The State v T Makwanyane and M Mchunu

1. Case Citation

Full Case Name: The State v T Makwanyane and M Mchunu

Citation: Case No. CCT/3/94

Court: Constitutional Court of the Republic of South Africa

Date of Decision: Heard 15–17 February 1995; judgment delivered 6 June 1995

Bench Composition: Chaskalson P, Sachs J, and Mokgoro J (among others)

2. Introduction

The S v Makwanyane decision stands as a defining landmark in South African legal history because it officially declared the death penalty unconstitutional.1 Adjudicated shortly after South Africa’s transition to a democratic dispensation, the case required the newly established Constitutional Court to rule on the constitutional validity of capital punishment under the interim Constitution of the Republic of South Africa Act 200 of 1993.2

This matter is recognised academically as a “hard case,” meaning it required the presiding judges to rely on subjective measures and non-traditional legal sources to articulate and define fundamental constitutional rights and values.3 Consequently, the Court’s groundbreaking jurisprudence not only reshaped domestic criminal justice but has also become a classic resource in global comparative constitutional law.4 Furthermore, the judgment is viewed as a functionalist triumph for multiculturalism that actively promotes social solidarity rather than exacerbating societal conflict.5

3. Facts of the Case

The sequence of events leading to this constitutional inquiry began in the Witwatersrand Local Division of the Supreme Court.6 The two accused, T Makwanyane and M Mchunu, were tried and convicted on four counts of murder, one count of attempted murder, and one count of robbery with aggravating circumstances.7 Following these convictions, the trial court sentenced both individuals to death for each of the murder counts, alongside imposing long terms of imprisonment for the other offences.8 The accused subsequently appealed against their convictions and sentences to the Appellate Division of the Supreme Court.9

The Appellate Division dismissed the appeals concerning the convictions because the circumstances of the murders were found to justify the heaviest sentence permissible by law.10 At the time of the trial, section 277(1)(a) of the Criminal Procedure Act No. 51 of 1977 explicitly prescribed the death penalty as a competent sentence for murder.11

However, because the 1993 Constitution had come into force subsequent to the trial court’s conviction and sentencing, the Appellate Division invited counsel to consider whether the death penalty provision remained consistent with the new constitutional framework.12 Because the constitutional validity of the death sentence had not been raised during the original trial — which concluded before the enactment of the 1993 Constitution — the Appellate Division strategically postponed further hearing of the appeals on the question of sentence until the Constitutional Court could render a definitive decision.13

At the time of the constitutional hearing, a broader factual reality existed: no state executions had occurred in South Africa since 1989.14 This moratorium had resulted in an intolerable situation in which over 300 persons — and potentially up to 400 when considering former territories — were left waiting on death row pending the resolution of the constitutional question.15

4. Legal Issues

The core legal question referred to the Constitutional Court was whether section 277(1)(a) of the Criminal Procedure Act No. 51 of 1977 was consistent with the Republic of South Africa Constitution of 1993.16 Specifically, the Court was tasked with determining whether the death penalty conflicted with the fundamental provisions of sections 9 and 11(2) of the 1993 Constitution.17 Section 9 guarantees the right to life, while section 11(2) prohibits cruel, inhuman, or degrading treatment or punishment. Additionally, the Court was required to examine the legal implications of section 241(8) of the Constitution — the provision that preserved existing legislation in force until validly declared inconsistent with the Constitution.18

5. Arguments Presented

5.1 Appellants’ Arguments

Counsel representing the accused, acting as the appellants against the death sentence, contended that section 277(1)(a) of the Criminal Procedure Act was inconsistent with the Republic of South Africa Constitution of 1993.19 The primary argument advanced was that the death penalty inherently conflicted with the rights guaranteed in sections 9 and 11(2) of the Constitution.20 During the Constitutional Court hearings, however, counsel could not provide specific new material regarding public opinion or external evidence beyond the undisputed information that had already been submitted in argument.21

5.2 Respondent and Amici Curiae Arguments

The hearing included participation from the State, the Government of the Republic of South Africa, and various amici curiae, including the Black Advocates Forum (BAFO).22 The broader context of the hearing required an examination of societal values, but the debate largely focused on constitutional interpretation rather than the presentation of new factual evidence.23 Justice Mokgoro notably observed that the broader legal profession, academia, and organised civil society concerned with public interest law shared a responsibility to place the required evidence before the courts.24

With the arguments concluded, the Court proceeded to undertake its own normative constitutional analysis of the death penalty’s validity.

