Bokamoso Ramadie

Case citation & basic info

S v Makwanyane 1995 (3) SA 391 (CC).

Constitutional Court of South Africa

Decided: 6 June 1995

Judges: Chaskalson P (President) and the full Constitutional Court

Introduction

S v Makwanyane was a landmark Constitutional Court ruling that declared the death penalty unconstitutional in South Africa. The lawsuit addressed whether the capital penalty was compatible with the rights granted by the Interim Constitution of 1993, particularly the rights to life, dignity, and freedom from harsh, inhuman, or humiliating punishment. The decision made human dignity a basic tenet of South African constitutional law and permanently eliminated the death penalty.

Facts of the case

Makwanyane and his co-accused, Mchunu, were found guilty of murder and other major offenses and condemned to death by a trial court under the current criminal law. After the Interim Constitution went into effect, their case was referred to the valid Court to see if the death penalty was valid.
At the time, capital punishment was still legal under statute. However, the Interim Constitution included a Bill of Rights that guaranteed fundamental human rights. The Constitutional Court was then requested to rule on whether the death penalty violated these newly established rights.

Legal issues

The key legal problems were:

1. Does the death penalty contradict the constitutional right to life?
2. Did it violate the right to human dignity?
3. Determine whether the penalty was cruel, inhuman, or degrading.
4. Can such a limitation of rights be justified under the Constitution’s limitation clause?

Arguments presented

In favour of the death penalty (State’s arguments)

• The death sentence was justified as a deterrent against heinous crimes.
• Public opinion favoured capital punishment.
• It provided retributive justice while also protecting society.
• The Constitution does not clearly forbid the death penalty.

Against the death penalty (accused’s arguments)

• It infringed the right to life and dignity.
• The punishment was harsh, inhuman, and degrading.
• The decision was irreversible and could lead to the execution of innocent persons.
• Constitutional rights should not be based on public opinion. • A human-rights-based constitutional system cannot allow state killing.

Court’s reasoning & analysis

The court unanimously ruled that the death punishment was unconstitutional.
The judges highlighted that the Constitution was built on the principles of human dignity, equality, and freedom. The right to life was referred to as the most fundamental of all rights. The Court reasoned that permitting the state to intentionally take human life as punishment plainly opposed these fundamental values.

The Court rejected relying on public opinion, holding that constitutional rights exist to protect people even when the majority opinion differs. It also determined that there was no conclusive evidence that the death penalty was a better deterrence than life imprisonment.

The penalty was deemed cruel and degrading because it disregarded the offender’s inherent human dignity and treated the individual as having no moral worth. The Court emphasized that South Africa’s new constitutional order aimed to break free from a violent and oppressive past and develop a culture of human rights.

Under the limitation clause, the Court determined that the violation of the rights to life and dignity was too serious to justify. As a result, all death sentences were overturned, and capital punishment was abolished.

Judgment & ratio decidendi

The Constitutional Court unanimously ruled that the death penalty is unconstitutional and unlawful. All current death sentences were overturned and substituted with legal alternative penalties.

The ratio decidendi of the case is that the capital penalty violates the constitutional rights to life, human dignity, and the right not to be subjected to harsh, inhuman, or humiliating punishment, and that such violations cannot be justified by the limitation clause. The Court recognized that the Constitution must be interpreted in terms of its fundamental values, particularly dignity and the sanctity of life. The state, as the custodian of rights, cannot purposefully destroy life as a form of punishment without contradicting the same values it is supposed to protect.

The verdict established a key principle: public opinion does not determine constitutional rights. The Court held that the judiciary must preserve basic rights, even if doing so is unpopular.

Critical analysis

S v Makwanyane is widely regarded as a game-changing decision that firmly established human dignity as the cornerstone of South African constitutional law. The ruling demonstrates a strong commitment to a constitutional democracy founded on human rights, as well as a departure from the brutal legacy of apartheid justice.

One advantage of the judgment is its moral clarity. The Court’s reasoning was based not only on technical interpretation, but also on ethical and philosophical concepts concerning the value of human life. By dismissing public opinion as a deciding element, the Court endorsed the notion that constitutional supremacy shields minorities from majoritarian impulses.

Critics say that the Court may have acted ahead of popular opinion at the time, as many South Africans favoured the death penalty due to high crime rates. Some scholars argue that the decision exemplifies judicial activism, in which the Court took a significant normative role in determining social policy. Others argue that this activism was warranted because the Constitution clearly requires the safeguarding of basic rights.

The ruling also raises broader problems about how to strike a balance between justice for victims and offender rights. While the decision values human dignity universally, detractors contend that it provides insufficient consideration for victims’ viewpoints and the social fear of violent crime. Nonetheless, the Court’s emphasis on long-term constitutional objectives rather than urgent public pressure continues to define South Africa’s legal identity.

Conclusion

S v Makwanyane remains one of the most significant constitutional rulings in South African history. It abolished the death penalty and recognized human dignity and the right to life as constitutional principles. The case highlights the judiciary’s role in establishing a democratic society based on human rights, despite considerable public opposition. Its legacy continues to affect constitutional interpretation and human rights jurisprudence in South Africa and around the world.

Reference(S):

S v Makwanyane 1995 (3) SA 391 (CC).

Currie, I., & De Waal, J. The Bill of Rights Handbook. 6th ed. Cape Town: Juta, 2013.

Chaskalson, A. et al. Constitutional Law of South Africa. 2nd ed. Cape Town: Juta, 2002.