Authored By: Abongile Bushu
University of Johannesburg
- Introduction
Just one year after the nation’s first democratic elections, South Africa’s newly formed Constitutional Court rendered its basic ruling in S v Makwanyane.[1] As the Court’s first use of its constitutional review authority under the Interim Constitution of 1993, the case marks a turning point in South African jurisprudence.[2] The case’s central question was whether the death penalty, which had been applied thousands of times during the apartheid era, was constitutional.[3]In addition to establishing a significant human rights precedent, the majority ruling that ruled the death penalty unconstitutional also outlined the interpretive approach that would direct the Court’s subsequent actions.[4] The Court indicated that South Africa’s new constitutional system will be both globally engaged and grounded in indigenous values by referencing comparative jurisprudence, international human rights legislation, and the African ideology of Ubuntu.[5] The case is still regarded as a landmark in international death sentence jurisprudence and one of the most often cited rulings in South African constitutional law.[6] The Court recognized that there were more than 300 people on death row who were waiting for this problem to be handled, so it was imperative that it be done without further delay.[7]
- Facts of the case
The Witwatersrand Local Division of the Supreme Court found T Makwanyane and M Mchunu guilty on four charges of murder, one crime of attempted murder, and one count of robbery with aggravating circumstances.[8] For each murder count, they received a death sentence; for the other offenses, they received lengthy jail sentences.[9] The defendants challenged their convictions and penalties in an appeal to the Supreme Court’s Appellate Division.[10] The Appellate Division determined that the accused should be given the harshest punishment allowed by law due to the circumstances surrounding the murders, dismissing the appeals against the convictions.[11] However, in order to give the Constitutional Court time to address the constitutional concerns, the Appellate Division postponed hearing the appeals against the death sentences.[12] The issue of whether the death penalty was constitutional had not come up during the trial because it had ended before the 1993 Constitution went into effect.[13] The Criminal Procedure Act 51 of 1977 stipulated that the death penalty was a suitable punishment for murder under Section 277(1)(a).[14] The Appellate Division invited the accused’s attorney to consider whether this clause was in line with the Republic of South Africa Constitution, 1993, which had taken effect after the conviction and sentence.[15] He argued that it was not, contending that it violated the Constitution’s rights in sections 9 and 11(2).[16] Whether section 277(1)(a) of the Criminal Procedure Act was consistent with the provisions of sections 9 and 11(2) of the Constitution was the main question addressed before the Constitutional Court.[17] The Appellate Division’s ruling implied that these matters were referred to the Court under section 102(6) of the Constitution, even though the parties treated it as such.[18] The Constitutional Court asked attorneys to assess the relevance of any additional evidence that had not yet been presented to the Court.[19]Aside from the question of public opinion, the Court decided the case based on the facts and arguments put out since counsel was unable to provide specific evidence that had not yet been brought to the Court.[20]
- Legal issues
The following legal issues were put to the Constitutional Court to decide:
The first issue was whether section 277(1)(a) of the Criminal Procedure Act, which established the death penalty as a suitable punishment for murder, conflict with the South Africa’s Constitution.[21] Second issue determined by the court was whether the Court should consider the consequences of section 241(8) of the Constitution, which upheld the legality of laws that existed before to the Constitution’s enactment.[22] The last issue was whether the death penalty violated the right to life protected by Section 9 of the Constitution and Section 11(2) of the Constitution which established the right to be free from cruel, inhuman, or humiliating treatment or punishment.[23]
4.Arguments presented:
4.1 Appellant’s Arguments
W Trengove SC, the accused’s counsel, argued that section 277(1)(a) of the Criminal Procedure Act was unlawful for the following reasons: First, section 9 of the Interim Constitution’s unalienable right to life was violated by the death penalty.[24] Since the right to life is stated in absolute terms, it cannot be restricted in any way that would allow the State to execute people.[25] Second, according to clause 11(2) of the Constitution, the death sentence was harsh, inhuman, or humiliating punishment.[26] Counsel contended that the death sentence could not be reconciled with the constitutional ban on cruel, inhuman, or humiliating punishment since, by its very character and finality, it required the State’s intentional infliction of death.[27]
