S v Chabalala

• Jurisdiction: South Africa
• Judge: Theal Stewart CJ, Moll JA and Van Den Heever JA
• Judgment Date: 17 June 1985
• Hearing Date: 17 June 1985
• Court: Bophuthatswana Appellate Division

S v Chabalala
1986 (3) SA 623 (BA)

1986 (3) SA p623

Citation	1986 (3) SA 623 (BA)
Court	Bophuthatswana Appellate Division
Judge	Theal Stewart CJ, Moll JA and Van Den Heever JA
Heard	June 17, 1985
Judgment	June 17, 1985

Flynote : Sleutelwoorde

Criminal procedure — Sentence — Death sentence — Validity of in Bophuthatswana — Section 277 of Criminal Procedure Act 51 of 1977 in terms of which death sentence F mandatory except in certain circumstances not invalidated by s 11 of Declaration of Fundamental Rights contained in chap 2 of Republic of Bophuthatswana Constitution Act 18 of 1977 — Section 10 (1) of Constitution Act which specifically permits death sentence not in conflict with s 11 of same Act which proscribes "inhuman and degrading treatment or G punishment" — Death sentence accordingly a valid sentence in Bophuthatswana.

Headnote : Kopnota

The appellant had been convicted of murder and, no extenuating circumstances having been found, he was sentenced to death. On appeal it was argued on his behalf that the death sentence amounted to "inhuman and degrading treatment" and as such was H contrary to s 11 of the Declaration of Fundamental Rights contained in chap 2 of the Republic of Bophuthatswana Constitution Act 18 of 1977 and as s 10 (1) of the same Act which appeared to sanction the death sentence was in conflict with s 11, s 10 (1) ought to be struck down. It was further argued that s 277 of the Criminal Procedure Act 51 of 1977, which provided for a mandatory death sentence except in certain circumstances, was invalidated by s 11 of the Constitution Act. I The Court held that there was no conflict between ss 11 and 10 (1) and there was therefore no need to reconcile them and s 10 (1) did not need to be struck down. The Court further held that s 277 of the Criminal Procedure Act was not invalidated by s 11 of the Constitution Act and that the Constitution had itself incorporated s 277 into the law of Bophuthatswana and Bophuthatswana had chosen to retain it as one of those laws in its original form since independence. The Court accordingly held that the death sentence was a competent sentence in Bophuthatswana. Appeal dismissed. J

1986 (3) SA p624

Case Information

A Appeal from a sentence of death imposed in the General Division. The facts appear from the judgment of THEAL STEWART CJ.

J D van der Vyver for the appellant.

J J Smit for the State. B

Judgment

Theal Stewart CJ:

On 31 March 1982 the appellant was convicted of seven counts of murder. He had deliberately burned to death his paramour and her six children, one of whom he had fathered. He achieved his purpose by first imprisoning them in the wood and iron house in which they were sleeping by wiring up the C only exit. He then poured petrol into the house through the window and set fire to it. All were burned to death. No extenuating circumstances were found and he was sentenced to death.

A petition for leave to appeal having succeeded, he now appeals against the finding that there were no extenuating circumstances and against the sentence on the grounds that such are unconstitutional.

D Before dealing with the merits of the appeal it is necessary to refer to events which have occurred since 31 March 1982.

After having been sentenced to death, the appellant exhausted all the normal avenues open to him in an attempt to avoid the sentence being put into effect. He applied for leave to appeal E and such was refused. He petitioned the then Chief Justice for such leave and it was again refused. He petitioned the President of the Republic of Bophuthatswana for clemency and this was refused. In each case he confined himself to the record of the proceedings at his trial. His execution was eventually scheduled for 7 am on Tuesday 3 April 1984.

F On the afternoon of Monday 2 April 1984 he brought an urgent application for a stay of execution. He alleged that counsel who had defended him at his trial had omitted to place facts before the trial Court which would have resulted in a finding that extenuating circumstances did indeed exist. Also that counsel had failed to advise him that it was possible to lead G evidence (which he said was available) in extenuation. He alleged further that if such evidence was placed before the trial Court it would result in a finding that extenuating circumstances did exist. In the alternative, he contended that such evidence, if placed before the President, would have the result that clemency would be extended to him. He asked for a H stay of execution for a period of one month to enable him to place such evidence on affidavit and to bring an application for the re-opening of his trial or to petition the President. His application for a stay of execution for one month was granted.

