S v Makwanyane and Another 1995 (3) SA 391 (CC)

Introduction

One of the biggest shifts in South African law came through the S v Makwanyane case. In 1995, judges abolished capital punishment guided by the new Interim Constitution. That ruling wiped out death row for good.[1] It turned away from old oppressive ways.  Instead, it established that punishment must comply to the foundational constitutional values of dignity, life, and humanity. Far beyond the sentencing decision, it shaped what kind of country the nation aimed to be. From then on, even laws made by Parliament had to refer to the Constitution first.[2]

Facts of the Case

The accused, Makwanyane and Mchunu were convicted of murder and sentenced to death under section 277(1)(a) of the Criminal Procedure Act 51 of 1977.[3] Back then, taking a life through legal means was still acceptable in cases of grave offenses. However, change was already stirring as South Africa had introduced its Interim Constitution in 1993. This Constitution laid out a firm ground for a Bill of Rights that protects, inter alia, the right to life,[4] the right to human dignity,[5] and the right not to be subjected to cruel, inhuman or degrading punishment.[6] The matter then landed at the Constitutional Court, where the court had to determine whether capital punishment complied with those protected rights.[7]

Legal Issues

What caught the court’s attention first was whether taking a life through execution clashed with the basic right to life.[8] Another question the court had to look at was whether capital punishment infringed the right to dignity and constituted cruel, inhuman, or degrading punishment.[9] The Court was further required to determine whether such infringements could be justified under the limitation clause of the Interim Constitution.[10] Additional issues included whether deterrence and retribution justified capital punishment and whether public opinion could influence constitutional interpretation.[11]

Court’s Reasoning

The Constitutional Court unanimously held that the death penalty was unconstitutional.[12] In interpreting the right to life, it described it as “the most important of all human rights.”[13] It found that, when a government chooses to take that life on purpose, it goes against what the Constitution is meant to uphold.[14]

The Court’s emphasis was mainly on dignity as a foundational constitutional value.[15] It reasoned that dignity travels with each person all the time and everywhere, even past wrongdoing, and no state action can undo it.[16] When execution removes humanity from the equation, what remains is less justice.[17]

In addressing the disallowing of cruel, inhuman or degrading punishment, the Court considered the psychological trauma surrounding death row. These traumas included its uncertainty surrounding execution and the fact that it cannot be undone.[18] These reasons made court conclude that capital punishment is inherently cruel and against constitutional values.[19]

The state claimed the death penalty worked to prevent crime, also delivering justice through punishment.[20]  However, the court did not find any convincing proof that it stopped crimes better than locking someone up forever.[21] Even if deterrence were established, rights under the constitution wouldn’t vanish just because someone claimed it useful.[22]

The Court also rejected reliance on public opinion, stating that what people believe at a moment shouldn’t decide foundational freedoms.[23] Courts have the duty to stand by the nation’s charter regardless of how many disagree when it happens.[24] International law and comparative jurisprudence were considered in interpreting constitutional rights, consistent with the constitutional directive to have regard to international law.[25] The Court noted that more places around the world are moving away from using the death penalty.[26]

Judgment and Ratio Decidendi

The Court ruled that section 277(1)(a) of the Criminal Procedure Act was unconstitutional and invalid.[27] It concluded that the death penalty violates the rights to life and dignity. It also stated that it constitutes cruel, inhuman, and degrading punishment, and that such violations cannot be justified under the limitation clause of the Constitution. This principle permanently abolished capital punishment in South Africa.

Impact on Death Row Law

The immediate effect of the judgment was that the courts stopped using execution as a penalty and adjusted all pending death sentences.[28] Suddenly, holding people on death row had no legal ground to stand on.  From that point forward, life imprisonment became the most severe punishment anyone could face under the country’s laws. The ruling affirmed constitutional supremacy and established that Parliament cannot authorise punishments that are inconsistent with constitutional rights.[29]

Beyond the legal consequences, the judgment had a deep social and psychological impact. It nudged to question old beliefs about fairness and retaliation and whether the state should act like the criminals it condemns. The abolition of the death penalty changed how laws evolved afterward, shaping court rulings by offering a clear standard. It influenced later legislation and judicial decisions when assessing whether other punishments and state actions violate any human rights.[30]

Critical Analysis

What stands out in Makwanyene is how firmly it upholds values rooted in the Constitution. One of its greatest strengths lies in its protection against irreversible miscarriages of justice. Mistakes happen within legal processes, even serious ones like convicting someone wrongly. Removing the death penalty meant no one would face execution by mistake. This significantly strengthens the moral legitimacy of the justice system.[31]

However, people have criticised the judgment. They argue that banning the death penalty leaves the state powerless when facing brutal acts like serial killings or violent sexual assault. For them, locking someone away forever might not match how deeply society rejects such cruelty. Critics contend that the removal of capital punishment restricts the State’s punitive options.

