The Marikana massacre has been called an ‘avoidable’ tragedy. But given the total misunderstanding of Constitutional obligations by senior politicians and police leaders, it seems nothing short of inevitable. Looking at the way police obligations have been understood in the country over the past four years, it’s hardly surprising that we’ve come to this kind of brutality.
Many South Africans are either confused or uninformed about the Constitutional and legal duties placed on the South African Police Service to protect, rather than kill, the citizens of South Africa. Many members of the “law and order” crowd, including a large number of (white) South Africans who usually demonstrate a fierce hatred of the ANC and the government it leads, have emerged as staunch defenders of the actions of the police during the Marikana massacre and, by implication, is demonstrating support for Police Minister Nathi Mthethwa, whose resignation has been called for by opposition parties.
In support of their contention that the killing of 34 miners by members of the SAPS was justified, they argue that the miners were taking part in an illegal strike and an illegal gathering, that the police were scared because some police officers had been killed in the run-up to the massacre and some miners were brandishing traditional weapons, and that one of the miners had shot at the police and that the police were therefore merely defending themselves.
Entirely absent from these kinds of wrongheaded arguments is an understanding of the Constitutional and legal framework within which the police are required to operate in a Constitutional state like our own.
Section 199(5) of the Constitution states that the Police “must act, and must teach and require their members to act, in accordance with the Constitution and the law”. The Constitution protects the right to life of everyone – including every criminal suspect and every miner who took part in the events at Marikana last Thursday. The strikers did not forfeit their right to life because two police officers were killed by unidentified individuals in the week leading up to the massacre. Nor did they forfeit their right to life because they were involved in an unlawful strike and/or protest march or because one of the striking miners allegedly shot at the police.
This principle is underscored by section 13 of the Police Services Act, which states that members of the SAPS must act subject to the Constitution and with due regard to the fundamental rights of every person. The section continues to state that where a police officer is authorised to use force (for example, to defend him- or herself or to help apprehend a dangerous criminal suspect), he or she may use only the minimum force which is reasonable in the circumstances.
The police are not authorised to take the law into their own hands and to punish a group of miners by killing 34 of them because some of the miners might previously have been involved in the killing of a police officer. That would be nothing more than mob justice and would constitute cold-blooded murder. The fact that some of the police officers might have been scared because two of their fellow officers were killed earlier in the week would not, by itself, constitute a legal justification for the killing either. To hold otherwise would be to excuse every scared but trigger-happy police officer who goes on a shooting spree.
Neither would it normally be found to be reasonable to shoot and kill 34 protesters with automatic rifles because one of them had a gun or had shot at the police. It would also normally not be possible to claim that the police used minimum force when it killed 34 protestors with semi-automatic rifles. In the absence of other compelling evidence which demonstrates that the miners posed a grave threat to the lives of police officers, the shooting could not be considered either justifiable or legal. Evidence that such a grave threat existed might yet emerge, but so far no one has provided it, so arguments exonerating the police are not based on factual or legal considerations.
Those who are so quick to exonerate the police either do not value the lives of those who died, are defending the government and the minister of police for politically expedient reasons, or are animated by an irrational fear of everything that the miners represent.
Questions might well be asked about why so many police officers, as well as members of the public, seem to believe that the police have a right to shoot and kill anyone who threatens them or gets involved in illegal activities. Where is this idea coming from that our police do not have to respect the lives of fellow citizens when the citizens have allegedly broken the law?
The answer to this question is not blowing in the wind, but a Google search does yield some direction.
In 2008, then-deputy minister of safety and security, Susan Shabangu (who yesterday made the contradictory claim that she had negotiated with the parties involved in the dispute behind the scenes but that she had never heard of one of the unions involved in it) told an anti-crime rally in Pretoria that police shouldn’t hesitate to kill “criminals”. She did not mean that the police should not hesitate to shoot to kill those who have been convicted of a crime by our courts, but rather that the police should not hesitate to shoot and kill individuals who our Constitution presume to be innocent but whom the police officer might believe had committed a crime.
You must kill the bastards if they threaten you or the community… You must not worry about the regulations. That is my responsibility. Your responsibility is to serve and protect. I want to assure the police station commissioners, policemen and women that they have permission to kill these criminals. I want no warning shots. You have one shot and it must be a kill shot. If you miss, the criminals will go for the kill. They don’t miss. We can’t take this chance.
