S v Makwanyane and Another

Case Citation and Basic Information

Case Name: S v Makwanyane and Another

Neutral Citation: S v Makwanyane and Another (CCT 3/94) [1995] ZACC 3

Reported Citation: 1995 (3) SA 391 (CC); 1995 (6) BCLR 665 (CC)

Court: Constitutional Court of South Africa

Date of Judgment: 6 June 1995

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

Introduction

South Africa’s constitutional transition in 1994 fundamentally altered the relationship between the State and its citizens by replacing parliamentary sovereignty with constitutional supremacy. One of the Constitutional Court’s earliest and most influential opportunities to interpret the newly adopted Bill of Rights arose in S v Makwanyane and Another, where the Court was required to determine whether the death penalty was compatible with the Interim Constitution.[1]. Unlike previous courts, which primarily considered whether capital punishment was authorised by legislation, the Constitutional Court approached the issue from a constitutional perspective by asking whether the deliberate execution of an offender by the State could be reconciled with the rights to life, human dignity and freedom from cruel, inhuman or degrading punishment.[2].

The judgment is widely regarded as a turning point in South African constitutional law because it established a principled approach to constitutional interpretation grounded in the values of dignity, equality and freedom. It also confirmed that constitutional rights cannot be determined by public opinion, political pressure or the seriousness of the offence committed. Instead, courts are required to uphold the Constitution even where doing so may be unpopular.[3] Beyond abolishing capital punishment, the decision shaped the Constitutional Court’s approach to interpreting fundamental rights, the limitation of rights and the use of comparative and international law in constitutional adjudication. Nearly three decades later, Makwanyane continues to influence South African jurisprudence and remains one of the leading authorities on constitutional supremacy and human rights.[4]

III. Facts of the Case

Before the advent of constitutional democracy, section 277(1)(a) of the Criminal Procedure Act 51 of 1977 authorised South African courts to impose the death penalty for offences including murder in circumstances where the sentencing court considered it to be the appropriate punishment. At the time, capital punishment formed part of South Africa’s criminal justice system and had been applied extensively for many years.[5]

The applicants, Thumela Makwanyane and Mvuso Mchunu, were convicted in the Witwatersrand Local Division of the Supreme Court on four counts of murder, one count of attempted murder and one count of robbery with aggravating circumstances. They were also convicted of unlawful possession of firearms and ammunition. Owing to the gravity of the offences, the trial court imposed the death sentence on each count of murder together with terms of imprisonment for the remaining offences.[6]

While the applicants’ appeal was pending, the Interim Constitution came into force on 27 April 1994. For the first time in South African history, courts possessed the authority to invalidate legislation inconsistent with the Constitution. The appeal therefore raised an important constitutional question that extended beyond the guilt of the applicants. The issue was whether section 277 of the Criminal Procedure Act remained constitutionally valid in light of the newly entrenched rights contained in Chapter 3 of the Interim Constitution.[7]

Recognising the constitutional importance of the matter, the Appellate Division postponed deciding the appeal relating to the death sentences and referred the constitutional question to the Constitutional Court in terms of section 102(6) of the Interim Constitution. The Constitutional Court therefore did not reconsider the applicants’ convictions. Instead, it was asked to determine whether the statutory provisions authorising capital punishment were consistent with the Constitution and, if not, what remedy should follow.[8]

The case attracted exceptional public interest because South Africa was experiencing high levels of violent crime during its democratic transition. Many members of the public believed that the death penalty was necessary to deter serious offences and protect society. Others argued that a constitutional democracy founded upon respect for human rights could not permit the State deliberately to take the life of any person, irrespective of the offence committed. The Constitutional Court therefore faced the difficult task of balancing legitimate public concerns regarding crime against the constitutional commitment to human dignity, life and the rule of law.[9]

Legal Issues

The Constitutional Court was called upon to determine the following constitutional questions:

Issue 1

Whether section 277(1)(a) of the Criminal Procedure Act 51 of 1977, which authorised the imposition of the death penalty, was inconsistent with the Interim Constitution because it unjustifiably infringed the rights to life, human dignity, and freedom from cruel, inhuman or degrading punishment?[10]

Issue 2

Whether any infringement of the rights to life, human dignity, and freedom from cruel, inhuman or degrading punishment could be justified under section 33 of the Interim Constitution, the general limitations clause?[11]

Issue 3

Whether considerations such as deterrence, retribution, public opinion, and the prevalence of violent crime constituted sufficient constitutional justification for retaining the death penalty in South Africa’s constitutional democracy?[12].

