S v Makwanyane and Another

1. Case Citation

Case Name : S v Makwanyane and Another

Citation : 1995 (3) SA 391 (CC)

Court : Constitutional Court of South Africa

Judges : haskalson P, Mahomed DP, Ackermann J, Didcott J, Kriegler J, Langa J, Madala J, Mokgoro J, O’Regan J and Sachs J.

Date of Judgment : 6 June 1995.

2. Introduction

S v Makwanyane and Another is a landmark ruling in South Africa’s legal history. The case tasked the Constitutional Court with deciding if the death penalty aligned with the Interim Constitution of 1993. The applicants contended that capital punishment infringed upon multiple constitutional rights, such as the right to life, the right to human dignity, and the safeguard against cruel, inhuman, or degrading treatment.

The ruling came at a vital moment in South Africa’s shift to democracy, as the nation was leaving behind the wrongs of apartheid and adopting a legal framework based on human rights, fairness, and the law’s authority. In making its choice, the Constitutional Court looked at constitutional laws, international legal comparisons, and core democratic principles.

The Court unanimously ruled that the death penalty is not constitutional, stating that it contradicts the values and rights upheld by the Constitution. This verdict permanently ended capital punishment in South Africa and serves as a significant reference on constitutional law, human dignity, and the safeguarding of basic rights. Its impact still shapes constitutional law both in South Africa and around the world.

3. Facts of the Case

The situation involving S v Makwanyane and Another came about when the individuals, Makwanyane and Mchunu, were found guilty in the Witwatersrand Local Division of the Supreme Court for the savage killings of two people, along with several other major crimes like robbery and illegal firearm and ammunition possession. After their guilty verdicts, they received the death penalty under the Criminal Procedure Act, which allowed for capital punishment for specific crimes.

At that moment, South Africa had just embraced the Interim Constitution of 1993, bringing in a fresh constitutional framework centered on democracy, human dignity, equality, and basic human rights. The Constitution additionally set up the Constitutional Court as the top authority on constitutional issues, giving it the power to decide if laws aligned with the Constitution.

The trial court raised concerns about whether the laws allowing the death penalty aligned with the rights protected by the Interim Constitution. Consequently, the constitutional matter was sent to the Constitutional Court for a decision. The Court needed to evaluate if capital punishment infringed on constitutional rights, such as the right to life, the right to respect for human dignity, and the ban on cruel, inhuman, or degrading punishment.

The case drew considerable public attention as it brought up intricate legal, ethical, and societal issues. While a lot of people thought that the death penalty was essential to tackle violent crime, some contended that a democratic constitutional government should safeguard the basic rights of all individuals, even those found guilty of serious crimes. Consequently, the Constitutional Court needed to weigh public sentiment against the principles and values outlined in the Constitution, eventually deciding if the death penalty could be warranted within South Africa’s new constitutional structure.

4. Legal Issues

The Constitutional Court needed to address several significant constitutional issues related to the applicants’ death sentences. The main question was if the sections of the Criminal Procedure Act that allowed for capital punishment matched the Interim Constitution of 1993.

The Court considered the following legal issues:

• Whether the death penalty impaired the right to life ensured by section 9 of the Interim Constitution.
• Whether capital punishment breached the right to human dignity safeguarded under section 10 of the Interim Constitution.
• Whether the death penalty constituted cruel, inhuman, or degrading punishment banned by section 11(2) of the Interim Constitution.
• Whether any restriction of these constitutional rights could be defended under the general limitations clause in section 33 of the Interim Constitution.
• Whether public sentiment should sway the understanding and implementation of constitutional rights when assessing the legitimacy of the death penalty.

These concerns called for the Court to weigh the State’s need to penalize serious criminals against its constitutional responsibility to safeguard essential rights and maintain the principles of a democratic society founded on human dignity, equality, and freedom.

5. Arguments of the Parties

5.1 Arguments of the Applicants

The applicants contended that the death penalty contradicted the Interim Constitution since it infringed on various essential rights. They claimed that execution irrevocably took away a person’s right to life, which is among the most basic rights safeguarded by the Constitution. They also asserted that capital punishment disrespected the innate dignity of all individuals by viewing offenders as people who could be disposed of instead of as humans whose rights should be honoured.

The candidates also claimed that the death penalty was a form of cruel, inhumane, and degrading punishment. They suggested that the physical and mental anguish experienced while waiting for execution clashed with constitutional principles. Moreover, they insisted that there was not enough proof to show that capital punishment was a more efficient deterrent to crime compared to life imprisonment. They thus requested the Constitutional Court to rule that the pertinent sections of the Criminal Procedure Act were unconstitutional.

5.2 Arguments of the State

The State claimed that the death penalty is a fitting punishment for the gravest offenses, especially murder. It argued that South Africa is facing significant violent crime and that capital punishment fulfils essential roles, such as discouraging crime, seeking justice, and safeguarding the community.

The State additionally claimed that the Constitution did not clearly ban the death penalty and that any restriction of constitutional rights could be validated if it served a valid government goal. It also referred to public sentiment, asserting that numerous South Africans backed the death penalty as a suitable solution to violent crime. The State thus asked the Court to confirm the constitutionality of the law permitting capital punishment.

6. Court’s Reasoning and Analysis

In a unanimous decision, the Constitutional Court declared that the death penalty contradicted the principles and rights safeguarded by the Interim Constitution of 1993. While each judge penned an individual supporting judgment, they all concurred that capital punishment could not be validated in a democratic society based on human dignity, equality, and freedom.

The Court started by highlighting that the Constitution stands as the highest law in South Africa and that every law must align with its rules. It noted that understanding the Constitution means courts should uphold the principles of an open and democratic society instead of depending only on public sentiment or past traditions. While recognizing the gravity of violent crime, the Court affirmed that constitutional rights cannot be overlooked just because a certain punishment is widely accepted.

