S v Makwanyane and Another

Case Citation

Case name: S v Makwanyane and Another

Citation: S v Makwanyane and Another 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; Kentridge AJ; Kriegler J; Langa J; Madala J; Mokgoro J; O’Regan J; Sachs J.

Introduction

The case of S v Makwanyane and Another is a seminal ruling in South African constitutional jurisprudence. It profoundly transformed the nation’s criminal justice system and the safeguarding of human rights. Adjudicated by the Constitutional Court in 1995, the matter concerned the constitutionality of the death penalty under the Interim Constitution of 1993. Central to the Court’s deliberation was the need to balance the State’s interest in penalising serious offences against the constitutional guarantees of the right to life, human dignity, and protection against cruel, inhuman or degrading treatment.

By unanimously declaring capital punishment unconstitutional, the Court reinforced the supremacy of the Constitution and articulated a progressive interpretative approach to the Bill of Rights. This landmark judgment continues to exert significant influence on South African constitutional law and is widely regarded as an authoritative precedent in the international discourse on fundamental rights protection.

Facts of the Case

The case emerged during South Africa’s transition from apartheid to a constitutional democracy, following the promulgation of the Interim Constitution in 1993. The central issue was the constitutional validity of the death penalty, a sanction historically recognised as lawful for murder and certain other grave offences under South African criminal law.

The applicants, Makwanyane and Mchunu, had been convicted in the Witwatersrand Local Division of the Supreme Court on multiple charges, including murder, attempted murder and robbery with aggravating circumstances. Given the gravity of their offences, both were sentenced to death in terms of section 277(1)(a) of the Criminal Procedure Act 51 of 1977,¹ which authorised capital punishment for murder under specified conditions.

Before these sentences could be carried out, South Africa’s constitutional framework underwent a profound transformation with the commencement of the Interim Constitution on 27 April 1994. The new constitutional order introduced a justiciable Bill of Rights which guaranteed, inter alia, the rights to life, human dignity, and protection against cruel, inhuman or degrading punishment. These developments prompted critical questions about the continued legality of the death penalty.

Acknowledging the constitutional significance of the matter, the court referred the case directly to the Constitutional Court in terms of section 102(6) of the Interim Constitution.² The Constitutional Court was therefore tasked with determining whether section 277(1)(a) of the Criminal Procedure Act conformed to the rights enshrined in Chapter 3 of the Interim Constitution.

The case transcended the individual circumstances of the applicants and became a broader constitutional examination of the interplay between state-imposed punishment and fundamental human rights. Numerous interested organisations participated as amici curiae, offering comparative and international legal insights on capital punishment. As a result, the proceedings gave the Constitutional Court its first significant opportunity to interpret the Bill of Rights and to articulate the foundational principles guiding constitutional adjudication in South Africa’s nascent democratic era.

Legal Issues

The Constitutional Court was tasked with adjudicating the following key legal questions:

1. Whether section 277(1)(a) of the Criminal Procedure Act 51 of 1977, which permitted the imposition of the death penalty for specified offences, was inconsistent with Chapter 3 of the Constitution of the Republic of South Africa Act 200 of 1993 (the Interim Constitution).
2. Whether the death penalty violated the constitutional protections of the right to life, human dignity, and freedom from cruel, inhuman or degrading punishment, as enshrined in sections 9, 10 and 11(2) of the Interim Constitution.³
3. Whether any infringement of these fundamental rights resulting from the death penalty could be justified under the general limitations clause in section 33 of the Interim Constitution.

Arguments Presented

Applicants’ Arguments

The applicants asserted that the death penalty, as authorised by section 277(1)(a) of the Criminal Procedure Act 51 of 1977,⁴ was incompatible with the fundamental rights enshrined in Chapter 3 of the Interim Constitution. They contended that capital punishment contravened the right to life guaranteed under section 9, which they characterised as the most fundamental constitutional right and the foundation for the enjoyment of all other rights. They also argued that the death penalty violated the right to human dignity protected by section 10, as it treated offenders as individuals whose lives could be intentionally terminated by the State.

Furthermore, the applicants contended that the death penalty constituted cruel, inhuman and degrading punishment, thereby contravening section 11(2) of the Interim Constitution.⁵ They underscored that the irrevocable character of capital punishment, coupled with the physical and psychological suffering endured in the period before execution, rendered it incompatible with the foundational principles of a constitutional democracy predicated on human dignity, equality and freedom.

