S v Makwanyane and Another (CCT 3/94)[1995] ZACC 3

Case Name: S v Makwanyane and Another (CCT 3/94)[1995] ZACC 3

Facts :

This case is regarded as a landmark decision in constitutional law, as it examined whether the imposition of the death penalty was inconsistent with the Constitution. In this matter, the two accused were convicted on four counts of murder, one count of attempted murder, and one count of robbery with aggravating circumstances. Consequently, they were liable to receive the most severe sentence. However, section 277(1)(a) of the Criminal Procedure Act 51 of 1977 provides that the death penalty is a competent sentence for murder. Counsel was invited by the Appellate Division to consider whether section 277(1)(a) of the Criminal Procedure Act was consistent with the Constitution of the Republic of South Africa, 1993. Counsel submitted that the provision was indeed inconsistent with sections 9 and 11(2) of the Constitution.

Legal Issue :

The central legal issue before the Court was whether the death penalty, as authorized by section 277(1)(a) of the Criminal Procedure Act 51 of 1977, was consistent with section 9 (the equality clause) and section 11(2) (the right to life) of the Constitution of the Republic of South Africa.

Rule of law/ Relevant law :

The relevant legal framework includes both constitutional provisions, case law and statutory law. In the Constitution, section 9, known as the Equality Clause, guarantees that all persons are entitled to equal protection and benefit of the law and must be treated fairly without discrimination. In addition, section 11(2) is also applicable, as it upholds the right to life and expressly prohibits cruel, inhuman, or degrading treatment or punishment. The relevant provisions are embodied in the Interim Constitution of 1993.

The applicable legislation is section 277(1)(a) of the Criminal Procedure Act 51 of 1977, which provided that a sentence of death could be imposed only by a superior court and only upon a conviction for murder.

The relevant legal statute which is S277 of the Criminal Procedure Act provides: Sentence of death; (1) The sentence of death may be passed by a superior court only and only in the case of  a conviction for: (a) murder, (b) treason committee when the Republic is a state of war, (c) robbery or attempted robbery if the court finds aggravating circumstances to have been present, (d) kidnapping, (e) child-stealing and (d) rape.

The relevant authority is State v Zuma and Others. In this case, the court addressed the appropriate method for interpreting the fundamental rights entrenched in Chapter 3 of the Constitution. It endorsed an interpretative approach that, while giving proper consideration to the wording of the text, is both generous and purposive, and seeks to give effect to the underlying values of the Constitution.

APPLICATION :

The accused were convicted of murder, attempted murder, and robbery with aggravating circumstances. In terms of section 277(1)(a) of the Criminal Procedure Act 51 of 1977, these offences attracted the death penalty, as the provision authorized the imposition of capital punishment upon conviction for murder. Accordingly, the conduct of the accused fell within the scope of this statutory provision, permitting the imposition of the death sentence. 

However, this position was inconsistent with certain provisions of the Interim Constitution. In particular, the imposition of the death penalty constituted an infringement of the accused persons’ right to equality as guaranteed under section 9 of the Interim Constitution.

Section 277 did not constitute a law of general application, which is a prerequisite for any legislation that limits a Chapter Three right. The retrospective application of that provision in South Africa resulted in unfair discrimination between individuals prosecuted in the former Ciskei and those prosecuted elsewhere in the Republic. This disparity infringed the constitutional right to equality before the law and to equal protection and benefit of the law.

An individual’s right to life has been described as “the most fundamental of all human rights”,  and was dealt with in that way in the judgments of the Hungarian

Constitutional Court declaring capital punishment to be unconstitutional. The challenge to the death sentence in Hungary was based on section 54 of its Constitution which provides:

(1) In the Republic of Hungary everyone has the inherent right to life and to human dignity, and no one shall be arbitrarily deprived of these rights.

(2) No one shall be subjected to torture or to cruel or inhuman or degrading punishment.

