Sibiya and Others v Director of Public Prosecutions: Johannesburg High Court and Others (CCT45/04) [2005] ZACC 6; 2005 (5) SA 315 (CC); 2005 (8) BCLR 812 (CC); 2006 (1) SACR 220 (CC); [2005] JOL 14514 (CC) (25 May 2005)

Sibiya and Others v Director of Public Prosecutions: Johannesburg High Court and Others (CCT45/04) [2005] ZACC 6; 2005 (5) SA 315 (CC); 2005 (8) BCLR 812 (CC); 2006 (1) SACR 220 (CC); [2005] JOL 14514 (CC) (25 May 2005)

The Constitutional Court held that the impugned provisions of the Criminal Law Amendment Act 105 of 1997 did not violate the Constitution. The Court found that section 35 fair trial rights do not apply retroactively to persons sentenced to death before the constitutional era, and that section 12 of the Constitution provides adequate protection by requiring that deprivation of liberty be fair. The mechanism for substituting death sentences was enacted to address an extraordinary situation and was sufficiently fair, as it allowed for consideration of written and oral argument and judicial advice, even if it did not replicate a full trial. The President's role in substituting sentences was...

Citation
[2005] ZACC 6
Parties
Applicant: Willy Aaron Sibiya; Applicant: Purpose Khumalo; Applicant: Jacobus Petrus Geldenhuys; Applicant: David Nkuna; Respondent: Director of Public Prosecutions: Johannesburg High Court; Respondent: Minister of Justice and Constitutional Development; Respondent: President of the Republic of South Africa; Respondent: Minister of Correctional Services
Court
Constitutional Court
Jurisdiction
South Africa
Judgment Date
25 May 2005
Case Number
CCT45/04
Procedural Posture
Constitutional Review / Application for Confirmation of High Court Order of Constitutional Invalidity
Outcome
The Constitutional Court declined to confirm the High Court's order declaring subsections (1) to (5) of section 1 of the Criminal Law Amendment Act 105 of 1997 and the President's conduct unconstitutional. The Court issued a supervisory order to ensure the substitution of all outstanding death sentences imposed...
Judges
Yacoob, Chaskalson, Langa, Madala, Mokgoro, Moseneke, Ngcobo, O'Regan, Sachs, Skweyiya, Van der Westhuizen
Legal Topics
Death Penalty Substitution, Fair Trial Rights, Separation of Powers, Presidential Conduct Review, Section 12 Constitution, Section 35 Constitution
Constitutional Law Criminal Law Civil Procedure Death Penalty Substitution Fair Trial Rights Separation of Powers Presidential Conduct Review Section 12 Constitution +1 more

Case Brief

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Parties

Willy Aaron Sibiya

Applicant

Purpose Khumalo

Applicant

Jacobus Petrus Geldenhuys

Applicant

David Nkuna

Applicant

Director of Public Prosecutions: Johannesburg High Court

Respondent

Minister of Justice and Constitutional Development

Respondent

President of the Republic of South Africa

Respondent

Minister of Correctional Services

Respondent

Procedural Posture

Constitutional Review / Application for Confirmation of High Court Order of Constitutional Invalidity

Legal Issues

  1. 1 Whether subsections (1) to (5) of section 1 of the Criminal Law Amendment Act 105 of 1997 are inconsistent with the Constitution.
  2. 2 Whether the process for substituting death sentences with alternative sentences violates fair trial rights under section 35 of the Constitution.
  3. 3 Whether the President's conduct in substituting sentences is unconstitutional and requires confirmation by the Constitutional Court.

Ratio Decidendi

The Constitutional Court held that the impugned provisions of the Criminal Law Amendment Act 105 of 1997 did not violate the Constitution. The Court found that section 35 fair trial rights do not apply retroactively to persons sentenced to death before the constitutional era, and that section 12 of the Constitution provides adequate protection by requiring that deprivation of liberty be fair. The mechanism for substituting death sentences was enacted to address an extraordinary situation and was sufficiently fair, as it allowed for consideration of written and oral argument and judicial advice, even if it did not replicate a full trial. The President's role in substituting sentences was...

Court Disposition

The Constitutional Court declined to confirm the High Court's order declaring subsections (1) to (5) of section 1 of the Criminal Law Amendment Act 105 of 1997 and the President's conduct unconstitutional. The Court issued a supervisory order to ensure the substitution of all outstanding death sentences imposed...

Orders

  • The orders of the Johannesburg High Court declaring subsections (1) to (5) of section 1 of the Criminal Law Amendment Act 105 of 1997 and setting aside the sentence imposed by the President are not confirmed.
  • The respondents are directed to take all necessary steps to ensure that all sentences of death imposed before 5 June 1995 are set aside and replaced by an appropriate alternative sentence in terms of section 1 of the Act as soon as possible.