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1. 1. INTRODUCTION
The abolition of the death penalty in South Africa remains a topical issue as violent
crimes continue to increase unabated and as the debate about its merits as a form of
punishment intensives. The history of the death penalty in South Africa, though,
presents a rich and contextualized field, if not deeply tragic, towards analysis of capital
punishment in general. This follows mainly due to the institutionalization of Apartheid
in South Africa, with the struggle for freedom that subsequently ensued, and the
manner in which this sentence was used by authorities to punish freedom fighters
accosted by Apartheid security forces.1 The dawn of democracy brought, though,
constitutional supremacy which holds dignity, equality and freedom as founding values.
It is within this context that this research proposal presents a historical analysis of the
constitutional developments which led to the abolition of the death penalty in South
Africa, describes the legislative environment which enabled these developments, and
proposes a particular hypothesis of how the South African society having been
confronted by the so-called counter-majoritarian dilemma has experienced a significant
change in norms towards a reinstatement of the death penalty.
2. PROBLEM STATEMENT
This research presents a historical analysis of the constitutional reasons that led to the
abolition of the death penalty in South Africa during 1995. It presents a specific context
of a country of which the post-colonial unfolding of its socio-political history placed a
very particular moral duty on this society to adopt a Constitution with liberal norms, and
the duty to accept the supremacy of its founding values. This matter bears thorough
scientific scrutiny, though, given increasing levels of violent crime and murder in South
Africa, given increasingly urgent and louder calls for the reinstatement of the death
penalty and a significant increase in “mob justice”, and given that some jurisdictions
elsewhere in the world indeed have reinstated the death penalty in the recent past.2
1 Van Laun BP Administrative Death: Bureaucracy, capital punishment and governmentality in
South Africa during the 1960s (PhD thesis University of the Western Cape 2018) 25.
2 Amnesty International “Death Sentences and Executions 2013”
https://www.amnesty.org/en/documents/act50/001/2014/en/ (Date of use: 5 October 2019).

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The following specific questions are consequently to be pursued in the proposed
research:
▪ When was the death penalty formally instituted as a form of punishment in the
South African penal history?
▪ How did application of this form of punishment unfold in this country, and how
many people succumbed to it?
▪ How was the death penalty used as a form of punishment in the struggle for
freedom from Apartheid?
▪ What were the historical constitutional developments that led to the abolition of
the death penalty in South Africa?
▪ How did the legislative environment consequently unfold, in light of these
constitutional developments?
▪ What is the status quo insofar it concerns the debate about the abolition of the
death penalty in South Africa?
▪ Is there a change in norms observable in the South African society insofar it
concerns the death penalty?
▪ Should the increasing prevalence of vigilantism, also known as “mob justice”, be
seen as an expression of a changing set of norms towards constitutional values
in the South African society?
▪ Given sentiments against the death penalty both locally and internationally, are
there alternatives outside improving the Criminal Justice System for steering the
national debate away from the reinstatement of the death penalty in South
Africa?
3. HYPOTHESIS / AIM OF RESEARCH
The hypothesis to be explored with the proposed research is that the history of
Apartheid and the struggle for freedom that followed led to a very specific constitutional
setting that has had a marked impact upon the reasoning that led to the abolition of the
death penalty, but that constitutional norms such as an appreciation of the values of life
and dignity have been changing in communities towards a sense of helplessness and

