Authored By: Itumeleng Maria Phancy Dibetso
University of South Africa
CASE NAME
S v Makwanyane and Another 1995 (3) SA 391 (CC)
COURT – Constitutional Court of South Africa
Introduction
S v Makwanyane and Another 1995 (3) SA 391 (CC) is one of the most influential cases in the constitutional law of South African cases. It was the first major Constitutional Court judgement delivered by the constitutional Court after the adoption of the South Africa’s interim Constitution of 1993. This case dealt with weather death penalty was compatible with the constitutional rights guaranteed in the new democratic order, this was due to the fact that capital punishment was a lawful sentence for serious crimes like murder. Therefore it was required for the constitutional Court for laws to comply with values of human dignity, equality and freedom.
Therefore the Constitutional Court unanimously held that the death penalty violated the constitutional rights to life and human dignity and constituted cruel, inhuman and degrading punishment, as a result, capital punishment was declared unconstitutional and abolished in South Africa.
Facts of the Case
The applicants Makwanyane and Mchunu had been convicted of murder and robbery with Aggravating circumstances in the then Provincial Division of the Supreme Court, following their conviction they were then sentenced to death in accordance with the Criminal Procedure Act, which permitted capital punishment for serious offences.
During that time South Africa had recently adopted the interim Constitution which produced the Bill of Rights protecting the fundamental human rights. The applicants then challenge their sentencing arguing that that the death penalty infringes several constitutional rights protected under the interim constitution.
Therefore the Constitutional Court was required to determine whether legislation authorising the death penalty was consistent with the constitution. Therefore the case raised issues of exceptional constitutional importance due to the fact that it was the courts first opportunity to interpret the bill of rights in relation to the criminal punishment.
Legal Isuues
The courts included the following constitutional questions:
∙ Whether the death penalty infringed the rights to life
∙ Whether capital punishment violated the right to human dignity
∙ Whether the death penalty amounted to cruel, inhuman or degrading punishment ∙ Whether limiting these constitutional rights could be justified under the constitutions limitation clause
∙ Whether public opinion should determine constitutional rights
Constitutional provisions considered
The court mainly relied in the Interim constitution of 1993 particularly on the following:
∙ Section 9 – Right to Life
∙ Section 10 – right to human Dignity
∙ Section 11(2) – Freedom from torture and cruel, inhuman or degrading punishment ∙ Section 33 – Limitation of Rights
These provisions reflected South Africa’s commitment to building a democratic society founded on respect for human rights under decades of apartheid
Arguments Presented
Applicants
The Applicants argued that the death penalty permanently deprived their rights to life, which is one of the fundamental rights of the constitution, they submitted that every individual possess inherent dignity, regardless of the crime they committed and that execution destroys this dignity by treating offenders as beyond redemption.
They further argued that the capital punishment constitutes a cruel, inhuman and degrading punishment because it involves the deliberate taking of a life by the state, they also questioned whether the death penalty effectively deters the crime, noting that there was no conclusive evidence demonstrates that executions reduce violent crime more effectively than life imprisonment.
The state
The state that the death penalty remained appropriate for serious crimes such as murder it maintained that capital punishment served legitimate objectives including deterrence, retribution, prevention of future offices and public protection. The state also argues that many of South African citizens supported death penalty due to the high level of crimes, it submitted that the public’s opinion should also be considered when determining whether capital punishment was constitutionally acceptable.
The Courts Reasoning
Chief justice Arthur Chaslalson delivered the principal judgement of the Constitutional Court, where the Court adopted a value-based approach to constitutional interpretation, emphasising that the constitution is founded on the respect for human dignity, equality and freedom.
The court held that the right to life is the most fundamental of all rights because every other constitutional right depends on it. Therefore by authorising the deliberate execution of a person the death penalty permanently deprives an individual of this right, unlike imprisonment, where corrective measures can be taken in case of a miscarriage of justice unlike death penalty where it is irreversible an can create an unacceptable risk that an innocent person could be put to death.
