Authored By: Boitumelo Makhubu
University of Fort Hare
South Africa has a big problem with violent crime, things like serial killers, repeat rapists, and many cases of women being murdered. Some people believe that life in prison is not enough to stop or punish these extreme crimes. They argue that the death penalty, for executing the worst criminals, should be brought back, but only for the “most serious cases.”[1] This idea faces big challenges, because South Africa’s Constitution and past court cases like S v Makwanyane banned the death penalty. Bringing it back would need changes to the law, careful rules to make sure it is fair, and strong public support. [2]There are also important arguments against it, like the risk of killing innocent people, so any discussion must be done very carefully.
Introduction
In South Africa, crime is remarkably high. We often hear about serial killers who target innocent people, rapists who attack more than once, and the growing number of women who are murdered. Because of this, many people feel that the justice system is not doing enough to protect them. This has led to new calls for very harsh punishments — including bringing back the death penalty for the most extreme crimes.[3]
This article looks at whether South Africa could bring back the death penalty in a way that still follows the law and international rules. In 1995, the Constitutional Court decided in the case of S v Makwanyane that the death penalty was not allowed because it went against human rights.[4] But today, with rising crime and failures in policing, some people argue that the issue should be reconsidered. If the death penalty were ever to return, it would need clear changes to the Constitution, strict rules to ensure fairness, and careful law-making based on evidence.[5]
Research Methodology
This is a doctrinal and policy analysis that relies on primary legal sources (the Constitutional Court’s S v Makwanyane judgment and subsequent jurisprudence), South African crime statistics and reporting, articles, and international human-rights instruments relevant to capital punishment. It combines legal reasoning with policy evaluation of deterrence, incapacitation, and retributive aims drawn from academic and governmental reporting. Key legal materials and crime statistics were obtained from Constitutional Court records, the South African Police Service (SAPS) publications, and reputable legal repositories.
Main body
Legal Framework
Constitutional Position and S v Makwanyane
The starting point in any discussion about the death penalty in South Africa is the landmark case of S v Makwanyane and Another, decided by the Constitutional Court. In this case, the Court ruled that capital punishment was inconsistent with the Interim Constitution, and later the Final Constitution, and therefore invalid. The judges explained that the death penalty directly violated some of the most important rights in South Africa’s Bill of Rights — the right to life, the right to dignity, and the right not to be subjected to cruel, inhuman, or degrading treatment or punishment. [6]
The Court stressed that, even though violent crime was a severe problem, the Constitution required respect for human rights more than anything else. This decision made it clear that the death penalty had no place in South African law. Importantly, Makwanyane remains a powerful authority today.[7]
If the government ever wanted to bring back the death penalty, it would not be enough to simply pass a new law; it would require either a constitutional amendment that directly allows capital punishment or a completely new interpretation of the Constitution. Given the strong reasoning of the Court in 1995, a constitutional amendment is the more likely path.[8]
Statutory Position
Since the decision in Makwanyane, no South African statute or piece of legislation allows the death penalty. All existing laws on punishment, including the Criminal Procedure Act and sentencing provisions, stop short of authorising execution. This means that, under the current legal framework, the maximum penalty available for the most serious crimes is life imprisonment.[9]
If the state were to consider bringing back capital punishment, it would need to take deliberate legal steps. The first step would be to amend the Constitution, which currently prohibits such punishment through the values and rights it protects. Once the Constitution has been amended, Parliament would then have to pass legislation that sets out clearly how, when, and for which crimes the death penalty may be applied.[10]
Some have argued that the courts could reinterpret the Constitution differently, but this is much less convincing, as the reasoning in Makwanyane was firmly based on human rights. Therefore, a direct constitutional amendment is the only realistic and democratically sound option.
International Law Considerations
South Africa’s legal position on the death penalty is not only shaped by its Constitution and statutes, but also by its obligations under international law. South Africa is a party to a number of international human-rights agreements that encourage or even require the abolition of capital punishment.
