Authored By: Els Dikeledi
North West University
S v Makwanyane and Another 1995 (3) SA 391 (CC).
S v Makwanyane marked the Constitutional Court’s first major engagement with the Bill of Rights under the interim Constitution[1] The case required the Court to decide whether the death penalty, which was widely used during apartheid, could be justified in a democratic South Africa founded on human dignity and equality[2] At the heart of the matter was whether capital punishment was consistent with the rights to life in section 9,dignity in section 10, and freedom from cruel, inhuman or degrading punishment in section 11(2) of the interim Constitution[3]. In a unanimous judgement, the Court held that the death was unconstitutional and ordered its abolition[4]. More than just ending a form of punishment, Makwanyane set the moral and legal tone for the new constitutional order. The judgement emphasized that South Africa’s values shifted from retribution to restoration, and from violence to Ubuntu[5]. It introduced a generous and purposive method of interpreting fundamental rights that still guides the courts today[6]. The case was not only about the two individuals, but about the kind of society South Africa chose to become.
FACTS
The applicants, Makwanyane and Mchunu, were convicted in the Transvaal Provincial Division on charges of murder, attempted murder, and robbery[7]. The offences were committed during a robbery and were classified as aggravated, which under the law at the time attracted the mandatory death sentences[8]. Pursuant to section 277(1)(a) of the Criminal Procedure Act 51 of 1977, the trial court imposed the death penalty on both accused[9]. This provision made capital punishment compulsory for certain categories of murder, leaving the presiding officer with little discretion.[10] Following their conviction and sentencing, the applicants brought a direct appeal to the Constitutional Court[11]. Their central argument was that the death penalty was inconsistent with the interim Constitution, especially with the Bill of Fundamental Rights contained in Chapter 3[12]. They contended that capital punishment violated the right to life, the right to dignity, and the right not to be subjected to cruel, inhuman or degrading punishment[13]. The matter came before the Court in 1995, a pivotal year for South Africa. The country was in the process of dismantling apartheid and establishing a constitutional democracy based on human rights, reconciliation and ubuntu[14]. Against this background, the Court was required to determine whether a punishment associated with the previous legal order could be reconciled with the values of the new constitutional dispensation[15].
3.LEGAL ISSUES
The Constitutional Court was required to determine whether the death penalty could stand under the interim Constitution[16]. The applicants’ challenge raised four distinct but integrated constitutional questions that the Court had to address. The first issue was whether the imposition of capital punishment violated the right to life protected in section 9 of the interim Constitution[17]. The second issue concerned the right to dignity in section 10, and whether executing a person inherently denies that person’s inherent worth[18]. The third issue was whether the death penalty amounted to cruel, inhuman or degrading punishment as prohibited by section 11(2)[19]. This required the Court to consider not only the act of execution itself, but also the psychological effect on sentencing and the time spent on death row. Finally, if the death penalty did infringe one or more of these rights, the Court had to consider whether such infringement could nevertheless be justified under the limitation clause in section 33(1)[20]. Under this provision, the state bores the burden based on human dignity, equality, and freedom[21]. In essence, the Court had to decide whether the Constitution permitted the state to take life as punishment, or whether the new constitutional values demand its abolition[22].
DECISION/ HOLDING
The Constitutional Court delivered a unanimous judgement declaring that capital punishment was inconsistent with the interim Constitution[23]. The Court held that the death penalty violated three core rights in the Bill of Fundamental Rights which are (1) the right to life in section9, the right to dignity in section 10, and the right not to be subjected the cruel, inhuman or degrading treatment or punishment in section 1(2)[24]. In reaching this conclusion, the Court further determined that the infringement could not be justified under the limitation of clause contained in section 33(1)[25]. The state had failed to prove that capital punishment was a reasonable and justifiable limitation in an open and democratic society founded on human dignity, equality, and freedom[26]. As a result of this finding, the Court declared the relevant provisions of section 277(1)(a) of the Criminal Procedure Act 51 of 1977 to be invailed[27]. This meant that the statutory basis for imposing the death sentence was struck down. The Court also made a remedial order that all persons who had been sentenced to death, but whose sentence had not yet been carried out, were to have their sentences commuted to an appropriate lesser sentence[28]. This order ensured that the judgement had immediate practical effect and that no further executions would take place under the old law[29].
