S v Makwanyane and Another

1. Case Citation and Basic Information

Case Name: S v Makwanyane and Another 

Citation: 1995 (3) SA 391 (CC); 1995 (6) BCLR 665 (CC) 

Court: Constitutional Court of South Africa 

Date of Judgment: 6 June 1995 

Bench Composition: Chaskalson P, Mahomed DP, Ackermann J, Didcott J, Kriegler J, Langa  J, Madala J, Mokgoro J, O’Regan J, Sachs J, and Kentridge AJ. 

2. Introduction

S v Makwanyane and Another is one of the most significant constitutional decisions in South  African legal history. It was the Constitutional Court’s first major human rights judgment  after the establishment of South Africa’s constitutional democracy and addressed the  important question of whether the death penalty was compatible with the rights protected  under the Interim Constitution of 1993. 

The case arose during South Africa’s transition from an apartheid state to a constitutional  democracy founded on the principles of human dignity, equality, freedom, and the protection  of fundamental rights. The Constitutional Court was required to determine whether capital  punishment, which had formed part of South African criminal law for many years, could  continue to exist under the new constitutional order. 

The Court unanimously held that the death penalty was unconstitutional because it violated  the rights to life and dignity and constituted cruel, inhuman, or degrading punishment. The  judgment established that constitutional rights must be interpreted in accordance with the  values of an open and democratic society based on freedom and equality. 

Beyond abolishing capital punishment, Makwanyane became a foundational authority on  constitutional interpretation, the role of dignity in South African law, and the use of  international and comparative law in developing constitutional principles. The case continues  to influence South African jurisprudence and has been recognised internationally as an  important human rights decision. 

3. Facts of the Case

The applicants, Makwanyane and Mchunu, were convicted in the Witwatersrand Local  Division of the Supreme Court on several serious criminal charges, including murder,  attempted murder, robbery with aggravating circumstances, and unlawful possession of  firearms and ammunition. 

Following their convictions, the trial court imposed the death penalty. At the time, South  African law permitted capital punishment for certain serious offences, particularly aggravated  forms of murder. The sentences were imposed under legislation that had existed before the  adoption of the democratic constitutional framework. 

Before the executions could take place, South Africa adopted the Interim Constitution of  1993, which introduced a Bill of Rights containing enforceable protections for fundamental  freedoms and human dignity. This created uncertainty regarding whether existing laws  authorising the death penalty were consistent with the new constitutional order. 

The matter was referred to the newly established Constitutional Court because constitutional  questions concerning the validity of legislation fell within its jurisdiction. The Court was  therefore required to determine whether provisions of the Criminal Procedure Act and other  legislation authorising capital punishment were consistent with the Interim Constitution. 

4. Legal Issues

The Constitutional Court considered the following legal issues: 

Whether the death penalty violated the right to life protected under section 9 of the Interim  Constitution. Whether capital punishment infringed the right to human dignity protected  under section 10 of the Interim Constitution. Whether execution constituted cruel, inhuman,  or degrading punishment prohibited by section 11(2). Whether any limitation of these  constitutional rights could be justified under the limitations clause. Whether international law  and comparative constitutional jurisprudence could assist the Court in interpreting the Bill of  Rights. 

5. Arguments Presented

5.1 Appellants’ Arguments 

The applicants argued that the death penalty was fundamentally inconsistent with the values  of the new constitutional order. They submitted that the deliberate execution of a person by the State amounted to a direct violation of the right to life and was incompatible with the  constitutional commitment to human dignity. 

The applicants further argued that capital punishment constituted cruel, inhuman, or  degrading punishment. They emphasised that execution is irreversible and that any possibility  of correcting a wrongful conviction is permanently lost once a person has been executed.  They also relied on the psychological suffering experienced by prisoners awaiting execution. 

The applicants contended that constitutional interpretation should take into account  international human rights developments and comparative constitutional approaches. They  referred to the growing international movement towards abolition of the death penalty and  argued that South Africa’s constitutional democracy should be guided by these human rights  principles. 

5.2 Respondent’s Arguments 

The State argued that the death penalty remained a legitimate and necessary punishment for  the most serious crimes. It submitted that capital punishment served important criminal  justice purposes, including deterrence, retribution, and the protection of society from  dangerous offenders. 

The State maintained that the Constitution did not expressly prohibit the death penalty and  that Parliament had lawfully authorised it through legislation. It argued that the limitation of  constitutional rights was justified because South Africa faced extremely high levels of violent  crime and required strong measures to protect citizens. 