This is the same Shabangu who yesterday warned South Africans to “exercise restraint when it comes to rushing to judgments”, pending the outcome of the judicial inquiry which will be appointed to investigate the massacre.
In 2009, South Africa’s new top cop, Bheki Cele, pleaded for the law to be changed to allow police to “shoot to kill” so-called criminals (again, suspects who must be presumed innocent until proven guilty) without worrying about “what happens after that”. Speaking to a newspaper, Commissioner Cele said the police needed to match the firepower of criminals and use “deadly force”. Cele complained that criminals were armed with the best high-calibre firearms “to deal with whoever is standing in their way, so… they are ready to shoot”. On the other hand, police responding to an attack have to “arrest their minds, thinking is this right or is it wrong? Police must think about what is in front of them and do the job, or else they get killed.”
He received backing for these starling assertions from none other than Nathi Mthethwa, the country’s police minister. “We are tired of waving nice documents like the Constitution and the human rights charter in criminals’ faces,” Mthethwa said. “We are going to meet these thugs head on, and if it means we kill when we shoot, then so be it.”
It is the same Mthethwa who yesterday claimed that the loss of life at Marikana was tragic and regrettable, but that now was not the time for “cheap politicking”. He added that the incident should teach us “as a nation, as a whole, to work doubly hard to prevent the repeat of such events.” As if the nation as a whole had made or condoned inflammatory statements about the need for the police to “shoot the bastards”. As if the nation as whole had insisted that we should ignore the Constitution. As if the nation as a whole gave the order to shoot at protestors with automatic rifles. As if those who stoked the fires of violence and those who actually killed the 34 protestors had absolutely no part to play in this tragedy.
I might be wrong, but given the bloodthirsty and irresponsible statements made by some politicians and members of the police leadership over the past four years about the need for the police to shoot and kill people who have never been convicted of any crime and must – in terms of our Constitution – be presumed to be innocent, the massacre at Marikana appears not “avoidable and tragic”, not something we as a nation “must work doubly hard” to prevent from happening again, but rather entirely inevitable and predictable.
Source: Constitutionally Speaking
Showing posts with label Right to Life. Show all posts
Showing posts with label Right to Life. Show all posts
Wednesday, August 22, 2012
Monday, July 30, 2012
How to give lawyers a bad name
In debates about the appropriate relationship between the various branches of government and in arguments advanced about the need for the courts to respect the separation of powers doctrine (arguments often advanced in support of the unchecked exercise of power by one of the elected branches of government), one important fact is often overlooked: it is not only the judiciary that has a constitutional and legal obligation to respect the authority of the elected branches of government. The elected branches also have a duty to respect and obey the decisions of the courts in order to show appropriate respect for the separation of powers doctrine.
When members of the legislature or executive ignore the decisions of the Constitutional Court or act as if they are not bound by the provisions of the Constitution (often on spurious grounds conjured up by legal advisors with a tenuous grasp of the Constitution), they are failing to fulfil their constitutional obligations and are showing an unfortunate lack of respect for the separation of powers doctrine, the very doctrine which some of the members of the legislature and the executive purport to revere and to hold sacrosanct. Some of the members of these branches (abetted by legal advisors who are paid to know better) believe that Constitutional Court decisions can be trumped by the provisions of ordinary legislation or policy decisions, on the misguided assumptions that they are elected and are thus not bound by the Constitution and the decisions of the Constitutional Court.
The case of Emmanuel Tsebe and Jerry Pitsoe (Phale), two Botswana citizens who entered South Africa illegally, should therefore never have reached the Constitutional Court. The Botswana government wanted the two gentlemen extradited to stand trial for murder. But Botswana still imposes the death penalty in certain cases where somebody is convicted of murder and in terms of the Constitutional Court judgment in Mohamed and Another v President of the RSA and Others (handed down back in 2001) our Constitution prohibits our government from handing over suspects to a foreign country where those suspects face the death penalty unless our government obtains assurances from the foreign country that the execution would not be carried out.
