Authored By: Zinhle Shayi
University of South Africa
Abstract
The article’s core issue is the moral and legal permissibility of taking a human life, specifically in the context of the death penalty. The main argument is that death penalty is an irrevocable violation of the fundamental human right to life.i No authority including the state can justly override it even in response to a serious crime. The conclusion is an absolute rejection of the death penalty. Because the right to life is inviolable and executions are, irreversible the state or individuals must never have the power to end a person’s life as a form of punishment, thereby advocating for the abolition of death penalty.
Introduction
It is against the norms to take another person life as they have rights to such. There rights are protected and should be treated in a manner as govern by the constitution or statute. Even if the person has done wrong to the public policy their punishment to be treat with facts or principle as per what the constitution says, never be treated in inhumanii position. The fact that an individual has committed a crime, even one considered immoral by community standards, does not justify the death penalty. As they have right to life according to section 11 of the South Africa constitution 1996, the constitution is the supreme law of our country no law can override it. In the case of S v Makwanyane the constitution dealt away with death penalty declared it as unconstitutionaliii. This case is a doctrine that continues to shape the nation’s identity and with it guide public policy be it the state or the society as they are conscious about rights-based understanding of justice that protects the humanity of all, even those who have committed the most grievous wrongs. The Court held that the death penalty, as a limitation on the right to life, could not be justified under Section 36 of the Constitution.
Research Methodology
This article employs a doctrinal research methodology, focusing on a critical analysis of legal sources to establish, explain and clarify the legal principles arising from the abolition of the death penalty.
Information Gathering
The analysis is based on the case S v Makwanyane and Another 1995 (3) SA 391 (CC). The following rights under the South African Constitution are relevant to the research or article: the right to human dignity (Section 10), the right to life (Section 11), the right to be free from cruel, inhuman, or degrading treatment or punishment (Section 12(1)(e)) and the general limitation of rights (Section 36).
Methodological Approach
The approach is unequivocally doctrinal and analytical. The legal article dedicate legal doctrine established by the court. It traces the Court’s reasoning step-by-step, from the acknowledgment of the right to life, through the application of the limitation clause, to the ultimate finding of unconstitutionality. In this article will not merely describe the judgment but will critically analyze the Court’s reasoning with regard to the weighing of the right to life and human dignity against public policy. The interpretation of Section 36 of the constitution limitation clause and why the death penalty is abolish and the creation of a horizontal application of the Bill of Rightsiv influencing how society itself understands justice. The case is the irrevocable doctrinal principle established and reaffirming its central role in South Africa’s constitutional democracy.
Legal Framework: The Inviolability of Life in South African Law
The principle of the inviolability of life is a foundational doctrine of South Africa’s constitutional democracy. Inviolability of Life Act is a landmark the supreme law of the land and supported by the constitution as per public policy. This framework establishes that the right to life and dignity is the foundation of all other rights and the burden is on the state to justify any limitation.
Constitutional Provisions, Statutes and Common Law
The 1996 Constitution is the supreme source of this principle. The relevant sections in Chapter 2, the Bill of Rights create a protection for life and human dignity.
Section 10: Human Dignity
“Everyone has inherent dignity and the right to have their dignity respected and protected.”
This right is a foundation value of the entire Constitution. In the case of S v Makwanyane Constitutional Court dealt with the right to life and human dignity, stating that the death penalty strips a person of their dignity and is therefore inherently cruel and inhuman. With all said every person regardless of their actions, possesses inherent worth ought to be respected and protected.
Section 11: Life
“Everyone has the right to life.”
This right deals away with the inviolability of life. The importance of the right to life as mentioned previous that the constitutionality of the death penalty dealt in S v Makwanyane. The right to life and dignity these two are required above all others. “Chaskalson P cited a decision of the Hungarian Constitutional Court which stresses the absolute nature of rights to life and dignity.”v With the historically of South Africa past affected by apartheid regime had negative impact to the value of life and human dignity as a results there is a link in Ubuntu “ I Am Because We Are” which is an African philosophy. The right to life is unqualified and the right to life vests in everyone, regardless of their actions meaning crimes or criminals are entitled and protected by the constitution their rights are bot forfeited with this regard. Death penalty contracted with the right to life as it violated its standard base on S v Makwanyane and it remains an unconstitutional form of punishment. When dealing with self-defencevi and necessity the state have to be caution in this regard, with how the reasonable person should have reacted example self – defence or killing of a hostage- taker the right of life of the offender has to be balanced against the right of the victim. If an accused person abandons a criminal act, the victim’s response must be proportionate. For example, if a thief enters a plaintiff’s house to steal but flees immediately upon hearing someone approach, he/she no longer pose a threat. At that moment, if the plaintiff shoots the thief in the back as a result dies, the plaintiff’s conduct will be charge as culpable homicide rather than murder, as the use of force or imminent danger was no longer justified for self-defence. The state has obligations to respect, protect, promote and fulfil the rights in the Bill of Rights.vii While it is not an absolute right as it can be limited under Section 36, and does not expressly prohibit abortionviii or killing in self-defence the Court has interpreted it as a fundamental right from which all other rights flow. Its limitation is subject to the most stringent scrutiny.
