Authored By: Zuzile Mntambo
University of Fort Hare
- Case Citation and Basic Information
Full Case Name: S v Makwanyane and Another
Citation: 1995 (3) SA 391 (CC); 1995 (6) BCLR 665 (CC); 1995 (2) SARC 1 (CC); [1995] ZACC 3
Court: Constitutional Court of the Republic 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, Mahomed J, Mokgoro J, O’Regan J, and Sachs J.[1] [2]
- Introduction
S v Makwanyane is the first judgment ever delivered by South Africa’s newly established Constitutional Court, and it could not have been a more significant one. The case asked a question that had divided nations for centuries: could the death penalty survive in a constitutional democracy that cherished life and dignity above all? The framers of South Africa’s Interim Constitution had deliberately left this question unanswered, passing the burden on to the courts.
In a unanimous decision delivered on 6 June 1995, the Court declared capital punishment unconstitutional, holding that the state could not deliberately take life in a society founded on the values of human dignity, equality, and the right to life. Beyond its immediate abolition of the death penalty, the case established the Court’s interpretive approach generous, purposive, and rooted in both international human rights law and indigenous African values such as ubuntu setting the tone for South African constitutional jurisprudence for decades to come.[3]
- Facts of the Case
The two accused, Makwanyane and Mchunu, were convicted in the Witwatersrand Local Division of Supreme Court on four counts of murder, one count of attempted murder, and one count of robbery with aggravating circumstances. The crimes were committed during a robbery from a bank security vehicle delivering monthly wages to Coronation Hospital in Johannesburg.[4] All robbers were armed with Ak-47s, the gang opened fire on the security vehicle, and the accompanying police vehicle resulting in the death of two policemen and two bank security officials.[5]
The accused were sentenced to death on each count of murder and to long terms of imprisonment on the remaining counts[6]. They appealed to the Appellate Division of the Supreme Court against both convictions and sentences. The Appellate Division dismissed the appeals against the convictions, concluding that the circumstances of the murders warranted the heaviest sentence permissible by law[7].
However, the Interim Constitution had come into force after the trial, and the Appellate Division invited counsel to argue whether section 277(1)(a) of the Criminal Procedure Act which prescribed death as a competent sentence for murder was consistent with the new constitutional order.[8] The court postponed its decision on the death sentences and implicitly referred the constitutional question to the Constitutional Court.[9]
By this time, no executions had been carried out in South Africa since 1989. Over 300 prisoners remained on death row, some dating back to 1988, anxiously awaiting the resolution of this constitutional question.[10]
- Legal Issues
Issue 1: Whether section 277(1)(a) of the Criminal Procedure Act, which prescribed the death penalty as a competent sentence for murder, was inconsistent with the Constitution, particularly sections 8,9,10 and 11(2) of the Constitution Act 200 of 1993.[11]
Issue 2: Whether the death penalty constituted “cruel, inhuman or degrading treatment or punishment” prohibited by section 11(2) of the Constitution.[12]
Issue 3: Whether the death penalty violated the unqualified right to life guaranteed by section 9 of the Constitution.[13]
Issue 4: Whether the death penalty infringed the right to dignity protected by section 10 of the Constitution.[14]
Issue 5: Whether the disparate application of the death penalty across different geographic regions (particularly the abolition of the death penalty in Ciskei) infringed the right to equality before the law under section 8 of the Constitution.[15]
- Arguments Presented
5.1 Accused’s Arguments
The accused, represented by W. Trengove SC, advanced a powerful case against the death penalty. They argued that the death sentence was an affront to human dignity and inconsistent with the unqualified right to life entrenched in the Constitution.[16] The penalty, they contended, was irremediable if an innocent person was executed, no amount of compensation could reverse the injustice.[17] They further submitted that the application of the death penalty was inevitably arbitrary, influenced by factors such as race, poverty, and the quality of legal representation, rendering it inconsistent with the right to equality.[18] Additionally, they pointed to the disparity between laws in different parts of the country particularly the abolition of the death penalty in Ciskei as evidence of unfair discrimination.[19]
5.2 Respondent’s Arguments
The Attorney-General of the Witwatersrand, whose office is independent of government, argued for retention of the death penalty. He contested that the death penalty was a necessary and acceptable form of punishment, serving as a powerful deterrent to violent crime and meeting society’s need for retribution against the worst offenders.[20] He argued that if the framers had intended to abolish capital punishment, they would have said so explicitly, their silence indicated an intention to leave the matter to Parliament.[21] To the extent that the death penalty limited constitutional rights, the Attorney-General maintained it was justifiable under section 33(1) as a reasonable and necessary limitation in an open and democratic society.[22]
