Outrage, grief and the law: why SA's death penalty debate has resurfaced after Newark murders

As calls for the death penalty intensified following the recent brutal murder of seven family members in Newark, legal experts and human rights advocates are cautioning against reactionary policymaking. Instead, they urge a recommitment to constitutional principles, effective policing, and systemic reform.

- Professor Karthy Govender, a constitutional law expert and former acting judge, said: “The killing of the seven family members is totally unacceptable in any civilised society. It is natural and expected that this brutal killing will generate considerable outrage and anger, leading people to seek revenge. I think the full details are still emerging, but the act was certainly callous.  

“The intuitive reaction is that these people are barbaric and should be treated as such. Perhaps the feeling of the community and the family is that they should not be part of society. I think that is entirely reasonable because when you have this sort of crime, that sort of response is expected. It is natural and we must recognise that.”

However, Govender emphasised that South Africa’s legal position on the death penalty was firmly settled.

“On the issue of legality, clearly the law is now settled that we do not have capital punishment that has been positioned on the death penalty in South Africa. It was suspended before the democratic order came into effect. The Constitutional Court ruled that imposing the death penalty was inconsistent with the Constitution and should not be allowed. 

“So whatever happens to the law, the current position means that these characters (the three arrested accused) will not receive the death penalty.”

He further unpacked the reasoning behind the Constitutional Court’s landmark ruling, noting that emotional responses rooted in retribution were not sufficient grounds for state-sanctioned execution.

“What the Constitutional Court held is that the idea of revenge and an eye for an eye is not sufficient justification for the state to kill people. And they examined whether capital punishment acted as a deterrent. They found that the evidence offered no clear indication that capital punishment deterred crime more effectively than life imprisonment. So on that basis, the state to actually kill people is not justified.”

Govender argued that the real focus should be on strengthening the criminal justice system and restoring public trust in law enforcement.

“Society should focus on becoming more involved in crime issues, and putting pressure on the police to help society. People lost confidence in the SAPS. Confidence needs to be restored."

 He also pointed to systemic issues such as prison overcrowding and early parole, which could undermine the perception of justice.

“If we are going to send people on longer terms, then we must make the necessary arrangements for that. The problem is that we have overcrowded prisons, and sometimes people are released early on parole to ease the overcrowding.”

Despite acknowledging that some crimes may feel deserving of the harshest punishment, Govender maintained that a civilised society must not resort to execution.

“I do not think a civilised society should be killing people. As bad as these guys are, we cannot change our principle to suit a particular case.”

- Lawson Naidoo, executive secretary of the Council for the Advancement of the South African Constitution, said the surge in calls for the death penalty reflected broader societal frustration with crime and ineffective law enforcement.

“Given the levels of crime in the country at the moment, and in particular violent crime, it is understandable that there are calls for more extreme forms of punishment against those guilty of crime and violent crime in particular. 

“However, it is proven over many studies in different parts of the world that the death penalty is not a deterrent to violent crime and to murder in particular.”

Naidoo emphasised that South Africa’s constitutional framework was grounded in human dignity and restorative justice, not retribution.

“In South Africa, our Constitution is premised on the fundamental principle of human dignity and not retributive justice but restorative justice. This is one of the key principles in one of the earliest constitutional court judgments which outlawed the death penalty, and said that it was incompatible with our Constitution and in particular our Bill of Rights.”

He added that the real issue lay in institutional weaknesses.

“I think the frustrations in society at large stem from the dysfunction within the law enforcement agencies as a whole. What is really needed is a more effective accountable and fully functional law enforcement system that brings perpetrators of violent crime to justice.”

Naidoo warned against allowing anger to devolve into lawlessness.

“We are a society that is based on the rule of law; and lawlessness in terms of retribution, vigilante attacks and the like, have no place in a democratic society." 

- Willene Holness, Associate Professor at the University of KwaZulu-Natal’s School of Law, provided a detailed constitutional and historical perspective, pointing to the seminal 1995 judgment that abolished the death penalty.

“South Africa abandoned the death penalty in favour of recognising the rights to life and dignity. Capital punishment puts an end to the right to life and all other rights through state-sanctioned brutality,” Holness said.

“The Constitutional Court also found that the death penalty was cruel, inhuman and degrading treatment or punishment, predominantly due to its finality and irrevocability.”

She stressed that constitutional rights aplied universally, even to those who committed the most heinous crimes.

“It bears reiteration that this right extends even to offenders who have caused significant and severe harm to society. These constitutional human rights are recognised for all persons, including those who have committed the most heinous crimes.”

Holness also highlighted South Africa’s historical context, where the death penalty was used disproportionately during apartheid.

“There cannot be a turnaround from the decisive break which the constitution calls for: a break from South Africa’s repressive past which utilised the death penalty as a brutal tool, disproportionately meted out against poor and black persons." 

She further cited international and regional legal trends, noting a global shift away from capital punishment.

“It is widely accepted that the use of the death penalty is steadily and irreversibly declining around the world,” Holness said, adding that there was no empirical research which supported the claim that it deterred crime.

Holness concluded firmly: “I am opposed to the death penalty in all cases.”

- Amnesty International South Africa’s executive director, Shenilla Mohamed, reinforced this stance, grounding her argument in international human rights law.

“Amnesty International South Africa opposes the death penalty unconditionally, under any circumstances, regardless of the nature or circumstances of the crime. Article 6(1) of the International Covenant on Civil and Political Rights, protects against the arbitrary deprivation of life.”

She reiterated that South Africa’s highest court had already ruled decisively on the matter.

“South Africa’s Constitutional Court also declared the death penalty unconstitutional in 1995, ruling that it violated the right to life and dignity." 

Mohamed called for trust in the justice system, while also demanding accountability from it.

“Those seeking remedy for crimes should allow the criminal justice system to do its work. At the same time, the criminal justice system must investigate matters of crime thoroughly, transparently and without fear, to ensure that perpetrators are held accountable.”

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