Authored By: Tshepo Joseph Seokgo
University of South Africa
1. Case Citation and Basic Information
S v Makwanyane and Another (CCT3/94) ZACC 3; 1995 (3) SA 391 (CC); 1995 (6) BCLR 665 (CC).
Court: Constitutional Court of the Republic of South Africa. Date of Decision: 6 June 1995.
Judges/Bench Composition: The case was heard by a full bench of eleven judges: Chaskalson P (who authored the lead judgment), Ackermann J, Didcott J, Kentridge AJ, Kriegler J, Langa J, Madala J, Mahomed J, Mokgoro J, O’Regan J, and Sachs J.
2. Introduction
S v Makwanyane is arguably the most significant constitutional judgment in South African history.1 Decided during the country’s transition to democracy, it served as a “historic bridge” between a past defined by strife and injustice and a future founded on the recognition of human rights and democracy.2 The case is a landmark because it unanimously declared the death penalty unconstitutional, marking a decisive break from the previous legal order of parliamentary sovereignty, where the state could enact any law subject only to procedural correctness.3 By striking down capital punishment, the Constitutional Court established that the Constitution is the supreme law, binding all organs of the state and protecting the fundamental rights of even the most marginalised or “social outcasts” in society.4 It further introduced the African concept of ubuntu into South African jurisprudence, signifying a move away from a culture of vengeance and retaliation towards one of reconciliation and humaneness.5
3. Facts of the Case
The two accused, T. Makwanyane and M. Mchunu, were convicted in the Witwatersrand Local Division of the Supreme Court on four counts of murder, one count of attempted murder, and one count of robbery with aggravating circumstances.6 The trial court found that the murders were cold-blooded and committed during a robbery of a bank security vehicle delivering wages to a hospital.7 Consequently, they were sentenced to death on each murder count in accordance with Section 277(1)(a) of the Criminal Procedure Act 51 of 1977, which empowered courts to impose the death penalty for murder.8
The accused appealed their convictions and sentences to the Appellate Division of the Supreme Court. While the Appellate Division dismissed the appeals against the convictions, it postponed the hearing regarding the death sentences.9 This was because the Interim Constitution of 1993 had come into effect after the trial, and the court needed to determine if the death penalty was consistent with the new constitutional order. The matter was thus referred to the newly established Constitutional Court to resolve the constitutional validity of capital punishment.10 At the time of the hearing, no executions had taken place in South Africa since 1989, yet approximately 400 people remained on death row awaiting the resolution of this issue.11
4. Legal Issues
The primary legal question addressed by the Court was whether the death penalty, as sanctioned by Section 277(1)(a) of the Criminal Procedure Act, was consistent with the Interim Constitution.12 Specifically, the Court examined whether capital punishment violated the following rights entrenched in Chapter Three of the Constitution:
- The prohibition against “cruel, inhuman or degrading treatment or punishment” under Section 11(2)
- The unqualified “right to life” under Section 9
- The “right to respect for and protection of… dignity” under Section 10
- The right to “equality before the law” and equal protection under Section 813
A secondary issue involved whether, if such an infringement existed, it could be justified under the general limitations clause in Section 33(1), which required a limitation to be reasonable, justifiable in an open and democratic society, and not negating the essential content of the right.14
5. Arguments Presented
5.1 Arguments for the Accused
Counsel for the accused contended that the death sentence was an infringement of human dignity and inconsistent with the unqualified right to life.15 They argued that the punishment was inherently arbitrary and capricious in its application, as the outcome of a trial often depended on an “element of chance,” including the quality of legal representation, the attitude of the trial judge, and the socio-economic status of the accused.16 They further argued that the penalty was irrevocable, meaning human error could not be corrected once an execution had occurred.17 Finally, they asserted that the disparity in laws — where the death penalty had been abolished in the former Ciskei but remained in the rest of South Africa — violated the right to equality.18
5.2 Arguments for the State (Attorney General)
The Attorney General of the Witwatersrand argued that the death penalty was not cruel, inhuman, or degrading within the meaning of the Constitution.19 He contended that it was a necessary deterrent to violent crime and met society’s need for retribution for heinous offences.20 He cited the “unprecedented” high crime rate in South Africa as a justification for retaining the penalty as an indispensable weapon for law enforcement.21 Additionally, he argued that capital punishment was widely accepted by South African society and recognised in many other parts of the world, including the United States and India. He further claimed that the failure of the drafters to expressly outlaw the death penalty indicated an intention to leave the matter to Parliament.22
5.3 The Government’s Stance
Notably, the South African government, represented by Advocate George Bizos, took a different stance from the Attorney General, accepting that the death penalty was unconstitutional and should be abolished.23
6. Court’s Reasoning and Analysis
6.1 Interpretive Approach and the Nature of the Penalty
Chaskalson P began by adopting a generous and purposive approach to interpretation, aimed at securing the full benefit of constitutional protections for individuals.24 He noted that the Constitution did not specifically mention the death penalty because the drafters had left its constitutionality to be decided by the Court — the so-called “Solomonic solution.”25
The Court found that death is the most extreme and irrevocable form of punishment, describing it as that which “executes a person’s entire humanity.” The “death row phenomenon” — the mental anguish of awaiting execution under conditions of profound uncertainty — was identified as a further factor that compounded this cruelty.26
