FACULTY OF LAW
CRIMINAL PROCEDURE WORK
DISCUSSION ON THE FACTS AND LEGAL ISSUES IN S V MAKWANYANE 1995 (3) S.A.391 (CC)
Prepared by: Hyacinthe H.
Kigali, March 2011
ABBREVIATIONS AND ACRONYMS
CC: Criminal Court
Http: Hyper Text Transfer Protocol
Ibid : Ibidem
S v : State Versus
S.A.: South Africa
ULK : Kigali Independent University
WWW: World Wide Web
TABLE OF CONTENTS
ABBREVIATIONS AND ACRONYMSi
TABLE OF CONTENTSii
1.2. Legal issues1
1.3. Death penalty1
2. DISCUSSION ON FACTS AND LEGAL ISSUES IN S v. Makwanyane2
2.1. Fundamental rights and limitation of rights2
2.2. The essence of human dignity in South Africa today3
2.3. Death penalty3
2.4. Legal issues of death penalty by other countries4
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.
According to the American Heritage® Dictionary of the English Language, the word fact (făkt) 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...