Authored By: Keamogetswe Phike
University of South Africa
Full Case Name: State v Themba Makwanyane and Mvuso Mchunu
Citations: 1995 (3) SA 391 (CC); 1995 (6) BCLR 665 (CC); [1995] ZACC 3
Court: Constitutional Court of South Africa
Date of Decision: 6 June 1995
Bench: Chaskalson P (author of the main judgment), Ackermann J, Didcott J, Kriegler J, Langa J, Madala J, Mahomed J, Mokgoro J, O’Regan J, Sachs J, and Kentridge AJ
S v Makwanyane stands at the cornerstone of South African constitutional jurisprudence. Decided shortly after the collapse of Apartheid and the inauguration of a constitutional democracy under the Constitution of the Republic of South Africa, Act 200 of 1993 (the interim Constitution), the case was the first major test for the newly established Constitutional Court.
During the Apartheid era, South Africa possessed one of the highest execution rates in the entire world, utilizing capital punishment routinely as an instrument of state violence and social control. While a moratorium on executions was declared in 1989, the legislative framework authorizing the death penalty, specifically Section 277(1)(a) of the Criminal Procedure Act 51 of 1977, remained intact on the statute books. The framers of the interim Constitution intentionally omitted explicit reference to the death penalty, leaving contentious legal debate to be resolved by the Constitutional Court through fundamental rights interpretation.
The accused, Themba Makwanyane and Mvuso Mchunu, were convicted in Witwatersrand Local Division of the Supreme Court on four counts of murder, one count of attempted murder and multiple counts of robbery with aggravating circumstances. The trial judge found no mitigating factors and following the mandatory statutory framework of the time, sentenced both men to death under Section 277(1)(a) of the Criminal Procedure Act.
The accused appealed their convictions and sentences to the Appellate Division (Now known as the Supreme Court of Appeal). While the Appellate dismissed the appeals against conviction, it recognized that the constitutionality of the death penalty fell exclusively within the jurisdiction of the newly created Constitutional Court. The Appellate Division accordingly postponed the proceedings regarding the death sentences and referred the constitutional question to the Constitutional Court under Section 102(1) of the Interim Constitution.
Issue
The primary legal challenge centred on whether Section 277(1)(a) of the Criminal Procedure Act was inconsistent with Chapter 36 (the bill of rights) of the Interim Constitution.
The core provisions evaluated were:
Section 11(2): Prohibition of Cruel, inhuman, or Degrading Treatment or Punishment – “No person shall be subject to torture of any kind, whether physical, mental or emotional, nor shall any person be subjected to cruel, inhuman or degrading treatment or punishment.”
Section 9: Right to Life – “Every person shall have the right to life.”
Section 10: Right to Human Dignity – “Every person shall have the right to respect and protection of his or her dignity.”
Section 33(1): The General Limitations Clause – Prescribed that the rights guaranteed in Chapter 3 could only be limited by law of general application, provided the limitation was reasonable, justifiable in an open and democratic society based on freedom and equality, and did no negate the essential content of the right.
Arguments Presented
Arguments by the Applicants (The Accused)
Cruel, inhuman and Degrading: Capital punishment constitutes intrinsically cruel, inhuman and degrading punishment due to the physical destruction of the human body, the mental agony experienced by death-row inmates (“death-row phenomenon”), and the total denial of human self-worth.
Infringement on Life and Dignity: The right to life and the right to dignity are absolute baseline right; destroying life extinguishes the individual as a bearer of all other constitutional rights.
Arbitrariness and inequality: The administration of the death penalty is inherently arbitrary and subject to systemic error, personal attitudes of trial judges, quality of legal representation, and socio-economic or racial biases. Once executed, a judicial error is irrevocable.
Arguments by the State
Deterrence: Capital punishment is a necessary tool to defer horrific crime and maintain public order in a society plagued by high violent crime rates.
Retribution and Public Expectation: Society demands retribution for egregious acts of violence. Now abolishing the death penalty would undermine public confidence in the judicial system and encourage vigilante justice.
Public opinion: The vast majority of South Africans favored the retention of the death penalty for severe crimes.
Justification under Section 33(1): Even if the death penalty infringed Section 9, 10 or 11(2), such limitations were reasonable and justifiable to protect society.
Summary of the judgment and Legal Reasoning
The Constitutional Court held unanimously that Section 277(1)(a) of the Criminal Procedure Act, and any corresponding statutory provisions authorizing capital punishment in South Africa, were unconstitutional and invalid.
