S v Makwanyane

Case Summary: S v Makwanyane

Case Citation and Basic Information

Case: S v Makwanyane and Another 1995 (3) SA 391 (CC); 1995 (6) BCLR 665 (CC)

Court: Constitutional Court of South Africa

Date of Judgment: 6 June 1995

Judges:

• President Arthur Chaskalson (who delivered the main judgment)
• Justice Laurie Ackermann
• Justice Richard Goldstone
• Justice John Didcott
• Acting Justice Sydney Kentridge
• Justice Richard Kriegler
• Justice Pius Langa
• Justice Tholie Madala
• Justice Ismail Mohamed
• Justice Yvonne Mokgoro
• Justice Kate O’Regan
• Justice Albie Sachs

Introduction

S v Makwanyane and Another is one of the most significant constitutional decisions in South African legal history.¹ Decided shortly after the adoption of South Africa’s Interim Constitution of 1993, the case required the Constitutional Court to determine whether the death penalty was compatible with the fundamental rights guaranteed by the Constitution.

The judgment marked a decisive break from South Africa’s apartheid past by affirming that constitutional values, rather than public opinion, form the basis of legal decision-making. The Court unanimously declared capital punishment unconstitutional because it violated the rights to life and human dignity and constituted cruel, inhuman and degrading punishment.² The decision permanently abolished the death penalty in South Africa and established foundational principles for constitutional interpretation, particularly the importance of human dignity, equality and freedom.

The judgment continues to influence constitutional jurisprudence both within South Africa and internationally. It illustrates how constitutional courts should balance competing interests while remaining faithful to the values embedded in a supreme constitution.

Facts of the Case

The applicants, Makwanyane and Mchunu, were convicted in the former Witwatersrand Local Division of multiple offences, including murder, robbery with aggravating circumstances and unlawful possession of firearms and ammunition.

At the time of their convictions, the Criminal Procedure Act 51 of 1977 permitted courts to impose the death sentence for certain serious offences, including murder where aggravating circumstances existed.³ The trial court sentenced both accused to death.

However, South Africa had recently undergone a constitutional transformation with the commencement of the Interim Constitution in 1994. The new constitutional order guaranteed several fundamental rights, including the right to life, the right to dignity and the right not to be subjected to cruel, inhuman or degrading punishment.⁴

Because the validity of the death penalty raised constitutional questions, the Appellate Division referred the matter to the Constitutional Court to determine whether the statutory provisions authorising capital punishment were consistent with the Interim Constitution.

The case therefore became the Constitutional Court’s first major human rights decision and required it to reconcile existing criminal legislation with the values of the new constitutional democracy.

Legal Issues

The Constitutional Court was required to determine the following constitutional questions:

1. Whether the provisions of the Criminal Procedure Act 51 of 1977 authorising the death penalty were inconsistent with the Interim Constitution of the Republic of South Africa, 1993.
2. Whether the imposition of the death penalty infringed the constitutional right to life guaranteed under section 9 of the Interim Constitution.
3. Whether capital punishment violated the right to respect for and protection of human dignity under section 10 of the Interim Constitution.
4. Whether the death penalty constituted cruel, inhuman or degrading punishment prohibited by section 11(2) of the Interim Constitution.
5. Whether the limitation of these constitutional rights could be justified under section 33, the general limitations clause of the Interim Constitution.

These issues required the Court to interpret the Bill of Rights in light of the values underpinning South Africa’s new constitutional democracy.⁵

Arguments Presented

1. Applicants’ Arguments

The applicants argued that the death penalty was incompatible with the values and guarantees contained in the Interim Constitution. They submitted that the Constitution places human dignity at the centre of the legal system and that the State cannot deliberately take the life of an individual, regardless of the seriousness of the crime committed.⁶

The applicants further contended that capital punishment amounts to cruel, inhuman and degrading punishment because it causes severe psychological suffering while prisoners await execution and permanently deprives them of any opportunity for rehabilitation or redemption. They argued that the irreversible nature of the death penalty also increases the risk of miscarriages of justice, as judicial errors cannot be corrected once an execution has taken place.

