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

CASE CITATION AND BASIC INFORMATION

Citation: 1995 (3) SA 391 (CC); 1995 (6) BCLR 665 (CC)

Court: Constitutional Court of South Africa

Date of Decision: 6 June 1995

Bench Composition: Chaskalson P, Mahomed DP, Ackermann J, Didcott J, Kriegler J, Langa J, Madala J, Mokgoro J, O’Regan J and Sachs J.

INTRODUCTION

S v Makwanyane and Another holds the position of being the most essential constitutional ruling which South Africa has ever produced in its legal history. The Constitutional Court delivered its first major human rights decision through this case which established the legality of capital punishment under the 1993 Interim Constitution. The Court needed to assess if the death penalty which is section 277 of the Criminal Procedure Act 51 of 1977 authorized remained consistent with the constitutional rights which protect life, dignity, prevent cruel, inhuman and degrading treatment. The judgment had a fundamental impact upon South African criminal justice as it abolished the use of capital punishment and asserted that all legislation had to conform to the values of the Constitution regarding the supremacy of the Constitution, human dignity, equality and freedom. The case is a cornerstone of South African constitutional jurisprudence due to the fact that it demonstrated the Constitutional Court’s role as the guardian of the rights of individuals within the country and that the values of the Constitution must always prevail over the opinion of the public and the preference of the Parliament of the country.

FACTS OF THE CASE

Makwanyane and Mchunu, the applicants in this matter, were convicted in the Witwatersrand Local Division of the Supreme Court on four counts of murder, one count of attempted murder and several counts of robbery with aggravating circumstances. The offences for which they were convicted arose from a series of violent robberies in which the victims were deliberately killed. The trial court considered the seriousness of the offences for which the accused were convicted and the applicable sentencing provisions and imposed the death sentence upon both accused in terms of section 277(1)(a) of the Criminal Procedure Act 51 of 1977.

At the time of the convictions, South Africa was in the process of transitioning from a parliamentary sovereign constitution to a constitution with constitutional supremacy. The Interim Constitution of 1993 contained a justiciable Bill of Rights that guaranteed every person the right to life, the right to human dignity and the right to be protected from cruel, inhuman or degrading punishment. Although these rights were contained in the Constitution, it did not state whether capital punishment was still permissible under the constitution. The question was left for the Constitutional Court to determine.

South African courts used to give death penalties for their most severe offenses until the Interim Constitution started its operation. The Minister of Justice established an execution freeze in 1992 because they needed time to establish the constitutional rules which would guide capital punishment operations. The courts kept issuing death penalties but the government stopped all executions until the constitutional rules about capital punishment became clear. The Constitutional Court revealed that over two hundred death penalties reached the courts after the new sentencing laws took effect but the government stopped all executions because of the existing execution pause.

The Appellate Division referred the constitutional questions regarding the validity of the death penalty to the Constitutional Court under section 102 of the Interim Constitution, recognising the issues of exceptional public importance raised by the case. The Constitutional Court did not reconsider the applicants’ guilt but instead focused on the issue of the constitutionality of the provisions authorising the death penalty. The proceedings therefore became a challenge to section 277 of the Criminal Procedure Act rather than an appeal against the applicants’ conviction.

The Court considered the broader legal context of the different regions of South Africa and the laws relating to criminal procedure that they had inherited following the constitutional transition of the country. The former Republic of Ciskei had abolished the death penalty before the constitutional transition of South Africa, leading to the unequal application of the death penalty in different parts of the country. The Court ruled that these differences between the regions of South Africa were transitional and did not determine the constitutionality of the death penalty, but they did illustrate the need for a uniform standard for the Fundamental Rights in the South African Constitution.

LEGAL ISSUES

Issue 1: The Constitutional Court needed to resolve these particular legal questions which stood before them:

Issue 2: The court needed to decide if section 277 from the Criminal Procedure Act 51 of 1977 which allowed death penalty sentences violated the Interim Constitution and should become unconstitutional.

Issue 3: The court needed to decide if the death penalty created a violation of the constitutional right to life which section 9 of the Interim Constitution protected.

Issue 4: The court needed to establish if capital punishment violated the protection against cruel and inhuman and degrading treatment which section 11(2) of the Interim Constitution provided.

Issue 5: The court needs to determine if section 33 of the Interim Constitution allows any restrictions on these constitutional rights.

Issue 6: The South African Bill of Rights requires international law together with constitutional rulings from worldwide courts for death penalty constitutionality review according to comparative constitutional jurisprudence.

ARGUMENTS PRESENTED

5.1 Applicants Arguments

Counsel for the applicants in the case argued that the death penalty violated several of the fundamental rights guaranteed by the Interim Constitution. One of their main arguments was that the death penalty violated the constitutional right to life. They argued that the right to life was the most fundamental of all rights, and the death penalty deprived an individual of this right completely. Furthermore, they argued that the death penalty violated the inherent dignity of the individual.

The applicants contended that the death penalty amounts to cruel, inhuman and degrading punishment within the meaning of section 11(2) of the Constitution. They emphasised that the irreversibility of the death penalty makes judicial errors impossible to rectify once an individual has been executed. Furthermore, the psychological suffering that is experienced by prisoners on death row as a result of the uncertainty of when their execution will occur is also evidence of the cruelty of the punishment. They argued that, because the death penalty destroys the rights guaranteed by the Constitution, it negates those rights and cannot be justified under the limitations clause of the Constitution.

