S v Makwanyane and Another

CASE SUMMARY: S v Makwanyane and Another

Case name: S v Makwanyane and Another

Citation: 1995 (3) SA 391 (CC); 1995 (6) BCLR 665 (CC); Case No. CCT/3/94

Court: Constitutional Court of South Africa

Date of decision: 6 June 1995

Bench composition: Chaskalson P (main judgment); Ackerman J, Didcott J, Kentridge AJ, Kriegler J, Langa J, Madala J, Mahomed J, Mokgoro J, O’Regan J, and Sachs J concurring.

INTRODUCTION

The judgment S v Makwanyane and Another represents the cornerstone of post-apartheid South African jurisprudence. It was delivered in June 1995 making this case the first major decision by the newly established Constitutional Court and remains one of the most cited legal expositions on human rights globally. This case was a turning point for South Africa. It showed the country moving away from an old system where parliament had unlimited power, towards a new system built on respect for every person, fairness, and the rule that the law applies to everyone. It was required that the court was to decide whether a state committed to human rights, could under any circumstances, deliberately take the life of a citizen as punishment for a crime.

FACTS OF THE CASE

The applicants, Themba Makwanyane and Mvuso Mchunu, were convicted in the Witwatersrand Local Division on four counts of murder, one count of attempted murder and robbery with aggravating circumstances. The convictions arose from an armed robbery of a payroll vehicle at Coronation Hospital, Johannesburg, during which four deceased persons were killed by AK-47 rifle fire.

The trial court, finding no unavoidable circumstances, imposed the death sentence on each murder count in terms of Section 277(1)(a) of the Criminal Procedure Act. After the Interim Constitution, Act 200 of 1993, came into operation on 27 April 1994, the Appellate Division, where the appeal was pending, referred the question of the constitutionality of the death penalty to the Constitutional Court under Section 102(6) of the Interim Constitution.

LEGAL ISSUES

The central legal issues was whether Section 277(1)(a) of the Criminal Procedure Act was inconsistent with the Interim Constitution. The Court framed this with reference to the Interim Constitution of the Republic of South Africa (Act 200 of 1993) namely:

• Section 11(2): The right not to be subjected to cruel, inhuman or degrading treatment or punishement.
• Section 9: the right to life, expressed in unqualified terms as “Every person shall have the right to life”
• Section 10: The right to respect for and protection of human dignity
• Section 8: The right to equality before the law and equal protection of the law.
• Section 33(1): the limitation clause, whether an infringement could be justified as reasonable and justifiable in an open and democratic society based on freedom and equality, and not negating the essential content of the right.
• Section 229: Interpretive principle, including recourse to international and foreign law, and the requirement that the law be of general application, given that capital punishment had been abolished in the former Ciskei in 1990.

ARGUMENTS PRESENTED

Arguments for the Applicants

Makwanyane and Mchunu: The death penalty belonged to an authoritarian past. South Africa’s right to life was unqualified, unlike in the US where the constitution allows deprivation of life with due process. Execution is inherently cruel, not only because it is a calculated killing, but because of the “death row phenomenon,” the years of mental torture waiting to die. And it was random, like a lottery. Whether you lived or died often depended on poverty, race, whether you got an inexperienced pro deo counsel, or which judge you got.

Arguments for the Respondent

The state argued that the death penalty was necessary for society. They claimed it was a powerful deterrent that scared people away from committing violent crimes. They also argued that it served the need for retribution (making the criminal pay for what they did) and prevented dangerous people from ever killing again. Finally, they pointed out that most South Africans wanted to keep the death penalty because crime rates were very high.

The Government and Other Parties

Represented by George Bizos SC, the Government supported abolition, submitting that capital punishment was incompatible with the new constitutional commitment to human dignity and that the framers had deliberately left the issue for judicial determination.

