S. v. Makwanyane and Another, 1995 (3) SA 391 (CC) (S. Afr.)

Case Name and Citation: S. v. Makwanyane and Another, 1995 (3) SA 391 (CC) (S. Afr.).

Facts: The case concerned T. Makwanyane and M. Mchunu, who were convicted in the Witwatersrand Local Division of the Supreme Court on four counts of murder, one count of attempted murder, and one count of robbery with aggravating circumstances. They were sentenced to death on each of the murder counts and received lengthy imprisonment terms for the other convictions. Their appeal to the Appellate Division of the Supreme Court against the convictions and sentences for attempted murder and robbery was dismissed. The Appellate Division concluded that the circumstances of the murders were severe enough to warrant the heaviest sentence permissible by law.

Procedural History: The accused were initially convicted and sentenced to death by the Witwatersrand Local Division of the Supreme Court. They subsequently appealed to the Appellate Division of the Supreme Court. While the Appellate Division upheld the convictions and sentences for attempted murder and robbery, it then addressed the constitutionality of the death penalty itself. Given that the Republic of South Africa Constitution, 1993, had come into force after the trial court’s conviction and sentencing, the Appellate Division invited counsel for the accused to argue whether Section 277(1)(a) of the Criminal Procedure Act No. 51 of 1977, which prescribed the death penalty for murder, was consistent with the new Constitution. Counsel argued it was not, contending it conflicted with Sections 9 (the right to life) and 11(2) (the right not to be subjected to cruel, inhuman, or degrading punishment) of the Constitution.

The Appellate Division then postponed the further hearing of the appeals against the death sentence until the constitutional issues could be decided by the Constitutional Court. Although there was no formal referral under Section 102(6) of the Constitution, this referral was implicit in the Appellate Division’s judgment and was treated as such by the parties. The trial had concluded before the 1993 Constitution’s commencement, meaning the constitutional question had not been raised at that stage. The Constitutional Court, after considering whether further evidence was needed, decided to address the matter based on the arguments and information already presented, concluding that no good purpose would be served by referring the case back for additional evidence.

Legal Issue(s): The primary legal issue before the Constitutional Court was whether Section 277(1)(a) of the Criminal Procedure Act No. 51 of 1977, which made the death penalty a competent sentence for murder, was consistent with the Republic of South Africa Constitution, 1993. This encompassed several specific questions:

• Whether the death penalty violated Section 9, “every person shall have the right to life,” and Section 11(2), prohibiting “torture of any kind… nor cruel, inhuman or degrading treatment or punishment”.
• If found to be inconsistent, whether the imposition of the death penalty could nevertheless be justified as a permissible limitation of rights under Section 33 of the Constitution. This included considering arguments relating to deterrence, retribution, and the notion of a “law of general application”.
• Whether the disparity in laws governing capital punishment across different parts of South Africa (e.g., Ciskei having abolished it while other regions retained it) had a bearing on the constitutionality of Section 277(1)(a), specifically regarding the right to “equality before the law and to equal protection of the law” under Section 8 and the requirement for a “law of general application” under Section 33(1).

Holding (Decision/Answer): The Constitutional Court unanimously held that the death penalty was unconstitutional. The Court issued an order declaring that paragraphs (a), (c), (d), (e), and (f) of Section 277(1) of the Criminal Procedure Act, and all corresponding provisions of other legislation sanctioning capital punishment then in force in any part of the national territory, were inconsistent with the Constitution and, therefore, invalid. Furthermore, the Court forbade the State and all its organs from executing any person already sentenced to death under these provisions. Such individuals were to remain in custody under their imposed sentences until those sentences could be lawfully set aside and substituted with appropriate and lawful punishments.

Reasoning: The Court’s reasoning was multifaceted, grounded in a purposive and generous interpretation of the Constitution’s fundamental rights, particularly within the context of South Africa’s historical transition to an “open and democratic society based on freedom and equality”.