5.3 Government’s Position
The South African Government, represented by G. Bizos SC, took an independent and strikingly different position. It accepted that the death penalty constituted cruel, inhuman, and degrading punishment and should be declared unconstitutional.[23]
- Court’s Reasoning and Analysis
The Court, per Chaskalson P, adopted a “generous” and “purposive” approach to constitutional interpretation, drawing on principles established in S v Zuma and the Canadian case of R v Big M Drug Mart Ltd.[24] This meant that constitutional rights were not to be read narrowly or legalistically, but in a way that secured for individuals the full measure of their protection. The Court emphasized that section 11(2) must be interpreted in its context, including the history and background to the Constitution’s adoption, and in conjunction with section 9 (right to life), 10 (right to dignity), and 8 (right to equality).[25]
The Court found that the death penalty violated multiple constitution rights. It was cruel, inhuman, and degrading not only because it destroyed the very rights (life and dignity) that formed the foundation of the constitutional order.[26] The right to life, the Court also held, was not subject to incremental invasion; it was absolute.[27]
On the question of arbitrariness, the Court acknowledged that no system of capital punishment could eliminate the influence of chance- the quality of legal representation, the temperament of the judge, the effectiveness of the investigation, and the poverty of the accused.[28] As Chaskalson P observed, death was different from other punishments: unjust imprisonment could be reversed, but the killing of an innocent person was irremediable.[29]
The Court gave significant weight to public international law and foreign jurisprudence, as required by section 35(1) of the Constitution, while cautioning that South African courts were in no way bound to follow foreign decisions.[30] It noted that the Hungarian Constitutional Court, interpreting a constitution similar to South Africa’s, had declared the death penalty unconstitutional.[31]
Crucially, the Court addressed the role of public opinion. While acknowledging that the majority of South Africans favored the death penalty, the Court held that public opinion could not substitute for the Court’s duty as the independent arbiter of the Constitution.[32] As Chaskalson P memorably stated: “The very reason for establishing the new legal order, and for vesting the power of judicial review of all legislation in the courts, was to protect the rights of minorities and others who cannot protect their rights adequately through the democratic process.”[33]
The Court also considered the concept of ubuntu, derived from the postamble to the Constitution, emphasizing respect for human dignity and marking a shift from confrontation to conciliation.[34] Retribution, the Court held, should not be given undue weight; the Constitution envisioned a society founded on understanding rather than vengeance.[35]
Addressing justification under section 33, the Court held that the party relying on legislation to justify limiting a right bore the burden of proof. The Attorney-General had failed to show that the death penalty was a greater deterrent than life imprisonment.[36] The elements of arbitrariness and the possibility of error further undermined any claim of justification.[37]
- Judgement and ratio Decidendi
The Decision
The Constitutional Court unanimously held:
- The death sentence prescribed in section 277(1)(a) of the Criminal Procedure Act 51 of 1977, and all corresponding provisions sanctioning capital punishment in any part of the national territory, were inconsistent with the Constitution and accordingly invalid.[38]
- The death penalty infringed the right to life under section 9, the right to dignity under section 10, and the right not to be subjected to cruel, inhuman, or degrading punishment under section 11(2) of the Constitution.[39]
- The death penalty could not be justified as a reasonable and necessary limitation under section 33(1) of the Constitution.[40]
- The State and all its organs were forbidden to execute any person already sentenced to death. All such persons would remain in custody until their sentences were set aside and substituted by lawful punishments.[41]
The Court refrained from expressing any view on the constitutionality of the death penalty for treason committed during wartime, noting that different considerations might apply.[42]
Ratio Decidendi
The ratio decidendi of the case is:
“The death penalty constitutes cruel, inhuman and degrading punishment within the meaning of section 11(2) of the Constitution and violates the rights to life and dignity under sections 9 and 10. As such, it cannot be justified as a limitation under section 33(1). The state’s power to impose the death penalty is inconsistent with the constitutional values of human dignity, equality, and the right to life, and is therefore unconstitutional.”[43]
The Court further established that constitutional rights must be interpreted generously and purposively, with due regard to international law and foreign jurisprudence, but ultimately based on South Africa’s unique constitutional context, history, and values, including the concept of ubuntu.[44]
