Sibiya and Others v Director of Public Prosecutions, Johannesburg High Court and Others

The four applicants were convicted in the early 1990s of serious offences for which the death penalty was competent at the time and were sentenced to death by various High Courts. After the Constitutional Court in S v Makwanyane declared the death penalty unconstitutional with prospective effect, Parliament enacted the Criminal Law Amendment Act 105 of 1997 to provide a mechanism for substituting death sentences with alternative sentences. Section 1(1)–(5) of that Act applied to persons whose death sentences had been confirmed by the Supreme Court of Appeal and who had exhausted all appeal or review procedures. Under this mechanism, a High Court judge would advise the President on an appropriate substitute sentence, which the President was obliged to impose, with no right of appeal. The applicants challenged the constitutionality of these provisions. The High Court declared subsections (1)–(5) unconstitutional and invalid and set aside the President’s decision substituting the second applicant’s death sentence with life imprisonment. The applicants sought confirmation of the constitutional invalidity order by the Constitutional Court.

The Constitutional Court confirmed the High Court’s order declaring subsections (1), (2), (3), (4) and (5) of section 1 of the Criminal Law Amendment Act 105 of 1997 unconstitutional and invalid.

The case affirms that sentencing is an inherently judicial function that must comply with constitutional fair trial standards, even in exceptional transitional contexts following the abolition of the death penalty. It reinforces the separation of powers and limits executive involvement in criminal sentencing. The judgment also clarified the constitutional requirements for lawful sentence substitution for pre-Makwanyane death sentences.