Fundamental rights

This course work is about a summary of facts and legal issues in the S v Makwanyane 1995 (3) S. A. 391 (CC), and for a good comprehension of this work, I prefer to start on the definitions of key words in the topic of this work which are: facts, legal issues, death penalty. 1. 1. Facts According to the American Heritage® Dictionary of the English Language, the word fact (fakt) is a noun which means: 1) a. something demonstrated to exist or known to have existed; b. A real occurrence; an event; 2) A thing that has been done, especially a crime; 3) Law The aspect of a case at law comprising events determined by evidence.

1. 2. Legal issues It is a noun which means affirmation, allegation, argument, asseveration, cause, concern arising from law, counter argument, debatable point, declaration, disputed point of law, fact put in controversy by the pleadings, item, insistence on a right or claim, justification. According to Catherine Baker, legal issues are questions concerning the protections that laws or regulations should provide. 1. 3. Death penalty According to Gerard N. Hill & al, death penalty means the sentence of execution for murder and some other capital crimes. 2. DISCUSSION ON FACTS AND LEGAL ISSUES IN S v.

Makwanyane This part of my assignment is about what are facts and what are legal issues according to other countries other than South Africa and which were the reasons and position of Makwanyane on death penalty. 2. 1. Fundamental rights and limitation of rights Fundamental rights and freedoms are not absolute. Their boundaries are set by the rights of others and by the legitimate needs of society. Generally, it is recognized that the public order, safety, health and democratic values justify the imposition of restrictions on the exercise of fundamental rights.

States are obliged in different ways by human rights bearing duties to respect, to protect and to fulfill. This concept was first developed by Shue and has become widely used, for example by the Committee on Economic, Social and Cultural Rights. Most importantly in this context, it is also laid down in section 7 (2) of the South African Constitution. The limitation is a synonym for infringement. A law which limits a right infringes that right. … The reasons for limiting a right need to be exceptionally strong.

The limitation must serve a purpose that most people would regard as particularly important. The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom. A limitation of rights that serves a purpose that does not contribute to an open and power by people for people to people means the democratic society based on human life because is at the central of values. 2. 2. The essence of human dignity in South Africa today ….

Nowhere is this more apparent than in the application of the social and economic rights entrenched in the Constitution. These rights are rooted in respect for human dignity, for how can there be dignity in a life lived without access to housing, health care, food, water or in the case of persons unable to support themselves, without appropriate assistance. Even though the rights to life and human dignity carry a great deal of weight in the Bill of Rights this is not to say that they could never be limited, for example, that the right to life can be justifiably limited in the cases of self-defense.

Section 36 contains a set of “relevant factors” to be taken into account by the court when considering the reasonableness and justifiability of a limitation. These correspond exactly to the factors identified as making up the proportionality enquiry in S v Makwanyane as: * The nature of the right; * The importance of the purpose of the limitation; * The nature and extent of the limitation; * The relation between the limitation and its purpose, and * Less restrictive means to achieve the purpose.

It is not easy to justify the limitation of such rights than other; a court must be based on the importance of a particular right is the overall constitutional scheme. 2. 3. Death penalty Death is a cruel penalty and the legal processes which necessarily involve waiting in uncertainty for the sentence to be set aside or carried out, add to the cruelty. It is also an inhuman punishment for it “… involves, by its very nature, a denial of the executed person’s humanity”, and it is degrading because it strips the convicted person of all dignity and treats him or her as an object to be eliminated by the state.

The question is not, however, whether the death sentence is a cruel, inhuman or degrading punishment in the ordinary meaning of these words but whether it is a cruel, inhuman or degrading punishment within the meaning of section 11(2) of our Constitution. The accused, who rely on section 11(2) of the Constitution, carry the initial onus of establishing this proposition. According to S v Makwanyane was regarded with the constitutionality of the death penalty. That capital punishments is the l imitation of rights to life, to human dignity and then to freedom.

The death penalty served three purposes that could not be adequately served by another punishment: 1. It served as a deterrent to violent crime; 2. It served to prevent the recurrence of violent crime; 3. It served as fitting retribution for violent crimes. The state is obliged, to take action to protect human life against violation by others, like the second but the third was not considered to be purpose fitting the type of the society. The death penalty is unique in its irrevocability means that it differs from others criminal punishment because it removes a person from the normal society I mean it is her/his end of life1 above.