- Critical Analysis
8.1 Significance of the Decision
S v Makwanyane is foundational to South African constitutional law. As the inaugural judgment of the Constitutional Court, it established the Court’s authority and interpretive approach at the very moment of its birth.[45] The unanimous decision demonstrated the new constitutional order’s unwavering commitment to human rights and the supremacy of the Constitution. By resolving the question deliberately left open by the framers, the Court showed that it would not shrink from difficult constitutional questions.[46]
The judgment also established important methodological precedents. The adoption of a “generous” and “purposive” interpretive approach, influenced by Canadian jurisprudence, set the tone for future constitutional interpretation.[47] The affirmation of public international law as a tool of interpretation, alongside the incorporation of indigenous values such as ubuntu, created a uniquely South African constitutional jurisprudence that drew from both global human rights standards and local traditions.[48]
8.2 Implications and Impact
The decision had immediate and profound consequences. Approximately 400 prisoners on death row were granted reprieve, their sentences to be substituted by lawful punishments.[49] The decision was followed by legislation formally abolishing the death penalty for all crimes.
More broadly, Makwanyane established the constitutional framework for criminal justice in the new South Africa. The emphasis on human dignity and life as foundational values has influenced subsequent constitutional jurisprudence on a wide range of issues, from prison conditions to criminal procedure.[50]
The decision has also had significant international influence. The Court’s reasoning particularly its reliance on international human rights law and its incorporation of indigenous values has been cited in constitutional decisions in other jurisdictions.[51]
8.3 Critical Evaluation
The judgment has attracted both praise and criticism. Its strengths include the unanimous condemnation of state-sanctioned execution, the principled rejection of public opinion as a substitute for constitutional judgment, and the integrated reliance on international law and indigenous values.[52] The Court’s recognition that its duty was to protect the rights of minorities and the marginalized has been cited as a model of judicial constitutionalism.[53]
However, the judgment has faced criticism. Some have questioned the factual basis for the Court’s conclusions on the deterrent effect of the death penalty, arguing that the Court may have undervalued the specific South African context, including high levels of violent crime.[54] The judgment’s treatment of public opinion as largely irrelevant to constitutional adjudication has also been subject to debate, with critics arguing that democratic legitimacy requires some consideration of societal values.[55]
The judgment’s incorporation of ubuntu as a constitutional value has been the subject of scholarly critique. Some scholars have noted that the Court’s interpretation of ubuntu emphasizing humaneness and rehabilitation was selective and did not fully engage with the concept’s traditional meaning.[56] The judgment’s treatment of ubuntu as a source of constitutional values also raises questions about judicial interpretation of non-legal concepts and traditions.[57]
An alternative approach the Court could have taken would have been to follow the Indian model of upholding the death penalty while restricting its application.[58] However, this would arguably have been inconsistent with the unqualified language of sections 9 and 10 of the Interim Constitution.
- Conclusion
S v Makwanyane is a landmark decision that established the foundation of South Africa’s constitutional democracy. By declaring the death penalty unconstitutional, the newly established Constitutional Court asserted the supremacy of constitutional rights and the commitment to human dignity, life, and equality that would define South Africa’s post-apartheid legal order.[59] The unanimous judgment demonstrated the Court’s resolve to protect the rights of minorities against majoritarian impulses, establishing the Court as the independent guardian of the Constitution.[60]
The case’s lasting significance lies not only in its abolition of the death penalty but in its methodological contributions to constitutional interpretation. The generous, purposive approach to fundamental rights, the reliance on international law and foreign jurisprudence, and the incorporation of indigenous values such as ubuntu have shaped subsequent constitutional development in South Africa.[61] The decision remains a testament to the power of judicial constitutionalism in establishing a rights-based legal order after a history of systematic human rights violations.[62]
Implementation challenges remain, particularly regarding the appropriate sentencing framework for serious crimes in the post-death penalty era. However, the Court’s foundational commitment to the values of life, dignity, and equality continues to guide South African constitutional jurisprudence.[63]
Reference(S):
Primary Sources
Cases
S v Makwanyane and Another 1995 (3) SA 391 (CC).