1. Nature of the Death Penalty: Cruel, Inhuman, and Degrading Punishment (Section 11(2)):
   • Dehumanizing and Degrading: The Court found the death penalty to be inherently cruel, inhuman, and degrading. It subjects individuals to intense mental anguish, not only during the prolonged period on death row (the “death row phenomenon”) but also through the knowledge of a specific, impending death. This treatment effectively reduces individuals to “nonhumans, as objects to be toyed with and discarded,” violating the fundamental premise of human dignity. Justice Kentridge underscored that the death penalty differs from all other punishments “not in degree but in kind” due to its irrevocability and absolute renunciation of humanity.
   • Irreversibility and Risk of Error: The finality of the death penalty means that any judicial error is irremediable. The killing of an innocent person is a profound and irreversible injustice, a risk that cannot be entirely excluded in any criminal justice system.
   • Arbitrariness and Inequality: The application of the death penalty was found to be inherently arbitrary and prone to inequality. Factors such as poverty, race, and the availability of competent legal counsel significantly influenced who ultimately received the death sentence. The pro deo system, while providing essential services, faced resource limitations that placed poor and black accused persons at a disadvantage. Justice Ackermann emphasized that arbitrariness is dissonant with the constitutional state’s core concepts of reason and justification. The geographical disparity, where the death penalty was abolished in some former homelands (like Ciskei) but not others, also highlighted the arbitrary nature of its application.
2. Violation of the Right to Life and Dignity (Sections 9 and 10):
   • The Court read Section 11(2) in conjunction with Section 9 (right to life) and Section 10 (right to dignity). Justice O’Regan explicitly stated that the death penalty constituted a breach of both Section 9 and Section 10, asserting that life and dignity are fundamental and inextricably linked. Justice Mokgoro further articulated that “life and dignity are like two sides of the same coin,” both embodied in the concept of ubuntu. The Court affirmed that rights in Chapter 3 apply to all persons, including those who have committed heinous crimes, emphasizing that conviction does not reduce individuals to “non-persons”.
3. Justification under the Limitations Clause (Section 33):
   • The Court applied a “two-stage” approach to the limitation of rights, requiring that any limitation be “reasonable” and “justifiable in an open and democratic society based on freedom and equality,” and “necessary” for certain rights (including dignity and cruel punishment), and must not “negate the essential content of the right”. The onus was on the State to establish this justification.
   • Deterrence: While acknowledging the State’s legitimate interest in combating violent crime, the Court found no conclusive proof that the death penalty was a greater deterrent than life imprisonment. Evidence showed that most violent crimes went unsolved, lessening any potential deterrent effect. Justice Kriegler noted that two centuries of research had established that “capital punishment serves no purpose that life imprisonment could not serve equally well”.
   • Retribution: The Court recognized retribution as a legitimate sentencing objective but held it could not justify the death penalty, especially in a society founded on new constitutional values. The Constitution’s post-amble, which speaks of “understanding but not vengeance, and for reparation but not for retaliation, a need for ubuntu but not victimisation,” pointed away from the “eye for an eye” principle. Justice Langa stressed that society must not send the message that the value of human life is variable.
   • Ubuntu and Human Dignity: The concept of ubuntu, embodying humaneness, social justice, fairness, and the interdependence and unconditional respect among community members, was seen as central to the new constitutional order. This philosophy requires a society that “wishes to prevent crime… [not] to kill criminals simply to get even with them”. The State must uphold the inestimable value of human life by example, rather than adopting the values of criminals.
   • Essential Content of Rights: The Court concluded that the death penalty, by its very nature, negates the essential content of the right to life and human dignity, as it destroys these rights rather than merely limiting them.
   • Less Restrictive Means: The availability of severe alternative punishments, such as life imprisonment, which achieves the legitimate aims of deterrence, prevention, and retribution without extinguishing life and dignity, rendered the death penalty unnecessary and thus unjustifiable.

