Speeches

Remarks by the Minister of Justice and Constitutional Development, Minister Mmamoloko Kubayi, Gallows Lecture, 11 July 2026

Programme director

I would like to begin by sending Special greetings to the families of Benjamin Mlondolozi , Gxothiwe, Siphiwe Lande, Sipho Mahala, Kholisile Dyakala, Lungile Rewu, Richard Thobile Lloyd, Mnyanda Jantjies and Mlamlie Milies.

We remember these heroes who lost their lives to the death penalty for their courage and determination in their uncompromising fight against oppression and injustice
I would like us to observe a moment of silence in honour of these heroes

National director of public prosecutions, Adv Andy Mothibi
Leadership of the MK liberation
The leadership of the PAC
The leadership of AZAPO
Distinguished guests
Ladies and gentlemen

We have gathered here to mark 30 years of the adoption of our constitution and to reflect on an important aspect of law and justice, the abolition of the death penalty. The adoption of the constitution 30 years ago, marked a significant victory for our people's long and difficult struggle against colonization and apartheid. The constitution is a foundational framework upon a new nation based on the values such as human rights, equality, equitable distribution of resources and socio-economic development is under construction. Significant progress has been made in building a new nation, but substantial challenges remain. There have been ebbs and flows, ups and downs, wins and losses along the way but our constitution continues to be the guiding light of our effort to build a better life.

Lives were lost, blood was shed and huge sacrifices were made for us to get to where we are today. We stand here today entrusted with the responsibility by the people of South Africa to turn their aspirations into a lived reality. Those who lost their lives during the dark days of our struggle died convinced that their contribution to the struggle will one day help to build a foundation for a new society are looking down at us expecting us to continue were they left off and achieve the goals of the liberation. They died comforted by the fact they were part of a large army of patriotic Africans and they confident that their comrades will pick up the spear and continue with the struggle to build a better life for all. They died so that what happened to them should not happen to future generations. They were convinced that the cruel and inhumane system of capital punishment should not form part of a future society they wanted to build for the children of Africa.

In its judgment in the case of State v Makwanyane and Mchunu, which was heard in February 1995, handed down in June 1995, the constitutional court outlawed the death penalty. In handing down that judgement lives were saved, a new chapter in South African Jurisprudence was opened, a victory for the liberation struggle was secured and a major milestone in the journey towards the birth of new humane and civilised society was marked. That momentous court decision marked the end of a system that killed good people and at the same time played midwife to the birth of a new system that saved.

Today, as we are gathered here, we have the opportunity to reflect on the death penalty not only as an instrument for crime and punishment but also as symbol of the many instruments which were used to preserve the barbarism of apartheid and all its privileges for the few. This reflection must also serve as a reminder that the freedom that we enjoy today was not free, it came at a very dear price. It came at the back of the men and women who stood up to fight for the freedom of all South Africans and some of them paid with their lives.

It must be noted that at the time that the judgement was delivered the Interim Constitution of the Republic of South Africa of 1993 had been adopted. While the interim constitution contained a comprehensive bill of rights, it did not address the use of capital punishment. Thus, the decision on whether the death penalty was constitutional or unconstitutional was left to the court to decide. In many ways the court in State vs Nkwanyana was confronted with the task of defining the future South Africa that we wanted to create.

We have to draw a distinction between what the then attorney General of Witwatersrand put forward in his argument during the trial that the death penalty was a deterrent to violent crime and that it met society's need for adequate retribution for heinous offences on the one hand and the use of the death penalty by the apartheid regime erase the idea of liberation, its heroes and its history on the other. The former is what even today subject debate for those who refuse to accept that the right to life is a sacred right.

The attempt to erase the struggle for liberation was evident in how the apartheid regime handed out death sentences and how they were implemented. In the late 1980s many more political prisoners were sentenced to death and some were hanged in secret. They included trade unionists convicted for actions that were part of their struggle for better working conditions. The death sentence was being used as a deterrent for those who wanted to participate in the struggle for freedom. As mentioned during the nation's Truth and Reconciliation Commission, 95% of people sentenced to death under apartheid were Black, while all those imposing the judgement were white.

To restore dignity to the families of these fallen heroes and ensure that they are remembered our government initiated the Gallows Exhumation Project which was aimed at locating and recovering the graves of all those political prisoners who were executed on the Gallows and whose bodies remained the property of the state. This project was concluded last year after exhumation of 81 remains of deceased victims who were hanged on death row for politically related offences and all of them were handed back to their families.

