Authored By: Nombuso Precious Mkhize
University of South Africa
- Case Citation and Basic Information
Full case name: The State v T Makwanyane and M Mchunu.
Citation: 1995 (3) SA (CC); 1995 (6) BCLR 665 (CC); [1995] ZACC 3. Court: Constitutional Court of the Republic of South Africa.
Date of decision: 6 June 1995 (heard 15-17 February 1995).
Bench composition: Chaskalson P, Ackermann Didcott Kriegler, Langa, Madala, Mahomed, Makgoro, O’Regan and Sachs JJ and Kentridge AJ. All eleven members of the Court delivered separate concurring judgements, with Chaskalson P authoring the principal judgement and the order of the Court.
- Introduction
This case concerns constitutional law and human rights law, specifically whether the death penalty for murder violates the constitutional rights to life, dignity, and freedom from cruel, inhuman or degrading punishment. Decided in 1995, shortly after South Africa’s transition to constitutional democracy, this Court was among its most significant, testing for the first time whether the country’s new Bill of Rights had the power to override long-standing law. The judgement’s significance lies not only in abolishing capital punishment, but in establishment the interpretive approach- reading rights purposively and drawing on comparative law – that would shape South African constitutional jurisprudence for decades to come.
- Facts of the Case
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. They were sentenced to death on each of the murder counts, and to lengthy terms of imprisonment on the other counts.
They appealed to the Appellate Division against both their convictions and sentences, because the Constitution came into force between the trial and the appeal, a new constitutional question could be raised for the first time. By the time the case reached the Constitutional Court, the moratorium on the carrying out death sentences had
already been in effect since March 1992, although no executions had actually occurred since 1989, yet courts continued to impose the sentence under existing law. As a result, an estimated 300 to 400 people remained on death row awaiting the outcome of this case. The law itself was also not applied consistently across the country: the former Ciskei territory had already abolished the death penalty in 1990 meaning the same crime could carry different consequences depending purely on where the trial took place.
- Legal Issues
Issue 1: Whether section 277 (1) (a) of the Criminal Procedure Act, which permits the death penalty for murder, constitutes cruel, inhuman or degrading punishment under section 11 (2) read with section 9 ( the right to life) and 10 ( the right to dignity) of the Constitution?
Issue 2: If so, whether that limitation on rights can nonetheless be justified as reasonable and necessary under general limitations clause, section 33 (1)?
- Arguments Presented
5.1 The Accused’s Arguments
Counsel for the accused argued that section 277(1)(a) violated the accused’s rights to life and dignity, and constituted cruel inhuman and degrading punishment, since South Africa’s Constitution, unlike some other counties, placed to no express limit on their right to life that would permit capital punishment. They further argued the penalty was applied arbitrarily: outcomes depended on factors such as quality of an accused’s legal representation, race and financial means, rather than the severity of the crime alone. Finally, they submitted there was no proven evidence that execution deterred violent crime more effectively than long-term imprisonment.
5.2 The Attorney General’s Arguments
The attorney General argued that the death penalty under section 277(1)(a) was not, within the meaning of the section 11(2),cruel , inhuman or degrading punishment, noting that capital punishment remained a lawful and widely accepted form of punishment internationally. He submitted that it deterred violent crime effectively than life imprisonment and met society’s legitimate demand for retribution in the most serious cases. He further argued that the discretion exercised by trial judges, subject to review by the Appellate Division, was sufficiently structured to prevent arbitrary sentencing, and that the framers of the Constitution had deliberately left the question of abolition to Parliament rather than the court.
- Court’s Reasoning and Analysis
The court rejected a strict, literal reading of the text and instead adopted a generous and purposive approach to interpreting the Bill of Rights, following the approach it had adopted in the earlier case of S v Zuma, which held that constitutional provisions must be interpreted in light of the values and purposes they were meant to serve. Section 35(1) of the Interim Constitution expressly permitted the court to have regard to comparable foreign case law and the court accordingly conducted an extensive survey of how other countries had approached the death penalty. It considered India’s right to life could be limited “according to procedure established by law” whereas South Africa’s right to life and its protection against cruel, inhuman or degrading punishment carried no such express qualification.
