Authored By: Mbalenhle
University of South Africa
CASE NO. CCT/394
IN THE MATTER OF:
THE STATE
VERSUS
T MAKWANYANE AND M MCHUNU
HEARD ON 15 FEBRUARY TO 17 FEBRUARY 1995
DELIVERED ON: 06 JUNE 1995
INTRODUCTION
The State v Makwanyane case was changing the interpretation of existing law by ruling the South African Constitutional court that declares the death penalty unconstitutional that took place in 1995 and had a huge impact on country’s constitutional law (that abolishes death penalty) and human rights. The case involved two accused who were convicted in Witwatersrand Local Division of the Supreme Court.
FACTS OF THE CASE
South Africa’s development from apartheid to democracy in the 1990s resulted in change to the country’s legal system, the interim constitution of 1993 and the final constitution of 1996 enshrined fundamental rights and freedom. In 1995 the constitutional court of South Africa ruled that the death penalty was unconstitutional because it violate the right to life and the right not to be subjected to cruel, inhuman or punishment as enshrined in the Constitution of the Republic of South Africa. Letsela Makwanyane who is the appellant was convicted of murder and sentenced to death for murder however, Makwanyane’s legal team argued that the death penalty was no in line with the constitution as it violate the right to life stated in the new constitution of South Africa which came into effect in 1994.
The court rule was based on the below listed grounds:
- Right to life – this is a fundamental right which is outlined in Section 11 of the Republic of South Africa 1996, the court stated that death penalty violated the right to life.
- Lack of proportionality – the court outlined that the death penalty was not a good response even on other serious crimes since it is not in line with the requirement of justice and fairness.
- Cruel, inhuman, and degrading treatment – the court found that the death penalty involves cruel, inhuman, and degrading treatment which is prohibited in section 11(2) of the interim constitution and in section 12(1)(e) of the 1996 constitution.
ISSUES RAISED
- A question that came up was whether the judiciary was overdoing or exaggerating by ruling on an issue, however the court held that it was within its jurisdiction to interpret the constitution and determine the validity of existing laws.
- The final nature of the death penalty was a major concern. The court recognized that any potential errors in the justice system that cannot be ignored.
- The main thing was whether the death penalty was in line with section 9(right to life), 10(right to dignity), and 11(2) (right to be free from cruel, inhuman, and degrading treatment or punishment) of the constitution.
ARGUMENT OF THE PARTIES
Makwanyane (applicant) argued that death penalty was unconstitutional, he also discussed it is cruel, inhuman and degrading treatment which the constitution does not allow and infringed the right to life as stated in the constitution of South Africa 1996. Additionally Makwanyane was standing of the fact that death penalty was not a solution to reduce crime and that it expose a discriminatory.
The state argued that death penalty was allowed in the constitution and dependent on the legislature to decide the appropriate punishment for crimes, the state also argued that death penalty was not cruel, inhuman or degrading treatment and that it was an agreement response to certain crimes believing that it is a legal form of punishment for certain serious crimes like murder.
JUDGEMNT
In the judgment that was delivered on the 06 Of June 1995, the constitutional court ruled that the death penalty was unconstitutional as it violate the right to life which is the fundamental right enshrined in section 9 of the interim constitution and also later in section 11 of the constitution 1996. The court considered international human rights law and followed the invalidation of the death penalty in many countries however, the court’s decision also included that death penalty constituted inhuman, cruel and degrading treatment which is not permitted by section 11 (2) of the interim constitution and later in section 12 (1)(e) of the 1996 constitution. The court’s judgment was that this kind of punishment which is death penalty was not a good punishment to serious crimes as it did not meet the requirements of justice and fairness.
The judgment effectively invalidated the death penalty in South Africa and released sentences of over 400 people on death row to life prison. This case encouraged and reminded South Africans of the importance of human rights and constitutionalism, the judgment has been cited in international court and tribunals, contributing to the global trend towards abolition of the death penalty. In S v Zuma and two others this court dealt with the approach to be adopted in the interpretation of the fundamental rights enshrined in chapter 3 of the constitution. It gave its approval to an approach which whilst giving Kantridge AJ his flowers by delivering “generous” and “purposive” judgment of the court.
RETIO DECIDENDI
The death penalty is unconstitutional in South Africa because it infringe the right to life (section 11of the constitution 1996) and the right not to be subjected to cruel, inhuman, and degrading treatment or punishment. The court held that these right are fundamental and essential to the protection of human dignity and that death penalty is an unacceptable form of punishment which undermines values of the constitution.
CONCLUSION
In conclusion S v Makwanyane is indeed a landmark case that exposes the importance of constitutional adjudication in protecting human rights and promoting justice, judgment had a lasting impact on South African law and beyond showing it place in the country’s history and development of international human rights law.