In 1990, after Nelson Mandela's release, over 70 political prisoners were still held on death row. In spite of an agreement between the South African government and the ANC in the Pretoria Minute of August 1990, many of them were only freed after protests from inside and outside South Africa.

Paula McBride, wife of former African National Congress guerilla Robert McBride, who spent five years in death row described the death penalty as follows: "..as someone who was more a witness to the effect that being sentenced to death, has on human beings, and not only the human beings who are sentenced to death, but those who look after them while they are waiting to be hanged … in my mind the death penalty is a gross human rights' violation and it should be recorded in the record at the Truth and Reconciliation Commission, as a gross human rights' violation."

She further added that: "I hope that…it will never, ever, again come back onto our statute books because I think it brutalises not only those who are sentenced, but those who sentence them, the Judges and also it brutalises our whole country".

What Paula MacBride was saying was that death penalty has no place in a constitutional democracy because it is a poison that corrodes of humanity of a society as a whole not only those who are affected.

In handing out that unanimous judgement on State vs Nkwanyana, former Chief Justice Arthur Chaskalson, said the following among others:
"The carrying out of the death sentence destroys life, it annihilates human dignity, elements of arbitrariness are present in its enforcement, and it is irremediable... I am satisfied that in the context of our Constitution the death penalty is indeed a cruel, inhuman and degrading punishment."

What the negotiated transition of the early 1990s accomplished, therefore, was not merely a political handover but a civilisational reorientation. The Interim Constitution of 1993 described the moment as a "historic bridge" as it symbolised a passage from strife and injustice to peaceful coexistence premised on open democratic governance and the pursuit of universal human rights. That bridge led, in 1996, to the final Constitution, a document that did not simply list rights but rooted them as the supreme law of the land, binding the executive, the legislature, and the judiciary alike.

At the nub of the constitutional dispensation lies the Bill of Rights. Chapter 2 does something ambitious that, thirty years on, still deserves appreciation. The Bill of Rights says among other things that "This Bill of Rights is a cornerstone of democracy in South Africa. It enshrines the rights of all people in our country and affirms the democratic values of human dignity, equality and freedom." To safeguard human dignity, Section 11 of the bill of rights asserts that "Everyone has the right to life." The unqualified statement that 'every person has the right to life', in effect outlaws capital punishment.

In this way the constitution has ensured that "never, never and never again must citizens of our country be subjected to the barbaric practice of capital punishment".

The question that arises is: what is it that we must do to honour the memory of those who died because of the barbaric practice of capital punishment?

We ought to remember that the chapter on Bill of Rights was formulated by the drafters of the constitution in such a way that it treats socio-economic rights just as important as civil and political rights. The right to equality, to human dignity, to privacy, and to freedom of expression are articulated alongside the rights to housing, healthcare, food, water, and education. We ought to remember that our constitution enjoins all of us to strive to "Heal the divisions of the past and establish a society based on democratic values, social justice and fundamental human rights" and "Improve the quality of life of all citizens and free the potential of each person".

Our constitution has made it possible for us to pass laws and create policies that can translate the transformational aspiration into a reality. We live in South Africa that suffers from the triple challenges of inequality, poverty and unemployment. This imposes a responsibility on all those who have been entrusted with the responsibility to lead to intensify the effort to radically reduce poverty and inequality. We have to do everything in our power to ensure that we accelerate socioeconomic development so that we can create jobs and economic opportunities for the majority of our people especially the youth and women. The failure and retreat from striving to build a better life for will be a betrayal of those who paid the ultimate price to secure freedom and dignity for their fellow countrymen and women. By failing to create a better life for all, we will be perpetuating a system that kills by other means.

Let us join hands and work together to honour the memory of the fallen heroes and heroines who dreamed of a free and prosperous South Africa by recommitting our selves to the goals of our liberation struggle.

Let me conclude with the words of a former death prisoner Robert MacBride who spoke to Sowetan about his experience in death row and he said the following amongst other things: "Prisoner would scream and cry and after the hanging warders would bring would bring back the blood soaked hoods and order prisoners who were due for execution the following day to wash them".

I quoted these words to expose the barbarism and the inhumanness of the capital punishment. Those who today call for the return of death penalty must understand that they are asking for our country to return to barbarism. Capital punishment has no place in a humane constitutional democracy. Let us be vigilant and fight for a system that values the right to life.

Let us all proclaim ONE CONSTITUTION, ONE NATION. REFLECT. RENEW. RECOMMIT.".

I thank you