The Court determined that the death penalty clearly infringes upon the right to life, a core right upheld by the Constitution. Without the right to life, enjoying any other rights is unfeasible. The Court also stated that each person has intrinsic human dignity, no matter their past offenses. Carrying out an execution irrevocably strips that individual of the chance for healing, remorse, or change, and thus does not honour the essence of human dignity.

The judges also decided that the death penalty was cruel, inhumane, and degrading. They observed that death row inmates frequently experience long stretches of uncertainty as they wait for execution, leading to intense mental anguish. The permanent aspect of capital punishment was another major issue, as a wrongful conviction cannot be rectified after an execution occurs.

In making its choice, the Court took into account similar constitutional laws and global human rights standards. It noted that numerous democratic countries had eliminated the death penalty and acknowledged an increasing worldwide dedication to safeguarding the right to live. While foreign laws weren’t obligatory, they offered convincing insight for interpreting the Constitution in harmony with universal human rights principles.

The Court dismissed the claim that public sentiment should shape constitutional rights. It clarified that it’s the duty of the judiciary to defend the Constitution and safeguard essential rights, even if those rulings are not favoured by many. Constitutional rights are in place to shield people from unfair uses of government authority and should not rely on what the majority thinks.

Finally, the Court evaluated if restricting constitutional rights could be defended under the general limitations clause. It found that the State did not demonstrate that the death penalty was essential or that it was a better deterrent to crime than life imprisonment. Due to the existence of less harsh punishment options, the restriction of the rights to life and human dignity could not be defended. The Court thus ruled that the laws permitting the death penalty were unconstitutional and void.

7. Judgment and Ratio Decidendi

The Constitutional Court firmly decided that the death penalty was against the Constitution and void because it infringed upon the rights to life, human dignity, and freedom from cruel, inhuman, or degrading punishment promised by the Interim Constitution. The Court ruled that the parts of the Criminal Procedure Act that allowed for capital punishment were not in line with the Constitution and thus had no power or validity.

As a result of the ruling, the death sentences given to Makwanyane and Mchunu could not be executed. Instead, their sentences had to be changed to punishments allowed by the constitution. More generally, the decision eliminated the death penalty in South Africa and stopped courts from enforcing capital punishment in upcoming cases.

The ratio decidendi of the case is that the State cannot impose a punishment that unfairly violates essential constitutional rights. The Court determined that the rights to life and human dignity are central to South Africa’s constitutional democracy and that the death penalty is a permanent punishment that conflicts with these values. Even when addressing serious crime, the State must operate within the boundaries set by the Constitution.

8. Critical Analysis

The ruling in S v Makwanyane is often seen as one of the top milestones in South African constitutional law. It confirmed that the Constitution, instead of popular sentiment, is the final benchmark for evaluating all laws. By eliminating the death penalty, the Court upheld the values of human dignity, equality, freedom, and respect for basic rights.

One of the greatest strengths of the judgment is its dedication to the supremacy of the constitution. The Court acknowledged that constitutional rights are there to safeguard every person, even those found guilty of the most serious crimes. This perspective shows that justice in a constitutional democracy should be directed by legal standards instead of feelings or societal pressure.

The Court also embraced a thoughtful and logical method by looking at international human rights law and constitutional rulings from other countries. This reinforced its understanding of the Constitution and showed South Africa’s dedication to global human rights standards. The ruling has now become a key reference that is often mentioned in the fields of constitutional law and human rights studies.

However, the choice has also drawn critique. Some observers claim that eliminating the death penalty took away a crucial deterrent to violent crime and did not represent the opinions of many South Africans who were in favour of capital punishment. Others feel that victims of violent crimes and their families might think justice is lacking when perpetrators are not given the death sentence. These worries emphasize the constant clash between safeguarding constitutional rights and effectively addressing serious criminal acts.

Despite these critiques, the Court rightly determined that there was not enough proof that the death penalty was a better deterrent than life in prison. Additionally, the chance of wrongful convictions renders capital punishment especially risky since an execution cannot be undone. Thus, the ruling supports a justice system that prioritizes fairness, responsibility, and respect for human rights.

In my opinion, the Constitutional Court made the right choice. The ruling shows that constitutional rights need to be safeguarded reliably, even in challenging and emotionally intense situations. It serves as a strong reminder that the rule of law demands the State to honour human dignity and the right to life, while also guaranteeing that wrongdoers are held accountable through constitutional and legal ways.

S v Makwanyane and Another stands as a landmark ruling in the legal history of South Africa. This decision by the Constitutional Court established that the Constitution holds the highest authority and that all laws must align with its values and principles. In ruling the death penalty unconstitutional, the Court emphasized that the rights to life, human dignity, and protection against cruel, inhuman, or degrading punishment are essential and should be safeguarded at all times.

The ruling set a significant standard for understanding the constitution by showing that courts are required to protect basic rights, even if this goes against what the public thinks. It also reinforced South Africa’s dedication to democracy, the rule of law, and global human rights norms. This verdict still shapes constitutional law and acts as a vital reminder that justice should always be delivered in a way that honour the dignity and value of every person.

Reference(S):

Case

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

Legislation

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

Constitution of the Republic of South Africa, 1996.

Criminal Procedure Act 51 of 1977.

Books

Currie I and De Waal J, The Bill of Rights Handbook 6^th edn (Juta 2013).

De Waal J, Currie I and Erasmus G, The Bill of Rights Handbook 5^th edn (Juta 2005).

Journal articles

Chaskalson A, ‘Human Dignity as a Foundational Value of Our Constitutional Order’ (2000) 16 South African Journal on Human Rights 193.

International Instrument

Universal Declaration of Human Rights 1948.