Authored By: Genevieve Kaimana
University of South Africa
In S v Makwanyane, two accused, T Makwanyane and M Mchunu, were convicted of robbery, unlawful possession of firearms, four counts of murder and one count of attempted murder. They were sentenced to death.1 They appealed against their convictions and sentences from the Witwatersrand Local Division of the Supreme Court. The case reached the Constitutional Court, which held that the death penalty violated the right to life (section 9), the right to dignity (section 10) and the right not to be subjected to cruel, inhuman or degrading punishment (section 11(2)) of the Interim Constitution, and that the violation could not be justified under the limitation clause (section 33).2 The death penalty was consequently abolished. The significance of the case extends well beyond these two accused, because it confirmed the importance of constitutional supremacy and of human rights in the new South African legal order.
Facts
In the Witwatersrand Local Division, the accused pleaded not guilty but were convicted on all counts because of the severity of their conduct. They were sentenced to death under the Criminal Procedure Act 51 of 1977, which was later challenged in the Constitutional Court. They also received terms of imprisonment for the robbery and the unlawful possession of firearms.
The accused appealed to the Appellate Division. That court dismissed their appeals against conviction but did not decide the appeals against their death sentences. The Interim Constitution of 1993 had come into effect on 27 April 1994 and gave the Constitutional Court the power to decide cases in which the validity of a law was challenged. The appeals against sentence were therefore postponed until the Constitutional Court had considered the constitutional question. The accused referred the death penalty to the Constitutional Court and challenged the validity of the law itself, rather than the crimes they had committed.
The murders committed during the robbery were the most serious matters before the court, and the crimes were well known at the time. The accused argued that the death penalty was inconsistent with the Interim Constitution, and the Court therefore had to decide whether the death penalty was valid under that Constitution.
Legal Issues
- Did the death penalty violate rights in the Interim Constitution?
- If it did, could it be justified under the limitation clause?
- If it was unconstitutional, what effect would this have on existing law and on persons already sentenced to death?
Arguments of the Parties
The Accused (Makwanyane and Mchunu)
The accused argued that the death penalty violated the right to life and the right to dignity in sections 9 and 10 of the Interim Constitution.
They also argued that the death penalty formed part of the “cruel, inhuman or degrading punishment” prohibited by section 11(2). It showed the effect that the death penalty has on a person and the extent to which it goes. It treated them as less than human and was contrary to the value of ubuntu.
They further argued that the way in which the death penalty had been applied and administered was unfair to the people affected by it. The Constitution exists to protect people against violations of their rights and against the State. The death penalty took away the protection that the Interim Constitution was meant to guarantee.
The State (Attorney-General)
The State argued that the death penalty was a necessary deterrent for serious crimes such as murder, because it would create fear in those contemplating such offences. It also argued that the death penalty served as justice for the victims of crime. When the law was introduced, society had decided that the worst crimes should receive the severest punishment.
The State further argued that Parliament could still legislate for the death penalty because the Constitution did not expressly prohibit it. It stressed that most South Africans wanted harsh punishments for murder, and that this reflected the voice of society.
The Court’s Reasoning and Analysis
The Court held that the death penalty violated sections 9 and 11(2), which protect the most foundational rights. Execution treats human beings as objects, which is unfair, and it makes the punishment cruel and inhuman. The Court described the right to life as the “most important of all human rights”.3 Without life, none of the other rights can be enjoyed.
The Court held that the violation could not be justified under section 33. The State had not shown that the death penalty was a more effective deterrent than imprisonment. If the death penalty could be justified at all, it would have to be consistent with a constitutional order founded on ubuntu and reconciliation.
The more important a right is, the harder it becomes to justify limiting it. The rights to life and dignity are close to absolute in this respect. The Court also had regard to international law. To succeed under section 33, a limitation has to be “reasonable and justifiable in an open and democratic society based on freedom and equality”.4
Section 277(1)(a) of the Criminal Procedure Act was declared invalid. The death sentences already imposed could not stand and had to be replaced by competent alternative sentences, which in practice meant imprisonment.
Ratio Decidendi
The Court held that the death penalty was inconsistent with the Interim Constitution and therefore invalid. It violated the right to life in section 9, the right to dignity in section 10 and the right not to be subjected to cruel, inhuman or degrading punishment in section 11(2). These violations could under no circumstances be justified under the limitation clause in section 33.
As a result, section 277(1)(a) of the Criminal Procedure Act was declared invalid, and every person who had been sentenced to death had to be resentenced. The Court replaced the death penalty with a sentence of imprisonment. Its discussion of ubuntu, international law and deterrence informed its reasoning, but the binding rule is clear: capital punishment is unconstitutional in South Africa.
Critical Analysis
This was one of the first and most important judgments of the Constitutional Court. It emphasises the importance of the Bill of Rights, and its influence goes well beyond the abolition of the death penalty.
The accused were sentenced to death for murder and appealed to challenge the law itself. The Constitutional Court therefore examined the law and its effect on human beings in light of the Bill of Rights in the Interim Constitution. Since the abolition of the death penalty, the most serious offences, such as murder, are punished with life imprisonment.
The Court’s decision was sound. It ensured that the law conformed to the Constitution, which is extremely important. The judgment also alerts people facing similar charges in future to the seriousness of their offences and the punishments that apply. The State’s attempt to justify taking a life as punishment was unpersuasive, and to place society’s opinion above the written Constitution would have been wrong.
Conclusion
This judgment reshaped the way the Constitution is understood and the manner in which it has to be applied. S v Makwanyane laid the foundation for how human rights should be protected and used to their full potential. It shows that the Constitution values life and dignity far beyond retribution: the State may not take a life as punishment. The case is taught to law students in South Africa as a foundation of the development of the Constitution of the Republic of South Africa, 1996. It illustrates the Constitution’s importance for the country and for its people, and it shows that the Constitution can be used as a tool against violations of human rights.
Notes
1 S v Makwanyane and Another (CCT 3/94) [1995] ZACC 3; 1995 (6) BCLR 665 (CC).
2 Constitution of the Republic of South Africa Act 200 of 1993 (Interim Constitution), ss 9, 10, 11(2) and 33.
3 S v Makwanyane (n 1).
4 S v Makwanyane (n 1).
Reference(S):
Case law
S v Makwanyane and Another (CCT 3/94) [1995] ZACC 3; 1995 (6) BCLR 665 (CC), delivered on 6 June 1995.
Legislation
Constitution of the Republic of South Africa Act 200 of 1993 (Interim Constitution).
Criminal Procedure Act 51 of 1977.
