S v Makwanyane and Another

I. Case Citation and Basic Information  Name: S v Makwanyane and Another

Full Citation: S v Makwanyane and Another (CCT 3/94) [1995] ZACC 3; 1995 (6) BCCR 665 (CC); 1995 (3) SA 391 (CC); [1996]2 CHRLD 164; 1995 (2) SACR 1 (CC) (6 June 1995)

Court: Constitutional Court of South Africa

Date of Decision: 06 June 1995

Bench/Judges: Chaskalson P, Ackerman J, Didcott J, Kentridge AJ, Kriegler J, Langa J, Madala J, Mahomed J, Mokgoro J, O’Regan J and Sachs J.

II. Introduction

S v Makwanyane and Another is one of the most significant constitutional cases in South African legal history. The case required the constitutional court to determine whether the death penalty, as authorised by section 277(1)(a) of the Criminal Procedure Act 51 of 1977, was compatible with the Interim Constitution of the Republic of South Africa, 1993.[1]

The judgment is regarded as one of the most significant decisions in South African Constitutional law because it abolished the death penalty and affirmed that the rights to life, human dignity, and freedom from cruel, inhuman or degrading punishment are fundamental constitutional values.[2] Beyond declaring capital punishment unconstitutional, the court established principles that continue to shape South African human rights jurisprudence, making the case one of the most influential and frequently cited constitutional decisions in the country’s legal history.[3]

III. Facts of the Case

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. The trial court sentenced both accused to death on each of the four counts and imposed a lengthy term of imprisonment for the remaining offences.[4]

The accused appealed to the to the Appellate Division of the Supreme Court against both their convictions and sentences. The Appellate Division dismissed the appeals against convictions and held that the seriousness of the offences justified the most severe sentence permitted by law.[5]

During the appeal, however, the Interim Constitution of the Republic of South Africa, 1993 came into operation. The Appellate Division therefore invited counsel for the accused to address whether section 277(1)(a) of the Criminal Procedure Act 51 of 1977, which authorised the death penalty for murder, was consistent with the Interim Constitution. Counsel argued that the provision was inconsistent with sections 9 and 11(2) of the constitution.[6]

Since the trial had been concluded before the Interim Constitution came into effect, the constitutionality of the death penalty had not been considered by the trial court. As a result, the constitutional court considered whether additional evidence was necessary to determine the constitutional issues raised on appeal. After hearing submissions from counsel, the court concluded that the existing record and information placed before it were sufficient to decide the matter without referring the case back to the trial court for further evidence.[7]

The Appellate Division postponed the appeal concerning the death sentences until the Constitutional Court determined the constitutional questions. At the time, no executions had taken place in South Africa since 1989, and hundreds of prisoners remained on death row awaiting a final decision on the constitutionality of capital punishment. The Constitutional Court therefore had to determine whether the death penalty was compatible with the Interim Constitution.[8]

IV. Legal Issues

The Constitutional Court was required to determine the following questions:

1. Whether section 277(1)(a) of the Criminal Procedure Act 51 of 1977, which authorised the death penalty for murder, was consistent with the Interim Constitution of the Republic of South Africa, 1993.[9]

2. Whether the death penalty violated the constitutional rights to life, human dignity, and the right not to be subjected to cruel, inhuman or degrading punishment as protected by the Constitution.[10]

V. Arguments Presented 

Appellants’ Arguments

The appellants, through their counsel, argued that imposing the death penalty for murder was unconstitutional because it amounted to cruel, inhuman and degrading punishment. They maintained that capital punishment violated the constitutional rights to life and human dignity protected by the Interim Constitution. In addition, they submitted that death penalty is irreversible, meaning that any mistake in the execution of an innocent person could never be remedied. For these reasons, they contended that capital punishment was incompatible with the fundamental rights and values embodied in the Constitution.[11]

The appellants further argued that section 277 of the Criminal Procedure Act gave courts excessively broad discretion when deciding whether to impose the death penalty. Relying on principles developed in the United States Jurisprudence, they contended that such wide discretion could lead to arbitrary and unequal sentencing, thereby rendering the provision unconstitutional.[12]