Arguments Presented

Applicants’ Arguments

The applicants argued that the death penalty was fundamentally incompatible with the values and rights protected by the Interim Constitution. Their primary submission was that execution constituted the ultimate deprivation of the right to life protected by section 9 of the Constitution. Unlike imprisonment, execution permanently extinguishes every other constitutional right because it intentionally ends the life of the individual.[13]

The applicants further argued that capital punishment violated the right to human dignity contained in section 10. They submitted that every individual possesses inherent dignity regardless of the seriousness of the offence committed. By deliberately putting an offender to death, the State treated the individual as beyond redemption and denied the constitutional recognition of his intrinsic worth.[14]

Reliance was also placed on section 11(2), which prohibits cruel, inhuman or degrading punishment. Counsel argued that the death penalty was unique because of its irreversible nature and because condemned prisoners frequently endured prolonged psychological suffering while awaiting execution. The applicants submitted that such punishment could not be reconciled with the humanitarian values embodied in the Constitution.[15]

Finally, the applicants invited the Court to consider comparative constitutional jurisprudence and international human rights law. They argued that there was an emerging international trend towards abolishing capital punishment and that section 35(1) of the Interim Constitution expressly encouraged courts to consider international and foreign law when interpreting the Bill of Rights.[16]

Respondent’s Arguments

The State accepted that the death penalty limited certain constitutional rights but argued that those limitations were constitutionally justifiable. It submitted that South Africa faced exceptionally high levels of violent crime and that capital punishment remained an important mechanism for protecting society from dangerous offenders.[17]

According to the State, the death penalty served three legitimate objectives of criminal punishment. First, it operated as a deterrent by discouraging potential offenders from committing serious crimes. Secondly, it reflected the principle of retribution by ensuring that punishment remained proportionate to exceptionally grave offences such as murder. Thirdly, it permanently incapacitated dangerous criminals, thereby protecting members of the public from further harm.[18]

The State further argued that Parliament had consciously retained capital punishment because it reflected the concerns of many South Africans regarding violent crime. Consequently, the Court should exercise restraint before invalidating legislation dealing with criminal punishment, particularly where strong public support existed for its continued application.[19]

Court’s Reasoning and Analysis

The Constitutional Court unanimously concluded that the death penalty was incompatible with the Interim Constitution because it unjustifiably infringed several fundamental rights. Rather than approaching the matter as a question of criminal policy, the Court framed the dispute as one concerning constitutional values. Chaskalson P emphasised that the Constitution is the supreme law of the Republic and that all legislation, including criminal legislation enacted by Parliament, must comply with the rights entrenched in the Bill of Rights.[20]Consequently, the Court’s task was not to determine whether capital punishment was desirable or popular, but whether it could withstand constitutional scrutiny.

The Court first considered the right to life, describing it as the most fundamental of all constitutional rights. It reasoned that every other right guaranteed by the Constitution depends upon the continued existence of life. The intentional execution of an offender by the State therefore constitutes the most severe limitation imaginable because it permanently extinguishes every other constitutional right.[21]While the Constitution did not expressly prohibit the death penalty, the Court held that the protection afforded to the right to life must be interpreted generously and purposively to reflect the values of a democratic society founded upon respect for human rights.

Closely connected to the right to life was the constitutional protection of human dignity. The Court observed that dignity is an inherent attribute of every person and does not depend upon an individual’s conduct or moral character. Even those convicted of the most serious offences retain their basic humanity and remain entitled to constitutional protection.[22]By deliberately taking the life of an offender, the State denies the intrinsic worth of that individual and reduces human life to an instrument of punishment. Justice Mahomed explained that the Constitution marked a decisive break from South Africa’s authoritarian past and required every exercise of public power to reflect respect for human dignity.[23]

The Court also found that capital punishment violated the prohibition against cruel, inhuman or degrading punishment contained in section 11(2) of the Interim Constitution. The judges emphasised that the death penalty differs fundamentally from every other criminal sanction because of its irreversible nature. Unlike imprisonment, an execution cannot be corrected if a miscarriage of justice later comes to light. Furthermore, prisoners sentenced to death often endure prolonged psychological suffering while awaiting execution, a phenomenon commonly referred to as the “death row phenomenon”. The Court regarded this prolonged uncertainty, together with the certainty of death, as an additional aspect of the cruelty inherent in capital punishment.[24]

