S v Makwanyane and Another (1995)

I. Case Citation and Basic Information

Full case name: S v Makwanyane and Another

Citation: CCT 3/94; [1995] ZACC 3; 1995 (3) SA 391 (CC); 1995 (6) BCLR 665 (CC); 1995 (2) SACR 1 (CC)

Court: Constitutional Court of South Africa

Date of decision: 6 June 1995

Bench: Chaskalson P (writing the principal judgment), Ackermann J, Didcott J, Kriegler J, Langa J, Madala J, Mahomed J, Mokgoro J, O’Regan J, Sachs J, and Kentridge AJ. All eleven judges wrote separate concurring opinions.

[1]S v Makwanyane and Another stands as one of the most significant judgments in South African constitutional history that was delivered by the newly established Constitutional Court on 6 June 1995 and it was the Court’s first major politically charged decision and marked a decisive break from the apartheid-era legal order. The Court unanimously held that the death penalty was inconsistent with the Interim Constitution of 199 and specifically the rights to life, human dignity, and the prohibition against cruel, inhuman or degrading punishment. By invalidating section 277(1)(a) of the Criminal Procedure Act 51 of 1977 and all similar provisions the Court abolished capital punishment in South Africa and ordered that all prisoners under sentence of death remain in custody pending the imposition of new sentences.

[2]The judgment is landmark not only for its substantive outcome but also for its interpretive methodology. The two accused, T. Makwanyane and M. Mchunu were convicted in the Witwatersrand Local Division of the Supreme Court on four counts of murder one count of attempted murder and one count of robbery with aggravating circumstances. They were sentenced to death on each of the murder counts and to lengthy terms of imprisonment on the remaining counts. Both accused appealed to the Appellate Division of the Supreme Court against their convictions and sentences. The Appellate Division dismissed the appeals against the convictions and confirmed the death sentences.

While the appeals were pending  the Interim Constitution of the Republic of South Africa Act 200 of 1993 came into force on 27 April 1994. The Appellate Division referred the constitutional question of the validity of the death sentence to the newly established Constitutional Court under the transitional provisions of the Interim Constitution. The main issue before the Constitutional Court was therefore not the individual guilt of the accused but whether the statutory provision authorising the death penalty for murder survived constitutional scrutiny under the new Bill of Rights.

The principal legal issues framed by the Court were: Whether the imposition of the death penalty for murder under section 277(1)(a) of the Criminal Procedure Act 51 of 1977 was consistent with the rights entrenched in Chapter 3 of the Interim Constitution, particularly the right to life (section 9), the right to dignity (section 10), and the right not to be subjected to cruel, inhuman or degrading treatment or punishment (section 11(2)). Or If the death penalty limited these rights and whether such limitation was justifiable under the general limitations clause contained in section 33 of the Interim Constitution. Finally what the appropriate remedy should be if the death penalty was found to be unconstitutional, including the status of prisoners already under sentence of death.

The Counsel for the accused contended that capital punishment violated the right to life which was framed without internal limitation in section 9 of the Interim Constitution. They further argued that the death penalty inherently annihilated human dignity and constituted cruel inhuman and degrading punishment prohibited by section 11(2). Emphasis was placed on the irreversibility of the death sentence and the risk of judicial error the arbitrary and discriminatory manner in which the penalty had historically been applied (particularly along racial and socio-economic lines) and the absence of clear evidence that the death penalty possessed a greater deterrent effect than life imprisonment. International human-rights instruments and comparative jurisprudence from jurisdictions that had abolished capital punishment were extensively cited.

While the State was conceding that the death penalty was a severe punishment, initially sought to defend its constitutionality on the grounds that it served legitimate penological purposes, notably deterrence and retribution, and that any limitation of constitutional rights was justifiable under section 33 and During the hearing however the government effectively accepted that the death penalty was cruel  inhuman and degrading and that it should be declared unconstitutional. The remaining debate centred on the precise constitutional basis for invalidation and the appropriate remedial order. Public opinion favouring retention of the death penalty was also raised as a relevant consideration, though the State did not press this point vigorously.

President Chaskalson’s principal judgment, supported by ten separate concurring opinions, adopted a purposive and contextual approach to constitutional interpretation. The Court emphasised that the Interim Constitution had to be interpreted in light of South Africa’s history of repression, inequality and arbitrary exercise of state power. The values of the new order—human dignity, equality, freedom and the recognition of human rights—demanded a decisive rupture with the past.

The Court held that the rights to life and dignity are the most important of all human rights and the source of all other personal rights in the Bill of Rights. The death penalty destroys life, which is protected without reservation under section 9 and annihilates human dignity protected under section 10. The manner in which capital punishment had been administered in South Africa contained elements of arbitrariness and chance: outcomes depended on factors such as the quality of legal representation the personality and attitudes of the trial judge, racial and socio-economic disparities, and the particular composition of appellate benches. These features rendered the death penalty inconsistent with the rule of law and the culture of justification demanded by the new constitutional order.