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a need for retribution through the death penalty as they experience increasing levels
of violent crime and a lack of prosecution of these crimes.
4. POINTS OF DEPARTURE AND ASSUMPTIONS
By the time South Africa became a union on 31 May 1910 this country already had a
400-year history of institutionalized enslavement, segregation and oppression of non-
white citizens. Yet, it was especially during the post-colonial period that oppression
was formalized into legislation. Two examples serve to demonstrate this contention.
First, the Native’s Land Act of 19133 formalized into statute the territorial segregation
between white and Black South African citizens, leading to immeasurable suffering and
hardship especially among African people in this country.4 Confining two-thirds of the
population to one seventh of the land is subsequently described as “one of the cruelest
deprivations they have ever been made to suffer.”5 Second, with colonial pass laws
already obliging Black citizens to wear passes, the Urban Areas Act of 19236 further
restricted free movement of Black citizens in urban areas, among others leading to
273,790 pass law convictions between 1939 and 1941, with at least one million Black
people accosted by police during this period.7 Pass laws were, in fact, further tightened
with the Abolition of Passes and Co-ordination of Documents Act of 1952,8 and it is now
common course that it was these pass laws which led to the Sharpeville massacre on
21 March 1960.
There was, therefore, a long history of discrimination in this country. Yet, there were
the forces battling towards freedom and democracy, primarily driven by a liberal human
rights imperative. The primary point of departure for this research proposal,
consequently, is that having succeeded in achieving democracy, the liberal human
rights paradigm persisted in the formulation of the founding values of the Constitution
3 Natives Land Act 27 of 1913.
4 Plaatje ST Native Life in South Africa (Longman London 1987).
5 Paton A Hofmeyer (Oxford University Press Cape Town 1964) 180.
6 Urban Areas Act 21 of 1923.
7 Lewsen P Voices of Protest (AD Donker Craighall 1988) 41.
8 Abolition of Passes and Co-ordination of Documents Act 67 of 1952.

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of South Africa (hereinafter referred to as the Constitution),9 leading to the Bill of Rights
as it is contained in Chapter Two of the Constitution. More precisely, the era of
constitutional transformation that persisted during the 1990’s led to a “liberal egalitarian
system”,10 going beyond liberal constitutionalism to comprehensively address social
and political realities prevailing at the time in this country. It is, though, within the
context of oppression and gross human rights abuses of the pre-democratic era that
the liberal founding values of the Constitution served as the bedrock upon which the
Constitutional Court ultimately based its reasoning when it declared the death penalty
unconstitutional.11 The current hypothesis holds among others, though, that the
Constitution represents societal norms of a bygone era and that the South African
society calls for a re-examination of the relevance of these norms as violent crime
engulfs especially poorer communities.
In order to analyze and describe the constitutional reasoning which led to the abolition
of the death penalty, it is necessary to present an overview of the history of this form of
punishment in this country. This means the developing trajectory of the death penalty
as a statutory sentence is to be described from its inception early on in the post-colonial
era, characterized by the creation of the Union of South Africa during 1910, through the
Apartheid years during which it reached its zenith, until the 1990 moratorium on the
death penalty and its eventual demise in 1995. In this regard, records indicate that
South Africa carried out the death penalty “about” 4,200 times12 during the period
between 1910 to 1995. The so-called independent homelands of Transkei, Ciskei,
Venda and Bophuthatswana also applied the death penalty. Therefore, fixed and
generally agreed upon records of the exact number of people hanged post-1910 across
South Africa are not available. South Africa did, though, built up a reputation for
carrying out the death penalty, and by 1987 someone was sent to the gallows, on
9 Constitution of the Republic of South Africa, 1996.
10 Kibet E and Fombad C “Transformative constitutionalism and the adjudication of constitutional
rights in Africa” 2017 African Human Rights Law Journal 250.
11 S v Makwanyane and Another (CCT3/94) [1995] ZACC 3; 1995 (6) BCLR 665; 1995 (3) SA 391;
[1996] 2 CHRLD 164; 1995 (2) SACR 1 (hereinafter the Makwanyane case).
12 Novak A “Capital sentencing discretion in Southern Africa: A human rights perspective on the
doctrine of extenuating circumstances in death penalty cases” 2014 African Human Rights Law
Journal 30.