The court also found that the death penalty violates the constitutional right to human dignity. The right to human dignity belongs to every individual regardless of the nature of the offence committed. Therefore the Constitution recognise that all peoples possess this protection does not disappear after conviction. The court found that executing an offender treats the individual as beyond rehabilitation and denies the possibility of personal reform.
The court also held that capital punishment amounts to cruel, inhuman and degrading punishment and the prolonged period spent awaiting execution often causes severe psychological suffering, which is also referred to “death row phenomenon”. The court further considered international and comparative law and observed that many democratic countries had abolished the death penalty or were moving towards abolition. Although foreign law was not binding it provided useful guidance in interpreting South African’s Constitution and reinforced the conclusion that capital punishment was inconsistent with constitutional values Overall the court rejected the argument that public opinion should determine constitutional rights, while public views may inform legislative policy, the constitution exists to protect fundamental rights, particularly where they may be unpopular. The responsibility of the constitutional court is to uphold the constitutional principles rather than decide cases according to majority opinion
Judgement
The constitutional Court unanimously declared the death penalty unconstitutional, it held that capital punishment violated the rights to life, human dignity and freedom from cruel, inhuman or degrading punishment guaranteed by the Interim Constitution. The criminal Procedure Act authorising the death penalty were decaled invalid and the applicants death sentences were set aside
Ratio Decidendi
The judge immediately abolished the death penalty in South Africa and required that persons who had been sentences to death receive lawful alternative sentences
Significance of the Case
S v Makwanyane and Another is regarded as one of the most significant cases ever held in South African history. It demonstrated how the Constitution is the Supreme Law and that all legislation must comply with the Constitutional rights and values.
The Constitutional courts judgement confirmed that the courts have the authority to declare legislations unconstitutional where it infringes protected rights. The judgement strengthened the independence of the constitutional court by showing that constitutional rights cannot be overridden by public opinion or political pressure and also promoted a justice system based on fairness, proportionality and respect for human rights.
Critical Analysis
The decision in S v Makwanyane and Another reflects the Constitutional Courts commitment to building a democratic society founded on the constitutional values rather than punishment driven by emotion or public anger. One of the judgments greatest strengths is its recognition that the criminal justice system is not infallible.
Implication and Impact
However the right to life, human dignity and freedom is only focused on the offenders and not victims, this right only protects an individual who has done the harmful act, and not the victim. Victims are stripped off this rights by the offenders, victims that suffer from inhuman crimes like rape and murder are not served enough justice, they are stripped their right to life, human dignity and freedom but their offenders will still continue with their lives after taking someone else’s life.
Critical evaluation
I believe that inhuman crimes like rape and murder should be punishable by the death penalty, in cases where there is sufficient proof that renders a person guilty of the crime. That way the rate of serious crimes in South Africa will be reduced. I believe that an inhuman crime should be punishable by inhuman measures. Because we all have the right to equality, right to life, human dignity and freedom and no one is above the law.
Conclusion
S v Makwanyane and Another remains one of the defining judgements of South African constitutional law. The right to life, human dignity and freedom from cruel inhuman and degrading punishment are among the most fundamental rights protected by the constitution. The constitutional courts declaration of the death penalty to be unconstitutional has established an enduring precedent that constitutional rights cannot be sacrificed in response to public opinion or demands for harsher punishment.
This case continues to shape human rights jurisprudence and criminal justice in South Africa, this case serve as a lasting reminder that the constitution protects the inherent dignity and worth of every person and that the rule of law requires all exercises of state power to comply with constitutional values
Reference(S):
Books
∙ Currie, I. & De Waal, J., 2013. The Bill of Rights Handbook. 6th ed. Cape Town: Juta ∙ De Waal, J., Currie, I. & Erasmus, G., 2001. The Bill OG Rights Handbook. 4th ed. Cape Town: Juta
∙ Woolman, S. & Bishop, M. (eds), 2013. Constitutional Law of South Africa. 2nd ed. Cape Town: Juta
Case law
∙ S v Makwanyane and Another 1995 (3) SA 391 (CC)