Other Opinions: All ten other judges on the Constitutional Court concurred with the President, Justice Chaskalson, in the outcome, but many wrote separate concurring opinions, emphasizing different aspects of the reasoning:

• Ackermann J placed greater emphasis on the inevitably arbitrary nature of capital punishment, arguing that arbitrariness is fundamentally “dissonant with these core concepts of our new constitutional order” which emphasizes reason and justification. He cited US Supreme Court justices Brennan and Blackmun on the impossibility of eliminating arbitrariness in capital sentencing.
• Didcott J stressed that the constitutional right to life “must surely entitle one, at the very least, not to be put to death by the state deliberately, systematically and as an act of policy”. He vividly described the “dehumanising environment of near hopelessness” for prisoners on death row, drawing on foreign jurisprudence.
• Kentridge AJ reiterated Justice Stewart’s observation that the death penalty “differs from all other forms of criminal punishment, not in degree but in kind,” highlighting its irrevocability, rejection of rehabilitation, and renunciation of humanity. He also cautioned that while public opinion is relevant, it should not be the controlling factor in assessing evolving standards of decency.
• Kriegler J highlighted the purely legal nature of the inquiry, asserting that the plain language of Section 9 (“Every person shall have the right to life”) is irreconcilable with the death penalty. He concluded that the death penalty failed the threshold test of “reasonableness” under Section 33(1)(a) without needing to delve into “justifiability” or “essential content”.
• Langa J emphasized the primacy of the right to life as “the most fundamental of all rights, the supreme human right”. He articulated that the Constitution’s ethos calls for a society that relies on “moral persuasion rather than force,” where the State upholds the inestimable value of human life by example, in line with the concept of ubuntu.
• Madala J underscored the unique and irrevocable nature of the death penalty, echoing Justice Stewart. He strongly advocated for the concept of ubuntu, linking it to humaneness, social justice, and fairness, and arguing for rehabilitation over vengeance, aligning with the Constitution’s post-amble.
• Mahomed J contextualized the decision within South Africa’s historical transition, noting the Constitution’s aim to move from a past of “strife, conflict, untold suffering and injustice” to a future founded on human rights. He pointed to the inherent arbitrariness of capital punishment, exacerbated by socio-economic factors and unequal access to justice, as leading to an “impermissibly cruel invasion of rights”.
• Mokgoro J emphasized the importance of incorporating indigenous South African values, particularly ubuntu, into the country’s emerging human rights jurisprudence. She highlighted that constitutional interpretation necessarily involves making “value choices” that reflect enduring societal values rather than fluctuating public opinion.
• O’Regan J squarely stated that Section 277 not only breached Section 11(2) but also Section 9 (right to life) and Section 10 (right to dignity). She stressed the Constitution’s role as a “historic bridge” to a new society based on equality and dignity, which must be realized without delay.
• Sachs J argued that the unqualified words of Section 9, “Every person shall have the right to life,” on their face, outlawed capital punishment, as executing someone is “not limiting that person’s life, but extinguishing it”. He further stressed that constitutionalism is about the protection and development of rights, not their extinction, and advocated for drawing upon “traditional African jurisprudence” and ubuntu in developing the nation’s sense of justice.

Significance: S. v. Makwanyane and Another is a landmark decision that fundamentally shaped South African jurisprudence and constitutional law. It marked the abolition of the death penalty in South Africa, aligning the country with global abolitionist trends and demonstrating a profound commitment to human rights in its post-apartheid era. The judgment solidified the supremacy of the 1993 Constitution and established the Constitutional Court as the ultimate authority in interpreting and enforcing fundamental rights.

The Court’s purposive and generous interpretive approach, integrating both international law and indigenous values like ubuntu, provided a powerful model for constitutional adjudication in a democratic society. It affirmed that even the most heinous criminals retain fundamental human rights, emphasizing that the State must uphold human dignity and the value of every life. Furthermore, the case significantly contributed to transnational judicial dialogue, with its detailed comparative analysis and strong articulation of human rights principles being used by litigants and scholars worldwide to advance human rights arguments in other jurisdictions. It set a precedent for a “culture of justification” in all state actions, particularly those affecting fundamental rights.