In addition, the applicants relied on international human rights law and comparative constitutional jurisprudence from countries that had abolished the death penalty.⁷ They submitted that South Africa’s new constitutional order should align itself with the growing international movement towards abolition and the protection of fundamental human rights.

Finally, they argued that even if deterrence and retribution were legitimate objectives of criminal punishment, these objectives could be achieved through alternative sentences such as life imprisonment without violating constitutional rights.

2. Respondent’s Arguments

The State argued that the death penalty remained an appropriate punishment for exceptionally serious offences, particularly premeditated murder. It maintained that capital punishment served important purposes within the criminal justice system, including deterrence, retribution and the protection of society against dangerous offenders.⁸

The respondent further submitted that South Africa faced extremely high levels of violent crime and that the death penalty reflected society’s demand for justice in the most serious criminal cases. According to the State, abolishing capital punishment could undermine public confidence in the administration of justice.

The State also argued that constitutional rights are not absolute and that any limitation imposed by the death penalty could be justified under section 33 of the Interim Constitution. It contended that the interests of society, victims and public safety should be balanced against the rights of convicted offenders.

Furthermore, the respondent suggested that Parliament, rather than the judiciary, was the appropriate institution to determine whether the death penalty should remain part of South African law because the issue involved matters of social and criminal policy.

Court’s Reasoning and Analysis

The Constitutional Court unanimously rejected the State’s arguments and held that the death penalty was inconsistent with the Constitution. Writing the principal judgment, President Arthur Chaskalson emphasised that South Africa’s Constitution introduced a legal order founded upon respect for human dignity, equality and freedom.⁹ These constitutional values required every law to be measured against the Bill of Rights.

The Court held that the right to life is the most fundamental of all rights because every other constitutional right depends upon it.¹⁰ Without the protection of life, the enjoyment of all other rights becomes impossible. Consequently, legislation permitting the State intentionally to execute an individual required the strictest constitutional scrutiny.

The Court further explained that human dignity is a foundational constitutional value that belongs to every person, including those convicted of serious crimes.¹¹ While offenders may lawfully be deprived of their liberty through imprisonment, they do not lose their inherent dignity as human beings. Executing a prisoner treats that individual as beyond redemption and is inconsistent with the constitutional commitment to respect for human dignity.

The judges also concluded that the death penalty constitutes cruel, inhuman and degrading punishment.¹² They observed that prisoners sentenced to death experience prolonged psychological trauma while awaiting execution, commonly referred to as the “death row phenomenon.” In addition, the irreversible nature of execution means that any judicial mistake results in an irreparable violation of constitutional rights.

The Court carefully considered whether capital punishment could nevertheless be justified under the constitutional limitations clause. Although it accepted that combating violent crime and protecting the public were legitimate governmental objectives, it found that the death penalty was neither necessary nor proportionate. Less restrictive alternatives, particularly life imprisonment, were available to achieve the same objectives while respecting constitutional rights.

Another important aspect of the Court’s reasoning concerned public opinion. The judges acknowledged that many South Africans supported the death penalty because of widespread violent crime. However, the Court stressed that constitutional rights cannot depend upon majority opinion.¹³ The purpose of a Bill of Rights is to protect individuals, especially minorities and unpopular groups, against the arbitrary exercise of governmental power. Constitutional adjudication must therefore be guided by legal principles and constitutional values rather than public sentiment.

Finally, the Court relied extensively on international and comparative law, as permitted by the Interim Constitution.¹⁴ It examined decisions from foreign constitutional courts and international human rights instruments demonstrating an increasing global trend towards abolishing capital punishment. Although international practice was not binding, it provided valuable guidance in interpreting South Africa’s Bill of Rights consistently with universal human rights principles.

