S V Makwanyane

Facts of the Case

This case concerns two male persons, T Makwanyane and M Mchunu, who were convicted in a trial court for numerous serious crimes, including four counts of murder, one count of attempted murder, and robbery with aggravating circumstances. The trial court sentenced them to death for each murder count, which was the competent sentence for murder at the time under section 277(1)(a) of the Criminal Procedure Act 51 of 1977. The perpetrators appealed to the court’s judgment and sent sentences to the Appellate Division which is now called the Supreme Court of Appeal. While their appeal against the convictions was dismissed, a critical new factor had emerged: the interim Constitution of the Republic of South Africa, 1993, had come into force after their trial but before the appeal was heard. This new Constitution was the supreme law and included a Bill of Rights.

Because of this, the Appellate Division did not rule on the death sentence itself. Instead, it postponed that part of the appeal and referred the core constitutional question to the newly established Constitutional Court for a decision. The standing question now was the death penalty constitutional under the new interim Constitution?

The Legal Issue of this case

– The legal issue was whether the death penalty was prescribed by or was it consistent with newly adopted interim constitution of south Africa, 1993. More specifically, did it violate the fundamental rights enshrined in Chapter 3 of the Constitution?

–  The fundamental question was whether the death penalty violated the right to life enshrined in section 9 and right to dignity which is section 10.

Arguments and Court Reasoning

The arguments presented to the Court represented a clash between the old legal order and the new constitutional vision.

Arguments

The defense argued that the death penalty was a violation of the rights to life, dignity, and freedom from cruel punishment. They also highlighted the irreversible nature of the punishment and its arbitrary application, often influenced by factors like race and poverty. The state argued that the death penalty was a necessary and acceptable punishment. They contended that it served as a deterrent to violent crime and was an appropriate form of retribution. Crucially, they argued that since the Constitution’s framers did not explicitly ban the death penalty, it was not unconstitutional. The South African Government, represented by George Bizos, took the unusual step of agreeing with the accused, stating that it accepted the death penalty was cruel, inhuman, and degrading and should be declared unconstitutional.

Court’s Reasoning

The Constitutional Court, in a unanimous landmark judgment delivered on 6 June 1995, sided with the accused and the government.

The Court’s reasoning was based on purposive and generous interpretation of the Constitution, as established in its earlier decision in S v Zuma. It looked at the Constitution’s historical context as a historic bridge from a past of injustice to the future of human rights and democracy.

On the merits, the Court reasoned that the death penalty was unconstitutional for several reasons:

1. Violation of Core Rights:

 The sentence extinguishes the right to life and annihilates human dignity. As the right to life is a foundational right without internal limitations in the Constitution, the state could not justify taking it away.

         2. Arbitrariness

 The Court found that the application of the death penalty was inherently arbitrary and discriminatory. The outcome could depend on the quality of the legal team, the attitude of the judge, and other factors, rather than simply the nature of the crime. This was a legacy of the “arbitrary and capricious” past the Constitution sought to leave behind.

3. Irreversibility

The execution is final. If a mistake is made, there is no way to correct it, which is irremediable.

4. Lack of Justification

The Court applied the limitation clause to test if the violation could be justified. It rejected deterrence as a sufficient reason, noting a lack of evidence that the death penalty is a more effective deterrent than life imprisonment. It also rejected retribution (vengeance), stating that it was not compatible with the society envisioned by the Constitution, which is rooted in values like *ubuntu* (a concept of humaneness and interconnectedness).

5. The Role of the Court

 The Court stressed that its duty was to interpret the Constitution, not to follow public opinion. It stated that if public opinion were decisive, there would be no need for constitutional adjudication.

The Final Judgement

The Constitutional Court made a definitive ruling on the following factors:

1. The death penalty was declared inconsistent with the Constitution.
2. Section 277(1)(a) of the Criminal Procedure Act, and any other law that permitted capital punishment, was struck down as invalid.
3. The Court ordered that all prisoners on death row awaiting execution should remain in custody and have their sentences set aside and substituted with lawful punishments. No executions would take place.

The Conclusion

S v Makwanyane was more than just a case about a sentencing policy; it was the first politically and publicly controversial case of the newly established Constitutional Court. It set the tone for South Africa’s new constitutional democracy. The judgment powerfully affirmed the supremacy of the Constitution and established the Court as the ultimate guardian of fundamental rights. It was a decisive break from South Africa’s authoritarian past, signaling a firm commitment to human dignity, equality, and a culture of justification where state power must be rationally and constitutionally justified. By abolishing the death penalty, the Court demonstrated that the new South Africa would be defined not by vengeance, but by a profound respect for life, even for those who had committed the most serious crimes. It remains a cornerstone of South African constitutional jurisprudence.