Members of the Chatsworth community are urging authorities to “Bring back the death penalty”, following the gunning down of nine-year-old Sadia Sukhraj in a botched hijacking. Picture: Leon Lestrade/African News Agency (ANA)

When young South Africans are senselessly killed by brazen criminals, communities throughout the country shout out in horror and call out for retribution.

It is not surprising – and it is wholly understandable that the only form of retribution many want is the death penalty.

Crime is spiralling out of control in South Africa – and the government seems unable to take decisive action.

This is why banners were unfurled near Chatsworth, KwaZulu-Natal, over the past few days, urging authorities to “Bring back the death penalty”, following the gunning down of nine-year-old Sadia Sukhraj in a botched hijacking.

And it is why people in Elsies River in the Western Cape are calling for the return of capital punishment after hearing in the High Court how three-year-old Courtney Pieters was murdered.

But these appeals – and appeals in other parts of the country for the return of the hangman will never come about.

And it is right that it should not.

Capital punishment has been outlawed in South Africa for good reason…

In the apartheid era, which was also the era of hangings and hanging judges, Solomon Ngobeni was the last person to be executed in the country’s only hanging prison – Pretoria Central.

Ngobeni, an ordinary criminal, was hanged on 13 November 1989 for murder.

Between 1910 and 1975, a total of 2 740 people were executed. Another 1 100 perished on the gallows between 1981 and 1989, including 21 in 72 hours in December 1987.

Hanging was a bizarre, inhuman ritual: at precisely 6.50am, those who were to die were led from their cells to a pre-execution room. There, their death warrants were read to them and they were given the opportunity to say their last words. Then they were ushered into the execution room, just over 12 metres long, from which hung seven nooses. It was not uncommon for seven people to be hanged at the same time.

After a hood was placed over their heads, the hangman pulled a lever, and the condemned – the overwhelming majority men – plummeted through the huge trapdoor to their deaths.

There is little doubt that South Africans then, as South Africans now, were and are in favour of murderers and other violent criminals being put to death.

But much of their enthusiasm for a return of capital punishment is based on a number of fallacies, of which the most notable is that it serves as a deterrent.

In the dying days of apartheid rule, even the last white president, FW de Klerk declared a moratorium on it. With the advent of democracy, judicial killings were never again sanctioned in South Africa.

But it required the intervention of the Constitutional Court (Concourt) to outlaw it.

Just a day after it had been formally inaugurated on 14 February 1995, the Concourt began hearing the case of “The State versus Makwanyane and Mchunu", two men who had been sentenced to death for murder, attempted murder, and robbery with aggravating circumstances, and whose appeal against their sentence had been turned down by the Supreme Court (known as the High Court today).

It was a fascinating legal “contest” between a full bench of the Concourt, consisting of South Africa’s most talented legal brains, on the one side, and Klaus von Lieres und Wilkau, the Attorney-General of the Witwatersrand, representing the State, on the other.

Von Lieres und Wilkau argued that the death penalty was recognised as a legitimate form of punishment for violent crime such as murder in many parts of the world. It served as a deterrent, he said. It met society’s need for adequate retribution, and it was regarded by the majority of South Africans as an acceptable form of punishment.

The judges of the Concourt argued that the death sentence was cruel, inhuman, degrading and it stripped those sentenced of their human dignity. Furthermore, they insisted that it was contrary to that part of the Constitution that entrenched the right to life.

They also stressed it would be impossible to correct an error, such as a person being erroneously sentenced to death.

All the judges were brilliant in setting out their argument against capital punishment, particularly Judge Ismail Mahomed….

“The deliberate annihilation of the life of a person … is not like the act of killing in self-defence, an act justifiable in the defence of the clear right of the victim to the preservation of his life,” he said.

“It is not performed in a state of sudden emergency, or under the extraordinary pressures which operate when insurrections are confronted or when the State defends itself during war.

"It is systematically planned long after – sometimes years after – the offender has committed the offence for which he is to be punished, and whilst he waits impotently in custody, for his date with the hangman.

“In its obvious and awesome finality, it makes every other right, so vigorously and eloquently guaranteed by … the Constitution, permanently impossible to enjoy.

“Its inherently irreversible consequence makes any reparation or correction impossible, if subsequent events establish, as they have sometimes done, the innocence of the executed or circumstances which demonstrate manifestly that he did not deserve the sentence of death.” 

Responding to Von Lieres und Wilkau’s argument that what is cruel, inhuman or degrading depends on current attitudes, and that South Africans favoured the death penalty for premeditated murder, presiding judge Arthur Chaskalson said: "If public opinion were to be decisive there would be no need for constitutional adjudication. The protection of rights could then be left to Parliament, which has a mandate from the public, and is answerable to the public for the way its mandate is exercised. But this would be a return to parliamentary sovereignty, and a retreat from the new legal order established by the 1993 Constitution.

“By the same token the issue of the constitutionality of capital punishment cannot be referred to a referendum, in which a majority view would prevail over the wishes of any minority.

“The very reason for establishing the new legal order, and for vesting the power of judicial review of all legislation in the courts, was to protect the rights of minorities and others who cannot protect their rights adequately through the democratic process.

“Those who are entitled to claim this protection include the social outcasts and marginalised people of our society. It is only if there is a willingness to protect the worst and the weakest amongst us, that all of us can be secure that our own rights will be protected," he said.

In rejecting the Attorney-General’s argument that the death penalty would act as a deterrent, Chaskalson said: “The greatest deterrent to crime is the likelihood that offenders will be apprehended, convicted and punished."

He said this was what the criminal justice system lacked. And it was at this level that the state had to intervene to combat lawlessness.

On 6 June 1995, the Concourt abolished the death penalty. It ruled that capital punishment ran contrary to democratic South Africa’s Constitution. It was noted, however, that the ruling did not apply to the crime of treason committed in wartime.

 * Dougie Oakes is Independent Media's Op-ed Editor