S v Makwanyane and Another

​Full Case Name: S v Makwanyane and Another

​Citation: 1995 (3) SA 391 (CC); 1995 (6) BCLR 665 (CC); [1995] ZACC 3

​Court: Constitutional Court of South Africa

​Date of Decision: 6 June 1995

​Bench Composition: Chaskalson P (Writing for the Court); Ackermann, Didcott, Kriegler, Langa, Madala, Mahomed, Mokgoro, O’Regan, Sachs JJ, and Kentridge AJ (Full 11-Judge Constitutional Bench)

1. INTRODUCTION

S v Makwanyane serves as the core bedrock of South Africa’s post-apartheid legal system. As the inaugural substantive judgment of the newly established Constitutional Court, it addressed the constitutionality of capital punishment under the Criminal Procedure Act. The verdict came at a major historical turning point. It marked a clear shift from parliamentary rule, which allowed apartheid human rights abuses, to constitutional supremacy built on core rights, human dignity and equality. Apart from punishing the specific crime, this ruling set clear rules to explain the Bill of Rights, showed exactly when rights can be limited, and brought local Ubuntu values directly into everyday constitutional law and official legal reasoning. Consequently, the case remains a globally celebrated precedent in human rights jurisprudence and constitutional law.[1]

2. FACTS OF THE CASE

The accused, Themba Makwanyane and Mvuso Mchunu were arrested and prosecuted in connection with a violent armed robbery that resulted in four fatalities.[2] Both individuals were convicted of four murders, one attempted murder and aggravated robbery in the Witwatersrand Local Division. Under Section 277(1)(a) of the Criminal Procedure Act 51 of 1977, the judge had to impose the death penalty if a murderer had no mitigating factors. The judge sentenced both accused to death, and they challenged the decision in the Supreme Court of Appeal. The court upheld the criminal convictions but acknowledged that South Africa’s new 1994 Interim Constitution fundamentally changed the law. Specifically, chapter 3 of the Interim Constitution introduced a legally enforceable Bill of Rights protecting basic human liberties.[3]Seeing that Section 277(1)(a) of the Criminal Procedure Act likely breached these constitutional rights, the Appellate Division halted the final execution of the sentences. The court then transferred the specific debate over this law’s legal validity directly to the new Constitutional Court under Section 102(1) of the Interim Constitution.[4] The Constitutional Court only evaluated whether statutory law legally authorized state executions, completely ignoring the specific trial evidence or factual details regarding the guilt or innocence of the convicted offenders. The Court did not re-examine whether the offenders were actually guilty or innocent. Instead, its sole duty was to determine if the state possessed the legal, constitutional authority to carry out death sentences under the rules of the newly established constitutional order.[5]

3. LEGAL ISSUES

The Constitutional Court was called upon to determine the following precise questions of law:

Issue 1: Whether Section 277(1)(a) of the Criminal Procedure Act 51 of 1977 violated the prohibition against “cruel, inhuman or degrading treatment or punishment” under Section 11(2) of the Interim Constitution.

Issue 2: Whether capital punishment unjustifiably infringed the fundamental right to life under Section 9 and the right to human dignity under Section 10 of the Interim Constitution.

Issue 3: If an infringement existed, whether Section 277(1)(a) could be justified under Section 33(1) (the general limitation clause) of the Interim Constitution as a reasonable and necessary measure in a democratic society.

4. ARGUMENTS PRESENTED

4.1 APPELLANT’S ARGUMENTS

Counsel for the appellants argued that execution represents the ultimate destruction of the human person, directly violating Section 11(2) of the Interim Constitution. Capital punishment causes immense physical and mental suffering while stripping away personal autonomy. They argued it violates Section 9’s right to life and Section 10’s right to dignity, which serve as the essential foundations for all other constitutional rights.

The appellants argued that the death penalty is not only cruel, but also arbitrary and irreversible. Because courts are run by flawed humans, biased by wealth disparities, and influenced by personal biases, capital punishment yields random outcomes. Once an execution is carried out, any resulting mistake can never be undone. The appellants strongly emphasized a critical lack of empirical justification. They noted that the state completely failed to provide any conclusive evidence proving that capital punishment exerts a uniquely effective deterrent effect compared to life imprisonment without the possibility of parole.[6]

4.2 RESPONDENT’S ARGUMENTS

The Attorney-General argued that the South African public strongly favoured keeping the death penalty as a necessary response to the country’s high rates of violent crime. The state argued that the death penalty serves a vital public interest by deterring future violent crimes while providing the formal retribution necessary to preserve widespread community respect for the foundational rule of law.

