S v Makwanyane and Another

Case Summary: S v Makwanyane and Another

Case citation and Basic information

Case name: S v Makwanyane and Another

Citation: 1995 (3) SA 391 (CC)

Court: Constitutional Court of South Africa

Date of Judgment: 6 June 1995

Judges:

President Arthur Chaskalson, Mahomed DP, Ackermann J, Didcott J, Kentridge AJ, Kriegler J, Langa J, Madala J, Mokgoro J, O’Regan J and Sachs J.

Introduction

One of the most significant constitutional rulings in South African legal history is the case of S v. Makwanyane and Others. The question of whether the death sentence was consistent with the rights protected by South Africa’s Interim Constitution was addressed by the Constitutional Court in 1995. The ruling was made at a time when the nation was transitioning from apartheid’s injustices to a legal system based on democracy, equality, respect for fundamental rights, and human dignity.[1]

The case arose when the appellants were convicted of murder and sentenced to die under legislation that permitted capital punishment. The right to life, human dignity, and protection against harsh, inhuman, or degrading punishment were among the constitutional rights that the Constitutional Court had to decide if the death sentence infringed. The Court considered the goals of the Bill of Rights, comparative international jurisprudence, and constitutional ideals while making its ruling.[2]

The judgment is regarded as a landmark decision because it permanently abolished the death penalty in South Africa and reinforced the principle that constitutional rights apply to every person, regardless of the offence committed. Its reasoning continues to influence constitutional interpretation and human rights jurisprudence both within South Africa and internationally.[3]

Facts of the case

The case concerned two accused persons, Makwanyane and Mchunu, who were convicted in the former Witwatersrand Local Division of the Supreme Court on multiple charges, including murder. The trial court found that the offences were of such a serious nature that the death sentence was the appropriate punishment under the criminal law then in force.[4]

Following the convictions, the case was brought before the Constitutional Court due to the introduction of a Bill of Rights that safeguarded essential human rights in the recently formed Interim Constitution. Whether laws permitting the death penalty were in line with these constitutional rights was the main point of contention.[5]

The appellants claimed that the death penalty violated several fundamental rights, such as the right to life, the right to human dignity, and the prohibition against harsh, inhuman, or humiliating punishment. The State insisted that the death penalty was still a legitimate and essential punishment for the most heinous crimes and that it served to safeguard society, prevent crime, and exact revenge.[6]

Given the importance of the constitutional issues raised, the Constitutional Court agreed to determine whether the death penalty could continue to exist under South Africa’s new constitutional order.[7]

Legal issues

The Constitutional Court had to determine several important constitutional questions arising from the case. The primary legal issue was whether the death penalty, as authorised by South African law at the time, was consistent with the Interim Constitution of 1993.

The Court considered the following:

1. Whether the death penalty violated the constitutional right to life.
2. Whether capital punishment infringed the right to human dignity.
3. Whether the death penalty constituted cruel, inhuman, or degrading punishment prohibited by the Constitution.
4. Whether limiting these fundamental rights could be justified under the Constitution’s general limitations clause.
5. Whether public opinion, deterrence, and retribution were sufficient reasons to uphold the constitutionality of the death penalty.

To us resolve these difficulties, the Court had to weigh the State’s desire to punish major criminals against its constitutional obligation to defend and preserve each person’s fundamental rights.

Arguments presented

Appellants Arguments

The appellants argued that the death penalty was incompatible with the values and rights protected by the Interim Constitution. They submitted that every individual has an inherent right to life and that this right cannot be taken away by the State as a form of punishment. They further contended that the death penalty violates the constitutional right to human dignity because it treats a person as undeserving of the most basic respect and worth that the Constitution guarantees to all individuals.

Additionally, the appellants contended that the death penalty is harsh, barbaric, and degrading. They argued that a constitutional system based on respect for human rights was incompatible with the agony of waiting for death and the irreversible character of the penalty. Furthermore, they questioned whether the death penalty was a more effective deterrent to serious crimes than life in prison, claiming that there was insufficient data to make that claim.

Respondent’s Arguments

The State maintained that the death sentence was still a suitable punishment for serious crimes like murder. It argued that the death penalty had significant benefits, such as discouraging future offenders, shielding society from dangerous criminals, and guaranteeing that victims and their families received justice.[8]

The respondent went on to say that the Constitution allows for the reasonable and fair limitation of some rights. The State claimed that the death penalty should be kept as an extraordinary remedy due to the severity of violent crime in South Africa. Additionally, it said that while deciding whether the death penalty was constitutionally permissible, the opinions of the public—many of whom at the time favoured it—should be taken into consideration.[9]

Court’s Reasoning and Analysis

The Constitutional Court thoroughly considered the principles and rights safeguarded by South Africa’s Interim Constitution before making its ruling. The Court underlined that the Constitution created a judicial system based on human dignity, equality, freedom, and respect for fundamental rights, marking a significant departure from the nation’s past. All laws, particularly those pertaining to criminal punishment, were to be interpreted in accordance with these basic principles.[10]

The Court determined that one of the most essential rights in a democratic society, the right to life, was directly violated by the death sentence. It further found that because the death penalty deprives people of their intrinsic value and treats them as being outside the protection of the Constitution, it violates the right to human dignity. The judges emphasised that everyone has fundamental rights, even those who have been found guilty of major crimes.[11]

Additionally, the Court found that the death penalty was a harsh, inhuman, and degrading form of punishment. It stated that the punishment was incompatible with the ideals of a constitutional democracy due to the uncertainty faced by inmates awaiting execution and the irreversible character of the sentence. The Court noted that there was no solid proof that executions were more successful than other harsh types of punishment in deterring crime, rejecting the claim that the death sentence was justified by its deterrent impact.[12]