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average, every two days in this country, leading to constant calls from across the world
for reform and abolition of this practice.13 Given subsequent constitutional
developments, the South African Parliament eventually removed the death penalty from
the statute books through the Criminal Law Amendment Act14 during 1997.
Given the aforementioned background, this research proposal calls for a hybrid
research design, combining historical research methods and quantitative methods. For
purposes of the historical era focusing on the era up to the abolition of the death penalty,
it should comprise primarily literature research involving, respectively, the Constitution,
case law, legislation, journal articles, historical works, and academic research. For
purposes of the era since the abolition of the death penalty, a quantitative method
comprising of a description of the latest crime and prosecution statistics and a statistical
analysis of the public opinion on the death penalty is proposed. For this research to
unfold within the aforementioned context, it is assumed that:
▪ The Constitution is a living document reflecting the norms of the South African
society it serves, and as this society changes it must be able to adapt as well to
its changing norms.15
▪ The Constitution is contained in legislation, but it constitutes more than
legislation, and also contains founding values and principles.
▪ The Constitutional Court serves the Constitution as it is legislated. Following
special procedures, the Constitution have been amended in the past, and can
again be amended in the future.16 This applies in particular to the death penalty
too.
▪ The Constitutional Court serves as the apex Court in this country, but
constitutional jurisprudence is practiced by mere human beings, each with his or
her own history, worldviews, prejudices and reasoning. Errors, deviations or
13 Van Laun Administrative Death: Bureaucracy, capital punishment and governmentality in South
Africa during the 1960s 25.
14 Criminal Law Amendment Act 105 of 1997.
15 Abebe AK “The substantive validity of constitutional amendments in South Africa” 2014 South
African Law Journal 656.
16 Abebe 2014 South African Law Journal 661.

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subjective reasoning in constitutional judgements are, therefore, entirely
possible, and do happen. Given its constitutional gravity, the elaborate
reasoning of the judges in S v Makwanyane, each from a unique perspective,
serves as a case in point. Critique upon constitutional judgements is,
furthermore, a norm in constitutional democracies, and serves to offer wider
context of these judgements.17
▪ Although liberal values and human rights apply globally, and although they have
a particular history on the African continent, the South African context enjoys
primacy in the constitutional developments that led to the abolition of the death
penalty.18
▪ Constitutional and legislative processes related to amendments of the
Constitution are transparent and regularly communicated through various media
outlets.
Given these assumptions, this research proposal excludes broader treatment of the
following aspects related to this topic:
▪ The early history of the death penalty, whether related to South Africa before the
formation of the Union of South Africa during 1910, or whether internationally.
▪ The constitutional and legislative dispensations of other countries as this relates
to the death penalty.
▪ The personal perspectives, histories and stories of people sentenced to death.
▪ The extension of mercy by the Executive to prisoners on death row.
▪ The further critique upon the constitutional court reasoning in S v Makwanyane
that led to the declaration of the unconstitutionality of the death penalty.
Given the above points of departure, assumptions and exclusions, the proposed
research will combine a legal historical analysis of the institutionalization, statutory
17 Klaasen A “Constitutional interpretation of the so-called ‘hard cases’: Revisiting S v Makwanyane”
2017 De Jure 1-17.
18 The Makwanyane case [10].

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application and eventual abolition of the death penalty as this relates to South Africa,
combined with a statistical analysis of the latest public views on the death penalty.
5. CONCEPTUALIZATION OF CENTRAL RESEARCH THEMES
For purposes of the proposed research, the following definitions of essential concepts
are provided:
▪ The death penalty: Various definitions exist for the death penalty. In South
Africa it is, among others, described as “judicial executions” applied in a racially
discriminatory manner during the Apartheid era.19 Chairman of the Northern
Ireland Law Commission, Justice Bernard McCloskey describes the death
penalty as “state-sponsored execution”.20 Amnesty International describes it as
the “premeditated killing of a prisoner for the purpose of punishment”,21 and
argues that the purpose of punishment can be achieved through other means.
Although the death penalty, and capital punishment in general, is not prohibited
by public international law, questions remain about the arbitrariness and
inequality thereof, and the Constitutional Court expressed itself sufficiently on
this matter.22 There is also a distinction between the imposition, and the carrying
out, of the death penalty. In South Africa, the moratorium on the death penalty
was only on the carrying out thereof, and courts indeed continued to impose this
penalty during the moratorium.23 In fact, 243 death sentences were imposed
during this period, of which 143 were confirmed by the Appellate Division.24
These sentences were imposed in terms of Section 277(1) of the Criminal
Procedure Act,25 amended by the Criminal Law Amendment Act which removed
the death penalty as a penal sentence in South Africa.
19 Van Laun Administrative Death: Bureaucracy, capital punishment and governmentality in South
Africa during the 1960s 4.
20 McCloskey B “The death penalty and the right to life” 2012 Commonwealth Law Bulletin 485.
21 Prokosch E “Human Rights v. the Death Penalty: Abolition and Restriction in Law and Practice”
1998 Amnesty International https://www.amnesty.org › download › Documents (Date of use: 17
October 2019) 2.
22 The Makwanyane case [48;49].
23 The Makwanyane case [24].
24 The Makwanyane case [126].
25 Criminal Procedure Act 51 of 1977.

