S v Makwanyane and Another (CCT 3/94) [1995] ZACC 3; 1995 (3) SA 391 (CC); 1995 (6) BCLR 665 (CC); (6 June 1995).

1. Introduction

One of the most important decisions in South African constitutional law is generally thought to be S v Makwanyane and Another. On June 6, 1995, the Constitutional Court made its initial significant human rights judgment in accordance with the Interim Constitution of 1993. Requiring the Court to decide whether capital punishment was compatible with the fundamental rights protected by the Constitution, the case was about the constitutionality of the death penalty. The Court unanimously ruled that the death penalty infringed the rights to life, human dignity, and the right not to be subjected to cruel, inhuman or degrading punishment.[2]

By confirming that all laws and penalties must abide by constitutional values, the decision marked a clear departure from South Africa’s apartheid-era legal system. In arriving at its decision, the Court underlined that the Constitution is based on respect for human dignity, equality, and freedom, and that these principles must direct how every right stated in the Bill of Rights is construed.[3]

2. Background and facts

After the end of apartheid, South Africa underwent a period of significant constitutional change, which led to the case of S v Makwanyane and Another. Makwanyane and Mchunu, the candidates, were found guilty in the Supreme Court’s Witwatersrand Local Division on four charges of murder, one count of attempted murder, and aggravated robbery stemming from a string of violent crimes. Since there were no considerable or persuasive reasons to warrant a lesser sentence, the trial court applied the death penalty to each of the four murder convictions, as mandated by section 277(1)(a) of the Criminal Procedure Act 51 of 1977.[4]

The Interim Constitution of the Republic of South Africa, 1993, went into force on April 27, 1994, before the punishments could be administered. It established a justiciable Bill of Rights, which mandated that all State conduct and legislation adhere to the constitutional safeguards it included. The Appellate Division acknowledged that the constitutionality of the death penalty posed a significant constitutional issue and sent the case to the recently established Constitutional Court in accordance with section 102(6) of the Interim Constitution.[5]

3. Legal Issues

The main legal question before the Constitutional Court was whether the death penalty, as permitted by section 277(1)(a) of the Criminal Procedure Act 51 of 1977, was consistent with the Interim Constitution. Specifically, the Court had to decide whether the death penalty violated the rights to life, human dignity, and the right not to be subjected to cruel, inhuman, or degrading punishment as guaranteed by sections 9, 10, and 11(2) of the Constitution.[6]

In addition, the Court was mandated to determine if any restrictions on these rights were permissible in accordance with section 33 of the Interim Constitution. An examination of whether the death penalty served legitimate governmental aims, such as deterrence, retribution, and the protection of society, and whether those aims warranted the permanent deprivation of life was necessary for this.[7]

4. Arguments of the parties

According to the applicants, the death penalty contravened the basic rights safeguarded by the Provisional Constitution. Their main argument was that the death penalty violated the section 9 right to life, the section 10 right to human dignity, and the section 11(2) right not to be subjected to cruel, inhuman, or degrading treatment or punishment. They maintained that these rights were the bedrock of South Africa’s new constitutional order and could not be reconciled with a punishment that purposefully and permanently took a person’s life.[8]

The applicants also asserted that the death penalty did not meet the constitutional restriction clause found in section 33 of the Interim Constitution. They argued that the government had failed to present sufficient evidence proving that capital punishment deters serious crime more effectively than does life in jail. Therefore, they contended that the irrevocable nature of the death penalty made it an unjustified restriction on constitutional rights.[9]

However, the State maintained that murder and other serious offenses continued to warrant capital punishment. It stated that the death penalty had several valid goals, such as deterrence, retribution, and the defence of society from hazardous criminals. In addition, the State argued that the Constitution did not explicitly outlaw capital punishment and that public opinion, which was generally in favour of keeping it at the time, ought to be considered when evaluating its legality.[10]

The applicants reacted by asserting that public opinion cannot be used to establish constitutional rights. They argued that one of the main responsibilities of the Constitution and the Constitutional Court was to safeguard fundamental rights, particularly in situations where there was a conflict between popular opinion and constitutional ideals.[11]

