Calls for the reinstatement of the death penalty in South Africa grew louder following the brutal murder of the Monswamy family on the KwaZulu-Natal north coast. However, legal experts say bringing it back would be extremely difficult under the Constitution.
“Legally, reinstating the death penalty in South Africa is theoretically possible, but in practice it would be extraordinarily difficult,” explained Dr Suhayfa Bhamjee, the discipline head of public law and a senior lecturer in criminal law at the University of KwaZulu-Natal.
Hundreds of South Africans took to social media, calling for capital punishment for the three men accused of killing Alan Monswamy, 52, his wife Sandy, 57, their children Kraidon, 26, and Shamaria, 20, as well as relatives Gonosagren Padayachee, 51, Mooniamma Padayachee, 78, and 83-year-old Mariama Happanah. The family was allegedly kidnapped from their home in Newtown, Newark, before being taken to Melmoth, where they were killed.
Bhamjee said the public reaction to crimes like the Monswamy massacre was entirely understandable.
Dr Suhayfa Bhamjee, the discipline head of public law and a senior lecturer in criminal law at the University of KwaZulu-Natal.
“When violence is this extreme, it shatters families and communities, and it exposes a very real fear that nobody is safe. Calls for the reinstatement of the death penalty come from grief, anger and desperation - not ignorance. Those emotions should never be dismissed or trivialised.”
“At the same time, moments of collective trauma are precisely when it is most important to separate what feels like a solution from what actually makes societies safer,” she said.
Bhamjee explained that the Constitution prevents the death penalty from being brought back through ordinary legislation.
“In S v Makwanyane and Another (1995), the Constitutional Court held that capital punishment violates the rights to life and human dignity, as well as the prohibition on cruel, inhuman or degrading punishment. Crucially, the judgment did not turn on procedural defects in the way executions were carried out, but on a principled rejection of state-sanctioned killing as incompatible with a constitutional democracy founded on dignity, accountability, and restraint of power.”
“As long as these rights remain protected in the Constitution, the death penalty cannot be reintroduced through ordinary legislation, regardless of how heinous a particular crime may be or how strong public pressure becomes,” she said.
Reinstatement would require a constitutional amendment, supported by at least a two-thirds majority in the National Assembly and six provinces in the National Council of Provinces.
“Even if these thresholds were met, such an amendment would almost certainly face constitutional challenge, because the rights to life and dignity lie at the heart of South Africa’s post-apartheid constitutional settlement.”
“This is therefore not merely a policy question. It would require the country to reverse fundamental moral and legal commitments made in response to a history of systemic state violence and abuse of power,” Bhamjee said.
She said South Africa’s abolition of the death penalty was not naïve idealism.
“It was a deliberate constitutional choice to reject state violence as a response to crime, informed by a history in which coercive power was repeatedly abused.”
Furthermore, reintroducing capital punishment would not address the real drivers of violence: systemic inequality, inadequate policing capacity, investigative failures, overloaded courts, and insufficient victim support.
“It would shift focus away from institutional reform and toward a punishment that offers emotional satisfaction without empirical benefit. The moral question is not whether public anger is justified - it unquestionably is - but whether expanding the state’s power to kill will make anyone safer. The evidence suggests it will not.”
“The harder, necessary work lies in building a criminal justice system that is effective, accountable and humane - one that honours victims not through execution, but through justice that is certain, visible and enduring,” Bhamjee said.
She said countries with the death penalty are not safer.
“Globally, more than 110 countries have abolished the death penalty, while approximately 54 countries continue to use it. Many of the highest-executing countries - including Iran, Saudi Arabia, Iraq, Somalia, and parts of the United States - continue to experience significant levels of violent crime and political violence.”
Large-scale comparative research found no credible evidence that retention of the death penalty is associated with lower homicide rates.
“In fact, jurisdictions without capital punishment frequently report lower murder rates than comparable jurisdictions that retain it, even within shared cultural or legal contexts.”
“Decades of deterrence research have likewise failed to show that the death penalty deters violent crime more effectively than long-term imprisonment. The evidence consistently points in the opposite direction: certainty of punishment matters far more than its severity,” said Bhamjee.
This article was originally posted by IOL
