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S v Makwanyane

 

Per Chaskalson P:

 

[16] In countries in which the constitution is similarly the supreme law, it is not unusual for the courts to have regard to the circumstances existing at the time the constitution was adopted, including the debates and writings which formed part of the process. The United States Supreme Court pays attention to such matters, and its judgments frequently contain reviews of the legislative history of the provision in question, including references to debates, and statements made, at the time the provision was adopted.17 The German Constitutional Court also has regard to such evidence. The Canadian Supreme Court has held such evidence to be admissible, and has referred to the historical background including the pre-confederation debates for the purpose of interpreting provisions of the Canadian Constitution, although it attaches less weight to such information than the United States Supreme Court does. It also has regard to ministerial statements in Parliament in regard to the purpose of particular legislation. In India, whilst speeches of individual members of Parliament or the Convention are apparently not ordinarily admissible, the reports of drafting committees can, according to Seervai, "be a helpful extrinsic aid to construction." Seervai cites Kania CJ in A. K. Gopalan v The State22 for the proposition that whilst not taking "...into consideration the individual opinions of Members of Parliament or Convention to construe the meaning of a particular clause, when a question is raised whether a certain phrase or expression was up for consideration at all or not, a reference to debates may be permitted." The European Court of Human Rights and the United Nations Committee on Human Rights all allow their deliberations to be informed by travaux preparatoires.

 

[17] Our Constitution was the product of negotiations conducted at the Multi-Party negotiating Process. The final draft adopted by the forum of the Multi-Party Negotiating Process was, with few changes, adopted by Parliament. The Multi-Party Negotiating Process was advised by technical committees, and the reports of these committees on the drafts are the equivalent of the travaux prJparatoires, relied upon by the international tribunals. Such background material can provide a context for the interpretation of the Constitution and, where it serves that purpose, I can see no reason why such evidence should be excluded. The precise nature of the evidence, and the purpose for which it may be tendered, will determine the weight to be given to it.

 

[18] It has been said in respect of the Canadian constitution that:

...the Charter is not the product of a few individual public servants, however distinguished, but of a multiplicity of individuals who played major roles in the negotiating, drafting and adoption of the Charter. How can one say with any confidence that within this enormous multiplicity of actors ... the comments of a few federal civil servants can in any way be determinative.

Our Constitution is also the product of a multiplicity of persons, some of whom took part in the negotiations, and others who as members of Parliament enacted the final draft. The

same caution is called for in respect of the comments of individual actors in the process, no matter how prominent a role they might have played.

 

[19] Background evidence may, however, be useful to show why particular provisions were or were not included in the Constitution. It is neither necessary nor desirable at this stage in the development of our constitutional law to express any opinion on whether it might also be relevant for other purposes, nor to attempt to lay down general principles governing the admissibility of such evidence. It is sufficient to say that where the  background material is clear, is not in dispute, and is relevant to showing why particular provisions were or were not included in the Constitution, it can be taken into account by a

Court in interpreting the Constitution. These conditions are satisfied in the present case.

 

[20] Capital punishment was the subject of debate before and during the constitution-making process, and it is clear that the failure to deal specifically in the Constitution with this issue was not accidental.

 

S v Makwanyane

 

Per Chaskalson P:

 

[16] In countries in which the constitution is similarly the supreme law, it is not unusual for the courts to have regard to the circumstances existing at the time the constitution was adopted, including the debates and writings which formed part of the process. The United States Supreme Court pays attention to such matters, and its judgments frequently contain reviews of the legislative history of the provision in question, including references to debates, and statements made, at the time the provision was adopted.17 The German Constitutional Court also has regard to such evidence. The Canadian Supreme Court has held such evidence to be admissible, and has referred to the historical background including the pre-confederation debates for the purpose of interpreting provisions of the Canadian Constitution, although it attaches less weight to such information than the United States Supreme Court does. It also has regard to ministerial statements in Parliament in regard to the purpose of particular legislation. In India, whilst speeches of individual members of Parliament or the Convention are apparently not ordinarily admissible, the reports of drafting committees can, according to Seervai, "be a helpful extrinsic aid to construction." Seervai cites Kania CJ in A. K. Gopalan v The State22 for the proposition that whilst not taking "...into consideration the individual opinions of Members of Parliament or Convention to construe the meaning of a particular clause, when a question is raised whether a certain phrase or expression was up for consideration at all or not, a reference to debates may be permitted." The European Court of Human Rights and the United Nations Committee on Human Rights all allow their deliberations to be informed by travaux preparatoires.

 

[17] Our Constitution was the product of negotiations conducted at the Multi-Party negotiating Process. The final draft adopted by the forum of the Multi-Party Negotiating Process was, with few changes, adopted by Parliament. The Multi-Party Negotiating Process was advised by technical committees, and the reports of these committees on the drafts are the equivalent of the travaux prJparatoires, relied upon by the international tribunals. Such background material can provide a context for the interpretation of the Constitution and, where it serves that purpose, I can see no reason why such evidence should be excluded. The precise nature of the evidence, and the purpose for which it may be tendered, will determine the weight to be given to it.

 

[18] It has been said in respect of the Canadian constitution that:

...the Charter is not the product of a few individual public servants, however distinguished, but of a multiplicity of individuals who played major roles in the negotiating, drafting and adoption of the Charter. How can one say with any confidence that within this enormous multiplicity of actors ... the comments of a few federal civil servants can in any way be determinative.

Our Constitution is also the product of a multiplicity of persons, some of whom took part in the negotiations, and others who as members of Parliament enacted the final draft. The

same caution is called for in respect of the comments of individual actors in the process, no matter how prominent a role they might have played.