Finally, they argued that capital punishment could not be justified under the general limitations clause in section 33, particularly given the existence of less restrictive alternatives, most notably life imprisonment, which could effectively serve the legitimate objectives of the criminal justice system.

Respondent’s Arguments

The State argued that the death penalty remained a lawful and necessary form of punishment for the most serious offences, particularly aggravated murder. It submitted that capital punishment served legitimate governmental objectives by deterring violent crime, protecting society from dangerous offenders, and expressing society’s moral condemnation of exceptionally grave criminal conduct.

The respondent further contended that any limitation of the constitutional rights relied upon by the applicants was reasonable and justifiable under section 33 of the Interim Constitution. The State argued that South Africa faced exceptionally high levels of violent crime, making the retention of the death penalty necessary to protect the public and maintain confidence in the criminal justice system. It also maintained that Parliament had lawfully prescribed the death penalty and that the Court should exercise restraint when reviewing legislative choices concerning criminal punishment.

The Court’s Reasoning and Analysis

The Constitutional Court, in a unanimous decision, held that the death penalty was inconsistent with the Interim Constitution because it violated the core values on which South Africa’s new constitutional framework was founded. In the leading judgment, President Chaskalson emphasised that constitutional interpretation must be purposive and aimed at advancing the values of human dignity, equality and freedom. Rather than adhering strictly to the literal text of the relevant provisions, the Court considered the broader aims of the Bill of Rights and the transformative aspirations underpinning South Africa’s democratic transition.

In its interpretation of sections 9, 10 and 11(2) of the Interim Constitution,⁶ the Court affirmed that the rights to life and human dignity are among the most fundamental guarantees of the Constitution. The right to life was recognised as a prerequisite for the enjoyment of all other rights, while human dignity was characterised as a foundational constitutional value that must be upheld even for individuals convicted of the gravest offences. Consequently, the deliberate execution of an offender by the State was held to be incompatible with the constitutional commitment to safeguarding the inherent worth of every individual.

The Court rejected the State’s contention that the death penalty could be justified under the general limitations clause in section 33 of the Interim Constitution.⁷ Although it acknowledged that combating violent crime and protecting society were legitimate governmental aims, it concluded that the State had not shown that capital punishment was a reasonable and justifiable limitation of fundamental rights. The Court noted the absence of conclusive evidence that the death penalty deterred crime more effectively than life imprisonment. Moreover, it reasoned that less restrictive means were available to achieve the objectives of punishment, rendering the permanent deprivation of life constitutionally disproportionate.

In reaching its decision, the Court also engaged with comparative constitutional jurisprudence and international human rights law to inform its interpretation of the Bill of Rights. While recognising that foreign judicial decisions were not binding, it found them persuasive in guiding the protection of fundamental rights within democratic societies. This comparative analysis reinforced the conclusion that constitutional interpretation should prioritise respect for human dignity and the protection of life.

Although each member of the Court authored a separate concurring opinion, all eleven judges agreed that capital punishment was unconstitutional. Several judges elaborated on central themes such as dignity, ubuntu, compassion, and the evolving values inherent in a democratic society. Collectively, their concurring judgments reinforced the Court’s overarching rationale.

Judgment and Ratio Decidendi

Judgment

The Constitutional Court, in a unanimous decision, declared section 277(1)(a) of the Criminal Procedure Act 51 of 1977⁸ unconstitutional because it contravened the fundamental rights enshrined in the Interim Constitution. The Court determined that the death penalty infringed the rights to life, human dignity, and protection from cruel, inhuman or degrading treatment or punishment, as guaranteed by sections 9, 10 and 11(2) of the Interim Constitution.

The Court then considered whether these infringements could be justified under the general limitations clause in section 33. It concluded that capital punishment was not a reasonable or justifiable limitation of constitutional rights in an open and democratic society founded on freedom and equality. Consequently, the Court invalidated the statutory provisions authorising the death penalty, rendering them null and void. As a result, the death sentences imposed on Makwanyane and Mchunu were unenforceable and had to be substituted with sentences that complied with constitutional requirements and were determined in accordance with the law.

Ratio Decidendi

The central legal principle (ratio decidendi) established in S v Makwanyane and Another is that the State is prohibited from imposing capital punishment, as the death penalty is an unjustifiable infringement of the constitutional rights to life, human dignity, and freedom from cruel, inhuman or degrading punishment. The Court affirmed that individuals convicted of even the most serious offences retain their inherent dignity and constitutional protections, and that any punishment imposed by the State must align with the values and principles embodied in the Constitution.

