Sibiya and Others v Director of Public Prosecutions, Johannesburg, and Others

• Jurisdiction: South Africa
• Judge: Chaskalson CJ, Langa DCJ, Madala J, Mokgoro J, Moseneke J, Ngcobo J, O'Regan, Sachs J, Skweyiya J, Van Der Westhuizen J and Yacoob J
• Judgment Date: 25 May 2005
• Citation: 2006 (1) SACR 220 (CC)
• Docket Number: CCT 45/04
• Hearing Date: 10 March 2005
• Counsel: F Snyckers for the applicants, at the request of the Court. P Schutte for the first respondent. V Soni SC (with him T Machaba) for the second, third and fourth respondents.
• Court: Constitutional Court

Yacoob J:

[1] The four applicants, Mr Willy Aaron Sibiya (first applicant), Mr Purpose Bongani Khumalo (second applicant), Mr Jacobus Petrus Geldenhuys (third applicant) and Mr David Nkuna (fourth G applicant) were all convicted in the early 1990s of certain offences for which the death penalty was competent at the time. They were sentenced to death in various High Courts [1] before the death sentence was in effect declared to be inconsistent with the interim Constitution (the Constitution of the Republic of H South Africa Act 200 of 1993) by this Court in Makwanyane. [2]

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Subsequent to Makwanyane Parliament enacted legislation to provide a A mechanism for the way in which the death sentence imposed upon a person may be replaced by an appropriate alternative sentence.

[2] The applicants secured a High Court order declaring part of this legislation, ss (1) - (5) of s 1 (the impugned provisions) of the Criminal Law Amendment Act 105 of 1997 (the Act) to be inconsistent with the Constitution. [3] These provisions B apply to any person sentenced to death who has 'exhausted all the recognised legal procedures pertaining to appeal or review'. [4] In essence, the High Court held that the impugned provisions should have complied with certain of the fair trial rights enumerated in s 35 of the Constitution [5] and that they did not. [6] The applicants require confirmation C of the High Court order. [7] The respondents [8] oppose confirmation.

Context

[3] The legislation of which the impugned provisions are a part became law after this Court declared the death penalty unconstitutional. The law that is under attack must therefore be D considered in the context of the legal procedure that governed capital punishment at the time the decision in Makwanyane was made, the impact of that procedure as well as the implications of the decision in Makwanyane.

[4] Before July 1990 Courts were, except in certain defined circumstances, obliged to impose the death penalty for murder and could E impose the death sentence for certain other serious offences, including rape. A lesser sentence for murder could be imposed only if the accused demonstrated the existence of extenuating circumstances. [9] A convicted person sentenced to death could appeal against the sentence only with the F leave of the trial Court or, if the trial Court refused, with leave of the Supreme Court of Appeal (SCA). [10]

[5] On 27 July 1990 the position changed considerably. Section 277 of the Criminal Procedure Act 51 of 1977 (the CPA) was amended by the Criminal Law Amendment Act 107 of 1990 (the 1990 law). This law gave the trial Court a much wider discretion to determine G whether

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capital punishment should be imposed on the accused person concerned. A trial Court had to make a finding in relation to A aggravating and mitigating circumstances, and could impose the death penalty on the person convicted only if it was 'satisfied' that the imposition of that sentence was 'proper'. [11] In effect, the death sentence could have been imposed only in the most extreme circumstances and only if there was no reasonable prospect of properly achieving the objects of punishment by any other sentence. B

[6] The 1990 law also made it easier to appeal against a trial Court decision imposing capital punishment. Every person sentenced to death had the right to appeal against the sentence directly to the SCA. [12] Leave to appeal was no longer required. In addition, the SCA could confirm the death sentence only if C it was satisfied that the sentence was proper. The SCA was also obliged to consider whether the death sentence had been correctly imposed, even in those cases in which the person who had been sentenced to death chose not to contest the decision of the trial Court on appeal. [13] The Act provided for the SCA to consider cases of this kind in the light of further argument from D counsel. [14] It follows that the death sentence could become final under this law only after the SCA had confirmed it after due consideration. The amending provisions were also retrospective in effect. Its provisions were made applicable to all people who had been sentenced to death by a High Court and who had not E yet had their cases considered by the SCA. [15]

[7] At a sitting of the joint houses of Parliament on 2 February 1990, the State President announced a moratorium on the carrying out of death sentences and said that no death penalty had been executed in South Africa since 14 November 1989. [16] The moratorium was extended on F 27 March 1992. [17] The moratorium prevented the carrying out of death sentences only, not their imposition. Accordingly, at the time of the decision in Makwanyane, many people who had been sentenced to death were being detained in prison.