Section 12(1) (e): Freedom and Security of the Person
“Everyone has the right to freedom and security of the person, which includes the right not to be treated or punished in a cruel, inhuman or degrading way”
In the case of S v Dodoix section 12(1) (e) was considered by the court as the concepts of this section namely: cruel, inhuman and degrading are employed disjunctively. S v Makwanyane declaring the death penalty unconstitutional, as it violate this right.
Section 36: Limitation of Rights
“Section 36 (1) The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including—
(a) the nature of the right;
(b) the importance of the purpose of the limitation;
(c) the nature and extent of the limitation;
(d) the relation between the limitation and its purpose; and
(e) less restrictive means to achieve the purpose.
(2) Except as provided in subsection (1) or in any other provision of the Constitution, nolaw may limit any right entrenched in the Bill of Rights.”x
In Makwanyane, the court found the death penalty to be the most severe limitation possible, as it destroys the rights to life and dignity. Consequently, it could not be consider as “reasonable and justifiable” measure under Section 36 of Constitution 1996.
Interpretation of Bill of Rights
“Section 39 (1)xi When interpreting the Bill of Rights, a court, tribunal or forum—
(a) must promote the values that underlie an open and democratic society based
on human dignity, equality and freedom;
(b) must consider international law; and
(c) may consider foreign law.”
Judicial Interpretation
The case of S v Makwanyane analyzed the important to right to life, dignity as well to freedom and security and limitation clause.
Facts of case
The two accused Makwanyane and Mchunu convicted in the Supreme Court on four counts of murder, one count of attempted murder, and one count of robbery with aggravating circumstances. They were sentence to death on the murder counts. On appeal, the Appellate Division upheld the convictions but postponed the appeal on the death sentence, referring the constitutional issue to the Constitutional Court. The central question was whether Section 277(1) (a) of the Criminal Procedure Act 51 of 1977, which prescribed the death penalty for murder, was consistent with the new Interim Constitution of the Republic of South Africa, 1993 now 1996.
The Legal Question
Was the death penalty for murder a cruel, inhuman or degrading punishment’ in terms of Section 11(2) of the Constitution 1996 and if so, could it be justified under the general limitations clause in Section 36?
The Court’s Reasoning
The court unanimously held that the death penalty was unconstitutional Per Chaskalson P the President’s judgment. The Court adopted a “generous and purposive” interpretation of the Bill of Rights, seeking to give expression to its underlying values. Rights in Chapter 3, particularly the right to life (Section 11), right to dignity (Section 10), and right to be free from cruel, inhuman, or degrading punishment (Section 11(2)) are to be read together.xii The death penalty was identify as the extreme form of punishment. It is cruel involving inhuman which it denies the executed person’s humanity and degrading as it strips the individual of all dignity. The Court found that in the context of South Africa’s history and the values of the new Constitution, the death penalty inherently violated Section 11(2).xiiiThe Court found that the application of the death penalty was inherently arbitrary. Factors such as poverty, race, the quality of legal representation, and the personal attitudes of judges introduced an inescapable element of chance into who received the ultimate sentence, violating the right to equality. xivThe Court emphasized that the death penalty is final and irrevocable. In a system capable of human error, the execution of an innocent person is an irremediable injustice. xv The Court acknowledged that public opinion might favour the death penalty but held that its duty was to interpret and uphold the Constitution without fear or favour. The protection of rights, especially for minorities and the vulnerable is a core function of a constitutional court and cannot be subject to a majority vote. xvi Applying the limitations clause section 36, the Court found that the state had failed to prove that the death penalty was “reasonable and justifiable in an open and democratic society based on freedom and equality.” The arguments for its unique deterrent effect were unproven, and the objective of retribution could met through the severe alternative of life imprisonment. The limitation on the rights to life and dignity was therefore not justified. xviiThe Concept of Ubuntu highlighted the importance of Ubuntu the humanness, community and interdependence as a foundational value of the new Constitution. This philosophy concept was as incompatible with the death penalty.xviii
Critical Analysis
The rights to life and human dignity are the foundational pillars of Chapter 2 of the Constitution, the Bill of Rights. However, the practical application of these rights within the criminal justice system presents significant challenges. A key tension arises when individuals accused of murder claim self-defense. The state bears the heavy burden of disproving this defense beyond a reasonable doubt, which can lead to acquittals or convictions on lesser charges like culpable homicide, even in cases of fatal violence. This outcome often fails to reflect the severity of the life lost. Furthermore, the principle of legal punishment itself can have unintended negative societal consequences. When a convicted murderer is sentence to imprisonment the state assumes the cost of their care, while the victim’s family who may have lost their breadwinner receives no direct financial support. This creates a profound injustice where the perpetrator’s basic needs are fulfil by the state but the victim’s family left without adequate protection or provision, undermining the restorative purpose of justice.
