S v Makwanyane and Another

Case Title and Citation 

Full Name: State v Makwanyane and Another.1 

Official Citation: S v Makwanyane and Another (CCT3/94) [1995] ZACC 3; 1995 (6) BCLR  665; 1995 (3) SA 391; [1996] 2 CHRLD 164; 1995 (2) SACR 1 (6 June 1995).2 

Court Name and Bench 

Court Name: The Constitutional Court of South Africa (CC).3 

Bench (Judges): President Chaskalson P, and Justices Ackermmann J, Didcott J, Kriegler J,  Langa J, Madala J, Mahomed J, Mokgoro J, O’Regan J, Sachs J, and Kentridge AJ.4 

Bench Type: A full bench of the Constitutional Court.5 

Date of Judgement 

Judgement delivered on: 6 June 1995.6 

Parties Involved 

Appellant: T Makwanyane and M Mchunu (were the accused persons sentenced to death and  convicted to counts of murder).7 

Respondent: The State of South Africa (defended the application of the death penalty in terms  of the law).8 

Facts of the Case 

This case comprised of 2 individuals (the appellants) who had been convicted on numerous  counts of murder thus being sentenced to death under Suth African law.9 However, they had  challenged their sentence based on certain constitutional grounds.10 The main facts included  that their trial was occurring prior the 1993 Constitution coming into effect which resulted in  the case being referred to the Constitutional Court in order to determine whether the death  penalty was still valid and constitutional with regards to the new Constitution’s Bill of Rights.11 This included the fundamental rights such as the right to life, human dignity and the prohibition  of cruel, inhuman and degrading punishment.12 Furthermore, the court had to consider whether  the death penalty in terms of the new Constitution and section 277(1)(a) of the Criminal  Procedure Act 51 of 197713 was consistent with regards to those fundamental rights.14 

Issue 

This included whether the enforcement of the death penalty in terms of section 277(1)(a) of the  Criminal Procedure Act15 violate the rights which are guaranteed in the Constitution,  particularly:  

-Section 9 of the Constitution- The right to life.16 

-Section 10 of the Constitution- The right to human dignity.17 

-Section 11(2) of the Constitution- The prohibition on cruel, inhuman or degrading treatment  or punishment.18 

Taking that into account, will such an infringement be justifiable in terms of the limitations  clause of the Constitution?19 

Arguments of the parties 

Key Contentions by the Appellant: 

They had argued that the death penalty which was enforced under section 277(1)(a) of the  Criminal Procedure Act20 violated their rights in terms of the Constitution.21 Furthermore, they  argued that the death sentence infringed on the right to life (section 9)22 because it terminates  life indefinitely.23 They also contended that the death penalty demolishes and treats a person as  if they are less than a human being which results in violating the right to human dignity (section  10)24 as well as constituting cruel, inhuman and degrading treatment or punishment (section  11(2)).25 

Furthermore, they had raised that the death penalty is irreversible and that there can be misuse  of justice that cannot be remedied once executions happens and that application of such a  sentence is arbitrary and selective thus undermining fairness.26 They also argued that the death  penalty limits specific rights and such a limitation will not be able to be justified in terms of  the limitations clause due to the State not indicating that the death sentence was a reasonable,  proportionate and necessary limitation in a democratic and open society.27 

Key Contentions by the Respondent: 

The Attorney-General had argued on behalf of the State that the death penalty is a legitimate  sentencing option in many jurisdictions under the law and framers of the Constitution could  have prohibited it if they had wanted too.28 They argued that the death penalty removes the  offender from society permanently and punishes proportionate to the crime thus serving a vital  purpose.29 Furthermore, they claimed that the constitutional provisions does not expressly  mention the death penalty, hence, the constitutionality will still be open to interpretation and  any limitations of rights under the Constitution.30 

Judgement  

The Court had unanimously declared that the death penalty was unconstitutional with the  Constitution and thus invalid.31 The appeal of the State was dismissed resulting in the law  allowing the death penalty to be struck down as well as it not being applied.32 This also resulted  in the death sentences on the appellants not being able to be lawfully carried out.33 The court  had ordered the resentencing of the appellants whilst complying with the Constitution.  Furthermore, this was provided that the death penalty infringed on the right to life and dignity  and the judgement acknowledged that the application of the death penalty was arbitrary and, in  the case, where an innocent person was executed was deemed to be unacceptable.34 Hence, this  ruling invalidated section 277(1)(a) of the Criminal Procedure Act35 which caused the abolition  of capital punishment in the country.36 The court had also found that there was no supporting  evidence that the death penalty was a more effective deterrent than life imprisonment.37 

Ratio Decidendi 

The court had established the necessary reasoning that the right to life and dignity are  fundamental and the death penalty undermined dignity and extinguished life.38 The court also  provided that the death penalty prohibits the possibility of exercising any other rights and not  only destroying life.39 It was held that the prohibition of cruel, inhuman and degrading punishment needs to be purposively interpreted with regards to the context of the constitutional  order and that the nature of the death penalty is regarded to be cruel, human and degrading.40 