 

[19] Background evidence may, however, be useful to show why particular provisions were or were not included in the Constitution. It is neither necessary nor desirable at this stage in the development of our constitutional law to express any opinion on whether it might also be relevant for other purposes, nor to attempt to lay down general principles governing the admissibility of such evidence. It is sufficient to say that where the  background material is clear, is not in dispute, and is relevant to showing why particular provisions were or were not included in the Constitution, it can be taken into account by a

Court in interpreting the Constitution. These conditions are satisfied in the present case.

 

[20] Capital punishment was the subject of debate before and during the constitution-making process, and it is clear that the failure to deal specifically in the Constitution with this issue was not accidental.

 

[21] In February 1990, Mr F W de Klerk, then President of the Republic of South Africa, stated in Parliament that "the death penalty had been the subject of intensive discussion in recent months", which had led to concrete proposals for reform under which the death penalty should be retained as an option to be used in "extreme cases", the judicial discretion in regard to the imposition of the death sentence should be broadened, and an automatic right of appeal allowed to those under sentence of death. These proposals were later enacted into law by the Criminal Law Amendment Act No. 107 of 1990.

 

[22] In August 1991, the South African Law Commission in its Interim Report on Group and Human Rights described the imposition of the death penalty as "highly controversial".  A working paper of the Commission which preceded the Interim Report had proposed that the right to life be recognised in a bill of rights, subject to the proviso that the discretionary imposition of the sentence of death be allowed for the most serious crimes. As a result of the comments it received, the Law Commission decided to change the draft and to adopt a "Solomonic solution" under which a constitutional court would be

required to decide whether a right to life expressed in unqualified terms could be circumscribed by a limitations clause contained in a bill of rights. "This proposed solution" it said "naturally imposes an onerous task on the Constitutional Court. But it is a task which this Court will in future have to carry out in respect of many other laws and executive and administrative acts. The Court must not shrink from this task, otherwise we shall be back to parliamentary sovereignty."

 

….

 

[300] MOKGORO J: I am in agreement with the judgement of Chaskalson P, its reasoning, and its conclusions, and I concur in the order that gives effect to those conclusions. I give this brief concurring opinion to highlight what I regard as important: namely that, when our courts promote the underlying values of an open and democratic society in terms of Section 35 when considering the constitutionality of laws, they should recognise that indigenous South African values are not always irrelevant nor unrelated to this task. In my view, these values are embodied in the Constitution and they impact directly on the death penalty as a form of punishment.

 

[301] Now that constitutionalism has become central to the new emerging South African jurisprudence, legislative interpretation will be radically different from what it used to be in the past legal order. In that legal order, due to the sovereignty of parliament, the supremacy of legislation and the absence of judicial review of parliamentary statutes, courts engaged in simple statutory interpretation, giving effect to the clear and unambiguous language of the legislative text - no matter how unjust the legislative provision. The view of the court in Bongopi v Council of the State, Ciskei 1992(3) SA 250 (CK) at 265 H - I, as per Pickard CJ is instructive in this regard:

This court has always stated openly that it is not the maker of laws. It will enforce the law as it finds it. To attempt to promote policies that are not to be found in the law itself or to prescribe what it believes to be the current public attitudes or standards in regard to these policies is not its function .

 

[302] With the entrenchment of a Bill of Fundamental Rights and Freedoms in a supreme constitution, however, the interpretive task frequently involves making constitutional choices by balancing competing fundamental rights and freedoms. This can often only be done by reference to a system of values extraneous to the constitutional text itself, where these principles constitute the historical context in which the text was adopted and which help to explain the meaning of the text. The constitution makes it particularly imperative for courts to develop the entrenched fundamental rights in terms of a cohesive set of values, ideal to an open and democratic society. To this end common values of human rights protection the world over and foreign precedent may be instructive.

 

[303] While it is important to appreciate that in the matter before us the court had been called upon to decide an issue of constitutionality and not to engage in debate on the desirability of abolition or retention, it is equally important to appreciate that the nature of the court’s role in constitutional interpretation, and the duty placed on courts by Section 35, will of necessity draw them into the realm of making necessary value choices.

 

[304] The application of the limitation clause embodied in Section 33(1) to any law of general  application which competes with a Chapter 3 right is essentially also an exercise in balancing opposing rights. To achieve the required balance will of necessity involve value judgements. This is the nature of constitutional interpretation. Indeed Section 11(2)

which is the counterpart of Section 15(1) of the Constitution of Zimbabwe, and provides

protection against cruel, inhuman or degrading punishment, embodies broad idealistic notions of dignity and humanity. If applied to determine whether the death penalty was a

form of torture, treatment or punishment which is cruel, inhuman or degrading it also involves making value choices, as was held per Gubbay CJ in Catholic Commision for Justice and Peace, Zimbabwe v Attorney-General, Zimbabwe, 1993(4) SA 239(ZS) at 241. In order to guard against what Didcott J, in his concurring judgement terms the trap

of undue subjectivity, the interpretation clause prescribes that courts seek guidance in international norms and foreign judicial precedent, reflective of the values which underlie

an open and democratic society based on freedom and equality. B
Copyright 2007-2008, by the Contributing Authors. Cite/attribute Resource. nondumiso. (2008, April 17). S V Makwanya. Retrieved April 24, 2014, from UWC Free Courseware Web site: http://freecourseware.uwc.ac.za/freecourseware/law/constitutional-law/s-v-makwanya. This work is licensed under a Creative Commons License : Attribution-ShareAlike 3.0. Creative Commons License : Attribution-ShareAlike 3.0