Authored By: Nontobeko Wendy Dlamini
Varsity College
- Case Title & Citation
Full Name of the Case: S v Makwanyane and Another (1995)
Official Citation:
S v Makwanyane and Another, CCT 3/94, 1995 (3) SA 391 (CC), 1995 (6) BCLR 665 (CC), 1995 (2) SACR 1 (CC).
- Court Name & Bench
Court: Constitutional Court of South Africa
Bench Type: Full bench of eleven judges.
Judges: Chaskalson P (majority), and Justices Ackermann, Didcott, Kriegler, Langa, Madala, Mahomed, Mokgoro, O’Regan, Sachs JJ, and Kentridge AJ
- Date of Judgment
Judgment Delivered: 6 June 1995
- Parties Involved
Appellants
- Makwanyane
- Mchunu
Respondent
The State
- Facts of the Case
Makwanyane and Mchunu, the two accused, were implicated in a string of violent crimes in the Johannesburg region in 1990. Along with other armed robberies and an attempted murder, they committed four distinct murders. The violent nature of the crimes, which included shootings during robberies, was a defining feature. The Criminal Procedure Act 51 of 1977, which allowed the death penalty for murder under section 277(1)(a), was used to prosecute both defendants.
They were found guilty on all counts by the trial court.1
They received a death sentence for the murder charges. They were sentenced to long prison terms on other offences.2
These sections questioned whether the Criminal Procedure Act’s section 277(1)(a), which permitted the death penalty, was constitutional.3 The Appellate Division submitted the matter to the recently formed Constitutional Court because to the constitutional challenge. The main question was whether the rights outlined in the Interim Constitution could coexist with the death penalty for murder.4
As a result, the Constitutional Court had to rule on both the two accused’s fates as well as the more general issue of whether the death penalty could still be used in South Africa.5
- Issues Raised
In S v Makwanyane and Others (1995), the Constitutional Court’s main concern was whether the death penalty, which was permitted by section 277(1)(a) of the Criminal Procedure Act 51 of 1977, was in line with the rights outlined in the 1993 Interim Constitution. By establishing a justiciable Bill of Rights and mandating that all laws and governmental actions be evaluated in light of the principles outlined in the Constitution, its adoption significantly altered South Africa’s legal system. The main legal question was whether the death penalty could coexist with the prohibition against cruel, barbaric, or humiliating punishment (section 11(2)), the right to human dignity (section 10), and the right to life (section 9).6
The Court expressly had to decide whether state capital punishments, which result in the irreversible deprivation of life, were in accordance with constitutional obligations. if the method of death, in and of itself, qualified as cruel or humiliating treatment. if the state could use justifications like public opinion, retaliation, or deterrence to defend the death penalty.7
If popular support for the death penalty may triumph over long-standing constitutional protections. if life in prison or other alternative types of punishment were adequate to achieve the justifiable goals of the criminal justice system. In summary, the Court was given the task to establish the foundations of constitutional supremacy, human rights protection, and the boundaries of state power in a democratic society in addition to determining whether the death penalty was legal in the specific circumstances of the two accused.8
- Arguments of the Parties
According to the appellants (Makwanyane and Another):
The death penalty is fundamentally arbitrary, irrevocable, and a violation of rights guaranteed by the constitution, particularly life and dignity. Unlike life sentences, they contended, execution restricts the State’s ability to administer punishment without the possibility of repentance. emphasised that there is no solid factual proof that the death sentence deters crime more effectively than other options.9
State respondent:
Claimed that the death penalty is still within the authority of parliament and has been used historically. And that it remained proportionate to terrible crimes and effective as a deterrent. The state also maintained that unless the constitution expressly states otherwise, Section 277(1)(a) was a legislation that should remain in effect.10
Legal Citations:
Statute: The death penalty for murder is found in Section 277(1)(a) of the Criminal Procedure Act 51 of 1977.
Provisions of the Constitution: presumed public morality under the Interim Constitution; freedom from harsh, inhuman, or humiliating treatment; rights to life (section 9); and dignity (section 10).
Human rights concepts in the post-apartheid constitutional order, constitutionalism, and the idea of arbitrariness are examples of precedents and doctrines.
- Judgment / Final Decision
Final verdict: The death sentence was unanimously ruled to be unconstitutional and void by the Constitutional Court.11
Relief Received: Any enabling legislation that allowed the death penalty as well as Section 277(1)(a) were overturned. Existing death penalties were declared unlawful, and all pending ones were nullified. Those sentenced to death were expected to serve life sentences or other suitable punishments.12
Court’s Order: Death penalty inmates are spared execution and are required to stay in custody until they get a fresh sentence, rendering the death penalty provisions instantly unenforceable.
