Authored By: Lesego Maoko
University of South Africa
Case Name: S v Makwanyane and Another 1995 (3) SA 391 (CC)
Constitutional Court of South Africa
Judgment delivered: 6 June 1995
This case is widely regarded as the Constitutional Court’s first great test of principle. Decided in 1995, only a year after South Africa’s transition to democracy, it confronted the Court with the question of whether the death penalty could survive under the newly adopted Interim Constitution[1]. The ruling abolished capital punishment and set the tone for a rights-based constitutional order.
Introduction
The Makwanyane judgment is a cornerstone of South African constitutional jurisprudence. It is not only remembered for its immediate effect the abolition of the death penalty but also for the way it articulated the values of the new constitutional democracy. The Court’s reasoning emphasized that the Constitution is a transformative document, designed to break with the injustices of the past and to entrench respect for life, dignity and equality[2].
What makes the case remarkable is that the Court chose principle over public opinion. At the time public opinion strongly favoured retaining the death penalty especially given high crime rates. Yet the Court insisted that constitutional rights cannot be subject to majority sentiment. In doing so it demonstrated the supremacy of the Constitution and the judiciary’s role as guardian of fundamental rights. The decision is significant for it’s affirmation of the rights to life and human dignity as well as it’s rejection of cruel, inhuman or degrading punishment.
Facts of the Case
The accused, Makwanyane and Mchunu, were convicted of murder and sentenced to death under the Criminal Procedure Act which permitted capital punishment[3]. With the Interim Constitution in force, their case was referred to the newly established Constitutional Court to determine whether the death penalty was consistent with the Bill of Rights.
The rights implicated were:
– The right to life (section 9 of the Interim Constitution)[4]
– The right to human dignity (section 10)[5]
– Freedom from cruel, inhuman, or degrading punishment (section 11)[6]
Thus, the case became a direct test of whether the most severe form of punishment could coexist with the values of the new democratic order.
Legal Issues
The Court had to decide:
- Does the death penalty violate the right to life?
- Does it infringe the right to human dignity?
- Does it amount to cruel, inhuman or degrading punishment?
- If so, can these infringements be justified under the limitations clause?
Arguments
The State’s Position
The State defended the death penalty on several grounds:
– It was a necessary sanction for the most serious crimes.
– It acted as a deterrent against violent crime.
– Public opinion strongly supported its retention.
– Any limitation of rights was justified under the Constitution’s general limitations clause.
The Accused’s Position
The accused countered that:
– The death penalty violates the right to life[7].
– It undermines human dignity by treating people as disposable[8].
– It constitutes cruel, inhuman and degrading punishment[9].
– There is no conclusive evidence that it deters crime more effectively than alternatives such as life imprisonment.
Court’s Reasoning
Right to Life and Human Dignity
The Court emphasized that the right to life is the most fundamental of all rights as it is the foundation for the enjoyment of every other right[10]. To deliberately extinguish life through state action was irreconcilable with constitutional values.
Human dignity was described as a “foundational value” of the Constitution[11]. The Court reasoned that capital punishment strips individuals of their inherent worth, reducing them to mere objects of retribution. In this way, it violates the dignity that the Constitution seeks to protect.
Cruel, Inhuman, or Degrading Punishment
The Court found that the death penalty is inherently cruel and degrading[12]. It pointed to:
– The psychological torment of awaiting execution.
– The irreversible nature of the punishment.
– The risk of wrongful convictions, which could never be remedied once the sentence was carried out.
The Limitations Clause
The Court then considered whether these infringements could be justified under section 33 (the limitations clause). It held that:
– The State failed to prove that the death penalty effectively deters crime[13].
– Less restrictive alternatives such as life imprisonment were available.
– The severity and finality of the death penalty outweighed any claimed benefits.
Public Opinion
The Court acknowledged that many South Africans supported capital punishment. However, it insisted that constitutional rights cannot be subject to majority opinion. The judiciary’s role is to uphold constitutional values, even when unpopular[14].
Judgment and Ratio Decidendi
The Constitutional Court unanimously declared the death penalty unconstitutional.