Having found that the death penalty limited several constitutional rights, the Court proceeded to consider whether those limitations could nevertheless be justified under section 33, the general limitations clause of the Interim Constitution. The State argued that capital punishment deterred violent crime, promoted retribution and protected society by permanently removing dangerous offenders. The Court accepted that combating violent crime was an important governmental objective. However, constitutional rights cannot be limited merely because the State pursues a legitimate purpose. The limitation must also be reasonable, necessary and proportionate.[25]

After examining the available evidence, the Court concluded that the State had failed to demonstrate that the death penalty deterred violent crime more effectively than life imprisonment. The judges observed that empirical research on deterrence was inconclusive and that no convincing evidence established a unique deterrent effect attributable to capital punishment. In these circumstances, the irreversible infringement of the rights to life and dignity could not be justified by speculative assumptions regarding crime prevention.[26]

Another significant aspect of the judgment was the Court’s rejection of public opinion as the determining factor in constitutional adjudication. The State argued that many South Africans supported the retention of the death penalty because of increasing levels of violent crime. The Court acknowledged the seriousness of these concerns but emphasised that constitutional rights cannot depend upon majority opinion. Chaskalson P explained that one of the principal functions of a Bill of Rights is to protect individuals and minorities from the excesses of popular sentiment. Courts are therefore required to uphold constitutional principles even where those principles conflict with prevailing public opinion.[27]

The Court further relied on international and comparative law when interpreting the Constitution. Section 35(1) of the Interim Constitution expressly permitted courts to consider public international law and foreign constitutional jurisprudence. Accordingly, the Court examined decisions from jurisdictions including the United States, Canada, Germany, Hungary and India, together with international human rights instruments. Although these authorities were not binding, they provided persuasive guidance regarding the global movement towards greater protection of human rights and the abolition or restriction of capital punishment.[28]

A particularly distinctive feature of the judgment was its recognition of the African constitutional value of ubuntu. Justice Mokgoro explained that ubuntu emphasises compassion, reconciliation, respect for human dignity and the interconnectedness of society. These values were inconsistent with a punishment whose primary characteristic was the deliberate destruction of human life. Similarly, Justice Sachs observed that South Africa’s constitutional transition sought not merely to punish wrongdoing but to build a society founded upon reconciliation, tolerance and respect for human dignity.[29] The incorporation of ubuntu into constitutional interpretation demonstrated that South Africa’s Constitution draws upon both international human rights principles and indigenous African legal values.

Overall, the Court’s reasoning established that constitutional adjudication requires more than balancing competing policy preferences. It requires judges to interpret and apply the Constitution in a manner that gives meaningful effect to its foundational values. S v Makwanyane therefore became more than a judgment abolishing capital punishment; it established the interpretative methodology that has guided South African constitutional law ever since.[30]

VII. Judgment and Ratio Decidendi

Judgment

After considering the constitutional rights implicated by capital punishment and the arguments advanced by both parties, the Constitutional Court unanimously declared section 277(1)(a) of the Criminal Procedure Act 51 of 1977 unconstitutional. The Court held that the provision unjustifiably infringed the rights to life, human dignity, and freedom from cruel, inhuman or degrading punishment guaranteed by the Interim Constitution.[31]Consequently, the statutory provisions authorising the imposition of the death penalty were declared invalid.

The Court ordered that the death sentences imposed on the applicants could not be carried out and that all other death sentences imposed under section 277 similarly became unenforceable. The judgment therefore abolished capital punishment throughout South Africa and required sentencing courts to impose constitutionally permissible alternatives, including life imprisonment where appropriate.[32]

In reaching this conclusion, the Court emphasised that constitutional adjudication is governed by the values embodied in the Constitution rather than public opinion or political considerations. The protection of fundamental rights remains the Court’s primary responsibility, even where judicial decisions may be unpopular.

Ratio Decidendi

The ratio decidendi of S v Makwanyane is that “the death penalty is inconsistent with the Interim Constitution because it unjustifiably infringes the rights to life, human dignity, and freedom from cruel, inhuman or degrading punishment, and such infringement cannot be justified under the general limitations clause”[33]

The judgment also established a broader constitutional principle: courts must interpret the Bill of Rights purposively and in accordance with the foundational values of dignity, equality and freedom, while remaining independent of transient public opinion. This principle has become one of the cornerstones of South African constitutional interpretation.