The state argued that restricting human rights through capital punishment is legally justified under Section 33(1) of the Interim Constitution. They firmly maintained this extreme measure remains necessary to stop brutal crimes and protect overall public safety.

The framers of the Interim Constitution intentionally omitted a ban on capital punishment. Instead, they left the issue unresolved. This decision allowed either future legislation or judicial review to determine its legality, directly reflecting their legislative intent on the matter.[7]

5. COURT’S REASONING AND ANALYSIS

Writing for a unanimous court on the final ruling, President Chaskalson clearly analysed the constitutional rules governing fundamental rights and statutory limits.

5.1 Interpretation of Cruel, Inhuman, or Degrading Punishment

The court ruled that Section 11(2) requires a broad, purposeful interpretation to safeguard human dignity. Chaskalson P reasoned that death sentences cause extreme mental agony before execution, not just the physical ending of human life. The Court ruled that execution by the government is a deeply cruel, barbaric and humiliating penalty, which explicitly breaks the core legal protections outlined in Section 11(2).[8]

5.2 The Primacy of Life and Dignity

The court emphasized that the right to life (Section 9) and the right to dignity (Section 10) are inextricably linked values that form the bedrock of the constitutional matrix. The state must model morality by executing convicts, government devalues life and strips offenders of residual constitutional dignity.[9]

5.3 Arbitrariness and the Rule of Law

When analysing court rulings, Justice Ackermann stressed that random decisions directly violate constitutional legality. The court noted that luck strongly shapes death penalty outcomes, involving police work skill, defence lawyer quality, prosecutor choices, and individual judicial moods. Such institutional vulnerability to error renders the death penalty unconstitutionally arbitrary.[10]

5.4 Rejection of Public Opinion over Constitutional Supremacy

Opposing the government’s heavy reliance on public mood, Chaskalson P explained a core constitutional rule: the primary purpose of the Bill of Rights is to protect weak individuals and minorities from majority power. Constitutional rights cannot be subjected to public referendums or popular sentiment, otherwise constitutional supremacy would be surrendered to majority rule.[11]

5.5 Proportionality Analysis under the Limitation Clause

Using the two-step restriction test under Section 33(1), the judge checked if this legal violation was completely fair and justified within a free and open democracy built on equal rights. The court held that the State failed to discharge its burden of proof. First, no empirical evidence proves that death penalty deters crime more effectively than life imprisonment. Also, while punishment is a valid legal goal, it cannot outrank the total and complete destruction of fundamental constitutional rights. This restriction was therefore completely excessive.[12]

5.6 Concurring Opinions and Indigenous Jurisprudence

While all eleven judges concurred in the order, individual judges provided distinct concurring opinions illuminating key principles. Justice Langa and Mokgoro invoked the indigenous African philosophical value of Ubuntu (humaneness, compassion, and communal interdependence). They proved that Ubuntu protects basic legal rights by focused healing, fixing harm, and the true value of all human lives, stopping state-led killing of people.[13]

6. JUDGEMENT AND RATIO DECIDENDI

6.1 THE DECISION

The court held that Section 277(1)(a) of the Criminal Procedure Act 51 of 1977 is inconsistent with the Interim Constitution and therefore invalid. The constitutional referral was allowed, and the court issued an order restraining the state from executing any death sentences previously imposed, directing that all affected death row prisoners remain in custody pending lawful resentencing in accordance with standard statutory procedures.[14]

6.2 Ratio Decidendi

The court ruled that the death penalty is unconstitutional because it is cruel and violates the rights to life and dignity. The state cannot use the death penalty unless it proves that execution deters crime better than long-term prison. Lower courts and future judicial bodies are strictly bound by the rule that public opinion and majoritarian sentiment cannot override the protective scope of constitutional rights, nor can the state strip an individual of their inherent human dignity through institutional execution. The court officially banned the death penalty because it violates the constitutional rights of life, dignity and protection from cruel punishment.[15]

7. CRITICAL ANALYSIS

7.1 Significance of the Decision

S v Makwanyane fundamentally altered the trajectory of South African jurisprudence. By abolishing the death penalty as its first decision, the Constitutional Court proved its independence and showed that the Constitution holds more power than Parliament. The decision established the two-stage limitation analysis that remains standard practice in constitutional litigation today. The judgement combined Western constitutional ideas with traditional African values through Ubuntu, it proved that local legal heritage could strengthen modern human rights law.[16]

7.2 Implications and Impact

The ruling immediately changed about 400 death sentences into long-term prison sentences. It changed South Africa’s prison policy from punishing criminals with death to rehabilitation. The Makwanyane case became a major global authority on the death penalty, and it is regularly cited by foreign and international courts, such as the Canadian Supreme Court, the Caribbean Court of Justice, and human rights tribunals.[17]