2. 4. Legal issues of death penalty by other countries In America: The earliest litigation on the validity of the death sentence seems to have been pursued in the courts of the United States of America. The Fifth Amendment (adopted in 1791) refers in specific terms to capital punishment and impliedly recognizes its validity. The Fourteenth Amendment (adopted in 1868) obliges the states, not to “deprive any person of life, liberty, or property, without due process of law” and it too impliedly recognizes the right of the states to make laws for such purposes.

The argument that capital punishment is unconstitutional was based on the Eighth Amendment, which prohibits cruel and unusual punishment. Although the Eighth Amendment “has not been regarded as a static concept” and as drawing its meaning “from the evolving standards of decency that mark the progress of a maturing society”, the fact that the Constitution recognizes the lawfulness of capital punishment has proved to be an obstacle in the way of the acceptance of this argument, and this is stressed in some of the judgments of the United States Supreme Court.

In Europe: Article 2 of the European Convention protects the right to life but makes an exception in the case of “the execution of a sentence of a court following [the] conviction of a crime for which this penalty is provided by law. ” The majority of the Court held that article 3 could not be construed as prohibiting all capital punishment, since to do so would nullify article 2. In India: Section 302 of the Indian Penal Code authorizes the imposition of the death sentence as a penalty for murder. In Bachan Singh v State of Punjab, the constitutionality of this provision was put in issue.

Article 21 of the Indian Constitution provides that: No person shall be deprived of his life or personal liberty except according to procedure established by law. Concluding this assignment, in accordance with the theories above, I found that everywhere in South Africa, United State of America, in Europe and in India they are about the abolition of the death sentence. BIBLIOGRAPHY 1. Catherine Baker, Exploring the Issues Raised by Genetic Research, [on line] available at http://www. ornl. gov/sci/techresources/Human_Genome/publicat/genechoice/glossary. html#legal, accessed on 23rd February 2011. 2. Furman v. Georgia, 408 U.

S. 238, 290 (1972) (Brennan, J. , Concurring), cited in S v Makwanyane available on http://law. gsu. edu/ccunningham/fall03/DeathPenalty-SouthAfrica-Makwanyane. htm , accessed on 22nd February 2011. 3. Gerald N. Hill and Kathleen T. Hill, Copyright © 1981-2005 All Right reserved [Online] available at http://legal-dictionary. thefreedictionary. com/death+penalty, accessed on 23rd February 2011. 4. Gerhard Erasmus Limitation and suspension in D van Wyk et al (eds) Rights and Constitutionalism (1994) 629. Cited by Johan de Waal et al (2001), The bill of right handbook, 4th edition, JUTA&C O LTD, p. 144. 5. Inga T.

Winkler (2007: 5), Respect, Protect, Fulfil: The implementation of the human right to water in South Africa[Online] available at http://www. ielrc. org/activities/workshop_0704/content/d0729. pdf, accessed on 22nd February 2011. 6. Republic of South Africa, Constitution of 1996, Act No. 108 of 1996, available at: www. polity. org. za/html/govdocs/constitution/saconst. html? rebookmark=1, accessed on 22nd February 2011. 7. The American Heritage® Dictionary of the English Language, 4th edition Copyright © 2010 by Houghton Mifflin Harcourt Publishing Company. All rights reserved, [Online] available at http://www. yourdictionary.

com/fact, accessed on 23rd February 2011. 8. University of South Africa, Nazeem MI Goolam: human dignity – our supreme constitutional value, available at http://www. ajol. info/index. php/pelj/article/view/43490/27025, accessed on 23rd February 2011. 9. X, legal issue [Online], available on http://legal-dictionary. thefreedictionary. com/legal+issue, accessed at 23rd February 2011.  [ 2 ]. The American Heritage® Dictionary of the English Language, 4th edition Copyright © 2010 by Houghton Mifflin Harcourt Publishing Company. All rights reserved, [Online] available at http://www.

yourdictionary. com/fact, accessed on 23rd February 2011. [ 3 ]. X, legal issue [Online], available on http://legal-dictionary. thefreedictionary. com/legal+issue, accessed at 23rd February 2011. [ 4 ]. Catherine Baker, Exploring the Issues Raised by Genetic Research, [on line] available at http://www. ornl. gov/sci/techresources/Human_Genome/publicat/genechoice/glossary. html#legal, accessed on 23rd February 2011. [ 5 ]. Gerald N. Hill and Kathleen T. Hill, Copyright © 1981-2005 All Right reserved [Online] available at http://legal-dictionary. thefreedictionary. com/death+penalty,