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

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

Introduction

The S v Makwanyane and Another case is one of the most significant constitutional judgments in South African history, particularly. It was decided by the Constitutional Court in 1995, shortly after South Africa adopted its Interim Constitution. The case marked a defining moment in the country’s transition from apartheid to constitutional democracy. It established the Constitutional Court as the ultimate guardian of constitutional rights and confirmed that all laws and government actions must comply with the Constitution.

The judgment is important because it abolished the death penalty in South African law. Before this decision came about, capital punishment was a lawful sentence for certain serious offences, including murder. The Court held that the death penalty was in violation of the constitutional rights to life, human dignity, and freedom from cruel, inhumane, or degrading punishment. The decision reflected the values upon which South Africa’s new constitutional order was founded, including human dignity, equality, freedom, and respect for fundamental human rights.

This case continues to influence constitutional interpretation in South Africa and is often cited in judgments that deal with human rights, criminal justice, and constitutional law. Its importance extends beyond South Africa, as it has been referred to by courts and legal scholars internationally when discussing the relationship between human rights and criminal punishment.

Background of the Case

South Africa’s legal system went through a dramatic transformation following the end of apartheid. The Interim Constitution, which came into effect in 1994, introduced a comprehensive Bill of Rights that protected fundamental human rights and established constitutional supremacy. Unlike the previous legal system, Parliament could no longer enact laws that violated constitutional rights.

Before the Constitution was adopted, the death penalty was a legal punishment under South African criminal law. Courts often imposed capital punishment for murder and other serious offences. During the apartheid era, South Africa had one of the highest numbers of judicial executions in the world. Public opinion was often divided, with many believing that the death penalty served as a deterrent against violent crime while others were in support of the death penalty.

Following the establishment of the Constitutional Court, one of its earliest responsibilities was to determine whether existing laws were consistent with the new constitutional framework. The Makwanyane case was one the first major constitutional challenge that involved the death penalty.

Facts of the Case

The applicants, Makwanyane and Mchunu, were convicted of murder and robbery with aggravating circumstances. According to the criminal laws that existed at the time, the trial court sentenced them to death.

However, before their executions could take place, the Interim Constitution came into force. Since the Constitution guaranteed several fundamental rights, questions arose regarding whether capital punishment continued to be lawful.

The Appellate Division referred the constitutional issue to the newly established Constitutional Court. The Court was then asked to determine whether legislation authorising the death penalty was in line with the Constitution and, if not, whether it should be declared invalid and unconstitutional.

The constitutional challenge did not concern whether the applicants had committed the offences. Their convictions were not disputed. Instead, the issue was whether the sentence imposed on them was constitutional.

Legal Issues Before the Court

The Constitutional Court considered several important legal questions, including:

1. Whether the death penalty violated the constitutional right to life.
2. Whether execution constituted cruel, inhuman, or degrading punishment.
3. Whether any limitation of these rights could be justified under the limitation clause of the Interim Constitution.
4. Whether public opinion supporting capital punishment should influence constitutional interpretation

These questions needed the Court to interpret constitutional rights for the first time and determine how they should be balanced against society’s interest in combating violent crime.

Relevant Constitutional Provisions

Several provisions of the Interim Constitution were important in the judgment.

Right to Life

Section 9 gave every person the right to life. The Court considered whether a punishment that deliberately ended a person’s life could ever be compatible with this constitutional protection.

Human Dignity

Section 10 protected every person’s dignity and required that dignity be respected and protected. The Court recognised dignity as one of the fundamental values of the Constitution.

Freedom from Cruel, Inhuman or Degrading Punishment

Section 11(2) prohibited cruel, inhuman, or degrading treatment or punishment. This provision reflected international human rights standards and required punishment to respect human dignity.

Limitation Clause

Section 36 permitted limitations of certain constitutional rights only where the limitation was reasonable and justifiable in an open and democratic society. The Court therefore had to determine whether the death penalty was justified under this provision.

Arguments Presented

Arguments Supporting the Death Penalty

Those in support of capital punishment argued that:

• It was an effective deterrent against violent crime.
• It reflected public demands for justice.
• It was an appropriate punishment for particularly serious offences.
• Parliament had democratically authorised its use.

These arguments emphasised society’s need to combat increasing levels of violent crime.

Arguments Opposing the Death Penalty

Those against the death penalty argued that:

• The Constitution guaranteed every person’s right to life.
• Human dignity applied to all individuals, even convicted criminals.
• Execution was irreversible and could not be corrected if a wrongful conviction occurred.
• There was not enough evidence proving that the death penalty deterred crime more effectively than life imprisonment.

These arguments focused mostly on constitutional rights rather than public opinion.

Judgment of the Constitutional Court

The Constitutional Court unanimously declared the death penalty unconstitutional.

President Arthur Chaskalson delivered the leading judgment, with all the other judges concurring through separate opinions that reinforced similar constitutional principles.

The Court held that capital punishment was in violation of multiple constitutional rights simultaneously and therefore could not survive constitutional scrutiny.

The judgment led to the permanent abolition of the death penalty in South Africa.

Reasoning of the Court

The Right to Life

The Court described the right to life as the most foundational of all constitutional rights. Without life, no other constitutional rights can be enjoyed.

Capital punishment intentionally deprives a person of life through state action. The Court found that this directly contradicted the constitutional guarantee protecting life.