One of the most important of these is the Second Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR), which is specifically aimed at abolishing the death penalty worldwide. Moreover, South Africa has positioned itself on the global stage as part of the growing international trend toward abolition. Today, most countries in the world have either abolished the death penalty completely or do not use it in practice.[11]
While international law does not absolutely forbid a country from reintroducing capital punishment if its Constitution and democratic processes allow it, doing so would place South Africa in conflict with its current commitments. Reintroduction would also invite criticism and pressure from the international community, including human-rights organisations and foreign governments, who may view the move as a step backwards. This shows that the decision to reinstate the death penalty would not only be a national legal issue but also an international political one, with significant consequences for South Africa’s reputation and global relationships.
Judicial Interpretation — The Core Obstacles
The Constitutional Court’s judgment in S v Makwanyane was based on deeper principles rather than simple legal technicalities. The judges stressed that the death penalty undermined human dignity, carried the risk of wrongful convictions, and could be applied unequally in society. They reasoned that while the State has a duty to ensure justice and protect citizens from crime, it cannot do so by violating the very rights the Constitution seeks to uphold — especially the right to life. [12]
Three key constitutional obstacles emerged from this reasoning. First, the rights to life and dignity are central to the Bill of Rights, and the Court found that capital punishment directly violates them, meaning any attempt at reintroduction would require a clear constitutional amendment. Second, the Constitution forbids punishments that are cruel, inhuman, or degrading, and the Court concluded that the death penalty fits within this category; therefore, any new law would face immediate scrutiny for violating this prohibition. Third, the Court raised serious concerns about equality and fairness, pointing out that the death penalty could easily be applied in an arbitrary or discriminatory way, with poorer or more vulnerable groups more likely to face execution. [13]
If South Africa were to reconsider the death penalty, lawmakers would need to design strict safeguards to address these issues — but even then, they would be going against the sturdy foundation laid down by the Court in 1995.
Empirical and Normative Analysis (Why Some Argue for Reinstatement)
South Africa’s persistently high levels of violent crime, including murder, rape, and gender-based violence, continue to dominate both public debate and national anxiety. Regular reports from the South African Police Service, alongside intense media coverage of brutal crimes and notorious cases such as serial killings or high-profile prison escapes, have created a widespread perception that the criminal justice system is failing to protect communities.[14]
Many people believe that life sentences are not enough to deter or permanently neutralise the most dangerous offenders, which fuels growing calls for the reinstatement of capital punishment. Supporters of this view argue that the death penalty serves three central purposes: deterrence, incapacitation, and retribution. On deterrence, they claim that the possibility of execution may discourage would-be perpetrators of extreme crimes, although international evidence is mixed — some studies find little deterrent effect, while others suggest at least a marginal one.[15]
Advocates argue that, in South Africa’s particular context of social inequality and weak enforcement, even a marginal deterrent could matter. On incapacitation, execution ensures that offenders who pose an ongoing risk — whether through escape, corruption in prison, or continued influence over criminal networks — are permanently removed from society’s reach.[16]
Finally, there is the retributive argument, rooted in justice and morality: for many victims’ families and communities, capital punishment represents a proportionate response to crimes of extraordinary cruelty, such as repeated rapes, serial murders, or femicides. This sense of moral balance often underpins political and social support for its return.
Added to these considerations are deep frustrations with the weaknesses of South Africa’s sentencing and correctional systems: corruption within prisons, administrative backlogs, and incidents such as the Thabo Bester escape have intensified public doubt that life imprisonment reliably protects society. Taken together, these realities form the backbone of the argument advanced by those who believe the death penalty should be reinstated.[17]
Critical Counterarguments
Any serious attempt to bring back the death penalty in South Africa would face significant and well-established counterarguments. The most pressing concern is the risk of wrongful convictions: no justice system is perfect, and the irreversible nature of execution means that even a single injustice would result in a permanent and tragic loss of innocent life. This danger was central to the Constitutional Court’s reasoning in S v Makwanyane. [18]
Equally troubling is the risk of disproportionate or discriminatory application. In many countries that retain capital punishment, it has been shown to fall most heavily on the poor, the marginalized, and minority communities. Given South Africa’s deep socio-economic inequalities, critics fear the same unfair patterns could emerge here, undermining equality before the law. [19]
Beyond domestic concerns, reintroduction would also carry international and reputational costs, as South Africa is currently aligned with a global movement toward abolition and has cultivated a human-rights-based constitutional identity. Reinstating the death penalty could strain diplomatic relations and weaken the country’s credibility in international forums.