President Arthur Chaskalson wrote the main, judgment, with all ten judges writing concurring judgments that reinforced and expanded upon specific constitutional, philosophical, and cultural facets of the ruling.
Section 11(2) of the Interim Constitution
Cruelty: it involves the deliberate destruction of the human life by the state and subjects the condemned individual to severe psychological trauma while awaiting execution.
Inhumanity: it strips the individual of their essential humanity, reducing them to an object to be eliminated.
Degradation: it destroys human dignity, which lies at the heart of the constitutional order.
Arbitrariness and Inequality in Enforcement
The court underscored that the process leading to a death sentence is fraught with elements of chance and potential arbitrariness:
Outcome frequently depended on factors unrelated to the moral culpability of the offender, such as police investigation quality, prosecutorial discretion, the competence of legal defence, and the personal stance of the individual trial judge regarding capital punishment.
This inherent arbitrariness breached the constitutional commitment to equality before the law and non-discrimination.
While Chaskalson P focused heavily on section 11(2), the Court established that the right to life (Section 9) and human dignity (Section 10) are the most foundation of all other constitutional rights.
Human dignity and life are entwined: without life, no other right can be exercised; and without dignity, life is reduced to nothing but a concept of mere existence devoid of meaning or morals.
By executing an individual the state forfeits its narrative of responsibility to protect human dignity and proclaims that some certain human beings are beyond redemption.
Ubuntu
Several justices most prominently Langa J, Mokgoro J, Madala J, and Sachs J—incorporated the indigenous African value of Ubuntu (humaneness, personhood, and community) into their judgments.
Though Ubuntu was referenced in the post-amble of the Interim Constitution, the Court elevated it into a constitutional interpretive tool.
Mokgoro J defined Ubuntu as encapsulating values of human dignity, respect, compassion, and harmony.
The Court held that state-sanctioned execution directly contradicted the spirit of Ubuntu, which Favors restorative justice, reconciliation, and the preservation of human life over cold retribution.
A crucial aspect of the judgment addressed the State’s argument that the public supported capital punishment. Chaskalson P articulated the classic definition of the court’s counter-majoritarian mandate:
“The question before us is not what the majority of South Africans believe… The very reason for establishing a Constitutional Court, and for vesting in it the power of judicial review, is to protect the rights of minorities and social outcasts who cannot protect their rights adequately through the democratic process.”
The Court affirmed that constitutional rights cannot be subjected to public referendums or majoritarian sentiment; otherwise, the protection of vulnerable and unpopular individuals would be rendered meaningless.
Legal impact
The judgement in S v Makwanyane established a pivotal legal precedent that continue to shape the Constitutional interpretation in South Africa and across the international legal community:
During the Judgement the Constitutional Court abolished the death penalty which resulted to re-sentencing of hundreds of death-row inmates to prison terms.
It was established in the Bill of Rights that it must be interpreted generously and purposively to give its core values, rather than through rigid formalists statutory reading.
It demonstrated the use of international law and foreign jurisprudence under the Section 35 of the Interim Constitution, while keeping the true interpretation firmly grounded in South Africa’s unique socio-historical landscape.
Set a precedent for blending customary African values with constitutional norms, enriching African jurisprudence.
Firmly placed the Constitutional Court as an independent safeguard against majoritarian overreach, defining the doctrine of constitutional supremacy in post-Apartheid South Africa.
In conclusion S v makwanyane was no ordinary case rather it defined a moment in South Africa’s transition from parliamentary sovereignty marked by institutionalized oppression to a constitutional democracy governed by the rule of law and human rights. By striking down capital punishment, the Constitutional Court established that the state’s power over the individual is strictly bounded by human dignity, equality and the foundational right to life. The decision made it clear that the state cannot demand respect for human life while simultaneously reserving the right to destroy it.
Beyond its immediate impact on criminal justice, the judgment set the interpretive benchmark for South African constitutional law. It solidified the Constitutional Court’s counter-majoritarian duty to protect fundamental rights regardless of political pressure or public sentiment, while pioneered the integration of indigenous values like ubuntu into constitutional reasoning. Ultimately, S v Makwanyane transformed South Africa’s legal culture from one rooted in state authority and retribution to one defined by accountability, compassion, and a commitment to human dignity. And so, the death penalty was abolished.
