Authored By: Mthokozisi
University of South Africa
Case: S v Makwanyane and Another
Court: Constitutional Court of South Africa
Year: 1995 Citation: 1995 (3) SA 391 (CC)
Area of Law: Constitutional Law, Criminal Law, Human Rights
- Introduction
The judgment in S v Makwanyane and Another represents one of the most profound developments in South African constitutional jurisprudence. Decided shortly after the advent of constitutional democracy, the case required the Constitutional Court to confront the compatibility of the death penalty with the values and rights enshrined in the Interim Constitution of 1993. At its core, the case raised fundamental questions about the nature of punishment, the limits of state power, and the meaning of human dignity in a society seeking to break decisively from its oppressive past.
Beyond the immediate question of capital punishment, the case is significant for the methodology adopted by the Court in constitutional interpretation. The Court articulated a purposive and value-based approach, emphasising that the Constitution is not merely a legal document but a transformative instrument designed to guide South Africa toward a more just and humane society. As such, S v Makwanyane continues to influence constitutional reasoning across a wide range of legal contexts.
- Historical and Legal Background
Under apartheid, the South African criminal justice system relied heavily on punitive measures, including the frequent use of the death penalty. Capital punishment was imposed disproportionately and often in a racially discriminatory manner. With the adoption of the Interim Constitution, South Africa committed itself to a new legal order founded on respect for human rights, equality, and accountability.
The introduction of a justiciable Bill of Rights required all pre-existing legislation to be scrutinised for constitutional compliance. This created an urgent need to determine whether laws authorising the death penalty could survive within a constitutional framework that explicitly protected the right to life, dignity, and freedom from cruel punishment.
- Facts of the Case
The accused, Makwanyane and Mchunu, were convicted of murder following a series of violent crimes. In accordance with section 277(1)(a) of the Criminal Procedure Act 51 of 1977, they were sentenced to death. Given the constitutional implications, the matter was referred directly to the Constitutional Court for determination.
The Court was not tasked with reassessing the guilt of the accused, but rather with determining whether the legal framework that permitted the imposition of the death penalty was constitutionally valid.
- Legal Issues
The primary issue before the Court was whether the death penalty violated the rights entrenched in Chapter 3 of the Interim Constitution. In particular, the Court examined the right to life, the right to human dignity, and the prohibition against cruel, inhuman, or degrading punishment.
A secondary issue concerned whether any infringement of these rights could be justified under the limitation clause contained in section 33(1) of the Interim Constitution.
- Arguments of the Parties
The State contended that capital punishment was necessary to combat serious violent crime and served as a deterrent. It further argued that public opinion supported the retention of the death penalty and that the limitation of constitutional rights was justified in the interests of public safety.
The Accused argued that the death penalty was inherently arbitrary, irreversible, and incompatible with human dignity. They submitted that no empirical evidence supported the deterrence argument and that alternative punishments were available.
- Judgment and Reasoning of the Court
The Constitutional Court unanimously held that the death penalty was unconstitutional. In doing so, the Court adopted a purposive interpretation of the Constitution, emphasising its foundational values.
Right to Life: The Court held that the right to life occupies a central place in the constitutional order. State-sanctioned execution was found to be incompatible with a system that places life at the core of its values.
Human Dignity: The Court stressed that dignity is inherent to all human beings and cannot be forfeited through criminal conduct. The death penalty was found to deny the possibility of rehabilitation and moral reform.
Cruel, Inhuman or Degrading Punishment: The psychological trauma associated with death row, combined with the irreversible nature of execution, rendered the punishment unconstitutional.
- Limitation Clause Analysis
The Court found that the State failed to meet the requirements of the limitation clause. Less restrictive means, such as life imprisonment, were available and capable of achieving the same objectives.
- International and Comparative Law
The Court drew extensively on international human rights law and foreign jurisprudence. This reinforced the legitimacy of the decision and aligned South Africa with global abolitionist trends.
- Impact and Significance
The decision in S v Makwanyane fundamentally reshaped South African criminal justice. It confirmed constitutional supremacy, strengthened judicial independence, and entrenched a culture of human rights.
- Criticism and Evaluation
Critics argue that the judgment prioritised offenders over victims and ignored public opinion. However, the Court made it clear that constitutional rights cannot be overridden by majority sentiment.
- Conclusion
In conclusion, S v Makwanyane and Another stands as a defining judgment in South African constitutional law. The case illustrates the transformative power of constitutionalism and continues to influence legal thought both locally and internationally.
Bibliography
S v Makwanyane and Another 1995 (3) SA 391 (CC)
Interim constitution of the Republic of South Africa, 1993.
Chaskalson M, Human Dignity as a Foundational value.
International Covenant on civil and political rights.