S v Zuma and Others 1995 (2) SA 642 (CC).
R v Big M Drug Mart Ltd [1985] 1 SCR 295.
Secondary Sources
Chaskalson, A. “The Stare Decisis Doctrine and the Constitutional Court.” (1996) 113 SALJ 1.
Davis, D.M. “The New Constitutional Court and the Death Penalty.” (1995) 112 SALJ 526.
De Ville, J.R. “Constitutional Interpretation and the Death Penalty.” (1996) 112 SALJ 769.
Mokgoro, J. “Ubuntu and the Law in South Africa.” (1998) 1 Potchefstroom Electronic Law Journal 1.
Mureinik, E. “A Bridge to Where? Introducing the Interim Bill of Rights.” (1994) 10 SAJHR 31.
Sachs, A. “The Future of the Death Penalty in South Africa.” (1995) 1(1) Journal of South African Law 14.
[1] S v Makwanyane and Another 1995 (3) SA 391 (CC) para 1.
[2] Id. para 7.
[3] Id. paras 9-10, 33-39, 130-131.
[4] Id. para 319 (O’Regan J).
[5] Id.
[6] Id. para 1.
[7] Id.
[8] Id. para 2.
[9] Id. para 3.
[10] Id. para 6.
[11] Id. para 2.
[12] Id. para 8.
[13] Id. para 10.
[14] Id.
[15] Id. paras 28-32.
[16] Id. para 27.
[17] Id.
[18] Id.
[19] Id. para 30.
[20] Id. para 11.
[21] Id.
[22] Id.
[23] Id.
[24] Id. para 9, citing S v Zuma 1995 (2) SA 642 (CC) and R v Big Drug Mart Ltd [1985] 1 SCR 295.
[25] Makwanyane para 10.
[26] Id. para 26.
[27] Id. para 144.
[28] Id. paras 48-54.
[29] Id. para 54.
[30] Id. paras 33-39.
[31] Id. para 38.
[32] Id. paras 87-89.
[33] Id. paras 88.
[34] Id. paras 130-131.
[35] Id. para 131.
[36] Id. paras 116-12, 145-146.
[37] Id. para 146.
[38] Id. para 151.
[39] Id.
[40] Id.
[41] Id. para 151(2).
[42] Id. para 149.
[43] Id. paras 144-146.
[44] Id. paras 9-10, 130-131, 307-308.
[45] Davis, D.M., “The New Constitutional Court and the Death Penalty,” 112 SALJ 526, 527 (1995).
[46] Makwanyane paras 12-25.
[47] Id. para 9.
[48] Id. paras 33-39, 130-131.
[49] Id. para 6.
[50] Chaskalson, A., “The Stare Decisis Doctrine and the Constitutional Court,” 113 SALJ 1, 5 (1996).
[51] Sachs, A., “The Future of the Death Penalty in South Africa,” 1(1) Journal of South African Law 14, 18 (1995).
[52] Davis, supra note 45, at 535.
[53] Makwanyane para 88.
[54] De Ville, J.R., “Constitutional Interpretation and the Death Penalty,” 112 SALJ 769, 780 (1996).
[55] Id. at 782.
[56] Mokgoro, J., “Ubuntu and the Law in South Africa,” 1 Potchefstroom Electronic Law Journal 1, 8 (1998).
[57] Id. at 9.
[58] Banchan Sigh v State of Punjab (1980) 2 SCC 684; Makwanyane paras 70-79.
[59] Makwanyane para 7.
[60] Id. para 88.
[61] Mureinik, E., “A Bridge to Where? Introducing the Interim Bill of Rights,” 10 SAJHR 31, 35 (1994).
[62] Chaskalson, supra note 50, at 4.
[63] Makwanyane para 144.