Yet in Minister of Home Affairs and Others v Tsebe and Others, Minister of Justice and Constitutional Development and Another v Tsebe and Others the Constitutional Court was asked to reverse a decision from a full bench of the High Court, who had merely applied the clear precedent set in the Mohamed case. Initially there was a disagreement between the Minister of Justice (who wanted to obey the Constitutional Court judgment in Mohamed) and the Ministry of Home Affairs (who wanted to extradite the two suspects on the basis that it was obliged to do so in terms of the Extradition Act). But mysteriously, the former Ministry changed its mind decided to acquiesce in the decision of the Department of Home Affairs. If it was not for the intervention of NGO’s in the case, the government would have flouted the Constitution and the authority of the Constitutional Court. As the Constitutional Court explained, in a decision authored by acting Justice Ray Zondo:
The lawyers for the two Departments advanced several rather strange and obviously misguided arguments to justify this flouting of the separation of powers doctrine. The most bizarre of these arguments, advanced by Counsel for the Justice Minister, was that when the Justice Minister performs his statutory extradition duties, he performs an act of State. As Justice Zondo remarks rather circumspectly:
What Justice Zondo does not spell out is that this argument is based on the assumption that the Constitution is not always supreme and that a member of the Executive is not bound by either the provisions of the Constitution or the judgments of the Constitutional Court when a Minister performs an “act of State” — whatever that might mean, given the fact that the Constitution does not contain such a phrase. The Constitution does make a distinction between the President acting as Head of State or as Head of the Executive, but in a long line of cases the Constitutional Court has confirmed that the Head of State powers must also be exercised subject to the provisions of the Constitution and that such an exercise can be reviewed and set aside by our courts.
Why any lawyer who are actually getting paid by public funds would nevertheless advance such a contention is not clear. Maybe the lawyers were clutching at straws or maybe they were just not prepared and thought up these kinds of arguments the night before the hearing over a glass or two of whiskey.
Another rather novel argument advanced by lawyers for the Justice Minister was that the decision of the High Court was based upon an “excessive concern about the rights of Mr Tsebe and Mr Phale and a complete disregard for the rights of the rest of the people of South Africa” who are also entitled to the protection of their rights contained in the Bill of Rights and the obligation which the Government has of protecting the rest of the population against people who may have committed violent crimes. They made this argument on the assumption that no assurance would ever be provided by the authorities in Botswana and that the two suspects would have to be released. The implication of the Justice Minister’s suggestion was that, if the Court below had also paid attention to the rights of people other than Mr Tsebe and Mr Phale, it would have concluded that the Government was entitled to extradite or deport Mr Phale. In support of this contention reference was made to the Constitutional Court judgment in Carmichele v Minister of Safety and Security.
The Constitutional Court dispatched with this rather half cooked argument by making the following telling observations:
Several other “arguments” which also seem to want to ignore the clear precedent set in the Mohamed case was also dispatched with. In a separate minority judgment, Acting Deputy Chief Justice Zac Yacoob, went even further finding that the Constitutional Court should not even have heard the case because the issues were so clear cut that there was clearly no prospect that the state would have been successful. As Justice Yacoob pointed out, several of the arguments were no more than attempts at criticising the Mohamed judgment (without ever attacking the correctness of the original judgment). The lawyers were therefore trying to have the Mohamed judgment modified without ever making that argument explicit.
Lawyers (whether in the full time employment of the state or whether contracted by the state as advocates) have a duty not only to their clients, but also to the courts and the Constitution. They should not advance arguments that are clearly untenable and that they should know have absolutely no chance of being accepted by the court — ever. If the lawyers wanted to challenge the correctness of the Mohamed judgment, they should have done so directly. Their failure to do so, while at the same time advancing arguments that are at odds with the requirement that the legislature and the executive should respect settled precedent (unless they seek directly to challenge the correctness of the precedent) and should not act in ways that infringe on the separation of powers, is at best questionable.
In this case the state did not get its money’s worth from either its in-house lawyers and from the very expensive advocates who advanced quite ridiculous arguments on behalf of the state.
Source: Constitutionally Speaking
When members of the legislature or executive ignore the decisions of the Constitutional Court or act as if they are not bound by the provisions of the Constitution (often on spurious grounds conjured up by legal advisors with a tenuous grasp of the Constitution), they are failing to fulfil their constitutional obligations and are showing an unfortunate lack of respect for the separation of powers doctrine, the very doctrine which some of the members of the legislature and the executive purport to revere and to hold sacrosanct. Some of the members of these branches (abetted by legal advisors who are paid to know better) believe that Constitutional Court decisions can be trumped by the provisions of ordinary legislation or policy decisions, on the misguided assumptions that they are elected and are thus not bound by the Constitution and the decisions of the Constitutional Court.
