S v Makwanyane and Another

1. Case Citation and Basic Information

Full Case Name: S v Makwanyane and Another

Citation: S v Makwanyane and Another [1995] ZACC 3; 1995 (3) SA 391 (CC); 1995 (6) BCLR 665 (CC); 1995 (2) SACR 1 (CC)

Court: Constitutional Court of South Africa

Case Number: CCT 3/94

Date of Decision: 6 June 1995

Bench: Chaskalson P and ten other judges of the Constitutional Court.

2. Introduction

S v Makwanyane and Another is one of the most significant decisions in South African constitutional law. The case concerned the constitutionality of the death penalty under the Constitution of the Republic of South Africa Act 200 of 1993 (the Interim Constitution). At the time, capital punishment was authorised by section 277(1)(a) of the Criminal Procedure Act 51 of 1977. The Constitutional Court was required to determine whether the imposition and execution of the death penalty were compatible with fundamental constitutional rights, particularly the rights to life, human dignity and freedom from cruel, inhuman or degrading punishment.¹

The case was particularly important because it was one of the first major decisions in which the newly established Constitutional Court had to give practical effect to the values of the new constitutional order. The Court unanimously held, although each judge wrote separately, that capital punishment was unconstitutional. The judgment therefore became a landmark in the development of South African constitutionalism and demonstrated the importance of constitutional rights in limiting State power.

3. Facts of the Case

The appellants, T Makwanyane and M Mchunu, were convicted in the Witwatersrand Local Division of the Supreme Court of four counts of murder, one count of attempted murder and one count of robbery with aggravating circumstances.² Following their convictions, they were sentenced to death on each of the murder counts and to lengthy terms of imprisonment for the other offences. The Appellate Division dismissed their appeals against conviction, and the constitutional question concerning the death penalty was referred to the Constitutional Court for determination.

At the time of the proceedings, South African law permitted capital punishment under section 277(1)(a) of the Criminal Procedure Act 51 of 1977. However, the Constitution of the Republic of South Africa Act 200 of 1993 had subsequently come into force and contained enforceable fundamental rights. The Court therefore had to determine whether existing legislation authorising capital punishment remained valid under the new constitutional order.

The constitutional provisions most directly relevant to the case were sections 9, 10 and 11(2) of the Interim Constitution. Section 9 protected the right to life. Section 10 protected the right to respect for and protection of human dignity, while section 11(2) prohibited torture and cruel, inhuman or degrading treatment or punishment.³ The appellants argued that capital punishment was inconsistent with these protections.

The case was heard by the Constitutional Court from 15 to 17 February 1995, with judgment delivered on 6 June 1995.⁴ The issue was particularly urgent because more than 300 people were reportedly on death row awaiting the Court’s determination of the constitutionality of capital punishment.⁵

The Court considered the purposes and effects of the death penalty, including deterrence, retribution, prevention of further crime, the possibility of judicial error, arbitrariness in its application and the conditions experienced by prisoners awaiting execution. It therefore had to balance the State’s interest in punishing serious crimes against the constitutional protection of individual rights.

4. Legal Issues

The principal legal issues before the Constitutional Court were:

1. Issue 1: Whether section 277(1)(a) of the Criminal Procedure Act, which authorised the death penalty for murder, was consistent with the right to life protected by section 9 of the Interim Constitution.
2. Issue 2: Whether the death penalty violated the right to respect for and protection of human dignity under section 10.
3. Issue 3: Whether capital punishment constituted cruel, inhuman or degrading punishment prohibited by section 11(2).
4. Issue 4: Whether any infringement of the protected rights could nevertheless be justified under the general limitations clause contained in section 33 of the Interim Constitution.

5. Arguments Presented

5.1 The Appellants’ Arguments

The appellants challenged the constitutionality of the death penalty primarily on the basis that it violated fundamental constitutional rights. They argued that the right to life and human dignity were fundamental protections under the Interim Constitution and that deliberately taking a person’s life as a form of punishment was inconsistent with those constitutional values.

The appellants further contended that capital punishment constituted cruel, inhuman and degrading punishment. The irreversible nature of execution, the possibility of wrongful conviction and the psychological suffering associated with awaiting execution were relevant to this argument. They also challenged the State’s justification of capital punishment based on deterrence and retribution.

