S v Makwanyane and Another (1995)

ABSTRACT:

This case note examines the landmark judgment of S v Makwanyane and Another 1995 (3) SA 391 (CC), in which the South African Constitutional Court abolished the death penalty and entrenched dignity, life, and equality as foundational constitutional values. It outlines the factual background, identifies the central issues, and analyses the Court’s reasoning, ratio decidendi, and obiter dicta. The note critically evaluates the judgment’s reliance on dignity as a guiding principle, its rejection of public opinion as a determinant of rights, and its comparative engagement with international jurisprudence. By situating Makwanyane alongside cases such as Furman v Georgia, Kindler v Canada, and Puttaswamy v Union of India, the analysis demonstrates the case’s global significance. The conclusion reflects on its enduring legacy as a model of transformative constitutionalism, highlighting its contribution to both South African democracy and international human rights discourse.

INTRODUCTION:

The judgment in S v Makwanyane and Another 1995 (3) SA 391 (CC) is widely regarded as one of the most influential constitutional decisions in South Africa and a landmark in comparative constitutional law. Delivered by the newly established Constitutional Court, it abolished the death penalty and entrenched dignity, life, and equality as foundational values of the democratic order. The case is significant not only for its domestic impact but also for its comparative engagement with international jurisprudence, situating South Africa within a global human rights discourse.[1]

ROADMAP

This case note proceeds in a structured manner. It begins by setting out the factual background of S v Makwanyane and identifying the central constitutional issues raised. It then outlines the arguments advanced by both the appellant and the State before examining the Court’s reasoning in detail. The ratio decidendi and obiter dicta are highlighted to distinguish binding principles from broader observations. A critical analysis follows, situating the judgment within South African constitutional jurisprudence and engaging with comparative perspectives from the United States, Canada, and India. Finally, the note concludes by reflecting on the enduring legacy of Makwanyane, both domestically and internationally, and its contribution to transformative constitutionalism.

FACTS:

Before 1993, the death penalty was a lawful sanction under the Criminal Procedure Act in South Africa. Makwanyane and Mchunu were convicted of murder and sentenced to death in accordance with this law. In 1993, the Interim Constitution was adopted, introducing a Bill of Rights that guaranteed dignity, life, and freedom from cruel, inhuman, or degrading treatment or punishment.[2] Following this constitutional change, the appellants challenged the validity of the death penalty provisions, arguing that they were inconsistent with the newly entrenched rights.[3] This challenge was historically significant because it was among the first opportunities for the Constitutional Court to assert its authority under the Interim Constitution, setting the tone for how entrenched rights would be interpreted in practice.

ISSUES:

The Constitutional Court was tasked with determining whether the death penalty violated the rights to life and dignity, whether capital punishment constituted cruel, inhuman, or degrading punishment under the Interim Constitution, and whether public opinion and crime control considerations could justify its retention under the limitations clause.[4]

ARGUMENTS:

The appellants contended that capital punishment was irreconcilable with the values enshrined in the Interim Constitution. They argued that the death penalty violated the rights to life and dignity, undermined equality, and was incompatible with the democratic transformation envisioned by the new constitutional order. In their view, the right to life was absolute and could not be curtailed by state-sanctioned killing, while the principle of dignity required that every individual be treated as an end in themselves rather than as a means to deterrence or retribution. By contrast, the State defended the constitutionality of the death penalty on the grounds that it served the purposes of deterrence and retribution. It maintained that public opinion strongly favoured retention of capital punishment and that constitutional rights could be limited in the interests of crime control and public safety.[5]

COURT’S REASONING:

Chief Justice Chaskalson, writing for a unanimous Court, emphasised that constitutional rights are not subject to majority opinion.[6] He reasoned that the Constitution was designed to protect fundamental rights even against popular sentiment. The Court drew extensively on comparative jurisprudence, including U.S cases such as Furman v Georgia and Gregg v Georgia, Canadian cases like Kindler v Canada, and international human rights instruments.[7] It concluded that capital punishment is inherently cruel and degrading, violating the rights to life and dignity.

The court also emphasised that constitutional interpretation must be purposive, aimed at giving effect to the values underlying the Bill of Rights. In doing so, it rejected narrow textual readings and insisted that the Constitution be understood as a living document, capable of guiding South Africa’s transition from authoritarianism to democracy.