Judgment and Ratio Decidendi

The Constitutional Court unanimously held that the statutory provisions authorising the death penalty under the Criminal Procedure Act 51 of 1977 were unconstitutional and therefore invalid.¹⁵ The Court declared that capital punishment was inconsistent with sections 9, 10 and 11(2) of the Interim Constitution, which protect the rights to life, human dignity, and freedom from cruel, inhuman or degrading punishment.

The Court further held that the infringement of these rights could not be justified under section 33 of the Interim Constitution. Although the State has a legitimate interest in preventing crime and protecting society, these objectives must be pursued in a manner that respects constitutional rights. Life imprisonment was recognised as a constitutionally acceptable alternative that could punish offenders while preserving the values embodied in the Constitution.

The ratio decidendi of the case is that the death penalty is incompatible with South Africa’s constitutional order because it unjustifiably violates the rights to life and human dignity and constitutes cruel, inhuman and degrading punishment. The Constitution is founded on respect for human dignity, equality and freedom, and these values prohibit the State from deliberately taking the life of a person as a form of punishment.

This judgment permanently abolished capital punishment in South Africa and established that every law must conform to the Constitution and its underlying values.

Critical Analysis

1. Significance of the Decision

S v Makwanyane is widely regarded as one of the most influential constitutional decisions in South African history. It represented the Constitutional Court’s first major opportunity to interpret the Bill of Rights and demonstrated the transformative nature of the Constitution following the end of apartheid.

The judgment confirmed that South Africa had embraced a constitutional democracy founded on respect for human rights rather than parliamentary supremacy. It reinforced the principle that all exercises of public power must comply with constitutional values and that the judiciary has the responsibility to protect those values, even where doing so may be unpopular.

The case also strengthened the constitutional principle of human dignity by recognising that every individual possesses inherent worth regardless of the offences they have committed. This principle has since become central to South African constitutional jurisprudence and has influenced decisions concerning prisoners’ rights, equality, healthcare, housing and socio-economic rights.¹⁶

2. Implications and Impact

The decision had profound legal, political and social consequences. Most significantly, it permanently abolished the death penalty in South Africa, making life imprisonment the most severe criminal sanction available under South African law.

Beyond criminal justice, Makwanyane established important principles for constitutional interpretation. The Court adopted a purposive approach to interpreting the Bill of Rights, emphasising constitutional values rather than relying solely on literal statutory wording.¹⁷ This approach has shaped subsequent Constitutional Court decisions across numerous areas of law.

The judgment also highlighted the importance of international and comparative law in constitutional interpretation. By considering international human rights instruments and foreign jurisprudence, the Court demonstrated South Africa’s commitment to universal human rights standards while recognising that comparative law serves as persuasive rather than binding authority.¹⁸

Internationally, Makwanyane has been cited by courts and scholars as a leading example of transformative constitutionalism. The judgment strengthened South Africa’s reputation as a nation committed to protecting fundamental rights after decades of apartheid-era injustice.

3. Critical Evaluation

The reasoning adopted by the Constitutional Court is persuasive because it is firmly grounded in constitutional values rather than political considerations.¹⁹ President Chaskalson’s judgment carefully balanced the rights of convicted offenders against the interests of society while recognising that constitutional rights impose limits on the State’s power to punish.

A particular strength of the judgment is its emphasis on human dignity. The Court correctly recognised that constitutional rights apply to every individual, including those convicted of the most serious crimes. This reflects the principle that constitutional protection should not depend on an individual’s popularity or moral character.

The Court’s rejection of public opinion as the determining factor was also significant. While many South Africans supported capital punishment because of high levels of violent crime, the Court rightly observed that constitutional rights exist precisely to protect individuals against the will of the majority. This reinforces the independence of the judiciary and the supremacy of the Constitution.