VIII. Critical Analysis

Significance of the Decision

S v Makwanyane occupies a unique position in South African constitutional jurisprudence because it was one of the Constitutional Court’s earliest opportunities to define the meaning of the new constitutional order. Rather than merely abolishing the death penalty, the judgment established that the Constitution is a value-based instrument requiring courts to interpret legislation in a manner that promotes human dignity, equality and freedom. In doing so, the Court demonstrated that constitutional supremacy had replaced parliamentary sovereignty as the foundation of South Africa’s legal system.[34]

Another significant contribution of the judgment lies in its development of constitutional interpretation. The Court confirmed that judges are not confined to a literal reading of constitutional provisions but must interpret rights generously and purposively while considering both international and comparative law. This interpretative approach has since become a defining characteristic of Constitutional Court jurisprudence and has influenced numerous subsequent decisions concerning socio-economic rights, equality and administrative justice.[35]

The judgment also represents an important recognition of ubuntu as a constitutional value. By incorporating indigenous African legal philosophy into constitutional reasoning, the Court demonstrated that South African constitutional law is informed not only by international human rights principles but also by local values emphasising compassion, reconciliation and respect for human dignity. This enriched the development of a uniquely South African constitutional jurisprudence.[36]

Implications and Impact

The immediate effect of the judgment was the abolition of capital punishment in South Africa. More importantly, however, the decision fundamentally altered the relationship between the individual and the State by affirming that governmental power is subject to constitutional limitations. Even where Parliament acts in pursuit of legitimate objectives such as crime prevention, its actions remain subject to judicial review for constitutional compliance.

The principles articulated in Makwanyane continue to influence constitutional litigation. Courts regularly rely upon its reasoning when determining whether limitations upon constitutional rights satisfy the requirements of proportionality and justification. The judgment has therefore become an essential authority not only in criminal law but also across the broader field of constitutional litigation.

From a societal perspective, the decision reaffirmed that justice within a constitutional democracy must balance accountability with respect for human rights. Although offenders must be punished appropriately, punishment itself must remain consistent with constitutional values. In this respect, Makwanyane continues to shape public discourse regarding criminal justice, sentencing policy and the protection of fundamental rights.

Critical Evaluation

Although S v Makwanyane is widely regarded as one of the Constitutional Court’s finest judgments, it has not escaped criticism. Some commentators argue that the Court gave insufficient weight to the concerns of victims and the broader public, particularly during a period characterised by exceptionally high levels of violent crime. Others suggest that Parliament, as the democratically elected branch of government, should have been afforded greater discretion in determining appropriate criminal sanctions.[37]

These criticisms raise legitimate constitutional questions regarding the relationship between judicial review and democratic decision-making. Nevertheless, they do not undermine the central reasoning of the judgment. Constitutional rights exist precisely to restrain governmental power where majoritarian preferences threaten fundamental freedoms. If constitutional rights could be limited solely because a majority supported such limitations, the Bill of Rights would provide little meaningful protection for vulnerable individuals or unpopular minorities.

A further strength of the judgment lies in its insistence upon evidence-based constitutional adjudication. The State relied heavily on deterrence as the principal justification for capital punishment, yet failed to establish that the death penalty deterred violent crime more effectively than life imprisonment. The Court correctly refused to uphold an irreversible punishment based upon speculative assumptions rather than persuasive empirical evidence.[38]

From my perspective, the Court adopted the constitutionally correct approach. South Africa continues to experience serious levels of violent crime, and the concerns of victims deserve careful consideration. However, constitutional interpretation cannot be driven by fear, emotion or political pressure. The legitimacy of the Constitution depends upon its consistent application, particularly in difficult cases involving individuals whose rights are least likely to receive public sympathy. In this respect, Makwanyane demonstrates that constitutional democracy is measured not by how it treats the popular or the powerful, but by how faithfully it protects the rights of every person. This remains one of the judgment’s most enduring contributions to South African law.

Conclusion

S v Makwanyane remains one of the defining judgments in South African constitutional history. By declaring the death penalty unconstitutional, the Constitutional Court affirmed that the rights to life and human dignity occupy a central position within the constitutional order and cannot be limited without compelling constitutional justification. The decision also established enduring principles regarding constitutional supremacy, purposive interpretation and proportionality that continue to guide South African courts.

The case illustrates that constitutional adjudication requires judges to uphold constitutional values even where their decisions may conflict with public opinion or political preferences. In doing so, the Court confirmed that the Constitution is more than a legal document; it is the moral and democratic foundation upon which the Republic is built. Nearly three decades after the judgment was delivered, S v Makwanyane continues to influence constitutional jurisprudence, legal scholarship and public debate, serving as a lasting reminder that respect for human dignity, equality and the rule of law lies at the heart of South Africa’s constitutional democracy.

