Authored By: Molebogeng vanessa Galogakoe
1. Case Citation and Basic Information
Case Name: S v Makwanyane and Another
Citation: 1995 (3) SA 391 (CC)
Court: Constitutional Court of South Africa
Date: 6 June 1995
Judges: The full bench of eleven judges, led by President Chaskalson
2. Brief Introduction
This case came right at the start of democracy in South Africa. The country was trying to figure out what kind of justice system it wanted to be. The big question was: should we still have the death penalty?
The Constitutional Court’s answer didn’t just decide two people’s fate. It told us what values South Africa would stand for going forward: dignity, life, and humanity. That’s why this case is such a big deal.
3. Facts of the Case
Makwanyane and another man were convicted of murder and given the death sentence in the High Court. They appealed, but not just to reduce their sentence. Their case raised a much bigger question, and the Constitutional Court was asked to decide whether the death penalty itself was unconstitutional.
At the time, murder was common and people were scared. A lot of South Africans actually supported the death penalty. But the Court had to look past that and ask: what does our new interim Constitution say?
4. Legal Issues
The Court had to answer a few tough questions:
- Does killing someone as punishment go against the right to life?
- Does it strip people of dignity?
- Is it “cruel, inhuman or degrading” punishment?
- And even if it does violate rights, can the government justify it to protect society?
5. Arguments Presented
The applicants said the death penalty is final. You can’t fix it if you’re wrong. It goes against the right to life and dignity, and South Africa should join the rest of the world in moving away from it.
The State said crime was out of control. The death penalty was needed to scare people and keep communities safe. They also said the Constitution didn’t specifically ban it.
6. Court’s Reasoning and Analysis
The judges didn’t just look at law books. They looked at what kind of society we wanted to build.
They said our Constitution is built on human dignity. If we take life, even as punishment, we go against that core value. They also pointed out that there was no clear proof that the death penalty deters crime any better than life imprisonment.
Yes, people were afraid. Yes, many wanted revenge. But the Court said the Constitution can’t be decided by anger or fear. It has to be decided by principles. They also looked at how other countries were abolishing it.
7. Judgment and Ratio Decidendi
Decision: The death penalty is unconstitutional.
Reason: It violates the rights to life, dignity, and freedom from cruel punishment. And it cannot be justified in a democratic society like ours.
Result: The death sentences were thrown out. The Court ordered new sentences instead.
8. Critical Analysis
This judgment was brave. In 1995, telling a hurting country “no more death penalty” was not popular. But that’s exactly why it mattered.
The strength of the case is that it put values first. It said law isn’t just about punishment; it’s about who we are.
Some people criticized the Court for ignoring public opinion. But that’s the job of a Constitutional Court: to protect rights even when it’s hard.
Because of this case, South Africa became known for choosing rehabilitation over revenge. It shaped how we think about justice even today.
9. Conclusion
Makwanyane wasn’t just about two men. It was about the soul of a new nation.
The key lesson: even the worst crimes don’t erase a person’s humanity.
That decision still matters. It reminds judges, lawyers, and all of us that the law should lift people up, not just tear them down.
Bibliography
Cases
- S v Makwanyane and Another 1995 (3) SA 391 (CC)
Legislation
- The Constitution of the Republic of South Africa Act 200 of 1993
Books
- Currie, I. & De Waal, J. The Bill of Rights Handbook. 6th ed. Juta & Co, 2013.
- De Vos, P. & Freedman, W. South African Constitutional Law in Context. Oxford University Press, 2014.
Journal Articles
- Du Plessis, M. The Death Penalty and the Constitution: A Critical Look at Makwanyane. South African Journal on Human Rights, Vol 11, 1995, pp. 303-320.
- Sachs, A. Dignity and the Death Penalty. South African Law Journal, Vol 112, 1995, pp. 669-676.
Online Sources
- Constitutional Court of South Africa. S v Makwanyane Judgment Summary. Available at: https://www.concourt.org.za [Accessed 11 August 2026].
- South African Legal Information Institute. SAFLII Database. Available at: https://www.saflii.org [Accessed 11 August 2026].
