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

1. Case Title and Citation 

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

2. Court Name and Bench 

Court: Constitutional Court of South Africa 

Bench: Chaskalson P, Mohomed DP, Ackermann J, Didcott J, Kriegler J, Langa J, Madala J,  Mokgoro J, O’Regan J, Sachs J, Kentridge AJ. 

3. Date of Judgment 

The date of the judgment was 6 June 1995 

4. Parties Involved 

Appellants: William Makwanyane and Mxolisi Mchunu, both were individuals convicted of  multiple counts of murder and sentenced to death as per section 277(1)(a) of the Criminal  Procedure Act 51 of 1977. They introduced the constitutional challenge to the death penalty.  

Respondents: The State represented by the Republic of South Africa through the prosecution. Its  stance was that the death penalty ought to be retained as it deterred crime, fulfilled retributive  justice, and had backing from public opinion. 

5. Facts of the Case 

The appellants were sentenced to death under section 277(1)(a) of the Criminal Procedure Act 51  of 1977. Their appeal was filed following the adoption of the 1993 Interim Constitution, which  ensured rights to life (s 9), dignity (10), and the prohibition of cruel, inhuman, or degrading  punishment (s 11 (12)). The appellants challenged the constitutionality of the death penalty,  claiming that it infringed upon these rights. The issue was submitted to the Constitutional Court as per section 98(2)(c) of the Interim Constitution to determine if the law was constitutionally  valid. 

6. Issues Raised 

• Does the death penalty violate the right to life as stated in section 9 of the Interim  Constitution? 
• Does it infringe upon the right to dignity under section 10? 
• Does it constitute cruel, inhuman, or degrading punishment according to section 11(2)? • Can the death penalty be justified under the general limitations clause (s 33)? • Should public opinion in favour of the death penalty influence constitutional  interpretation? 

7. Arguments of the Parties 

Appellants 

• The death penalty was arbitrary, irreversible, and degrading. 
• International practice showed a growing rejection of capital punishment. • The State utilized less severe methods of punishment, such as life imprisonment. • Public opinion could not justify a breach of entrenched rights. 

Respondent (State) 

• Capital punishment served as a deterrent to violent crime.  
• It expressed society’s outrage and fulfilled retribution. 
• Public opinion strongly favored keeping the death penalty in place. 
• Section 33 of the Constitution permitted reasonable limitations on rights.

        8. Judgment / Final Decision 

In S v Makwanyane and Another (1995), the Constitutional Court of South Africa unanimously  ruled that the death penalty was unconstitutional, invalidating section 277 of the Criminal 

Procedure Act. The Court determined that capital punishment infringed upon essential rights  established in the Interim Constitution, especially the right to life (section 11), human dignity  (section 10), and equality (section 9). Chaskalson P stressed that every individual has intrinsic  dignity that cannot be violated, even when faced with serious criminal behavior, and that  execution is fundamentally degrading. The Court dismissed claims that the death penalty might  act as a deterrent or that public sentiment supported its continuation, highlighting that any  possible deterrent impact could not surpass the constitutional right to life. It also emphasized that  capital punishment’s application had been inconsistent and biased, disproportionately impacting  marginalized and impoverished communities, thereby violating the principle of equality. The  Court determined that the death penalty is a form of cruel, inhuman, or degrading punishment,  and that no strong justification could supersede the constitutional rights to life and dignity. As a  result, every current death penalty was converted to life sentences, and the ruling established a  clear precedent that punishment in a democratic South Africa must honor human dignity,  safeguard life, and promote equality 

9. Legal Reasoning / Ratio Decidendi 

(a) Rights to Life and Dignity 

Chaskalson P highlighted that the rights to life and dignity were fundamental: “the right to life  and the right to dignity are the most important of all human rights, and the source of all other  personal rights.” The death penalty eliminates life and denies dignity by treating people as  objects of retribution. 

(b) Cruel, Inhuman, or Degrading Punishment 

The Court held that execution by the State constituted cruel and inhuman punishment. The  unpredictability in sentencing and the suffering caused by awaiting execution heightened this  cruelty. 

(c) Public Opinion

Despite widespread public support for the death penalty, the Court emphasized that “public  opinion may have some relevance … but, on its own, it is no substitute for the duty vested in the  courts to interpret the Constitution.” 

(d) Deterrence and Retribution 

The Court ruled that there was insufficient evidence to show that capital punishment deterred  crime more effectively than life imprisonment. Retribution, though recognized as a purpose of  punishment, could not override constitutional rights. 

(e) Limitations Clause (s 33) 

According to section 33, rights may be limited only if reasonable and justifiable in a democratic  society. The Court determined that the death penalty failed this test since less restrictive  alternatives were available. 

(f) Concurring Opinions 

• Didcott J emphasized the risk of wrongful convictions and irreversibility of execution. • Mokgoro J invoked the African philosophy of ubuntu, emphasizing the importance of  reconciliation and humaneness 
• Ackermann J stressed the importance of international human rights law in constitutional  interpretation. 

10. Conclusion / Observations 

The ruling of the Constitutional Court in S v Makwanyane and Another (1995) represented a  pivotal moment in South African constitutional and criminal law by officially eliminating the  death penalty. The Court determined that the Constitution mandates that all laws and state actions  must respect fundamental human rights, especially the rights to life (section 11), human dignity  (section 10), and equality (section 9). In arriving at this decision, the Court highlighted that the death penalty is intrinsically cruel, inhumane, and degrading, asserting that any claimed  advantages like deterrence or retribution cannot excuse the infringement of these rights. The  Court thoroughly evaluated societal arguments and public sentiment but emphasized that  constitutional interpretation cannot rely on popular opinion; instead, it should be directed by the  core principles of human dignity, equality, and freedom. Significantly, the ruling showcased the  Court’s dedication to transformative constitutionalism, highlighting that South African law must  proactively foster a society based on human rights, justice, and democratic ideals. The Court  guaranteed absolute protection of life and dignity by converting all current death sentences to life  imprisonment, sending a message to the legislature, lower courts, and society that punishments in  the post-apartheid period should demonstrate respect for human rights and conformity with  international human rights standards, thereby integrating these values into the essence of South  Africa’s new constitutional democracy. 

Bibliography  

1. S v Makwanyane and Another 1995 (3) SA 391 (CC). 
2. Constitution of the Republic of South Africa Act 200 of 1993 (Interim  Constitution). 
3. Makwanyane (n 1) para 25 (arguments for appellants). 
4. ibid para 35 (arguments for respondent). 
5. ibid order at 451F–452B. 
6. ibid para 144 (Chaskalson P). 
7. ibid paras 90–95. 
8. ibid para 88. 
9. ibid paras 126–130. 
10. ibid para 104. 
11. ibid paras 179–180 (Didcott J).
12. ibid paras 308–311 (Mokgoro J). 13. ibid paras 155–157 (Ackermann J).