S v Makwanyane

Case Name: S v Makwanyane

 Case No.: CCT/3/94

Delivered: 6 June 1995

Citation: 1995 (3) SA 391 (CC).

Brief Introduction

The South African Constitution has changed the legal framework to one that upholds human rights in all circumstances.[1] This is evident in the adjudication of crimes, which leads us to ponder, “In a world where a sanction for contravention is acknowledged, to what extent can it be applied in the pursuit of justice?” S v Makwanyane is a landmark case in South Africa for matters related to the protection of prisoners’ rights, namely, the rights to life and human dignity. This case serves as precedent for matters in which a person’s right to life is subject to infringement to the extent that it contradicts the constitutional values entrenched in section one of the Constitution. Although the decision was delivered in a criminal matter, it is applied uniformly throughout the South African legal system. It has been significant in the development of the common law and legislation, as it abolished the death penalty as a sanction in the courts. This case is an epitome of transformative constitutionalism.

Facts of the Case

This is a criminal matter in which the state was opposing Thandokuhle Makwanyane and Matebula Mchunu as the accused. The two accused were convicted of four counts of murder, one count of attempted murder, and one count of armed robbery. Aggravating factors accompanied these grounds of conviction. Consequently, they were sentenced to death on all 4 counts of murder and to lengthy imprisonment periods for the other counts of conviction. The sentence of death was afforded by section 277(1)(a) of the Criminal Procedure Act (CPA).[2] This was done in the Witwatersrand Local Division; however, they appealed to the Appellate Division, challenging the provision’s constitutionality. The appellate division dismissed the appeals on the counts of attempted murder and robbery, concurred with the court aquo, stating that their conduct warrants the most severe sanctions applicable under the law.

Subsequently, the court postponed the hearing for the appeals on the death sentence, subject to the Constitutional Court’s decision on the constitutionality of section 277(1)(a) of the CPA.

The Counsel for the accused was then invited by the Appellate Division to evaluate the constitutionality of the CPA provision, in accordance with the interim Constitution of South Africa (1993). Succeeding the invite, the counsel concluded that the provision was indeed unconstitutional as it infringed upon sections 9 and 11(2) of the interim constitution.[3] The court acknowledged that the Constitutionality of section 277(1)(a) could not be tested in the trial court because the interim constitution only commenced after the trial had been completed.

III. Legal Issues

There were various legal issues that the court had to determine in this matter.

These include:

1. Whether section 277(1)(a) of the Criminal Procedure Act violates sections 9, 10, and 11(2) of the Interim Constitution.
2. Whether section 277(1)(a) of the CPA was inconsistent with the constitutional values.
3. Additionally, whether the death penalty was applied arbitrarily or consistently.
4. Lastly, whether the death penalty is justified as a deterrent to crime, and whether it is within the scope of section 33 of the Constitution.

The Legal Principles Interpreted under the Interim Constitution

Section 9: “Every person has the right to life”

Section 10: “Every person has the right to respect for and protection of his or her dignity”

Section 11(2): “No person shall be subject to torture of any kind, whether physical, mental or emotional, no person shall be subjected to cruel, inhuman or degrading treatment or punishment”

Section 33: “The general limitation clause, which allowed rights to be limited by law of general application, provided such limitation was reasonable and justifiable in an open and democratic society based on freedom and equality.”

The Arguments Presented

The State

The state argued that the two accused be sentenced to the death penalty on each count of murder, after finding the two accused guilty. They further asserted that the sanction of the death penalty is legal in terms of section 277(1)(a) of the CPA, and it should be applied as a deterrent to the crimes committed by the accused. Lastly, they argued that lengthy imprisonment should be imposed for the other charges of attempted murder and robbery as relevant sanctions for the crimes committed.

The Accused

The accused argued that the sanction of the death penalty caused a direct and unjustified infringement on their rights to life and human dignity as ascertained in sections 9 and 10 of the interim constitution. Another argument was that section 277(1)(a) of the CPA is unconstitutional to the extent that it contradicts section 11(2) of the Constitution.

Court’s Reasoning and Analysis

The court considered the first legal issue, which is the constitutionality of section 277(1)(a) of the CPA. The court analysed the purpose of the provision and the extent to which it should be applied. It was found that the provision was adopted as a means of deterring criminal activities and instilling peace in society. The act was enacted in 1977, which was a time when human rights were not prioritised. In their interpretation of the Constitution, the court considered the case of S v Zuma and Two Others,[4] which outlines that, for the effective interpretation of the provisions entrenched in Chapter 3, the court must be “generous” and “purposive”. Subsequently, they found that, in terms of section two, all constitutional provisions prevail against legislation that is inconsistent with it.

Furthermore, the court determined that, had it been provided whether the death penalty is not competent, or that it is permissible in certain circumstances sanctioned by the law, there would be more practicality for the application of legal principles. Due to this, the court had to interpret every case on its own discretion. In this matter, the court decided that the death penalty was indeed applied arbitrarily, which might affect legal certainty.

