Authored By: Lindiwe Mashaba
Case Citation and Basic Information
Full Case: The State v. T Makwanyane and M Mchunu
Citation: 1995 (3) SA 391 (CC); Case No. CCT/3/94
Court: Constitutional Court of the Republic of South Africa
Date of decision: 6 June 1995
Bench composition: Chaskalson P (President), Ackermann J, Didcott J, Kentridge AJ, Kriegler J, Langa J, Madala J, Mahomed J, Mokgoro J, O’Regan J, and Sachs J
Introduction
One of the biggest landmark cases in South Africa is S v Markwayne.[1] This case signifies one of the biggest changes in our constitution from the apartheid system to the new democratic South Africa, and that why is regarded as a bridge.[2] The case required the court to decide whether death sentence was consistent with the rights and ideals of South Africa’s new constitutional democracy. After the Interim Constitution of 1993 was adopted, it raised questions of whether the death penalty infringed the constitutionally guaranteed rights to life, human dignity, freedom from harsh, inhuman punishment.[3] The court used both international and comparative law as well as purposive approach o constitutional interpretation in answering this matter.
Facts of the Case
The two accused, T Makwanyane and M Mchunu, were convicted in the Witwatersrand Local Division of the Supreme Court on four counts of murder, one count of attempted murder. And one count of robbery with aggravating circumstances.[4] They were both sentenced to death in accordance to the Criminal Procedure Act 51 of 1977 which states that death is a competent punishment for murder.[5] The Interim constitution of 1993, which established a constitutional framework based on the fundamental rights and the supremacy of the constitution, went into effect while the appeal was still pending.[6]
A new legal question that did not exist at the time of the trial was brought up by the constitution amendments. The appellate Division called counsel for the defendants to address whether section 277(1)(a) of the CPA, which permitted the death penalty for murder was consistent with the Interim Constitution.
The Appellate Division postponed the appeals against the death sentence and referred the constitutional problems to the Constitutional Court for resolution, acknowledging that the court has jurisdiction over the constitutionality of the Act of Parliament. Therefore, the Constitutional Court had to determine whether the death penalty was consistent with the principles and rights safeguarded by the Interim constitution.[7]
Legal Issues
The central legal issue was whether the section 277(1)(a) of the CPA was inconsistent with the fundamental rights in the interim Constitution chapter 3 and specifically the court had to determine:
- Whether the death penalty constituted “cruel, inhuman or degrading treatment of punishment” in violation of section 11(2).[8]
- Whether the death penalty violated the right to life, the right to dignity, and the right to equality.[9]
- If violation was found, whether the death penalty could be saved by the limitation clause, which required the limitation to be reasonable, justifiable in an open democratic society.[10]
- To what extend international law and comparative foreign jurisprudence could aid the court in interpreting the right in chapter 3 of the interim constitution as intended by section 35(1).
Arguments of the Accused
The counsel for the accused agued that section 277(1)(a) was incognisant with the interim constitution which specifically say guarantee right to life and dignity, and prohibiting cruel and inhuman acts against anyone.[11] They agued that the death penalty is the biggest punishment to human dignity and cannot be corrected.[12]
They looked at how the death penalty was handed down, and investigated how these cases were presented by the prosecutor, how the defendant counsel was effective in defending the accused, and the judge’s stance, mood, and attitude during the matter,[13] All these were arbitrary factors determining the outcome of the case and they agued that this is a lottery of death.[14] They went on and stated that poverty and race played a huge part and that is why most of the accused who faced death penalty were poor and black, and had to rely on the pro deo defence while wealthy and white accused could just get an experienced lawyers, which makes them less likely to face the death penalty.[15]
They raise an equality challenge under section 8 of the interim constitution and pointing out the irrational disparities in laws had been abolished in the former Ciskei which was a part of South Africa on the west side while the east side the it remained active.[16]They finally argued that the death sentence negated the essential content of the right to life which goes against section 33(1)(b).[17]
Respondent Arguments
The Counsel representing the state argued that death penalty is legitimate and necessary as a form of punishment and recognised globally.[18] They argued that the death penalty is a unique effective deterrent against violent crimes which at that time reached an alarming proportion.[19] They further argued that section 33(1) the limitation clause permits the death penalty as a reasonable and necessary measure needed.[20]
The state argued that framers of the law intentionally left the right to life unqualified so that the court could retain the death penalty as an exception, and that the right to life and dignity are not absolute and a murderer forfeits them because of their heinous crime.[21] The state also relied on public opinion, stating that many South Africans supported the retention of the death penalty especially for serious crimes and that the court should take that in to account.[22]
Court reasoning and analysis
When deciding whether the death penalty was in line with the Interim Constitution, the Constitutional Court used a purposive and value-based approach to constitutional interpretation.[23] The Court held, based on its previous ruling in S v. Zuma,[24] that the rights outlined in Chapter 3 should be interpreted broadly rather than narrowly or technically in order to provide people with the full benefit of constitutional protection.