Several judges engaged in broader moral, philosophical and societal discussions, including the concept of ubuntu. These reflections, however, were not essential to the Court’s binding legal determination. The authoritative precedent set by the judgment is that legislation permitting the death penalty is unconstitutional because it is incompatible with the rights and values entrenched in the Constitution.

Critical Analysis

Significance of the Decision

The ruling in S v Makwanyane and Another is a pivotal constitutional determination in the legal history of South Africa. As one of the first landmark decisions of the Constitutional Court, it affirmed the supremacy of the Constitution and required all legislative enactments to conform to the Bill of Rights. The judgment profoundly reshaped South African criminal law by abolishing the death penalty and establishing that constitutional rights apply equally to all individuals, including those convicted of the gravest offences. Moreover, the Court emphasised human dignity, equality and freedom as the foundational pillars of constitutional interpretation, thereby setting a critical precedent for the development of later human rights jurisprudence.

Implications and Impact

The ruling carried significant legal and societal implications. It resulted in the permanent abolition of the death penalty in South Africa and required courts to impose sentences aligned with constitutional principles. The decision also reinforced the practice of judicial review by affirming the Constitutional Court’s power to nullify legislation that contravenes the Constitution.

Beyond the national context, the judgment has been extensively referenced in comparative constitutional law and international human rights literature as a seminal authority on safeguarding the right to life and human dignity. It has also influenced later Constitutional Court rulings on prisoners’ rights, the principle of proportionality, and the interpretation of fundamental rights.

Critical Evaluation

The Court’s rationale is compelling, as it is firmly anchored in constitutional provisions, democratic principles and comparative legal analysis. Instead of relying on public sentiment or political factors, the Court appropriately emphasised constitutional supremacy and the safeguarding of fundamental rights. Its engagement with international and foreign case law enhanced the interpretation of the Bill of Rights, while acknowledging that such sources are persuasive rather than binding.

Nonetheless, the judgment has attracted criticism. Certain scholars argue that the Court insufficiently considered the interests of victims’ families and the broader public concern about South Africa’s elevated rates of violent crime. Others maintain that the Court relied considerably on moral and philosophical concepts, notably ubuntu, in a domain that should have been governed predominantly by constitutional text.

Despite these criticisms, the ruling remains persuasive, as constitutional rights are designed to protect individuals even when such protection is unpopular. By affirming that the State may not infringe fundamental rights in the pursuit of punitive measures, the Court established a principled framework that continues to inform South African constitutional jurisprudence.

Conclusion

The ruling in S v Makwanyane and Another stands as a seminal decision in the development of South African constitutional jurisprudence. By declaring the death penalty unconstitutional, the Constitutional Court affirmed that the rights to life, human dignity, and freedom from cruel, inhuman or degrading treatment are fundamental values that the State cannot override, even in punishing the gravest offences. The judgment exemplified the Court’s dedication to interpreting the Constitution in a manner that advances justice, equality and the protection of human rights.

A principal contribution of the decision is its affirmation that constitutional supremacy requires all legislation and governmental action to align with the Bill of Rights. Through this ruling, the Court established a lasting precedent that any form of punishment must uphold the inherent dignity of every individual. The judgment has had a sustained influence on constitutional interpretation, sentencing jurisprudence and human rights litigation, both within South Africa and internationally.

While debates about crime, public safety and appropriate sanctions continue, S v Makwanyane decisively established that constitutional rights cannot be subordinated to public opinion or considerations of expediency. Its enduring significance lies in reinforcing the principle that the Constitution is the supreme law of the land and that the safeguarding of fundamental rights remains central to South Africa’s democratic legal framework.

Footnote(S):

¹ Criminal Procedure Act 51 of 1977, s 277(1)(a).

² Constitution of the Republic of South Africa Act 200 of 1993 (Interim Constitution), s 102(6).

³ Interim Constitution, ss 9, 10 and 11(2).

⁴ Criminal Procedure Act 51 of 1977, s 277(1)(a).

⁵ Interim Constitution, s 11(2).

⁶ Interim Constitution, ss 9, 10 and 11(2).

⁷ Interim Constitution, s 33.

⁸ Criminal Procedure Act 51 of 1977, s 277(1)(a).