S v Makwanyane And Another

Case Title & Citation 

Full Title : S v Makwanyane And Another 

Citation : (CCT 3/94) [1995] ZACC 3 ; 1994(3) SA391(CC);1995 (6) BCLR665(CC) 

Court Name & Bench 

Court : Constitutional Court Of South Africa Bench : Sachs J 

: Chaskalson P 

: Madala J 

: Ackerman J 

:Didcott J 

: Mohomed J 

: Mokgoro J 

: Langa J 

: Kentridge AJ 

:O’Regan J 

: Kriegler J 

Bench type 

Full bench

Date of Judgment 

6 June 1995 

Parties Involved 

Appellant: T Makwanyane and M Mchunu , convicted to multiple counts of murder and sentenced to death under section 277 of the Criminal Procedure Act 51of 1977. 

Respondent: The state 

Introduction 

S v Makwanyane (1995) was a landmark ruling by the Constitutional Court of South Africa. In this case , the Constitutional Court of South Africa ruled that the capital punishment of death penalty was unconstitutional. The court held that the death penalty violated the right to life and the prohibition of cruel, inhumane, or degrading punishment as enshrined in the South African Constitution. The case was brought by Makwanyane, who was facing death penalty for murder. The ruling inthis case marked a significant shift in the country’s legal landscape and has been citedinnumerous other jurisdictions as an influential precedent in the debate over the constitutionality of the death penalty. 

Facts about the case 

The two accused in this matter were convicted in the Witwaterstrand Local Divisionof the Supreme Court on four counts of murder , one count of attempted murder andone count of robbery with aggravating circumstances. The were both sentenced todeath on each of the counts of murder and to long terms of imprisonment on the other counts. They appealed to the Appellate Division of the Supreme Court against the convictions and sentences. The Appellate Division dismissed all the appeals against the convictions and came to the conclusion that the circumstances of the murders were very brutal and that the most heaviest sentence permissible should be implemented according to the law. Although executions had been suspended since the year of 1989, hundreds of prisoners remained on death row. This case raised a lot of constitutional matters regarding this case. The court examined international andcomparative law, as well as the historical context of the death penalty in South Africa, and concluded that the death penalty was indeed unconstitutional . The court declaredthat death penalty to be inconsistent with the Constitution and struck down all relevant provisions of the Criminal Procedure Act. 

Issues raised 

Whether the Courts violates

– The right to dignity ( Section 10) 

– The right to Life (Section 9) 

– The right not to be subjected to cruel, inhuman , or degrading punishment (Section11 (2)) 

– Whether the retention of the death penalty is justifiable under Section ( limitations clause) 

– Whether section 277 (1) (a) of the Criminal Procedure Act was consistent withtheInterim Constitution 

– Whether 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 a valid constitutional justifications for capital punishment. 

Arguments of the parties 

Appellants 

– they argued that death penalty is cruel and that it violates the right to life and dignity 

– Emphasized the transformative nature of the Interim Constitution, which sought tobreak the authorization past and embrace human rights and democratic values. 

Respondent ( The State ) 

– the state argued that death penalty served as a deterrent and it was necessary for thepublic’s safety. 

– invoked the opinion of the public as a justification for the retaining the death penalty. 

– claimed that the Constitution did not explicitly prohibit capital punishment but , it was a lawful sentence under existing legislation. 

Final Decision or Judgement

The court invalidated section 277 (1) (a) of the Criminal Procedure Act ,which hadpermitted the use of the death penalty. The Court prohibited the execution of anyperson sentenced under this provision and ruled that those awaiting execution shouldremain in prison until new sentences were imposed. The judge also emphasized that the death penalty destroys life’s and annihilates human dignity ( Section 9 and 10 of the Constitution). The right to life was the most fundamental of all rights , and the state could not extinguish it through capital punishment . Human dignity is describedas a foundation value of the Constitution. The Court decided that all death sentences were commuted to life imprisonment. 

Ratio Decidendi / Legal reasoning 

The right to life and dignity are fundamental in South Africa’s Constitution and theseare the most important human rights. The Constitutional court ruled that the deathpenalty is incompatible with these rights because it extinguishes life and undermines human dignity. The right to life (section 11 ) and dignity (section 10) are entrenchedin the Bill of Rights which is the cornerstone of Democracy in South Africa. 

Degrading or cruel punishment 

In the case of S v Makwanyane, the Constitutional Court of South Africa ruled that capital punishment is unconstitutional because it constitutes cruel and inhuman treatment. Justice Mokgoro emphasized the importance of Ubuntu . The decisionof the court was influenced by the irreversible nature of the death penalty and the riskof judicial errors. The court affirmed its commitment to the constitutional values suchas freedom , dignity, and equality 

International and Comparative law 

The court adopted a comparative approach , referencing decisions fromthe SupremeCourt of Canada, the European Court of Human Rights , and the German Federal Constitutional Court. The court rejected the argument that public opinion could justify right violation and constitutional rights are not subject prioritization preferences. 

Transformative Constitutionalism

The courts decision in S v Makwanyane marked a decisive break fromthe apartheidera jurisprudence,where the laws often perpetuated inequality and violated humandignity. By ending the death penalty, the court affirmed its role in shaping a humanelegal order that aligns with the Constitutions trans-formative goals . The judgement underscored the courts commitment to interpreting the Constitution in a manner that advances democracy, equality,and human rights. 

Conclusion 

The case of S v Makwanyane is regarded as a cornerstone of South African constitutional jurisprudence. The case set a precedent for the use of international lawand comparative jurisprudence in the constitutional interpretation. The decision has influenced subsequent rulings on socio economic rights , equality,and privacy , reinforcing the Courts transformative mandate. This approach has garned praise for its moral clarity when coming to the protection of fundamental right. The courts decision in S v Makwanyane reinforces the idea that the constitutional rights are foundational and they should not be swayed by shifting popular views, ensuring a consistent commitment of the Constitutions core values. 

Bibliography 

Case law: 

S v Makwanyane and Anorher 

(CCT 3/94) [1994] ZACC 3 ; 1995 (3) 

SA 391; 1995 (6) BCLR 665 (CC) 

R v Morgentaler [1988] 1 SCR 30 

Legal framework and legislation 

International Covenant o Civil and Political Rights (1966) 

Law textbooks 

Woolman S and Bishop M 

Constitutional Law of South Africa ( 2 nd edn, Juta 2008)