A referendum on the death penalty?

To say emotions ran high this week in the trial of three men accused (and convicted) of killing four-year-old Makgabo Matlala and repeatedly raping her 58 year old nanny is an understatement of note.

Judge Gerhardus Hattingh found the three accused, Johannes Siphiwe Molefe, Lucky Ndlovu and Steve Mhlanga guilty of a variety of charges. According to IOL:

"According to the minister of safety and security Charles Nqakula, crime is down and the future is rosy. This, with respect, and I must choose my words wisely, is nonsense," Hattingh said in an extraordinary address to a packed Vereeniging regional court room as he sentenced Makgabo’s murderer Johannes Siphiwe Molefe to two life sentences for her death and for raping her nanny.

He also gave 22-year-old Molefe a 20-year sentence for robbery, while sentencing 21-year-old Lucky Ndlovu to a life sentence for the repeated rape of Makgabo’s nanny.

Steve Mhlanga, who was with the men when they robbed the Matlala home but did not participate in the rape or murder, received 20 years in jail for robbery and a concurrent 10-year jail term for being an accessory to murder.

Judge Hattingh told the three men that they deserved to die and stated that he would have no hesitation sentencing them to die, were the death penalty still available in this country. In a step rarely taken by a judge in open court, Judge Hattingh declared that right thinking members of the community were in favour of the death penalty and that the Government must take responsibility for the rampant crime in this country. He reportedly called for a referendum on the death penalty with a view to reintroducing that ultimate penalty as a way to tackle similar crimes.

The judge’s comments angered officials in the Ministry of Safety and Security who accused the judge of violating the separation of powers doctrine by making political statements (this is ironic considering recent criticism of the Government ignoring decisions handed down by the courts in similar violations of the separation of powers doctrine). The Ministry also rebuked the judge for making statements contrary to the Constitutional Court decision that did away with the death penalty shortly after the court’s formation. That decision, if I remember correctly, declared the death penalty unconstitutional as an unreasonable violation of, among others the rights to dignity, life and the freedom from cruel, inhuman or degrading punishment and took into account the rights of the accused as well as those of executioner. One of the points made in the judgment is that there was no proof that the death penalty was a sufficient deterrent against crime where the balance of the criminal justice system didn’t work as it was meant to.

Put simply, if criminals had no real reason to fear that if they committed a crime that they would be caught and successfully convicted, no punishment would be an adequate deterrent. In this sense, the judge was right. The Government must take responsibility for the state of crime in this country and take drastic steps to curb it. Where I differ from Judge Hattingh (and I do so with the greatest of respect), I don’t agree that reintroducing the death penalty is the answer (leaving aside the question of whether this would ever be possible under the present Constitutional framework). In my opinion, the Government should dedicate significantly greater funds and resources to the criminal justice system at all levels to ensure that the criminal justice system does what it is supposed to do – identify, catch and convict criminals. Only then would a debate about the death penalty be appropriate. Criminals should have reason to fear the law once more. They must know that they will be caught and convicted.

As for whether Judge Hattingh ran foul of the separation of powers doctrine, he may have. At the same time, he is human and just like the majority of South Africans, he feels tremendous frustration and anger at barbaric and inhuman crimes like the crimes committed against Makgabo and her nanny. Perhaps in his case he feels it even more acutely being confronted by this inhumanity and seeing how murderers and rapists are granted bail when they should be locked up. Rather than venting at the judge, the Minister of Safety and Security ought to be agreeing with him about the inadequacies of the system and be committing the full resources under his and the rest of the Government’s control to fixing the system.

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