The Constitution’s goal of serving as a historic bridge between South Africa’s apartheid past and a democratic future based on equality, human rights, and dignity was represented in this strategy.[25] The Court reasoned that it was impossible to read section 11(2), which forbids harsh, inhuman, or humiliating punishment, in a vacuum. Rather, it had to be read in conjunction with the Interim Constitution’s sections 9 and 10 on human dignity and the right to life.
According to the Court, these rights are interrelated since the wilful execution of a person by the State irrevocably destroys both life and dignity. Therefore, the death penalty goes against the fundamental principles that underpin the new constitutional order. As mandated by section 35(1) of the Interim Constitution, the Court also took into account the applicability of comparative foreign jurisprudence and international law. It looked at rulings from international human rights organizations as well as nations like the US, India, Canada, and Hungary.
Although these authorities were not binding, they assisted the Court in understanding the development of constitutional principles relating to the protection of life and human dignity.[26] The Court emphasised, however, that South Africa’s Constitution had to be interpreted in light of its own language, history and constitutional values rather than by mechanically following foreign decisions. Another important aspect of the Court’s reasoning was its rejection of the argument that public opinion should determine the constitutionality of capital punishment.[27]
The Court accepted that many South Africans supported the death penalty but held that constitutional rights cannot depend on majority opinion. The purpose of constitutional review is to protect fundamental rights, particularly those of unpopular minorities and vulnerable individuals who may not be adequately protected through the political process.[28]
Finally, the Court considered whether the infringement of constitutional rights could be justified under the general limitation clause in section 33 of the Interim Constitution. While acknowledging that combating violent crime is a legitimate governmental objective, the Court found that the State had failed to prove that the death penalty was a necessary or more effective deterrent than life imprisonment. Because less restrictive forms of punishment were available, the limitation of the rights to life, dignity and freedom from cruel, inhuman or degrading punishment could not be justified in an open and democratic society. The Court therefore concluded that section 277(1)(a) of the Criminal Procedure Act was inconsistent with the Constitution and invalid.[29]
Judgement and Ratio Decidendi
The death penalty stipulated in section 277(1)(a) of the Criminal Procedure Act 51 of 1977 was declared unconstitutional by the Constitutional Court due to its inconsistency with the Interim Constitution. The Court ruled that the death penalty violated the Interim Constitution’s sections 9, 10, and 11(2) rights to life, human dignity, and freedom from harsh, inhuman, or humiliating punishment.[30] The Court further found that these infringements could not be justified under the broad limitation clause contained in section 33 of the Interim Constitution.[31]
As a result, the Court ruled that section 277(1)(a) was unconstitutional inasmuch as it permitted the death punishment. The ruling of invalidity went into effect right away, making it illegal to carry out any more executions in South Africa. The Appellate Division was tasked with handling the appeals against punishment in accordance with the ruling of the Constitutional Court.[32]
The ratio decidendi of the case is that the State may not impose capital punishment since it unjustifiably infringes the fundamental rights to life, human dignity and freedom from cruel, inhuman or degrading punishment. The Court ruled that the death penalty undermines the core principles the Constitution aims to uphold and that these rights are the cornerstone of South Africa’s democratic system. The death sentence could not withstand constitutional scrutiny since the State was unable to show that it was a necessary and reasonable restriction of fundamental rights under section 33.[33]
The ruling confirmed that all laws must adhere to the principles and rights enshrined in the Constitution and set a legally binding precedent that outlawed the death penalty in South Africa.
Critical Analysis
8.1 Significance
One of the most important constitutional rulings in South African legal history is S v. Makwanyane and Others. It established the Constitution’s supremacy and affirmed that all laws must abide with the Bill of Rights. It was one of the Constitutional Court’s first rulings.[34] The ruling also showed that the Court would interpret constitutional rights in a way that upholds equality, freedom, and human dignity. The Court’s decision to abolish the death penalty signalled a clear departure from the harsh practices connected to the apartheid legal system and strengthened the constitutional commitment to human rights.[35]
8.2 Implications and Impact
The decision permanently outlawed capital punishment in South Africa and has affected constitutional jurisprudence far beyond the question of the death sentence. It reinforced the idea that even those guilty of the most serious offences are entitled to their basic constitutional rights.[36] in later constitutional cases concerning proportionality, human dignity, and the restriction of rights, the ruling has been cited. Additionally, it encouraged South African courts to take a right centred approach to constitutional adjudication by confirming the significance of international law and comparative foreign jurisprudence when interpreting the Bill of Rights.[37]
8.3 Critical Evaluation
The ruling has been commended for prioritising constitutional principles over popular opinion and reaffirming that courts must uphold fundamental rights even in cases where such rulings may be unpopular. As Woolman and Bishop observe, S v Makwanyane established human dignity as a foundational constitutional value and confirmed that constitutional rights must be interpreted purposively to promote the values of the Constitution.[38]
The Court properly acknowledged that judicial independence is necessary for constitutional democracy and that majority support is insufficient to preserve human dignity.[39] Those who contend that the death penalty’s repeal undermined the criminal justice system’s capacity to deter violent crime and disregarded the needs of victims and their families, however, have also criticised the ruling. Despite these objections, there is still no solid proof that the death penalty works better as a deterrent than life in prison.
