Comments on: On the death penalty and Jacob Jughead http://constitutionallyspeaking.co.za/on-the-death-penalty-and-jacob-judghead/ This blog deals with political and social issues in South Africa, mostly from the perspective of Constitutional Law. Written by Pierre de Vos Wed, 08 Feb 2012 23:20:51 +0000 hourly 1 http://wordpress.org/?v=3.2.1 By: ezasekasi http://constitutionallyspeaking.co.za/on-the-death-penalty-and-jacob-judghead/#comment-1227 ezasekasi Sat, 15 Mar 2008 10:03:38 +0000 http://constitutionallyspeaking.co.za/?p=487#comment-1227 I have never been a Zuma favourite. But since i have regard for the rule of law amongst other things, my distaste for him was forcefully changes. Now, i am a Zuma man cause i think it is sensible to be. Reason being, what happened in polokwane was at the heart of it a democratic proccess. The fact that he outsmart Thabo was out of this world, i mean how did Zuma manage that, it was indeed a democratic process. That is why i became a Zuma man, which i am going to wisper from now onwards because; how did he come up with the thought to have the death penalty reinstated. If that is to happen than he will be the first one to go to jail cause his legal woes never seem to stop. I mean does he knows why it is legally appropriate for his legal team to try and to what want to in the constitutional court as we speak. Becuase there was this alleged infringement of his rights. Now if the dead penalty is to be reinstated we may just as well scrap the word human rights. Cause in order to enjoy and have this rights invoked you must be alive. In my view the right to life assembles the constitution. I have never been a Zuma favourite. But since i have regard for the rule of law amongst other things, my distaste for him was forcefully changes. Now, i am a Zuma man cause i think it is sensible to be. Reason being, what happened in polokwane was at the heart of it a democratic proccess. The fact that he outsmart Thabo was out of this world, i mean how did Zuma manage that, it was indeed a democratic process. That is why i became a Zuma man, which i am going to wisper from now onwards because; how did he come up with the thought to have the death penalty reinstated. If that is to happen than he will be the first one to go to jail cause his legal woes never seem to stop. I mean does he knows why it is legally appropriate for his legal team to try and to what want to in the constitutional court as we speak. Becuase there was this alleged infringement of his rights. Now if the dead penalty is to be reinstated we may just as well scrap the word human rights. Cause in order to enjoy and have this rights invoked you must be alive. In my view the right to life assembles the constitution.

]]> By: Anonymous http://constitutionallyspeaking.co.za/on-the-death-penalty-and-jacob-judghead/#comment-1225 Anonymous Fri, 14 Mar 2008 11:31:54 +0000 http://constitutionallyspeaking.co.za/?p=487#comment-1225 Good point Frank - Oh, what to do where proof exists that prison sentences do not deter, prevent nor rehabilitate? Can society really be held ransom by the fundamental rights of those who kill its members? Can one really say that the death penalty has no preventative (joke) or deterrent value? Has it been proven that deterrence of criminals only lies in the prospects of being caught and facing the possibility of criminal sanction ('life'-long prison sentence or less)? Can one really say that the death penalty is barbaric, and intrinsicallyy unfair when measured against the perpetrator's barbaric action that brought it about? Many words still have to be spoken in this regard, especially in the light of the ever escalating crimes of violence in this country (dating from more or less the time that FW de Klerk imposed a moratorium on the execution of the death penalty). Good point Frank – Oh, what to do where proof exists that prison sentences do not deter, prevent nor rehabilitate? Can society really be held ransom by the fundamental rights of those who kill its members? Can one really say that the death penalty has no preventative (joke) or deterrent value? Has it been proven that deterrence of criminals only lies in the prospects of being caught and facing the possibility of criminal sanction (‘life’-long prison sentence or less)? Can one really say that the death penalty is barbaric, and intrinsicallyy unfair when measured against the perpetrator’s barbaric action that brought it about? Many words still have to be spoken in this regard, especially in the light of the ever escalating crimes of violence in this country (dating from more or less the time that FW de Klerk imposed a moratorium on the execution of the death penalty).

]]> By: frank cobain http://constitutionallyspeaking.co.za/on-the-death-penalty-and-jacob-judghead/#comment-1219 frank cobain Fri, 14 Mar 2008 09:55:16 +0000 http://constitutionallyspeaking.co.za/?p=487#comment-1219 This might be a real stupid question but what about restricting the death penalty to repeat offenders? IOW to someone who has been found guilty in two seperate instances of the same act e.g. murder? This might be a real stupid question but what about restricting the death penalty to repeat offenders? IOW to someone who has been found guilty in two seperate instances of the same act e.g. murder?

]]> By: Anonymous http://constitutionallyspeaking.co.za/on-the-death-penalty-and-jacob-judghead/#comment-1200 Anonymous Thu, 13 Mar 2008 07:27:19 +0000 http://constitutionallyspeaking.co.za/?p=487#comment-1200 Michael I get your point - the system is therefore open to serious abuse? Michael
I get your point – the system is therefore open to serious abuse?