Respondent’s Arguments

The respondent, represented by the Attorney General, argued that the death penalty remained a lawful and appropriate punishment for the most serious offences. It was submitted that capital punishment was recognised in many jurisdictions around the world and played an important role in discouraging violent crimes. The Attorney General further contended that the death penalty served the legitimate purpose of ensuring that offenders received punishment that matched the seriousness of their crimes and reflected society’s acceptance of capital punishment as a suitable sanction for particularly heinous offences. On this basis, the respondent maintained that the death penalty did not constitute cruel, inhuman or degrading punishment as prohibited by section 11(2) of the Interim Constitution.[13]

VI. Court’s Reasoning and Analysis

The Constitutional Court began by determining whether the death penalty was consistent with the Interim Constitution rather than simply whether it was severe punishment. It interpreted the rights to life, human dignity and freedom from cruel, inhuman or degrading punishment as fundamental constitutional rights requiring careful protection. Before addressing the main constitutional question, the court considered whether the different application of the death penalty in some parts of South Africa, brought about by the country’s constitutional transition under section 229 of the Interim Constitution, had any effect on the validity of section 277. It concluded that these temporary disparities did not determine the constitutionality of the provision and therefore proceeded to assess it against the rights protected in chapter 3 of the Interim Constitution.[14]

In interpreting the constitutional rights at issue, the court also considered international law and foreign case law as required by section 35(1) of the Interim Constitution. It observed that decisions from international tribunals and foreign courts provided useful guidance on the arguments for and against capital punishment and assisted in interpreting fundamental rights. However, the court emphasised that these authorities were persuasive rather than binding because each country’s constitutional framework differs. It therefore accepted their value as interpretative aids while maintaining that the constitutionality of the death penalty had to be determined primarily in accordance with the values, history and provisions of the South African Constitution.[15]

The court then considered the argument that section 277 of the Criminal Procedure Act allowed the death penalty to be applied in an arbitrary and unequal manner. It acknowledged that sentencing process was guided by established legal principles, including the consideration of aggravating and mitigating factors, and that every death sentence was subjected to automatic review by the Appellate Division. However, the court accepted that factors such as poverty, race, the quality of legal representation and the possibility of human error could still influence the outcome of capital cases. While recognising that such inequalities may exist in any criminal justice system, the court reasoned that they become unacceptable when the punishment is irreversible. Unlike a prison sentence, the execution of an innocent person can never be corrected, making the risk of arbitrary application incompatible with the constitutional rights to life and human dignity.[16]

The court further reasoned that the right to human dignity lies at the heart of South Africa’s constitutional order and must be respected, even when dealing with those convicted of serious crimes. In reaching this conclusion, it considered decisions from countries such as Canada, Germany and the United Kingdom, as well as international human rights bodies. While these authorities provided useful guidance, the court emphasised that South Africa’s Constitution had to be interpreted according to its own values and constitutional framework. It found that, unlike many foreign Constitutions, the Interim Constitution affords particularly strong protection to the rights to life and human dignity.

Consequently, the court concluded that the death penalty unjustifiably infringes these fundamental rights and cannot be reconciled with the values of a democratic society based on human dignity, equality and freedom.[17]

Finally, the court balanced the protection of fundamental rights against the state’s interest in combating violent crime. It accepted that deterring crime and protecting the public are legitimate objectives but found no convincing evidence that the death penalty is more effective than life imprisonment. The court held that the rights to life and human dignity outweigh speculative claims of deterrence. Considering the availability of life imprisonment, together with the risk of arbitrariness and irreversible error, it was concluded that section 277(1)(a) was unconstitutional.[18]

VII. Judgment and Ratio Decidendi

The Constitutional Court held that section 277(1)(a) of the Criminal Procedure Act, together with sections 277(1)(c)-(f) and corresponding legislative provisions authorising capital punishment, was inconsistent with the Interim Constitution and therefore invalid. However, the court did not rule on section 277(1)(b) which concerns treason committed during wartime, because that issue had not been argued before it. The court further ordered that no death sentence could be carried out and that existing death sentences had to be replaced with lawful punishment.[19]