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▪ The death penalty as deterrent: In S v Makwanyane the Constitutional Court
convincingly argues that the death penalty does not serve as deterrent to violent
crime, or criminals intent on taking life.26 In its reasoning, though, the Court did
not refer to legal sources supporting the death penalty.27 Yet, an empirical
survey testing the views of leading criminologists from across the globe yields
overwhelming consensus among these criminologists that the death penalty
does not add deterrent effects to those already achieved by long imprisonment
of convicted criminals.28 In a more recent assessment of the deterrent effect of
the death penalty, Šimonović expresses the opinion that scientific proof that
executions have a greater deterrent effect than life imprisonment is “unlikely to
be forthcoming.”29 Following upon personal interviews with 467 convicted
murderers in South African jails, Jones30 comes to the conclusion that the death
penalty would not have stopped these murderers from committing murder. Aside
from all other scientific considerations, though, two reservations should be
expressed in this regard. The first reservation relates to selection bias. Given
that less than 20% of murders committed in South Africa lands in court,31 and
the slow rate of convictions of those brought to book, it may very well be that a
significant view on the death penalty as deterrent persists among approximately
80% of murderers never accosted. After all, had the Criminal Justice System
been more successful and had chances to land on death row being better, the
message from the authorities would have been different to all those planning to
murder, or even those murdering without having first contemplated to do so. The
message from the authorities now is that someone planning a murder has an
26 The Makwanyane case [121;122;123;126].
27 Klaasen 2017 De Jure 11.
28 Radelet ML and Lacock TL “Do Executions Lower Homicide Rates: The Views of Leading
Criminologists'” 2009 The Journal of Criminal Law and Criminology 489.
29 Šimonović I “Moving away from the death penalty: Arguments, trends and perspectives” ed United
Nations 13 https://www.ohchr.org › Attachments › Moving-Away-from-the-Death-Penalty (Date of
use: 17 October 2019).
30 Jones C 2013. Capital Punishment: Convicted murderers’ views in 18 South African prisons,
2009–2013. (Unpublished research document Stellenbosch University 2013).
31 Versluis J and De Lange J “Rising crime, low prosecution rates: How law enforcement in SA has
all but collapsed” 2022 City Press https://www.news24.com/citypress/news/rising-crime-low-
prosecution-rates-how-law-enforcement-in-sa-has-all-but-collapsed-20191021 (Date of use: 11
September 2022).

9. 9
80% chance of getting away with the crime, and for the 20% chance that he was
accosted he would never face a death penalty. Consider what the view on the
death penalty as deterrent would have been if the future murderer knew that he
had less than a 20% chance to get away with the murder and that if he was
accosted would potentially face a death penalty. The second reservation relates
to the question of whether every convicted murderer now in prison, and
requested a view on the matter by a bona fide researcher, does not have a very
personal interest in expressing themselves in this regard. For example,
demonstrating honest reflection and remorse serves as a consideration for
parole, a statutory concession to convicted criminals notoriously badly managed
by the South African authorities.
▪ Human dignity: This concept is defined as “…an attribute inherent in every
human being…to be recognized and respected by the state and fellow men
alike.”32 In S v Makwanyane, Chaskalson P argues that “The carrying out of the
death sentence…annihilates human dignity…”33 In the same judgement,
Mokgoro J describes human dignity as a right “…concomitant to life itself and
inherent in all human beings…life and dignity are like two sides of the same
coin.”34 She proceeds to describe life and dignity as inherent characteristics of
the African worldview of ubuntu. According to Steinmann, countries across the
world give prominence to human dignity in their constitutional systems,
notwithstanding differences in legal culture, and in spite of differences in historic,
social and religious backgrounds.35 Together with equality and freedom, dignity
should not only be appreciated as a value, but also as a protected interest or a
legal claim. This is the dual nature of these values, in the sense that they are
also constitutionally embedded rights deserving of protection.
▪ The right to life: This concept is defined as “…the most fundamental of all rights.”
36 The right to life is generally recognized in Article 3 of the Universal Declaration
32 Steinmann AC "The Core Meaning of Human Dignity" 2016 Potchefstroom Electronic Law Journal
24.
33 The Makwanyane case [95].
34 The Makwanyane case [311].
35 Steinmann 2016 Potchefstroom Electronic Law Journal 2.
36 McCloskey 2012 Commonwealth Law Bulletin 494.