The right to life, as provided for in section 11, is guaranteed to every individual under section 9 of the Constitution. This constitutional protection is a significant factor in determining whether the death sentence constitutes cruel, inhuman, or degrading punishment within the meaning of section 11(2) of the Constitution. Section11(2) provides information on cruel,  inhuman and degrading punishment. The punishment constitutes a cruel penalty, as the legal process inherently entails prolonged waiting and uncertainty before the sentence is either set aside or carried out, thereby intensifying its cruelty. It also amounts to inhuman punishment, as it inherently involves a denial of the executed person’s humanity. Furthermore, it is degrading in that it strips the convicted individual of all dignity and reduces him or her to a mere object to be eliminated by the State.

In Soering v United Kingdom before the European Court of Human Rights, the majority judgment held that capital punishment is incompatible with the contemporary standards of European civilization. Similarly, in Kindler v Canada before the United Nations Human Rights Committee, committee members B. and Wennergren emphasized the fundamental importance of the right to life.

Section 10 of the Constitution expressly guarantees the right to human dignity, which may be limited only by legislation that satisfies a strict necessity test. Capital punishment constitutes a profound violation of human dignity, a position that has also been affirmed by the Canadian Supreme Court in Kindler v Canada.

Conclusion:

In conclusion, Section 8, which corresponds to Section 33 of our Constitution, stipulates that legislation must not infringe upon the essential substance of fundamental rights. The Court determined that the imposition of capital punishment constitutes a question of that essential content.The Court held that capital punishment irreversibly extinguishes the fundamental rights to life and human dignity, thereby violating the Constitution. The judgment emphasizes two principal considerations. First, it underscores the intrinsic relationship between the rights to life and human dignity, and the paramount importance of these rights when viewed collectively. Second, it affirms the absolute nature of these rights when taken together. In combination, they constitute the foundation from which all other constitutional rights derive.

While other rights may be subject to limitation, suspension, or subsequent restoration, such limitations must ultimately be constrained by the preservation of the interconnected rights to life and human dignity. These rights represent the essential core of all constitutional rights. Their removal renders all other rights meaningless. Although the Constitution’s prohibition against limitations that negate the essential content of a right will be addressed later, it suffices for present purposes to note that the Hungarian Constitutional Court declared capital punishment unconstitutional on the basis that it is incompatible with the rights to life and human dignity.

Accordingly, the idealism affirmed by this judgment does not derive from the personal views of the judges, but rather from the express wording of the Constitution and the foundational values it embodies. Even if, as suggested in the President’s judgment, the framers may have subjectively intended to leave the matter open for judicial determination, the language they ultimately adopted, together with the values they mandated this Court to uphold, decisively forecloses that possibility. In a constitutional instrument concerned with fundamental rights, there can be no ambiguity: the death penalty must either be expressly authorized or it is impermissible. In my view, the values enshrined in section 9 resolve the issue conclusively. The right to life extends to all persons without exception, including those guilty of the most egregious crimes, and it follows that capital punishment is unconstitutional.

REFERENCE(S): 

1. S 277(1) of Criminal Procedure Act 51 of 1977
2. Constitution of the Republic of SA 1993
3. S 277(1) of Criminal Procedure Act 51 of 1977
4. S 9 of Interim Constitution, 1993
5. S 11(2) of Interim Constitution, 1993 
6. S 9 of the Interim Constitution, 1993
7. S11(2)  of the Interim Constitution
8. Interim Constitution , 1993
9. S 277(1) of Criminal Procedure Act 51 of 1977
10. S277(1) of Criminal Procedure Act 51 of 1977
11. S v Zuma and Two Others
12. S277(1) of Criminal Procedure Act 51 of 1977
13. S 9 of Interim Constitution, 1993
14.  S 277 of Criminal Procedure Act
15. S 11(2) of Interim Constitution, 1993
16.  Soering’s v United Kingdom
17. Kindler v Canada
18. S 10 of Interim Constitution, 1993
19. S 33 of Interim Constitution, 1993
20. S 9 of Interim Constitution, 1993