The court found that the death penalty could not be justified under the Interim Constitution because it unjustifiably limited the fundamental rights to life, human dignity and freedom from cruel, inhuman or degrading punishment. In applying the limitation clause in section 33(1), the court held that the state failed to show that capital punishment was a reasonable and necessary limitation of these rights. It also found that life imprisonment was a suitable alternative to death penalty. Since the death penalty carried the risk of arbitrary outcomes and irreversible mistakes, and there was no convincing evidence that it deterred crime more effectively than life imprisonment, therefore, section 277(1)(a) of the Criminal Procedure Act could not be constitutionally justified.[20]

VII. Critical Analysis 

The Constitutional Court’s reasoning is convincing because it places the constitution at the centre of its decision rather than public opinion or political pressure. Instead of asking whether the death penalty was popular, the court focused on whether it was consistent with the rights guaranteed by the Interim Constitution. Its interpretation of the rights to life, human dignity, and freedom from cruel, inhuman or degrading punishment reflects the values of a democratic society based on equality and respect for human rights. The court also strengthened its reasoning by considering foreign and international authorities while making it clear that South Africa’s Constitution had to be interpreted according to its own constitutional values. This approach produced a well-reasoned and principled judgment.[21]

Despite the court’s strong protection of constitutional rights, some people have criticised the judgement for not giving enough weight to the interest of victims and the need to combat violent crime. They argue that abolishing the death penalty removed the harshest punishment for the most serious offences. However, the court explained that there was no convincing evidence that death penalty deterred crime more effectively than life imprisonment. It therefore concluded that such a serious limitation could not be justified without clear evidence.[22]

The judgment has had a lasting impact on South African constitutional law by confirming that the constitution is the highest law and that all legislation must comply with the Bill of Rights. It also established an important precedent for future constitutional cases by showing that courts must carefully balance government objectives against fundamental rights. Beyond abolishing the death penalty, the decision reinforced the principle that human dignity and the right to life remain central to South Africa’s constitutional democracy even when dealing with those convicted of serious crimes.

The case also demonstrates that constitutional rights are not absolute, but any limitation of those rights must be properly justified. In this case, the court accepted that combating violent crime is a legitimate objective, yet it found that this goal could not justify a punishment that violated constitutional rights. This approach reflects an important principle of constitutional law: the state must pursue public safety through measures that are both effective and consistent with the constitution. In this respect, the judgment promotes a balance between protecting society and protecting individuals’ rights.[23] 

Conclusion

S v Makwanyane and Another is a landmark constitutional case that abolished the death penalty in South Africa and confirmed that section 277(1)(a) of the Criminal Procedure Act was inconsistent with the Interim Constitution. The Constitutional Court held that capital punishment unjustifiably infringed the rights to life, human dignity, and freedom from cruel, inhuman or degrading punishment, and that the State had failed to show that it was a reasonable and necessary limitation of these rights.

The key lesson from this judgment is that constitutional rights cannot be limited simply because a punishment is popular or is believed to deter crime. Instead, every limitation of a fundamental right must be supported by clear constitutional justification. The decision permanently shaped South African constitutional law by placing human dignity and the right to life at the centre of the legal system and by reinforcing the role of the Constitutional Court as the guardian of the Constitution. Although debates about most effective way to address serious crime continue, this case remains a lasting reminder that justice in a constitutional democracy must always be guided by constitutional values, the rule of law and respect for fundamental human rights.

Reference(S):

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

[2] Ibid

[3] Ibid

[4] Ibid Para 1

[5] Ibid

[6] Ibid Para 4

[7] Ibid

[8] Ibid Para 3

[9] Ibid

[10] Ibid

[11] Ibid Para 27

[12] Ibid Paras 43 and 48-56

[13] Ibid Para 27

[14] Ibid Para 26 and 28-32

[15] Ibid Paras 33-42

[16] Ibid Paras 43-55

[17] Ibid Paras 56-70

[18] Ibid Paras 148-157

[19] Ibid Paras 149-151

[20] Ibid Paras 102-103 and 144-146

[21] Ibid Paras 80-87

[22] Ibid Paras 116-127

[23] Ibid Paras 104 and 135-146