Authored By: Sello Mohlele
University of Fort Hare
Case Citation and Basic Information
S v Makwanyane and Another 1995 (3) SA 391 (CC); 1995 (6) BCLR 665 (CC).
Constitutional Court of South Africa
Heard: 15 to 17 February 1995
Delivered: 6 June 1995
Judgment by Justice Chaskalson. P
Introduction and Facts
The judgment in S v Makwanyane stands as one of the most important early decisions of South Africa’s Constitutional Court. Delivered in the fragile dawn of democracy, it abolished the death penalty and marked a deep moral shift away from the harsh punishments of the apartheid era. The case invites us to consider how law emerges from society’s moral convictions, yet can also stand apart from popular opinion.
In July 1993, T Makwanyane and M Mchunu took part in an armed robbery in Benoni during which four people were killed and one seriously injured. They were convicted of four counts of murder, attempted murder, and aggravated robbery. The trial court sentenced them to death. The Appellate Division confirmed the convictions but referred the question of the death penalty’s constitutionality to the Constitutional Court.
Legal Issues
The main issue was whether section 277(1)(a) of the Criminal Procedure Act 51 of 1977, which allowed the death penalty for murder, violated the Interim Constitution, especially section 9 (right to life) and section 11(2) (prohibition of cruel, inhuman or degrading punishment).
Arguments Presented
Arguments for the Accused
The defence argued that the death penalty violated the right to life and was cruel, inhuman and degrading. They stressed its finality, the danger of irreversible error, and its conflict with the new Constitution’s emphasis on human dignity.
Arguments by the State
The State defended the death penalty as a necessary tool of retribution and deterrence that reflected society’s legitimate outrage at the most serious crimes.
Court’s Reasoning and Analysis
President Chaskalson delivered a thorough judgment declaring the death penalty unconstitutional. The Court interpreted the rights to life and dignity in a generous and purposive manner. While recognising that many South Africans probably favoured capital punishment, the judges held that constitutional rights cannot be decided by public opinion. The Bill of Rights serves to protect citizens even from majority sentiment.
The Court carefully examined the retributive and deterrent justifications for the death penalty and found them insufficient. It highlighted the risk of error, the history of discriminatory application during apartheid, and the inherent degradation in state-sanctioned killing. The judgment presented abolition as part of South Africa’s broader commitment to break from its oppressive past and build a society founded on human dignity.
Judgment and Ratio Decidendi
The Constitutional Court unanimously ruled that the death penalty was unconstitutional. All death sentences were commuted to life imprisonment.
The ratio decidendi is clear: capital punishment violates the right to life and the prohibition against cruel, inhuman or degrading punishment under the Interim Constitution. This principle remains binding.
Critical Analysis
This decision reveals the complex relationship between law and society. Law is created by humans and rooted in their moral and historical experiences, yet it can also function as an independent force that challenges popular desires. In post-apartheid South Africa, the abolition of the death penalty reflected a deliberate rejection of the old regime’s punitive culture. However, the ruling was controversial. Many citizens opposed it, arguing that it left society more vulnerable to violent crime. Even today, periodic calls for its return continue.
The contrast with other nations is striking. The United States retains the death penalty in several states despite constitutional protections, showing ongoing societal division. Iran applies it under different moral and legal traditions. South Africa’s choice reflects its unique historical journey and commitment to dignity above retribution.
While the judgment is strong in its defence of human dignity, some critics suggest it may sometimes feel distant from the harsh realities faced by victims of violent crime. Still, Makwanyane remains a powerful example of law guiding society toward higher ethical standards.
Conclusion
S v Makwanyane abolished the death penalty and firmly established the constitutional value of human dignity in South Africa. It shows that law, though made by humans, can develop its own moral character and sometimes stand against immediate public pressure.
As the Italian philosopher Cesare Beccaria once wrote, “The death penalty is not a right, but rather a war of a whole nation against a citizen whose destruction it considers necessary.” This statement invites every reader, whether they support or oppose capital punishment, to pause and carefully reconsider the true nature of justice, punishment, and the kind of society we wish to become.
Bibliography
Beccaria C, On Crimes and Punishments (1764).
Constitution of the Republic of South Africa Act 200 of 1993.
Curlewis LG, ‘Can the death penalty still be considered a “Cruel, Inhuman or Degrading Punishment”?’ (2024) De Jure.
Furman v Georgia 408 US 238 (1972).
Gregg v Georgia 428 US 153 (1976).
S v Makwanyane and Another 1995 (3) SA 391 (CC); 1995 (6) BCLR 665 (CC)
[1] S v Makwanyane and Another 1995 (3) SA 391 (CC); 1995 (6) BCLR 665 (CC).
[2] Ibid.
[3] Ibid.
[4] Constitution of the Republic of South Africa Act 200 of 1993, ss 9 and 11(2).
[5] S v Makwanyane and Another 1995 (3) SA 391 (CC) paras 8-15.
[6] Ibid paras 16-20.
[7] Ibid paras 87-89.
[8] Ibid paras 90-100.
[9] Ibid para 151.
[10] LG Curlewis, ‘Can the death penalty still be considered a “Cruel, Inhuman or Degrading Punishment”?’ (2024) De Jure.
[11] Furman v Georgia 408 US 238 (1972); Gregg v Georgia 428 US 153 (1976).
[12] Cesare Beccaria, On Crimes and Punishments (1764).