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of Human Rights. Article 6 of the International Covenant on Civil and Political
Rights recognizes the inherent right of every person to life, and, within an African
context, the right to life is also protected by the African Charter on Human and
Peoples’ Rights. Section 11 of the Constitution simply states that everyone has
the right to life. Chaskalson P calls this a “textually” unqualified right in S v
Makwanyane.37
▪ Abolition of the death penalty: This concept is defined as a cause that "…
contributes to the enhancement of human dignity and the progressive
development of human rights."38 The abolition of the death penalty in South
Africa remains a topical issue, inasmuch as it does internationally. As one of the
most visual protagonists of abolition, Amnesty International in its latest update
on the death penalty records a significant increase in people executed
internationally, but it appears overall optimistic about progress in its quest for
worldwide abolition of this penalty.39 In South Africa, the death sentence
remains a practical reality without the benefit of court hearings for many victims
of the so-called “bundu” or “kangaroo” courts, driven by vigilantes in poor and
crime-ridden communities seeking retribution. This leads the Institute of Race
Relations to conclude that reinstatement of the death penalty may reduce extra-
judicial killings in these communities.40 Following a number of high profile
murders and acts of violence against women and children, more than 300,000
South Africans signed one of several petitions calling for the death penalty to be
reinstated.41 Social media sites and media forums in general abound with calls
for reinstatement of the death penalty as well.
37 The Makwanyane case [157].
38 Prokosch 1998 Amnesty International 8-9.
39 Amnesty International https://www.amnesty.org/en/documents/act50/001/2014/en/ (Date of use:
17 October 2019).
40 Institute of Race Relations “Was abolishing the death penalty the right decision? – IRR”
https://www.politicsweb.co.za/documents/was-abolishing-the-death-penalty-the-right-decisio
(Date of use: 17 October 2019).
41 Businesstech “South Africans are calling for the death penalty to be reinstated – here’s what
government says” https://businesstech.co.za/news/government/338473/south-africans-are-
calling-for-the-death-penalty-to-be-reinstated-heres-what-government-says/ (Date of use: 17
October 2019).

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▪ The counter-majoritarian dilemma: This concept is defined as “…the
contradiction that exists in society if an unelected and unaccountable court with
the power of review can set aside as unconstitutional legislation that emanates
from a parliament that is supposedly representative of the wishes of the
majority.”42 This is a matter on which the Constitutional Court had, again,
sufficiently expressed itself in S v Makwanyane. In this regard, Chaskalson P
eloquently states that the Court “…cannot delegate to Parliament the duty that
we bear to determine…” the constitutionality of the death penalty. In the same
paragraph the judge states, furthermore, that “To allow ourselves to be
influenced unduly by public opinion would, in any event, be wrong.”43 The
question arises, though, of how public representatives and the legislator should
manage signals from society that they will bypass the legislator in setting a new
norm for dealing with crime at community level. Insofar it concerns the legislator,
examples exist of how the death penalty was reintroduced in other democracies,
most notably in India, Nigeria, Indonesia and in some states of the United States
of America. Public opinion manifesting in the setting of a new norm in a
functioning democracy should therefore transfer to the political realm, in order to
be subject to debate in the legislature. It is this branch of government which,
ultimately, should resolve this dilemma, and it has the mandate to choose to do
so at any given time in accordance with parliamentary procedures, and in
accordance with Section 74(2) of the Constitution which makes provision for
amendments to the Bill of Rights. ,
8. THE COUNTER-MAJORITARIAN DILEMMA AND THE DEATH PENALTY
A final consideration is that the South African society is increasingly confronted with the
so-called counter-majoritarian dilemma, with at least two serious and immediate
consequences, respectively the increasing prevalence of vigilantism, also described as
“bundu courts” or “mob justice”, as a demonstration that certain sections of society are
42 Zlotnick M "The Death Penalty and Public Opinion - S v Makwanyane and Another" 1996 South
African Journal on Human Rights 71.
43 The Makwanyane case [188].