Finally, there is the issue of deterrence: while proponents claim that executions prevent crime, the global evidence remains inconclusive. Many abolitionist countries experience declining homicide rates, while some retentionist states continue to face high murder levels, suggesting no clear causal link between executions and safety.[20]
Taken together, these arguments remain powerful and would form the heart of legal, political, and academic opposition. Any effort to revive the death penalty would need to address these objections directly through robust procedural safeguards and clear justification — yet even then, doubts about fairness, efficacy, and morality would remain.
How Reintroduction Could Be Lawfully and Responsibly Pursued
If South Africa were ever to consider reintroducing the death penalty, it could only do so through a fully democratic and constitutional process, given the strong precedent set by S v Makwanyane. The first and most crucial step would be to amend the Constitution through the proper procedures, which include obtaining the required parliamentary majorities and, if necessary, the approval of provincial legislatures.
Any amendment would need to be extremely specific, allowing the death penalty only for a small category of extremely serious crimes, such as multiple, premeditated murders or murder committed during repeated rapes, and must include strict rules on how cases are prosecuted and reviewed.
Once the Constitution is amended, Parliament would need to pass narrowly drafted laws that clearly define qualifying offences to prevent arbitrary or unfair application. These laws should also require multiple levels of judicial review — from trial courts to automatic appeals in the highest court, and even possibilities for international review — to ensure fairness.
Additional safeguards would include mandatory legal representation, procedures for reviewing new evidence, and clemency mechanisms. Courts would need the power to stop executions if legal mistakes or systemic discrimination are identified. To reduce the risk of wrongful convictions, reforms in forensic investigations, police training, and anti-corruption measures would also be essential.
Finally, any process should involve public participation, including transparent consultation, parliamentary debate, and potentially a national referendum, to establish democratic legitimacy. Even with these measures in place, the state would still need to follow human-rights recommendations, such as maintaining transparency, collecting data, and upholding fair trial standards, to ensure that justice is administered responsibly and safely.[21]
Suggestions / Way Forward
If South Africa were to seriously consider reintroducing the death penalty, several careful steps would be necessary to ensure fairness and prevent mistakes. First, a national commission should be established, including legal experts, human-rights advocates, victims’ representatives, and criminologists, to study whether it is feasible and what safeguards would be needed.
At the same time, the criminal-justice system must be strengthened: policing, prosecutions, forensic science, and prison management all need to be improved so that only the guilty are convicted and innocent people are protected.
Any use of capital punishment should be extremely limited, applied only to a tiny category of cases, such as serial murders where multiple convictions have been proven beyond reasonable doubt and aggravating factors are clear. Independent clemency and review panels should be set up to examine new evidence or fairness concerns before any execution takes place.
Finally, lawmakers could consider adding sunset clauses or pilot periods to the legislation, so that the effects of the death penalty can be evaluated after a fixed period, such as ten years, to ensure it is achieving its intended goals without causing unjust harm.
Conclusion
The question of whether South Africa should reinstate the death penalty is serious and complex. High levels of violent crime, including serial murder and repeated rape, understandably drive calls for harsher punishment. However, any reintroduction must consider the Constitutional Court’s ruling in S v Makwanyane, the risk of executing innocent people, and South Africa’s international human-rights obligations. If society chooses, through democratic and constitutional processes, to allow capital punishment, it must be applied only to the most serious crimes, with strong legal protections, independent oversight, and reforms to prevent wrongful convictions and unfair treatment. Without these safeguards, reinstating the death penalty would be legally risky and morally questionable. The debate must remain evidence-based, honest, and focused on protecting victims while ensuring justice is fairly applied.
