S v MAKWANYANE AND ANOTHER 1995 (3) SA 391 (CC)  Citation: 1995 (3) SA 391 (CC)

1. Case title and citation

Case name : S v MAKWANYANE AND ANOTHER 1995 (3) SA 391 (CC)  Citation: 1995 (3) SA 391 (CC)

2. court name and bench

Court : Constitutional court 

Judges : Chaskalson P, ACKERMANN J, DIDCOTT J, KENTRIDGE AJ, KRIEGLER J,  LANGA J, MADALA J, MAHOMED J, MOKGORO J, O’REGAN J and SACHS J

3. Date of judgement

Judgment: June 6, 1995

4. Parties involved

The appellants were Mahlangu and Makhwanyane as they were appealing order of death  penalty and the defendant were the state 

5. Facts

The two accused, Makhwanyane and others were convicted of murder in the Witwatersrand  Local Division and were sentenced to death. They appealed to the Appellate Division against  the death sentences and that Court, after hearing argument and coming to the conclusion that  in the circumstances of the case the death sentence was the proper sentence, postponed the  further hearing of the appeals until the Constitutional Court had decided whether the death  sentence in terms of s 277(1)(a) of the Criminal Procedure Act 51 of 1977 was in conflict  with the provisions of the Constitution of the Republic of South Africa Act 200 of 1993 or  not. The Court, per Chaskalson P, first addressed a contention that the Court, in interpreting  the Constitution, could have regard to the debate© 2018 Juta and Company (Pty) Ltd.

Downloaded : Mon Mar 31 2025 16:40:03 GMT+0200 (South Africa Standard Time)The two  accused were convicted of murder in the Witwatersrand Local Division and were sentenced  to death. They appealed to the Appellate Division against the death sentences and that Court,  after hearing B argument and coming to the conclusion that in the circumstances of the case the death sentence was the proper sentence, postponed the further hearing of the appeals until  the Constitutional Court had decided whether the death sentence in terms of s 277(1)(a) of the  Criminal Procedure Act 51 of 1977 was in conflict with the provisions of the Constitution of  the Republic of South Africa Act 200 of 1993 or not.

6.ISSUES RAISED 

 The issues raised was that is section 227(1) (a) of the criminal procedure act 51 of 1977  violate the constitution or not because it gave green light to the capital punishment 

• People have a right to life in the constitution, therefore question was that death penalty violated this right to life or not to check if it does not conflict with the section 9 right to life. 
• Section 10 of the constitution promote the right to human dignity therefore question was whether putting death penalty order on humans violated or undermines the constitution or not.
• The section 11(2) protects human from cruelty or inhuman treatment to promote humanity in environment, therefore death penalty violates that section or not by promoting execution of prisoners or not.
• Whether the international laws are still considering death penalty or not and if the judiciary had the separation of powers or not and it limitations to make orders or change orders of parliament.

7. Arguments of the parties

Appellants Argument

Was that death penalty conflicted with their bill of rights in the constitution and undermined  their rights of right to life, right to dignity and protection against cruel , this was their  arguments and the south African constitution states that any conduct or law that is  inconsistent with the constitution is invalid. They also pointed out the issue of wrongful execution on innocent people because in international cases they have been the unwrongful  execution on the innocent prisoners and south Africa was transitioning from the apartheid to a  democracy so they pointed that death penalty discriminated black people the most and that  whites were privilege and that international countries are now abolishing the death penalty  therefore south Africa should also abolish it to promote humanity and value rights of people.

The state argument, 

the state argument was that death penalty was a good justice for the victims and proper  justice and that it eliminates the rate of murders and criminals in the country, promoting a  suitable environment in the society and that many people in south Africa supports the idea of  death penalty and that people have a say in the government laws and regarding the wrongful arrests, the state responded by saying the procedure in court ensures proper and right arrests  because cases are proved beyond a reasonable doubt.

8. Judgement

Death penalty order was cancelled 

,The Court held that the carrying out of the death sentence destroyed life, which was protecte d without reservation under s 9 of the Constitution; it annihilated human dignity, which was protected under s 10; elements of arbitr ariness were present in its enforcement and it was irremediable. Taking these factors into account as well as the assumption regarding public o pinion in South Africa, and giving the words of s 11(2) the broader meaning to which they were entitled at this stage of the enquiry, rather than a narrow meaning, the Court concluded that, in the context of the Constitution, the death penalty was indeed a cruel, inhuman and degrading punishment The Court held that the rights to life and dignity were the most important of all human rights and the source of all other personal rights,By committing themselves to a society founded on the recognition of human rights South Africans were required to value these two rights above all others.

The provisions of s 277(1)(a), (c), (d), (e) and (f) of the Criminal Procedure Act 51 of 1977, and al l corresponding provisions of other legislation sanctioning capital punishment which are in force in any part of the national territory of Sout h Africa in terms of s 229 of the Constitution, were inconsistent with the Constitution and invalid. The Court further ordered that the State and all its organs were forbidden to execute any Gperson already sentenced to death under any of the provisions declared invalid, and that all su ch persons were to remain in custody until the death sentences imposed on them were set aside in accordance with law and substituted by la wful punishments.

9. Legal reasoning

Applying the test in the Canadian case of R v Oakes (1986) CRR 308 at 337, the Court held  that, although there was a rational connection between capital punishment and the purpose for  which it was prescribed, the elements of arbitrariness, unfairness and irrationality in the imposition of the penalty were factors that would have to be taken into account. As far as the  second component was concerned, the fact that a severe punishment in the form of life  imprisonment was available as an alternative sentence was relevant to the question whether  the death sentence impaired the right as little as possible. If all relevant considerations were  taken into account, it was at least doubtful whether a sentence of capital punishment for  murder would satisfy the third component of the Oakes test. The Court held that the rights to  life and dignity were the most important of all human rights and the source of all other  personal rights in . By committing themselves to a society founded on the recognition of  human rights South Africans were required to value these two rights above all others. And that the death penalty would violate the Constitution and the constitution in south Africa states that any law or conduct that is against it must be declared invalid. 

Conclusion

The case of S v Makhwanyane and another had a huge Impact on the constitution and set the legal precedent. This led to the constitution refining the ways of punishing criminals without executing them, because the final order of the case was that the death penalty was inconsistent with the new constitution, because it violated rights to life and dignity. This case  set the legal precedent that the constitutional laws must be developed around the human  dignity , freedom and equality , that these rights should be taken into consideration, when  interpreting the constitution. This case contributed to the transformative constitution, whereby the country is transitioning from past laws, and inequality to the laws that promote  human rights and better society with equal environment in order to make south Africa a great  country again with healthy environment.

This case educated me on how and to what extent can people or public can take decisions in  the constitutional court matters, because the public wanted the order of death penalty to  continue however, that conflicted with the constitutional court of south Africa and it states  that any law or conduct that is against the constitution is invalid, therefore this case showed  me the importance of the constitution. This judgement again showed the importance of  morality and humanity in laws , that morality must be taken into consideration when making  the court orders . The court decision gave me a courage to consider international or foreign  cases when reasoning to develop a strong argument because in the judgement, the court  referred to judgements in 11 different countries to set the precedent that can be used in this  case

Reference(S):

S v MAKWANYANE AND ANOTHER 1995 (3) SA 391 (CC) ( south Africa)  .