S V. MAKWANYANE AND ANOTHER (CCT 3/94) [1995] ZACC 3 (6 JUNE1995)

Case Name: S v Makwanyane and Another (CCT 3/94) [1995] ZACC 3; 1995 (3) SA 391 (CC); 1995 (6) BCLR 665 (CC); [1996] 2 CHRLD 164; 1995 (2) SACR 1 (CC) (6 June 1995)

Court: Constitutional Court of South Africa

Date of Decision: 6 June 1995

Bench: Chaskalson P, Ackermann J, Didcott J, Kentridge AJ, Kriegler J, Langa J, Madala J, Mahomed J, Mokgoro J, O’Regan J, Sachs J (11-judge bench)

Introduction

This summary examines S v Makwanyane, decided by the Constitutional Court of South Africa in 1995. Two accused were convicted of murder and other offences and sentenced to death, and their case reached the Constitutional Court for a ruling on whether the death penalty could survive scrutiny under South Africa’s new Constitution. The Court’s finding that capital punishment was unconstitutional became a foundational moment for the protection of human rights in post-apartheid South Africa, grounding the right to life and the prohibition of cruel, inhuman or degrading punishment in the values of human dignity and equality. This summary considers the Court’s reasoning and its lasting influence on South African law and on the wider development of human rights jurisprudence, with particular attention to its contribution to the rule of law and the protection of individual rights.

Facts of the Case

The two accused were convicted of murder, attempted murder, and robbery with aggravating circumstances, arising from a home invasion in which the deceased was killed. Section 277(1)(a) of the Criminal Procedure Act 51 of 1977 made the death penalty a competent sentence for murder, and the trial court sentenced the accused to death accordingly, as was then standard practice. The Constitutional Court came to hear the matter because the constitutionality of that sentence was called into question following South Africa’s adoption of its 1993 interim Constitution, which entrenched the right to human dignity for the first time. Rarely in South African legal history had a court been called upon to weigh the demands of criminal justice so directly against newly-entrenched constitutional rights.

Legal Issues/Questions

The central legal question was whether the death penalty constituted cruel, inhuman or degrading punishment, in violation of the following constitutional rights:

1. The right to dignity (section 10)
2. The right to life (section 11)
3. The prohibition against cruel, inhuman or degrading punishment (section 11(2))

Arguments Presented

The accused argued that the death penalty infringed their right to life as guaranteed by section 11 of the Constitution: “Everyone has the right to life.” This required the Court to determine whether the death penalty amounted to cruel, inhuman or degrading punishment, and the accused submitted that it was inconsistent with the Constitution, particularly in light of South Africa’s transition from apartheid to a constitutional democracy.

Court’s Reasoning and Analysis

The Constitutional Court held that the death sentence was unlawful because it infringed sections 9 (equality), 10 (dignity) and 11 (right to life) of the Constitution. The Court’s reasoning proceeded as follows:

1. Right to life: The Court held that a democratic society premised on human rights must prioritise the right to life above all else, and that the death penalty represents a clear violation of that right, one the state is obliged to respect and protect rather than override.
2. Cruel and unusual punishment: The Court found that the death penalty amounts to cruel and inhuman treatment. It noted the growing international trend away from capital punishment, and reasoned that punishment must be proportionate to the offence committed. Because the death penalty is irreversible, any error in the justice system carries fatal and unfixable consequences.

In his majority judgment, Chaskalson P set out a transformative vision for South African constitutionalism, emphasising that a justice system built on the new constitutional order must give effect to human dignity and human rights rather than simply continuing prior sentencing practice.

Judgment

The Constitutional Court’s ruling abolished the death penalty in South Africa. The Court held that the Constitution’s protection of the right to life and its prohibition of torture and cruel or degrading punishment rendered the death penalty unconstitutional. The judgment marked a decisive step in the protection of human rights in post-apartheid South Africa, demonstrating a commitment to a justice system grounded in human dignity, and opening a broader conversation about the purpose of punishment and the proper role of the state in relation to its citizens.

Critical Analysis

S v Makwanyane is significant not only as a matter of law but also as a moral and ethical statement. The Court’s detailed reasoning reflects a strong commitment to a just legal system, and its emphasis on rehabilitation over purely punitive incarceration is central to building a more humane society. The judgment also opened space to examine the goals of punishment more broadly and the state’s obligations toward its citizens. It should be understood as a catalyst for the ongoing project of administering justice in a way that respects human rights while achieving social fairness.

Conclusion

S v Makwanyane remains one of the most significant judgments in South African legal history and a landmark for human rights protection. It marked a decisive break from the apartheid-era criminal justice system, replacing it with an approach grounded in human dignity within a constitutional democracy. In doing so, the Court helped catalyse the ongoing development of South Africa’s constitutional order.

Reference(S):

1. S v Makwanyane and Another (CCT 3/94) [1995] ZACC 3
2. Chaskalson, A “The New South African Constitution: A Transformative Approach” (1995) Constitutional Court Review 1(1) 1–20
3. Constitution of the Republic of South Africa, Act 200 of 1993 (Interim Constitution, in force at the time of judgment)
4. Criminal Procedure Act 51 of 1977
5. Rather, S R “The Future of the Death Penalty in South Africa: A Historical Perspective” (2002) Journal of South African Law 119(4) 590–600
6. Para 11, S v Makwanyane and Another
7. Southern African Legal Information Institute, saflii.org/za/cases/ZACC/1995/3