The Court found Hungary’s approach more persuasive: the Hungarian Constitutional Court had struck down the death penalty under a constitution guaranteeing an unqualified right to life and dignity are inseparable, and that the state cannot protect one while extinguishing the other. Having reviewed this comparative law, the Constitutional Court concluded that the death penalty constituted cruel inhuman and degrading punishment under section 11(2) because it destroys life absolutely, cannot be corrected if a conviction later proves wrongful and is inevitably applied with some degree of arbitrariness.
The state argued that the death penalty was a reasonable and justifiable limitation on those rights under section 33(1), given the high levels of violent crime in the country, and that it deterred murder more effectively than imprisonment. The Court held, however that the state bore the burden of proving this justification and had failed to produce reliable evidence that execution deterred crime better than long-term imprisonment. The Court also rejected the argument that the public opinion favoured retaining the death penalty, holding that the protection of fundamental rights, particularly for unpopularly or marginalised individuals, could not depend on majority approval.
- Judgement and Ratio Decidendi
The Decision
The Constitutional Court declared section 277(1)(a) of the Criminal Procedure Act, along with similar death penalty provisions in South Africa law, unconstitutional and invalid. The death sentences imposed on Makwanyane and Mchunu were set aside. Everyone else then on death row remained imprisoned under existing sentences, pending a substitute sentence to be determined through the proper legal process.
Ratio Decidendi
The death penalty constitutes cruel, inhuman and degrading punishment under section 11(2) because it destroys life absolutely, it irreversible in the case of a wrongful conviction and is inevitably applied with some degree of arbitrariness. Such a limitation on the rights to life and dignity can only be justified under the general limitations clause, section 33(1), where the state proves the measure is reasonable and necessary, a burden the state failed to discharge, since it could not show that execution deterred violent crime more effectively than long-term imprisonment.
- Critical Analysis
8.1 Significance of the Decision
By deciding this case, the Constitutional Court demonstrated that it would actively exercise its power to strike down legislation inconsistent with the Constitution, even legislation as long-standing and significant as the death penalty. The judgement also established that the right to life and dignity are fundamentally intertwined and cannot be stripped away from a person regardless of the severity of their crime.
8.2 Implications and Impact
Despite periodic public calls for its reinstatement, particularly amid high rates of violent crime, the death penalty has never been introduced in South Africa since this judgement. The case’s reasoning also served as a blueprint for other African courts considering the constitutionality of capital punishment, shaping how judicial abolition has been argued elsewhere on the continent. Within South Africa itself, the two-stage method the Court used here, first asking whether a right had been limited then asking whether that limitation could be justified under Constitutional Court decisions on other fundamental rights extending the influence of this judgement well beyond the death penalty question alone.
8.3 Critical Evaluation
A key strength of the judgement is the court’s firm refusal to let public opinion override minority rights, even though South Africa’s judge-led system meant there was no jury acting as a direct public check on the outcome; the Court chose this stance deliberately, not by default. A limitation, however, is that the court did not deeply investigate the actual criminological evidence on deterrence; it largely concluded that the state had failed to meet it burden of proof, rather than resolving the underlying empirical question itself.
- Conclusion
This judgement brought a decisive end to capital punishment in South Africa, holding that it could not be reconciled with the constitutional commitment to life and dignity. The central takeaway is that South Africa’s Bill of Rights applies to everyone, including those accused of the most serious crimes and that courts cannot set aside fundamental rights merely because a crime is severe or public opinion demands harsher punishment. The judgement’s lasting impact lies in its role as the foundation for how South African courts interpret and protect constitutional rights, and in permanently shaping the national debate on capital punishment. It leaves open the question of whether the death penalty could ever be introduced for particularly serious crimes; however, the risk of executing someone later found to be wrongly convicted remains, as this judgement established, an irreversible harm that cannot be undone.
- Reference(S):
Bachan Singh v state of Punjab AIR 1980 SC 898.
Decision 23/1990 (X. 31.) AB (Constitutional Court of Hungary).
S v Makwanyane en ‘n Ander 1994 (3) SA 868 (A).
S v Zuma and Two Others 1995 (2) SA 642 (CC).
The State v T Makwanyane and M Mchunu 1995 (3) SA 391
(CC); 1995 (6) BCLR 665 (CC); (1995) ZACC 3.