Chaskalson P further held that the death penalty constituted cruel, inhuman and degrading punishment within the meaning of section 11(2). The Court rejected the argument that public opinion should determine the constitutionality of the penalty. While public sentiment might be relevant, it could not displace the Court’s duty to interpret and uphold the Constitution. If public opinion were decisive, there would be no need for constitutional adjudication. The Court also found that the State had failed to demonstrate that the death penalty was a more effective deterrent than life imprisonment, or that retribution justified the ultimate infringement of the rights to life and dignity.

Several judges, notably Mokgoro J and Sachs J placed particular emphasis on the African philosophical concept of ubuntu an ethos of shared humanity, compassion and restorative justice as a value underlying the Interim Constitution. This indigenous value system further reinforced the conclusion that the deliberate taking of life by the State was incompatible with the new constitutional vision.

On the limitations analysis under section 33 the Court concluded that the infringement of the rights to life, dignity and freedom from cruel punishment could not be justified. The limitation was not reasonable and justifiable in an open and democratic society based on freedom and equality. The death penalty therefore failed constitutional scrutiny.

The Court unanimously declared that section 277(1)(a) of the Criminal Procedure Act 51 of 1977, and all other provisions of law authorising capital punishment were inconsistent with the Interim Constitution and therefore invalid. The State was prohibited from carrying out any death sentences already imposed. Prisoners under sentence of death were to remain in custody until new sentences consistent with the Constitution were imposed by the appropriate courts.

The ratio decidendi may be summarised as follows: the death penalty is inconsistent with the rights to life, human dignity and the prohibition of cruel, inhuman or degrading punishment under the Interim Constitution; the limitation of these rights cannot be justified under the general limitations clause; and the deliberate taking of life by the State is incompatible with the foundational values of the new constitutional order including the principle of ubuntu. The judgment established that constitutional adjudication must be guided by the values of the Constitution rather than by transient public opinion or inherited practices of the previous regime.

Makwanyane is widely regarded as the foundational judgment of South African constitutional jurisprudence. It signalled that the Constitutional Court would take seriously its role as guardian of a transformative constitution and would not shy away from controversial issues. By abolishing the death penalty so early in its existence, the Court established its institutional legitimacy and demonstrated that constitutional values would prevail over majoritarian sentiment and historical practice. The judgment also set the methodological template for subsequent Bill of Rights adjudication: purposive interpretation, contextual sensitivity to South Africa’s history, reliance on international and comparative law, and the centrality of human dignity.

The immediate practical effect was the commutation of all existing death sentences and the permanent removal of capital punishment from South African criminal law. More broadly, the judgment has influenced the development of the rights to life and dignity in subsequent cases and has been cited extensively in comparative constitutional discourse on the death penalty. It reinforced the principle that the Constitution is supreme and that courts must uphold its provisions even when doing so is unpopular. The incorporation of ubuntu into constitutional reasoning also opened a pathway for the recognition of indigenous African values within the formal legal system.

The strength of the judgment lies in its moral clarity, its rigorous engagement with comparative and international materials, and its coherent articulation of a transformative constitutional vision. The multiple concurring opinions enriched the reasoning by exploring different facets of the constitutional values at stake. Critics, however, have noted that the Court perhaps underplayed the weight of public opinion at a time when violent crime was a pressing social concern, and that the deterrence analysis rested on the absence of conclusive evidence rather than positive proof of ineffectiveness. Some commentators have also questioned whether the heavy reliance on foreign jurisprudence risked importing alien values at the expense of local context, although the Court’s explicit invocation of ubuntu mitigates this concern. Overall, the judgment remains a powerful example of judicial courage and principled constitutionalism S v Makwanyane and Another permanently removed the death penalty from South African law and affirmed that the rights to life and human dignity occupy a pre-eminent place in the constitutional order. The judgment exemplifies the transformative ambition of the Interim Constitution and established enduring principles of constitutional interpretation. Its lasting impact lies not only in the abolition of capital punishment but in the Court’s demonstration that constitutional values—rather than historical practice or popular sentiment—must guide the exercise of state power. Three decades later, Makwanyane continues to stand as a beacon of human-rights protection and a model of principled judicial reasoning in a constitutional democracy.

Reference(S):

S v Makwanyane and Another [1995] ZACC 3; 1995 (3) SA 391 (CC); 1995 (6) BCLR 665 (CC).

Constitution of the Republic of South Africa Act 200 of 1993 (Interim Constitution).

Criminal Procedure Act 51 of 1977, s 277(1)(a).

Chaskalson, A et al, Constitutional Law of South Africa (Juta, various editions).

Currie, I & de Waal, J, The Bill of Rights Handbook (Juta, 6th ed, 2013).

Southern African Legal Information Institute (SAFLII), full judgment available at https://www.saflii.org/za/cases/ZACC/1995/3.html.

[1] S v makwanyane and another

[2] S v makwanyane and another