Authored By: Sekoati David Tiiba
S V MAKWANE AND ANOTHER (CTT 3/94) [1995] ZACC 3; 1995 (3) SA 391 (CC) (6 JUNE 1995)
Constitutional Court of South Africa
Coram: Chaskalson P (as he then was), Langa J, Madala J, Didcott J, Kriegler J, Mahomed J, Mokgoro J, O’Regan J, Sachs J, Kentridge AJ, Ackermann J
PARTIES AND FACTS
In this case, the two accused, Makwanyane and Mchunu, both South Africans, were tried in the Witwatersrand Local Division of the Supreme Court of South Africa. They were found guilty on four counts of murder, one count of attempted murder, and one count of armed robbery involving aggravating circumstances. For each murder conviction, they were sentenced to death (capital punishment), and were also given lengthy prison terms for the other offences.
They appealed their convictions and sentences to the Appellate Division of the Supreme Court. At the time the appeal was considered, section 277(1)(a) of the Criminal Procedure Act1allowed the death penalty as a lawful sentence for murder. The Appellate Division held that, based on the gravity of the offences, the death penalty was the harshest and most appropriate sentence permitted by law.
However, during those proceedings, the Interim Constitution 2had come into force. This Constitution introduced a binding Bill of Rights, including the right to life 3and protection against cruel, inhuman or degrading punishment.4 Recognizing the constitutional implications, the Appellate Division invited counsel for the accused to address whether the death penalty remained constitutional in light of these provisions of the Interim Constitution.
The accused, through their counsel, argued that the death penalty violated their constitutional right to life, human dignity,5 and protection against cruel, inhuman or degrading punishment. Because only the newly established Constitutional Court had the authority to determine matters involving constitutional interpretation, the Appellate Division referred the constitutional question to the Constitutional Court. It dismissed the appeals against the sentences on the counts of robbery and attempted murder, and postponed the hearing on the death sentences pending the Constitutional judgment, hence the present case.
ISSUES
The Constitutional Court was asked to determine the following primary constitutional questions:
∙ Whether the death penalty, as authorized by section 277(1)(a) of the Criminal Procedure Act, is consistent with the right to life under section 9 of the Interim Constitution.
∙ Whether the death penalty violates section 10 of the Interim Constitution, which protects the inherent dignity of every person.
∙ Whether capital punishment constitutes “cruel, inhuman or degrading treatment of punishment” prohibited by section 11(2) of the Interim Constitution.
∙ If the death penalty does infringe these rights, whether such a limitation can be justified under the general limitations clause in section 33(1) of the Interim Constitution.
ARGUMENTS PRESENTED BEFORE THE COURT
(a) Arguments advanced by the State
The State, represented by the Attorney General, defended the constitutionality of the death penalty on the following grounds:
Deterrence of violent crime
The State argues that South Africa faced high levels of violent crime, particularly murder, and that the death penalty served as a powerful deterrent. It submitted that fear of execution discouraged potential offenders, and thereby protected the public. It relied on the decision in Gregg v Georgia6to argue that capital punishment may constitutionally serve a deterrent purpose. The State contended that this deterrent effect justifies any limitation of constitutional rights.
Retribution and public outrage
The State maintained that the death penalty reflected society’s moral revulsion for serious crimes. It argued that retribution was a legitimate objection of punishment and that the community has a right to demand the ultimate penalty for the most heinous offences. The State emphasized that victims and their families expected justice, and justice required proportionality between the crime and the punishment.
Public opinion
The State argued that a significant portion of the South African public supported the death penalty, particularly in light of rampant crime. It urged the Court to consider public sentiment, waring that failure to do so would undermine public confidence in the justice system.
Constitutional rights are not absolute
It was submitted that while the Constitution protects the right to life and dignity, these rights may be limited in terms of section 33 of the Constitution. The State argued that capital punishment was a permissible and reasonable limitation in the interests of maintaining law and order.
State’s duty to protect society
The State argued that the government has a constitutional responsibility to ensure public safety. By removing dangerous criminal permanently, the capital punishment protected society more effectively than imprisonment.
(b) Arguments advanced by the Applicants (Accused)
The accused, supported by amici curiae such as human rights organizations, argued that the death penalty could not be justified in constitutional democracy based on human rights, dignity, and
freedom.
Violation of the right to life
The applicants argued that the right to life is the most fundamental of all rights and that the State cannot be permitted to take life as a form of punishment. They submitted that the Constitution transformed South Africa from a punitive state to a rights-based state, and capital punishment was inconsistent with that transformation.
Violation of human dignity
It was submitted that every person, regardless of their crimes, retains their inherent dignity. The death penalty treats offenders as beyond rehabilitation and strips them of their basic humanity. The accused contended that executing a human being objectifies them and is incompatible with constitutional values.
Cruel, inhuman or degrading punishment
The accused argued that the death penalty inflicts extreme mental and physical suffering, both in the anticipation of death and in its irreversible nature. The process of execution was characterized as the “ultimate cruel and degrading punishment.”7
Arbitrary and discriminatory application
Evidence was presented showing that the death penalty had historically been applied disproportionately against black South Africans during apartheid. This demonstrated its arbitrary and unfair nature, making it incompatible with equality before the law.
No conclusive evidence of deterrence
The accused argued that the State failed to provide empirical proof that capital punishment deters crime more effectively than life imprisonment. They submitted that deterrence is speculative and cannot justify the deliberate taking of life.
Irreversibility and risk of miscarriage of justice
Once carried out, a death sentence cannot be undone. The accused stressed that wrongful convictions, although rare, are possible, and the Constitution cannot permit a punishment that allows no remedy for judicial error.
