Authored By: Andile Mbili
University of KwaZulu-Natal
INTRODUCTION
S v Makwanyane is a seminal judgment of the Constitutional Court of South Africa in which the Court was required to determine whether the death penalty was consistent with the Interim Constitution of 1993. Beyond its immediate outcome, the decision is significant for the interpretive methodology it adopted, one that is based on values that revolve around human dignity, equality and life.
FACTS AND BACKGROUND INFORMATION
This case followed the accused, Makwanyane and Mchunu who were convicted in the Witwatersrand Local Division on four counts of murder, one count of attempted murder, and one count of robbery with aggravated circumstances. They were given the death sentence with respect to the murder convictions. They tried to appeal with no success, the Appellate Division dismissed appeals against their conviction for the crimes of attempted murder and robbery on the basis that the circumstances of their conviction warranted the most severe sentences allowed by law.[1]
Following the argument of constitutional invalidity of the death sentence by the counsel for the accused, and passing of the interim constitution, the appellate division postponed the hearing of these appeals against the sentence and referred the question of constitutionality validity of the death sentence to the constitutional court.[2]
ISSUE BEFORE THE COURT
The main issue was whether section 277(1)(a) of the criminal procedure act 51 of 1977, which allowed murder to be punishable by death sentence, was in line with the 1993 constitution and whether the death penalty is a justifiable punishment for murder under section 33.
RELEVANT STATUTORY AND CONSTITUTIONAL PROVISIONS
Some of the provisions that were discussed in this judgement include section 9 of the constitution- which gives the right to life; section 10- right to human dignity; section12- right not to be subjected to cruel, inhumane or degrading punishment; section 36 -the limitation clause; section 35 which speaks on the interpretation of fundamental rights[3]; and section 277(1)(a) of the criminal procedure act 51 of 1977- the death penalty for murder.
ARGUMENTS BY THE PARTIES
Applicants/accused
The applicants contended that the death penalty constituted cruel, inhuman and degrading punishment and was fundamentally incompatible with the right to human dignity and the unqualified protection of the right to life. Particular emphasis was placed on the irreversible nature of capital punishment and the risk of executing an innocent person. It was further argued that the death penalty undermined the foundational values of the Constitution and could not be justified under the limitation clause.[4]
State/ respondent
In response, The Attorney General said that in many jurisdictions, the death sentence was still an acceptable form of punishment. He argued that it was also accepted in South African society, deterred violent crime, and satisfied society’s desire for justice for especially outrageous offenses. He further argued that the death penalty where the execution thereof was conducted in a painless manner did not qualify as cruel, inhuman, or humiliating punishment under section 11(2) of the Constitution.
DECISION BY THE COURT
The constitutional court unanimously held that section 227(1)(a) of the criminal procedure act was invalid. The death penalty was thus declared inconsistent with the interim constitution and subsequently abolished.
THE COURT’S REASONING
Interpretation of the constitution by the court
The court first looked at the approach it should take when interpreting the constitutional rights in question and came to a decision that the best approach is the value -based one, this meant moving away from the formal and literal interpretation of the law which was characterized by South Africa’s apartheid era, to one which was centered around the core constitutional values such as the right to human dignity, equality and freedom. It relied on S v Zuma which promoted a generous and purposive interpretation of constitutional rights[5], and the case of Minister of home affairs v Fisher, where it was held that constitutional rights should be interpreted so as to give individuals the “ full measure” of their protection[6], Chaskalson P emphasized that the rights in chapter 3 must be interpreted in their historical context and in a manner that promotes the values of an open and democratic society based on freedom and equality.
Right to human dignity – section 10
Human dignity was described as a foundational value of constitutional order. The court held that dignity is inherent in every human being and is not lost through criminal conduct. O Regan J stressed that even the offenders guilty of heinous crimes remain bearers of dignity and must be treated as such by the state.[7] Mokgoro J linked dignity to the African value of ubuntu, which stresses humaneness, compassion and respect for others. She rejected retribution as being incompatible with dignity in that “punishment must be consistent with the constitutional value of respect for human dignity, even where the crime provokes outrage.”[8]The death penalty was found to undermine dignity by treating offenders as objects to be eliminated rather than human beings capable of moral choice and rehabilitation.[9]
Right to life – section 9
The State argued that the death penalty did not violate the right to life because the Interim Constitution did not expressly abolish capital punishment and because the right to life could be limited in the interests of deterrence, retribution, and public safety. It contended that execution was a lawful deprivation of life following due process. The Constitutional Court rejected this reasoning, holding that section 9 protects life as a foundational and substantive value that cannot be reconciled with deliberate state killing. Chaskalson P emphasised that the right to life is inseparable from human dignity and that “the rights to life and dignity are the most important of all human rights”[10], concluding that capital punishment extinguishes life in a manner fundamentally inconsistent with the Constitution’s commitment t. The Court further held that the State had failed in showing that the death penalty served any proven moral or legal purpose sufficient to justify such an extreme limitation. The conclusion of the court was also supported by judges in the concurring judgement: Mahomed DP described the right to life as “the most fundamental of all human rights” without which all others are meaningless[11], O’Regan J stressed that the deliberate taking of life by the State requires the most compelling justification, which was absent; Sachs J framed the right to life as a moral and constitutional choice to break from a history of state violence; and Mokgoro J located the protection of life within ubuntu, which rejected the punishment that negates the value of human life. Together, the Court and the concurring judges held that the death penalty represents a direct and unjustifiable violation of the right to life.