The State also relied on public opinion, arguing that many South Africans supported retaining  the death penalty and that this should be considered when determining whether capital  punishment was constitutionally acceptable. 

6. Court’s Reasoning and Analysis

President Chaskalson delivered the leading judgment, although each member of the  Constitutional Court wrote a separate concurring judgment. Despite differences in reasoning,  all judges unanimously concluded that the death penalty was unconstitutional. The Court began by emphasising that the Interim Constitution represented a fundamental  transformation from South Africa’s apartheid past. The new constitutional order was based on  democratic values, accountability, equality, and respect for human rights. Laws inherited from the previous legal system could not continue merely because they had historical acceptance;  they had to be tested against constitutional principles. 

The Court held that the right to life was central to the constitutional framework because all  other rights depended upon the existence of human life. The State’s deliberate termination of  a person’s life through execution therefore represented the most extreme interference with a  constitutional right. 

The Court also placed significant emphasis on human dignity. It held that every person  possesses inherent worth, regardless of the seriousness of the crimes they have committed. A  constitutional democracy founded on dignity could not permit the State to treat certain  individuals as being beyond the protection of fundamental rights. 

The Court further found that the death penalty constituted cruel, inhuman, or degrading  punishment. Unlike any other criminal sanction, execution is permanent and irreversible. If a  person is wrongly convicted, the error cannot be corrected. The Court also considered the  psychological suffering caused by the uncertainty and fear experienced by prisoners awaiting  execution. 

The judges rejected the argument that public opinion should determine whether the death  penalty was constitutional. They recognised that violent crime creates understandable fear  and demands an effective response from the State. , constitutional rights exist precisely to protect individuals when those rights conflict with popular preferences. The role of the Court  was therefore to uphold constitutional values rather than simply follow majority opinion. 

The Court also considered whether the death penalty was effective as a deterrent. After  examining available evidence, it found no convincing proof that capital punishment deterred  crime more effectively than alternative forms of imprisonment. Since the State could not  demonstrate that execution was necessary to achieve its objectives, the limitation of  fundamental rights could not be justified. 

A significant feature of the judgment was the Court’s reliance on international and  comparative law. The judges considered foreign constitutional decisions, international human  rights instruments, and developments in other legal systems. Although such materials were not binding, they assisted the Court in understanding universal principles relating to dignity,  punishment, and human rights. 

The Court ultimately concluded that the death penalty was inconsistent with the values of an  open and democratic society based on freedom and equality. 

7. Judgment and Ratio Decidendi

The Constitutional Court unanimously declared the death penalty unconstitutional and invalid  under the Interim Constitution of 1993. As a result, all statutory provisions authorising capital  punishment ceased to have legal effect, and courts could no longer impose death sentences in  South Africa. 

The Court held that capital punishment violated several fundamental constitutional rights,  including the right to life, the right to human dignity, and the right not to be subjected to  cruel, inhuman, or degrading punishment. These violations could not be justified under the  limitations clause because the State failed to demonstrate that the death penalty was a  necessary and proportionate measure in a democratic society. 

The ratio decidendi of the case is that the State may not deliberately take the life of a person  through judicial execution because such action is incompatible with the constitutional values  of dignity, equality, and human rights. Punishment imposed by the State must always respect  the inherent worth of every individual, including those convicted of serious crimes. 

The decision established several important constitutional principles. First, it confirmed that  constitutional supremacy requires all legislation to comply with the Bill of Rights. Second, it  recognised human dignity as a foundational value that informs the interpretation of all  constitutional rights. Third, it confirmed that courts have a duty to protect fundamental rights  even where such protection may conflict with public opinion or political pressure. 

8. Critical Analysis

8.1 Significance of the Decision 

S v Makwanyane played a crucial role in establishing the Constitutional Court as the guardian  of constitutional rights in South Africa’s new democratic order. As one of the Court’s earliest  major decisions, it demonstrated that the Constitution was not merely symbolic but a legally  enforceable framework capable of limiting state power.

The judgment was significant because it placed human dignity at the centre of South African  constitutional law. The Court recognised that dignity is not dependent on a person’s social  status, popularity, or actions. Even individuals convicted of the most serious offences retain  constitutional protection. 