7.3 Critical Evaluation

The reasoning in Makwanyane displays extraordinary analytical strength in its treatment of majoritarianism and the rule of law. The judges’ clear refusal of public opinion built a strong shield for minority rights. Yet, the ruling faces continuous public backlash inside South Africa, because severe rates of brutal offenses prompt opponents to claim that the bench disregarded the public need for punitive prevention. Legally, some experts note the ruling relied on Section 11(2) (prohibiting cruel, inhuman or degrading punishment) to bypass defining exact limits for Section 9 (the right to life). This left minor uncertainties about self-defence or police lethal force exceptions, which were specific issues the court finally resolved later in S v Walters (2002). The court’s basic constitutional logic still stands, a state based on human dignity cannot use official violence to enforce law.[18]

8. CONCLUSION

S v Makwanyane stays a landmark triumph in constitutional history. By ruling that state punishment must be limited by human dignity, the Constitutional Court created a lasting basis for post-apartheid law. The main lesson from the ruling is that constitutional democracy demands the absolute defence of basic rights, even if doing so goes against majority public opinion or popular political pressure. The decision proved that a constitutional order must derive its legitimacy not from vengeance or state violence, but from justification, rationality and human compassion. Even though the public still argues about how to stop crime and punish lawbreakers, the constitutional rules from the Makwanyane case stay deeply fixed. This landmark ruling always reminds us that human dignity and the right to life are essential parts of our free and democratic society.[19]

LIST OF REFERENCE(S):

Primary Sources

Statutes

• Constitution of the Republic of South Africa, Act 200 of 1993 (Interim Constitution).
• Criminal Procedure Act 51 of 1977.

Cases

South Africa

• S v Makwanyane and Another 1995 (3) SA 391 (CC); 1995 (6) BCLR 665 (CC); [1995] ZACC 3.
• S v Walters 2002 (4) SA 613 (CC).

International & Foreign Jurisdictions

• United States v Burns [2001] 1 SCR 283 (Supreme Court of Canada).

Secondary Sources

Books

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

Journal Articles

• Botha H, ‘Human Dignity in Comparative Constitutional Law’ (2009) 20 Stellenbosch Law Review 183.
• Klare KE, ‘Legal Culture and Transformative Constitutionalism’ (1998) 14 South African Journal on Human Rights 146.
• Langa P, ‘Transformative Constitutionalism’ (2006) 17 Stellenbosch Law Review 351.
• Mokgoro Y, ‘Ubuntu and the Law in South Africa’ (1998) 4 Buffalo Human Rights Law Review 15.

[1] S v Makwanyane and Another 1995 (3) SA 391 (CC) [1]– [2]; Constitution of the Republic of South Africa, Act 200 of 1993, ss 9, 10, 11(2); Karl E Klare, ‘Legal Culture and Transformative Constitutionalism’ (1998) 14 SAJHR 146.

[2] ​Makwanyane (n 1) [2].

[3] Criminal Procedure Act 51 of 1977, s 277(1)(a); Makwanyane (n 1) [2].

[4] Interim Constitution, ss 9, 10, 11(2), 102(1).

[5] Makwanyane (n 1) [3].

[6] ​Makwanyane (n 1) [26]-[66].

[7] ​ibid [87]-[115]

[8] Makwanyane (n 1) [21]-[26], [95],[102].

[9] ​Ibid [83]-[85], [144], Interim Constitutional, ss9,10.

[10] Makwanyane (n 1) [48]-[54], [153]-[156], (Ackermann J).

[11] Ibid [88]-[89].

[12]   Interim Constitution, s 33(1); Makwanyane (n 1) [103]– [104],[128]-[131],[146].

[13] ​Makwanyane (n 1) [223]– [227] (Langa J), [307]– [313] (Mokgoro J); Yvonne Mokgoro, ‘Ubuntu and the Law in South Africa’ (1998) 4 Buffalo Human Rights Law Review 15.

[14] Makwanyane (n 1) [151]-[152].

[15] Interim Constitution, ss 9, 10, 11(2), 33(1); Makwanyane (n 1) [88]– [89], [144]– [146].

[16] Klare (n 1) 150; Mokgoro (n 13) 21.

[17] Makwanyane (n 1) [152]; United States v Burns [2001] 1 SCR 283 [66]– [68].

[18] S v Walters 2002 (4) SA 613 (CC) [23]– [28]; Henk Botha, ‘Human Dignity in Comparative Constitutional Law’ (2009) 20 Stellenbosch Law Review 183.

[19] Makwanyane (n 1) [88]– [89], [144]– [146], [225] (Langa J).