Ratio decidendi:
The death penalty violates the rights to life and dignity and constitutes cruel, inhuman and degrading punishment. These infringements cannot be justified under the limitations clause.
Critical Analysis
Significance of the Decision
The judgment is a landmark in South African law. It established the primacy of human rights and reinforced the transformative nature of the Constitution. By abolishing the death penalty, the Court aligned South Africa with international human rights standards and set a precedent for future jurisprudence.
Implications and Impact
The decision had several far-reaching effects:
– It entrenched constitutional supremacy over public opinion.
– It strengthened the judiciary’s role as guardian of rights.
– It influenced subsequent cases dealing with dignity, equality and humane treatment.
– It signalled South Africa’s commitment to international human rights norms, particularly those prohibiting cruel and degrading punishment.
Critical Evaluation
Critics argued that the Court ignored public opinion and the realities of violent crime. They claimed that abolishing the death penalty removed a powerful deterrent. However, the Court’s reasoning reflects a principled commitment to constitutional values rather than populist considerations.
The judgment prioritizes dignity and life over retributive justice. In doing so it reinforces a rights-based legal order and demonstrates the Constitution’s transformative purpose.
Broader Context and Comparative Perspective
The Makwanyane decision can be understood in a global context[15]. Many democratic states had already abolished the death penalty, citing similar concerns about dignity, wrongful convictions and the lack of deterrence. The Court drew on comparative jurisprudence from jurisdictions such as Canada, Germany and the United States, though it ultimately crafted a uniquely South African approach rooted in the values of the Interim Constitution.
This comparative engagement illustrates the Court’s openness to international law and its desire to situate South Africa within a global human rights community.
Legacy and Continuing Relevance
Nearly three decades later, Makwanyane remains one of the most cited Constitutional Court judgments[16]. It is taught in every law faculty as a foundational case on constitutional interpretation, human rights and the role of the judiciary.
Its legacy lies not only in the abolition of the death penalty but also in its broader affirmation of constitutional supremacy. The case demonstrates that the Constitution is more than a legal text it is a moral compass guiding South Africa’s democratic journey[17].
Conclusion
S v Makwanyane is more than a case about the death penalty. It is a declaration of constitutional values: life, dignity and humane treatment. By abolishing capital punishment the Court affirmed that the new South Africa would be built on respect for human rights, not retribution.
The judgment remains a powerful reminder that constitutional democracy requires courage, the courage to uphold principle even when it conflicts with popular opinion. In this way, Makwanyane continues to shape South African law and inspire debates about justice, rights and the rule of law.
Bibliography
Books:
- Currie I and De Waal J, The Bill of Rights Handbook (6th edition, JUTA 2013)
- De Vos P and Freedman Warren, South African Constitutional Law in Context (Oxford University Press Southern Africa, 2014)
Constitution:
- Constitution of the Republic of South Africa, 1993 (Interim Constitution)
Cases:
- S v Makwanyane and Another 1995(3) SA391 (CC)
Websites:
- https://www.amnesty.org
[1] Constitution of the Republic of South Africa, 1993
[2] S v Makwanyane and Another 1995 (3) SA 391 (CC)
[3] S v Makwanyane and Another 1995 (3) SA 391 (CC)
[4] Constitution of the Republic of South Africa 1993, Section 9
[5] Constitution of the Republic of South Africa 1993, Section 10
[6] Constitution of the Republic of South Africa 1993, Section 11(2)
[7] S v Makwanyane and Another 1995 (3) SA 391 (CC), (para 144)
[8] Ibis para 144
[9] Ibid para 26
[10] Ibid para 328
[11] Ibid para 26
[12] Ibid para 129
[13] Ibid para 104
[14] Ibid para 227
[15] Amnesty International, When the State Kills: The Death Penalty vs. Human Rights. ( Amnesty International Publications 1989) (https://www.amnesty.org)
[16] Iain Currie and Johan de Waal, The Bill of Rights Handbook (6th edition, JUTA 2013)
[17] Pierre de Vos and Warren Freedman, South African Constitutional Law in Context (Oxford University Press Southern Africa, 2014)
