S v Makwanyane and Another (CCT 3/94)

Case Name: S v Makwanyane and Another (CCT 3/94)

Court: Constitutional Court of South Africa

Date Decided: 6 June 1995

Citation: 1995 (3) SA 391 (CC); 1995 (6) BCLR 665 (CC)

Summary: 

The case of S v Makwanyane and Another was a landmark decision handed down by the  Constitutional Court of South Africa in 1995. It established that capital punishment was  inconsistent with the commitment of human rights expressed in the interim Constitution. The  applicants, who has been sentenced to death under section 277(1) (a) of the Criminal  Procedure Act 51 of 1977, challenged the imposition of the death penalty, arguing that it  violated several fundamental rights enshrined in the Bill of Rights. The court held that capital  punishment was inconsistent with the values of human dignity, the right to life, and right not  to be subjected to cruel, inhuman or degrading punishment, as protected by section 9, 10 and  11(2) of the Interim Constitution. The ruling declared section 277(1)(a) and any other similar  provisions permitting the death penalty to be invalid. The court stopped the government from  carrying out the death sentence on any prisoners awaiting execution, stating that they should  remain in prison until new sentences were imposed.

Before this case, South Africa had a long history of applying the death penalty for various  crimes, including murder and treason. However, with the end of apartheid and establishment  of new democratic government in South Africa, there was a growing movement to abolish the  death penalty. 

Facts:

Thandokuhle Makwanya and Matebula Mchunu, were convicted in then the Supreme Court  of multiple counts of murder, attempted murder, and armed robbery. The offences were  brutal, commited of violence, and resulted in a sentence of capital punishments under section  277(1)(a) of the Criminal Procedure Act 51 0f 1977, which prescribed the death penalty  under certain circumstances. The appeal was lodged shortly after the Interim Constitution of  the Republic of South Africa Act 200 of 1993 came into force, which had come into  operation on 27 April 1994, symbolizing the official transition from apartheid to democracy.

What transformed this case in to a constitutional landmark was not the factual guilt of the  accused, but a constitutional challenge with profound implications for the South African legal  system. It was set against the backdrop of a political and legal transition, where the judiciary  was expected not just to apply law, but to give meaning to the foundational values of the new  legal order namely. Human dignity, equality, and freedom. The role of the courts had  fundamentally shifted, they were now expected to articulate and enforce a value based vision  of justice, anchoring the legal system in the moral commitments of the constitution rather  than the precedents of the past.

The facts of the case extended beyond the crimes of the accused; they lie in the legal and  historical significance of the case itself. It tested the willingness of the judiciary to break from  the apartheid era jurisprudence, to embrace international human rights norms, and to interpret  the Constitution as a living document rooted in the country’s painful history but committed to  more just future.

Issue:

The legal issue before the Constitutional Court. Was whether section 277(1)(a) of the  Criminal Procedure Act 51 of 1977, which permits the death penalty for murder, was  inconsistent with the fundamental rights enshrined in the Interim Constitution of 1993, which  are the rights to life under section 9, the right to human dignity under section 10, and the right  not to be subjected to cruel, inhuman or degrading treatment or punishment under section  11(2). In addressing the core issue the court, had to also think deeply with few interrelated  constitutional and jurisprudential questions. The court had to determine whether section 33,  the limitation clause in the interim Constitution, could legitimately be used to justify limiting  of the rights under section, 9, 10 and 11(2). The court had to assess whether death penalty  could be deemed a reasonable and justifiable limitation an open and democratic society based  on freedom and equality. The court was required to also consider how much weight to give to  international and comparative law when interpreting the Constitution. Given the global trend  toward abolition of the death penalty, the court needed to decide whether these global human  rights standards were relevant and influential in shaping South Africa’s new constitutional  identity.

In resolving these issues, the Court was tasked with crafting a vision of justice, it had to  interpret the constitution in a way that reflected both literal meaning and deeper values, there by establishing a foundational precedent for how rights would be protected and  developed in South African constitutional law going forward. 

Rule:

The Constitutional Court was required to interpret several key rights protected under the  Interim Constitution:

Section 9: “Every person has the right to life.”

Section 10: “Every person has the right to respect for and protection of his or her dignity.”

Section: 11(2): “No person shall be subject to torture of any kind, whether physical, mental or  emotional, no person shall be subjected to cruel, inhuman or degrading treatment or  punishment.

Section 33: “The general limitation clause, which allowed rights to be limited by law of  general application, provided such limitation was reasonable and justifiable in an open and  democratic society based on freedom and equality.

In applying these constitutional provision, the court also drew guidance from international  and foreign legal sources, like Canada, Germany, India, and the United States, and  International human rights treaties, like the International Covenant on Civil and Political  Rights (ICCPR). South African common law and criminal justice system’s history of using  capital punishment disproportionately and unjustly under apartheid.