5.2 The Respondent’s Arguments⁵

The State defended the continued legality of capital punishment. It argued that the death penalty was an established form of punishment for serious crimes and served legitimate purposes, particularly deterrence, retribution and the protection of society.

The State maintained that capital punishment could deter potential offenders from committing serious crimes and permanently prevent convicted murderers from committing further offences. It also relied on the seriousness of the crimes for which the death penalty could be imposed.

The State further argued that the question of whether capital punishment should be abolished was one that could appropriately be determined by Parliament. Since the Interim Constitution did not expressly abolish capital punishment, the State contended that the Court should not infer such a prohibition unless the constitutional provisions clearly required it.⁶

6. Court’s Reasoning and Analysis

Against these competing arguments, the Constitutional Court began by examining the constitutional framework and the nature of the rights protected by the Interim Constitution. Although the Constitution did not expressly state that the death penalty was prohibited, the Court held that this did not resolve the issue. Its task was to determine whether legislation authorising capital punishment was consistent with the constitutional rights and values established by the new constitutional order.

The right to life was central to the Court’s reasoning. Section 9 stated that every person had the right to life. The Court considered this protection together with the rights to dignity and freedom from cruel, inhuman or degrading punishment. Execution was fundamentally different from other forms of punishment because it permanently and irreversibly destroyed the life of the person concerned.⁷

Human dignity was also given substantial importance. The Court recognised that constitutional protection did not disappear merely because a person had committed a serious crime. A convicted offender remained a human being possessing constitutional rights. The deliberate destruction of an offender’s life therefore raised serious concerns about the State’s respect for human dignity.

The Court then considered whether the death penalty could be justified by its purposes. Deterrence was examined carefully. Although the State argued that capital punishment deterred murder, the Court was not satisfied that the evidence demonstrated that the death penalty was materially more effective in preventing murder than life imprisonment.⁸ Since life imprisonment could protect society from dangerous offenders, the State had to provide a convincing justification for the additional severity and irreversibility of execution.

Retribution was also considered. The Court recognised that punishment could legitimately express society’s condemnation of serious criminal conduct. However, retribution could not simply be given priority over fundamental constitutional rights. The constitutional order required punishment to be consistent with values such as dignity and respect for life.

The Court also considered the possibility of error and arbitrariness. The death penalty was irreversible, meaning that a wrongful conviction could never be corrected through release. The Court recognised that disparities in the criminal justice system could arise from factors including poverty, race, ignorance and differences in legal representation. These factors were relevant because the death penalty placed a person’s life at stake and therefore magnified the consequences of unequal or arbitrary application.⁹

Public opinion was another important consideration. The Court acknowledged that public opinion was relevant to the broader social debate surrounding capital punishment. However, constitutional adjudication could not simply be determined by majority preference. The Court was required to interpret and apply the Constitution and protect constitutional rights, even where doing so might conflict with prevailing public opinion.¹⁰

The Court ultimately assessed the various considerations together. It concluded that the death penalty destroyed life, undermined human dignity, contained elements of arbitrariness and was irreversible. These factors, taken together, meant that capital punishment constituted cruel, inhuman and degrading punishment within the meaning of section 11(2).¹¹

The Court further held that the State had not established that the limitation of the affected rights was reasonable, justifiable and necessary under section 33 of the Interim Constitution. The existence of life imprisonment as an alternative weakened the State’s justification for the death penalty because society could be protected without deliberately taking the offender’s life.¹²

7. Judgment and Ratio Decidendi

The Constitutional Court unanimously declared the death penalty unconstitutional. It held that section 277(1)(a), together with other provisions authorising capital punishment, was inconsistent with the Interim Constitution and therefore invalid.¹³ The State and its organs were prohibited from executing persons who had already been sentenced to death under the invalid provisions. Those persons were to remain in custody until their sentences were lawfully replaced with appropriate punishments.¹⁴

The ratio decidendi of the case is that capital punishment violated the constitutional rights to life and human dignity and constituted cruel, inhuman or degrading punishment under section 11(2) of the Interim Constitution. The limitation could not be justified under section 33 because the State failed to establish that the death penalty was a reasonable, justifiable and necessary limitation of the affected rights.

The judgment therefore established that the State’s power to punish serious criminal offenders was subject to constitutional limitations. The seriousness of an offence did not remove an offender’s fundamental constitutional protections.

