S v Makwanyane and Another

Case Title & Citation

Full Title: S v Makwanyane and Another 

Citation: (CCT 3/94) [1995] ZACC 3; 1995(3) SA 391(CC); 1995 (6) BCLR 665 (CC) 

Court Name & Bench

Court: Constitutional Court of South Africa 

Bench : Chaskalson P

              : Ackermann J 

              : Didcott J

              : Kentridge AJ

              : Kriegler J

             : Langa J

             : Madala J

             : Mohomed J

             : Mokgoro J

             :  O’Regan J

             : Sachs J 

Bench type

 Full Bench ( Sitting en banc) 

Date of Judgment

Judgement Delivered :6 June 1995

Parties Involved

Appellants: T Makwanyane and M Mchunu, convicted to multiple counts of murder and sentenced to death under section 277 of the Criminal Procedure Act 51 of 1977 

Respondent: The State 

Facts of the case

 The appellant were convicted in the Witwatersrand Local Division of the Supreme Court for four counts of murder, one count of attempted murder and one count of robbery with aggravating circumstances. (Chaskalson A, 2000)They were sentenced to death under the then-valid provisions of the Criminal Procedure Act. The Appellate Division upheld the convictions and sentences but deferred the constitutional question regarding the death penalty to the newly established Constitutional Court, as it had exclusive jurisdiction over constitutional matters under the Interim Constitution of 1993. The Case thus became the first major constitutional challenge before the Court, testing the compatibility of capital punishment with the fundamental rights enshrined in Chapter 3 of the Interim Constitution. (Liebenberg S, 2005)

Issues raised 

Whether the death penalty violates 

• The right to life (Section 9)
• The right to Dignity (Section 10)
• The right not to be subjected to cruel, inhuman, or degrading punishment (section 11(2))
• Whether the retention of the death penalty is justifiable under section 33 (limitations clause)
•  Whether international human rights norms and comparative constitutional jurisprudence should inform the interpretation of South Africa’s Bill of Rights

Arguments of the Parties 

Appellants

• Argued that the death penalty is inherently cruel and violates the right to life and dignity.
• Cited international instruments such as the International Covenant on Civil and Political Rights (ICCPR) and jurisprudence from jurisdictions like Canada, Germany, and the United States.
• Emphasised the transformative nature of the Interim Constitution, which sought to break from the authoritarian past and embrace human rights and democratic values.

Respondent (The State)

• Argued that the death penalty served as a deterrent and it was necessary for the  public safety.
• Claimed that the Constitution did not explicitly prohibit capital punishment but, it was a lawful sentence under existing legislation.
• Invoked public opinion as a justification for retaining the death penalty.

Judgement / Final Decision 

The Constitutional Court unanimously held that the death penalty was unconstitutional. The court specifically invalidated section 277(1)(a) of the Criminal Procedure Act, which had permitted the use of the death penalty.(Liebenberg S, 2005) By doing so, the court prohibited the execution of any person sentenced under this provision and ruled that those awaiting execution should remain in prison until new sentences were imposed. (Davis D, 2014)The judgment emphasized that the death penalty destroys life (protected under section 9 of the Constitution) and annihilates human dignity (protected under section 10), with elements of arbitrariness in its enforcement and being irremediable. The court affirmed its commitment to constitutional values like freedom, dignity, and equality by rejecting the “arbitrary and capricious” nature of the death penalty. This ruling was a significant moment in South African legal history, aligning the country’s laws with its commitment to human rights as expressed in the Interim Constitution. (Chaskalson A, 2000)

Legal Reasoning / Ratio Decidendi 

Right to Life and Dignity 

In South Africa’s constitutional framework, the rights to life and dignity are foundational. As Chief Justice Chaskalson stated in the landmark case of _S v Makwanyane_, these rights are “the most important of all human rights, and the source of all other personal rights”. The Constitutional Court’s ruling emphasized that the death penalty is incompatible with these rights because it extinguishes life and undermines human dignity.(Liebenberg S, 2005) This judgment was a significant moment in South African legal history, aligning the country’s laws with its commitment to human rights as expressed in the Constitution. The rights to life (section 11) and dignity (section 10) are entrenched in the Bill of Rights, which is a cornerstone of democracy in South Africa. (Davis D, 2014)By declaring the death penalty unconstitutional, the court affirmed its commitment to constitutional values like freedom, dignity, and equality, rejecting the arbitrary and capricious nature of capital punishment..(Chaskalson A, 2000)