]]> By: Michael Osborne http://constitutionallyspeaking.co.za/on-the-death-penalty-and-jacob-judghead/#comment-1166 Michael Osborne Wed, 12 Mar 2008 14:19:01 +0000 http://constitutionallyspeaking.co.za/?p=487#comment-1166 Anonymous, yes, we cited this dictum of Mahomed DP in the UDM matter, but to little effect. (The statement is, of course, obiter dicta.) In any event, if even s. 1 is expressly made subject to amendment, what would be beyond the pale? Anonymous, yes, we cited this dictum of Mahomed DP in the UDM matter, but to little effect. (The statement is, of course, obiter dicta.) In any event, if even s. 1 is expressly made subject to amendment, what would be beyond the pale?

]]> By: Anonymous http://constitutionallyspeaking.co.za/on-the-death-penalty-and-jacob-judghead/#comment-1163 Anonymous Wed, 12 Mar 2008 10:47:40 +0000 http://constitutionallyspeaking.co.za/?p=487#comment-1163 Michael 'The German notion of an “unconstitutional constitutional amendment” has never been embraced by the CC nor, so far as I know, by any court outside of Germany itself.' Can the dictum in Premier, KwaZulu-Natal & Others v President of the RSA & Others 1996 (1) SA 769 (CC) at para [49] not be such an approach by the CC? = "It may perhaps be that a purported amendment to the Constitution, following the formal procedures prescribed by the Constitution, but radically and fundamentally restructuring and reorganising the fundamental premises of the Constitution, moight not qualify as an 'amendment' at all." This was in essense following the Indian jurisprudence in Kesavananda v State of Kerala AIR 1973 SC 1461, 1859-1860 at para 1437. However, the CC might still follow the German jurisprudence in this regard as well, not so? Michael
‘The German notion of an “unconstitutional constitutional amendment” has never been embraced by the CC nor, so far as I know, by any court outside of Germany itself.’

Can the dictum in Premier, KwaZulu-Natal & Others v President of the RSA & Others 1996 (1) SA 769 (CC) at para [49] not be such an approach by the CC? = “It may perhaps be that a purported amendment to the Constitution, following the formal procedures prescribed by the Constitution, but radically and fundamentally restructuring and reorganising the fundamental premises of the Constitution, moight not qualify as an ‘amendment’ at all.” This was in essense following the Indian jurisprudence in Kesavananda v State of Kerala AIR 1973 SC 1461, 1859-1860 at para 1437. However, the CC might still follow the German jurisprudence in this regard as well, not so?

]]> By: Michael Osborne http://constitutionallyspeaking.co.za/on-the-death-penalty-and-jacob-judghead/#comment-1152 Michael Osborne Tue, 11 Mar 2008 09:49:12 +0000 http://constitutionallyspeaking.co.za/?p=487#comment-1152 Pierre, if your jurisprudential claim goes no further than pointing out the obvious -- that the line between politics and law is very fuzzy, the implication betoing that they are nevertheless in principle distinct -- how is your account different from the standard liberal account? (Even the most hard line neo-postivist today reject the naive dichotomy of classical postivism.) What I thought was exciting and novel about the CLS approach was that the law/politics distinction was entirely deconstructed. Do you not associate yourself with that more radical view? And what would be the via media? Pierre, if your jurisprudential claim goes no further than pointing out the obvious — that the line between politics and law is very fuzzy, the implication betoing that they are nevertheless in principle distinct — how is your account different from the standard liberal account? (Even the most hard line neo-postivist today reject the naive dichotomy of classical postivism.)

What I thought was exciting and novel about the CLS approach was that the law/politics distinction was entirely deconstructed. Do you not associate yourself with that more radical view? And what would be the via media?

]]> By: Pierre De Vos http://constitutionallyspeaking.co.za/on-the-death-penalty-and-jacob-judghead/#comment-1151 Pierre De Vos Tue, 11 Mar 2008 08:37:51 +0000 http://constitutionallyspeaking.co.za/?p=487#comment-1151 Michael, I have never been good at pretending... but the mere fact that one does not recognise a bright line boundary between law and politics does not mean one has a nihilistic view of law. Judges are constrained in many ways in what they decide - including by precedent and the text of the Constitution and the need for acceptance and legitimacy of their work. In that context, it would be unwise - I argue - for judges to overturn the Makwanyane case only 12 years after they handed it down because it would affect their legitimacy. Michael, I have never been good at pretending… but the mere fact that one does not recognise a bright line boundary between law and politics does not mean one has a nihilistic view of law. Judges are constrained in many ways in what they decide – including by precedent and the text of the Constitution and the need for acceptance and legitimacy of their work. In that context, it would be unwise – I argue – for judges to overturn the Makwanyane case only 12 years after they handed it down because it would affect their legitimacy.

]]> By: Michael Osborne http://constitutionallyspeaking.co.za/on-the-death-penalty-and-jacob-judghead/#comment-1150 Michael Osborne Mon, 10 Mar 2008 19:11:15 +0000 http://constitutionallyspeaking.co.za/?p=487#comment-1150 66% ordinarily; 75% in case of s. 1 ("founding provisions.") 66% ordinarily; 75% in case of s. 1 (“founding provisions.”)

]]> By: Clara http://constitutionallyspeaking.co.za/on-the-death-penalty-and-jacob-judghead/#comment-1147 Clara Mon, 10 Mar 2008 17:48:09 +0000 http://constitutionallyspeaking.co.za/?p=487#comment-1147 Someone please correct me if I'm wrong, but I was under the impression that a 75% majority vote was required in order to change anything in the Constitution. Someone please correct me if I’m wrong, but I was under the impression that a 75% majority vote was required in order to change anything in the Constitution.

]]>