COURT’S READING AND ANALYSIS

President Chaskalson explained that the Constitution is not like any other law passed by parliament. It is the highest law in the country and must be read in a broad and generous way that gives people the full protection it promises. The Court said it would ask two questions. First, does the death penalty break any basic rights. Second, if it does, can that breaking of rights ever be justified.

According to Section 11(2), the Court found that the death penalty is cruel, inhuman and degrading in the normal sense of those words. It is cruel because it is a planned killing and because people have to live for a long time waiting to die, which causes deep mental pain. Justice Didcott said this waiting alone is a form of torture of the mind. It is inhuman because it denies that the person is still a human being. It is degrading because it takes away all dignity and treats the person like an object that must be removed.

Another big problem was unfairness and randomness. Of the thousands of people found guilty of murder, only a very small number were actually sentenced to die. Who lived and who died often came down to luck. Most people facing the death penalty were poor and had to rely on young and inexperienced lawyers who did not have time or money to properly prepare. Poor and black people were the most likely to be sentenced to death. The outcome also depended on which judge heard the case and what that judge personally believed. Justice Ackermann said this kind of randomness does not fit with a fair legal system that promises equal treatment for everyone.

The State argued that the death penalty should stay because most South Africans wanted it. Chaskalson said public feelings do matter, but they cannot replace the job of the judges, which is to protect the Constitution. He said the whole point of a Bill of Rights is to protect everyone, including people who are not liked or who have done terrible things, from the anger of the majority. If the Court just followed what the public wanted, it would be going back to the old system where parliament could do whatever it wanted.

The Court then asked whether breaking the rights to life and dignity could be justified as reasonable and needed. The government had to prove this, and it could not. There was no clear evidence that killing people stops more murders than life in prison does. What really stops crime is the chance of being caught and found guilty, and that system was not working well in South Africa at the time. Life in prison also stops a person from killing again just as well as the death penalty does. The Court understood that people feel angry and want payback, but it said revenge should not carry much weight in a society based on human rights. The State should not act in the same way as the criminal.

Some of the judges also spoke about ubuntu, an idea that was written in the ending part of the interim constitution. Justice Langa described it as the idea that every person deserves respect simply because they are human, and that people are connected to each other and should show kindness and compassion. The Court said that when the State plans and carries out the cold killing of a person, it goes against ubuntu and against basic humanity.

JUDGEMENT AND RATIO DECIDENDI

The Court declared Section 277(1)(a), (c), (d), (e) and (f) of the Criminal Procedure Act and all corresponding provisions in the former homelands unconstitutional and invalid. It prohibited the State and its organs from executing any person under sentence of death. All persons under sentence of death were to remain in custody pending the setting aside of their sentences by a competent court and substitution with an appropriate lawful sentence.

Ratio decidendi: The death penalty for murder constitutes cruel, inhuman and degrading punishment within the meaning of Section 11(2) and unjustifiably infringes the rights to life under Section 9 and to dignity under Section 10. By reason of its inherent arbitrariness, its unproven deterrent effect, and its irremediable in the cases of error, it cannot be justified as a reasonable and necessary limitation under Section 33(1) of the Interim Constitution.

 CRITICAL ANALYSIS

 This case established the Constitutional Court as a protector of the unpopular. It proved that the law would protect even the “worst” members of society from unfair treatment. By using the concept of ubuntu, the judges made human rights feel local and African, rather than just a foreign idea imported from Europe or America. The Court correctly identified that the answer to high crime rates is fixing the police and justice system so that criminals are actually caught, rather than just having a harsh punishment that is rarely used. The judgment made human dignity the absolute center of South African law. It established that no matter what a person does, they never lose their basic right to be treated as a human being.

CONCLUSION

S v Makwanyane and Another was more than just a case about the death penalty; it was about defining what kind of country South Africa wanted to be. By choosing to abolish capital punishment, the Court chose a future based on compassion, equality, and the law rather than vengeance and violence. It sent a powerful message that the state would always protect the lives and dignity of its people, ensuring that the “savagery” of the past would never return.