S v Makwanyane and Another

Case Citation and Basic Information

Case name: S v Makwanyane and Another

Citation: 1995 (3) SA 391 (CC); [1995] ZACC 3

Court: Constitutional Court of South Africa

Date of decision: 6 June 1995

Bench: Chaskalson P delivered the principal judgment, with separate concurring judgments from  Ackermann, Didcott, Kentridge, Kriegler, Langa, Madala, Mahomed, Mokgoro, O’Regan, and  Sachs JJ.

Introduction

S v Makwanyane is widely regarded as the founding judgment of South Africa’s constitutional era.  Decided within the first year of the Constitutional Court’s existence, it was the first major test of  whether the interim Constitution’s Bill of Rights could override an entrenched feature of the  common law and statute: capital punishment. The case is significant not only for abolishing the  death penalty in South Africa but for establishing the interpretive method the Court would use for  decades afterward, including its willingness to draw on comparative and international law, and its  introduction of ubuntu as a value informing constitutional adjudication. Because the accused faced  execution, the case also crystallised the tension between majoritarian public opinion and counter majoritarian judicial protection of fundamental rights, a tension that continues to animate  constitutional debate in South Africa today.

III. Facts of the Case

The two accused, Mr T Makwanyane and Mr M Mchunu, were convicted in the Witwatersrand  Local Division of the Supreme Court on four counts of murder, one count of robbery with  aggravating circumstances, and one count of unlawful possession of a firearm. Both were  sentenced to death under section 277(1)(a) of the Criminal Procedure Act 51 of 1977, which permitted capital punishment for murder. On automatic appeal, the Appellate Division referred the  constitutionality of section 277 to the newly established Constitutional Court, since the interim  Constitution had come into force and the Bill of Rights potentially rendered the death penalty  unconstitutional. The Court accordingly did not decide the accused’s individual guilt or sentence  directly, but was asked to rule on whether section 277(1)(a) was consistent with the Constitution.

The referral arose at a pivotal moment in South Africa’s transition: the interim Constitution had  come into force in 1994, introducing the first Bill of Rights binding on all organs of state, and the  Constitutional Court itself had been established only months before the hearing. There was no  settled domestic precedent on how the new Bill of Rights should be interpreted, and the Court was  conscious that its approach in this, its first major judgment, would set a template for constitutional  adjudication going forward. Because the matter came before the Court by automatic referral rather  than an ordinary appeal on the facts, the judgment proceeded on the basis that the underlying  convictions were not in dispute, allowing the Court to focus squarely on the constitutional validity  of the sentencing provision itself rather than on the individual culpability of the accused.

Legal Issues

The Court identified several closely related questions:

Whether the death penalty, as authorised by section 277(1)(a) of the Criminal Procedure Act, violates the right to life protected under section 9 of the interim Constitution.

Whether capital punishment constitutes cruel, inhuman, or degrading treatment or punishment, prohibited under section 11(2).

What role, if any, public opinion should play when a court is called upon to determine whether a punishment sanctioned by the democratically elected legislature nonetheless violates constitutionally entrenched rights.

Whether the limitation of these rights, if established, could be justified under the general limitations clause of the interim Constitution (section 33).

Arguments Presented

5.1 State’s Arguments

Counsel supporting the retention of capital punishment argued that the death penalty served  legitimate purposes of retribution and deterrence, that it enjoyed considerable public support in  South Africa, and that the Constitution’s drafters had deliberately left the question open by not  expressly abolishing it in the text, thereby leaving it to Parliament or the courts to determine within  the ordinary legislative and judicial process.

5.2 Accused’s and Amici’s Arguments

Counsel for the accused, supported by amici curiae, argued that the death penalty is inherently  arbitrary and irreversible, that its application in South Africa had historically been  disproportionately imposed on poor and Black defendants, and that comparative constitutional  jurisprudence from Germany, Hungary, Canada, the United States, and international human rights  bodies increasingly recognised capital punishment as incompatible with human dignity. They  further argued that retribution and deterrence could be achieved through alternative sentences such  as life imprisonment, without resort to a punishment that extinguishes the right to life absolutely.

Court’s Reasoning and Analysis

Chaskalson P, writing the principal judgment, grounded the Court’s reasoning in the foundational  values of the new constitutional order: human dignity, equality, and the advancement of human  rights and freedoms. The judgment held that the right to life and the right to dignity are the most  basic of all rights, and that the death penalty, by its nature, negates both absolutely and irreversibly.  The Court engaged extensively with comparative jurisprudence, examining decisions of the  German Federal Constitutional Court, the Hungarian Constitutional Court, the Canadian Supreme  Court, and the United States Supreme Court, while cautioning that South Africa’s own  constitutional text and history must ultimately guide its interpretation rather than any single foreign  precedent.

A central feature of the reasoning was the Court’s rejection of public opinion as a determinative  factor. Chaskalson P reasoned that if public opinion were decisive, there would be no need for  constitutional adjudication of controversial rights at all; the very purpose of an entrenched Bill of Rights, interpreted by an independent judiciary, is to protect minorities and unpopular positions  against the potential excesses of majoritarian politics. The Court also invoked the value of ubuntu,  an African philosophical concept emphasising communal humanity and reconciliation over  retribution, as consonant with the constitutional preference for rehabilitative and dignity-affirming  approaches to punishment over vengeance.

