When they fired automatic weapons at a payroll van, Themba Makwayane and Movusu Mchunu unwittingly shot their way into South African history.
The death sentences they received for killing four people are the focus of two milestones: the seating of South Africa’s first constitutional court, and the future of capital punishment in a society that once executed dozens of people a year.
Two days of arguments beginning Wednesday will pit the Legal Resources Center, a group of lawyers that battled apartheid, against the attorney general’s office. The center’s appeal argues that executions should be banned.
At issue are articles in the new Bill of Rights of the interim constitution that prohibit cruel and unusual punishment and guarantee the right to life, but that also stipulate no right can be absolute.
“The court will be dealing with the constitutionality of the death penalty, not the facts of the case,” said Ron Pascke of the Legal Resources Center. “It’s really a question of whether anyone can be sentenced to death in South Africa.”
The court’s 11 justices - two women (one white, one black) and nine men (six white, two black, one Indian) - will be sworn in Tuesday to seven-year terms. They will be arbiters of the constitution that took effect with the nation’s first all-race election last April.
It is the first time that South Africa will have an independent body to interpret the highest law of the land, similar to the U.S. Supreme Court. Its existence marks a major shift from the white minority rule of apartheid to the rule of law under a black-led democratic government.
Debate over capital punishment has intensified since the April vote that brought Nelson Mandela’s African National Congress to power.
Death penalty advocates, particularly white conservatives, blame a moratorium on executions since 1990 for South Africa’s crime rate, which is among the highest in the world.
The ANC opposes capital punishment, due in part to the frequent death sentences meted out to ANC militants and black criminals under apartheid.
“It’s unfortunate that the court needs to be under such pressure on its first case,” said Justice Catherine O’Regan, a member of the new court and one of the nation’s handful of women judges. But “being in the spotlight on this issue will be good for the debate on public values. It’s important that the court be decisive.”
The facts of the case are not in dispute.
Makwayane, 36, and Mchunu, 24, are survivors of a six-man team that shot up an unarmored bank van carrying a $136,000 hospital payroll on Aug. 31, 1990.
The gunfire killed two bank employees in the van and two policemen in an escort car. Before the robbers could escape with the loot, more police arrived and arrested all but one.
Two have died in escape attempts. One received a life sentence. Makwayane and Mchunu were sentenced to hang.
Their convictions came after the former apartheid regime declared the death penalty moratorium in February 1990, as Mandela was released from 27 years’ imprisonment to negotiate the end of white rule.
With the ANC and the white-led National Party, the former rulers, unable to agree on whether capital punishment should be in a new constitution, the issue was left for the courts.
Under apartheid, whites ruled without a written constitution and Parliament was supreme. The new constitution contains checks and balances on power, such as the constitutional court.
Seven justices were appointed by Mandela in consultation with his Cabinet or a broad-based judicial commission. The others were drawn from the ranks of professional magistrates.
The court’s president is Arthur Chaskalson, a longtime anti-apartheid lawyer.