Authored By: Nompilo Ngcobo
Introduction
Heard in February 1995 and decided on 6 June 1995, S v Makwanyane and Others, was the first case to be heard by the newly established Constitutional Court of South Africa following the end of the apartheid era. The case presented the Court with its first monumental task: to determine whether the death penalty could find a place in a new democracy founded on human rights and constitutional supremacy. In a unanimous landmark judgment, the Court declared capital punishment unconstitutional, invalidating section 277(1)(a) of the Criminal Procedure Act 51 of 1977, which had provided for the use of the death penalty. This decision was more than a legal ruling, it was in fact a powerful statement that emphasized the values of the new South Africa and how it would be different from the past.
Facts of the case
The appellants, Themba Makwanyane and Mvuso Mchunu were part of a group that committed a brutal robbery, fatally shooting four people. They were convicted in the Witwatersrand Local Division on four counts of murder, one count of robbery, and one count of robbery with aggravating circumstances. [1] They were sentenced to death for the murders under section 277(1)(a) of the Criminal Procedure Act 51 of 1977. The appellants’ legal representation appealed their convictions and sentences to the Appellate Division, now formally known as the Supreme Court of Appeal. While the Appellate Division partially dismissed the appeals against the attempted murder and robbery sentences, it postponed the decision of the death sentences to allow the Constitutional Court to rule on whether the provisions authorizing the death penalty were consistent with section 241(8) of the Constitution and section 277(1)(a) of the Criminal Procedure Act 51 of 1977. [2] At the time, over 400 prisoners on death row were awaiting their outcome, however, the Court forbade the government from carrying out the death penalty until such issues were resolved. The trial concluded before the 1993 Constitution came into force. To date, no executions have taken place in South Africa.
Legal Issues Encountered
The core legal question was whether section 277(1)(a) of the Criminal Procedure Act 51 of 1977, which prescribed the death penalty as a competent sentence for murder, was consistent with the Interim Constitution. Specifically, the Court had to consider if capital punishment violated rights enshrined in Chapter 3 of the Constitution which stipulate:
Section 9: The right to life.
Section 10: The right to respect for and protection of human dignity.
Section 11(2): The right not to be subjected to cruel, inhuman, or degrading treatment or punishment. [3]
In relation to this, the Court was guided by section 35(1) of the Interim Constitution which required the Court to consider international law and required it to promote the values of an open and democratic society based on freedom and equality. Justice O’Regan shared a remark and urged the Court to “look forward not backward”[4], a principle that encouraged the other Judges to interpret the Constitution in a way that would heal a divided nation and build a just future, rather than being fixated by past practices. If these rights were found to be infringed, the state could attempt to justify the infringement under the limitations clause of section 33 of the Constitution. This then raised the question of law: “could the state prove that executing its citizens was a “reasonable and justifiable” limitation of their most fundamental rights in an open and democratic society?” The Court subsequently found that the State failed to prove that the death penalty was a sufficient form of punishment rather than long term imprisonment.
Arguments Presented
Appellants (Makwanyane and Mchunu): The arguments revealed a fascinating split. The appellants, represented by their attorney, argued that the death penalty was in conflict with sections 9 and 11(2) of the Constitution. Their case challenged the validity of capital punishment against the new constitution and contended that capital punishment, by nature, violates the rights enshrined in the Bill of Rights. Their core contention was that the state could not be permitted to take a life in the name of justice, especially when the Constitution did not explicitly provide for such punishment.
The respondent (The State): The State’s case was far from unified. Their arguments were presented by two legal entities:
- The Attorney General of Witwatersrand: who was representing the prosecuting authority concluded that the death penalty was a necessary and acceptable form of punishment for murder, arguing that hanging was not cruel, inhuman or degrading when viewed against the gravity of the offence. He leaned on the old principle of parliamentary sovereignty, asserting that Parliament, not Court, should decide the death penalty’s fate.
- The South African Government: in a pivotal counterpoint, the South African Government, represented by the eminent human rights lawyer George Bizo, took the opposite approach. The government accepted that the death penalty was indeed a cruel, inhuman and a degrading punishment, and concluded that it should be declared unconstitutional as it could not be justified under section 33 of the Interim Constitution.[5]
Court Reasoning and Analysis
The Constitutional Court, in a decision written by President Chaskalson with ten separate concurring judgments that added rich layers of reasoning, showed a condemnation of capital punishment.