Cruel, inhumane or degrading punishment – section 11(2)
In relation to the question of whether the death penalty was a cruel, inhumane and degrading punishment in terms of section 11(2), the State had argued the contrary on the basis that if carried out humanely and without unnecessary physical pain, it was a proportionate response to the most serious crimes and reflected society’s moral outrage. The Constitutional Court rejected this narrow focus on physical suffering, holding that section 11(2) prohibits punishment that violates human dignity in both its physical and psychological aspects.[12] According to Chaskalson P, the death penalty is fundamentally cruel since it intentionally ends a person’s life and causes them to suffer from severe mental trauma while they wait to be executed, a phenomenon known as the “death row.” Regardless of how gently the execution is carried out, the Court ruled that this imparted fear, loneliness, and uncertainty amount to a type of suffering that is inconsistent with respect for human dignity. In concurring judgments, O’Regan J emphasised that punishment which denies an offender the possibility of moral growth and rehabilitation is degrading. Sachs J added that capital punishment is cruel not only to the offender but also to society, as it brutalises the legal system and legitimises violence by the state. Mokgoro J, drawing on ubuntu, concluded that punishment rooted in vengeance rather than humaneness and compassion is inconsistent with the constitutional prohibition on cruel, inhuman and degrading punishment.
Limitation clause – section 36
the Constitutional Court held that the death penalty unjustifiably limited fundamental rights specifically the right to life, human dignity, and the prohibition against cruel, inhuman or degrading punishment and cannot be saved under the limitation clause in Section 36 of the Interim Constitution. The Court applied a purposive two‑stage limitation analysis, requiring that any limitation of rights be reasonable, justifiable, and proportionate in an open and democratic society.[13] While the court accepted that combating of violent crimes is a legitimate government objective, the State failed to show conclusively that capital punishment materially deterred crime more effectively than life imprisonment, and the irrevocable extinction of life was disproportionate to any asserted benefit. Since less restrictive means were available (life imprisonment), the limitation of the right to life and dignity that came with imposing this punishment could not be justified under section 36.
Public opinion
The Attorney‑General argued that the death penalty should be upheld partly because it reflected societal demand for retribution and deterrence; he claimed that, in the context of high crime, “society demands” capital punishment and that this warranted constitutional acceptance of the sentence.[14] This appeal was dismissed by the majority ruling, which stated that the Court’s job was to interpret and execute the Constitution without giving in to popular opinion. It also pointed out that judicial review of fundamental rights would not be necessary if decisions were based on popularity within the public.[15] It was further emphasised that the Constitution protects minorities against shifting majoritarian views and that constitutional adjudication cannot ‘abdicate’ this duty to suit the public opinion. The collective reasoning demonstrated that even if public opinion were assumed to favour the death penalty, it could not justify a severe infringement of constitutional rights under Section 36, and the Court must base its decision on legal principles rather than popular demand.
Ratio decidendi
The core legal takeaway from this case is that the death penalty violated the right to life, human dignity, and constitutes cruel, inhumane, and degrading punishment. These infringements cannot be justified under the limitation clause, section 36, even with the aim of deterring crime. As a result, thereof, legislation authorizing the capital punishment/ death penalty was declared and is unconstitutional.
CONCLUSION
The Constitutional Court did more than abolish the death penalty it enshrined the principle that human life and dignity cannot be sacrificed to public opinion, vengeance, or deterrence claims. By declaring capital punishment unconstitutional, the Court affirmed that punishment must be humane, rehabilitative, and restorative, reflecting both constitutional values and the African philosophy of ubuntu. The judgment reinforced that fundamental rights are inviolable, setting a benchmark for proportionality, moral integrity, and societal ethics in criminal justice. Its effects =extend beyond South Africa, making it legendary in human rights jurisprudence, a powerful statement that the law exists not only to punish, but to uphold the core values of an open, democratic society.
Reference(S):
[1] S v Makwanyane and Another 1995 (3) SA 391 (CC); para [1]
[2] S v Makwanyane and Another 1995 (3) SA 391 (CC); paras [2-3]
[3] The constitution of the Republic of South Africa, 1993 s9, 10, 12, 33 and 35.
[4] S v Makwanyane and Another (CCT3/94) [199] ZACC3; par 27
[5] S v Makwanyane and Another (CCT3/94) [199] ZACC3; par 9
[6] Makwanyane (n1); par 10
[7] Ibid, par 329
[8] Ibid, par 312
[9] Ibid, par 331
[10] Ibid
[11] Ibid, paras 262( Mohamed DP)
[12] Ibid, par 95
[13] Ibid, par 103
[14] Ibid, par 112
[15] Ibid, par 187