The applicants also drew upon international human rights principles and foreign constitutional case law to assert that the trend of laws around the world is in favour of the abolition of capital punishment. They argued that section 35(1) of the Interim Constitution allows courts to consider international and foreign case law when interpreting the Bill of Rights.

5.2 RESPONDENT’S ARGUMENTS

The Attorney-General defended the constitutionality of section 277 by arguing that capital punishment remained a legitimate form of criminal punishment recognised in numerous jurisdictions throughout the world. The respondent presented death penalty support because this punishment protects society through crime deterrence and it serves as a proper punishment for severe crimes including murder. The argument continued that various groups in South Africa accepted capital punishment because they believed it should remain a legal solution to fight rising violent crime numbers.

The respondent also argued that international law did not absolutely prohibit the use of the death penalty. Various international human rights instruments recognised the right of states to have the death penalty under carefully regulated conditions. The existence of the death penalty under such instruments indicated that it was not regarded internationally as a cruel, inhuman or degrading punishment. For these reasons, the Attorney-General submitted that the Court should uphold the law as a constitutionally permissible limitation upon individual rights in the interest of protecting the society from the effects of serious criminal violence.

COURT’S REASONING AND ANALYSIS

The Constitutional Court determined that the constitutionality of the death penalty had to be decided by interpreting the Interim Constitution in light of its foundational values. Furthermore, President Chaskalson highlighted the fact that South Africa had made a decisive break from the past in its constitutional order. As a result of this change, all legislation had to comply with the rights set out in Chapter Three of the Interim Constitution.

The Court first examined the constitutional rights implicated by the punishment of death. It found that the right to life was expressed in the Constitution in absolute terms and was the foundation of all other constitutional rights. The execution of a person extinguished that person’s right to life and all other rights that that person enjoyed under the Constitution. The Court, therefore, found the right to life to be inseparable from the values of human dignity and personal autonomy that were protected under the Constitution.

The Court also found that the death penalty violated section 11(2) of the Interim Constitution which prohibited cruel, inhuman or degrading punishment. The Court reasoned that the punishment of death was inherently cruel because of its irrevocability and the fact that it deprived the individual of any opportunity for rehabilitation or redemption. In addition, prisoners sentenced to death must wait for extended periods for their executions to be carried out while appeals and petitions for cleency are completed. This waiting period and the resulting psychological suffering is referred to as the “death row phenomenon” and is considered to add to the cruelty of the punishment. The Court found that executing a prisoner degraded human dignity because it reduced the person to an object to be eliminated by the State.

In the Court’s reasoning, one of the significant aspects was the relationship between the rights of the Constitution and section 33 of the Interim Constitution that provided for the limitation of those rights. Although the rights in the Constitution were not absolute, the limitations to those rights had to be reasonable, justifiable, and necessary in an open and democratic society. The Court examined the justification for limiting the rights to life and dignity in the context of the objectives of deterrence, prevention, and retribution.

The Court considered the objective of retribution in the administration of punishment. The Court accepted that the idea of punishment is an essential component of criminal justice. The Court acknowledged that society has a legitimate interest in punishing and condemning serious crimes. However, the Court held that the goal of retribution cannot outweigh the commitment of the Constitution to human dignity. The Constitution requires the State to respect the worth of all individuals, even those who have been convicted of the most serious crimes. The desires for vengeance or the justification of anger towards the criminals cannot justify the administration of punishment that violates the rights of the individual under the Constitution.

JUDGMENT AND RATIO DECIDENDI

The Constitutional Court has declared section 277 of the Criminal Procedure Act 51 of 1977 to be unconstitutional and invalid. This means that the death penalty can no longer be imposed or carried out in South Africa.

 Ratio Decidendi: The death penalty constitutes an unjustifiable infringement of the constitutional rights to life and human dignity. It also constitutes cruel, inhuman and degrading punishment. As such, the death penalty is unconstitutional in South Africa.

CRITICAL ANALYSIS

8.1 Significance of the decision

S v Makwanyane is a landmark decision that confirmed the supremacy of the Constitution and the protection of human rights in South Africa. The court ruled that any legislation that is inconsistent with the Bill of Rights must be declared unconstitutional, irrespective of public opinion.

8.2 Implications and impact

The ruling ended the death penalty in South Africa for good and shaped how we understand constitutional rights in future cases. It emphasized the importance of human dignity, equality, and freedom while affirming the Constitutional Court’s duty to protect the Constitution.

8.3 Critical Evaluation

One of the key strengths of the judgment is how it firmly upholds the rights to life and dignity based on a thoughtful reading of the Constitution. However, some critics feel the Court didn’t pay enough attention to public worries about violent crime and whether capital punishment actually deters it. Still, this decision is a cornerstone of South African constitutional law.

CONCLUSION

In the case of S v Makwanyane, South Africa did away with the death penalty, emphasizing that all laws need to align with the Constitution. The court decided that capital punishment went against the rights to life, dignity, and protection from harsh treatment. This ruling is significant as it set key standards for understanding the Constitution and bolstered human rights protections, which still resonate in South African law today.

REFERENCE(S):

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