The Court placed dignity at the centre of constitutional interpretation, rejecting authoritarian approaches that subordinated rights to state power.[8] It held that deterrence and retribution could not justify a punishment that extinguished life and undermined human dignity. Importantly, the Court rejected the argument that public opinion should determine constitutional interpretation, noting that rights exist precisely to protect individuals against majoritarian impulses.[9]

RATIO DECIDENDI:

The death penalty was declared unconstitutional because it violated the rights to life and dignity and constituted cruel, inhuman, and degrading punishment.[10]

OBITER DICTA:

The Court observed that constitutional interpretation must evolve with democratic values and that public opinion cannot override fundamental rights.[11] It also noted that the abolition of the death penalty aligned South Africa with international human rights standards, reinforcing its commitment to dignity and equality.

CRITICAL ANALYSIS:

The Makwanyane judgment is a model of transformative constitutionalism.[12] It asserted constitutional supremacy over legislative policy and public opinion, demonstrating the Court’s willingness to take principled stands in the early years of democracy. Its reliance on dignity as a foundational value has influenced subsequent jurisprudence and comparative constitutional law globally.[13]

This emphasis on dignity has had ripple effects across socio-economic rights cases, where courts have relied on Makwanyane to justify expansive readings of housing, health, and equality provisions. The case thus not only abolished the death penalty but also provided a jurisprudential anchor for later decisions that sought to advance substantive equality and social justice in post-apartheid South Africa.

Comparatively, the reasoning resonates with the U.S. Supreme Court’s decision in Furman v Georgia (1972), which temporarily invalidated the death penalty due to its arbitrary application. While the U.S. later reinstated capital punishment in Gregg v Georgia (1976), the South African Court’s categorical abolition demonstrates a stronger commitment to human dignity.[14] In Canada, Kindler v Canada (Minister of Justice) [1991] upheld the extradition to face the death penalty, but later jurisprudence shifted toward stronger human rights protections.[15] In India, Justice K.S. Puttaswamy (Retd.) v Union of India (2017) similarly elevated dignity and privacy as fundamental rights.[16] Both judgments illustrate how courts in transitional democracies use constitutional values to reshape society.

Critics argue that the Court underplayed victims’ rights and deterrence.[17] Some scholars contend that the judgment did not sufficiently address the societal demand for justice in the face of violent crime. However, the Court’s strength lies in its principled stand: rights are not negotiable based on crime rates or public anger.[18] This boldness gave the Constitutional Court moral authority in the early years of democracy and established a precedent for rights-based adjudication.

The case also illustrates the role of comparative law in constitutional interpretation. By engaging with foreign jurisprudence, the Court demonstrated intellectual openness and reinforced the legitimacy of its decision.[19] This comparative approach has become a hallmark of South African constitutional jurisprudence, enhancing its influence in global debates on human rights.

CONCLUSION:

S v Makwanyane marked a decisive break from South Africa’s authoritarian past, affirming the supremacy of constitutional rights over punitive state power.[20] By abolishing the death penalty, the Court entrenched dignity, life, and equality as non-negotiable values in the new democracy. Its comparative approach enhanced legitimacy and situated South Africa within global human rights discourse. The case exemplifies transformative constitutionalism, showing how courts can advance rights even against popular sentiment.

It remains one of the most celebrated judgments in comparative constitutional law, standing alongside Brown v Board of Education (US, 1954), and Kesavananda Bharati v State of Kerala (India, 1973), and Puttaswamy (India, 2017) as judgments that redefined constitutional values.[21] Its enduring legacy is twofold: domestically, it entrenched dignity and life as non-negotiable rights; internationally, it became a touchstone for debates on capital punishment and human rights.[22]

In sum, Makwanyane remains a cornerstone of South African constitutional law, embodying the transformative spirit of the Constitution and continuing to inspire rights-based adjudication worldwide.

REFERENCE(S):

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

[2] Interim Constitution of South Africa, 1993.

[3] C Albertyn and J Sarkin, ‘The Impact of the Constitutional Court on South African Constitutional Jurisprudence’ (1996) SAJHR.

[4] Ibid.

[5] Davis D, ‘Constitutional Interpretation and the Death Penalty’ (1995) SALJ.

[6] Chaskalson P, judgment in Makwanyane.

[7] Furman v Georgia 408 US 238 (1972).

[8] Pieterse M, ‘The Centrality of Dignity in South African Constitutional Jurisprudence’ (2003) SAJHR

[9] Ibid.

[10] Makwanyane (n 1).

[11] Ibid.

[12] Dyzenhaus D, ‘The Constitution of South Africa and the Constitutional Court’ (1996) International Journal of Constitutional Law.

[13] Liebenberg S, ‘The Value of Human Dignity in Interpreting Socio-Economic Rights’ (2005) SAJHR