Authored By: Asive Zamantlele Mathenga
University Of Fort Hare
Abstract
The landmark case State v Makwanyane and Another [1995] ZACC 3; 1995 (3) SA 391 (CC), abolished the death penalty in South Africa, leaving courts to redefine how the most serious crimes should be punished. Contemporary legal developments have sought to establish a new “ultimate” sanction that aligns with constitutional values of human dignity1. Drawing on the sentencing of Thabo Bester as a recent example, the article examines the Constitutional Court’s decision in Minister of Justice and Correctional Services v Mdingi and Others [2023] ZACC 10. This ruling clarified when life sentences without parole may be imposed and set boundaries to ensure they remain constitutionally valid2.
The broader argument is that South African jurisprudence has developed a careful balance. It allows for extremely harsh sentences to meet society’s demand for justice and finality, yet it insists on preserving a minimal right to hope and the chance of rehabilitation. In this way, the principles established in Makwanyane continue to shape sentencing in the modern era, ensuring punishment remains severe but not degrading or inhuman.
INTRODUCTION
The end of the death penalty in State v Makwanyane established human dignity as a core value in South Africa’s law3. Society still seeks the harshest possible punishment for extreme crimes, as seen in the life sentence given to Thabo Bester. This raises the question: what is the toughest penalty allowed under the Constitution? Recent rulings, especially in Minister of Justice v Mdingi, clarified that life imprisonment without parole can be imposed in rare cases. However, the courts insist that even the most severe sentences must leave room for hope and rehabilitation. This balance ensures that punishment remains firm but never cruel, keeping the principles of Makwanyane alive in today’s justice system.
MAIN BODY
1 LEGAL FRAMEWORK
1 1 The Governing Constitutional Provisions
1 1 1 The Correctional Services Act 111 of 1998, sets out how prisoners must be treated in South Africa, emphasizing human dignity, rehabilitation, and parole systems. It provides the framework for life imprisonment and parole, which became the “ultimate punishment” after capital punishment was struck down4.
1 1 2 The Criminal Law Amendment Act 105 of 1997, formally abolished the death penalty in South Africa, replaced all existing death sentences with lawful alternatives, and introduced minimum sentences for serious crimes5. It is central to the debate on “ultimate punishment” because it shifted the system from execution to life imprisonment as the harshest sanction, thereby linking directly to the constitutional principles established in State v Makwanyane6.
1 2 Supporting Jurisprudence
1 2 1 S v Makwanyane and Another [1995] ZACC 3; 1995 (3) SA 391 (CC).
Abolished the death penalty as a violation of Sections 9 (right to equality), 10 (right to human dignity) and 11 (right to life) of the Constitution. Its reasoning on human dignity, proportionality, and a “civilised” standard of justice is the bedrock of the entire analysis7.
1 2 2 Minister of Justice and Correctional Services v Mdingi and Others [2023] ZACC 10.
It clarifies that a High Court, when imposing a life sentence, has the discretionary power to also make an order that the offender is not to be placed on parole. This confirms that “life imprisonment” is not inherently a “whole life order,” and sets the high bar of “exceptional circumstances” for such an addendum8.
2 JUDICIAL INTERPRETATION
2 1 Summary of facts and reasoning
In Minister of Justice v Mdingi, the Constitutional Court addressed whether courts could declare life-sentenced offenders ineligible for parole. It confirmed that judges may impose such non-parole orders in rare and extreme cases, ensuring the harshest crimes receive fitting punishment9. At the same time, the Court emphasized the principle from S v Makwanyane that every prisoner must retain some hope of rehabilitation10. The ruling therefore balanced severity with dignity. Life sentences may be irreducible in exceptional circumstances, but automatic or blanket denial of parole is unconstitutional.
2 2 Importance of this case
The Mdingi case resolved a key issue in South Africa’s sentencing law. It confirmed that while automatic “whole life” sentences are unconstitutional, courts may, in rare and extreme cases, impose life imprisonment without parole. This strikes a middle ground: punishment can be extremely severe for the worst crimes yet still respects human dignity by avoiding the absolute finality of the death penalty. The ruling therefore defines the modern framework for South Africa’s ultimate punishment exceptional, carefully supervised, and consistent with constitutional values.
2 3 Critical evaluations
The Mdingi judgment clarified sentencing law but remains problematic. Its vague “exceptional circumstances” test risks inconsistent application and declaring an offender unfit for parole effectively removes any real chance of rehabilitation. In practice, this creates a whole-life sentence under constitutional cover, reflecting public demand for harsh punishment. The case highlights the unresolved tension between protecting human dignity and satisfying retributive justice in South Africa’s penal system.
