The Constitutional Court will consider on Thursday how a death sentence should be replaced by a more appropriate one since the death penalty was abolished.
The Constitutional Court in 1995 declared the death penalty unconstitutional.
Since then, it has been unclear how to deal with the sentences of those prisoners given the death penalty prior to the 1995 decision.
Previously, the case was heard in the Johannesburg High Court, where it emerged that there were 134 people on death row waiting for their death sentences to be set aside.
This court held that the Section of the Criminal Law Amendment Act dealing with the setting aside of the death penalty when prisoners have exhausted all appeal procedures is unconstitutional.
The court held that this is so because the new sentence will be recommended by a judge in an administrative capacity, not a judge in an open court.
It is also unconstitutional because the law does not clearly say that evidence must be led in deciding the new sentence.
The new sentence will ultimately be imposed by the president of South Africa, which will blur the independence of the judiciary.
The applicants — all prisoners on death row — want the Constitutional Court to confirm the High Court’s order.
The state, represented by the director of public prosecutions, will argue that the applicant’s constitutional rights are not infringed, and therefore the order should not be confirmed. — Sapa