On the question of justification under the limitations clause, the Court applied a proportionality  analysis and found that even accepting retribution and deterrence as legitimate governmental  purposes, the State had not demonstrated that the death penalty achieved these purposes more  effectively than long-term imprisonment, nor that its arbitrary and irreversible nature could be  proportionate to any legitimate objective.

The Court also placed considerable weight on evidence of arbitrariness in the actual administration  of capital punishment: sentencing outcomes had historically varied enormously depending on the  presiding judge, the quality of legal representation available to the accused, and, controversially,  race, with the vast majority of executions under apartheid having been carried out on Black defendants. This evidentiary record reinforced the Court’s conclusion that the punishment could  never be applied with the consistency and fairness the Constitution demanded of any measure that  permanently extinguishes a fundamental right. Several of the concurring judgments, notably those  of Mahomed J, O’Regan J, and Sachs J, elaborated on this theme from different angles, variously  emphasising dignity, the special vulnerability of the poor and marginalised within the criminal  justice system, and the incompatibility of state-sanctioned killing with a Constitution grounded in  the value of human life.

VII. Judgment and Ratio Decidendi

The Constitutional Court unanimously declared section 277(1)(a) of the Criminal Procedure Act  unconstitutional and invalid, effectively abolishing the death penalty in South Africa. All death  sentences imposed under the section, including those of Makwanyane and Mchunu, were set aside  and substituted with the most severe sentence competent under the Act.

The ratio decidendi is that a punishment which constitutes an absolute negation of the rights to life  and dignity cannot be justified merely by reference to prevailing public opinion or by asserted but unproven penological benefits; constitutional rights, once entrenched, bind the state even against  a legislative choice that may reflect majority sentiment. This established the counter-majoritarian  function of the Constitutional Court as a structural feature of the new constitutional order.

VIII. Critical Analysis

8.1 Significance of the Decision

Makwanyane is significant as the Constitutional Court’s inaugural substantive judgment and set  the interpretive tone for the following decades. It confirmed that South Africa’s transition from  apartheid to constitutional democracy entailed a decisive break from parliamentary sovereignty  toward constitutional supremacy, in which even long-standing and popular practices could be  struck down where they offended entrenched rights.

8.2 Implications and Impact

The decision placed South Africa among a small number of nations, and the first in Africa, to  abolish capital punishment through judicial pronouncement rather than legislative reform alone. It  has since been cited extensively in comparative death penalty litigation across the Commonwealth  and in international human rights forums. Domestically, it entrenched a jurisprudential method – openness to comparative law, purposive interpretation of rights, and proportionality analysis – that  has shaped subsequent landmark decisions on socio-economic rights and equality.

8.3 Critical Evaluation

While widely praised, the judgment has attracted some criticism. Some commentators argue the  Court gave insufficient weight to victims’ perspectives and the retributive intuitions of a society  emerging from decades of violent political conflict, and that the decision, though legally sound,  was reached without the benefit of a national referendum or extensive parliamentary debate on the  issue. Public support for reinstating the death penalty has periodically resurfaced in South African  political discourse, illustrating an enduring gap between elite constitutional reasoning and  segments of public sentiment, particularly at times of high-profile violent crime. Critics have also  questioned whether a court of eleven judges should have the final word on a matter of such profound moral and social weight, rather than leaving the question to Parliament as the more  directly accountable branch of government.

Supporters of the judgment respond that this is precisely the point of an entrenched Bill of Rights  interpreted by an independent judiciary: fundamental rights are, by design, insulated from ordinary  political pressure and shifting public mood, since a right that could be suspended whenever it  proved unpopular would offer little real protection at all. Viewed from this perspective, the  willingness of the Court to reach an unpopular but principled conclusion in its very first substantive  judgment did much to establish its institutional credibility and independence at a formative  moment in the country’s constitutional history. Nonetheless, the decision’s reliance on dignity as  an unqualified constitutional value, rather than on utilitarian calculations of public preference, is  generally regarded as doctrinally coherent and consistent with the transformative aspirations of the  1996 Constitution that followed.

Conclusion

S v Makwanyane remains the definitive statement on the constitutional status of human dignity  and the right to life in South Africa. Its lasting significance lies less in the specific outcome,  abolition of the death penalty, than in the interpretive architecture it established: courts must  protect entrenched rights even against majoritarian preference, comparative law may inform but  not dictate constitutional meaning, and indigenous values such as ubuntu have a legitimate place  in constitutional reasoning. Three decades later, the judgment continues to anchor South African  constitutional jurisprudence and remains a frequently cited authority in global debates on capital  punishment and human dignity.

Reference(S):

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

Constitution of the Republic of South Africa Act 200 of 1993 (interim Constitution).

Criminal Procedure Act 51 of 1977, s 277.

Constitution of the Republic of South Africa, 1996.