S v Makwanyane and Another

1. Case Citation and Basic Information

Case name: S v Makwanyane and Another

Citation: (CCT3/94) [1995] ZACC 3; 1995 (6) BCLR 665; 1995 (3) SA 391; [1996] 2 CHRLD 164; 1995 (2) SARC 1

Delivered on: 6 June 1995

Judges/bench composition: Chaskalson P, Ackermann, Didcott, Kriegler, Langa, Madala, Mahomed, Mokgoro, O’Regan and Sachs JJ, Kentridge AJ

2. Introduction

The case of S v Makwanyane is an innovative case in the South African Constitutional Court, which dealt with the rights to life and dignity that were infringed upon considerably in the period of apartheid. The decision dramatically altered both South African law and society by outlawing the death penalty and having a substantial influence on the interpretation and implementation of constitutional rights by South African Courts. Some of the most important elements of decision have had a lasting effect on the legal practise of the South African courts, particularly the criminal justice system of South Africa and constitutional law. The abolishment of the death penalty resulted in important changes in the interpretation and application of the rights to life, dignity, personal liberty, security, limitation of rights, the indigenous value of ubuntu and the role of public opinion on adjudication.[1]

Facts of the case.

The two accused were found guilty in Witwatersrand Local division of the Supreme Court for four counts of murder, one count of attempted murder, and another of robbery under aggravating circumstances. They were given a death sentence for each count of murder and very long prison sentences for the rest of the counts. They lodged an appeal against both their convictions and sentencing to the Appellate Division of the Supreme Court. The appeal against conviction was turned down by the Appellate Division. According to section 277(1)(a) of the Criminal Procedure Act No 51 of 1977, death penalty is a legitimate penalty for murder. The Appellate Division referred to the accused’s counsel on whether this section was in accordance with the Constitution of the Republic of South Africa, 1993, passed after the judgement and imposition of punishment by the trial court. The counsel maintained that it was not, and it contradicted sections 9 and 11(2) of the Constitution. The Appellate Division dismissed the appeals relating to the sentences for attempted murder and robbery but reserved the hearing of the appeals dealing with the death sentence until this court deals with the constitutional questions.[2]

There were two main issues that were raised; the constitutionality of section 277(1)(a) of the Criminal Procedure Act and the consequences of section 241(8) of the Constitution. Although there was no referral of these issues to this court as envisaged by section 102(6) of the Constitution, this type of referral clearly understood from the Judgement of the Appellate Division and was accepted by the parties. As the trial was conducted before the introduction of the interim Constitution, the constitutional nature of the death penalty had not been raised at the trial stage. [3]

4. Legal Issues

Issue 1: Whether section 277(1)(a) of the Criminal Procedure Act 51 of 1977, which allows for the imposition of the death penalty as a valid punishment for murder, conflicts with section 11(2) of the Constitution which prohibits cruel, inhuman, or degrading treatment or punishment.

Issue 2: Whether the imposition of the death penalty constitutes a violation of the fundamental right to life (section 9) and right to human dignity (section 10) provided for in chapter 3 of the Constitution.

Issue 3: Whether the implementation of the death penalty, if deemed to violate such rights, would be constitutionally justified under the limitation clause (section 33).

5. Arguments Presented

5.1 Petitioner/Appellant’s Arguments

Grounds under which Counsel for the Appellants argued the constitutionality of Section 277(1)(a) of the Criminal Procedure Act include:

Infringement of Fundamental Rights: It was contended that the death sentence is a mockery of human dignity and is incompatible with the unqualified right to life enshrined in Section 9 of the Constitution.[4]

Cruel, Inhuman or Degrading Punishment: It was contended that the death penalty, by its very nature, is a cruel, inhuman or degrading punishment that goes against the rights guaranteed in Section 11(2). [5]

It was argued that the decision in capital cases depended on many chance elements like the quality of the investigation, prosecution, judge and defence counsel.

Impact of Poverty and Race: It was pointed out that most accused sentenced to death were poor, and depended upon the pro deo system, which usually lacked the means to mount an effective defence resulting in inequality of protection under the law.[6]

Disparity between Regions: Counsel submitted that the discrimination between regions in the application of the death penalty in South Africa (the death penalty had been abolished in the former Ciskei, whereas it existed everywhere else) was discriminatory, as it denied the right to equality before the law enshrined in Section 8.[7]

Negation of Essential Content of Right: According to Section 33(1)(b) of the Constitution, it was impossible for the State to restrict a right in such a manner as to negate its essential content, as capital punishment negated all other rights to life and dignity.

5.2 Respondent’s Arguments

The Respondent (who was represented by the Attorney General), on the other hand, maintained that Section 277(1)(a) of the Criminal Procedure Act was a valid limitation of rights under the Constitution for the following reasons:

Deterrence as Main Objectives: It was argued that the imposition of death sentence is an essential means of combating violent crimes, and that it works as a better deterrent than life imprisonment.[8]

Security of the Prison Warders and other Inmates: It was argued that the execution of the “worst of the murderers” is necessary to protect the prison warders and other inmates from danger if these people were to be sent to life in prison instead.[9]

Contemporary Public Opinion and Societal Standards: It was argued that the meaning of cruel, inhuman or degrading treatment depends upon current standards of society.[10]

Legislative Intention and Deference: It is the State’s position that the lack of express provision in the Constitution regarding prohibition of the death penalty shows the intention to allow Parliament to decide on the matter.