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prepared to disregard the State and to take the law into their own hands, and many
more voices going up for a return of the death penalty from across society. Insofar it
concerns vigilantism, the release of the latest crime statistics for the quarter ending
June 2022, record “mob justice” as the third most prevalent reason for a record number
of murders occurring in South Africa.44 This phenomenon leads an influential online
publication to comment that “The death penalty has returned to South Africa…the
breakdown in policing in townships and informal settlements has seen a rise in vigilante
‘justice’”.45 Worse, though, is the prediction in the same piece that vigilantism will
become an even more regular occurrence in poor societies in South Africa, combined
with the well-known realization across the country that for various reasons among which
a lack of cooperation from these poor societies themselves, that the South African
Police Service does not succeed in bringing the perpetrators of vigilante murders to
book. Vigilantism of this type is not a new phenomenon in South Africa, and although
well observed already since the Apartheid era, and even written up in medical circles
for the pressure it puts upon the South African health infrastructure and services due
to the prevalence thereof,46 apparently its growing popularity is not a message received
by the legislator, aside from the brutality of this phenomenon and the fact that victims
thereof typically have no recourse to representation, argument, appeal or any other
right before they are murdered. Elsewhere, the same online publication carries an
opinion piece in which an influential political leader states his case for the death penalty
for serious crimes such as murder and rape.47 Clearly, the last word on this matter is
not spoken, and more research is called for, specifically insofar it concerns the view
about the death penalty among the poor in South Africa. Of course, an even more
important question arises of whether would-be criminals in these poor societies have
44 News24 https://www.news24.com/news24/southafrica/crime-and-courts/live-police-minister-cele-
reveals-latest-crime-stats-in-briefing-20220819 (Date of use: 21 August 2022).
45 Heywood M “Death penalty returns to SA through mob murder – with spike in deaths due to blunt
force injury, say doctors” 2022 Daily Maverick https://www.dailymaverick.co.za/article/2022-05-
29-death-penalty-returns-to-sa-mob-murder-with-spike-deaths-blunt-force-injury-doctors/ (Date of
use: 21 August 2022).
46 Medar S, Keyes CA and Stuart SJ “Mob justice fatalities in South Africa: a forensic mortuary study.”
2021 Forensic Sci Med Pathol 17 https://doi.org/10.1007/s12024-021-00415-8 (Date of use: 21
August 2022).
47 Mashaba “Here’s why I support the reinstatement of the death penalty” 2020 Daily Maverick
https://www.dailymaverick.co.za/opinionista/2020-08-27-here-is-why-i-support-the-reinstatement-
of-the-death-penalty/ (Date of use: 21 August 2022).

13. 13
received the message of ‘mob justice”, and whether this would either reduce crime in
these poor societies, or whether it will simply shift these crimes in time and space.
9. CONCLUSION
This research proposal involves a legal historical analysis of the constitutional
reasoning that led to the eventual abolition of the death penalty in South Africa during
1995 and hypothesizes that since the abolition of the death penalty approximately 27
years ago there has been a gradual shift in norms towards its reinstatement. It finds
that the post-colonial history of this country and the gross abuses of human rights
characteristic of this period exerted a significant influence upon the constitutional
developments that led to the declaration of the death penalty as unconstitutional. Yet,
based on repeated series of crime statistics, and a constant increase in vigilantism, it
hypothesizes that having been confronted with the so-called counter-majoritarian
dilemma the South African society has taken the law in its own hands as worsening
socio-economic conditions appear to cause more violent crimes and murders, and
appear to be accompanied by an almost callous disregard for the life of victims of violent
crimes.