The burden of proof was placed on the State in order to prove whether the limitations of rights  in terms of the death penalty was justifiable, proportionate and reasonable.41 The court had  found that there was no empirical evidence that the death sentence has a deterrent effect greater  than life imprisonment.42 That retribution as a ground of justification is weak in a constitutional  democracy in terms of ubuntu and human dignity.43 The irreversibility of the death penalty  means that any error will not be able to be remedied and given arbitrariness and uncertainty,  the penalty will not be able to surpass the necessity and proportionality test.44 The court had  also reaffirmed that the courts have a role of being independent interpreters of the Constitution  and law and not implementers of public opinion.45 Whilst many people might prefer the death  penalty it will not be able to override the constitutional rights which are at stake.46 

Conclusion 

This case was vital in South African constitutional law as it abolished the death penalty in the  country.47 It also affirmed the supremacy of the Constitution as well as the Bill of Rights in the  new constitutional order.48 Furthermore, it set stronger legislation with regards to the  interpretation of the rights to dignity and life and the necessary protection from cruel  punishment.49 It also provided a distinct transformation from an apartheid legal system to a  rights-based democracy rooting values of ubuntu and human dignity in country’s  jurisprudence.50 

Therefore, it can be noted that references to international law and the constitutional values of  ubuntu signifies how a country undergoing democratic transition may need innovative  measures in terms of interpreting rights.51 There is a challenge providing that courts and  lawmakers must effectively transform these constitutional values into fair and practical  approaches with regards to criminal justice and sentencing.52 Furthermore, this case reaffirms that punishments which have been rooted in a long-standing legal tradition needs to still meet  the relevant constitutional protections and provisions.53 It also provides that such a penalty will  not be able to override the fundamental rights which have been established in the  Constitution.54 

Bibliography 

Legislation 

Constitution on the Republic of South Africa, 1996. Criminal Procedure Act 51 of 1977 (S.Afr.). 

Case law 

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

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

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

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

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

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

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

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

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

9 S v Makwanyane and Another 1995 (3) SA 391 (CC) [1]. 

10 S v Makwanyane and Another 1995 (3) SA 391 (CC) [1]. 

11 S v Makwanyane and Another 1995 (3) SA 391 (CC) [2]. 

12 S v Makwanyane and Another 1995 (3) SA 391 (CC) [2]. 

13 Criminal Procedure Act 51 of 1977 § 277(1)(a) (S.Afr.). 

14 S v Makwanyane and Another 1995 (3) SA 391 (CC) [2]. 

15 Criminal Procedure Act 51 of 1977 § 277(1)(a) (S.Afr.). 

16 Constitution on the Republic of South Africa, 1996, § 11.

17 S. Afr. Const., 1996, § 10. 

18 S. Afr. Const., 1996, § 11(2). 

19 S v Makwanyane and Another 1995 (3) SA 391 (CC) [5]. 

20 Criminal Procedure Act 51 of 1977 § 277(1)(a) (S.Afr.). 

21 S v Makwanyane and Another 1995 (3) SA 391 (CC) [27]. 

22 S. Afr. Const., 1996, § 9. 

23 S v Makwanyane and Another 1995 (3) SA 391 (CC) [27]. 

24 S. Afr. Const., 1996, § 10. 

25 S. Afr. Const., 1996, § 11(2). 

26 S v Makwanyane and Another 1995 (3) SA 391 (CC) [27]. 

27 S v Makwanyane and Another 1995 (3) SA 391 (CC) [27].

28 S v Makwanyane and Another 1995 (3) SA 391 (CC) [27]. 

29 S v Makwanyane and Another 1995 (3) SA 391 (CC) [27]. 

30 S v Makwanyane and Another 1995 (3) SA 391 (CC) [27]. 

31 S v Makwanyane and Another 1995 (3) SA 391 (CC) [317]. 

32 S v Makwanyane and Another 1995 (3) SA 391 (CC) [317]. 

33 S v Makwanyane and Another 1995 (3) SA 391 (CC) [317]. 

34 S v Makwanyane and Another 1995 (3) SA 391 (CC) [317]. 

35 Criminal Procedure Act 51 of 1977 § 277(1)(a) (S.Afr.). 

36 S v Makwanyane and Another 1995 (3) SA 391 (CC) [381]. 

37 S v Makwanyane and Another 1995 (3) SA 391 (CC) [317]. 

38 S v Makwanyane and Another 1995 (3) SA 391 (CC) [317]. 

39 S v Makwanyane and Another 1995 (3) SA 391 (CC) [317].

40 S v Makwanyane and Another 1995 (3) SA 391 (CC) [317]. 

41 S v Makwanyane and Another 1995 (3) SA 391 (CC) [323]. 

42 S v Makwanyane and Another 1995 (3) SA 391 (CC) [317]. 

43 S v Makwanyane and Another 1995 (3) SA 391 (CC) [321]. 

44 S v Makwanyane and Another 1995 (3) SA 391 (CC) [317]. 

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

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

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

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

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

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

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

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

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

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