Moreover, the court acknowledged the purpose of the death penalty; however, its implementation does not reflect the changing values of society, as it was adopted in the apartheid regime.

The Court rejected the state’s argument on the imposition of the death penalty for its gruesome nature and accepted the argument of the accused on the unconstitutionality of section 277(1)(a) of the CPA. This provision was not applied uniformly, as there were many pending cases in the Ciskei division. By imposing the death penalty in this matter, it would cause an infringement of the right to equality in accordance with section 8 of the Constitution. Therefore, the provision must be applied consistently or not applied at all.

In summary, the court found the CPA provision to be unjustifiably infringing on the rights of the accused and thus unconstitutional. In terms of section 33, the provision unjustifiably limits the right to life of the accused and is therefore unconstitutional. This was the court’s exercise of its power to declare legislation unconstitutional and invalid to uphold constitutional values.

VII. Judgement and Ratio Decidendi

The Decision

As a result of the adjudication, the court ruled on each legal issue. On the first issue, the court found that section 277(1)(a) was indeed unconstitutional and that its violent nature was inconsistent with section 11(2) of the Constitution. On the second issue, it was determined that the provision contradicts constitutional values because it does not reflect the transformative goal South Africa aims to achieve. Third, the provision was deemed to be applied arbitrarily and thus ineffective, as it undermines legal certainty. Finally, the court concluded that, regardless of its intended purpose to deter criminal activity, the provision remains incompatible with the Constitution and is therefore invalid. The Appeal was upheld by the Constitutional Court for the protection of human rights. This decision set a precedent for the abolishment of the death penalty in legislation and in practice. In conclusion, the accused were sentenced to prison time as opposed to the initial sentence of a death penalty.

Ratio Decidendi

The Court held that the death penalty does not suffice as a retributive measure; it only promotes capital punishment and should be abolished. The ratio decidendi is that the death penalty directly and unjustifiably infringes on the right to life and cannot be applied in the justice system due to its inhumane nature.

VIII. Critical Analysis

This case introduces the notion of adjudicating criminal cases with the principle of decolonizing the law and protecting human rights. The precedent set in this case is that a court may decide on the sentence of an accused, but the sanction must not compromise the rights of the accused. This has been criticised by many scholars, who argue that the principle exists but is not implemented in practice. This is evident in Nortje’s article, where she states that South Africa has not done enough to formally address decolonisation in the criminal justice system.”[5] This asserts that although in this Makwanyane case it was outlined how to approach sentencing in respect of human rights, it is less evident in practice and more acknowledged in writing.

Furthermore, the decision in this court has impacted the legal framework in the creation and implementation of the law. The principle of Ubuntu has been followed in recent cases ever since it was landmarked in S v Makwanyane. This is evident in the case of S v Ntinga,[6] adjudicated in the KwaZulu-Natal division, wherein the court considered the principle of Ubuntu before sentencing the accused. Had this decision been made before the development of the principle, the sentence would most likely be of a degrading nature. Additionally, in their article, Himonga, Taylor, and Pope state that “Seventeen years later it is possible to trace the central strands of the subsequent development of the interpretation of ubuntu back to the remarks made in this ruling.”[7] This evidence suggests that the decision of the case altered the judicial framework in interpreting legislation and in awarding a  fair sentence.

Lastly, the court decision has been integral in the development of the law and the ascertainment of Ubuntu in the application of the law. The law has shifted from a colonial and inhumane regime towards reflecting the changing values of society, uniformly so in the entire legal system. Particularly, the decision of the Makwanyane case has changed the interpretation of the law in South African courts and has resulted in more certainty and fairness in serving justice.

Conclusion

This Judgement has set a standard that prevails above all decisions regarding human rights. In every criminal matter succeeding S v Makwanyane, the court must remain cognizant of awarding a sentence that does not appear inhumane and degrading but reflects the protection of human rights in the pursuit of justice. There are still implementation challenges, which the courts continuously address and is also reflected through the adoption of legislation.

Bibliography

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

S v Zuma and Others 1995 (2) 642 (CC)

Interim Constitution of the Republic of South Africa 1993

Criminal Procedure Act 1977, s277(1)(a)

Nortje W ‘Decolonizing the South African Criminal Justice System: Towards a Critical Approach to the Use of Ubuntu in Sentencing.’ 2024 PER 62

S v Ntinga and Another 2025 ZAKZPHC 33

C Himonga, M Taylor, and A Pope ‘Reflections of Judicial Decision on Ubuntu’ 2013 PER 67

[1] Interim Constitution of the Republic of South Africa 1993.

[2] Criminal Procedure Act 1977 s277(1)(a).

[3] n1 s9 and 11(2).

[4] S v Zuma 1995 (3) 642 (CC).

[5] Nortje W ‘Decolonizing the South African Criminal Justice System: Towards a Critical Approach to the Use of Ubuntu in Sentencing” 2024 PER 62 (Para 11).

[6] S v Ntinga and Another 2025 ZAKZPHC 33.

[7] Himonga, Taylor, and Pope ‘Reflections on Judicial Views of Ubuntu’ 2013 PER 67.