Authored By: Siyabonga Miya
University of Johannesburg
1. Case Citation and Basic Information
Case name: The State v T Makwanyane and M Mchunu.
Citation: 1995 (3) SA 391 (CC); 1995 (6) BCLR 665 (CC); 1995 (2) SACR 1 (CC); [1995] ZACC 3.1
Court: Constitutional Court of South Africa.
Heard: 15–17 February 1995.
Decided: 6 June 1995.2
Bench: Chaskalson P, Ackermann, Didcott, Kriegler, Langa, Madala, Mahomed, Mokgoro, O’Regan and Sachs JJ, and Kentridge AJ. There were eleven judges, each delivering a separate concurring judgment.3
2. Introduction
S v Makwanyane and Another was the first substantive judgment of the newly established Constitutional Court of South Africa and remains one of the country’s most important constitutional decisions. The case required the Court to determine whether capital punishment for murder, which was then authorised by section 277(1)(a) of the Criminal Procedure Act 51 of 1977, was consistent with the Interim Constitution of 1993.4
The importance of the case goes beyond the abolition of the death penalty. The Court adopted an approach to constitutional interpretation that placed particular emphasis on human dignity and ubuntu as constitutional values. The judgment also addressed the difficult relationship between constitutional rights, public opinion and the use of comparative and international law. These issues have continued to influence South African constitutional jurisprudence.
3. Facts of the Case
The two accused, Makwanyane and 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.5 The murders occurred during a series of robberies and were described by the Court as particularly horrifying because of their callousness. The Court indicated that the crimes appeared to have been motivated by greed.6
The trial court sentenced both accused to death on each of the murder counts and imposed lengthy terms of imprisonment for the remaining offences.7 They appealed against both their convictions and sentences to the Appellate Division of the Supreme Court. The Appellate Division dismissed their appeals against the convictions and non-capital sentences. It also found that the circumstances of the murders were sufficiently serious to justify the most severe sentence available under the law.8
By the time the appeals were heard, however, the Interim Constitution had come into force. Counsel for the accused was therefore invited to argue before the Appellate Division that section 277(1)(a) of the Criminal Procedure Act, insofar as it permitted the death penalty, was inconsistent with section 9, which protected the right to life, and section 11(2), which protected individuals from cruel, inhuman or degrading treatment or punishment.9
The Appellate Division postponed the further hearing of the appeal against the death sentences while the Constitutional Court considered this constitutional question. The matter consequently became the first substantive case to be heard by the newly established Constitutional Court.10
4. Legal Issues
Issue 1: Whether the imposition of the death penalty for murder under section 277(1)(a) of the Criminal Procedure Act 51 of 1977 was consistent with section 9 of the Interim Constitution, which guaranteed every person the right to life.
Issue 2: Whether the death penalty constituted “cruel, inhuman or degrading treatment or punishment” within the meaning of section 11(2) of the Interim Constitution.
Issue 3: If the death penalty limited these rights, whether that limitation could nevertheless be justified as reasonable and necessary under the general limitation clause in section 33(1) of the Interim Constitution.
5. Arguments Presented
Arguments Against the Constitutionality of the Death Penalty
Counsel for the accused argued that the death penalty violated the rights to life and dignity and amounted to cruel, inhuman and degrading punishment. It was argued that the punishment was irreversible and could be imposed arbitrarily because its application could be influenced by factors such as the quality of legal representation and the identity of the presiding judicial officer. Counsel also challenged the argument that the death penalty was necessary for deterrence, pointing to the absence of reliable evidence showing that it deterred murder more effectively than life imprisonment.11
Importantly, although the South African government initially opposed the appeal, its position ultimately changed. Government counsel informed the Court that the government accepted that the death penalty constituted cruel, inhuman and degrading punishment and should therefore be declared unconstitutional.12
Arguments in Support of Retention
Since the government did not ultimately defend the constitutionality of the death penalty, arguments in favour of retaining it were mainly presented through submissions concerning public opinion and deterrence. It was argued that a significant portion of the South African public supported capital punishment for murder and that Parliament had not repealed the relevant provision. It was further argued that the death penalty served legitimate purposes of retribution and deterrence and that the Court should not use constitutional interpretation to overturn a policy choice made through the democratic legislative process.13
Comparative material was also considered, including decisions of the United States Supreme Court that had upheld the constitutionality of capital punishment. These authorities were used to demonstrate that constitutional courts in other jurisdictions had not necessarily regarded the death penalty as inherently unconstitutional.14
6. Court’s Reasoning and Analysis
