Authored By: Nobuhle Malinga
Tshwane University of Technology (TUT)
- Case Citation and Basic Information
Case Name: S v Makwanyane and Another
Citation: 1995 (3) SA 391 (CC)
Court: Constitutional Court of South Africa
Date Decided: 6 June 1995
Judge(s): Chaskalson P and a full bench of the Constitutional Court
Area of Law: Constitutional Law, Criminal Law, Human Rights Law
Key Issue: Constitutionality of the death penalty under the Interim Constitution of 1993
- Introduction
South African legal history includes one of the most authoritative and revolutionary constitutional rulings, S v Makwanyane and Another. The case was heard by the Constitutional Court in 1995, not long after South Africa’s democratic constitutional system was established, and it addressed the question of whether the death sentence was consistent with the Interim Constitution of 1993.
This decision is regarded as a fundamental one in South African constitutional jurisprudence because it did away with capital punishment and solidified constitutional supremacy as the rule of law. It signalled a clear change from a justice system based on retribution, punishment, and deterrence to one based on human dignity, equality, and freedom.
The case’s fundamental need was for the Court to understand and apply meaning to the recently adopted Bill of Rights in a society changing from apartheid to democracy. The Court was consequently shaping the new South Africa’s moral and constitutional identity as well as resolving a legal conflict. The decision confirmed that all people, even those who have committed the gravest offenses, maintain their basic dignity and constitutional protection.
- Case Facts
Makwanyane and another person were found guilty of murder by a South African High Court. South African law still allowed the death penalty for grave crimes like murder, treason, and aggravated robbery.
According to current law, both defendants were given the death penalty after their convictions. However, South Africa passed the Interim Constitution of 1993, which drastically altered the legal environment by creating a justiciable Bill of Rights, before the sentence could be implemented.
Several fundamental rights were protected by the Constitution, including:
The right to live
the right to respect for human dignity
Défense against harsh, dehumanizing, or humiliating punishment
Equanimity in the face of the law
The accused questioned the legality of their death punishments in light of these constitutional changes. They contended that the death penalty violated the Constitution and was consequently unlawful.
The question was submitted to the Constitutional Court, which had to decide whether the death sentence could endure constitutional examination under the new legal system.
- Legal Problems
The Constitutional Court was asked to rule on the following constitutional issues:
Whether the right to life protected by the Constitution is breached by the death penalty.
Is there a breach of human dignity if the death penalty is applied?
whether it amounts to cruel, inhumane, or degrading punishment.
if the restriction provision of the Constitution supports it.
Can public opinion affect how the Constitution is interpreted and how rights are protected?
The Court had to interpret the reach, meaning, and restrictions of basic rights in a newly established constitutional democracy as a result of these problems.
- Arguments Advanced
5.1. Petitioner/Appellant’s Arguments
The appellants maintained that the death penalty was inherently contrary to constitutional values.
First of all, they contended that the right to life is the most fundamental and basic right in any constitutional democracy. They claimed that since the state cannot give life back after it has been taken, the punishment is conclusive, irreparable, and hence unconstitutional.
In the second place, they asserted that the death penalty degrades people by treating them like objects that the government may get rid of, which is a violation of human dignity. According to them, even condemned criminals have an inherent dignity that cannot be taken away.
Thirdly, they asserted that the death penalty is a cruel, inhumane, and degrading punishment because it involves extreme psychological agony, protracted doubt, and the physical act of execution.
Fourthly, the appellants emphasized the risk of wrongful execution, arguing that no judicial system is infallible. The punishment is constitutionally unacceptable due to the risk of putting an innocent person to death.
Fifth, they contended that there is no proof that the death penalty discourages more successfully than life in prison.
Finally, they stated that rights and principles, rather than popular opinion or strong emotions about crime, should serve as the foundation for constitutional interpretation.
5.2 The Respondent’s Arguments
The death penalty’s constitutionality was upheld by the State.
The State asserted that capital punishment was an established and legitimate kind of punishment under South African criminal law and had historically been practiced by the courts.
Additionally, it claimed that the death penalty was required for public safety since it deterred serious violent offenses, especially murder.
Furthermore, the state relied on public opinion, contending that a large portion of South African society favoured capital punishment and that respect for majority opinions was necessary for democratic governance.
