S V MAKWANYANE AND ANOTHER

I. CASE CITATION AND BASIC INFORMATION

Full Case Name: S v Makwanyane and Another

Citation: [1995] ZACC 3; 1995 (3) SA 391 (CC); 1995 (6) BCLR 665 (CC)

Court: Constitutional Court of South Africa

Date of Decision: 6 June 1995

Bench Composition: Chaskalson P, Ackermann J, Didcott J, Kentridge AJ, Kriegler J, Langa J, Madala J, Mokgoro J, O’Regan J, Sachs J, and Mahomed J.

II. INTRODUCTION

S v Makwanyane stands as the foundational monument of post-apartheid South African jurisprudence. Handed down as the newly established Constitutional Court’s inaugural major ruling, the case directly confronted the institutionalized violence of the past by evaluating the constitutionality of the death penalty. This summary dissects how the court transitioned South Africa from a system of parliamentary sovereignty rooted in state-sanctioned retribution to a supreme constitutional democracy anchored by human rights.

The judgment is uniquely noteworthy because it did not merely interpret statutory text; it permanently infused the supreme law with Ubuntu an indigenous philosophical matrix emphasizing humaneness, communal interconnectedness, and restorative justice thereby defining the interpretive methodology for all subsequent constitutional disputes. Through this landmark ruling, the court signaled a profound break from the past, cementing the principle that the state’s penal system must reflect the highest commitments to human life and dignity, even when dealing with those convicted of the most heinous offenses.

III. FACTS OF THE CASE

The structural background of this matter originated in the Witwatersrand Local Division of the Supreme Court of South Africa. The two accused, Tjamme Makwanyane and Mhloti Mchunu, were arrested, detained, and formally charged with four counts of murder alongside additional counts of attempted robbery resulting from a violent, fatal encounter during an attempted heist of a bank vehicle. Following a lengthy criminal trial, the court of first instance, evaluating the extensive eyewitness testimony and forensic evidence, found both individuals guilty on all criminal charges.

Under the prevailing criminal legislative framework specifically Section 277(1)(a) of the Criminal Procedure Act 51 of 1977 the death penalty was a competent and routinely applied sentence for murder. The presiding trial judge concluded that the presence of aggravating factors, which included the premeditated nature of the robbery and the ruthless execution of the victims overwhelmingly outweighed any mitigating circumstances presented by the defense. Consequently, the court exercised its statutory authority to impose the death sentence upon both convicts.

The accused formally appealed their convictions and sentences to the Appellate Division of the Supreme Court, which was then the highest court of appeal for non-constitutional criminal matters. While the Appellate Division dismissed the appeals against the substantive convictions, finding no misdirection by the trial court, it encountered a structural constitutional impasse regarding the validity of the sentences.

During the pendency of these legal proceedings, the Interim Constitution of the Republic of South Africa (Act 200 of 1993) came into operation on 27 April 1994, introducing a supreme, non-racial framework and a comprehensive Bill of Rights under Chapter 3. Because the Interim Constitution explicitly vested exclusive jurisdiction to declare statutory provisions unconstitutional within the newly created Constitutional Court, the Appellate Division recognized it lacked the power to determine the validity of Section 277(1)(a).

The Appellate Division formally stayed the execution of the death sentences for Makwanyane and Mchunu. Acting in accordance with Section 102(1) of the Interim Constitution, the court referred the matter to the Constitutional Court to determine a singular, dispositive issue of law: whether the statutory authorization of capital punishment under the Criminal Procedure Act was constitutionally valid in light of the newly supreme human rights protections.

IV. LEGAL ISSUES

The primary, overarching question of law addressed by the Constitutional Court was formulated as follows:

Issue 1: Whether Section 277(1)(a) of the Criminal Procedure Act 51 of 1977, which permits the state to impose the death penalty as a competent sentence for murder, is unconstitutional due to its inconsistency with the rights guaranteed under Chapter 3 of the Interim Constitution. To resolve this primary question, the court had to systematically address several secondary constitutional sub- questions:

Issue 2: Whether the execution of capital punishment constitutes an unjustifiable violation of the right to life protected under Section 9 of the Constitution.