Recent Developments
In 2015, the High Court in Stransham-Ford v Minister of Justice and Correctional Servicesxix initially declared that the common law crimes of murder and culpable homicide were unconstitutional as they applied to physician assisted dying for a terminally ill, mentally competent adult. Although this specific decision was, overturn on appeal due to the specific circumstances of the case, the Supreme Court of Appeal (SCA) left the constitutional question open. Public reaction often manifests in protests over service delivery such as water, housing which are fundamentally about the conditions necessary for a dignified life. The government’s stance remains one of advocating for progressive realization within available resources, but it faces increasing pressure from the courts to take immediate, reasonable measures to address threats to life and dignity stemming from poverty. The 2012 Marikana massacre where police killed 34 miners stands as a stark example of the state’s failure to protect the right to life. On July 2021 civil unrest in KwaZulu-Natal and Gauteng, which resulted in over 300 deaths led to widespread public and media criticism of the state’s failure to protect its citizens from violence and lootingxx. These events trigger intense public debate about the extent of the state’s positive duties and its capacity to fulfil them.
Suggestions / Way Forward
The doctrine of the inviolability of life demands cautious state application of the law. An offender may successfully plead self-defence or necessity, leading to a lesser sentence. The state must therefore balance two duties: upholding the accused’s right to humane treatment, including providing for their essential needs in custody, and supporting the victim’s family, particularly if the deceased was the breadwinner. This underscores the state’s ultimate responsibility to provide justice and support for society as a whole.
Conclusion
The constitutional doctrine of the inviolability of life as definitively established in S v Makwanyane represents an absolute and irrevocable prohibition against the death penalty in South African law. This article has argued that this prohibition is not merely a legal technicality but a foundational principle rooted in the supreme values of human dignity, equality, and freedom. The Constitutional Court’s reasoning remains compelling: the right to life is the prerequisite for all other rights, and its intentional destruction by the state as punishment is a cruel, inhuman, and degrading act that cannot be reconciled with a constitutional democracy. The analysis confirms that the death penalty constitutes the most severe limitation imaginable on the rights to life and dignity. As such, it could not survive the rigorous test of Section 36 of the Constitution. No compelling state interest be it retribution, deterrence, or public opinion was found to be weighty enough to justify this ultimate, irreversible, and arbitrary punishment. The philosophical of Ubuntu, which emphasizes restorative justice and shared humanity, further reinforces the incompatibility of execution with the nation’s constitutional identity. While the absolute rejection of the death penalty is settled law, the principle of inviolability continues to face challenges in its application. The tensions within the criminal justice system such as the difficulties in prosecuting murder and the perceived injustices for victims’ families highlight the complex reality of upholding this absolute right. Furthermore, contemporary events like the Marikana massacre and public unrest underscore the state’s ongoing and positive duty to protect life from all threats, including its own agents. In final analysis, the abolition of the death penalty was not the end of the journey but a foundational commitment. The forward demands that the state diligently balance its duties to humanely treat those it incarcerates while providing robust support for victims, and to actively foster the social and economic conditions that make life not only inviolable in law, but also dignified in fact. The legacy of Makwanyane is a continuous obligation to build a society where the right to life is protected as it upheld for all.
REFERENCE(S):
Constitution of the Republic of South Africa 1996
S v Makwanyane and Another (CCT3/94) [1995] ZACC 3; 1995 (6) BCLR 665; 1995 (3) SA 391; [1996] 2 CHRLD 164; 1995 (2) SACR 1 (6 June 1995)
Currie, I. de Waal, J. (2013). The Bill of Rights Handbook. (6th ed). Juta
Stransham-Ford v Minister of Justice And Correctional Services and Others (27401/15) [2015] ZAGPPHC 230; 2015 (4) SA 50 (GP); [2015] 3 All SA 109 (GP); 2015 (6) BCLR 737 (GP) (4 May 2015) https://resiliencefund.globalinitiative.net/activists-help-restore-communities/
iSection 11 of the constitution 1996, South Africa.
ii Section 12 of the constitution 1996, South Africa.
iii S v Makwanyane 1995 (3) SA 391.
iv Chapter 2 of the constitution 1996.
v The Bill of Rights Handbook, p258.
vi The Criminal Law Act (Act No. 51 of 1977) and Common Law.
vii Section 7(2) Bill of Rights Chapter 2 of constitution.
viii The Choice on Termination of Pregnancy Act (Act No. 92 of 1996).
ix S v Dodo 2001 (3) SA 382 (CC).
x Chapter 2 of the constitution 1996, p16.
xi Chapter 2 of the constitution 1996, p20.
xii [Para. 9-10] S v Makwanyane.
xiii [Para. 26, 95] S v Makwanyane.
xiv [Para. 48-54] S v Makwanyane.
xv [Para. 54] S v Makwanyane.
xvi [Para. 87-89] S v Makwanyane.
xvii [Para. 110-146] S v Makwanyane.
xviii [Para. 224, 237] ] S v Makwanyane.
xix Stransham-Ford v Minister of Justice and Correctional Services xx Resilience fund