Nothing at all transpired during that month. No application for leave to re-open his trial was brought. There was no petition I for clemency. Nothing was heard from the appellant or from his legal representatives.

His execution should then have taken place after appropriate preparation and notice, and it would have, but for a supervening administrative difficulty which is not relevant to the present issues. The execution was subsequently scheduled for 7 am on Thursday 14 March 1985.

On the afternoon of Wednesday 13 March 1985 the appellant again brought an urgent application for a stay of execution. This J time he alleged that the finding of the trial Court that there were no extenuating

1986 (3) SA p625

Theal Stewart CJ

circumstances and that sentence imposed upon him were A unconstitutional. He sought a temporary stay of execution to enable him to formulate a formal application for leave to appeal. Counsel who appeared for him stated frankly that he had not been briefed to argue the merits of the application, but only to gain time to enable it to be brought.

In the light of the conduct of the previous application and B since I was of the prima facie view that there were reasonable prospects of success on the merits of the constitutional issue, I considered that the most expedient method of dealing with the application for a temporary stay of execution was to regard it as a petition for leave to appeal and to grant such leave. In this regard I was also mindful of C the fact that the learned trial Judge has retired. The appellant and the State having no objection to this approach, leave to appeal was granted.

I mention these facts in order to lay the basis for expressing my strongest condemnation of the practice on the part of the appellant's attorney, who is not his attorney of record, of D bringing applications, which could be brought earlier, for a stay of execution on the eve of the scheduled day of execution. In neither of the applications under discussion is there any explanation why either, or both, were not brought in 1983. If they had been, they would have been disposed of long before any consideration was given to a date of execution. The appellant E would have been spared the experience of twice having to prepare himself for his imminent execution. There will obviously be occasions when applications of this nature can only be brought at the last moment, but these do not fall into that category.

Furthermore, I subscribe to the view expressed in S v Malai F 1972 (4) SA 402 (T) at 404H that it is irresponsible to raise a hope of reprieve in the mind of a condemned man on the eve of his execution unless there is some ground for believing that there is some prospect of the sentence being commuted or of clemency. In regard to the first application there was patently G no such hope and that application should not have been brought. The same cannot be said of the second application, but this should have been brought earlier.

I turn now to the merits of the appeal on the constitutional issue.

Mr Van der Vyver, who appeared for the appellant, presented his H case on the basis of a main and an alternative argument. The main argument postulated that sentence of death was inhuman and degrading treatment and as such was contrary to the provisions of s 11 of the Republic of Bophuthatswana Constitution Act 18 of 1977. Section 11 is contained in chap 2 of that Act. That I chapter is headed "Declaration of Fundamental Rights" and is commonly referred to as the "Bill of Rights". I shall use that term in this judgment.

Section 11 reads:

"Punishment

11. No one shall be subjected to torture or to inhuman and degrading treatment or punishment."

Section 11 must be read in conjunction with s 10. Section 10 J (1) reads:

1986 (3) SA p626

Theal Stewart CJ

A "Right of life

10 (1) Everyone's right of life shall be protected by law and no one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law."

The main argument was developed along the following lines:

"1.

B The death sentence is, per se, inhuman and degrading.

2.

As such it is unconstitutional in terms of s 11 of the Bill of Rights.

3.

Section 10 (1), which purports to give constitutional approval to the death sentence in a proper case, contains provisions which are contrary to those contained in s 11.

4.

Since both sections are contained in a Bill of Rights, the C normal rules of interpretation do not apply and no attempt can or should be made to reconcile the conflict between the two sections.

5.

The conflict can and should be resolved by applying the more liberal of the two sections, namely s 11, and striking down s 10 (1).

6.

Section 11, standing alone and uncomplicated by the presence of s 10 (1), precludes the imposition of the death sentence."

Each of these propositions was developed at length. During D argument reference was made to a number of Bophuthatswananan, South...