Authored By: Lethabo Moffat Myakayaka
South Africa
- Case Citation and Basic Information
S v Makwanyane and Another (CCT 3/94) [1995] ZACC 3; 1995 (3) SA 391 (CC); 1995 (6) BCLR 665 (CC); 1995 (2) SACR 1 (CC).
Court: Constitutional Court of South Africa.
Date of Decision: 6 June 1995.
Judges: Unanimous decision led by President Arthur Chaskalson, with 10 separate concurring judgments (including notable contributions from Justices Langa, Mokgoro, and O’Regan).[1]
This was one of the very first cases heard by South Africa’s newly established Constitutional Court under the interim Constitution of 1993.[2]
- Brief Introduction
The case involved two accused which were Themba Makwanyane and Mvuso Mchunu, who were convicted of four counts of murder, one count of attempted murder, and one count of robbery with aggravating circumstances. The S v Makwanyane is a landmark case that brewed a new dawn within the South African constitutional jurisprudence.[3] The case was decided at a very important time in the South African history, shortly after the apartheid era which was during the time of the interim constitutional dawn. The decision abolished the death penalty and gave birth to new a legal order of Human rights and dignity. The judgment is celebrated for its purposive interpretation of the Bill of Rights, its guiding principle of the African philosophy of ubuntu, and its assertion of the Constitutional Court’s role as guardian of the Constitution. It remains highly influential both domestically and internationally on issues of capital punishment, dignity, and transformative constitutionalism.[4]
- Facts of the Case
The two accused, Themba 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. The transgression of this case occurred during an armed robbery. During their trial, both accused were sentenced to a death penalty on each murder count and to imprisonment on the other charges.[5]
The two accused appealed against the decision taken by the court, which upheld the convictions but referred the question of the constitutionality of the death penalty to the Constitutional Court. At the time, section 277(1)(a) of the Criminal Procedure Act 51 of 1977 still permitted capital punishment for murder. Over hundreds of people were on death row when the case was heard, creating urgency and transformative constitutionalism. [6]
- Legal Issues
The Constitutional Court evaluated whether the death penalty:
- Violated the right to life (Section 9 of the Interim Constitution)
- Violated the right to human dignity (Section 10)
- Could be justified under the general limitations clause (Section 33)
- Was consistent with the values of a democratic society
Also, whether the imposition of the death penalty for murder constitutes “cruel, inhuman or degrading treatment or punishment” in violation of section 11(2) of the interim Constitution. [7]
- Arguments Presented
Accused argument: The accused representative argue that the death penalty is inherently cruel and violates the unqualified right to life expressed within the interim constitution and the Bill of Right. They urged the Court to consider international trends toward abolition and the values of the new Constitution. The principle of ‘ubuntu’ is not compatible with death sentence as it upholds humanity.[8]
State argument: The Attorney-General argued that the death penalty was suffice and justifiable based on the criminal conduct of the two accused, which was heinous crimes in a society plagued by violence. The state advocated that the death penalty was an effective deterrent to violent crime and was necessary to maintain public safety. The attorney-General claimed that public opinion favoured the execution of the death penalty and that the interim constitution did not prohibit capital punishment and the right to life could be justifiably limited. The supremacy of the interim constitution prevailed, in maintaining that the ruling should democratically aligned.[9]
- Court’s Reasoning and Analysis
The judgement was submitted by President Chaskalson before the Constitutional court, which his judgement aligned with the principles of the interim constitution.[10] The constitutional court rejected the submission made by the state and upheld the principles of the constitution. The Court examined the text, context, history, and values of the interim Constitution.[11]
Key elements of the reasoning:
- Right to Life and Dignity: The right to life is given stronger protection. The death penalty was unconstitutional and against the Bill of rights.
- Cruel, Inhuman or Degrading Punishment: The execution involves elements of physical and psychology suffering and was decided cruel and inhumane.
- Irreversibility and Error: Execution cannot be reversed once carried out and leaves no room to rectify mistakes or errors.
- Ubuntu: The judgment prominently featured ubuntu an African philosophy of interconnectedness (“umuntu ngumuntu ngabantu” a person is a person through other persons). It emphasises humanity, compassion, reconciliation, and respect for dignity rather than vengeance. The Preamble to the Constitution itself calls for “ubuntu but not victimisation.” Justices Mokgoro and Langa expanded on this, linking it to restorative justice.