In the principal judgment, Chaskalson P rejected the argument that public opinion should determine whether the death penalty was constitutional. He explained that one of the purposes of an entrenched Bill of Rights was to protect fundamental rights from being weakened by the views of the majority. If public opinion alone determined whether legislation was constitutional, there would be little need for constitutional adjudication.15
The Court considered sections 9, 10 and 11(2) of the Interim Constitution together rather than treating each provision in isolation.16 The Court reasoned that capital punishment directly affected the right to life because it deliberately ended the life of the person being punished. It also affected human dignity because it involved the state deliberately taking the life of an individual.17
The Court also considered the argument that the death penalty was necessary because it deterred people from committing murder. It found that the State had not produced sufficiently convincing evidence that capital punishment deterred murder more effectively than life imprisonment.18 The Court accepted that retribution could be a legitimate consideration in sentencing, but held that retribution alone could not justify a punishment that was fundamentally inconsistent with the constitutional protection of dignity.19
The Court then considered whether the limitation could be justified under section 33(1) of the Interim Constitution. Even if the death penalty served legitimate purposes such as deterrence and retribution, the Court concluded that it was not a necessary or proportionate way of achieving those purposes because less restrictive alternatives, particularly life imprisonment, were available.20
Finally, the Court considered comparative and international law. It noted the international movement away from capital punishment and examined decisions from other constitutional democracies. However, foreign law was not simply adopted as binding authority. Instead, it was used to assist the Court in understanding and interpreting South Africa’s own constitutional provisions. The Court also considered ubuntu, particularly Mokgoro J’s discussion of the concept as an approach to justice that emphasised community, reconciliation and humanity rather than vengeance.21
7. Judgment and Ratio Decidendi
The Constitutional Court unanimously held that section 277(1)(a) of the Criminal Procedure Act 51 of 1977, together with any other law of the Republic authorising capital punishment, was inconsistent with the Interim Constitution and was therefore invalid.22
The Court ordered that no person already sentenced to death could be executed and directed that persons under sentence of death remain in custody until their sentences were lawfully set aside and replaced with lawful punishments.23
Ratio decidendi: The imposition of the death penalty for murder was inconsistent with the constitutional protection of life and dignity and constituted cruel, inhuman or degrading punishment. The limitation could not be justified under the general limitation clause where a less restrictive and sufficiently effective punishment, such as life imprisonment, was available. The Court also made clear that public opinion could not, by itself, determine whether a limitation of an entrenched constitutional right was valid.
8. Critical Analysis
One of the strongest aspects of Makwanyane is the Court’s approach to constitutional interpretation. By refusing to allow public opinion to determine the constitutionality of the death penalty, the Court reinforced the idea that constitutional rights must be protected even when the majority may disagree with the Court’s decision.24 This is particularly important in a constitutional democracy, where the Constitution places limits on the power of the majority and the State.
The Court’s use of comparative law was also significant. Rather than simply adopting foreign decisions as if they were binding, the Court considered decisions from jurisdictions including the United States, Canada, Germany, Hungary, India, Tanzania and Botswana, together with international human rights materials. This allowed the Court to consider broader developments while still interpreting South Africa’s own constitutional provisions.25
The Court’s consideration of ubuntu was another important feature of the judgment. By recognising ubuntu as a constitutional value, the Court placed greater emphasis on human relationships, reconciliation and the inherent worth of individuals. This approach has continued to influence South African sentencing jurisprudence. For example, in S v Dodo, the Constitutional Court emphasised the importance of proportionality in sentencing and the need to ensure that punishment remains consistent with constitutional values.26
Despite these strengths, the judgment can also be criticised. The South African government ultimately accepted that the death penalty was unconstitutional, meaning that the Court did not receive a fully adversarial defence of the provision from the State. As a result, some of the arguments in favour of retaining capital punishment may not have been tested as thoroughly as they could have been.27
There is also a broader institutional question about the role of the Court. Makwanyane involved a newly established Constitutional Court overturning a legislative policy that had significant public support. Although the Court’s decision can be defended on constitutional grounds, it raises an important question about the extent to which unelected judges should invalidate legislation where there is strong public support for the law.
