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2 S. Afr. J. Crim. Just. 137 (1989)
How Did We Get Our Lopsided Law on the Imposition of the Death Penalty for Common-Law Crimes - And What Should We Do about It

handle is hein.journals/soafcrimj2 and id is 145 raw text is: SACJ    (1989) 2  SAS

How did we get our lopsided
law on the imposition of the death
penalty for common-law crimes?
And what should we do about it?
General Smuts has been said to be the person responsible. It was he
who suggested in 1935 that we retain the compulsory death sentence for
murder (except for a woman convicted of the murder of her newly born
child or where the culprit was under 16 - raised to 18 in 1958), but
that the court should have a discretion where there are extenuating
circumstances.' It was he who made the then wise decision to provide
for this further exception and carried it through Parliament. So it has
been suggested.2
This is an oversimplification of what was an involved legislative pro-
cess.' Now that there is a strong movement to give the presiding judge
the same discretion to impose the death sentence with murder as he has
with our other capital crimes - a subject to which I shall return - it is
only fair to the memory of Smuts that the full tale be told. It may also
give support to the movement.
In the Roman-Dutch law the general punishment for murder was
death, but whether it should be imposed depended on the circumstances,
such as provocation and the age and status of the culprit or the status
of the person murdered: what might be labelled, in an extended sense,
as mitigating or aggravating circumstances.4 For rape, capital punishment
* SC BCom LLB (Witwatersrand) LLM LLD (Natal) Hon LLD (Cape Town), of the Middle
Temple, Barrister, Profissor of Law, Uniwrit of the Witwat-rsrand, Johannesbrg.
'In chronological order: the Criminal Procedure and Evidence Act 31 of 1917 s 338, as
amended by s 61 of the General Law Amendment Act 46 of 1935; the Criminal Procedure
Act 56 of 1955 s 329; the Criminal Law Amendment Act 16 of 1959 s 25; the Criminal
Procedure Act 51 of 1977 s 277.
2jpj Coetzer SC, of the Pretoria Bar, formerly Secretary for Justice and thereafter Director-
General: Justice 'Beskouings oor die Doodstraf' (1988) 1 Consultus 15 at 16-7.
This is only a mild criticism of Mr Coetzer's otherwise admirable article.
See, for example, Antonius Matthaeus II De Criminibus, ad libros XL VII et XL VIII Digestorum
Commentarius (1644) and 48.18.9; Van Leeuwen Het Roomsbc Hollandsch Recht (1664)
4.34.1ff; Van der Keessel Praekctiones adjus Criminale (c 1772-82) edited and translated by
B Beinart & P van Warmelo (1969-81) 48.8.8; Van der Linden Koopmans Handboek 2.1.6
and 2.5.8. See too JC de Wet & HL Swanepoel Strafreg 4 ed (1985) 211 (n14).

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