the gallows chamber.
The bodies of those hanged remained the property of the state and were not given to the families after the execution. Instead, the bodies were buried as paupers, usually three to a grave, in racially segregated municipal cemeteries.
The South African Government therefore launched the Gallows Exhumation Project on 23 March last year.
This is in recognition of the sacrifice of political prisoners who were judicially executed between 1960 and 1990 and to provide some form of reparation and redress to their families.
Out of 83 political prisoners that were hanged, 37 remains of individuals belonging have been exhumed. Their remains were formally handed over to their families for dignified reburials.
Today, South Africa is guided by our Constitution and a number of international instruments. For example, South Africa signed the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment on 29 January 1993 and ratified the Convention on 10 December 1998. We are in the process of ratifying the Optional Protocol (OPCAT).
There are a number of factors that mitigate against the death penalty.
There is always a possibility of error and if there is a miscarriage of justice it cannot be reversed. There is always the risk of abuse.
Add to that the fact that it is very often the poor and the marginalised in society do not know their rights or do not have proper access to justice or to legal representation.
Despite best efforts to ensure the rights of accused persons, we live with the reality that wrongful convictions happen – not only in our own country, but across the globe.
Ultimately it is our Constitution that guides our way.
As South Africa embarked on its journey to democracy, we set ourselves firmly on the path of human rights for all.
The right to life is perhaps the most fundamental right of all – for how is one to exercise all other human rights if one’s right to life has been deprived?
Because of our tragic past, we have committed ourselves to the attainment of human rights for all. Most of these rights not only apply to citizens of our country, but to all who find themselves within our borders.
South Africa will therefore not extradite foreign nationals suspected of crimes that may lead to them facing the death penalty in those countries that seek to try them.
For example, the matter of Minister of Home Affairs v Tsebe was handed down by the Constitutional Court. The Tsebe judgment reinforced an earlier precedent-setting judgment handed down by the Constitutional Court in the matter of Mohamed v President of the Republic of South Africa.
The Constitutional Court ruled in the Mohamed case, that even if there was an extradition agreement between South Africa and the USA, Mr Mohamed could not be handed over without an assurance that he would not face the death penalty.
In the Tsebe judgment, the Court went further than in Mohamed to require not only that the South African Government seek the assurance that an extradited person will not face the death penalty, but also obtain that assurance, failing which extradition could not be granted.
I want to conclude with the words Zondo AJ (now Zondo DCJ) in the Constitutional Court in the Tsebe case. The Court held that –
“We as a nation have chosen to walk the path of the advancement of human rights. By adopting the Constitution we committed ourselves not to do certain things.
One of those things is that no matter who the person is and no matter what the crime is that he is alleged to have committed, we shall not in any way be party to his killing as a punishment and we will not hand such person over to another country where to do so will expose him to the real risk of the imposition and execution of the death penalty upon him.
This path that we, as a country, have chosen for ourselves is not an easy one.
Some of the consequences that may result from our choice are part of the price that we must be prepared to pay as a nation for the advancement of human rights and the creation of the kind of society and world that we may ultimately achieve if we abide by the constitutional values that now underpin our new society since the end of apartheid.
If we as a society or the State hand somebody over to another State where he will face the real risk of the death penalty, we fail to protect, respect and promote the right to life, the right to human dignity and the right not to be subjected to cruel, inhuman or degrading treatment or punishment of that person, all of which are rights our Constitution confers on everyone.”
I thank you.