Capital punishment in South Africa was abolished on 6 June 1995 by the ruling of the
Constitutional Court
A constitutional court is a high court that deals primarily with constitutional law. Its main authority is to rule on whether laws that are challenged are in fact unconstitutional, i.e. whether they conflict with constitutionally established ...
in the case of ''
S v Makwanyane
''S v Makwanyane and Another'' (CCT 3/94) was a landmark 1995 judgement of the Constitutional Court of South Africa. It established that capital punishment was inconsistent with the commitment to human rights expressed in the Interim Constitut ...
'', following a five-year and four-month moratorium since February 1990.
History
The standard method for carrying out executions was
hanging
Hanging is the suspension of a person by a noose or ligature around the neck.Oxford English Dictionary, 2nd ed. Hanging as method of execution is unknown, as method of suicide from 1325. The ''Oxford English Dictionary'' states that hanging ...
, sometimes of several convicts at the same time. Mandatory death penalty for murder was abolished in 1935, comparable to the
similar act passed in the United Kingdom in 1957. Before this reform, vast numbers of delinquents were sentenced to death without having their sentences carried out, with only 24% of capital verdicts being carried out in the period 1925 to 1935 (including 7% of verdicts against women).
The reform was supported by Prime Minister
Jan Smuts
Field Marshal Jan Christian Smuts, (24 May 1870 11 September 1950) was a South African statesman, military leader and philosopher. In addition to holding various military and cabinet posts, he served as prime minister of the Union of South Af ...
, who decried the draconian rates of nominal sentences, favouring greater discretion for judges which were ultimately brought into the penal code with a rule of extenuating circumstances, which largely were maintained into the
Criminal Procedure Act, 1977
The Criminal Procedure Act, 1977 (Act No. 51 of 1977) is an act of the Parliament of South Africa that governs criminal procedure in South Africa's legal system. It details the procedure for the whole system of criminal law, including search a ...
, which is largely still in force. At the same time, criminal justice saw an increased racialisation in disfavour of the non-white majority, who represented the vast majority of accused and convicted in capital cases. In part this was because of the jury system,
completely dominated by White South African
White South Africans generally refers to South Africans of European descent. In linguistic, cultural, and historical terms, they are generally divided into the Afrikaans-speaking descendants of the Dutch East India Company's original settler ...
s because an ongoing
effort to suppress the franchise for non-white citizens. Non-white jurors (in effect only occurring in the
Cape Province
The Province of the Cape of Good Hope ( af, Provinsie Kaap die Goeie Hoop), commonly referred to as the Cape Province ( af, Kaapprovinsie) and colloquially as The Cape ( af, Die Kaap), was a province in the Union of South Africa and subsequen ...
), although retaining the right to vote until 1960, were removed by statute in 1954. In the case of women defendants, an all-women jury could be selected.
Reform
Hanging was maintained as the preferred method, as in most post-independence cases of criminal law, following South Africa's
independence as a republic in 1961. At the same time, South Africa saw mounting international criticism against purposely political executions of anti-apartheid activists convicted of violent crimes; mainly blacks, but occasionally whites, the case of
Frederick John Harris
Frederick John Harris (4 July 1937 – 1 April 1965) (known as John Harris) was a South African schoolteacher and anti-apartheid campaigner who turned to terrorism and was executed after a bomb attack on a railway station. He was Chairman of SANR ...
in 1965 being exemplary. Most verdicts were for homicide, the vastly most common reason for being on death row, others under anti-terrorism legislation.
Rape
Rape is a type of sexual assault usually involving sexual intercourse or other forms of sexual penetration carried out against a person without their consent. The act may be carried out by physical force, coercion, abuse of authority, or ...
, under aggravated circumstances, was also a capital crime. Judge
Quartus de Wet
Quartus de Wet (10 March 1899 – 18 December 1980) was a South African judge who served as Judge President of the Transvaal Provincial Division of the Supreme Court of South Africa.
Early life and education
Born in 1899 in Pretoria, he was ...
- of the
Rivonia Trial
The Rivonia Trial took place in South Africa between 9 October 1963 and 12 June 1964, and led to the imprisonment of Nelson Mandela and the others among the accused who were convicted of sabotage and sentenced to life at the Palace of Justice ...
- explicitly iterated that the prosecution's selection of indicting the accused,
Nelson Mandela et al., for sabotage and not
high treason
Treason is the crime of attacking a state authority to which one owes allegiance. This typically includes acts such as participating in a war against one's native country, attempting to overthrow its government, spying on its military, its diplo ...
, supported his decision to issue a sentence of
life imprisonment for those convicted, rather than an expected sentence of hanging. The jury system, having been set aside for serious cases by special statutes (e.g. the Rivonia Trial). Already in 1947, 75% of criminal trials had been by judge (usually assisted by two assessors), not jury, largely as result of the selection by the accused. In capital trials, the three-judge panel was mandatory if selected. Certain discretion was also granted to the
Minister of Justice
A justice ministry, ministry of justice, or department of justice is a ministry or other government agency in charge of the administration of justice. The ministry or department is often headed by a minister of justice (minister for justice in a ...
to decide on trial by judge regarding interracial crimes, further eroding the likelihood of trial by jury. The layman participation was finally scrapped by the Abolition of Juries Act of 1969, with half a percent (0,48 %) of trials in 1968 being decided by juries.
Liberal writer and opposition politician
Alan Paton later stated that the abolition of juries, although part of criminal reforms to bring the procedure under the control of the government, probably increased legal security particularly for black defendants, due to the prejudice of white juries.