Application:

The Constitutional Court provided 11 separate but concurring judgements, all agreeing that  the death penalty was unconstitutional. 

Right to life and Human Dignity:

Chief Justice Arthur Chaskalson stated that the death penalty inherently violates the right to  life. He emphasized that the Constitution’s protection of life was absolute, and the state could  not lawfully take what it was bound to protect. He also stated that the right to human dignity  is the most important of all human rights in South African constitutional values. So the death  penalty, by its very nature, dehumanizes people and reduces them to an object of state power,  rather than bearers of intrinsic worth.

Justice Didcott argued that the death penalty is an absolute and final negation of the right to  life. Justice Langa focused on how, under apartheid, the death penalty had been used  disproportionately against black South Africans, undermining its moral legitimacy. 

Cruel, Inhuman, or Degrading Punishment:

The court examined the method of execution (hanging), the psychological trauma suffered by  the prisoners awaiting execution known as the “death row phenomenon”, and the finality of  the sentence. These features, the judges held, rendered the punishment inherently cruel and  degrading. Justice O’Regan stressed the unpredictability and arbitrariness of the death  penalty: similar crimes often resulted in different sentences, undermining fairness and legal  certainty. The irreversibility of death penalty raised severe concerns about miscarriages of  justice. 

Deterrence and Public Opinion:

The State argued that death penalty served as a deterrent to violent crime and that public  opinion strongly favoured its retention. But the court rejected both arguments. Chaskalson CJ  stated that no conclusive evidence existed to prove that the death penalty effectively deterred  more than other punishments, like life imprisonment. He also noted that even if deterrence  were proven, it could not be used to justify the violation of constitutional rights such as life  and dignity. On public opinion the court was resolute: constitutional rights are not subject to  public mood. Justice Mokgoro stated that the courts must uphold principles of justice even in  the face of popular opposition. The Court made it clear that the rights in the Constitution are  intended to protect everyone especially minorities and vulnerable from shifting tides of  majority sentiment.

International and Comparative Law:

The court drew support from international human rights instruments and foreign legal  systems. It practiced decisions that were practiced by countries like, Canada, Germany,  Namibia, and India, they had already abolished the death penalty. Countries like the United  States retained the death penalty, and the Court found that this did not align with the values  and vision if South Africa’s post-apartheid constitutional democracy. The court concluded  that the spirit, purport, and objects of the South African Constitution were aligned with this  trend.

Conclusion:

In a landmark and unanimous decision, the Constitutional Court of South Africa declared  death penalty unconstitutional, making a transformative shift in both the nation’s legal  framework and its moral foundations. The court held that section 277(1)(a) of the Criminal  Procedure Act 51 of 1977 violated the Interim Constitution of 1993, particularly the right to  life, right to dignity, and protection against cruel, inhuman, or degrading punishment. The  judges found that no justification under the limitation clause (section 33) could render the  death penalty acceptable in a society founded on freedom, equality, and human dignity.  Arguments based on deterrence and public opinion failed to outweigh the fundamental  importance of protecting human dignity and life. Judges must interpret and uphold the  Constitution according to its values and principles, even where this may conflict with  prevailing public sentiment.

The judgement also placed South Africa in line with international human rights norms,  reinforcing the country’s commitment to global norms and to a vision of transformative  constitutionalism. A jurisprudence aimed not merely at legal consistency, but at healing past  injustices and creating a legal system rooted in dignity, fairness, and accountability. As a  result, the death sentences of Makwanyane and Mchunu were overturned and replaced with  life imprisonment. More importantly, the court’s ruling effectively abolished capital  punishment in South Africa, and laid down a critical precedent for future rights-based  interpretation of the Constitution.

This case has since become the cornerstone of South African Constitutional law, establishing  key principles such as the non-negotiable nature of dignity, the integration of international  law, and the need to read the Constitution in a purposive and value-driven manner.

In conclusion, S v Makwanyane case is not just about death penalty, but it’s also a visionary  declaration of the kind of society South Africa aspired to become, a society that embraces a  constitutional democracy built on human rights, justice and transformation.

Bibliography:

S v Makwanyane and Another 1995 (3) SA 391 (CC)

Interim Constitution of the Republic of South Africa Act 200 of 1993 Criminal Procedure Act 51 of 1977

International Covenant on Civil and Political Rights (adopted 16 December 1966, entered  into force 23 March 1976) 999 UNTS 171

Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982 Basic Law for the Federal Republic of Germany (Grundgesetz), 1949 Constitution of India, 1950

United States Constitution, Eighth Amendment 

S v Zuma and Others 1995 (2) SA 642 (CC)

Chaskalson A, ‘The Third Pillar of Government: Judicial Responsibility in a Constitutional  State’ (1995) 115 SALJ 495

O’Regan K, ‘Human Rights and Democracy – A New Global Debate: Reflections on the  Death Penalty in South Africa’ (1995) 21 SAJHR 232