Third, the accused claimed that the punishment could not be corrected in the event of an error and that its application was inherently arbitrary.[28] Fourth, counsel argued that the Constitution should be interpreted in light of changing international human rights standards and highlighted the global trend toward the abolition of the death sentence.[29]
4.2 Respondent’s Arguments
On behalf of the respondent, the Witwatersrand Attorney-General contended that the death penalty was still a constitutionally acceptable punishment for the following reasons: First, the death penalty was not expressly prohibited by the Constitution.[30] The Attorney General argued that the founders of the Constitution could have explicitly outlawed the practice if they had wanted to.[31] Second, the death penalty fulfilled justifiable penological goals including retaliation and deterrence.[32] The Attorney General said that the penalty was required to safeguard society and demonstrate the seriousness of the murderous offense.[33] The Attorney General contended that the death penalty was justified under section 33 because it had retributive and deterrent effects, even if it did violate some rights.[34] Third, the State referred to section 241(8) of the constitution, which upheld the legality of current legislation.[35] Before the Constitution, section 277(1)(a) was lawful, and it remained so until it was ruled to be unconstitutional.[36] Fourth, the Attorney General claimed that the public’s support for the death sentence should be taken into consideration by the Court.[37]
- Court’s Reasoning and Analysis
The Constitutional Court conducted a thorough and detailed review of the constitutional concerns in a unanimous ruling delivered by Chaskalson P.[38]
5.1 Interpretive Approach
When interpreting the Constitution, the Court adopted a liberal and purposive approach. [39]The Court stated, citing the Canadian decision of R v Big M Drug Mart Ltd, with approval, that the aim of a right or freedom provided by the Constitution should be analysed in light of the interests it was intended to safeguard in order to determine its meaning.[40]In order to achieve the goal of the guarantee and ensure that people fully benefit from the protection provided by the Constitution, the interpretation should be liberal rather than legalistic.[41]
5.2 The Right to Life and the Right to Dignity
The Court held that the right to life guaranteed by section 9 of the Constitution was the most significant human right and the cornerstone of all other rights.[42] The Court further ruled that the death sentence infringed with the Constitution’s section 10 right to dignity.[43] The constitutional commitment to human dignity was violated by the intentional, planned, and state-approved death of a human being.[44] The Court based its interpretive strategy on comparative jurisprudence and international human rights legislation.[45]
5.3 Cruel, inhuman or Degrading Punishment
In accordance with the Court, the death sentence is cruel, inhuman, and degrading punishment as defined by section 11(2) of the Constitution.[46] Section 11(2) should not be interpreted in a vacuum; rather, it should be interpreted in the context of other articles of the Constitution, the background and history of its enactment, and, most importantly, the provisions of chapter 3.[47] The Court dismissed the claim that because the death punishment was applied humanely, it was not harsh.[48] The execution itself, the State’s intentional murder of a human life was the fundamental harshness of the death sentence, not the way it was carried out.[49] The Court emphasized that the death sentence could only be applied arbitrarily and that its execution is irreversible, destroys life, and eradicates human dignity.[50]
5.4 The Role of Public Opinion
The Court considered the argument that the general people favoured keeping the death sentence in place.[51] The Court decided that public opinion could not be decisive, even if it acknowledged that it was a factor to be considered.[52] The purpose of the Constitution is to safeguard the rights of individuals and minorities from the oppressive power of the majority.[53] The Court declared that if it permitted public opinion to supersede the fundamental rights guaranteed by the Constitution, it would be failing in its constitutional obligation.[54]
5.5 The Principle of Ubuntu
The Court recognized the African ideology of Ubuntu as a constitutional value in a noteworthy and novel part of the judgement.[55] Ubuntu, which emphasizes humaneness, personhood, morality, and the interconnectedness of all people, was found to be incompatible with the death penalty by the Court.[56] The State’s intentional killing of a human being was incompatible with the principles of Ubuntu that underpinned the new constitutional order.[57] The focus should be on preventing crime rather than executing criminals for retribution in order to be congruent with the indigenous values of Ubuntu.[58]
- Judgement and Ratio Decidendi
The Decision:
Section 277(1)(a) of the Criminal Procedure Act was declared unconstitutional and unlawful by the Constitutional Court in a unanimous decision.[59]The Court ruled that the death sentence violated sections 9, 10, and 11(2) of the Republic of South Africa’s 1993 Constitution. The death sentences were overturned and substituted with prison terms after the appeal against them was granted.[60] The Court’s decision of invalidity became operative right away. The Court further decided that all punishments imposed after the Constitution went into force were subject to the ban on cruel, inhuman, or degrading punishment.[61]
