Kafantayeni v. Attorney General

On 11 August 2002, K was convicted of killing his two year old stepson by tying him up and burying him alive. K admitted that he had committed the act but claimed to have been acting in a state of temporary insanity induced by smoking Indian hemp. He was found guilty of murder, which carries a mandatory death penalty. K initiated proceedings seeking to have the High Court declare on a point of law that the mandatory death penalty is unconstitutional. In August 2006, five others sentenced to the death penalty joined K’s suit. The plaintiffs argued that the mandatory death penalty was unconstitutional for four reasons: (i) it violates s 16 of the Constitution on the right to life and is arbitrary as it is imposed without regard to the circumstances of the crime; (ii) it violates s 19(3) of the Constitution, which prohibits torture or any kind of cruel, inhuman or degrading punishment; (iii) it violates s 42(2)(f) of the Constitution on the right to a fair trial as it denies judicial discretion in sentencing; and (iv) it violates the Constitutional principle of separation of powers of the State.

[Adapted from INTERIGHTS summary, with permission]

In declaring that the mandatory requirement of the death penalty for murder was unconstitutional, it was held that:

(1) The death penalty is sanctioned by s 16 of the Constitution. However, the proviso in this section does not save the mandatory requirement of the death sentence.

(2) Common law jurisprudence on the offence of murder and the death punishment for the offence has evolved over a long period through decided cases (Reyes v The Queen [2002] 2AC, 235 considered).

(3) The mandatory requirement of the death sentence for the offence of murder violates the rights of every person under s 19 of the Constitution to protection against being subjected to inhuman and degrading treatment or punishment. The offence of murder can cover a wide range of offences with a wide variety of degrees of criminal culpability and therefore requires there to be judicial discretion in sentencing to take into account mitigating factors (Reyes v The Queen (above), Spence v The Queen and Hughes v The Queen (unreported) 2 April 2001 (Criminal Appeals Nos. 20 of 1998 and 14 of 1997) considered).

(4) Proportionality of a sentence is also a factor in deciding whether a sentence is inhuman (State v Makwanyane[1995] ZACC 3 considered) and is an additional reason in holding the mandatory requirement of the death penalty for murder to be unconstitutional on the ground of being inhuman treatment or punishment.

(5) The mandatory requirement also breaches the right of an accused person under s 42(2)(f) of the Constitution to a fair trial. The principle of a fair trial requires fairness at all stages of the trial including sentencing. The mandatory death sentence denies the convicted person the right to have his or her sentence reviewed by a higher court than the court which imposed the sentence, breaching Article 14(5) of the International Covenant on Civil and Political Rights, which the State is required to have regard to under s 11(2) of the Constitution.

(6) The mandatory requirement also breaches the right to access to justice under s 41(2) of the Constitution. Issues of sentencing are legal issues for judicial determination.

(7) Accordingly pursuant to s 5 of the Constitution, s 210 of the Penal Code is invalid to the extent of the mandatory requirement of the death sentence for the offence of murder.

[Adapted from INTERIGHTS summary, with permission]

“We  affirm  that  issues  of  sentencing  are  legal  issues  for  judicial determination  and  are  therefore  within  the  purview  of  section  41  (2)  of  the Constitution; and the mandatory death sentence under section 210 of the Penal Code,  by  denying  a  person  convicted  of  murder  the  right  of  access  on  the sentence  to  the  final  court  of  appeal,  is  in  violation  of  section  41(2)  of  the Constitution. In regard to death penalty, which is the ultimate punishment any person can suffer for committing a crime, irrevocable as it is once  carried out, we would reject any notion that any restriction or limitation on the guarantee under section 41(2) of the Constitution of the right of access to a court of final settlement  of  legal  issues,  denying  a  person  to  be  heard  in  mitigation  of sentence by such court, can be justified under section 44(2) of the Constitution as being reasonable or necessary in a democratic society or to be in accord with international human rights standards.” (pp. 12-13)