Infringements of Rights: The Court found that capital punishment, by its very nature, annihilates the right to life and dignity. President Chaskalson reasoned that these two rights are the source of all other rights and to destroy them is to destroy the legal subject. [6]
Arbitrariness: The Court exposed the “lottery” of capital punishment. The imposition of the death penalty often hinged on arbitrary factor like the quality of legal representation, the prosecutor’s approach, or even the composition of the bench. The arbitrariness, combined with the irreversible nature of execution, was a key reason for finding it cruel, inhuman and inconsistent with the rule of laws requirement for consistency and fairness. [7]
Failure of Justification (Section 33): The Court then subjected the states jurisdictions to rigorous scrutiny:
- Deterrence: The Court found no clear and convincing evidence that the death penalty was a materially greater deterrent to murder than the alternative of long-term or life imprisonment. The state had failed to prove that this severe limitation of rights served a compelling societal purpose.
- Retribution: While acknowledging that punishment has a retributive element, the Court held that the punishing could not be awarded the same constitutional weight as the right to life and dignity. In a society built on reconciliation, as Justice Langa noted, vengeance could not be a legitimate justification for state killing. [8]
- Irreversibility and Error: The possibility of judicial error, a risk inherent in any legal system, weighed heavily against the punishment’s justification. The Court argued that an execution is final and irreversible. A mistake can never be undone. [9]
- Public Opinion: The Court acknowledged widespread public support for the death penalty. However, it firmly stated that its duty was to interpret and uphold the Constitution, not to follow popular sentiment. President Chaskalson held that to decide otherwise would be a “return to parliamentary sovereignty, and a retreat from the new legal order,” where the rights of an individual could be trumped by the majority’s will. [10]
Judgement
The Court declared section 277(1)(a) of the Criminal Procedure Act 51 of 1977 and all similar provisions in any other law sanctioning capital punishment to be inconsistent with the Constitution and therefore invalid. It ruled that no executions could be carried out in South Africa, and the matters of all those on death row were to be referred back to trial courts for resentencing. [11] The judgments asserted that the Constitutional Courts must act as independent guardians of the Constitution and its duty is to uphold constitutional rights even against popular opinion. It affirmed a new “culture of justification”, where every exercise of the state power must be rationally accounted for and measured against the supreme law.
Impact on Law and Society
Legal Impact: Makwanyane established a powerful precedent for robust constitutional review and the purposive, value-based interpretation of rights, particularly the foundational rights to dignity and life, continue to shape South African jurisprudence across all areas of law. The case set a high bar for justifying limitations on rights, a standard that remains influential.
Social Impact: The decision was a profound statement about the society South Africa was striving to become, one that values reconciliation and human life over retribution. It signaled to the world the commitment to human rights. While the public debate on the death penalty occasionally resurfaces, S v Makwanyane and Others remains an insurmountable legal barrier. Its reversal would require a constitutional amendment, a political near-impossibility given the values it has come to enshrine.
Conclusion
S vs Makwanyane and Others is more than a case; it is a cornerstone of South Africa’s constitutional democracy. It is a judgement of hope that decisively broke from the repressive past of the apartheid era. By declaring the death penalty unconstitutional, the Court affirmed that the new South Africa would be measured by its commitment to the most fundamental rights: the right to life and the right to human dignity. Its lasting impact is its authoritative assertion that in a constitutional state, even the most popular and seemingly self-evident exercises of state power must be rigorously justified against the supreme law, and where they cannot be, they must fall. The case established that the Constitutional Court not just as a legal arbiter but as a moral compass for the nation, dedicated to the proposition that the way a society punishes its worst offenders reveals its deepest commitment to the humanity of all its people.
REFERENCE(S):
Legislation
Constitution of the Republic of South Africa Act 20 of 1993, Chapter 3
Section 277(1)(a) of the Criminal Procedure Act 51 of 1977
Section 35(1) of the Interim Constitution of South Africa Act 20 of 1993
Section 241(8) of the Constitution of South Africa Act 20 of 1993
Cases
S vs Makwanyane and Others 1995 (3) SA 391 (CC); 1995 (6) BCLR 665 (CC); 1995 (2) SACR 1 (CC); [1995] ZACC 3
Secondary Sources
South African Legal Information Institute, “S vs Makwanyane And Others” [1995] ZACC 3’ (SAFLII) http://www.saflii.org.za/cases/ZACC/1995/3.html, accessed 22 March 2026
[1] S v Makwanyane and Others 1995 (3) SA 391 (CC) para 1
[2] Makwanyane para 3
[3] Constitution of the Republic of South Africa Act 20 of 1993, ss9, 10, 11(2)
[4] Makwanyane para 19
[5] Makwanyane para 8
[6] Makwanyane para 95
[7] Makwanyane para 54
[8] Makwanyane para 131 (Langa J)
[9] Makwanyane para 43
[10] Makwanyane para 88
[11] Makwanyane para 151 and order