The case of Emmanuel Tsebe and Jerry Pitsoe (Phale), two Botswana citizens who entered South Africa illegally, should therefore never have reached the Constitutional Court. The Botswana government wanted the two gentlemen extradited to stand trial for murder. But Botswana still imposes the death penalty in certain cases where somebody is convicted of murder and in terms of the Constitutional Court judgment in Mohamed and Another v President of the RSA and Others (handed down back in 2001) our Constitution prohibits our government from handing over suspects to a foreign country where those suspects face the death penalty unless our government obtains assurances from the foreign country that the execution would not be carried out.
Yet in Minister of Home Affairs and Others v Tsebe and Others, Minister of Justice and Constitutional Development and Another v Tsebe and Others the Constitutional Court was asked to reverse a decision from a full bench of the High Court, who had merely applied the clear precedent set in the Mohamed case. Initially there was a disagreement between the Minister of Justice (who wanted to obey the Constitutional Court judgment in Mohamed) and the Ministry of Home Affairs (who wanted to extradite the two suspects on the basis that it was obliged to do so in terms of the Extradition Act). But mysteriously, the former Ministry changed its mind decided to acquiesce in the decision of the Department of Home Affairs. If it was not for the intervention of NGO’s in the case, the government would have flouted the Constitution and the authority of the Constitutional Court. As the Constitutional Court explained, in a decision authored by acting Justice Ray Zondo:
This Court’s decision in Mohamed means that if any official in the employ of the State, without the requisite assurance, hands over anyone from within South Africa, or under the control of South African officials, to another country to stand trial knowing that such person runs the real risk of a violation of his right to life, right to human dignity and right not to be treated or punished in a cruel, inhuman or degrading way in that country, he or she acts in breach of the duty provided for in section 7(2) of the Constitution.
The lawyers for the two Departments advanced several rather strange and obviously misguided arguments to justify this flouting of the separation of powers doctrine. The most bizarre of these arguments, advanced by Counsel for the Justice Minister, was that when the Justice Minister performs his statutory extradition duties, he performs an act of State. As Justice Zondo remarks rather circumspectly:
This submission seems to suggest that in such a case the Justice Minister is not obliged to respect, protect, promote, or fulfil the rights in the Bill of Rights as required by section 7(2) of the Constitution. I am unable to agree with this submission. Section 7(2) is not qualified in any way. Accordingly, the obligations it places upon the State apply to everything that the State does. This Court has already made it clear in Mohamed that there are no exceptions to the right to life, the right to human dignity and the right not to be subjected to treatment or punishment that is cruel, inhuman or degrading. These are the rights that the State must respect, protect, promote and fulfil in a case such as the present one.
What Justice Zondo does not spell out is that this argument is based on the assumption that the Constitution is not always supreme and that a member of the Executive is not bound by either the provisions of the Constitution or the judgments of the Constitutional Court when a Minister performs an “act of State” — whatever that might mean, given the fact that the Constitution does not contain such a phrase. The Constitution does make a distinction between the President acting as Head of State or as Head of the Executive, but in a long line of cases the Constitutional Court has confirmed that the Head of State powers must also be exercised subject to the provisions of the Constitution and that such an exercise can be reviewed and set aside by our courts.
Why any lawyer who are actually getting paid by public funds would nevertheless advance such a contention is not clear. Maybe the lawyers were clutching at straws or maybe they were just not prepared and thought up these kinds of arguments the night before the hearing over a glass or two of whiskey.
Another rather novel argument advanced by lawyers for the Justice Minister was that the decision of the High Court was based upon an “excessive concern about the rights of Mr Tsebe and Mr Phale and a complete disregard for the rights of the rest of the people of South Africa” who are also entitled to the protection of their rights contained in the Bill of Rights and the obligation which the Government has of protecting the rest of the population against people who may have committed violent crimes. They made this argument on the assumption that no assurance would ever be provided by the authorities in Botswana and that the two suspects would have to be released. The implication of the Justice Minister’s suggestion was that, if the Court below had also paid attention to the rights of people other than Mr Tsebe and Mr Phale, it would have concluded that the Government was entitled to extradite or deport Mr Phale. In support of this contention reference was made to the Constitutional Court judgment in Carmichele v Minister of Safety and Security.