5. Decision of the Court

The Constitutional Court found that section 277(1)(a) of the Criminal Procedure Act 51 of 1977 was unconstitutional and thus invalid in a unanimous decision. The Court determined that the interim Constitution was violated by the death penalty because it unfairly violated a number of basic rights listed in the Bill of Rights. South Africa was no longer allowed to execute prisoners as a result.[12]

President Arthur Chaskalson, who authored the main ruling, highlighted that the Constitution marked a clear departure from the historical injustices and established a legal framework built upon the principles of human dignity, equality, and freedom. He stated that the Constitution mandated that every law be evaluated considering these principles and that any penalty imposed by the government must adhere to constitutional standards.[13]

As a result, the ruling eliminated capital punishment in South Africa and mandated that all future criminal judgments adhere to the Constitution and the values that serve as the foundation for the Bill of Rights.[14]

6. Court’s Reasoning (Ratio Decidendi)

The Constitutional Court’s decision was based on the premise that the Constitution defends the inherent dignity and equal value of every person. P. Chaskalson stated that because the ability to exercise all other constitutional rights relies on it, the right to life is the most fundamental of all rights. Because of this, the State’s intentional taking of a life necessitated the greatest possible constitutional defence, which the death penalty was unable to achieve.[15]

The Court’s reasoning was also significantly influenced by the ban on torture, inhuman treatment, or degrading punishment. Because the death penalty is irreversible and because convicts awaiting execution suffer psychologically, the judges decided that it is by its nature cruel. The ambiguity surrounding the execution date and the understanding that the State would purposefully cause death were a type of punishment inconsistent with constitutional principles.[16]

The Court also dismissed the notion that constitutional rights should be established by public opinion. Chaskalson P said that public opinion can help legislators formulate policy but cannot dictate whether legislation is Constitutional. The Constitutional Court’s duty is to interpret and uphold the Constitution, regardless of how unpopular its rulings may be.[17]

7. Significance of the judgement

The decision in S v Makwanyane and Another transformed South African constitutional jurisprudence by establishing the Constitution’s supremacy and the Bill of Rights’ centrality in the nation’s legal system. It established that any law passed by Parliament is subject to constitutional examination and that any legislation that is inconsistent with the Constitution is invalid, making it the first significant constitutional ruling issued by the newly created Constitutional Court.[18] As a result, the ruling established judicial review as a critical instrument for upholding the rule of law and preserving constitutional rights.

Additionally, Makwanyane laid forth crucial principles for constitutional interpretation. The Court ruled that the Constitution had to be interpreted purposefully, giving full effect to the principles underlying the Bill of Rights rather than adopting a narrow or purely literal approach.[19] In doing so, the Court reaffirmed that international law and comparative foreign jurisprudence can be a valuable guide in interpreting constitutional rights, especially when South African courts face new constitutional questions.[20]

The verdict has also had a long-term impact on topics other than capital punishment. Cases involving proportionality, constitutional interpretation, human dignity, and the restriction of basic rights continue to be referenced by South African courts. It is recognized across the world as a key constitutional ruling on the abolition of the death penalty, and its rationale has had a significant impact on the development of South African human rights jurisprudence.[21]

8. Critical Analysis

Many people praised the Constitutional Court’s decision in S v Makwanyane for prioritizing constitutional ideals over public opinion and political pressure. Instead of allowing public opinion to define the range of constitutional rights, the Court reaffirmed that its main duty is to defend the Constitution and safeguard the rights of all people, including those charged with or found guilty of major crimes. In South Africa’s constitutional democracy, this method reinforced the idea of constitutional supremacy and proved the judiciary’s independence.[22]

The Court’s reliance on international law and comparative jurisprudence has also garnered acclaim. The Court used an interpretive strategy that reflects South Africa’s dedication to universal human rights while staying based in the text and values of the Constitution by considering judgments from other democratic jurisdictions and international human rights instruments.[23] This is now a crucial component of the constitutional interpretation in South Africa.