Public opinion cannot override constitutional rights
The accused argued that constitutional rights exist to protect individuals precisely when public opinion turns against them. The Court, as guardian of the Constitution, must uphold rights even where the majority disagrees.
JUDICIAL REASONING AND INTERPRETATION
Chaskalson P
(Leading majority judgment: foundational reasoning)
Chaskalson P began by affirming that the Court’s mandate was not to determine whether the death penalty was desirable from a societal or moral perspective, but whether it was consistent with the Constitution, a supreme normative framework designed to transform South Africa from a past of cruelty and inequality into a democratic state founded on dignity, equality and freedom.
Right to life and human dignity as foundational values
Chaskalson P held that the right to life is the most fundamental of all rights because all other rights depend on it. Read together with human dignity, these rights were interpreted as limiting the power of the state to deliberately take life as punishment. He emphasized that dignity is inherent and cannot be forfeited by an offender, not matter how heinous the crime.
Cruel, inhuman or degrading punishment
By analysis section 11(2), the learned judge stated that the death penalty is inherently cruel because it involves the calculated destruction of life by the state. Unlike imprisonment, which allows for rehabilitation, death is final and irreversible. The long psychological suffering endured by prisoners awaiting execution constitutes an additional lawyer of inhuman treatment.
Equality before the law
Chaskalson P referred to evidence showing unequal application of the death penalty, where judges differed in their approach to mitigating and aggravating factors. The Court found that such inconsistency violated section 8 (equality), as the fate of an accused could depend on the identity of the judge rather than objective legal standards.
Deterrence argument rejected
As the state had argued that capital punishment had a deterrent effect, the Court held that deterrence alone cannot justify infringing fundamental rights unless there is clear, objective, and convincing evidence, which the state failed to produce. Moreover, the Constitution values human dignity over utilitarian outcomes.
Limitation clause analysis
Applying section 33 (limitation clause), Chaskalson P concluded that no compelling justification existed for limiting the rights to life and dignity to allow for the death penalty. He said the limitation must be reasonable and justifiable in an open and democratic society, which capital punishment was not.
Chaskalson P concluded that the death penalty is unconstitutional because it violates the rights in issue, and cannot be justified under the limitation clause.
Didcott J
Didcott J concurred but offered a distinct reasoning focusing on the inherent arbitrariness of capital punishment. He held that because the death penalty is applied selectively and inconsistently, it inevitably results in arbitrary deprivation of life, which is strictly forbidden. He emphasized that no judicial safeguards can eliminate human error. He said the fact that a sentence is irreversible requires absolute certainty, something the legal system cannot guarantee.” Didcott J also stressed the moral dimension: the state must not become a mirror image of the offender by committing the same act it condemns.
Mahomed J
Mahomed J’s opinion is notable for its emphasis on the historical context of state violence under apartheid. He stated that the Constitution was enacted to repudiate a violent and oppressive past, where the state used death and brutality as tools of control. Thus, retaining capital punishment would contradict the transformative spirit of the Constitution. He reasoned that the new legal order must promote reconciliation and restorative justice, not vengeance.
O’Regan J
O’Regan placed strong emphasis on human dignity as the central value of the Constitution. She argued that even the worst criminals are bearers of dignity, and the state must act in accordance with the values it seeks to promote. She also considered international trends, noting that most democratic societies are moving towards abolition, and that South Africa risked isolating itself by retaining capital punishment.
Sachs J
Sachs J employed a deeply philosophical and human rights-based approach. He highlighted the psychological anguish experienced by those on death row, describing it as a form of torture. He held that capital punishment offends the concept of Ubuntu, an African value system grounded in community, empathy, and the inherent worth of every human being. He held further that the purpose of punishment is not to destroy the human personality, but to affirm its capacity for change. Sachs J concluded that the death penalty fails to meet constitutional standards not only because it violates rights, but because it undermines the ethical foundation of the democratic state.
RATIO DECIDENDI
All judges unanimously held that the death penalty was unconstitutional. Though their reasoning varied in emphasis, ranging from foundational constitutional values, dignity, arbitrariness, and historical and moral considerations, they reached a collective conclusion that capital punishment, as authorized by section 277(1)(a) of the Criminal Procedure Act, is consistent with the right to life under section 9, human dignity under section 10, and constitutes cruel, inhuman or degrading treatment of punishment prohibited by section 11(2) of the Constitution. They held that the limitation cannot be justified under the general limitations clause in section 33(1) of the Interim Constitution. Section 277(1)(a) of the Criminal Procedure Act was therefore struck down.
CONCLUSION
This case marked a turning point in South African constitutional law. By declaring the death penalty unconstitutional, the Court affirmed that the rights to life, dignity, and protection from cruel punishment are absolute and cannot be limited by public opinion or retributive justice. The case established South Africa as a rights-based democracy and set a strong precedent that constitutional values must guide all state action. Its significance lies not only in abolishing capital punishment, but in affirming the supremacy of human rights as the foundation of the legal system.
Bibliography
Statutes
Constitution of the Republic of South Africa, 1993 Criminal Procedure Act 51 of 1977
International Covenant on Civil and Political Rights, 1966
Cases
Gregg v Georgia 428 US 153 (1976)
S v Makwanyane and Another (CCT 3/94) [1995] ZACC 3
1 Criminal Procedure Act 51 of 1977, section 277(1)(a).
2Interim Constitution 1993.
3Ibid, section 9.
4Ibid, section 11(2).
5Ibid, section 10.
6 Gregg v Georgia 428 U.S. 153 (1976).
7 As recognized in international human rights instruments such as the International Covenant on Civil and Political Rights, 1966, Article 7.