The Court’s reliance on comparative and international law can similarly be debated. Such material can provide useful insight into how other legal systems approach difficult constitutional questions, but there is a risk that excessive reliance on foreign approaches could weaken the development of an independent South African constitutional jurisprudence. Nevertheless, the Court generally used comparative law as a persuasive tool rather than treating foreign decisions as binding.
9. Conclusion
S v Makwanyane abolished capital punishment in South Africa and established important principles that continue to influence constitutional jurisprudence. The judgment demonstrated that constitutional rights cannot simply be overridden because a particular form of punishment is supported by the majority. Instead, limitations on rights must be justified according to the Constitution and must respect values such as human dignity.
The central lesson of the case is that the popularity of a punishment, and even arguments about its deterrent effect, cannot by themselves make the punishment constitutionally valid. Where a punishment seriously infringes fundamental rights and a less restrictive alternative is available, the State must provide a constitutionally sufficient justification for the limitation.
The judgment’s influence can be seen in later South African sentencing cases, including S v Dodo and S v Malgas,28 as courts have continued to consider proportionality, dignity and the limits of punishment. The broader questions raised by Makwanyane, particularly the role of ubuntu and the use of comparative law in constitutional interpretation, also continue to contribute to debates about South African constitutional and sentencing law.
Overall, S v Makwanyane remains a landmark decision because it demonstrated the practical force of constitutional rights in the new South African constitutional order. It showed that the Constitution could require the State to abandon even a longstanding and publicly supported form of punishment where that punishment was incompatible with fundamental constitutional values.
Footnote(S):
1 S v Makwanyane and Another 1995 (3) SA 391 (CC); 1995 (6) BCLR 665 (CC); 1995 (2) SACR 1 (CC); [1995] ZACC 3.
2 S v Makwanyane and Another (n 1) (case heading).
3 S v Makwanyane and Another (n 1).
4 Constitution of the Republic of South Africa Act 200 of 1993 (Interim Constitution), ss 9, 11(2); Criminal Procedure Act 51 of 1977, s 277(1)(a).
5 S v Makwanyane and Another (n 1) para 1.
6 S v Makwanyane and Another (n 1) para 1.
7 S v Makwanyane and Another (n 1) para 1.
8 S v Makwanyane en ‘n Ander 1994 (3) SA 868 (A).
9 S v Makwanyane en ‘n Ander (n 8).
10 S v Makwanyane and Another (n 1) para 3.
11 S v Makwanyane and Another (n 1) paras 27–51.
12 S v Makwanyane and Another (n 1) para 10.
13 S v Makwanyane and Another (n 1) paras 87–89.
14 S v Makwanyane and Another (n 1) para 35, discussing Gregg v Georgia 428 US 153 (1976).
15 S v Makwanyane and Another (n 1) para 88.
16 S v Makwanyane and Another (n 1) paras 95, 144.
17 S v Makwanyane and Another (n 1) paras 95, 144.
18 S v Makwanyane and Another (n 1) paras 95, 144.
19 S v Makwanyane and Another (n 1) paras 100–104, 146.
20 S v Makwanyane and Another (n 1) paras 100–104, 146.
21 S v Makwanyane and Another (n 1) para 131 (Mokgoro J); see also paras 262–268 (Sachs J).
22 S v Makwanyane and Another (n 1) para 151.
23 S v Makwanyane and Another (n 1) paras 151–152.
24 S v Makwanyane and Another (n 1) paras 87–89.
25 S v Makwanyane and Another (n 1) paras 34–89.
26 S v Dodo 2001 (3) SA 382 (CC); 2001 (5) BCLR 423 (CC) paras 38–40.
27 S v Makwanyane and Another (n 1) para 10.
28 S v Malgas 2001 (2) SA 1222 (SCA); 2001 (1) SACR 469 (SCA); [2001] ZASCA 30.
References
Cases
Gregg v Georgia 428 US 153 (1976).
S v Dodo 2001 (3) SA 382 (CC); 2001 (5) BCLR 423 (CC).
S v Makwanyane and Another 1995 (3) SA 391 (CC); 1995 (6) BCLR 665 (CC); 1995 (2) SACR 1 (CC); [1995] ZACC 3.
S v Makwanyane en ‘n Ander 1994 (3) SA 868 (A).
S v Malgas 2001 (2) SA 1222 (SCA); 2001 (1) SACR 469 (SCA); [2001] ZASCA 30.
Legislation
Constitution of the Republic of South Africa Act 200 of 1993 (Interim Constitution).
Criminal Procedure Act 51 of 1977.
