S v Makwanyane and Another

Case Citation and Basic Information

• Full case name: S v Makwanyane and Another
• Citation: CCT3/94; [1995] ZACC 3; 1995 (6) BCLR 665; 1995 (3) SA 391; [1996] 2 CHRLD 164; 1995 (2) SACR 1
• Court: Constitutional Court of South Africa
• Date: 6 June 1995
• Bench: Chaskalson P, Ackermann, Didcott, Kriegler, Langa, Madala, Mahomed, Mokgoro, O’Regan, Sachs JJ

Introduction

Shortly after the 1993 Interim Constitution went into effect, South Africa’s newly formed Constitutional Court issued its first significant ruling. It addressed whether the death penalty was compatible with the new democratic order and represented a significant departure from the legal system of the apartheid era. The case, which tested whether the death penalty was consistent with fundamental principles of equality, dignity, and the right to life, constituted a turning point in human rights law. Its conclusion shaped legal norms throughout Africa and the Commonwealth and established the framework for interpreting the Bill of Rights.

Facts Of The Case

The Witwatersrand Local Division found Theophilus Makwanyane and Mvuso Mchunu guilty in 1993 on four charges of murder, one count of attempted murder, and robbery with aggravating circumstances. The victims were shot and murdered or injured during an armed robbery that took place in a hostel. For each murder count, the trial court imposed the death penalty; for the other charges, it imposed long jail sentences. The convictions and punishments were upheld by the Appellate Division on appeal, but the Constitutional Court was consulted over the constitutionality of Section 277(1)(a) of the Criminal Procedure Act 51 of 1977, which permitted the death penalty. More than 300 inmates were still on death row at the time, and no executions had taken place since 1989.

Legal Issues

1. Does Section 9 of the 1993 Interim Constitution’s guarantee of the right to life apply to the death penalty?
2. Does it fall under Section 11(2)’s definition of cruel, inhuman, or degrading punishment?
3. Does it violate Sections 10 and 8’s guarantees of equality and human dignity, respectively?
4. Is the Criminal Procedure Act of 1977’s Section 277(1)(a) unconstitutional because it violates the Constitution?

Arguments Presented

Arguments of the Appellants

The inviolable right to life and dignity, according to counsel, is violated by the death penalty. It was employed disproportionately against Black people during apartheid, breaching their rights to equality, and it is irrevocable, meaning that any mistake in conviction cannot be undone. There is no solid proof that it deters crime more successfully than incarceration over an extended period of time. The taking of life cannot be justified by retaliation alone, and the punishment goes against both the spirit of the new Constitution and international human rights norms.

Respondent’s Arguments

The State maintained that capital penalty served legitimate purposes, including deterrence, retribution, and public trust in the criminal system. It was said to be necessary due to South Africa’s high crime rate. The Constitution did not officially abolish it, and courts used their discretion to prevent arbitrary use. The State further claimed that international trends were not binding and that popular opinion supported keeping the penalty for the most egregious crimes.

Court’s Reasoning and Analysis

The Court, chaired by Chaskalson P, ruled that human dignity is the Constitution’s fundamental principle, and the right to life is ultimate and non-derogable. It argued that the death penalty is intrinsically cruel and degrading, causing protracted psychological agony while awaiting execution. Its irreversibility poses an intolerable risk of executing the innocent, and historical evidence shows that it was used in a racially biased manner under apartheid. The Court found no credible evidence that it serves as a more effective deterrence than life imprisonment. While retribution is a legitimate goal of punishment, it must be practiced within constitutional bounds and cannot excuse the entire denial of a person’s humanity. It was also mentioned that worldwide legal trends and international law support abolition.

Ratio Decidendi and Judgement

Judgement: The Court unanimously ruled that Section 277(1)(a) of the Criminal Procedure Act 51 of 1977 was defective and unconstitutional. Capital punishment was formally abolished in South Africa. All current death sentences were overturned and remanded to lower courts for replacement with suitable punishments, such as life in prison.

Ratio Decidendi: The death sentence is arbitrary, irrevocable, discriminatory in its application, and cannot be justified by retaliation or deterrence under the new constitutional framework. It also infringes the rights to life, dignity, and freedom from harsh, inhuman, or degrading punishment.

Critical Analysis

Significance

The verdict established dignity as the basic element of South African constitutional law, becoming the dominant authority for interpreting all rights in the Bill of Rights.

Consequences and Effects

It halted racially unfair sentencing, commuted the sentences of almost 300 death row prisoners, and set a precedent for proportionality evaluation in criminal justice. Additionally, it reinforced the rule of law and sparked similar decisions in other African nations.

Critical Assessment

Critics claim it damages public safety and fails to satisfy community expectations for justice amid high crime rates. Supporters claim it prevents against irrevocable judicial error and reinforces the values of a democratic society. The ruling illustrated the judiciary’s duty to uphold basic rights in the face of popular opinion.

In conclusion

S v Makwanyane remains the cornerstone of South Africa’s post-apartheid legal system, symbolising the transformation from retributive, discriminatory justice to a rights-based framework. It confirmed that constitutional ideals take precedence over popular emotion or traditional sentencing methods. The case altered the relationship between the State and the individual, and its rationale continues to impact choices on punishment, equality, and human dignity. Its influence goes beyond South Africa, serving as a worldwide illustration of how the law may promote social change and safeguard human life.

Reference(S):

1. S v Makwanyane and Another CCT3/94 [1995] ZACC 3, 6 June 1995
2. Constitution of the Republic of South Africa Act 200 of 1993.
3. Criminal Procedure Act 51 of 1977.
4. Currie, Iain and Johan de Waal. The Bill of Rights Handbook. 7th ed., Juta Law, 2022.