I believe that the Constitutional Court reached the proper decision. The elimination of the death penalty upholds the principles on which South Africa’s constitutional democracy was established and acknowledges that justice cannot be attained through penalties that transgress fundamental rights. While violent crime continues to be a major issue, legally permissible options that defend society without infringing upon the rights protected by the Constitution are available through effective law enforcement, fair criminal proceedings, and reasonable custodial sentences. Therefore, the decision remains one of the clearest examples of the Constitutional Court carrying out its constitutional duty to defend equality, freedom, and human dignity.[24]

9. Conclusion

In the history of South African law, the Constitutional Court’s ruling in S v Makwanyane and Another is still one of the most significant judgments. Even over thirty years after it was issued, Makwanyane is still an authoritative precedent in instances involving human rights, proportionality, and constitutional interpretation, and it continues to influence South African constitutional jurisprudence. The verdict demonstrates the Constitutional Court’s dedication to upholding the Constitution and reaffirms the idea that justice must always be given out in a way that respects human dignity and the rule of law.[25]

Bibliography

Cases

S v Makwanyane and Another (CCT 3/94) [1995] ZACC 3; 1995 (3) SA 391 (CC).

Legislation

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

Criminal Procedure Act 51 of 1977.

Books

Currie I and de Waal J, The Bill of Rights Handbook (6^th edn, Juta 2013).

Woolman S and Bishop M, (eds) Constitutional Law of South Africa (2^nd ed, Original Service 2024, Juta).

Journal Articles

Chaskalson A, ‘Human Dignity as a Foundational Value of Our Constitutional Order’ (2000) 16 South African Journal on Human Rights 193.

O’Regan K, ‘Text Matters: Some Reflections on the Forging of a New Constitutional Jurisprudence in South Africa’ (2012) 75 Modern Law Review 1.

Online Sources

Southern African Legal Information Institute (SAFLII), ‘S v Makwanyane and Another (CCT 3/94) [1995] ZACC 3’ https://www.saflii.org.za/cases/ZACC/1995/3.html accessed 27 July 2026.

Constitutional Court of South Africa, ‘Judgements’ https://www.concourt.org.za accessed 27 July 2026.

[1] S v Makwanyane and Another (CCT 3/94) [1995] ZACC 3; 1995 (3) SA 391 (CC).

[2] S v Makwanyane (n 1) paras 89-95, 144-146.

[3] S v Makwanyane (n 1) paras 262-266.

[4] S V Makwanyane and Another (CCT 3/94) [1995] ZACC 3; 1995 (3) SA 391 (CC) paras 1-6.

[5] Makwanyane (n 1) paras 7-12.

[6] Makwanyane (n 1) paras 89-95

[7] Makwanyane (n 1) paras 102-109.

[8] S v Makwanyane and Another (CCT 3/94) [1995] ZACC 3; 1995 (3) SA 391 (CC) paras 89-95.

[9] Makwanyane (n 1) paras 102-109.

[10] Makwanyane (n 1) paras 111-116.

[11] Makwanyane (n 1) paras 87-88.

[12] Makwanyane (n 1) paras 348-350.

[13] Makwanyane (n 1) paras 262-266.

[14] Makwanyane (n 1) para 350.

[15] Makwanyane (n 1) paras 144-146.

[16] Makwanyane (n 1) paras 94-95.

[17] Makwanyane (n 1) para 88.

[18] S v Makwanyane and Another (CCT 3/94) [1995] ZACC 3; 1995 (3) SA 391 (CC) paras 262-266.

[19] Iain Currie and Johan de Waal, The Bill of Rights Handbook (6^th edn, Juta 2013) 72-76.

[20] Makwanyane (n 1) paras 34-39.

[21] Stuart Woolman and Micheal Bishop (eds), Constitutional Law of South Africa (2^nd ed, OS 2024, Juta) ch 36.

[22] Makwanyane (n 1) para 88.

[23] Currie and de Waal (n 5) 72-76.

[24] Kate O’Regan, ‘Text Matters: Some Reflections on the Forging of a New Constitutional Jurisprudence in South Africa’ (2012) 75 Modern Law Review 1.

[25] Iain Currie and Johan de Waal, The Bill of Rights Handbook (6^th edn, Juta 2013) 359-367.