Chaskalson P concluded that the death penalty annihilates human dignity and treats the convicted person as an object to be eliminated by the state. While Chaskalson P focused primarily on Section 11(2), other judges such as O’Regan J and Sachs J argued that the unqualified right to life was the necessary starting point.27 O’Regan J stated that the rights to life and dignity are “entwined,” as human life is diminished without dignity, and dignity cannot exist without life.28 She rejected the idea that criminals forfeit these rights upon conviction, asserting that the Constitution protects everyone, including the “worst and the weakest.”29 A major pillar of the reasoning was the inevitable arbitrariness in the sentencing process. The Court acknowledged that poverty and race played significant roles; most people on death row were poor and black, often defended by young, inexperienced pro deo counsel, while wealthy accused could afford better legal teams to evade the penalty.30 Ackermann J emphasised that this arbitrariness made the punishment “cruel and inhuman,” as it reduced the legal process to a “sophisticated judicial lottery.”31
6.2 Public Opinion and Ubuntu
The Court addressed the argument that the majority of South Africans supported the death penalty. Chaskalson P held that while public opinion is not irrelevant, it is not decisive. He stated that if popular opinion were the test, there would be no need for constitutional adjudication or the protection of minority rights.32 The Court’s duty is to be an independent arbiter of the Constitution, not to follow public moods.
The Court also heavily invoked the concept of ubuntu, which was mentioned in the epilogue of the Interim Constitution.33 Langa J explained that ubuntu recognises the interdependence of human beings and places a high value on life and dignity, stating that “the life of another person is at least as valuable as one’s own.” Madala J added that ubuntu favours reconciliation and rehabilitation over retribution, and found that the irrevocable nature of the death penalty was inconsistent with these values.34
6.3 The Limitations Analysis
Under the limitations analysis, the state failed to prove that the death penalty was “reasonable and necessary.” The Court found no empirical evidence that the death penalty was a superior deterrent to life imprisonment.35 Chaskalson P poignantly suggested that “more lives may be saved through the inculcation of a rights culture than through the execution of murderers.” Regarding retribution, the Court held that while society’s moral outrage is legitimate, the state should not repeat the murderer’s cruelty. Instead, our society should be one that wishes to prevent crime, not one that seeks to “kill criminals simply to get even with them.”36
7. Judgment and Ratio Decidendi
7.1 Final Decision
The Constitutional Court unanimously declared that Section 277(1)(a), (c), (d), (e), and (f) of the Criminal Procedure Act, and all corresponding laws in the national territory, were inconsistent with the Constitution and therefore invalid.37 The Court prohibited the state from executing any person already sentenced to death and ordered that such persons remain in custody until their sentences were set aside and substituted with lawful punishments.38
7.2 Ratio Decidendi
The legal principle established is that the death penalty is a cruel, inhuman, and degrading punishment that violates the rights to life and dignity.39 It is inherently arbitrary in its application and its deterrent effect is unproven. Because the state could not demonstrate that capital punishment was a more effective deterrent than life imprisonment, it could not be justified as a reasonable or necessary limitation of fundamental rights in an open and democratic society.40
8. Critical Analysis
The Makwanyane judgment is celebrated for its courageous and value-based reasoning, which transformed South Africa’s legal landscape. By prioritising the rights to life and dignity as “the most important of all human rights,” the Court established a hierarchy of values that informs all subsequent constitutional interpretation.41
8.1 Strengths
The Court’s extensive use of comparative law — ranging from the United States and Canada to Hungary and India — demonstrated its intent to align South Africa with global human rights discourse.42 Furthermore, the integration of ubuntu was a masterstroke of transformative constitutionalism, providing a home-grown moral foundation for the new democracy that resonated with the majority of the population.43 The judgment successfully navigated the “hard case” of capital punishment by providing a reasoned, transparent justification that moved the nation away from a “culture of authority” toward a “culture of justification.”44
8.2 Weaknesses and Challenges
Critics and academic commentators such as Klaasen note that the reliance on abstract values like ubuntu and dignity can introduce a measure of subjectivity into adjudication.45 Because these values are not strictly defined, their interpretation may depend on the subjective value systems of individual judges.46 Additionally, the decision was counter-majoritarian, as it flew in the face of a public that likely favoured retention.47 This highlights the ongoing tension between judicial independence and democratic will. Finally, while the Court struck down the death penalty, it acknowledged that the high crime rate remains a pressing concern; the judgment places a heavy burden on the state to find “more humane and effective integrated approaches” to manage the penal system and rehabilitate offenders.48
9. Conclusion
S v Makwanyane remains the cornerstone of South African constitutional law. Its lasting impact is the firm entrenchment of the supremacy of the Constitution and the inviolability of human life and dignity.49 By abolishing the death penalty, the Court set an example for the nation, asserting that the state must be a role model for a society that values humaneness over vengeance.50 The decision has also had a global reach, serving as a tool for litigants in international courts and feeding into a “global ius commune” regarding the interpretation of fundamental rights.51 Ultimately, Makwanyane stands as a “monument to this society’s commitment to a future in which all human beings will be accorded equal dignity and respect.”52
Reference(S):
Legislation
- Criminal Procedure Act 51 of 1977.