[8] This was the legal and factual situation at the time this Court considered the validity of the statutory provisions that G authorised capital punishment. This Court said in relation to the circumstances in which the death penalty could have been imposed:

'Mitigating and aggravating factors must be identified by the Court, bearing in mind that the onus is on the State to prove beyond reasonable doubt the existence of aggravating factors, and H to negative beyond reasonable doubt the presence of any mitigating factors relied on by the accused. Due regard must be paid to the personal circumstances and subjective factors which might have influenced the accused person's conduct, and these factors must then be weighed up with

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the main objects of punishment, which have been held to be deterrence, prevention, reformation, and retribution. In A this process ''(e)very relevant consideration should receive the most scrupulous care and reasoned attention'', and the death sentence should only be imposed in the most exceptional cases, where there is no reasonable prospect of reformation and the objects of punishment would not be properly achieved by any other sentence.' [18]

(Footnotes omitted.) B

[9] All the statutory provisions that authorised the death penalty, [19] save those concerned with treason while the Republic is in a state of war, [20] were declared as being inconsistent with the interim Constitution by this Court in Makwanyane. Paragraph 1 of the Court order reads: C

'In terms of s 98(5) of the Constitution, and with effect from the date of this order, the provisions of paras (a), (c), (d), (e) and (f) of s 277(1) of the Criminal Procedure Act, and all corresponding provisions of other legislation sanctioning capital punishment which are in force in any part of the national territory in terms of s 229, are declared to be inconsistent with the Constitution and, accordingly, to be invalid.' D

[10] Some aspects of the judgment and order in Makwanyane must be emphasised. The death penalty was not declared invalid with retrospective effect. The order of this Court was to have prospective effect only. It follows that all death sentences imposed before 6 June 1995 [21] remained valid sentences. It therefore became necessary for this Court to ensure that death sentences imposed before the date of its order E were never executed. The Court accordingly ordered that

'the State is and all its organs are forbidden to execute any person already sentenced to death under any of the provisions thus declared to be invalid. . .'. [22]

[11] The Court ordered, however, that all people who had been F sentenced to death were to 'remain in custody under the sentences imposed on them, until such sentences have been set aside in accordance with law and substituted by lawful punishments'. [23] This part of the order of this Court, apart from ensuring that the people sentenced to death remained in custody, also pointed to the way in which capital punishment should be replaced by alternative sentences. This had to be G done lawfully.

[12] Sentences had to be lawfully replaced in respect of two categories of people. The first category consisted of people whose death sentences had not yet been confirmed by the SCA, while the second comprised those cases in which the SCA had confirmed the death sentence H either on appeal or in terms of the special review procedure mandated by the 1990 law. The first category included the two applicants before the Court in

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Makwanyane as well as those people whose cases had been postponed by the SCA pending the finalisation of the A Makwanyane case. The Court said about these cases:

'The proper sentence to be imposed on the accused is a matter for the Appellate Division and not for us to decide. This, and other capital cases which have been postponed by the Appellate Division pending the decision of this Court on the constitutionality of the death sentence, can now be dealt with in accordance with the order made B in this case.'

Included in this category were other cases that had still to be heard by the SCA. This Court said nothing about these cases or about those cases in which the SCA had confirmed the death sentences before the decision in Makwanyane had been given. C

[13] According to the Makwanyane judgment, people who had been sentenced to death had been lawfully sentenced and were lawfully in custody under the sentences imposed upon them. They were to remain in custody until the death sentences were lawfully set aside and lawfully replaced by appropriate sentences. The order of this Court did not envisage a whole new sentencing process in relation to cases C pending before the SCA. It visualised the lawful substitution of these sentences by the SCA in the course of the consideration of all the cases that were still to be considered by that Court, including those that had been adjourned and those cases that had not yet come before the Court. E

[14] It follows that the order in Makwanyane required in effect that a legal...