Issue 3: Whether the implementation of the death penalty violates the right to respect for and protection of human dignity under Section 10 of the Constitution.

Issue 4: Whether the mechanism of capital punishment constitutes “cruel, inhuman or degrading treatment or punishment” under Section 11(2) of the Constitution.

Issue 5: Whether the application of the death penalty results in unfair discrimination or arbitrary inequality, thereby breaching the right to equality before the law under Section 8 of the Constitution.

Issue 6: If any of the aforementioned core rights are breached, whether such a breach can be saved as a reasonable and justifiable limitation under Section 33(1) of the Interim Constitution.

V. ARGUMENTS PRESENTED

5.1 Applicants’ Arguments

The legal representatives for the applicants, supported by various amici curiae including the Centre for Applied Legal Studies, advanced several interrelated constitutional arguments against capital punishment:

The primary contention was that Section 277(1)(a) of the Criminal Procedure Act directly violated Section 11(2) of the Interim Constitution. They argued that the institutionalized, premeditated killing of a human being by the state is inherently cruel, inhuman, and degrading, stripping the individual of all constitutional standing.

The applicants emphasized that the execution of the death penalty is an absolute, irreversible destruction of the right to life (Section 9) and a complete erasure of human dignity (Section 10). They asserted these rights were designed to be non-derogable baselines in a post-apartheid framework meant to correct a history of state-sponsored violence.

They argued that the application of the death penalty is structurally and unconstitutionally arbitrary. Due to deep systemic socioeconomic disparities inherited from apartheid, the quality of legal representation available to accused individuals varied wildly. Wealthier defendants could afford top-tier counsel, whereas indigent defendants relied on underfunded pro deo counsel. Consequently, life-or-death outcomes depended arbitrarily on race, class, and accidental judicial assignments.

Regarding the limitations clause (Section 33(1)), the applicants asserted that the state could not prove that capital punishment was a necessary or proportional tool. They argued there was no empirical evidence demonstrating that the death penalty serves as a superior deterrent to long-term imprisonment, making its retention irrational and unjustifiable.

5.2  Respondent’s Arguments

The Attorney-General, representing the state, defended the validity of the impugned legislative provision using the following counterarguments:

The state argued that the text of Section 9 of the Interim Constitution (“Every person shall have the right to life”) was purposefully left unqualified by the grand architects of the democratic transition. They contended that if the framers intended to abolish the death penalty, they would have explicitly written an absolute prohibition into the text, rather than leaving it to judicial interpretation.

The respondent contended that the death penalty did not constitute cruel, inhuman, or degrading punishment when applied proportionately to heinous offenses like murder. They argued that certain crimes are so shocking to the collective conscience that capital punishment is the only appropriate response that matches society’s moral outrage.

Under the limitation framework of Section 33(1), the state argued that the retention of capital punishment was fully justified. They asserted it served three vital societal goals: deterring potential violent offenders in a society experiencing a surge in lawlessness, preventing recidivism through the permanent incapacitation of dangerous criminals, and satisfying the public demand for retribution.

Finally, the state emphasized public opinion, presenting evidence that an overwhelming majority of the South African population favored retaining the death penalty. They argued that abandoning capital punishment would undermine public confidence in the judicial system, potentially leading to an increase in vigilantism.

VI. COURT’S REASONING AND ANALYSIS

The Constitutional Court approached the dispute by establishing a comprehensive, value-based framework for constitutional interpretation. Justice Chaskalson, writing for the unanimous court, noted that the text of the Constitution must be interpreted generously and purposefully to give effect to its foundational values. This required moving away from the strict, literalist traditions of statutory interpretation that had characterized the era of parliamentary sovereignty under apartheid.

