Authored By: Zulaikha Khan
STADIO Higher Education
Case Citation and Basic Information
Full Case Name: The State v Thabo Makwanyane and Mavuso Mchunu (S v Makwanyane and Another)
Citation: 1995 (3) SA 391 (CC); 1995 (6) BCLR 665 (CC); [1995] ZACC 3
Court: Constitutional Court of South Africa
Case Number: CCT/3/94
Date of Decision: 6 June 1995
Bench: Chaskalson P (principal judgment); Ackermann, Didcott, Kriegler, Langa, Madala, Mahomed, Mokgoro, O’Regan and Sachs JJ, and Kentridge AJ, each delivering separate concurring judgments (unanimous decision)
Introduction
In S v Makwanyane and Another, South Africa’s Constitutional Court handed down its first major judgment, some twelve months after the nation had made its transition to a constitutional democracy.[1] The matter put before it was to determine if the death penalty could be sustained by the Bill of Rights in the Interim Constitution. But Makwanyane was to become much more than a ruling on sentencing. In testing the Court’s authority to set aside an elected government’s criminal justice policy in the face of popular backing for capital punishment, the case established the interpretive approach the Constitutional Court would follow for decades. Today it is among the most referenced judgments in comparative constitutional law when it comes to human dignity and the curtailment of rights.[2]
III. Facts of the Case
The Supreme Court’s Witwatersrand Local Division found Thabo Makwanyane and Mavuso Mchunu guilty of four murders, one attempted murder and a robbery with aggravating circumstances.[3] Citing section 277(1)(a) of the Criminal Procedure Act 51 of 1977, which deems capital punishment a proper sentence for murder, the trial court meted out the death penalty for each count.[4] An appeal to the Appellate Division of the Supreme Court did not alter this; the appeals against conviction were thrown out and the Appellate Division held the crimes were of such gravity that the law’s harshest sanction was called for.[5]
These proceedings predated the 1994 advent of the Interim Constitution. When the case came before the Appellate Division, however, the new Bill of Rights was in operation. The accused’s counsel took the position that section 277(1)(a) was at odds with the constitutional ban on cruel or degrading punishment and the right to life.[6] The Appellate Division put off the sentence appeals and, without any formal referral, left the constitutional issue for the Constitutional Court to sort out.[7]
It was an urgent matter. While no one had been put to death in South Africa since 1989, over 300 inmates were still on death row, some for years, in a state of uncertainty the Court itself would call intolerable.[8] A clear ruling was needed.[9] Even the government’s representative would admit the death penalty was inhuman and degrading; it fell to the Attorney-General of the Witwatersrand, acting on his own, to make the case for it.[10] On the other side, the Legal Resources Centre provided the accused with pro bono representation. The scope of the case was evident in the amicus curiae brief from the Commissioner of the South African Police on national crime figures, showing that the implications went well beyond the two men in the dock.[11]
Legal Issues
Does the death penalty for murder as provided for in section 277(1)(a) of the 1977 Criminal Procedure Act amount to the kind of cruel or degrading treatment proscribed by section 11(2) of the Interim Constitution?
And should it be so found, can the resulting limitation on rights be deemed reasonable and necessary under the general limitations clause of section 33(1), without negating the substance of those rights?
Arguments Presented
5.1 Petitioner/Appellant (the Accused)
The argument put forward by the accused’s counsel was that a death sentence is an affront to human dignity in and of itself, reducing the offender to an object to be disposed of rather than a person of moral standing.[12] They saw it as irreconcilable with the unqualified right to life in section 9 and noted that it allows for no remedy in the case of a wrongful conviction. There is also the matter of arbitrariness: the outcome is too often a function of race, poverty or the calibre of one’s legal team.[13] In the manner of Furman v Georgia, they contended that the vagueness of section 277 and the lack of structure in sentencing discretion made the penalty unconstitutional.[14] As further proof of this arbitrariness, they cited the fact that Ciskei had already done away with capital punishment, meaning section 277 could not be viewed as a law of general application.[15]
5.2 The Case for the State
In making his submissions, the Witwatersrand Attorney-General put forward the view that capital punishment is a legitimate sanction with worldwide acceptance. He contended that it is a more effective deterrent to violent crime than life imprisonment and meets society’s need for retribution in the most serious of cases, all while shielding other inmates and prison personnel from the state’s most dangerous offenders.[16] Given the alarming levels of violence in South Africa, he argued the country has not yet developed to the point where it can do without the death penalty. In the end, he said, this is a matter of policy for Parliament to decide, not the courts.[17]
Reasoning of the Court
Writing for a unanimous bench, Chaskalson P held that section 11(2) must be read in the context of the rights to life and dignity set out in sections 9 and 10; one cannot be considered in isolation when the death penalty is at issue as it impinges on all three.[18] A punishment might stand up to examination under a single right but would not survive once the combined weight of all three is taken into account.
