The Constitutional Abolition of the Death Penalty in South Africa: S v Makwanyane

Case Citation and Basic Information

Full case name: S v Makwanyane and Another
Citation: CCT/3/94, 1995 (3) SA 391 (CC); 1995 (6) BCLR 665 (CC)
Court: Constitutional Court of South Africa
Hearing dates: 15–17 February 1995
Date of decision: 6 June 1995
Judges: Chaskalson P, Langa J, Mahomed J, Ackermann J, Kentridge AJ, Madala J, Sachs J, Kriegler J, Mokgoro J, O’Regan J and Didcott J

Introduction

The judgment in S v Makwanyane and Another¹ was handed down during a pivotal transition away from apartheid’s authoritarian legacy toward a constitutional democracy grounded in human rights. Under the apartheid system, the death penalty formed part of a criminal justice framework built on systemic inequality. The introduction of the Interim Constitution of 1993² marked a decisive break from this prior legal order by enshrining fundamental rights for all persons.

Against this transformative backdrop, the central constitutional question was whether the death penalty was compatible with the newly established Interim Constitution and its protection of fundamental rights. The death penalty had historically been applied disproportionately against marginalised groups. The new constitutional order provided the framework to challenge this practice, and the Constitutional Court ultimately declared capital punishment unconstitutional on the basis that it violated fundamental rights. This case is significant because it established a normative framework for the constitutional interpretation of fundamental rights in post-apartheid South Africa.

This case is a landmark judgment because it established new constitutional principles, had broad societal impact, and overruled the prior legal order that had permitted executions. It is a cornerstone of South African constitutional jurisprudence, affirming foundational values in a transformative legal order.

Facts of the Case

The two accused, Makwanyane and Mchunu, were convicted on four counts of murder, one count of robbery with aggravating circumstances, and one count of attempted murder. Both accused were found guilty on all counts. Given the circumstances of the murders, the state — as respondent — maintained that the offences were of a grave nature and that the accused ought to receive the harshest sentence available. The Criminal Procedure Act 51 of 1977³ permitted the death penalty for certain offences, including murder. The two accused appealed their convictions to the Appellate Division; however, the death sentence was upheld and they were to be executed.

The trial took place prior to the enactment of the Constitution of 1993, which introduced the Bill of Rights protecting individuals from cruel punishment. The Constitution of 1993 came into force before sentence was passed by the trial court. When the matter came before the Constitutional Court, the gravity of the accused’s offences was not the sole question before the court, as the matter had become a constitutional inquiry with broader implications beyond the accused’s individual offences.

Amici curiae (friends of the court) — including the Human Rights Commission — assisted the court with a broader international and constitutional law perspective on the death penalty. The constitutionality of the Criminal Procedure Act provision was then scrutinised as to whether it was consistent with the newly established Constitution of 1993.

The Constitutional Court was required to determine whether the death sentence was consistent with the new constitutional rights, notwithstanding that it had been authorised by the criminal law already in existence. Regardless of the seriousness of the offences, the new constitutional order was applied to determine whether such punishment was compatible with fundamental rights. The legal issue was therefore whether the death penalty, as authorised under criminal law, was compatible with the rights to human dignity and life. This case thus became a landmark constitutional challenge arising from what had begun as an ordinary criminal proceeding.

Legal Issues

Issue 1: Whether capital punishment constituted degrading, inhuman and cruel treatment in violation of the protections afforded by the Interim Constitution of 1993.

Issue 2: Whether the provision of the Criminal Procedure Act authorising the death penalty was fair and just.

Issue 3: Whether the provision authorising the death penalty was consistent with the Constitution of South Africa.

Arguments Presented

Appellants’ Arguments

The appellants challenged the death penalty on the grounds that execution would violate their right to life. They argued that alternative forms of punishment — such as life imprisonment — could serve the same penological purpose.

The appellants relied on sections 8, 9 and 10 of the Interim Constitution (Right to Equality, Right to Life, and Right to Human Dignity), contending that the death sentence, influenced as it had been by racial considerations, violated these protections. Section 11(2) was also invoked, as it afforded individuals freedom from cruel, inhuman and degrading punishment.

Both international and comparative precedents were cited. The appellants relied on Furman v Georgia,⁴ which held that the death penalty as applied was unconstitutional and constituted cruel punishment. They also invoked international human rights instruments reflecting a global trend toward the abolition of the death penalty.