The case also strengthened the principle of constitutional supremacy. Under the previous  legal system, Parliament was considered supreme and could enact laws without meaningful  constitutional review. Makwanyane confirmed that under the new constitutional order, all  government action must be measured against constitutional standards. 

Another important contribution of the judgment was its approach to international and  comparative law. The Court’s willingness to consider foreign judgments and international  human rights principles reflected the Constitution’s commitment to developing South African  law within a broader global human rights framework. This approach has influenced later  Constitutional Court decisions involving equality, privacy, socio-economic rights, and  freedom of expression. 

8.2 Implications and Impact 

The immediate impact of Makwanyane was the abolition of the death penalty in South Africa.  The decision prevented future executions and required courts to impose alternative lawful  sentences for serious offences. 

The judgment also had a broader impact on criminal justice and constitutional rights. It  established that the seriousness of an offence does not remove an individual’s entitlement to  basic constitutional protections. This principle has continued to influence debates about  punishment, prisoners’ rights, and the limits of state authority. 

Internationally, Makwanyane has been recognised as an influential constitutional decision on  capital punishment and human dignity. It has been studied by courts and scholars in other  jurisdictions considering similar questions about the relationship between criminal  punishment and fundamental rights. 

The case further contributed to South Africa’s reputation as a constitutional democracy  committed to human rights protection. It demonstrated that the transition from apartheid  involved not only political change but also a fundamental transformation of the legal system based on constitutional values. 

8.3 Critical Evaluation 

The judgment has been widely praised for its principled protection of human rights and its  commitment to constitutional values. A major strength of the Court’s reasoning was its  recognition that constitutional rights cannot depend solely on majority opinion. The purpose  of a constitution is to protect fundamental values even during periods of fear, uncertainty, or  public pressure. 

The Court’s emphasis on dignity was particularly significant. By rejecting the idea that  certain individuals could be excluded from constitutional protection because of their crimes,  the judgment reinforced the principle that human rights apply universally. 

The Court’s use of comparative and international law was another strength. Rather than  relying only on domestic legal traditions, the judges engaged with broader human rights  developments and used these sources to enrich constitutional interpretation. 

, the decision has also attracted criticism. Some commentators argue that the Court did not  sufficiently consider the concerns of victims of violent crime or the public demand for  stronger punishment. They argue that deterrence and retribution are legitimate objectives of  criminal law and that removing the death penalty limited the State’s ability to respond to  exceptionally serious offences. 

Others have criticised the decision as an example of judicial activism, suggesting that the  Court made a policy choice that should have been left to Parliament. These criticisms raise  important questions about the proper role of courts in democratic societies. 

Despite these criticisms, the judgment remains persuasive because constitutional adjudication  requires courts to enforce constitutional principles even where those principles may be  unpopular. The Court acknowledged the seriousness of violent crime but correctly recognised  that punishment must remain within constitutional limits. 

In my view, S v Makwanyane represents a powerful example of constitutional democracy in  practice. It demonstrates that justice is not only concerned with punishing wrongdoing but  also with ensuring that state power is exercised in a manner consistent with human dignity and fundamental rights. 

9. Conclusion

S v Makwanyane and Another remains one of the most important decisions in South African  constitutional history. Through this judgment, the Constitutional Court declared that the death  penalty was incompatible with the rights to life, dignity, and freedom from cruel, inhuman, or  degrading punishment. 

The decision marked a significant departure from South Africa’s previous legal order and  confirmed the transformative nature of the Constitution. It established that all state action,  including criminal punishment, must be consistent with constitutional values. 

The lasting importance of Makwanyane lies not only in the abolition of capital punishment  but also in the principles it established regarding constitutional supremacy, human dignity,  judicial independence, and the protection of fundamental rights. 

More than three decades after the judgment, the case continues to serve as a leading authority  in South African constitutional law and comparative human rights jurisprudence. Its central  message remains that a constitutional democracy must protect the dignity and rights of every  person, even in the most difficult and controversial circumstances. 

10. Reference(S):

• S v Makwanyane and Another 1995 (3) SA 391 (CC); 1995 (6) BCLR 665 (CC).
• Constitution of the Republic of South Africa, 1993 (Interim Constitution).
• Constitution of the Republic of South Africa, 1996.
• Currie I and De Waal J, The Bill of Rights Handbook.
• Woolman S and Bishop M (eds), Constitutional Law of South Africa.
• Dugard J, Human Rights and the South African Legal Order.
• Constitutional Court of South Africa, S v Makwanyane and Another