8. Critical Analysis

8.1 Significance of the Decision

The decision was highly significant because it established an important foundation for South African constitutional jurisprudence. It confirmed that the Constitution imposed substantive limits on State power and that criminal punishment had to comply with fundamental rights.

The Court’s emphasis on life and dignity reflected the transformation from the previous legal order towards a constitutional democracy based on enforceable rights. Rather than treating punishment as an unrestricted exercise of State authority, the Court required punishment to conform to constitutional values.

The judgment was also strong because the Court did not rely on one consideration alone. It considered the irreversible nature of execution, the possibility of judicial error, arbitrariness, deterrence, retribution, dignity and the conditions associated with death row. This produced a comprehensive constitutional analysis.

8.2 Implications and Impact

The decision had profound implications for South African criminal justice. It removed capital punishment from the range of lawful punishments and established a constitutional standard against which State punishment could be evaluated.

More broadly, the judgment demonstrated the role of the judiciary in protecting constitutional rights even where an issue was politically controversial. It also strengthened the principle that human dignity applies to all people, including those convicted of serious crimes.

The decision therefore contributed to the development of a rights-based approach to criminal justice in South Africa. It established that punishment must remain within constitutional boundaries and that the State cannot rely solely on public demand or traditional practice to justify a severe infringement of fundamental rights.⁹

8.3 Critical Evaluation

One of the principal strengths of the judgment was its careful treatment of competing interests. The Court did not minimise the seriousness of murder or deny society’s legitimate interest in punishment and public safety. Instead, it considered whether those interests justified the most extreme and irreversible form of punishment.

The Court’s treatment of deterrence was particularly persuasive because it required the State to demonstrate why execution was necessary when life imprisonment was available. The Court found that the State had not established that capital punishment was materially more effective at preventing murder than imprisonment.¹⁵

However, the judgment can be criticised from a democratic-legitimacy perspective. The abolition of the death penalty was a major social and political question, and it could be argued that such policy choices should primarily be made by an elected legislature. The Court nevertheless emphasised that its role was different from that of Parliament. Its responsibility was to determine what the Constitution permitted and prohibited.

This tension between judicial review and democratic choice remains an important issue in constitutional law. Nevertheless, the Court’s approach was justified because the question before it was ultimately a constitutional one. The Court was not merely deciding whether capital punishment was good policy; it was determining whether the existing law complied with constitutionally protected rights.

Overall, the judgment demonstrated a principled approach to constitutional adjudication. It balanced the State’s legitimate interests against the fundamental rights of individuals and concluded that the irreversible taking of life could not be justified where less severe alternatives were available.

9. Conclusion

S v Makwanyane and Another remains a foundational decision in South African constitutional law. The Constitutional Court unanimously held that the death penalty was incompatible with the Interim Constitution because it violated the rights to life and dignity and constituted cruel, inhuman or degrading punishment.

The lasting importance of the judgment extends beyond the abolition of capital punishment. It established that constitutional rights impose meaningful limits on State power and that those rights apply even to individuals convicted of serious crimes. The Court also demonstrated that constitutional rights cannot simply be determined by majority opinion or historical practice.

By placing life, dignity and human rights at the centre of its reasoning, the judgment helped define the values of South Africa’s emerging constitutional democracy. It represents a decisive movement away from punishment based solely on retribution and towards a constitutional approach grounded in dignity, proportionality and respect for human rights.

10. Reference(S):

Primary Sources

S v Makwanyane and Another [1995] ZACC 3; 1995 (3) SA 391 (CC); 1995 (6) BCLR 665 (CC); 1995 (2) SACR 1 (CC).

Constitution of the Republic of South Africa Act 200 of 1993.

Criminal Procedure Act 51 of 1977.

Online Sources

South African Legal Information Institute, S v Makwanyane and Another [1995] ZACC 3.¹¹

Constitutional Court of South Africa, S v Makwanyane and Another, Constitutional Court Collection.

Footnotes(S):

¹ S v Makwanyane and Another [1995] ZACC 3, 1995 (3) SA 391 (CC).

² ibid.

³ Constitution of the Republic of South Africa Act 200 of 1993, ss 9–11.

⁶ Ibid,paras 5, 11-12

⁷ Ibid,6