BIBLIOGRAPHY

Cases

S v Makwanyane and Another 1995 3 SA 391 CC

Legislation

Constitution of the Republic of South Africa Act 200 of 1993

Criminal Procedure Act 51 of 1977

Books

Iain Currie and Johan de Waal, The Bill of Rights Handbook (6th edn Juta 2013)

Stu Woolman and Michael Bishop (eds), Constitutional Law of South Africa (2nd edn OSFSA 2013)

Journal Articles

Chuma Himonga, Max Taylor and Amanda Pope, ‘Reflections on Judicial Views of Ubuntu’ (2013) 16 PELJ 369

Allan Klaasen, ‘Constitutional Interpretation in the So-called”Hard Cases”: Revisiting S v Makwanyane’ (2017) 50 De Jure 17

[1] S v Makwanyane and Another (CCT 3/94) [1995] ZACC 3; 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 9, 10, 11(2) and 33.

[3]Makwanyane (n 1) paras 87–89.

[4]A Klaasen, ‘Constitutional Interpretation in the So-called “Hard Cases”: Revisiting S v Makwanyane’ (2017) 50 De Jure 17.

[5]Criminal Procedure Act 51 of 1977 s 277(1)(a).

[6]Makwanyane (n 1) paras 1–2.

[7]Interim Constitution ss 4 and 98.

[8]Makwanyane (n 1) paras 3–8.

[9]Makwanyane (n 1) paras 87–95; C Himonga, M Taylor and A Pope, ‘Reflections on Judicial Views of Ubuntu’ (2013) 16 PER / PELJ 369.

[10] Criminal Procedure Act 51 of 1977 s 277(1)(a); Constitution of the Republic of South Africa Act 200 of 1993 ss 9, 10 and 11(2); S v Makwanyane and Another (CCT 3/94) [1995] ZACC 3 paras 8–11, 144–148.

[11] Constitution of the Republic of South Africa Act 200 of 1993 s 33; Makwanyane (n 1) paras 104–131.

[12] Makwanyane (n 1) paras 87–131.

[13] Makwanyane (n 4) paras 144–146.

[14] ibid paras 144–148.

[15]ibid paras 94–95.

[16]Interim Constitution s 35(1); Makwanyane (n 4) paras 35–39.

[17] Makwanyane (n 4) paras 87–90.

[18] ibid paras 89–91.

[19] ibid paras 87–89.

[20] S v Makwanyane and Another (CCT 3/94) [1995] ZACC 3 paras 8–11, 87–89.

[21] ibid paras 144–146.

[22] ibid paras 144–148.

[23] ibid paras 262–274 (Mahomed DP).

[24] ibid paras 94–95.

[25] Constitution of the Republic of South Africa Act 200 of 1993 s 33; Makwanyane (n 12) paras 104–131.

[26] Makwanyane (n 12) paras 117–131.

[27] ibid paras 87–89.

[28] Interim Constitution s 35(1); Makwanyane (n 12) paras 35–39.

[29] Makwanyane (n 12) paras 307–313 (Mokgoro J); paras 361–374 (Sachs J); C Himonga, M Taylor and A Pope, ‘Reflections on Judicial Views of Ubuntu’ (2013) 16 Potchefstroom Electronic Law Journal 369.

[30] Iain Currie and Johan de Waal, The Bill of Rights Handbook (6th edn, Juta 2013) 366–372; Stuart Woolman and Michael Bishop (eds), Constitutional Law of South Africa (2nd edn, OSFSA, RS 5, 2013).

[31] S v Makwanyane and Another (CCT 3/94) [1995] ZACC 3 paras 151–154.

[32] ibid paras 151–156.

[33] ibid paras 144–148; Constitution of the Republic of South Africa Act 200 of 1993 s 33.

[34] Iain Currie and Johan de Waal, The Bill of Rights Handbook (6th edn, Juta 2013) 366–372.

[35] Stuart Woolman and Michael Bishop (eds), Constitutional Law of South Africa (2nd edn, OSFSA, RS 5, 2013) ch 34.

[36] C Himonga, M Taylor and A Pope, ‘Reflections on Judicial Views of Ubuntu’ (2013) 16 Potchefstroom Electronic Law Journal 369.

[37] A Klaasen, ‘Constitutional Interpretation in the So-called “Hard Cases”: Revisiting S v Makwanyane’ (2017) 50 De Jure 17.

[38] Makwanyane (n 23) paras 117–131.