3 CRITICAL ANALYSIS: LOOPHLES, PRACTICAL CHALLENGES AND THE LIMITS OF REFORM
The Mdingi ruling, though important for legal certainty, exposes deep weaknesses in South Africa’s sentencing system. Its reliance on an undefined “exceptional circumstances” test leaves room for inconsistent and potentially arbitrary decisions by judges. In practice, declaring someone unfit for parole undermines the idea of rehabilitation, burdens parole boards with little real authority, and results in prisons filled with aging inmates who serve no constructive purpose.
At a broader level, the judgment highlights a structural deadlock: the Constitution forbids a return to the absolute finality of the death penalty, yet political and public pressure resists more humane reforms. This leaves the law stuck in a fragile compromise severe punishment without true closure, and dignity without genuine hope. In effect, Mdingi case illustrates the unresolved clash between retribution and human dignity, showing the ongoing crisis of what “ultimate punishment” means in South Africa’s constitutional order.
4 RECENT DEVELOPMENTS
Recent developments show the system actively grappling with the Mdingi doctrine. Operationally, the Department of Correctional Services has directed parole boards to treat judicial non-parole orders as a near-insurmountable barrier, confirming the functional hollowing-out of parole.
Politically, there is pressure to legislate mandatory non-parole periods for certain crimes, directly challenging Mdingi’s discretionary core.
In practice, courts as seen in the Thabo Bester sentencing are applying the “exceptional circumstances” test cautiously, often opting for life sentences without the added non-parole order.
Meanwhile, civil society highlights systemic failures that create whole-life sentences through neglect. These trends reveal ongoing tension between retributive demands and constitutional limits, keeping the framework under significant stress.
5 BEYOND THE JUDGEMENT: (RECOMMANDATIONS FOR LEGISLTIVE REFORM AND LEGISLATION)
Recommendations for legislative reform to address the gaps and tensions identified in the Mdingi framework:
- Codify the “Exceptional Circumstances” Test.
- Mandate Specialised Sentencing Procedures.
- Establish a Structured Parole Review Mechanism.
- Institutionalise Rehabilitation Pathways for All Lifers
- Pre-empt “Whole Life” Statutes.
These reforms aim to bring predictability, procedural fairness, and constitutional fidelity to the administration of South Africa’s most severe punishment.
6 CONCLUSION
The Mdingi judgment created an important but fragile compromise in South African sentencing law. It gave courts the discretion to impose life sentences without parole in rare cases, but its undefined “exceptional circumstances” test risks uneven application. More troubling is that the supposed protection of rehabilitation becomes meaningless when parole is denied, effectively turning such sentences into whole-life imprisonment.
The deeper issue is the constitutional tension: how to punish the most serious crimes with the severity society demands, while still respecting the right to dignity and the chance of redemption affirmed in S v Makwanyane.
In conclusion, South Africa’s search for a true “ultimate punishment” remains unresolved. Unless clearer rules and genuine rehabilitation measures are introduced, the legacy of the death penalty will persist not through execution, but through prison sentences where hope exists only in theory.
7 BIBLIOGRAPHY
7 1 Case laws
7 1 1 S v Makwanyane and Another [1995] ZACC 3; 1995 (3) SA 391 (CC). 7 1 2 Minister of Justice and Correctional Services v Mdingi and Others [2023] ZACC 10.
7 2 Legislation
7 2 1 The Correctional Services Act 111 of 1998
7 2 2 The Criminal Law Amendment Act 105 of 1997
1 State v Makwanyane and Another [1995] ZACC 3; 1995 (3) SA 391 (CC).
2 Minister of Justice and Correctional Services v Mdingi and Others [2023] ZACC 10.
3 State v Makwanyane and Another [1995] ZACC 3; 1995 (3) SA 391 (CC).
4 The Correctional Services Act 111 of 1998.
5 The Criminal Law Amendment Act 105 of 1997
6 State v Makwanyane and Another [1995] ZACC 3; 1995 (3) SA 391 (CC).
7 State v Makwanyane and Another [1995] ZACC 3; 1995 (3) SA 391 (CC).
8 Minister of Justice and Correctional Services v Mdingi and Others [2023] ZACC 10.
9 Minister of Justice and Correctional Services v Mdingi and Others [2023] ZACC 10.
10 State v Makwanyane and Another [1995] ZACC 3; 1995 (3) SA 391 (CC).