The Court conducted a limitations analysis (section 33) and found that even if the penalty served a legitimate purpose, it was not proportionate or justifiable in an open and democratic society based on freedom and equality.[12]
- Judgment and Ratio Decidendi
The Court unanimously declared section 277(1)(a) of the Criminal Procedure Act inconsistent with the Constitution and therefore unconstitutional. All existing death sentences were set aside, and the death penalty was abolished permanently.[13]
Ratio Decidendi: The death penalty is a cruel, inhuman and degrading punishment that violates the rights to life and dignity. It cannot be saved by the limitations clause. The Constitution demands respect for the intrinsic worth of every individual, making capital punishment incompatible with the new democratic order.[14]
- Critical Analysis
8.1 Significance of the Decision
The judgment in S v Makwanyane made a landmark contribution to the development of South African constitutional law. It was one of the first major case that raised Constitutional questions and gave precedent to transformative constitutionalism. The Court resolved a previously uncertain legal question by declaring that the death penalty was incompatible with the interim Constitution. The court moved away from unconstitutional practices and old apartheid era law that accepted the death penalty. Internationally, the decision aligned South Africa with the growing global consensus against the death penalty and reinforced the country’s commitment to human rights standards under instruments such as the Bill of Right.[15]
8.2 Implications and Impact
The judgment immediately spared a lot of inmates who were due for a death penalty execution. In practice, it changed how courts think about sentencing and made human dignity a central part of criminal law. The case set precedent for any matter involving life and punishment. It has influenced government policy on crime and justice.[16]
8.3 Critical Evaluation
The strengths of the judgment are its clear reasoning, use of ubuntu, and strong protection of human rights. However, some people criticise it for ignoring how serious the crime problem was in South Africa. Others say the Court went too far and should have left the decision to Parliament. While I agree with the outcome, the Court could have considered public opinion more carefully. Overall, the judgment is important but shows the difficult balance between rights and the realities of society.[17]
- Conclusion
In summary, S v Makwanyane abolished the death penalty in South Africa. The Constitutional Court found that it violated the rights to life and dignity and was a cruel punishment. The most important point is that every person has inherent worth, even criminals. This case will be remembered as a key moment that established strong human rights protection after apartheid. Its legacy is a legal system that values dignity and rehabilitation over revenge. Although crime remains a big problem, the judgment continues to guide the development of South African law. The Case show cased transformative constitutionalism and Ubuntu.[18]
Reference List
Primary Sources:
S v Makwanyane and Another (CCT 3/94) [1995] ZACC 3; 1995 (3) SA 391 (CC); 1995 (6) BCLR 665 (CC).
Secondary Sources:
Constitutional Court of South Africa, ‘Landmark Cases’ (Constitutional Court Website) https://www.concourt.org.za/index.php/23-history-of-the-court/landmark-cases/90-landmark-cases accessed 2 July 2026.
Dugard J, ‘The Death Penalty in South Africa: A Human Rights Perspective’ (1996) 12 South African Journal on Human Rights 193.
Mokgoro Y, ‘Ubuntu and the Law in South Africa’ (1998) 4 Buffalo Human Rights Law Review 15.
Rickard C, ‘The Death Penalty and the Constitutional Court’ (1995) 112 South African Law Journal 553.
[1] S v Makwanyane and Another (CCT 3/94) [1995] ZACC 3.
[2] Constitutional Court of South Africa, ‘Landmark Cases’ (Constitutional Court) https://www.concourt.org.za/index.php/23-history-of-the-court/landmark-cases/90-landmark-cases accessed 2 July 2026.
[3] S v Makwanyane (n 1) para 1.
[4] Carmel Rickard, ‘The Death Penalty and the Constitutional Court’ (1995) 112 South African Law Journal 553.
[5] S v Makwanyane (n 1) paras 1–4.
[6] Ibid para 6.
[7] Ibid paras 9–12.
[8] Ibid paras 15–20.
[9] Ibid paras 25–30.
[10] Ibid para 9.
[11]Ibid paras 48–67.
[12]Ibid paras 223–227 (Mokgoro J).
[13]Ibid para 144.
[14]Ibid paras 95–100 (Chaskalson P).
[15]Ibid paras 9–10.
[16]Mohamed v President of the Republic of South Africa 2001 (3) SA 893 (CC).
[17]John Dugard, ‘The Death Penalty in South Africa: A Human Rights Perspective’ (1996) 12 South African Journal on Human Rights 193.
[18] S v Makwanyane (n 1) para 224.
