Authored By: Siphokazi Thandolwethu Noluvuyo Cele
University of South Africa
Case Citation and details
Case name: S v Makwanyane
Citation: S v Makwanyane and Another (CCT3/94) [1995] ZACC 3; 1995 (6) BCLR 665; 1995 (3) SA 391; [1996] 2 CHRLD 164; 1995 (2) SACR 1 (6 June 1995)
Case Number: CCT/3/94
Parties: State v Themba Makwanyane and Mvuso Mchunu
Court: Constitutional Court
Date heard: 15 to 17 February 1995
Date decided: 6 June 1995
Bench composition: Chaskalson P and the counsel appearing before the Constitutional Court
Areas of Law: Human rights, Crime, Constitutional Law
Main Case Reason: is death penalty constitutional under the Interim Constitution, 1993.
Introduction
Before 1994. South Africa had revolutions when it comes to law and its legislation. It then became a democratic country, but certain legislations were already existing and not yet amended despite whether they were ruled democratic or not. The legal issue was the conflict around death penalty as punishment in court cases.
This was very important as it changed the ruling, the punishment and the view of perspectives in deciding crime in the history of South Africa. Was the death penalty fair? Was it constitutional? Did the extent of a crime have to blind the type of punishment a person deserves?
The justice system had to change and not base its ruling on capital punishment. Authorizing a killing of a human being did not rectify an act of killing the other but was a basic of writing a wrong with a wrong. The Court had to decide on abolishing capital punishment in order to emphasise the Bill of Rights, the enforcement of the Interim Constitution and witnessing the equality of people before law.
Case Facts and background
Themba Makwanyane and Mvuso Mchunu were convicted on four counts of murder and robbery crimes in 1991. It was one count of attempted murder and a count of robbery on brutal circumstances.
By the time of acts of crime, death penalty was used in the existing South African Law for crimes like murder, rape, fraud, arson, theft and violence. But by the time the two parties were convicted, the Interim Constitution of 1993 passed after. The two parties applied for appeal with regards to the death penalty. By the time The Interim Constitution passed, it emphasised the fair and just way of ruling and protecting the rights in the BILL. Therefore the decision was taken upon challenging the death penalty ruling in trial by section 277 of the Criminal Procedure Act 51 of 1997 and the fundamental rights found in the Constitution.
These rights included:
Section 9- the right to life
Section 10- the right to respect and human dignity
Section 11(2)- the right not be subjected to cruel, inhuman or degrading treatment and punishment
Section 33(1)- the limitation clause to just, fair and reasonableness.
The state argued and held legal arguments based on the legality of capital punishment and ubuntu. Death penalty has to be reviewed and decided on upon the use of the new law.
Legal issues
The case was to be ruled based on such legal questions:
-s9, Does the death penalty infringe the right to life?
-s10, Is human dignity maintained in ruling death penalty?
-s11(2), According to this section, is this act of punishment labelled cruel, inhuman and degrading?
-s33(2), Does the limitation clause support the capital punishment?
– Is the Interim Constitution applied fairly and just, and does it protect the people?
– Does public opinion matter ?
Arguments Presented
Legal arguments were presented between the appellants and the respondents, The appellants trying to argue that the decision for death penalty was not constitutional and the respondents proving the existing laws and legal conflicting in order to review the ruling of capital punishment.
THE PARTIES ARGUMENT(appellants):
T Makwanyane and M Mchunu argued that death penalty opposed human rights. They argued that death cannot right the wrong caused by murder. The accused identified section 11(2) as the onus of establishing the proposition of death penalty.
They argued that the right to life was affected in this case, that death is final and cannot evocate a life, it is irreparable and unjust. Taking a life doesn’t give a lesson to the guilty part, as they cannot introspect on their aggravating acts.
They also argued how sometimes innocent people are convicted in courts and later found innocent. They expressed how then will the state rectify a death penalty when someone is already dead and cannot be proven innocent in their grave.
This was evidence enough that capital punishment goes against constitutional values. The punishment is regarded unhuman, degrading to society and cruel to the accused and therefore argued it should be stopped. Death punishment can leave physical and emotional trauma to both the accused and their families. It is extreme and should be abolished to find a more human punishment which is constitutional.
They challenged death penalty for life imprisonment instead, in bona fide.
THE STATE ARGUMENT (respondents):
The state confirmed death penalty as a form of punishment used in South Africa. It was a legal form of punishment according to the applicable law at that time. The Attorney General in the panel argued about the legality and the history of death penalty. The point was how it has been used over time and it was a cause way to stop crime.
The State asserted that capital punishment was not cruel, inhumane and degrading but was a necessity.
They emphasised death penalty as the type of order the people need to avenge for aggravating offences.
The panel agreed that death penalty was the retribution supported by public opinion and was in provision to the constitutional values.
But it was open to light that the new law was open to analyse and critic where capital punishment challenged the human rights. The punishment was open to be reviewed with a democratic development perspective, signalling the changed South Africa.
Courts Reasoning and Analysis
The Court judgement was brought by Chakalson P alongside with Ackermann J, Mahomed J, Mokgoro J, O’Regan J and Sachs J. Each gave their own judgement to bring value to the decision.
