S v Makwanyane and Another (1995) ZACC 31

Case Title and Citation

S v Makwanyane and Another (CCT3/94) [1995] ZACC 3; 1995 (3) SA 391 (CC); 1995 (6) BCLR 665 (CC)²

Court and Date

Constitutional Court of South Africa, judgment delivered on 6 June 1995.

Background and Facts

The case involved two appellants convicted of murder and sentenced to death under section 277(1)(a) of the Criminal Procedure Act 51 of 1977. They challenged the constitutionality of the death penalty under the interim Constitution of 1993, specifically the rights to life, dignity, and protection from cruel, inhuman, or degrading punishment. The matter was referred to the newly established Constitutional Court.³

Constitutional and Legal Issues

The primary issues were whether the death penalty violated:

Section 9: Right to life

Section 10: Right to dignity

Section 11(2): Freedom from cruel, inhuman or degrading punishment and whether any such infringement could be justified under the limitations clause in section 33(1).

Arguments by the Parties

The appellants argued that the death penalty was incompatible with constitutional rights and international human rights standards. The State maintained that it was necessary for deterrence and public protection and argued that public opinion supported its retention.

Judgment

The Constitutional Court held unanimously that the death penalty was unconstitutional. Section 277(1)(a) of the Criminal Procedure Act was struck down as inconsistent with the interim Constitution.⁴

Judicial Reasoning

Chaskalson P stated that the death penalty undermines the rights to life and dignity, which are foundational to the Constitution. He emphasized that public opinion could not override constitutional values. Other concurring judgments, including those by Sachs J, Langa J, and Didcott J, reinforced this reasoning. The Court also found the penalty failed to meet the standards of reasonable and justifiable limitation under section 33(1). ⁵

Legal Principles Established

1. The right to life and dignity are inviolable.
2. The death penalty constitutes cruel, inhuman and degrading punishment.
3. Public opinion does not justify infringement of constitutional rights.
4. Courts are empowered to invalidate unconstitutional legislation.

Impact and Significance

The case set a precedent for human rights-based constitutional interpretation and entrenched the Constitutional Court’s role as protector of the Bill of Rights. It positioned South Africa among progressive jurisdictions globally that reject capital punishment.

Conclusion

The decision in S v Makwanyane abolished the death penalty in South Africa and reinforced a commitment to constitutional values. It remains one of the most influential and morally grounded decisions in the country’s legal history.

Reference(S):

• S v Makwanyane and Another (CCT3/94) [1995] ZACC 3; 1995 (3) SA 391 (CC). [1] • Interim Constitution of the Republic of South Africa Act 200 of 1993. • Criminal Procedure Act 51 of 1977.
• A Chaskalson, ‘Human Dignity as a Foundational Value of our Constitutional Order’ (2000) 16 SAJHR 193.
• C Botha and J Pretorius, ‘Fundamental Rights in the New Constitution’ (1995) 12 SALJ