The court focused primarily on Section 11(2), which prohibited cruel, inhuman, or degrading punishment. To determine if capital punishment violated this section, Chaskalson P conducted a holistic analysis, recognizing that cruelty, indignity, and the right to life are inextricably intertwined. The court observed that the execution of the death penalty involves not just the final act of killing, but a long, agonizing process of psychological degradation while awaiting execution on death row.

Chaskalson P evaluated international jurisprudence, analyzing decisions from the United States Supreme Court, the European Court of Human Rights, and the Supreme Court of India. The court observed that while foreign jurisdictions differed on the absolute legality of the death penalty, international legal trends consistently highlighted the extreme difficulty of applying it without structural arbitrariness. For instance, the court examined the landmark US case of Furman v. Georgia, noting that despite attempts to refine sentencing guidelines in Gregg v. Georgia, the application of capital punishment remained plagued by racial and socioeconomic biases. The court also drew on Soering v. United Kingdom from the European Court of Human Rights to emphasize that the “death row phenomenon” itself constitutes inhuman and degrading treatment.

Turning to the domestic context, the court determined that arbitrariness was unavoidable under Section 277(1)(a). Because the legal system relies on human judgment at every stage from police investigations and prosecutorial discretion to a single judge’s evaluation of mitigating factors, the decision of who lives and who dies becomes an unconstitutional lottery. Chaskalson P pointed out that factors such as the race of the accused, the race of the victim, and the location of the trial often played an unacknowledged role in determining whether the death penalty was imposed.

The court then turned to the critical limitation analysis under Section 33(1), which required balancing the purpose of the law against the destruction of constitutional rights. The court systematically rejected the state’s justifications:

Deterrence: The court ruled that the state failed to provide empirical proof that the death penalty deters violent crime more effectively than a lengthy prison sentence. Without such evidence, the state could not justify the total destruction of a fundamental right.

Retribution: The court acknowledged societal anger but held that in a constitutional state, retribution must be channeled through a human-rights-respecting penal system, rather than mirror the violence of the criminal. The state must set a moral example, not institutionalize vengeance.

Prevention: Incapacitation could be achieved just as effectively through life imprisonment without the need for state-sanctioned killing.

Importantly, the court addressed the state’s reliance on public opinion. Chaskalson P declared that while public opinion cannot be ignored, the court’s constitutional duty is to act as an independent arbiter, protecting vulnerable individuals and minorities against majoritarian overreach. If public opinion were the sole metric of constitutionality, the Bill of Rights would lose its purpose as a counter-majoritarian shield.

The individual judges provided separate, concurring opinions that enriched this analysis. Justices Langa, Madala, Mokgoro, and Sachs notably integrated the concept of Ubuntu into the core of their legal reasoning. They explained that Ubuntu represents a deep societal commitment to humaneness, healing, and reconciliation. From an Ubuntu perspective, the death penalty is an illegitimate act of institutional vengeance that completely destroys the opportunity for rehabilitation, thereby degrading the moral fiber of the state itself. Justice Mokgoro emphasized that Ubuntu views life and dignity as part of a collective human fabric, meaning that when the state devalues the life of one individual, it devalues the humanity of the entire society.

VII. JUDGMENT AND RATIO DECIDENDI

The Constitutional Court ruled unanimously that Section 277(1)(a) of the Criminal Procedure Act 51 of 1977 was unconstitutional and invalid. The court formalized the following remedies and compliance orders:

The state was immediately and permanently interdicted from carrying out the death sentence upon any person currently awaiting execution.

The sentences of all persons previously sentenced to death were officially set aside.

The state was ordered to ensure that all such individuals remain in custody pending the formal substitution of their sentences with lawful, alternative punishments (such as life imprisonment) by an appropriate court of law.

Ratio Decidendi

“The state’s statutory power to impose capital punishment constitutes an arbitrary, cruel, inhuman, and degrading punishment that completely destroys the non-derogable rights to life and human dignity. Such a deprivation cannot be legally justified as a reasonable or necessary limitation in an open and democratic society because it lacks empirical proof of superior deterrence and directly contradicts the core constitutional value of Ubuntu, which demands restorative rather than retributive justice.