Court’s Reasoning and Analysis

The Court found that Section 277(1)(a) of the Criminal Procedure Act infringed on several already established rights. The Court ruled that death constitutes the most extreme form of punishment possible, which is considered cruel, inhuman, or degrading treatment according to Section 11(2). The penalty was also seen as inherently cruel not just due to its nature, but also due to the “death row phenomenon” referring to mental suffering undergone by prisoners waiting for their sentence to be carried out for years. According to Sections 9 and 10, the right to life and dignity are the basis of any other personal right. The Court ruled that executing someone violates human dignity as it treats a human being as something to be eliminated from the State. It was also found that carrying out the death penalty process was inherently inconsistent and discriminatory. It was noted that outcomes of capital trials were often dependent on chance in a way, as they would depend on the effectiveness of legal representation (often limited in public legal assistance), skills of a prosecutor, and personal attitude of the trial judge towards capital punishment.

As per Section 33, it became the duty of the State to prove that the death penalty was justifiable and necessary for the restriction of these rights. Proportionality was the measure used by the Court to evaluate the claims of the State. It decided that there was not enough proof offered by the State in support of the claim that the death penalty is a more effective deterrent than the life imprisonment. It stated that the most effective method of prevention of crime is the risk of detection and conviction of the offender and not the severity of the punishment. It acknowledged the moral indignation of society but stated that retribution could not be viewed as equivalent to vengeance in a constitutional state. The Court raised the concept of Ubuntu that represents a value of compassion, social justice and the move from revenge to reconciliation.

Finally, the Court addressed the reliance of the State on public opinion. Public opinion, according to the Court, may favour the death penalty; however, this does not mean that the Court does not have its own role to play as an impartial adjudicator. The State failed to make a “clear and convincing case” for the necessity of capital punishment.[11]

7. Judgement and Ratio Decidendi

In its unanimous decision, the Constitutional Court declared Sections 277(1)(a), (c), (d), (e) and (f) of the Criminal Procedure Act 51 of 1977, and all other sections having the same effect in the national territory to be inconsistent with the interim constitution and thus invalid. The legal precedent set forth in this matter is that the death penalty is regarded as an inhumane and degrading mode of punishment and thus violates the absolute right to life and human dignity. The Court concluded that the State failed to provide “clear and convincing” empirical evidence under the Section 33 limitations clause that shows that the death penalty is a better deterrent than life imprisonment. Further, the random and irreversible nature of the death penalty makes it incompatible with a constitution founded on Ubuntu and human rights. The State and all its departments can no longer be permitted to execute those who have already received the sentence of death. Those presently serving time on death row will remain in custody until their sentences are reversed by a competent court, which will impose proper punishments like life imprisonment on them. [12]

8. Critical Analysis

The case of Sv Makwanyane is very central in understanding transformative constitutionalism in South Africa. The key significance of the case is the shift from “parliamentary sovereignty” to constitutional supremacy, where no law whatsoever, regardless of how many people favour it, shall be allowed to supersede existing rights. Makwanyane brought the traditional indigenous value of Ubuntu within the legal framework of South Africa by establishing the connection between a violent past and a humanitarian future. The immediate effect of this was that the death penalty was abolished, as well as the banning of the state from conducting any executions; this affected more than 400 people who had been awaiting execution. This led to a two-stage approach in determining proportionality under section 33, requiring that the state prove “clear and convincing” evidence to justify any limitation of the fundamental rights. This led to a scenario whereby the government would be required to give sensible explanations for the exercise of power. The court also managed to affect human rights standards in Southern Africa using fundamental rights.

The one major advantage about the decision is the conscious interpretation of the rights to life and dignity as “unqualified” rights and a starting point from which all other personal rights stem. The refusal by the Court of relying on the public opinion instead of taking care of its duty was a bold and yet necessary move that helped protect “marginalized social outcasts.” One potential flaw may be in the reluctance of the Court to define “essential content” of the right to life described in Section 33(1)(b), thus creating uncertainty for future debates about abortion or euthanasia

9. Conclusion

S v Makwanyane is the major case in South African law relating to transformative constitutionalism. It ruled that capital punishment is unconstitutional by prioritizing the right to life and right to dignity above punishment sanctioned by the government. It was an important decision since the concept of Ubuntu was brought into practice as part of the law and led to the shift from the country’s previous practice of emphasizing authority to a practice of emphasizing justification. It led to the establishment of the supremacy of the constitution and human rights law.

Reference(S):

[1] Roxan Laubscher & Marius van Staden, Landmark Constitutional Cases That Changed South Africa (September 2023)

[2] S v Makwanyane and Another [1995] ZACC 3, 1995 3 SA 391 (CC) paras 1-2

[3] S v Makwanyane and Another [1995] ZACC 3, 1995 3 SA 391 (CC) paras 3-4

[4] S v Makwanyane and Another [1995] ZACC 3, 1995 3 SA 391 (CC) paras 4

[5] S v Makwanyane and Another [1995] ZACC 3, 1995 3 SA 391 (CC) paras 4

[6] S v Makwanyane and Another [1995] ZACC 3, 1995 3 SA 391 (CC) paras 6

[7] S v Makwanyane and Another [1995] ZACC 3, 1995 3 SA 391 (CC) paras 6

[8] S v Makwanyane and Another [1995] ZACC 3, 1995 3 SA 391 (CC) paras 4

[9] S v Makwanyane and Another [1995] ZACC 3, 1995 3 SA 391 (CC) paras 6

[10] S v Makwanyane and Another [1995] ZACC 3, 1995 3 SA 391 (CC) paras 8

[11] S v Makwanyane and Another [1995] ZACC 3, 1995 3 SA 391 (CC) paras 1-6, 9-11, 13-14,17-18, 21-22,25-26, 29-15, 32-33, 36-37, 39-33, 40-27

[12] S v Makwanyane and Another [1995] ZACC 3, 1995 3 SA 391 (CC) paras 2,5,8,11,14, 18