Adopting the purposive approach seen in S v Zuma, the Chief Justice found the death penalty to be cruel in its finality, inhuman in the way it strips the executed of his humanity, and degrading in that it reduces the convicted to an object for the state to dispose of.[19]
The Court did look to the jurisprudence of the United States, Canada, Germany, Hungary and India, but was careful not to treat any of them as directly applicable given their different histories and wording.[20] For instance, Bachan Singh v State of Punjab may have upheld the death penalty in India, but that was predicated on Article 21 of the Indian Constitution which allows for deprivation of life by law.[21] There is no such qualification in our unqualified section 9, so the reasoning in Bachan Singh could not be transposed here. The Hungarian Constitutional Court’s ruling, which struck down the penalty on the basis of life and dignity, was viewed as the nearest parallel.[22]
As for arbitrariness, the Court recognised that the outcome in capital cases is often a function of the quality of counsel a poor accused can secure, usually an inexperienced pro deo lawyer without the means for proper investigation or expert testimony.[23] While some of that inconsistency is put up with in the case of a prison sentence because a wrongful conviction can be put right later, the calculus is different when the sentence is death. The irreversibility of the penalty makes such unevenness constitutionally unacceptable; there is no remedy if the arbitrariness has led to the wrong result.[24]
Under section 33(1) the onus is on the state to demonstrate that the limitation is both reasonable and necessary. The Court will not let a provision stand on the strength of a legitimate purpose alone if a less restrictive means is available.[25] In this instance, the Attorney-General himself conceded there was no evidence that the death penalty deters violent crime any better than long-term imprisonment.[26] Since life imprisonment can serve the same end with far less infringement on rights, the death penalty does not meet the minimal-impairment test.[27] Public opinion is not the deciding factor. The question is not what most South Africans think should be done, but what the Constitution permits, and in that lies the definition of a right that is guaranteed by the Constitution and not merely by democratic sentiment.[28]
VII. Judgment and Ratio Decidendi
In a unanimous ruling, the Court found section 277(1)(a) of the Criminal Procedure Act 51 of 1977 to be in violation of the Interim Constitution and thus invalid, a finding that applied equally to any like provisions in other South African statutes.[29] The order was clear: all death sentences on the books were to be set aside in favour of lawful ones and the government was put under an injunction not to proceed with any executions awaiting them.[30]
The ratio decidendi for this is that capital punishment is cruel, inhuman and degrading within the meaning of section 11(2). It extinguishes the rights to life and dignity in a way that is arbitrary and irremediable, a limitation for which there is no justification under section 33(1) when life imprisonment can serve the same penological ends. Nor can the state’s deliberate taking of life be defended by appeals to retribution or unproven claims of deterrence, or even by the weight of public opinion.
VIII. Critical Analysis
8.1 Significance of the Decision
With Makwanyane, the Court put in place the analytical method that has governed constitutional adjudication in South Africa ever since. The approach is to determine first if a right has been limited and only after that whether the general limitations clause can justify it.[31] This two-stage process, while independently reasoned from Canada’s R v Oakes, provided the young Court with the discipline to test state power without resorting to open-ended policy making.[32] In its first real trial, such discipline was as important as the result; it made plain that constitutional supremacy would hold sway over both parliamentary and popular preference.
8.2 Implications and Impact
Capital punishment was abolished across the country, an outcome later made permanent in statute by the Criminal Law Amendment Act 105 of 1997 which turned existing death warrants into terms of imprisonment.[33] The case has also become a touchstone in the literature on transformative constitutionalism. Karl Klare, for instance, has pointed to it as evidence of courts being called upon to use interpretation to alter social relations, not just settle disputes.[34] One can see its influence on questions of proportionality and dignity in the work of international human rights bodies and comparative courts.
