Abolishment of the Death Penalty in South Africa: Landmark Case Shante Rademeyer

1. Case Title and Citation:

• S v Makwanyane and Another 1995.
• (CCT3/94) [1995] ZACC 3; 1995 (6) BCLR 665; 1995 (3) SA 391; [1996] 2 CHRLD 164; 1995 (2) SACR 1.

2. Court name and Bench:

• Constitutional Court of South Africa.
• Judges: Chaskalson P (Presiding), Ackermann, Didcott, Kriegler, Langa, Madala, Mahomed, Mokgoro, O’Regan, Sachs JJ, and Kentridge AJ.
• Constitutional Bench.

3. Date of Judgement

6 June 1995

4. Parties Involved

4.1 The First Appellant is Tsebeho Aaron Makwanyane:

• He was the accused.
• He was one of the two individuals accused in the original trial.
• His convictions included: four counts of murder, attempted murder and robbery with aggravating circumstances.
• He was sentenced to death.
• His case was central to the constitutional challenge of the death penalty. 4.2 The Second Appellant is Mbuyiselo Mchunu:
• He is the co-accused in the original trial alongside Makwanyane.
• He was convicted of the same serious offences.
• He was also sentenced to death.
• He joined Makwanyane in appealing the constitutionality of the death penalty. 4.3 The Respondent is the State:
• The state represented the prosecution and the government.
• The prosecution argued in favour of the death penalty.
• The prosecution asserted that capital punishment was a justifiable limitation on the right to life in terms of the Interim Constitution.

5. Facts of the case:

• The two accused in this matter were found guilty on four counts of murder, one count of attempted murder, and one crime of robbery with aggravating circumstances by the Supreme Court’s Witwatersrand Local Division. 
• On all the murder charges, they received death sentences, and on all the other charges, they received lengthy jail sentences.
• They filed an appeal against the convictions and sentencing with the Supreme Court’s Appellate Division.
• The Appellate Division rejected the appeals and determined that the accused should be given the harshest punishment allowed by law because of the circumstances surrounding the murders.
• The challenges against the death sentence were not heard further, but the Appellate Division dismissed the appeals against the penalties on the counts of attempted murder and robbery.
• The matter was heard in the Constitutional Court.

6. Issues Raised

Whether or not the death penalty, as stipulated in section 277(1)(a) of the Criminal  Procedure Act 51 of 1977, was in accordance with the Interim Constitution’s safeguards,  particularly the rights to life, dignity, and freedom from cruel, inhuman, or degrading  punishment.

7. Arguments of the Parties

7.1 The Appellants:

• The main argument from the appellants was that the death penalty violated fundamental rights protected by the Interim Constitution.
• Chapter 3, section 11(2) contained the provision that prohibited cruel, inhumane or degrading punishment, despite the constitution not expressly prohibiting the death penalty. 
• The main points made to support the accused’s claim that the death penalty for murder is a “cruel, inhuman, or degrading punishment” were that the death penalty violates human dignity, conflicts with the unqualified right to life guaranteed by the  Constitution, cannot be changed in the event of an error or applied arbitrarily, and  nullifies the fundamental elements of the right to life and the other rights that flow  from it.

7.2 The State:

• The main argument from the state defended the constitutionality of the death penalty. The state claimed it was a justifiable limitation on rights under the Interim Constitution.
• The Attorney General argued that the death penalty is accepted as a valid form of punishment in many countries, deters violent crime, satisfies society’s need for sufficient retribution for serious crimes, and is accepted as a form of punishment in  South African society. Therefore, he claimed, it is neither cruel, inhuman, nor humiliating in the sense that section 11(2) of the Constitution defines it.

8. Judgement

The Constitutional Court rejected the state’s arguments, stating that any limitation must be  narrowly and strictly justified as the constitutional right to dignity and life are foundational.  The prosecution failed to show that the death penalty was a justifiable limitation under the  general limitations clause of the Interim Constitution. The Court concluded that with effect  from the date of their judgment, the death penalty would be abolished from the Criminal Procedure Act. Corresponding provisions of other legislation sanctioning capital  punishment were declared to be inconsistent with the Constitution and therefore invalid.  The State and all its organs were forbidden to execute any person already sentenced to  death under any of the provisions which were declared to be invalid. The court further  stated that such individuals were ordered to remain in custody under the sentences imposed  on them and until such sentences have been set aside following the law and substituted by  lawful punishments.

9. Legal Reasoning

According to the ratio decidendi in S v Makwanyane, the death sentence was inconsistent with the principles upheld by the South African Interim Constitution, particularly the  prohibition of harsh, inhuman, or humiliating punishment and the rights to life and dignity.  The court ruled that the death sentence was unconstitutional because it infringed upon these  fundamental rights. The Constitutional Court addressed arguments about the death  penalty’s influence on human dignity, the right to life, the potential for irrevocable errors,  and the arbitrary nature of its application. They compared these to claims that it provided  retribution for horrible crimes and acted as a deterrence to crime. The court ultimately  concluded that the death sentence was an incompatible form of punishment with the new  constitutional order, which placed a strong focus on human rights. The ruling declared the  pertinent sections of the Criminal Procedure Act that permitted the death penalty to be  unconstitutional.

10.Conclusion 

Section 277(1)(a) and any legislation allowing the death sentence were unanimously ruled  to be incompatible with the Interim Constitution by the Constitutional Court. It was  determined that the death penalty could not be justified under the general limitation  provision since it violated the rights to life, dignity, and freedom from harsh, inhuman, or  humiliating punishment. As a result, South Africa abolished the death penalty and revoked  all outstanding death sentences.