- Legal Reasoning / Ratio Decidendi
The reasoning of the Constitutional Court in S v Makwanyane and Others (1995) was thorough and based on strong principles. All eleven justices concurred that the death sentence was unconstitutional, although they wrote different concurring opinions. They based their arguments on international human rights legislation, constitutional rights, and the core principles of South Africa’s new democracy.13
The Court ruled that the most basic human right, upon which all other rights are based, is the right to life. When the State executes this right, it completely and permanently terminates it.14
Chaskalson P stressed that everyone, including convicted criminals, has the right to life and that it is not just for the innocent. It would be inconsistent with the universality of human rights to maintain otherwise. The Court acknowledged that rather than taking away life, the State had a duty to preserve it.15
The judges came to the conclusion that the death sentence violates section 9 of the Interim Constitution since it permanently denies a person their life.
The importance of dignity was an essential principle of the Court’s argument. Human dignity was included as one of the core principles of South Africa’s democratic system in the Interim Constitution.16
The State stated that the death penalty was required as retaliation for horrible crimes and as a deterrent. The Court looked closely at these allegations.
The Court did not find any concrete proof that the death penalty was a more effective deterrent to crime than life in prison. International experience and criminological research showed that execution’s deterrent value was questionable at best.17
Regarding vengeance, the Court decided that it cannot excuse the violation of fundamental rights, even while it acknowledged that society needs justice and punishment. Justice Sachs stated that the cycles of violence and retaliation that characterised South Africa’s apartheid past needed to end under the new constitutional order.18 The following is a summary of the case’s ratio decidendi:
The legal prohibition against harsh, inhuman, or degrading punishment, as well as the right to life and dignity, are all violated by the death penalty.
Its imposition is unjust and goes against the fundamentals of equality and the rule of law. The Constitution is supreme and cannot be overridden by public opinion. Fundamental rights cannot be violated in the name of the State’s interests in retaliation and deterrence. As a result, the Criminal Procedure Act’s provision 277(1)(a) was void.
- Conclusion / Observations
Impact and Significance: This was the first significant politically fraught ruling by South Africa’s newly established Constitutional Court, establishing a foundation for human rights law and outlawing the death penalty across the country. It upheld the independence, power, and supremacy of the judiciary over customs from the past. It represented a significant change in criminal justice that was in line with freedom and dignity.
Critical Analysis: While the ruling demonstrates the development of transitional justice and the dedication to compassionate punishment, some may contend that it complicated sentencing guidelines and ignored popular opinion. However, the Court was right to put long-standing constitutional rights ahead of popular opinion.
The Court stressed that this decision applied broadly and had immediate effect, not just on the two accused individuals who were in front of it. This meant that people who were already on death penalty could not be put to death and that South African courts could not impose any more death penalties.
The decision has far-reaching and historic implications. It was the first significant case resolved by the recently formed Constitutional Court and showed that the Court was prepared to use its authority to examine and overturn laws that were unconstitutional.
The ruling was noteworthy in a number of ways:
Constitutional supremacy: The Court upheld the requirement that all laws, even long-standing criminal provisions, adhere to the Bill of Rights.
Judicial Independence: The ruling demonstrated that the Court would not be influenced by the then-strongly pro-capital punishment public sentiment.
Human Rights Transformation: By outlawing the death sentence, the Court separated South Africa from its authoritarian history and symbolically and practically brought the nation into compliance with international human rights standards.
All things considered, S v Makwanyane represented a meaningful change in South African constitutionalism. The Court established constitutional supremacy as the cornerstone of justice and paved the way for a revolutionary future for the country’s democracy by eliminating the death penalty and upholding the sanctity of life, dignity, and human rights.
Word Count 1562
Reference(S):
Legislation
Criminal Procedure Act 51 of 1977.
Case law
S v Makwanyane and Another, 1995 (3) SA 391 (CC).
1 Criminal Procedure Act 51 of 1977.
2 S v Makwanyane and Another, 1995 (3) SA 391 (CC).
3 Act 51 of 1977
4 Makwanyane, 1995 (3) SA (CC).
5 Makwanyane, 1995 (3) SA (CC).
6 Makwanyane, 1995 (3) SA (CC).
7 Makwanyane, 1995 (3) SA (CC).
8 Makwanyane, 1995 (3) SA (CC).
9 Makwanyane, 1995 (3) SA (CC).
10 Makwanyane, 1995 (3) SA (CC).
11 Makwanyane, 1995 (3) SA (CC).
12 Makwanyane, 1995 (3) SA (CC).
13 Makwanyane, 1995 (3) SA (CC).
14 Makwanyane, 1995 (3) SA (CC).
15 Makwanyane, 1995 (3) SA (CC).
16 Makwanyane, 1995 (3) SA (CC).
17 Makwanyane, 1995 (3) SA (CC).
18 Makwanyane, 1995 (3) SA (CC).