The judges repeatedly highlighted that constitutional rights must apply equally to everyone, including those convicted of serious crimes.

Human Dignity

The Court regarded human dignity as a foundational constitutional value.

Every person possesses inherent dignity simply because they are human. Criminal behaviour does not remove this dignity.

Execution treats the offender as someone beyond redemption and denies the possibility of rehabilitation. The Court held that treatment like that is inconsistent with constitutional values.

Cruel, Inhuman and Degrading Punishment

The Court held that execution is inherently cruel.

Individuals sentenced to death often experience prolonged psychological suffering while waiting for execution. This emotional distress forms is punishment itself.

The Court concluded that the deliberate and irreversible taking of life by the state constitutes cruel, inhuman, and degrading punishment.

The Limitation Clause

The Court carefully considered whether the infringement of constitutional rights could nevertheless be justified.

Although preventing crime is a legitimate governmental objective, constitutional rights may only be limited where the limitation is reasonable and justifiable.

The Court concluded that the death penalty was not a justified way of achieving its objectives.

Public Opinion and Constitutional Rights

One of the most important aspects of the judgment concerned the relationship between public opinion and constitutional rights.

Many South Africans were in support of retaining capital punishment because of the high crime rate.

However, the Court held that constitutional rights are not dependant solely on majority opinion.

The Constitution exists partly to protect minorities and individuals from unjust treatment, even where such protection may be unpopular.

Accordingly, judges must interpret the Constitution according to its values rather than public pressure.

International Law

The Constitutional Court also considered developments in international human rights law.

The judges observed that many democratic countries abolished the death penalty and that international human rights instruments increasingly recognised abolition as consistent with respect for human dignity.

Although international law did not dictate the outcome, it supported interpreting constitutional rights broadly and consistently with democratic values.

This approach established an important principle that South African courts may consider international law when interpreting the Constitution.

Importance of the Judgment

The Makwanyane decision fundamentally changed South African constitutional law.

Firstly, it confirmed that the Constitution is the supreme law of the Republic of South Africa.

Secondly, it demonstrated that constitutional rights apply equally to every individual, even with the seriousness of their crimes.

Thirdly, it strengthened public confidence in the Constitutional Court as an independent institution committed to protecting human rights.

The case also influenced discussions regarding proportional punishment, prisoners’ rights, and the state’s power.

Impact on Criminal Justice

The abolition of the death penalty needed significant changes within South Africa’s criminal justice system.

Courts could no longer impose capital punishment for any offence.

Instead, life imprisonment was now the most severe criminal sentence for serious offences.

The decision also encouraged greater emphasis on rehabilitation, fairness, and constitutional protections throughout the criminal justice process.

Criticism of the Decision

Despite its importance, the judgment attracted criticism.

Some members of the public believed the Court ignored victims of violent crime.

Others argued that abolition reduced the deterrent effect against serious offences.

Some critics maintained that Parliament, rather than judges, should determine criminal punishment.

However, supporters argued that constitutional democracy needs courts to protect fundamental rights even if doing so is politically unpopular.

The judgment therefore showed the importance of judicial independence.

Legacy

Today, S v Makwanyane is still one of the leading constitutional precedents in South Africa.

Law schools continue to study the case because it demonstrates constitutional interpretation, judicial reasoning, and protection of fundamental rights.

The fundamental principles developed in the judgment continue to influence cases involving dignity, proportionality, prisoners’ rights, and constitutional remedies.

Internationally, the judgment has received praise as an example of constitutional courts protecting human rights during democratic transition.

Conclusion

The decision in S v Makwanyane and Another is one of the defining judgments in 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 punishment are fundamental to South Africa’s democratic order.

Beyond abolishing capital punishment, the case established enduring principles regarding constitutional supremacy, judicial independence, and the protection of human rights. It demonstrated that the Constitution is meant not only to regulate government power but also to safeguard the dignity and rights of every person.

More than three decades later, the judgment continues to shape South African law and serves as a powerful example of constitutional justice. It remains an important reading for students, legal practitioners, and anyone seeking to understand the values that underpin South Africa’s constitutional democracy.

Bibliography

Cases

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

Legislation

Constitution of the Republic of South Africa Act 200 of 1993 (Interim Constitution).

Constitution of the Republic of South Africa, 1996.

Books

Currie I and De Waal J, The Bill of Rights Handbook 9th ed (Juta 2023).

De Waal J, Currie I and Erasmus G, The Constitution of South Africa: A Contextual Analysis (Juta 2013).

Hosten WJ, Edwards AB, Church J and Bosman F, Introduction to South African Law and Legal Theory 2nd ed (Butterworths 1995).

Journal Articles

Chaskalson A, ‘Human Dignity as a Foundational Value of Our Constitutional Order’ (2000) 16 South African Journal on Human Rights 193–205.

Van der Vyver JD, ‘Constitutional Protection of Human Rights in South Africa’ (1997) 114 South African Law Journal 302–328.

Online Sources

Constitutional Court of South Africa. S v Makwanyane and Another 1995 (3) SA 391 (CC). Available at: https://www.saflii.org/za/cases/ZACC/1995/3.html (Accessed 8 July 2026).

Southern African Legal Information Institute (SAFLII). South African Constitutional Court Judgments. Available at: https://www.saflii.org (Accessed 8 July 2026).

Juta Law. Constitutional Law Resources. Available at: https://jutalaw.co.za (Accessed 8 July 2026).