- Constitution of the Republic of South Africa, 1996.
- South African Interim Constitution, 1993.
Cases
- S v Makwanyane and Another (CCT3/94) ZACC 3; 1995 (3) SA 391 (CC); 1995 (6) BCLR 665 (CC).
Books / Book Chapters
- Cooper E, ‘The Rights to Dignity and Life’ in UCT Libraries (eds), Constitutional Law for Students (UCT Libraries 2020) https://openbooks.uct.ac.za/uct/catalog/download/25/38/1471?inline=1.
Journal Articles
- Van den Eynde L, ‘The South African Constitutional Court’s death penalty and rendition cases as tools for litigants abroad’ (2016) 49 Comparative and International Law Journal of Southern Africa 370.
- Klaasen A, ‘Constitutional interpretation in the so-called “hard cases”: Revisiting S v Makwanyane’ (2017) De Jure 1..
1 Cooper E, ‘The Rights to Dignity and Life’ in UCT Libraries (eds), Constitutional Law for Students (UCT Libraries 2020) https://openbooks.uct.ac.za/uct/catalog/download/25/38/1471?inline=1.
2 S v Makwanyane and Another (CCT3/94) ZACC 3; 1995 (3) SA 391 (CC); 1995 (6) BCLR 665 (CC).
3 Cooper E, ‘The Rights to Dignity and Life’ in UCT Libraries (eds), Constitutional Law for Students (UCT Libraries 2020).
4 S v Makwanyane.
5 Cooper E, ‘The Rights to Dignity and Life’ in UCT Libraries (eds), Constitutional Law for Students (UCT Libraries 2020).
6 S v Makwanyane.
7 S v Makwanyane.
8 S v Makwanyane.
9 S v Makwanyane.
10 S v Makwanyane.
11 S v Makwanyane.
12 S v Makwanyane.
13 S v Makwanyane.
14 S v Makwanyane.
15 Cooper E, ‘The Rights to Dignity and Life’ in UCT Libraries (eds), Constitutional Law for Students (UCT Libraries 2020).
16 Cooper E, ‘The Rights to Dignity and Life’ in UCT Libraries (eds), Constitutional Law for Students (UCT Libraries 2020).
17 S v Makwanyane.
18 S v Makwanyane.
19 S v Makwanyane.
20 Cooper E, ‘The Rights to Dignity and Life’ in UCT Libraries (eds), Constitutional Law for Students (UCT Libraries 2020).
21 S v Makwanyane.
22 S v Makwanyane.
23 S v Makwanyane.
24 S v Makwanyane.
25 S v Makwanyane.
26 S v Makwanyane.
27 Cooper E, ‘The Rights to Dignity and Life’ in UCT Libraries (eds), Constitutional Law for Students (UCT Libraries 2020).
28 Cooper E, ‘The Rights to Dignity and Life’ in UCT Libraries (eds), Constitutional Law for Students (UCT Libraries 2020).
29 S v Makwanyane.
30 Cooper E, ‘The Rights to Dignity and Life’ in UCT Libraries (eds), Constitutional Law for Students (UCT Libraries 2020).
31 S v Makwanyane.
32 S v Makwanyane.
33 S v Makwanyane.
34 Cooper E, ‘The Rights to Dignity and Life’ in UCT Libraries (eds), Constitutional Law for Students (UCT Libraries 2020).
35 S v Makwanyane.
36 Cooper E, ‘The Rights to Dignity and Life’ in UCT Libraries (eds), Constitutional Law for Students (UCT Libraries 2020).
37 S v Makwanyane.
38 S v Makwanyane.
39 Cooper E, ‘The Rights to Dignity and Life’ in UCT Libraries (eds), Constitutional Law for Students (UCT Libraries 2020).
40 S v Makwanyane.
41 S v Makwanyane.
42 Laura Van den Eynde, ‘The South African Constitutional Court’s death penalty and rendition cases as tools for litigants abroad’ (2016) 49 Comparative and International Law Journal of Southern Africa 370.
43 Cooper E, ‘The Rights to Dignity and Life’ in UCT Libraries (eds), Constitutional Law for Students (UCT Libraries 2020).
44 S v Makwanyane.
45 Abraham Klaasen, ‘Constitutional interpretation in the so-called “hard cases”: Revisiting S v Makwanyane’ (2017) De Jure 1.
46 Klaasen (2017) De Jure 1.
47 S v Makwanyane.
48 S v Makwanyane.
49 S v Makwanyane.
50 S v Makwanyane.
51 Van den Eynde L, ‘The South African Constitutional Court’s death penalty and rendition cases as tools for litigants abroad’ (2016) 49 Comparative and International Law Journal of Southern Africa 370.
52 S v Makwanyane.