The State further argued that, in an open and democratic society, the Constitution allows for the restriction of rights as long as those limitations are fair and justifiable.
In conclusion, the State contended that courts ought to practice judicial restraint and steer clear of meddling in legislative policy choices concerning criminal punishment.
- Analysis and Justification of the Court
A thorough and principled constitutional interpretation was carried out by the Constitutional Court.
The principle of constitutional supremacy was first stressed by the Court, which stated that the Constitution is the supreme law of the nation and that all laws and conduct must abide by it.
Right to Life
The most basic right enshrined in the Constitution, according to the Court, is the right to life. It concluded that it would be contradictory for the state to lawfully take a life as punishment since the state is designed to safeguard life.
Dignity of People
The Court highlighted that human dignity is a fundamental constitutional principle. The court determined that the death penalty irrevocably degrades dignity by treating a person as unworthy of continued life.
Punishment that is vicious, inhumane, or degrading
Because of the psychological anguish it produces, including the dread of death and the circumstances on death row, the Court determined that the death penalty is intrinsically terrible.
The Likelihood of a Mistake
The Court’s reasoning was based primarily on the potential for erroneous convictions. Since human justice systems are prone to mistakes, the execution of an innocent person cannot be warranted, according to the Court.
Opinion of the public
The Court explicitly dismissed the idea that public opinion could establish constitutional legality. According to the decision, constitutional rights are intended to protect individuals even in the face of widespread public opinion.
Clause of Restriction
The Court deliberated on whether the death penalty may be justified as a rights restriction. It came to the conclusion that even if rights might be restricted, such a restriction must be justifiable and reasonable. The death penalty failed this test because life in prison is a less limiting and effective substitute.
- Ratio Decidendi and Judgment
In South Africa, the death penalty was deemed un unconstitutional by a unanimous decision of the Constitutional Court.
The Court determined that:
The right to life is infringed upon by capital punishment.
It infringes on human dignity.
It constitutes cruel, inhuman, and degrading punishment
It cannot be defended under the restriction clause.
Ratio Decidendi:
The death sentence is unconstitutional since it violates the basic rights to life and dignity and cannot be defended in a constitutional democracy based on human rights, equality, and freedom.
As a result, every sentence of death was overturned and replaced with life in prison.
8.Critical analysis, number eight
8.1 Decision Significance
One of the most significant constitutional decisions in South African history is this ruling. The death penalty was eliminated, and the concept of constitutional supremacy was established. It also reinforced the notion that the legal system is built on human dignity.
8.2 Effects and Implications
The decision carried substantial legal and social ramifications. It brought South Africa’s criminal justice system into line with international human rights requirements and changed it. Additionally, it cemented the Constitutional Court’s position as the primary guardian of constitutional rights.
In comparative constitutional law, the case is still referred to as a leading authority and has shaped later constitutional jurisprudence about punishment, dignity, and state power.
8.3 Critical Analysis
The verdict is lauded for upholding constitutional values and human rights. It stands for an advanced understanding of constitutional law and mirrors the revolutionary aims of South Africa’s shift to democracy.
Critics, however, contend that the decision restricted the state’s capacity to levy severe penalties for grave offenses and may not have accurately represented public opinion at the moment. Judicial activism is also cited as an example of the judgment by some.
Despite these criticisms, the verdict is widely considered to be crucial in the establishment of a rights-based constitutional democracy in South Africa.
- Conclusion
S v Makwanyane and Other Cases Another is still a cornerstone of South African constitutional law. It signals a sharp break from a punitive legal system and the formation of a constitutional framework founded on human dignity, freedom, and equality.
The Constitutional Court reaffirmed that all individuals, even those found guilty of major offences, have a fundamental right to life and inherent human dignity by abolishing the death penalty. The matter continues to be a cornerstone of constitutional interpretation and a representation of South Africa’s dedication to human rights and democratic values.
- Bibliography
Interim Constitution of 1993, which governs the Republic of South Africa
S v. Makwanyane and Another 1995 (3) SA 391 (CC)
De Waal, J., and I. Currie. A Handbook on the Bill of Rights.
Woolman and others. South African Constitutional Law
De Vos. South Africa’s Human Rights Legislation
Davis, D. (1996). South Africa’s Death Penalty and Constitutional Change.
