Authored By: Nokwazi
University of South Africa
CASE SUMMARY: S v MAKWANYANE AND ANOTHER
1. The Basics
Case Name: S v Makwanyane and Another
Citation: 1995 (3) SA 391 (CC)
Court: Constitutional Court of South Africa
Date: 6 June 1995
Judges: 11 judges. The main one was President Chaskalson
Law: Sections 9, 10, 11(2), 33 and 35(1) of the Interim Constitution 1993
2. Introduction
I chose Makwanyane because my lecturer called it “the case that defined the Constitutional Court.” And after reading it, I get why.
This was 1995. South Africa was brand new to democracy. We had just gotten a Constitution that talked about human rights, dignity, and equality. So when the Court got a case about the death penalty, everyone was watching.
The big question was simple: should South Africa still be executing people?
The Court said no. And that decision changed everything. It showed that the Bill of Rights was serious. It also showed that even people who did terrible things still have rights. Honestly, I think this case is still relevant today because we’re still fighting about crime and punishment.
3. What Happened
The facts aren’t complicated.
Makwanyane and Mchunu were convicted of murder, attempted murder and robbery in the Transvaal High Court. Because the crimes were so bad, the judge sentenced them to death. That was allowed under s 277 of the Criminal Procedure Act back then.
They appealed. But during the appeal, their lawyers asked a new question: “Is the death penalty even allowed under the new 1993 Constitution?” The Appellate Division couldn’t answer that. It was a constitutional issue. So they sent it straight to the Constitutional Court.
Important point: The Constitutional Court wasn’t deciding if the two men were guilty. That was already decided. The only thing they had to decide was whether the death sentence itself was constitutional.
4. The Legal Questions
The Court basically had to answer 4 things:
Does the death penalty break the right to life in section 9?
Does it break the right to dignity in section 10?
Is it “cruel, inhuman or degrading punishment” under section 11(2)?
And if yes, can the government justify it anyway under section 33?
So in short: Can the state legally kill people under our new Constitution?
5. What Both Sides Argued
5.1 What Makwanyane and Mchunu’s lawyers said
Their lawyers had 3 main points.
First, they said life and dignity are the most important rights in the Constitution. But the death penalty takes life away forever. And if we get it wrong, there’s no fixing it.
Second, they said execution is cruel. And not just the hanging. Waiting on death row for months, not knowing when you’ll die — that’s mental torture. That breaks section 11(2).
Third, they pointed to other countries. Most democracies had already gotten rid of the death penalty. South Africa should do the same if we wanted to be taken seriously on human rights.
5.2 What the State said
The State wanted to keep the death penalty.
First, they said we need it for deterrence. Crime was really bad in the 90s. They argued that only the threat of death would scare people enough to stop committing murder.
Second, they said retribution. Some crimes are just so evil that death is the only punishment that fits. Victims deserve that.
Third, they said public opinion matters. A lot of South Africans still supported the death penalty because people were scared.
6. How the Court Reasoned
This is the part that made the case famous. The judges didn’t just read the Constitution. They asked: “What kind of country are we trying to build?”
President Chaskalson said dignity, equality and life are the foundation of the new South Africa. The death penalty destroys all three. Once someone is executed, that’s it. You can’t undo it.
This wasn’t reasoning in a vacuum. The Court was acutely aware that the apartheid state had used killing — judicial and otherwise — as a tool of political control. Chaskalson’s judgment treated the break from that history as part of the justification for treating the right to life as close to absolute. Choosing to end capital punishment wasn’t just about this case; it was about refusing to let the new state inherit the old state’s relationship with death.
On deterrence, the Court wasn’t convinced. They said there’s no real proof that the death penalty stops crime better than life in prison. If it did, countries with the death penalty would have less murder. But they don’t.
On revenge, the Court said no. The Constitution was about ubuntu and reconciliation. Not “an eye for an eye.”
They also looked at what other countries were doing, because section 35(1) said they could. And the world was moving away from capital punishment.
And they made a good point about “cruel.” Cruel isn’t just physical pain. The waiting on death row is cruel by itself. The anxiety, the not knowing.
Finally, the Court asked: even if rights are limited, can it be justified? Under section 33 the answer was no. It wasn’t reasonable in an open and democratic society.
7. The Decision
The Judgment: The Court said the death penalty is unconstitutional. The parts of the Criminal Procedure Act that allowed it were struck down. Makwanyane and Mchunu didn’t get executed. Their sentences were changed to life in prison.
The Main Rule – Ratio: The death penalty violates the right to life, the right to dignity, and the right not to be subjected to cruel punishment. These violations can’t be justified. So capital punishment is not allowed under the Interim Constitution.
That’s why South Africa still doesn’t have the death penalty today.
8. My Take on It
8.1 Why this case matters
To me, Makwanyane matters because it was the first time the new Court had to make a really hard call. They could’ve played it safe. But they didn’t. They chose constitutional values over what was popular. That set the tone for everything after.
8.2 What happened because of it
Immediately, executions stopped. Parliament had to change the law too.
Long term, this put South Africa on the map for human rights. Law students in other countries still read this case.
But the debate didn’t end. Even in 2026, whenever crime goes up, people still ask “should we bring back the death penalty?” Legally no, but people still feel that way.
8.3 Do I agree?
Yes, I agree with the Court. The deterrence argument felt weak to me. And after apartheid, bringing back state killing didn’t make sense. We were supposed to be moving away from violence.
I do understand the other side though. Victims’ families probably felt like justice wasn’t done. The Court could’ve acknowledged that pain more.
But at the end of the day, a Constitutional Court has to protect the Constitution. Even when it’s unpopular. And that’s what they did here.
9. Conclusion
Makwanyane was never just about two men on death row. It was about South Africa deciding who we are.
The Court chose life, dignity, and ubuntu over revenge. It was a brave decision in 1995.
The lesson I took is this: a Constitution only means something if we follow it when it’s hard. Makwanyane proved that South Africa was serious about human rights. For everyone. Even the worst offenders.
10. References (Bluebook)
Cases
S v Makwanyane and Another, 1995 (3) SA 391 (CC) (S. Afr.).
Constitution & Statutes
Interim Constitution of the Republic of S. Afr. 1993.
Criminal Procedure Act 51 of 1977 (S. Afr.).
Books
Dennis Davis & Michelle Le Roux, Precedent & Possibility: The (Ab)Use of Law in South Africa (2009).
Theunis Roux, The Politics of Principle: The First South African Constitutional Court, 1995–2005 (2013).
Website
Constitutional Court of South Africa, https://www.concourt.org.za (last visited June 26, 2026).