REASONING/ RATIO DECIDENDI
Chaskalson P delivered the main judgement[30]. The court held that life and dignity are the most important rights under the interim Constitution[31]. The death penalty was found to be inconsistent with these rights because it ends life permanently and denies the offender’s inherent worth[32]. The Court also held that the death penalty violated section 11(2)[33]. It is considered not only the execution, but the entire process from sentencing to the time spent on death row to be cruel, inhuman and degrading[34]. A central part of the reasoning was abuntu[35]. The court stated that South Africa’s new values were based on reconciliation and humanity, not revenge[36]. The Constitution required a move away from a culture of violence towards restorative justice[37]. On justification, the state argues that the death penalty was necessary for deterrence[38]. However, under section 33(1), the state had to prove the limitation was reasonable and necessary[39]. The Court found no evidence that capital punishment deterred crime more than life imprisonmnet[40]. Since a less restrictive alternative existed, the limitation could not be justified[41].
CRITICAL ANALYSIS
Makwanyane was a landmark decision that set the moral foundation for South Africa’s constitutional democracy[42]. Its greatest strength lies in its commitment to human dignity, ubuntu, and the rejection of retributive justice[43]. By abolishing the death penalty, the Court signaled a clear break from the apartheid past and affirmed life as the highest constitutional value[44]. However, critics argue the Court placed too much weight on moral philosophy and not enough on public opinion and crime rates at the time. The judgement also left unanswered questions about how to balance the victim’s rights with offender’s rights.
Despite this, Makwanyane remains significant. It shaped how courts interpret rights generously and purposively, and it positioned South Africa as a global leader in human rights jurisprudence[45]
SIGNIFICANCE
This case is significant because it was the first case to abolish the death penalty in South Africa[46]. The judgement also set out how courts must interpret the Bill of Rights, in generously and with purpose[47]. Furthermore, the Court introduced ubuntu as a core constitutional value[48]. Finally, the case gave practical meaning to the limitation clause by showing how rights may be limited[49]
CONCLUSION
Makwanyane was about more than punishment. It was about choosing what kind of country South Africa would be. The Court chose to uphold life, dignity, and humanity instead of revenge[50]. That choice still guides us today.
BIBLOGRAPHY
CASES
S v Makwanyane and Another 1995 (3) SA 391 (CC)
LEGISLATION
Constitution of Republic of South Africa Act 200 of 1993
Criminal Procedure Act 51 of 1997
[1] S v Makwanyane and Another 1995(3) SA 391 (CC) at para 1.
[2] Ibid at para 262.
[3] Constitution of the Republic of South Africa Act 200 of 1993, sec 9,10,11(2).
[4] Makwanyane supra note 1 at para 144.
[5] Ibid at para 225.
[6] Ibid at para 10.
[7] S v Makwanyane and Another 1995 (3) SA 391 (CC) para 2.
[8] Ibid at para 3.
[9] Criminal Procedure Act 51 of 1977, s 277(1)(a).
[10] Makwanyane supra note 1 at para 3.
[11] Ibid at para 4.
[12] Constitution of the Republic of South Africa 200 of 1993, chapter3.
[13]Ibid sec 9.10.11(2).
[14] Makwanyane supra note 1at para 262.
[15] Ibid at para 1.
[16] S v Makwanyane and Another 995 (3) SA 391 (CC) at para 5.
[17]Constitution of the Republic of South Africa Act 200 of 1993, sec 9.
[18]Ibid sec 10.
[19]Ibid sec 11(2).
[20] Ibid sec 33(1).
[21] Ibid sec 33(1).
[22] Makwanyane supra note 1 at para 6.
[23] S v Makwanyane and Another 1995 (3) SA 391 (CC) ar para 144.
[24] Ibid at para 143.
[25] Ibid at para 104.
[26] Constitution of the Republic of South Africa Act 200 of 1993, sec 33(1).
[27] Makwanyane supra note 1 at para 145.
[28] Ibid at para 146.
[29] Ibid at para 146.
[30] S v Makwanyane and Another 1995 (3) SA 391 (CC) at para 7.
[31] Ibid at para 144.
[32] Ibid at Para 144.
[33] Constitution of the Republic of South Africa Act 200 of 1993, sec 11 (2).
[34] Makwanyane supra note 1 at para 162.
[35] Ibid at para 225.
[36] Ibid at para 225.
[37] Ibid at para 263.
[38] Ibid at para 108.
[39] Constitution of the Republic of South Africa Act 200 of 1993, sec 33 (1).
[40] Makwanyane supra note 1 at para 124.
[41] Ibid at para 125.
[42]S v Makwanyane and Another 1995 (3) SA 391 (CC) at para 262.
[43] Ibid at para 225.
[44] Ibid at para 144.
[45] Ibid at para 10.
[46] S v Makwanyane and Another 1995 (3) SA 391 (CC) at para 145.
[47] Ibid at para 10.
[48] Ibid at para 225.
[49] Ibid at para 104.
[50] S v Makwanynane and Another 1995 (3) SA 391 (CC) at para 144.