Respondents’ Arguments

The respondents argued that while the Interim Constitution protected fundamental rights, it did not specifically prohibit the death penalty. They maintained that execution was a necessary consequence of the particularly cruel crimes committed by the appellants.

The state relied on the Criminal Procedure Act 51 of 1977, which was already in force and which authorised the imposition of the death penalty for violent crimes. The state further maintained that majority public opinion supported the death penalty and that this should be considered a legitimate societal expression. They also argued that the death penalty served as a deterrent for serious crimes, and was accordingly lawful under the existing statutory framework.

Court’s Reasoning and Analysis

Interpretation of Law

The Constitutional Court adopted a value-based approach to constitutional interpretation. The court interpreted the limitations clause to determine whether the death penalty was justifiable. The court emphasised that the Bill of Rights must be interpreted in an open and democratic manner. The judges ruled that the rights to dignity and life required a broad interpretation, and to ensure alignment with human rights values, foreign case law and international human rights norms were considered. The court held that constitutional interpretation required legal rights and principles as its guide, rather than public opinion.

Application of Precedents

The court referred to Gregg v Georgia⁵ to highlight the ongoing debate on whether the death penalty constituted cruel punishment. That case held that punishment must follow strict procedural guidelines. The court did not, however, adopt its conclusions, as they were inconsistent with the new interim constitutional order.

Evaluation of Arguments

Arguments rejected:

• The public majority’s support for the death penalty was rejected. The fundamental rights introduced by the new Constitution were designed to protect every individual from cruel punishment, and the court affirmed that public opinion could not override constitutional obligations.
• The argument that the death penalty was justified as punishment for offenders was rejected, as it violated the rights to human life and dignity. The court held that punishment must correspond with constitutional rights.

Arguments accepted:

• The court accepted that the constitutional rights to dignity and life were foundational to the new interim constitutional order, and that every individual was entitled to protection against violations of those rights.
• The court accepted that the death penalty caused irreversible suffering, and that human dignity and life were of paramount importance under the constitutional framework.

Legal Reasoning

The court established a clear approach to constitutional interpretation, determining that the values underpinning the Constitution — particularly the prohibition of inhuman punishment — had to inform the analysis of the legal issues. The court evaluated whether the punishment was cruel and violated fundamental rights, drawing on global human rights standards and comparative international case law. These authorities assisted the court in applying the limitations clause and in assessing whether the restriction on rights was reasonable. The court held that the limitation was not justifiable: the punishment was severe, and there was no evidence that it was more effective as a deterrent than alternative forms of punishment.

Having considered and disposed of the counterarguments discussed above, the court concluded that the death penalty could not be justified on any constitutional basis. The final decision was that capital punishment was unconstitutional.

Balancing of Interests

The court was required to balance the interests of those in favour of and those opposed to the death penalty. It held that regardless of the severity of the crime, fundamental constitutional rights were to be protected and could not be displaced by utilitarian considerations or public sentiment.

The Decision

What was decided:

With respect to the limitations clause, the court ruled that the limitation of rights was not reasonable, as it infringed constitutionally protected rights. Public opinion was held to be irrelevant to this analysis. Under section 9 (Right to Life) and section 10 (Right to Dignity), the court ruled that the death penalty was inconsistent with constitutional values and violated the right to life and human dignity. The death penalty was found to be inhuman, degrading and cruel, inflicting trauma and irreversible suffering. The court declared the death penalty unconstitutional and held that no justification could be advanced to make it valid.

The appeal was allowed. The Constitutional Court upheld the constitutional challenge and set the death sentences aside, ruling in favour of Makwanyane and Mchunu. The relief granted was a declaration that the death penalty was unconstitutional and invalid. The judgment effectively abolished capital punishment in South Africa.

Ratio Decidendi:

The court held that the rights to human dignity, life, and freedom from inhuman, degrading or cruel punishment — enshrined in sections 9, 10 and 11(2) of the Interim Constitution — were violated by the death penalty. The ratio decidendi is that capital punishment is unconstitutional and that no justification is sufficient to override these fundamental rights.

Critical Analysis

Significance of the Decision

Through this case, it became clear that any law inconsistent with the Constitution would be invalid. The establishment of a justiciable Bill of Rights was a gateway to a democratic country committed to protecting human rights; accordingly, the court affirmed that public opinion could not serve as a substitute for constitutional law. This case reshaped South Africa’s approach to punishment and introduced alternative, more humane forms of criminal sanction. The abolition of capital punishment brought an end to unjust laws that had disproportionately burdened marginalised communities under the guise of justice.