The Court also considered comparative and international legal developments. It noted that several democratic countries have abolished the death penalty and acknowledged an increasing global commitment to defending human dignity and the right to life. The Court found that constitutional rights could not be superseded just because a punishment was deemed desirable or popular by some segments of the public, even admitting the severe criminal problems that South Africa faces. The Constitution continued to be the ultimate yardstick by which all laws had to be evaluated, not public opinion.[13]

Judgment and Ratio Decidendi

The Constitutional Court unanimously held that the death penalty was unconstitutional and therefore invalid under the Interim Constitution. The Court declared that capital punishment violated the rights to life and human dignity and amounted to cruel, inhuman, and degrading punishment. As a result, the provisions of the Criminal Procedure Act that authorised the death penalty could no longer be enforced in South Africa.[14]

The legal concept established by the case, known as the ratio decidendi, states that the State cannot impose a punishment that unjustly violates the fundamental rights protected by the Constitution. The Court upheld that the fundamental principles of South Africa’s constitutional democracy—the rights to life and human dignity—must be upheld, even when dealing with those found guilty of the most serious crimes. It additionally held that the death sentence did not meet the constitutional standards for any limitation of these rights.[15]

This ruling created a significant precedent for upcoming constitutional issues and permanently banned the death penalty in South Africa. It affirmed that the judiciary has an obligation to defend fundamental rights against unreasonable restrictions and that all legislation and government activities must adhere to the Constitution.[16]

Critical Analysis

Significance of the decision

The decision in S v Makwanyane is widely regarded as one of the most significant judgments in South African constitutional law. It established that the Constitution is the supreme law of South Africa and that all legislation must comply with the rights contained in the Bill of Rights. By abolishing the death penalty, the Court demonstrated its commitment to protecting fundamental human rights, even in cases involving serious criminal offences. The judgment also reinforced the importance of human dignity and the right to life as core constitutional values.[17]

Implications and Impact

The judgment had a lasting impact on South Africa’s legal system and constitutional development. It permanently ended the use of capital punishment and influenced the way courts interpret and apply the Bill of Rights. The case also strengthened public confidence in the Constitutional Court as an independent institution responsible for safeguarding constitutional rights. Beyond South Africa, the judgment has been recognised internationally and has been referred to in discussions on human rights and the abolition of the death penalty in other jurisdictions.[18]

Critical Evaluation

The Court’s ruling has been commended for upholding the principle that punishment must respect human dignity, regardless of the seriousness of the offence committed, and for placing constitutional values above public opinion. However, some critics contend that abolishing the death penalty removed a punishment that many believed would deter violent crime and provide justice for the families of victims. Despite these concerns, the Court found there was insufficient evidence to prove that the death penalty was a more effective deterrent than other severe penalties. Overall, the ruling balanced constitutional values and South Africa’s democracy.[19]

Conclusion

The decision in S v Makwanyane remains one of South Africa’s most influential constitutional judgments. By declaring the death penalty unconstitutional, the Constitutional Court reaffirmed the supremacy of the Constitution and the importance of protecting fundamental human rights, particularly the rights to life and human dignity. The judgment demonstrated the judiciary’s commitment to constitutionalism, even where public opinion favoured capital punishment. Furthermore, the case established an important precedent for the interpretation of the Bill of Rights and continues to influence constitutional jurisprudence in South Africa. It serves as a reminder that justice must always be administered in accordance with the principles of human dignity, equality, and freedom.[20]

Reference(S):

[1] S v Makwanyane and Another 1995 (3) SA 391 (CC).

[2] S v Makwanyane and Another 1995 (3) SA 391 (CC) paras 9–27.

[3] S v Makwanyane and Another 1995 (3) SA 391 (CC) paras 144–146.

[4] S v Makwanyane and Another 1995 (3) SA 391 (CC) paras 1–8.

[5] S v Makwanyane and Another 1995 (3) SA 391 (CC) paras 8–15.

[6] S v Makwanyane and Another 1995 (3) SA 391 (CC) paras 33–41.

[7] S v Makwanyane and Another 1995 (3) SA 391 (CC) paras 89–95.

[8] S v Makwanyane and Another 1995 (3) SA 391 (CC) paras 41–47.

[9] S v Makwanyane and Another 1995 (3) SA 391 (CC) paras 95–129.

[10] S v Makwanyane and Another 1995 (3) SA 391 (CC) paras 100–111.

[11] S v Makwanyane and Another 1995 (3) SA 391 (CC) paras 144–146.

[12] S v Makwanyane and Another 1995 (3) SA 391 (CC) paras 131–143.

[13] S v Makwanyane and Another 1995 (3) SA 391 (CC) paras 34–59.

[14] S v Makwanyane and Another 1995 (3) SA 391 (CC) paras 144–146.

[15] S v Makwanyane and Another 1995 (3) SA 391 (CC) paras 144–148.

[16] S v Makwanyane and Another 1995 (3) SA 391 (CC).

[17] S v Makwanyane and Another 1995 (3) SA 391 (CC) paras 144–148.

[18] S v Makwanyane and Another 1995 (3) SA 391 (CC); Constitution of the Republic of South Africa, 1996.

[19] S v Makwanyane and Another 1995 (3) SA 391 (CC) paras 129–148.

[20] S v Makwanyane and Another 1995 (3) SA 391 (CC); Constitution of the Republic of South Africa, 1996.

Bibliography

1. S v Makwanyane and Another.
2. Constitution of the Republic of South Africa Act 200 of 1993 (Interim Constitution).  
3. Criminal Procedure Act 51 of 1977.  
4. Klaasen A, ‘Constitutional Interpretation in the So-Called Hard Cases: Revisiting S v Makwanya