Module: Introduction to South African Law

Module Code: HISL 130-1

Date: 12 June 2023

SUMMATIVE ASSESMENT 2
Table of Contents
INTRODUCTION ........................................................................................................ 1
THE DEATH PENALTY IN THE SOUTH AFRICAN LEGAL SYSTEM....................... 2
CONCLUSION ........................................................................................................... 4
BIBLIOGRAPHY ........................................................................................................ 5
INTRODUCTION
The following assignment discusses the reinstatement of death penalty in South
Africa. The discussion includes opinions both for and against the reinstatement. The
author mentions her own substantiated opinion on the matter. All research done is
this essay is based on the compulsory prescribed journal articles.

1
THE DEATH PENALTY IN THE SOUTH AFRICAN LEGAL SYSTEM
It has been over 29 years since the abolishment of the death penalty by the
Constitutional Court (South African Institute of Race Relations, 2016). This occurred
right after the democratic election in 1994 (Jones , 2022). The debate is being
resurfaced by various people because of the increase in the crime statistics within
the country (Parekh & De la Rey, n.d.).

The argument for the reinstatement of the death penalty is in popular vote by public
opinion (Loschner, 2019). Several arguments are going around as to why it should
be reinstated. The most popular of them being that the death penalty acts as a
deterrent in the prevention of others committing the same violent crimes (Parekh &
De la Rey, n.d.). Religion is also a strong supporter for the death penalty as stated in
Leviticus 24:7 “He who kills a man shall be put to death” (Parekh & De la Rey, n.d.).
Christianity, Islam, and Jewish faith is supportive of this narrative (Parekh & De la
Rey, n.d.). Another argument is that the maintenance of keeping a prisoner alive is
more expensive than the death penalty, this is viewed from the economically
challenging times the country is facing (Parekh & De la Rey, n.d.). A British judge,
Denning, stated that: “In order to maintain respect for the law is essential that the
punishment inflicted for grave crimes should adequately reflect the revulsion felt by
the great majority of citizens for them. The truth is that some crimes are so
outrageous that society insists on adequate punishment because the wrongdoer
deserves it irrespective of whether it is a deterrent or not” (South African Institute of
Race Relations, 2016).

The argument against the reinstatement of the death penalty is not popular but
correlates with the rights and values of the constitution (South African Institute of
Race Relations, 2016). The death sentence is inhumane, undignified and an insult to
human dignity, it is incompatible with the right to life which is embedded in the
statutes (South African Institute of Race Relations, 2016). The court acknowledges
that constitutional rights should not be affected by public opinions and considers the
fact that judges personal opinions and experiences may influence their views (South
African Institute of Race Relations, 2016). No scientific evidence has proven that the
death penalty is an actual deterrent to crime (Jones , 2022). Political organisations
argue that it is discriminating against majority blacks within the country (Parekh & De
la Rey, n.d.); the court however does not refer to race. Religion can also be used in

2
the argument against as the scriptures reveal that “Though shall not kill” in the fifth
commandment (Parekh & De la Rey, n.d.). Evidence from the United States proves
that capital punishment is not cheaper than life imprisonment (Parekh & De la Rey,
n.d.). There are views that the court is an oppressor of the disadvantage and judicial
error in sentencing occurs (Parekh & De la Rey, n.d.). The death penalty causes
emotional traumas to the accused’s family. Studies have been conducted to
understand if the accused have been exposed to violence in other areas of their life,
for example the media (Jones , 2022). The influence of drugs and alcohol are major
contributing factors to the murder statistics (Jones , 2022). Rehabilitated murder
prisons have acknowledged the value of rehabilitation programs (Jones , 2022).
Morally it cannot be justified to incorporate the worst form of retribution, this will only
make conflict management more difficult than it already is (South African Institute of
Race Relations, 2016). Justice Chaskalson said in the Makhanyane case that:
“Retribution could not be accorded the same weight under our Constitution as the
rights to life and dignity. More lives may be saved through the inculcation of a rights
culture than through the execution of murderers” (South African Institute of Race
Relations, 2016).

The author of this essay believes that South Africa should not reinstate the death
penalty The high increase in crime statistics is an adverse effect from the apartheid
regime (Loschner, 2019). The entire country is still being rehabilitated and
restructured. There are too many factors involved. People should be educated to
understand that there is a difference between individuals’ personal opinions and the
actual legal and holistic understanding of the matter. In a newly growing democratic
country, it is more important to focus on the rights of the people instead of the
punishments of the people. Focus should be given to the futuristic ideal of living in a
country where equal rights and opportunities exist.

(628 words)

3
CONCLUSION
In conclusion, the death penalty is a sensitive topic to discuss; The assignment has
highlighted a sensible debate for and against the reinstatement of the death penalty.
However, the reasoning behind these does not take all factors into consideration. A
holistic approach should be given to the South African criminal justice system and
not a symptom-based approach. Consideration should be given to the root cause of
the problems in society. It all stems back to the adverse effects from the apartheid
regime. It is important for people to be correctly educated on the matter and the legal
system within the country. People should also be taught to focus on what is best for
the greater good of the nation.

4
BIBLIOGRAPHY
Jones , C., 2022. Death Penalty: A Human Rights Issue for South Africa.
IntechOpen.

Loschner, F., 2019. Abolition of the Death Penalty in South Africa: A Historical
Perspective.

Parekh, A. & De la Rey, C., n.d. Public attitudes towards the death penalty in South
Africa. Acta Criminologica, 9(1).

South African Institute of Race Relations, 2016. Capital Punishment. [Online]

Available at:
https://www.google.com/url?sa=i&rct=j&q=&esrc=s&source=web&cd=&cad=rja&uact
=8&ved=0CAQQw7AJahcKEwiojN6p7Ob6AhUAAAAAHQAAAAAQAg&url=https%3
A%2F%2Firr.org.za%2Freports%2Foccasional-reports%2Ffiles%2Fdraft-2-irr-
capital-punishment-in-sa-211116.pdf&psig=AOvVaw
[Accessed 21 May 2023].