Four death-row inmates will on Friday ask the Johannesburg High Court to free them because they believe their detention is unconstitutional.
Willie Aaron Sibiya, Purpose Khumalo, Jacobus Geldenhuys and David Nkuna were all sentenced (in separate cases) before the 1995 Constitutional Court ruling that the death penalty was constitutionally invalid.
Although the death penalty has been scrapped, the four are technically still on death row because they have not had their day in court to be re-sentenced.
They therefore describe themselves as “convicted but unsentenced accused persons, awaiting the imposition of ‘lawful punishment’ as envisaged by the order in” the Constitutional Court judgement doing away with the death penalty.
The four argue that “they are detained under death sentence warrants, that the death sentence was declared unlawful, and that their continued detention must be unlawful”. They “demand production by the state of a lawful warrant of detention in respect of a lawful sentence lawfully imposed”.
Their counsel was also expected to argue that the law under which they are being held, the Criminal Law Amendment Act, is unconstitutional because it does not provide for an appeal against whatever sentence a court passes as an alternative to capital punishment.
In the ruling in which the Constitutional Court obliterated capital punishment from the statute books, the court ordered that all death-row prisoners be returned to the courts and appear before the judges who had sentenced them so new arguments would be heard on alternative sentences.
But “the process of substitution envisaged [in] the Act is unconstitutional, as it violates the right to a fair trial”, the four inmates say in the papers.
The state is expected to argue that the court ruling that “all such persons will remain in custody under the sentences imposed on them until such sentences have been set aside in accordance with law and substituted by lawful punishment” means that detention of the four is lawful.