The 1980s, a period of
incremental constitutional change and lessening of some apartheid provisions, nevertheless saw a decline in even fundamental standards of
rule of law and rapid increase in the number of executions; 164 in 1987 alone (an ''official'' tally higher than that of any other country, including the
People's Republic of China
China, officially the People's Republic of China (PRC), is a country in East Asia. It is the world's most populous country, with a population exceeding 1.4 billion, slightly ahead of India. China spans the equivalent of five time zones and ...
and
Iran
Iran, officially the Islamic Republic of Iran, and also called Persia, is a country located in Western Asia. It is bordered by Iraq and Turkey to the west, by Azerbaijan and Armenia to the northwest, by the Caspian Sea and Turkmeni ...
). Since 1959, the South African government officially performed 2,949 hangings (14 of women), including 1,123 in the 1980s.
Of over one hundred South Africans executed in 1988, only three were white, all sentenced for the murder of whites.
Despite the obviously skewed verdicts, most capital cases ended not with execution; out of 83 black South Africans convicted of killing whites between June 1982 and June 1983, a minority of 38 were hanged, as well as one white convicted of killing a white (out of 52). These numbers show, as a whole, the vast use of the "extenuating circumstances" rule in a country deeply steeped in racial strife, with widespread incidents of violence and presumed threat making such a defence justifiable.
All executions were carried out in
Pretoria Central Prison
Pretoria Central Prison, renamed Kgosi Mampuru II Management Area by former President Jacob Zuma on 13 April 2013 and sometimes referred to as Kgosi Mampuru II Correctional Services is a large prison in central Pretoria, within the City of Tshwane ...
; condemned prisoners were held in a section of the prison called "The Pot".
Moratorium and abolition
The last execution carried out by the South African government was the hanging of
Solomon Ngobeni
Solomon Ngobeni (died 14 November 1989) was the last person to be executed by the government of South Africa.
In October 1987, Ngobeni was found guilty and sentenced to death for fatally shooting Mackson Kubayi, a driver of a Peugeot bakkie (a S ...
in November 1989. The last woman executed was
Sandra Smith on June 2 the same year along with her boyfriend Yassiem Harris, in all cases following an aggravated murder conviction.
In February 1990, a moratorium was declared by President
De Klerk. Two further executions were, however, carried out in the nominally independent "
homelands" of
Boputhatswana
Bophuthatswana (, meaning "gathering of the Tswana people"), officially the Republic of Bophuthatswana ( tn, Riphaboliki ya Bophuthatswana; af, Republiek van Bophuthatswana), was a Bantustan (also known as "Homeland"; an area set aside for mem ...
and
Venda
Venda () was a Bantustan in northern South Africa, which is fairly close to the South African border with Zimbabwe to the north, while to the south and east, it shared a long border with another black homeland, Gazankulu. It is now part of the ...
in 1990 and 1991 respectively, almost universally considered parts of South Africa at the time, but with little to no intervention from South African authorities.
Although the death penalty was abolished in 1995, opinion polls have repeatedly suggested public support for its reinstatement, with significant differences between white and black South Africans. A 2014 poll in South Africa found that 76 percent of the
Millennial
Millennials, also known as Generation Y or Gen Y, are the Western demographic cohort following Generation X and preceding Generation Z. Researchers and popular media use the early 1980s as starting birth years and the mid-1990s to early 2000s ...
generation South Africans support re-introduction of the death penalty.
Current situation
There are a number of parties in South Africa that currently support the return of the death penalty. They are the
National Party South Africa
The National Party South Africa (NP) is a registered South African political party, who competed for the Western Cape province in the 2009 provincial election and municipal council seats in the 2011 local government elections.
History
On 5 ...
, the
African Christian Democratic Party,
African Covenant
African Covenant (ACO) is a conservative religious South African political party formed in 2018 by Convy Baloyi.
The party is proposing the return of the death penalty for murder and abortion, and wishes to overturn the legalisation of same-s ...
, the
African Transformation Movement
The African Transformation Movement, popularly known as ATM, is a political party in South Africa. It is led by Vuyolwethu Zungula, leader and party president.
It was formed with the backing of the South African Council of Messianic Churches in ...
(ATM) and the
National Conservative Party of South Africa.
2018 saw growing calls for the return of the death penalty. On 20 July the
Inkatha Freedom Party
The Inkatha Freedom Party ( zu, IQembu leNkatha yeNkululeko, IFP) is a right-wing political party in South Africa. The party has been led by Velenkosini Hlabisa since the party's 2019 National General Conference. Mangosuthu Buthelezi founded ...
(IFP) stated that the time had come to discuss the possibility of reinstating the
death penalty in South Africa, and on 8 August the
National Freedom Party
The National Freedom Party (NFP) is a South African political party. It was launched on 25 January 2011 by Zanele kaMagwaza-Msibi, former chairperson of the Inkatha Freedom Party (IFP), along with other former IFP members.
Election results
...
called for the restoration of the death penalty in South Africa after the death of Khensani Maseko, in a call similar to that of the IFP weeks before.
In April 2020, former EFF Gauteng chairperson
Mandisa Mashego announced that she supports the reinstatement of the death penalty in South Africa.
See also
*
:People executed by South Africa
*
Life imprisonment in South Africa
Life imprisonment in South Africa has an indeterminate length and may last for the remainder of the offender's life. It is a mandatory punishment for premeditated murder, gang rape, serial rape including rape where the rapist knew they were HIV po ...
*
Necklacing in South Africa
Further reading
*
References
{{Africa topic, Capital punishment in
1995 disestablishments in South Africa
Penal system in South Africa
Death in South Africa
Human rights abuses in South Africa