Chakalson P emphasised the constitutional value and interpretation.
Ackermann J emphasised on dignity.
Mohamed J emphasised on Court independence.
Mokgoro J emphasised human eccentric values.
O’Regan J emphasised on equality.
Sachs J emphasised on rehabilitation support and opposing violence on violence.
Section 9
The Court emphasised the constitution as one to protect a life. Life has a meaning and should not be violated.
Section 10
The Court held that death penalty was degrading to human dignity. Dignity is a fundamental and core principle to life. Death was a treatment against rehabilitation, but abolishing it gave the doers of crime a chance to redeem their dignity,
Section 11(2)
The Court found the act of capital punishment to be cruel, degrading and inhuman. This act instituted and encouraged violence and therefore needed to be stopped.
Section 33(1)
The Court used the limitation clause, limitation had to be justifiable in open and democratic society, no human rights had to be violated. The clause had to promote fairness and reasonableness. Capital punishment was found not justifiable under the South African Constitution.
Public Opinion
The Court argued on deciding based on majority. People fought to keep death penalty as a form of punishment as they fell victims of crime. The Constitution held that the protection of the rights in the Bill was fundamental to protect than majority voting. It was essential to stick to constitutional contextualism.
Ubuntu and Prevention
The Constitution continues to emphasise humanness. The state killing of people was found against humanity. The Court argued that killing someone for their crime doesn’t rectify the offence but promotes another inhumanness . But rather people should be subjected to rehabilitation in life prison in order to also prevent violence.
Mistake or error in cases
It was clear that sometimes some cases were treated in racial discrimination manner. Some were treated unfairly and some were open to human error. The court sometimes hold innocent people guilty. With such evidence, after death sentencing how does the court retribute a dead innocent person? Therefore, the court decided on such to abolish death sentencing to protect the judiciary from human mistake ruling.
Judgement and Ratio Decidendi
The Constitutional Court found the death penalty to be:
Infringing the right to life
Constituting of cruel, inhuman and degrading behaviour
Against the dignity of human
Against the democratic values in the new constitutionalism
After all consideration, it pleased the court to come to decision. At first, the Appelate Division dismissed the appeals that were made on the charges of murder and robbery. The matter had to then be postponed to be decided on the Constitutional Court after careful reviewing. Many rules were adapted, from reviewing, the rights in Chapter Three, section 33 of the limitation clause, the balancing process, the two step approach by Judge Kentridge AJ, the international law, the cases in audi alteram partem and res judicata and other factors.
The Constitutional Court deemed death penalty as being in opposition to the Constitution. It violated the basic human rights, freedom and was found to be aggravating. Therefore, the court ordered all death sentences to be turned to life imprisonment. The capital punishment was abolished.
Critical Analysis
- Significance of the Decision
The decision to abolish capital punishment changed the criminal legal framework. The rights of humans and dignity were reinforced. Equality was emphasised and this re-evaluated the Constitution as the supreme law of the country which should not be opposed and should be final.
Implications and Impact
Death sentences that existing in many case were commuted to life in prison. The Interim Constitution influenced the evolution in THE 1996 Constitution which remained final, and there has been no death penalty ever since. The Constitution always fights to stick to democratic values respective of international law comparison.
Critical Evaluation
The panel remained in conflict regarding the decision. Some fought and argued that some offences can never be recovered by rehabilitation in prison, but rather should be balanced by death.
The public was inferior and felt unheard, but argued the Constitutional Court fought for the accused and not the victims of crime.
The Court demonstrated openness and humanity centric values. (UBUNTU)
The case provided jurisprudence for late cases to advance in equality. With reference, In Canada. Kindler v Minister of Justice(Canada)[1991] upheld the extradition to face death penalty, but later jurisprudence changed to protecting human rights.
Conclusion
The S v Makwanyane case is one of the most fundamental and historical cases in South African Law. It evolved the way to rule crime and repent the justice system and its legal framework to a therapeutic and rehabilitative way.
Death penalties were and has been changed to life in prison ever since, and enshrining the human rights and democratic values which constituted from the new Constitution. The Constitution seeks to emphasise everyone is equal before the law, everyone deserves equal dignity irrespective of the extent of the offence they committed.
Reference(S):
Cases:
S v Makwanyane and Another (CCT3/94) [1995] ZACC 3; 1995 (6) BCLR 665; 1995 (3) SA 391; [1996] 2 CHRLD 164; 1995 (2) SACR 1 (6 June 1995)
Kindler v Minister of Justice(Canada)[1991
Legislation:
Criminal Procedure Act 51 of 1977
Section 9, Section 10 and Section 11(2) of the Constitution
Section 33(1) of the Limitation clause
Bibliography
The Interim Constitution of South Africa 1993
The Constitution of the Republic of South Africa,1996
The Southern African Legal Institute and Information
Constitutional Law of South Africa, Woolman S.
International Law
Davis, D. (1996). South Africa’s Death Penalty and Constitutional Change.
Truth and Reconcoliation Commission Report, Vol 5, 1998
Currie and De Waal, J, The Bill of Rights Handbook, 2013
