Authored By: Olwethu Princess Nxumalo
University of Fort Hare
- Case Title and Citation
➢ Full name: State v Makwanyane and Another
➢ Citation: 1995 (3) SA 391 (CC)
➢ Court reference: Constitutional Court of South Africa
- Court Name & Bench
➢ Court: Constitutional Court of South Africa
➢ Bench type: Full bench (Constitutional Bench)
Judges:
➢ Chaskalson CJ (Chief Justice)
➢ Mahomed DP
➢ Ackermann J
➢ Didcott J
➢ Kriegler J
➢ Langa J
➢ Madala J
➢ Mokgoro J
➢ O’Regan J
➢ Sachs J
➢ Kentridge AJ
This was one of the earliest and most important judgments of the newly established Constitutional Court.
- Date of judgment
➢ Delivered on: 6 June 1995
- Parties involved
➢ Appellants: Makwanyane and Mchunu, convicted of murder and sentenced to death under the Criminal Procedure Act.1
➢ Respondent: The State, represented by the Attorney-General, defending the constitutionality of the death penalty.
- Facts of the case
➢ Makwanyane and Mchunu were convicted of multiple murders.
➢ Both were sentenced to death under the prevailing law.
➢ They challenged the constitutionality of the death penalty under the Interim Constitution 2, which had introduced a Bill of Rights.
➢ The Constitutional Court was asked to determine whether the death penalty was consistent with the rights to life, dignity, and freedom from cruel, inhuman, or degrading punishment.
- Issues raised
➢ Whether the death penalty violates the right to life section 9?3
➢ Whether it violates the right to dignity section 10?4
➢ Whether it constitutes cruel, inhuman, or degrading punishment section 11(2)?5 ➢ Whether it can be justified under the limitation clause section 33?6 ➢ What role international law and foreign jurisprudence should play in constitutional interpretation?
- Arguments of the parties
Appellants (Makwanyane & Mchunu)
➢ The death penalty violates the right to life.
➢ It undermines human dignity by denying the possibility of rehabilitation. ➢ It constitutes cruel, inhuman, and degrading punishment.
➢ International law increasingly rejects capital punishment.
➢ Alternatives such as life imprisonment exist.
Respondent (The State)
➢ The death penalty serves as a deterrent against violent crime.
➢ It satisfies retributive justice and public demand for punishment.
➢ The limitation clause allows for restrictions on rights in the interests of justice and public safety.
➢ Parliament had not yet abolished the death penalty, so the Court should defer to legislative authority.
- Judgment / Final Decision
➢ The Constitutional Court unanimously declared the death penalty unconstitutional.
➢ The appeal was allowed.
➢ The Court ordered that capital punishment could no longer be imposed in South Africa.
- Legal reasoning / Ratio decidendi
Right to life
➢ Life is the most fundamental right without it other rights are meaningless.
➢ The state cannot arbitrarily deprive individuals of life.
Human dignity
➢ Dignity is a core constitutional value.
➢ Executing a person strips them of dignity and denies their potential for reform. Cruel, inhuman, or degrading punishment
➢ The death penalty involves psychological torture (waiting on death row).
➢ Execution methods are inherently degrading.
➢ Justice Didcott described it as “the ultimate cruel, inhuman and degrading punishment.”
Limitation clause
➢ Section 33 allowed rights to be limited only if reasonable and justifiable in a democratic society.7
➢ The Court held that the death penalty failed this test.
➢ Alternatives such as life imprisonment were sufficient.
Deterrence and retribution
➢ Deterrence was unproven.
➢ Retribution was inconsistent with constitutional values.
➢ Punishment must align with justice, not vengeance.
International Law
➢ The Court drew on international human rights instruments (ICCPR, European Convention on Human Rights).
➢ It considered foreign jurisprudence (US, India, Germany).
➢ South Africa must interpret rights in line with global human rights standards.
- Conclusion
Significance:
➢ Abolished the death penalty in South Africa.
➢ Established constitutional supremacy.
➢ Set precedent for purposive interpretation of rights.
➢ Reinforced dignity, equality, and freedom as foundational values.
➢ Confirmed the relevance of international law in constitutional interpretation. Critical reflection:
➢ Some critics argued the Court overstepped by abolishing the death penalty instead of leaving it to Parliament.
➢ Others praised the judgment as a bold affirmation of human rights and transformative constitutionalism.
Reference(S):
1 Criminal Procedure Act 51 of 1977
2Interim Constitution of 1993
3 Section 9 of the Constitution of the Republic, 1996
4 Section 10 of the Constitution of the Republic, 1996
5 Section 11(2) of the Constitution of the Republic, 1996
6 Section 33 of the Constitution of the Republic, 1996
7Ibid