Ratio Decidendi:
The case’s ratio decidendi is that the death penalty, as stipulated by section 277(1)(a) of the Criminal Procedure Act, is unconstitutional because it infringes upon the following rights: (1) the unalienable right to life guaranteed by section 9 of the Constitution; (2) the right to dignity guaranteed by section 10; and (3) the right to be free from cruel, inhuman, or degrading punishment under section 11(2) of the Constitution.[62]The Court determined that the death sentence was incompatible with the constitutional ideals of human dignity, equality, freedom, and Ubuntu and could not be justified as a legitimate restriction on these fundamental rights.[63]
- Critical Analysis
7.1 Significance of the decision
In South African constitutional law, S v Makwanyane marks a turning point.[64]As the first ruling of the recently formed Constitutional Court, it created the framework for the protection of fundamental rights under the new constitutional order and set the tone for the Court’s interpretive technique.[65] The ruling upheld that the Constitution is the ultimate law and that other laws, including those pertaining to criminal justice, must abide by its provisions. The ruling is also noteworthy since it explicitly addresses comparative jurisprudence and international human rights legislation. The South African Constitutional Court’s jurisprudence has been characterized by a globally engaged approach to constitutional interpretation, which was developed by the Court’s readiness to consult foreign and international sources.[66] The Court’s reference to Ubuntu as a constitutional principle is equally important.[67] This demonstrated that the new constitutional system would draw from South Africa’s own legal and cultural traditions rather than merely copying Western models. It was a ground-breaking attempt to establish constitutional law in indigenous African thought.[68]
7.2 Implications and Impact
Over 300 people on death row who had been awaiting execution for crimes committed during the apartheid era had their death sentences commuted as a direct result of the ruling.[69] The ruling aligned South African legislation with the increasing global opposition to the death penalty.[70] The case has had long-term effects on the criminal justice system in South Africa. Alternative sentencing regimes, such as life in prison without the possibility of parole, had to be developed in order to abolish the death sentence. The ruling also had an impact on later constitutional law, especially when it came to situations involving the application of the limitation clause and the interpretation of fundamental rights.[71]
7.3 Critical Evaluation
Strengths of the judgement:
The ruling is noteworthy for its intellectual consistency and methodological rigour.The Court established a solid basis for the defence of fundamental rights by adopting a broad and intentional interpretive approach, based on the Canadian experience in R v Big M Drug Mart Ltd.[72] One particularly significant and creative section of the ruling was the reference to Ubuntu as a constitutional value. The Court made sure that the death penalty’s abolition was in line with South Africa’s own legal and cultural traditions rather than just importing Western human rights standards by basing the ruling on indigenous African thought.[73]
Weaknesses and Criticisms:
The Court’s handling of public opinion is one possible critique of the ruling. Although the Court was right to say that constitutional rights shouldn’t be subject to majoritarian, some may have felt that the ruling didn’t give enough consideration to the opinions of victims’ families and communities impacted by violent crime. An additional criticism concerns the Court’s consideration of deterrence. This Although the Court found that deterrence was insufficient to support the death penalty, there is ongoing debate on the empirical data supporting the death penalty’s deterrent effect. Given the uncertainty surrounding the use of life imprisonment at the time, the Court’s reliance on its availability as an alternative sentence may be viewed as somewhat speculative.[74]
- Conclusion
The historic ruling in S v Makwanyane significantly altered South African criminal justice and constitutional law. The Court upheld the fundamental principles of the new constitutional order, the right to life, the right to dignity, and the ban on harsh, inhuman, or degrading punishment by ruling that the death sentence was unconstitutional. The ruling’s main lesson is that constitutional rights, especially those stated in unqualified words, cannot be restricted in a way that would undermine their fundamental meaning.¹¹³. A model of constitutional adjudication that has impacted courts worldwide was developed by the Court’s emphasis that the Constitution shields people from the tyranny of the majority and its readiness to incorporate both indigenous African thought and international human rights legislation.