The Constitutional Court dispatched with this rather half cooked argument by making the following telling observations:
Part of the answer to this is that neither Mr Tsebe nor Mr Phale had been convicted of murder. In terms of our law anyone who is charged with a crime or who is suspected of the commission of a crime is presumed to be innocent until proven guilty. That principle applies to persons in the position of Mr Phale as well. In any event there are many citizens of our own country who are not in jail or detention and who are out in society even though they face serious charges like murder. We do not say that they must never get bail merely because they are charged with serious crimes. After all, the obligation to protect the population, which the Government has, requires nothing more than that the Government must put in place reasonable measures to discharge that obligation. The decision of this Court in Carmichele is not necessarily inconsistent with the non-extradition or non-deportation of a person in Mr Phale’s position. Finally, as Carmichele was relied upon without any elaboration, no further consideration thereof is warranted.
Several other “arguments” which also seem to want to ignore the clear precedent set in the Mohamed case was also dispatched with. In a separate minority judgment, Acting Deputy Chief Justice Zac Yacoob, went even further finding that the Constitutional Court should not even have heard the case because the issues were so clear cut that there was clearly no prospect that the state would have been successful. As Justice Yacoob pointed out, several of the arguments were no more than attempts at criticising the Mohamed judgment (without ever attacking the correctness of the original judgment). The lawyers were therefore trying to have the Mohamed judgment modified without ever making that argument explicit.
Lawyers (whether in the full time employment of the state or whether contracted by the state as advocates) have a duty not only to their clients, but also to the courts and the Constitution. They should not advance arguments that are clearly untenable and that they should know have absolutely no chance of being accepted by the court — ever. If the lawyers wanted to challenge the correctness of the Mohamed judgment, they should have done so directly. Their failure to do so, while at the same time advancing arguments that are at odds with the requirement that the legislature and the executive should respect settled precedent (unless they seek directly to challenge the correctness of the precedent) and should not act in ways that infringe on the separation of powers, is at best questionable.
In this case the state did not get its money’s worth from either its in-house lawyers and from the very expensive advocates who advanced quite ridiculous arguments on behalf of the state.
Source: Constitutionally Speaking
Monday, February 25, 2008
Don't sacrifice lives for profit, says Motsepe
No life could be "sacrificed" in the name of profits, mining magnate and businessman Patrice Motsepe told protesting workers at a ferromanganese smelter near Durban on Monday. Speaking to workers, who on Monday staged a protest at the Assmang smelter following Sunday's blast that claimed the lives of five people, Motsepe said: "There is no life that can be sacrificed in the name of profits or making money. I will not tolerate it."
Motsepe, who is the largest single shareholder in African Rainbow Minerals, which is a 50% shareholder in Assmang, said that the circumstances surrounding Sunday's accident appeared to be similar to an accident that happened at the smelter last year. Motsepe spoke to workers after meeting with the Assmang management as well as senior workers' representatives. The explosion and subsequent fire ripped through the number six furnace of the smelter shortly before 5am in Cato Ridge, about 60km from Durban. One person died at the scene while a further four died during the course of Sunday and Monday morning. After addressing the workers, Motsepe told journalist that he could not comment on the cause of the accident until the completion of investigations. "We are not representing shareholders' interests if there is no zero tolerance towards [poor] safety," he said. Following the blast, the smelter's six furnaces were shut down. Motsepe could not immediately say how much the shutdown was costing the company. However, even though the smelter had been shut down, the estimated 700 workers were still expected to report for work to ensure that they were paid.
KwaZulu-Natal provincial minister of social welfare Meshak Radebe and Durban mayor Obed Mlaba also briefly spoke to the protesting workers. Earlier in the day about 100 workers marched from the smelter to the Cato Ridge Country club with a coffin, which they then placed in the middle of a hall where a Labour Department inquiry into a manganese poisoning case at Assmang was being held. The inquiry had to be postponed and was resumed later in the afternoon when the workers returned to the smelter. The inquiry, headed by Vuli Sibisi, is investigating the alleged 40 cases of manganism caused by workers breathing in fumes with airborne manganese particles.