Cruel, Inhuman or Degrading Punishment

In the landmark case of S v Makwanyane, the Constitutional Court of South Africa ruled that capital punishment is unconstitutional because it constitutes cruel and inhuman treatment. Justice Mokgoro emphasized the importance of African humanism, known as _ubuntu_, in interpreting the Constitution. _Ubuntu_ underscores values of compassion, reconciliation, and community over vengeance. (Davis D, 2014)The court’s decision was also influenced by the irreversible nature of the death penalty and the risk of judicial errors, which further highlighted its incompatibility with constitutional values like the right to life (section 9) and human dignity (section 10). By declaring the death penalty unconstitutional, the court affirmed its commitment to constitutional values of freedom, dignity, and equality, rejecting the arbitrary and capricious nature of capital punishment. This judgment marked a significant moment in South African legal history, aligning the country’s laws with its commitment to human rights as expressed in the Interim Constitution .(Currie I, De Waal J, 2013)

Comparative and International Law

The Court adopted a comparative approach, referencing decisions from the Supreme Court of Canada (*R v Morgentaler* [1988] 1 SCR 30), the German Federal Constitutional Court, and the European Court of Human Rights. It also considered international instruments such as the ICCPR and the UN Convention Against Torture. Ackermann J stressed that international human rights norms are relevant to constitutional interpretation, especially in a post-authoritarian context (para 156). The Court rejected the argument that public opinion could justify rights violations, noting that constitutional rights are not subject to majoritarian preferences.(Currie I, De Waal J, 2013)

Transformative Constitutionalism

The Constitutional Court of South Africa’s judgment in S v Makwanyane was deeply rooted in the concept of transformative constitutionalism, a legal philosophy that emphasizes the Constitution’s role in transitioning the country from its past of inequality and injustice towards a future founded on democracy, equality, and human rights.(Currie I, De Waal J, 2013) As Justice Langa noted, the Constitution serves as “a bridge from the past to the future” (para 227), implying that its interpretation must be guided by values that promote this transformative vision.(Davis D, 2014) The court’s decision in S v Makwanyane marked a decisive break from apartheid-era jurisprudence, where laws often perpetuated inequality and violated human dignity. By abolishing the death penalty, the court affirmed its role in shaping a humane legal order that aligns with the Constitution’s transformative goals. This judgment underscored the court’s commitment to interpreting the Constitution in a manner that advances democracy, equality, and human rights, ensuring that the legal system reflects the values of a post-apartheid South Africa [2][3]..(Liebenberg S, 2005)

Conclusion/ Observations

Impact and Significance

*S v Makwanyane* is widely regarded as a cornerstone of South African constitutional jurisprudence. It established the Constitutional Court’s authority and interpretive approach, particularly its commitment to dignity, life, and human rights.(Woolman S, Bishop M, 2008) The case also set a precedent for the use of international law and comparative jurisprudence in constitutional interpretation. The decision has influenced subsequent rulings on socio-economic rights, equality, and privacy, reinforcing the Court’s transformative mandate. As Woolman and Bishop observe, the judgment “signalled the beginning of a new constitutional era” in which rights are not merely formal guarantees but substantive commitments to justice and humanity (Woolman & Bishop, *Constitutional Law of South Africa*, 2nd edn, Juta 2008).

Critical Reflection

The Constitutional Court of South Africa’s judgment in S v Makwanyane exemplifies a bold and principled stance on constitutional interpretation, where the court prioritized normative values over public opinion. (Davis D, 2014)By affirming that constitutional rights aren’t contingent on popular sentiment, the court underscored the importance of upholding the Constitution’s transformative vision rooted in dignity, equality, and justice. This approach has garnered praise for its moral clarity in protecting fundamental rights, even when they’re unpopular. However, critics argue this stance might lead to a disconnect from democratic accountability, as noted by Davis in _Constitutional Interpretation: A Perspective from the Global South_. Despite this critique, the judgment remains a landmark affirmation of the Constitution’s values.(Chaskalson A, 2000) It showcases the court’s willingness to tackle complex moral questions, articulating a jurisprudence that prioritizes dignity, equality, and justice over fleeting public opinions. In essence, the court’s decision in S v Makwanyane reinforces the idea that constitutional rights are foundational and shouldn’t be swayed by shifting popular views, ensuring a consistent commitment to the Constitution’s core values.(Davis D, 2014)

Bibliography 

Case Law  :

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

R v Morgentaler [1988] 1 SCR 30 (Can SC)

Legal Framework and Legislation 

– International Covenant on Civil and Political Rights (1966)

Law Textbooks 

– Woolman S and Bishop M, *Constitutional Law of South Africa* (2nd edn, Juta 2008)

– Davis D, *Constitutional Interpretation: A Perspective from the Global South* (CUP 2014)

– Currie I and De Waal J, *The Bill of Rights Handbook* (6th edn, Juta 2013)

– Liebenberg S, ‘The Value of Human Dignity in Interpreting Socio-Economic Rights’ (2005) 21 SAJHR 1

– Chaskalson A, ‘Human Dignity as a Foundational Value of Our Constitutional Order’ (2000) 16 SAJHR 193