The case clarified that punishment must be consistent with the Constitution, subject to a broad interpretation of rights and a proper application of the limitations clause. The existing criminal law provision was found to be inconsistent with the new Interim Constitution and was accordingly declared constitutionally invalid.

The new principles established were the supremacy of the Constitution and the centrality of fundamental rights — principles that together rendered the death penalty unconstitutional.

Implications and Impact

To this day, no court may impose capital punishment, as the Interim Constitution — and the final Constitution that followed — bind all courts and organs of state. The abolition of capital punishment led to the development of alternative forms of sanction, including rehabilitation-focused sentencing. This decision affected the state (Parliament, the judiciary, and all courts) as well as every individual in South Africa.

Critical Evaluation

The court’s adoption of a value-based approach to constitutional interpretation gave primacy to fundamental rights. Its independence from majority opinion strengthened the judgment: the court affirmed that public opinion was not determinative and could not serve as a substitute for constitutional law. The use of comparative and international law played a valuable role in examining how other jurisdictions had approached the death penalty, reinforcing the transition to a democratic nation guided by constitutional values.

A counterargument is that judicial authority may have prevailed over what the majority of citizens — those most directly affected by violent crime — supported. Furthermore, the limitations clause analysis did not engage with whether the death penalty might be justifiable if applied uniformly, rather than selectively against certain groups. The court did not assess whether there existed any circumstances that could justify capital punishment, as its overriding concern was the protection of human rights.

A further critique is that the court did not sufficiently consider the perspective of victims of violent crime. In the case of murder, offenders deny their victims the very right to life that the court sought to protect for the accused. Rather than focusing exclusively on the rights of offenders, the court could have engaged more thoroughly with the rights and interests of victims, particularly given that violent crime causes equivalent suffering to those on the receiving end.

Conclusion

Summary: Prior to the Interim Constitution, South Africa operated under an apartheid authoritarian framework that included capital punishment as an instrument of the criminal justice system. The Constitution of 1993 provided the basis for declaring the death penalty unconstitutional, as it violated fundamental rights. This judgment comprehensively abolished capital punishment, which had been imposed disproportionately on marginalised groups.

Key Takeaway: Regardless of majority opinion, the court has an obligation to consider and protect every individual’s fundamental rights. Capital punishment was found to inflict irreversible harm inconsistent with constitutional values. The Constitutional Court’s judgment fundamentally reshaped South Africa’s legal and moral framework.

Lasting Impact: The judgment endures as a landmark decision that abolished capital punishment and placed fundamental rights at the centre of the constitutional order.

Future Implications: An unresolved question remains: in prioritising the protection of offenders’ rights, did the court adequately engage with the rights of victims? Victims do not only need support after the fact — they require proactive legal protection as well. Future jurisprudence may need to address the tension between the rights of offenders and the rights and interests of those who suffer harm at their hands.

Closing Note: This landmark judgment redefined what constitutes appropriate punishment in South Africa. Through the abolition of capital punishment and the centering of human rights in constitutional adjudication, the court transformed the nation’s legal landscape in a manner whose influence endures to this day.

Reference(S):

Cases

S v Makwanyane and Another 1995 (3) SA 391 (CC); 1995 (6) BCLR 665 (CC).

Furman v Georgia 408 U.S. 238 (1972).

Gregg v Georgia 428 U.S. 153 (1976).

Legislation

Constitution of the Republic of South Africa Act 200 of 1993 (Interim Constitution) ss 8, 9, 10, 33.

Criminal Procedure Act 51 of 1977 s 277.

Internet Sources

http://www.saflii.org/za/cases/ZACC/1995/3.html (accessed 23 March 2026).

Footnote(S):

¹ S v Makwanyane and Another 1995 (3) SA 391 (CC); 1995 (6) BCLR 665 (CC).

² Constitution of the Republic of South Africa Act 200 of 1993 (Interim Constitution) ss 8, 9, 10, 33.

³ Criminal Procedure Act 51 of 1977 s 277.

⁴ Furman v Georgia 408 U.S. 238 (1972).

⁵ Gregg v Georgia 428 U.S. 153 (1976).