VIII. CRITICAL ANALYSIS

8.1  Significance of the Decision

Makwanyane is the foundational cornerstone of South African constitutionalism. Its primary significance lies in establishing human dignity and life as the non-negotiable, supreme values that override any statutory enactment or majoritarian preference. By integrating Ubuntu directly into constitutional interpretation, the court successfully

indigenized a legal system that had long been dominated by oppressive colonial and apartheid structures, bridging formal legal text with traditional African values of restorative justice. It marked the definitive shift from a culture of authority and state sovereignty to a culture of justification and human rights.

Crucially, this interpretive pivot laid the groundwork for transformative constitutionalism, a judicial philosophy that mandates using the Constitution not merely as a static legal shield, but as an active instrument to dismantle systemic inequality and reshape society. By positioning the Bill of Rights as the supreme law, the court permanently buried the ghost of parliamentary sovereignty, ensuring that no future legislative majority could ever vote away the fundamental worth of a human being. The inclusion of Ubuntu proved that South African jurisprudence could be profoundly Africanized without losing its technical precision, establishing that true justice must seek to heal social fractures rather than merely enforce punitive retribution. Ultimately, Makwanyane set a permanent baseline for accountability: any exercise of state power that encroaches upon human liberties must now stand up to the rigorous, objective standards of a rights-respecting democracy, forcing the state to govern through open, rational justification rather than unchecked political muscle.

8.2 Implications and Impact

The immediate practical consequence of the ruling was the preservation of hundreds of lives on death row and the complete restructuring of South Africa’s sentencing guidelines. Nationally, it signaled to Parliament that all future criminal legislation must comply strictly with the human rights framework.

Internationally, the judgment catapulted South Africa to the forefront of global human rights jurisprudence. It is widely cited by international tribunals and foreign courts as the definitive, most intellectually rigorous legal authority against capital punishment, proving that a developing nation emerging from systemic oppression could establish an uncompromising human rights standard.

8.3 Critical Evaluation

The reasoning of the court exhibits exceptional structural strengths. By utilizing a multi-layered approach examining textual rights, international standards, and indigenous values concurrently the bench constructed an unassailable legal argument that transcended simple statutory reading. The court’s meticulous handling of the limitations clause provided a clear blueprint for all subsequent constitutional litigation in South Africa.

However, minor analytical gaps remain open to scholarly critique. The court’s dismissal of public opinion, while correct from a standpoint of judicial independence, created a persistent, long-term friction between popular expectations of safety and constitutional protections. In a society burdened by endemic rates of violent crime, critics frequently assert that the court overemphasized the rehabilitation of the offender at the expense of the systemic trauma suffered by victims and the broader community.

Some legal scholars argue that the court’s reliance on Ubuntu was overly romanticized and lacked precise legal definitions, leaving the concept vulnerable to subjective interpretation in future cases. Nevertheless, the alternative approach retaining the death penalty would have fatally compromised the moral legitimacy of the new democratic state by allowing it to continue using the very tools of violence that defined its oppressive past.

IX. CONCLUSION

S v Makwanyane remains the definitive moral and legal compass of South African jurisprudence. By striking down capital punishment, the Constitutional Court established that the right to life and human dignity are absolute baselines that the state can never cross, regardless of the severity of an individual’s criminal conduct.

The single most vital takeaway from this landmark judgment is that a constitutional democracy is explicitly designed to protect the rights of the most marginalized and despised individuals, completely insulated from the shifting tides of public anger or political expediency. While intense public debates surrounding violent crime continue to challenge the judicial system, the lasting impact of Makwanyane ensures that the constitutional commitment to Ubuntu, humaneness, and the rule of law remains an unmovable barrier against state-sanctioned violence.

X. REFERENCE(S):

1. Constitution of the Republic of South Africa Act 200 of 1993 (Interim Constitution).

2. Constitution of the Republic of South Africa,

3. Criminal Procedure Act 51 of

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

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

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

7. Soering v United Kingdom, 11 EHRR 439 (1989).