Nevertheless, the judgment has attracted criticism. Some commentators argue that the Court gave insufficient weight to the interests of victims and their families, who may view the death penalty as an appropriate response to particularly brutal crimes. Others contend that the abolition of capital punishment weakened deterrence during a period of rising violent crime, although empirical evidence on the deterrent effect of the death penalty remains inconclusive.

Another criticism is that the Court relied extensively on international and comparative law. Some scholars argue that constitutional interpretation should primarily reflect South Africa’s own legal and social context. However, this criticism is less convincing because the Interim Constitution expressly permits courts to consider international law when interpreting the Bill of Rights.

Overall, these criticisms do not outweigh the judgment’s enduring contribution to constitutional democracy. The decision reflects a principled commitment to the protection of fundamental rights and demonstrates that constitutional values must prevail even in difficult and emotionally charged cases.

Conclusion

S v Makwanyane remains one of the defining decisions in South African constitutional law. By declaring the death penalty unconstitutional, the Constitutional Court affirmed that respect for life, human dignity and freedom from cruel, inhuman or degrading punishment lies at the heart of South Africa’s constitutional order.

The judgment illustrates the transformative purpose of the Constitution by replacing a legal system founded on parliamentary sovereignty with one based on constitutional supremacy and the protection of fundamental rights. It also established important principles regarding constitutional interpretation, judicial independence and the role of international human rights law.

Although debates concerning capital punishment continue in many jurisdictions, Makwanyane demonstrates that constitutional democracies must protect fundamental rights even where doing so is politically unpopular. More than three decades later, the case continues to influence constitutional jurisprudence both within South Africa and internationally and remains an enduring symbol of the country’s commitment to human rights, dignity and the rule of law.²⁰

Reference(S): (OSCOLA)

Primary Sources

• S v Makwanyane and Another 1995 (3) SA 391 (CC).
• Constitution of the Republic of South Africa Act 200 of 1993 (Interim Constitution).
• Criminal Procedure Act 51 of 1977.

Secondary Sources

• Iain Currie and Johan de Waal, The Bill of Rights Handbook (6th edn, Juta 2013).
• Pierre de Vos and Warren Freedman (eds), South African Constitutional Law in Context (Oxford University Press Southern Africa 2014).
• John Dugard, Human Rights and the South African Legal Order (Princeton University Press 1978).
• Stuart Woolman and Michael Bishop (eds), Constitutional Law of South Africa (2nd edn, Juta).

Endnote(S):

1. S v Makwanyane and Another 1995 (3) SA 391 (CC).
2. S v Makwanyane (n 1) paras 144–146, 326–329.
3. Criminal Procedure Act 51 of 1977 s 277(1)(a).
4. Constitution of the Republic of South Africa Act 200 of 1993 ss 9–11.
5. Constitution of the Republic of South Africa Act 200 of 1993 ss 9, 10, 11(2) and 33.
6. S v Makwanyane (n 1) paras 95–104.
7. S v Makwanyane (n 1) paras 35–39.
8. S v Makwanyane (n 1) paras 17–22.
9. S v Makwanyane (n 1) paras 144–146.
10. S v Makwanyane (n 1) paras 144–148.
11. S v Makwanyane (n 1) paras 326–329.
12. S v Makwanyane (n 1) paras 94–95, 329.
13. S v Makwanyane (n 1) para 88.
14. Constitution of the Republic of South Africa Act 200 of 1993 s 35(1); S v Makwanyane (n 1) paras 35–39.
15. S v Makwanyane (n 1) para 348.
16. Iain Currie and Johan de Waal, The Bill of Rights Handbook (6th edn, Juta 2013) 271–280.
17. Pierre de Vos and Warren Freedman (eds), South African Constitutional Law in Context (Oxford University Press Southern Africa 2014) 95–105.
18. Stuart Woolman and Michael Bishop (eds), Constitutional Law of South Africa (2nd edn, Juta) ch 34.
19. Currie and de Waal (n 16) 280–286.
20. S v Makwanyane (n 1); Currie and de Waal (n 16).