The viability of the death penalty as an alternative to life imprisonment in South Africa

Abstract

Twenty-seven years ago, the death penalty (as it was prescribed in S277 (1)(a) of the Criminal Procedure Act) was declared unconstitutional in S v Makwanyane and Mchunu. Given the socio-political landscape of the time, this decision may have been correct. However, this research questions whether this decision is correct for South Africa presently. In 2019 and 2020 South Africa experienced exponentially high rates of serious and violent crimes which resulted in the public demanding the reintroduction of the death penalty. With the above in mind, this dissertation examines the viability of capital punishment in South Africa if it were to be applied presently. It examines whether it is a punishment that is arbitrary in nature and whether it can be classified as a cruel and inhumane punishment in the face of South African prison conditions. It makes a comparative analysis of how the death penalty is viewed between developed and developing abolitionist and retentionist countries. It also takes cognisance of public opinion towards the death penalty and sentencing as whole in the criminal justice process. Lastly, it examines whether the levels of violence currently in South Africa can be comparable to that experienced during a time of conflict in which Chaskalson J said that the death penalty would be admissible.