Manganism is acquired by over-exposure to airborne manganese and is a disease that affects the sufferer's central nervous system, leaving them with symptoms very similar to Parkinson's disease and multiple sclerosis. Assmang executive director, Brian Brookeman, was about to give testimony when the workers marched into the hall with their coffin. On Monday, the Labour Department announced that the company would be subject to a second inquiry that would investigate the cause of Sunday's explosion. Labour department spokesperson Zolisa Sigabi said "a full-scale government investigation is under way following yesterday's [Sunday] massive explosion. The inquiry aims at establishing the cause of the tragedy, including any possible negligence or flouting of occupational health and safety measures," she said. On Sunday she said: "Labour inspectors who immediately arrived at the scene have in a preliminary report indicated that it is suspected that a water leakage into furnace number six caused the explosion to occur."
Earlier, National Union of Metalworkers (Numsa) spokesperson Mziwakhe Hlangani said that the company's engineers had ordered that the furnace be shut down before the explosion "after it was detected to have a water leakage". "We do not know how and why it was operated by the night-shift staff operators, because it was declared unsafe to put it [the furnace] in operation and we believe drastic steps after thorough investigations should be taken," Numsa local organiser Siphiwe Ntsele said. He said it was the second blast in nearly three months. He claimed that a worker had died on December 14 2007, in a similar blast.
Labour Minister Membathisi Mdladlana on Monday condemned the blast and vowed to "pull all stops in getting someone to account for the deaths and injuries" in Sunday's incident.
Source: IoL
Motsepe, who is the largest single shareholder in African Rainbow Minerals, which is a 50% shareholder in Assmang, said that the circumstances surrounding Sunday's accident appeared to be similar to an accident that happened at the smelter last year. Motsepe spoke to workers after meeting with the Assmang management as well as senior workers' representatives. The explosion and subsequent fire ripped through the number six furnace of the smelter shortly before 5am in Cato Ridge, about 60km from Durban. One person died at the scene while a further four died during the course of Sunday and Monday morning. After addressing the workers, Motsepe told journalist that he could not comment on the cause of the accident until the completion of investigations. "We are not representing shareholders' interests if there is no zero tolerance towards [poor] safety," he said. Following the blast, the smelter's six furnaces were shut down. Motsepe could not immediately say how much the shutdown was costing the company. However, even though the smelter had been shut down, the estimated 700 workers were still expected to report for work to ensure that they were paid.
KwaZulu-Natal provincial minister of social welfare Meshak Radebe and Durban mayor Obed Mlaba also briefly spoke to the protesting workers. Earlier in the day about 100 workers marched from the smelter to the Cato Ridge Country club with a coffin, which they then placed in the middle of a hall where a Labour Department inquiry into a manganese poisoning case at Assmang was being held. The inquiry had to be postponed and was resumed later in the afternoon when the workers returned to the smelter. The inquiry, headed by Vuli Sibisi, is investigating the alleged 40 cases of manganism caused by workers breathing in fumes with airborne manganese particles.
Manganism is acquired by over-exposure to airborne manganese and is a disease that affects the sufferer's central nervous system, leaving them with symptoms very similar to Parkinson's disease and multiple sclerosis. Assmang executive director, Brian Brookeman, was about to give testimony when the workers marched into the hall with their coffin. On Monday, the Labour Department announced that the company would be subject to a second inquiry that would investigate the cause of Sunday's explosion. Labour department spokesperson Zolisa Sigabi said "a full-scale government investigation is under way following yesterday's [Sunday] massive explosion. The inquiry aims at establishing the cause of the tragedy, including any possible negligence or flouting of occupational health and safety measures," she said. On Sunday she said: "Labour inspectors who immediately arrived at the scene have in a preliminary report indicated that it is suspected that a water leakage into furnace number six caused the explosion to occur."
Earlier, National Union of Metalworkers (Numsa) spokesperson Mziwakhe Hlangani said that the company's engineers had ordered that the furnace be shut down before the explosion "after it was detected to have a water leakage". "We do not know how and why it was operated by the night-shift staff operators, because it was declared unsafe to put it [the furnace] in operation and we believe drastic steps after thorough investigations should be taken," Numsa local organiser Siphiwe Ntsele said. He said it was the second blast in nearly three months. He claimed that a worker had died on December 14 2007, in a similar blast.
Labour Minister Membathisi Mdladlana on Monday condemned the blast and vowed to "pull all stops in getting someone to account for the deaths and injuries" in Sunday's incident.