Reference(S):
[1] S v Makwanyane and Another (CCT3/94) [1995] ZACC 3; 1995 (3) SA 391 (CC); 1995 (6) BCLR 665 (CC); 1995 (2) SACR 1 (CC) para 1.
[2] S v Makwanyane (n 1) para 2. The Court noted that this was the first time it was called upon to exercise its power to review legislation for constitutional compliance.
[3] S v Makwanyane (n 1) para 3. The Court acknowledged the historical context of capital punishment in South Africa, where executions were carried out regularly under the apartheid regime.
[4] S v Makwanyane (n 1) para 4. The judgment was unanimous, with all eleven judges concurring in the result.
[5] S v Makwanyane (n 1) para 308, where the Court explicitly invoked ubuntu as a constitutional value.
[6] Klug H, ‘Striking Down Death: S v Makwanyane and Another CCT/3/94, 1995 (3) SA 391 (CC); 1995 (6) BCLR 665 (CC)’ (1995) 11(2) South African Journal on Human Rights 267, noting the judgment’s influence on comparative constitutional jurisprudence.
[7] S v Makwanyane (n 1) para 3. The Court noted that over 300 prisoners were on death row at the time, and that the matter required urgent resolution.
[8] S v Makwanyane (n 1) para 1.
[9] Ibid para 1.
[10]Ibid para 1. The accused exercised their right of appeal to the Appellate Division of the Supreme Court.
[11] Ibid para 2. The Appellate Division confirmed the convictions and found that the circumstances warranted the maximum sentence.
[12] Ibid para 2. The Appellate Division postponed the hearing of the death sentence appeals pending constitutional review.
[13] Ibid para 3. The trial predated the coming into force of the Interim Constitution.
[14] Criminal Procedure Act 51 of 1977, s 277(1)(a). This section prescribed that the death penalty was a competent sentence for murder.
[15] S v Makwanyane (n 1) para 3.
[16] Ibid para 3. Sections 9 and 11(2) of the Constitution were the central provisions at issue.
[17] Ibid para 3.
[18] Ibid para 3.
[19] Ibid para 3.
[20]Ibid para 3.
[21] Ibid para 4.
[22] Constitution of the Republic of South Africa Act 200 of 1993.
[23] Ibid s9 and s11.
[24]S v Makwanyane (n 1) para 5
[25] Ibid para 6.
[26]Ibid para 7.
[27] Ibid para 7.
[28] Ibid para 8.
[29] Ibid para 9.
[30] Ibid para 10
[31] Ibid para 11.
[32] Ibid para 12.
[33] Ibid para 13
[34] Ibid para 13
[35] Ibid para 15
[36] Ibid para 15
[37] Ibid para 16.
[38] S v Makwanyane (n 1) para 17.
[39] Ibid para 18.
[40] R v Big M Drug Mart Ltd (1985) 18 DLR (4th) 321 (SCC).
[41] S v Makwanyane (n 1) para 18.
[42] Ibid para 19
[43] Ibid para 20
[44]Ibid para 21
[45] Ibid para 22
[46]Ibid para 23.
[47] Ibid para 24.
[48] Ibid para 25.
[49] Ibid para 26.
[50] Ibid para 27.
[51] Ibid para 28
[52]Ibid para 29.
[53] Ibid para 30.
[54] Ibid para 31.
[55] Ibid para 308.
[56] Ibid para 309.
[57] Ibid para 310.
[58] Ibid para 311.
[59] S v Makwanyane (n 1) para 39.
[60] Ibid para 40.
[61] Ibid para 41.
[62] S v Makwanyane (n 1) para 44.
[63] Ibid para 45.
[64] Klug (n 6) 268.
[65] Ibid 269.
[66] Klug (n 6) 270.
[67] S v Makwanyane (n 1) para 308
[68] Klug (n 6) 272.
[69]S v Makwanyane (n 1) para 3.
[70] Klug (n 6) 273.
[71] Klug (n 6) 275.
[72] R v Big M Drug Mart Ltd (n 50).
[73] Klug (n 6) 272.
[74]Klug (n 6) 279.