Bibliography
1 https://www.gov.za/sites/default/files/gcis_document/201409/violent-nature-crime0.pdf
2 S v Makwanyane and Another 1995 (3) SA 391 (CC)
3 Bahati, Anthony, The Death Penalty Debate (Tanzania Law Reform Commission, 2005) https://www.justice.gov.za/alraesa/conferences/2005uganda/ent_s4_bahati.pdf (accessed 24/09/2025).
4 https://probono.org.za/is-the-return-of-the-death-penalty-a-viable-sentencing-option-in-south-africas-constitutional-dispensation/ (accessed 24 September 2025).
5 Ministry of Justice and Correctional Services (RSA), Media Statement: Death Penalty (4 September 2019) <insert full URL> (accessed 24 September 2025
7 https://www.saps.gov.za/newsroom/msspeechdetail.php?nid=41652
9 United Nations, Second Optional Protocol to the International Covenant on Civil and Political Rights, Aiming at the Abolition of the Death Penalty, UNGA Res 44/128 (15 December 1989)
10 South African Police Service (SAPS), Police recorded crime statistics 2023/2024 (Q4 report and annual reports). South African Police Service
11 PB-M-Admin, Is the Return of the Death Penalty a Viable Sentencing Option in South Africa’s Constitutional Dispensation? (ProBono.org, 24 October 2019)
12 Muntingh, Lukas and Petersen, Kristen, Punished for Being Poor: Evidence and Arguments for the Decriminalisation and Declassification of Petty Offences (2015)
14 Constitution of the Republic of South Africa, 1996
[1] Centre for the Study of Violence and Reconciliation, The Violent Nature of Crime in South Africa: A Concept Paper for the Justice, Crime Prevention and Security Cluster (25 June 2007).
[2] S v Makwanyane and Another 1995 (3) SA 391 (CC)
[3] https://www.saps.gov.za/newsroom/msspeechdetail.php?nid=41652
[4] Ibid
[5] Hon Justice Anthony Bahati, The Death Penalty Debate (Tanzania Law Reform Commission, 2005)
[6] S v Makwanyane and Another 1995 (3) SA 391 (CC)
[7] Ibid
[8] PB-M-Admin, Is the Return of the Death Penalty a Viable Sentencing Option in South Africa’s Constitutional Dispensation? (ProBono.org, 24 October 2019)
[9] Ibid
[10] Ministry of Justice and Correctional Services (RSA), Media Statement: Death Penalty (4 September 2019) <insert full URL> (accessed 24 September 2025
[11] United Nations, Second Optional Protocol to the International Covenant on Civil and Political Rights, Aiming at the Abolition of the Death Penalty, UNGA Res 44/128 (15 December 1989)
[12] Ibid
[13] Constitution of the Republic of South Africa, 1996
[14] South African Police Service (SAPS), Police recorded crime statistics 2023/2024 (Q4 report and annual reports). South African Police Service
[15] PB-M-Admin, Is the Return of the Death Penalty a Viable Sentencing Option in South Africa’s Constitutional Dispensation? (ProBono.org, 24 October 2019)
[16] Muntingh, Lukas and Petersen, Kristen, Punished for Being Poor: Evidence and Arguments for the Decriminalisation and Declassification of Petty Offences (2015)
[17] https://www.gov.za/news/media-statements/correctional-services-allegations-thabo-bester-regarding-conditions
[18] Ibid
[19] https://www.ohchr.org/sites/default/files/Lists/MeetingsNY/Attachments/52/Moving-Away-from-the-Death-Penalty.pdf
[20] United Nations, Second Optional Protocol to the International Covenant on Civil and Political Rights, Aiming at the Abolition of the Death Penalty, UNGA Res 44/128 (15 December 1989)
[21] Constitution of the Republic of South Africa, 1996