Another criticism points to how far the courts might be drifting from what ordinary people feel. Back then, plenty of South Africans stood behind the death penalty, seeing it as a way to scare others straight. When rulings ignore those views, trust in fairness under the law risks slipping away, according to some observers. Some criminologists also suggest that staying locked up forever can turn into something predictable, even bearable, unlike facing sudden execution, which means punishment loses its sting over time.[32]

Nevertheless, the Court’s reasoning reflects a deliberate commitment to core principles rather than knee-jerk punishments. The judgment insists that the State should not become what it condemns.[33] Through focusing on dignity and life, the Court drew a firm line and established that state authority ends where intentional killing begins.

Some scholars also argue that Makwanyane carries a sense of restoration beneath its surface. Removing the death penalty meant the Court quietly insisted that basic human dignity remains, no matter how terrible the act, making space for regret, change, or inner reckoning. Still, some view the ruling as too dreamlike, arguing noble principles can stumble when faced with daily violence, particularly where crime runs deep. Even so, courts keep returning to it, treating the decision like an anchor in South Africa’s legal landscape.[34]

Conclusion

The ruling in S v Makwanyane significantly changed South Africa’s criminal law by disallowing the death penalty and dismantling the death row system. The court emphasised that every person matters and established that dignity and life are foundational constitutional values. The ruling also reinforced constitutional supremacy.

While debate continues regarding its implications for the punishment of heinous crimes, the ruling stands as proof of how deeply South Africa values justice within a system built on human rights. Though questions linger about consequences for terrible acts, this decision draws a clear line under what kind of nation they aim to be. It also serves as a lasting reminder that the legitimacy of the state rests not in mirroring violence but in upholding humanity and morality, even when faced with society’s most difficult ethical dilemmas. In doing so, Makwanyane remains a landmark case, a moral and legal compass pointing toward a justice system rooted in rights, dignity, and the sanctity of human life.

Reference(S):

[1] S v Makwanyane 1995 (3) SA 391 (CC).

[2] ibid para 46.

[3] ibid para 3.

[4] Constitution of the Republic of South Africa Act 200 of 1993 (Interim Constitution) s 9.

[5] ibid s 10.

[6] ibid s 11(2).

[7] Makwanyane (n 1) para 4.

[8] ibid para 144.

[9] ibid para 95.

[10] ibid para 104.

[11] ibid paras 88–89.

[12] ibid para 348.

[13] ibid para 144.

[14] ibid para 145.

[15] ibid para 327.

[16] ibid para 329.

[17] ibid para 328.

[18] ibid para 95.

[19] ibid para 94.

[20] ibid para 96.

[21] ibid para 126.

[22] ibid para 127.

[23] ibid para 88.

[24] ibid para 89.

[25] ibid para 35.

[26] ibid para 37.

[27] ibid para 348.

[28] ibid para 349.

[29] ibid para 46.

[30] See Cameron E, Justice, Revenge, and the Death Penalty in South Africa (1996) 112 South African Law Journal 1; Liebenberg S, Socio-Legal Implications of the Abolition of Capital Punishment (1997) 13 South African Journal on Human Rights 233.

[31] See also discussion in L Ackermann, Human Dignity: Lodestar for Equality in South Africa (Juta 2012).

[32] See Centre for the Study of Violence and Reconciliation, Public Opinion and the Death Penalty in South Africa (1995) 12 South African Journal of Criminal Justice 45; Van Zyl Smit D, The Abolition of the Death Penalty in South Africa: Constitutional Values vs Public Opinion (1996) 13 South African Law Journal 375.

[33]  Makwanyane (n 1) para 262 (Mahomed DP).

[34] See Liebenberg S, The Protection of Human Dignity in South African Constitutional Law (2002) 18 South African Journal on Human Rights 1; S v Makwanyane and Another 1995 (3) SA 391 (CC) para 351 (Chaskalson CJ) (noting the emphasis on dignity and humanity even for those convicted of serious crimes).