Authored By: Ayanda Nelisiwe Thebehali
University of South Africa
Case Title and Citation :
S v Makwanyane and Another [1995] ZACC 3; 1995 (3) SA 391 (CC); 1995 (6) BCLR 665 (CC)
Court: Constitutional Court of South Africa
Date: 6 June 1995
Introduction
The case of S v Makwanyane and Another was one of the earliest and most influential judgments of the Constitutional Court of South Africa.^1 Decided in 1995, it required the Court to determine whether the death penalty for murder was compatible with the new constitutional order established by the Interim Constitution of 1993. At stake were not only the lives of the accused, but also the meaning of constitutional supremacy, the recognition of human dignity, and the future of punishment in a democratic South Africa.
This summary sets out the facts, issues, arguments, reasoning, and decision of the Court, before considering its broader significance, particularly in relation to Ubuntu and transformative constitutionalism.
Facts of the Case
The applicants, Makwanyane and Mchunu, had been convicted of multiple counts of murder, attempted murder, and aggravated robbery.^2 For each of the murder counts, they were sentenced to death under section 277(1)(a) of the Criminal Procedure Act 51 of 1977. Their convictions were confirmed on appeal to the Appellate Division, but the appeals against sentence were postponed pending the Constitutional Court’s decision on the constitutionality of the death penalty.
Although executions had been suspended since 1989, hundreds of prisoners remained on death row. The case therefore raised an urgent constitutional question.^3
Legal Issues
The Court was asked to consider three central questions:
- Whether section 277(1)(a) of the Criminal Procedure Act was consistent with the Interim Constitution.
- Whether the death penalty could be justified as a permissible limitation of rights under section 33 of the Constitution.
- Whether deterrence, retribution, or public opinion could serve as valid constitutional justifications for capital punishment.^4
The rights at issue included the right to life (s 9), the right to dignity (s 10), and the prohibition of cruel, inhuman or degrading punishment (s 11(2)).
Arguments
The applicants argued that the death penalty violated the rights to life and dignity, was inherently cruel and irreversible, and disproportionately affected the poor and marginalised.^5 The State countered that capital punishment was a legitimate deterrent, that it fulfilled retributive justice, and that it was supported by public opinion. The Attorney-General further argued that if the framers of the Constitution had intended to abolish the death penalty, they would have made that intention explicit.
Court’s Reasoning
The Constitutional Court rejected the State’s submissions. It held that the right to life was the most fundamental of all rights, and that the state could not extinguish it through capital punishment. Human dignity, described as a foundational value of the Constitution, was also incompatible with the death penalty, which was found to be degrading and dehumanising.^6
The Court noted that capital punishment inflicted cruelty both in the act of execution and in the prolonged psychological suffering endured by those awaiting execution. Public opinion, it stressed, could not override the protection of constitutional rights. Retribution was not sufficient to justify the death penalty, and the evidence for deterrence was inconclusive.^7
Importantly, the Court invoked the values of Ubuntu and transformative constitutionalism. Ubuntu, grounded in compassion, respect, and community, was fundamentally opposed to capital punishment, while transformative constitutionalism required the Constitution to serve as a tool for reshaping society towards greater justice and human rights.^8
Decision
The Court unanimously declared the death penalty unconstitutional. Section 277(1)(a) of the Criminal Procedure Act was struck down, and all death sentences were commuted to life imprisonment.^9
Significance
The Makwanyane judgment was a turning point in South African constitutional law. It abolished the death penalty, entrenched constitutional supremacy, and affirmed dignity as a foundational value of the legal order. By recognising Ubuntu, the Court incorporated African values into the interpretation of rights.
Most significantly, the case exemplified transformative constitutionalism: the Constitution was interpreted as a living document, designed not only to protect rights but also to guide social transformation towards equality, dignity, and justice.^10
Conclusion
S v Makwanyane and Another was far more than a case on capital punishment. It was a declaration of the core values of South Africa’s democratic order. By abolishing the death penalty, the Court entrenched life, dignity, and humane treatment as non-negotiable rights. The case remains a landmark in South African law and a powerful symbol of transformative constitutionalism and Ubuntu.
Footnotes
- S v Makwanyane and Another 1995 (3) SA 391 (CC).
- ibid [2].
- ibid [5].
- ibid [8].
- ibid [10].
- ibid [144] (Chaskalson P).
- ibid [128].
- ibid [308] (Langa J).
- ibid [148].
- Karl Klare, ‘Legal Culture and Transformative Constitutionalism’ (1998) 14 SAJHR 146.
Bibliography
- Karl Klare, ‘Legal Culture and Transformative Constitutionalism’ (1998) 14 SAJHR 146.
- S v Makwanyane and Another 1995 (3) SA 391 (CC).