The Court used a strategy that embodies the principles of equality, decency, and the rule of law that underpin South Africa’s constitutional system in striking a balance between public safety and constitutional rights. The judgement therefore remains a key authority on constitutional interpretation and the safeguarding of fundamental human rights.[40]
9. In conclusion
one of the most significant constitutional rulings in South African legal history is still S v. Makwanyane and Others. Because the death sentence unjustly violated people’s rights to life, human dignity, and freedom from harsh, inhuman, or degrading punishment, the Constitutional Court ruled that it was incompatible with the Interim Constitution. The Court recognised the supremacy of the Constitution over ordinary legislation, took a purposive approach to constitutional interpretation, and sought direction from international and comparative law.[41]
In addition to outlawing the death penalty in South Africa, the ruling established important guidelines for constitutional decision-making. It affirmed that popular opinion cannot dictate constitutional rights and that the courts have an obligation to defend the rights of all people, including those found guilty of grave crimes.[42] The Court upheld the principles that sustain South Africa’s democratic order by centring constitutional interpretation around human dignity and the right to life. As a result, the ruling remains a seminal authority on human rights, constitutional supremacy, and the judiciary’s responsibility in defending the principles of an open and democratic society.
Bibliography
Cases
S v Makwanyane and Another 1995 (3) SA 391 (CC).S v Zuma and Others 1995 (2) SA 642 (CC).
Legislation
Constitution of the Republic of South Africa Act 200 of 1993.
Criminal Procedure Act 51 of 1977.
Books
Woolman S and Bishop M (eds), Constitutional Law of South Africa (2nd edn, Juta).
[1] S v Makwanyane and another 1995 (3) SA 391 (cc).
[2] Makwanyane para 7.
[3] Constitution of the Republic of South Africa Act 200 of 1993 ss 8, 9, 10, and 11(2).
[4] Makwanyane para 1.
[5] Criminal procedure Act 51 of 1977 s 277(1)(a).
[6] Makwanyane paras 4-5.
[7] Makwanyane paras 4-11.
[8] Makwanyane para 8.
[9] Interim constitution s9, 10 and 8.
[10] Interim Constitution s 33(1)).
[11] Interim Constitution ss 9, 10, 11(2).
[12] Makwanyane paras 43-44.
[13] Makwanyane para 47.
[14] Makwanyane paras 45-46.
[15] Makwanyane para 48.
[16] Makwanyane para 30.
[17] Makwanyane para 132.
[18] Makwanyane para 27.
[19] Makwanyane para 46.
[20] Makwanyane para 102.
[21] Makwanyane paras 11, 136.
[22] Makwanyane paras 87-89.
[23] Makwanyane para 9.
[24] S v Zuma and others 1995 (2) SA 642 (cc).
[25] Makwanyane paras 8-11.
[26] Makwanyane paras 80-85.
[27] Makwanyane paras 33-39.
[28] Makwanyane paras 87-89.
[29] Makwanyane paras 94-131, CPA Act 51 of 1977 s 277 (1)(a).
[30] Makwanyane paras 144-146, Interim constitution ss 9, 10 and 11(2).
[31] Makwanyane paras 104-131, interim constitution s33.
[32] Makwanyane para 146.
[33] Makwanyane paras 144-146.
[34] Makwanyane para 7-10.
[35] Makwanyane paras 144-146.
[36] Makwanyane paras 87-89, 144-146.
[37] Makwanyane paras 33-39, interim constitution s 35(1).
[38] Stuart Woolman and Michael Bishop (eds), Constitutional Law of South Africa (2nd edn, Juta) ch 36.
[39] Makwanyane paras 87-89.
[40] Makwanyane paras 144-146.
[41] Makwanyane paras 7-10, 144-146.
[42] Makwanyane 87-89, 144-146.