8.3 Critical Evaluation
What gives the judgment its strength is structural. There is a candour in the way it describes the arbitrariness of who is put to death that supports its textually sound reading of the Bill of Rights against the wishes of the majority. Then there is the matter of ubuntu. In their separate concurrences, Mokgoro and Madala JJ brought an indigenous vocabulary to the table, one that sees even violent offenders as capable of rehabilitation.[35] But since Chaskalson P did not need ubuntu to arrive at his conclusion, it remains a supplementary layer to the ratio, normatively important but not the driver of it. Its authority today comes from how later judgments have treated it, not from Makwanyane itself.
There is also an unresolved issue in the Court’s dismissal of public opinion. While doctrinally necessary for a counter-majoritarian constitution, for a right is hardly a right if it yields to unpopularity, the fact that support for the death penalty endures in South Africa means the Court’s wager that reason would eventually win out has not been entirely borne out.[36] The judgment lays bare this tension if it does not solve it.
Conclusion
One could say Makwanyane is the foundational piece of South African constitutional law. It is not merely for having done away with the death penalty, but for showing at the outset that the Constitutional Court would be guided by principle in matters of fundamental rights, not by what is popular. Most modern democracies are now in agreement on the specific holding regarding capital punishment; the true legacy of the case is the architecture of interpretation it put in place, with its purposive approach and its readiness to look to comparative law and values like ubuntu. Thirty years later, it is still where one begins a study of dignity and proportionality here in South Africa. The message remains: it is the Constitution, not the ballot box, that sets the limits on the state’s power over life and death.
Reference(S):
Table of Cases
Bachan Singh v State of Punjab AIR 1980 SC 898
Furman v Georgia 408 US 238 (1972)
Gregg v Georgia 428 US 153 (1976)
R v Oakes [1986] 1 SCR 103
S v Makwanyane and Another 1995 (3) SA 391 (CC)
S v Zuma and Two Others 1995 (2) SA 642 (CC)
Table of Legislation
Criminal Law Amendment Act 105 of 1997 (South Africa)
Criminal Procedure Act 51 of 1977 (South Africa)
Republic of South Africa Constitution Act 200 of 1993 (Interim Constitution)
Bibliography
Klare K, ‘Legal Culture and Transformative Constitutionalism’ (1998) 14 South African Journal on Human Rights 146
[1]S v Makwanyane and Another 1995 (3) SA 391 (CC) (‘Makwanyane’).
[2]Karl Klare, ‘Legal Culture and Transformative Constitutionalism’ (1998) 14 South African Journal on Human Rights 146.
[3]Makwanyane (n 1) [1].
[4]ibid [2].
[5]ibid [1].
[6]ibid [2], [4].
[7]ibid [3].
[8]ibid [6].
[9]ibid.
[10]ibid [11].
[11]ibid [50], [117]-[118].
[12]ibid [27].
[13]ibid [48]-[51].
[14]Makwanyane (n 1) [43]; Furman v Georgia 408 US 238 (1972).
[15]Makwanyane (n 1) [28]-[30].
[16]ibid [27], [112].
[17]Makwanyane (n 1) [116]-[118], [124].
[18]ibid [10].
[19]ibid [26].
[20]ibid [37], [39].
[21]Makwanyane (n 1) [71]-[77]; Bachan Singh v State of Punjab AIR 1980 SC 898.
[22]Makwanyane (n 1) [83]-[85].
[23]ibid [48]-[51].
[24]ibid [54].
[25]ibid [102].
[26]ibid [127]; Gregg v Georgia 428 US 153 (1976).
[27]Makwanyane (n 1) [106], [123].
[28]ibid [87]-[88].
[29]Makwanyane (n 1) (order of the Court).
[30]ibid.
[31]ibid [100].
[32]R v Oakes [1986] 1 SCR 103; Makwanyane (n 1) [105]-[107].
[33]Criminal Law Amendment Act 105 of 1997 (South Africa).
[34]Klare (n 2).
[35]Makwanyane (n 1) (Mokgoro J and Madala J, separate concurring judgments).
[36]See generally Makwanyane (n 1) [87]-[88]; Klare (n 2).
