South Africa's history is marked by the extensive use of the death penalty, particularly during the apartheid era. This article delves into the history of capital punishment in South Africa, from its introduction by colonial powers to its eventual abolition in 1995. It explores the racial biases, political motivations, and the legal battles that shaped the country's stance on the death penalty.
Map of Apartheid South Africa
Early History of the Death Penalty
The death penalty was first introduced in South Africa by colonial powers in 1652. Initially, this law was imposed for a wide range of crimes, including rape, murder, arson, fraud, sodomy, incest, public violence, and theft. Criminal punishment in South Africa during the 17th and 18th centuries was harsh and brutal. In the latter part of the 19th century, the courts began restricting the death penalty to the offences of murder, treason, and rape.
There was no uniformity in the statutes relating to the death penalty in the 19th century, and the death penalty issue in South Africa has long been a controversial topic because race has often played a key role in the imposition of a death sentence.
Apartheid Era and Political Prisoners
During the 1970s and 1980s, South African jails were filled with detainees and political prisoners. A political prisoner was different from a detainee in that he or she was charged with a political crime and thus was allowed to go to trial to try to prove their innocence. Because of the repressive laws that the South African government had introduced, almost any kind of resistance to apartheid was classified as a serious offence.
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Many political prisoners were found guilty under the main ‘security’ laws such as the Internal Security Act, the Sabotage Act and the Terrorism Act. These political prisoners were usually kept on Robben Island or in Pretoria Central Prison. As part of its repressive strategy, the apartheid state was quick to use the death penalty against its political opponents. From the 1960s to the 1980s, the apartheid government executed about 134 political prisoners.
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One group of activists known as the Sharpeville Six were sentenced to death on the principle of common purpose. They had all formed part of a group that was present at the killing of a local councillor. Their sentence was later changed to a life sentence when the government put a hold on the death penalty during the period of negotiations towards a democratic future. When South Africa moved towards a democracy they were released from prison.
Racial Bias in the Application of the Death Penalty
South Africa's use of the death penalty under apartheid was racially biased. For many years, South Africa had the doubtful honour of being a world leader in the number of judicial executions carried out. Between 1981 and 1990, an estimated 1,100 people were executed, with the last execution occurring in November 1989. As mentioned during the nation’s Truth and Reconciliation Commission, 95% of people sentenced to death under apartheid were Black, while all those imposing the judgment were white.
The Court emphasized the inherent arbitrariness in death penalty cases, present from initial investigation through trial and appeals processes, especially highlighting issues of class and race. For example, the Court explained that defendants who can afford to hire experienced legal representation are less likely to be sentenced to death than those with state-appointed counsel.
On the other hand, indigent defendants are often paired with young and inexperienced counsel who are of a different race and require interpreters to communicate. The Court concluded that factors of class and race are almost certainly present to some degree in all court systems, and although they can be mitigated they cannot be totally avoided. The Court notes that the issue of arbitrariness is most problematic in capital cases, where the final judgment is death and the killing of an innocent person is irremediable, concluding that its arbitrary and capricious application means that any resulting death sentence is cruel, inhuman and degrading punishment.
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The South African Constitution
The Road to Abolition
With the release of Nelson Mandela in February 1990 and the beginning of negotiations for constitutional change, the death penalty became one of the touchstones of commitment to a new social order. President F. W. de Klerk announced an immediate moratorium on executions, the last one having taken place on 2 February 1989, and in July 1990 the Criminal Law Amendment Act abolished capital punishment for housebreaking with intent to commit a crime or with aggravating circumstances, and made the death penalty for murder discretionary rather than mandatory.
A tribunal was set up to review death sentences imposed before July 1990 and, as a result, the Minister of Justice announced in 1992 that all executions would continue to be suspended, pending the introduction of a Bill of Rights for the new South Africa.
Constitutional Court Decision and the End of Capital Punishment
Despite the fact that the South African Transitional Constitution of 1993 was silent on the matter of whether or not the death penalty was permissible, the Attorney-General, in line with President Mandela’s long-held belief that the death penalty was barbaric, brought a case before the Constitutional Court, arguing that the death penalty should be declared unconstitutional. The Court, in the landmark judgment of The State v T. Makwanyane and M. Mchunu in 1995 decided that capital punishment was incompatible with the prohibition against ‘cruel, inhuman or degrading’ punishment and with a ‘human rights culture’ which made the rights to life and dignity the cornerstone of the Constitution. A further influential argument was that it would be inconsistent with the spirit of reconciliation, post-apartheid.
Thus, despite widespread concern about a tide of violent crime, and strong political pressures to reinstate the death penalty, the South African Parliament endorsed the opinion of Judge Chaskalson, the President of the Constitutional Court, that the way to reduce violence was to create a ‘human rights culture’ which respects human life. In 1997 the Criminal Law Amendment Act removed all references to capital punishment from the statute book.
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Arguments for Reinstatement and Current Status
Despite the fact that political parties such as the Freedom Front Plus, the Christian Democratic Party, and the Pro-Death Penalty Party have argued for reinstatement of capital punishment in South Africa, on the grounds that it is necessary to reduce the country’s very high homicide rate, it is very unlikely that there would be a parliamentary majority for the constitutional amendment that would be necessary.
The decision notes that life imprisonment is sufficient punishment, satisfying the need for crime prevention and retribution, although they caution that the latter ought not to be given undue weight in the balancing process. In accounting for public sentiment on the matter, the Court notes that while the majority of South Africans might favor the punishment for the worst of the worst cases, it is not a substitute for the Court’s determination. the newly created South African constitution specifically enshrines the right to life and human dignity.
As one concurring opinion explains: Respect for the dignity of all human beings is particularly important in South Africa.
Gallows at Pretoria Central Prison
Visiting the Gallows Museum
A visit to the gallows museum, housed at Pretoria C-Max prison in Kgosi Mampuru II Prison (or Pretoria Central Prison), offers a chilling insight into this dark chapter of South Africa's history. The original gallows were dismantled in 1996, but the gallows museum was opened in 2011 to promote healing and to bring closure to the families of the condemned who were executed there.
The condemned were mostly from the Eastern Cape and sentenced to death for political dissent during the Apartheid era. During the Apartheid era, the language medium in the prison system as it was everywhere was Afrikaans - many families did not know Afrikaans so communication was difficult. The coffins only had prison numbers to identify them, no names, and families could not see the deceased's body or face one last time to pay respects, as is followed in African custom and traditional funerary procession.
The last hanging in South Africa took place in 1989, after which a moratorium was placed on capital punishment in the lead up to the 1994 democratic transition. Capital punishment was eventually abolished in South Africa in 1995 through the constitutional jurisprudence delivered by our newly formed Constitutional Court at the time in the case of S v Makwanyane and Another 1995 (3) SA 391 (CC).
Key Events and Figures in the Abolition of Capital Punishment in South Africa
The following table provides an overview of the key events and figures involved in the abolition of capital punishment in South Africa:
| Event/Figure | Description |
|---|---|
| 1652 | Introduction of the death penalty by colonial powers. |
| 1960s-1980s | Apartheid government executes approximately 134 political prisoners. |
| February 2, 1989 | Last execution takes place in South Africa. |
| February 1990 | President F. W. de Klerk declares a moratorium on executions. |
| 1993 | Transitional Constitution of South Africa is created, silent on the death penalty. |
| 1995 | Constitutional Court declares capital punishment unconstitutional in S v. Makwanyane. |
| 1997 | Criminal Law Amendment Act removes all references to capital punishment from the statute book. |
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