Source: IoL
Tuesday, June 6, 1995
Right to Life: S v Makwanyane and Another
CHASKALSON P: The two accused in this matter were convicted in the Witwatersrand Local Division of the Supreme Court on four counts of murder, one count of attempted murder and one count of robbery with aggravating circumstances. They were sentenced to death on each of the counts of murder and to long terms of imprisonment on the other counts. They appealed to the Appellate Division of the Supreme Court against the convictions and sentences. The Appellate Division dismissed the appeals against the convictions and came to the conclusion that the circumstances of the murders were such that the accused should receive the heaviest sentence permissible according to law.
Section 277(1)(a) of the Criminal Procedure Act No. 51 of 1977 prescribes that the death penalty is a competent sentence for murder. Counsel for the accused was invited by the Appellate Division to consider whether this provision was consistent with the Republic of South Africa Constitution, 1993, which had come into force subsequent to the conviction and sentence by the trial court. He argued that it was not, contending that it was in conflict with the provisions of sections 9 and 11(2) of the Constitution.
The Appellate Division dismissed the appeals against the sentences on the counts of attempted murder and robbery, but postponed the further hearing of the appeals against the death sentence until the constitutional issues are decided by this Court. See: S v Makwanyane en ‘n Ander [1994] ZASCA 76; 1994 (3) SA 868 (A). Two issues were raised: the constitutionality of section 277(1)(a) of the Criminal Procedure Act, and the implications of section 241(8) of the Constitution. Although there was no formal reference of these issues to this Court in terms of section 102(6) of the Constitution, that was implicit in the judgment of the Appellate Division, and was treated as such by the parties.
The trial was concluded before the 1993 Constitution came into force, and so the question of the constitutionality of the death sentence did not arise at the trial. Because evidence which might possibly be relevant to that issue would not have been led, we asked counsel appearing before this Court to consider whether evidence, other than undisputed information placed before us in argument, would be relevant to the determination of the question referred to us by the Appellate Division. Apart from the issue of public opinion, with which I will deal later in this judgment, counsel were not able to point to specific material that had not already been placed before us which might be relevant to the decision on the constitutional issues raised in this case. I am satisfied that no good purpose would be served by referring the case back to the trial court for the hearing of further evidence and that we should deal with the matter on the basis of the information and arguments that have been presented to us.
It would no doubt have been better if the framers of the Constitution had stated specifically, either that the death sentence is not a competent penalty, or that it is permissible in circumstances sanctioned by law. This, however, was not done and it has been left to this Court to decide whether the penalty is consistent with the provisions of the Constitution. That is the extent and limit of the Court's power in this case.
Source: SAFLII
Section 277(1)(a) of the Criminal Procedure Act No. 51 of 1977 prescribes that the death penalty is a competent sentence for murder. Counsel for the accused was invited by the Appellate Division to consider whether this provision was consistent with the Republic of South Africa Constitution, 1993, which had come into force subsequent to the conviction and sentence by the trial court. He argued that it was not, contending that it was in conflict with the provisions of sections 9 and 11(2) of the Constitution.
The Appellate Division dismissed the appeals against the sentences on the counts of attempted murder and robbery, but postponed the further hearing of the appeals against the death sentence until the constitutional issues are decided by this Court. See: S v Makwanyane en ‘n Ander [1994] ZASCA 76; 1994 (3) SA 868 (A). Two issues were raised: the constitutionality of section 277(1)(a) of the Criminal Procedure Act, and the implications of section 241(8) of the Constitution. Although there was no formal reference of these issues to this Court in terms of section 102(6) of the Constitution, that was implicit in the judgment of the Appellate Division, and was treated as such by the parties.
The trial was concluded before the 1993 Constitution came into force, and so the question of the constitutionality of the death sentence did not arise at the trial. Because evidence which might possibly be relevant to that issue would not have been led, we asked counsel appearing before this Court to consider whether evidence, other than undisputed information placed before us in argument, would be relevant to the determination of the question referred to us by the Appellate Division. Apart from the issue of public opinion, with which I will deal later in this judgment, counsel were not able to point to specific material that had not already been placed before us which might be relevant to the decision on the constitutional issues raised in this case. I am satisfied that no good purpose would be served by referring the case back to the trial court for the hearing of further evidence and that we should deal with the matter on the basis of the information and arguments that have been presented to us.
It would no doubt have been better if the framers of the Constitution had stated specifically, either that the death sentence is not a competent penalty, or that it is permissible in circumstances sanctioned by law. This, however, was not done and it has been left to this Court to decide whether the penalty is consistent with the provisions of the Constitution. That is the extent and limit of the Court's power in this case.
Source: SAFLII
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