6. Court’s Reasoning and Analysis

In evaluating the constitutionality of capital punishment, the Constitutional Court noted that the framers of the 1993 Constitution had deliberately refrained from explicitly stating whether the death penalty was a competent or impermissible penalty.25 Because the framers avoided this explicit categorisation, the burden fell entirely on the Court to determine whether the death sentence was consistent with the Constitution.26 In tackling this normative value judgment, the justices acknowledged that subjective constitutional interpretation is an unavoidable aspect of constitutional jurisprudence in “hard cases.”27

Justice Chaskalson P approached the analysis by assessing the extent and limits of the Court’s power in this specific matter, noting that remitting the case for further evidence was unnecessary.28 Justice Sachs focused heavily on the language of the founding document and the core values the Constitution required the Court to uphold.29 He reasoned that in a founding document dealing with fundamental rights, the text inherently either authorises the death sentence or it does not.30 According to Justice Sachs’s interpretation, the values expressed by section 9 were entirely conclusive: section 9 guarantees the right to life unconditionally to everyone, including even “the most abominable of human beings.”31

Expanding the scope of constitutional interpretation, the Court heavily incorporated the uniquely South African concept of ubuntu, interpreting the transition to democracy as a triumph for human rights that necessitated a departure from brutal retributive punishments.32

7. Judgment and Ratio Decidendi

The Constitutional Court ultimately delivered a unanimous ruling declaring the death penalty unconstitutional in South Africa.33 The ratio decidendi established by the Court is that capital punishment violates the fundamental rights enshrined in the Constitution, specifically the absolute right to life guaranteed under section 9.34 The Court held that because everyone possesses an inherent right to life, the state does not have the constitutional authority to execute offenders.35 Consequently, section 277(1)(a) of the Criminal Procedure Act was declared invalid.36

8. Critical Analysis

8.1 Significance of the Decision

The significance of S v Makwanyane cannot be overstated; it is unequivocally a landmark judgment that reshaped the South African legal landscape.37 By officially abolishing the death penalty, the decision marked a definitive break from the country’s authoritarian past.38 The judgment is celebrated sociologically as an all-inclusive approach to multiculturalism, balancing the conflicts of a diverse society against the overriding need for social solidarity.39 Furthermore, the case formally embedded the indigenous value system of ubuntu into South African constitutional jurisprudence.40

8.2 Implications and Impact

The practical consequences of the ruling were immediate, stripping the state of its power to execute criminals and saving the lives of the estimated 300 to 400 individuals languishing on death row.41 Beyond South Africa’s borders, the impact of Makwanyane has been remarkably global.42 The Constitutional Court’s participation in transnational judicial dialogue has made this case a classic resource in comparative constitutional law scholarship.43 South African precedents established in this case now actively serve litigants worldwide — particularly through amicus curiae briefs — to advance the interpretation of human rights in foreign jurisdictions, including before the United States Supreme Court and the European Court of Human Rights.44

8.3 Critical Evaluation

While the decision is globally lauded, it invites critical scholarly evaluation regarding the methodology of constitutional interpretation.45 Scholars note that the Court’s reliance on subjective constitutional interpretation in “hard cases” highlights a potential tension within the judiciary.46 The justices openly acknowledged that defining unarticulated constitutional values sometimes requires stepping outside traditional, accepted legal sources, which introduces the judge’s own moral, religious, or political predispositions into the ruling.47 The methodological weakness identified by critics is that subjective interpretation is difficult to reconcile with the court’s duty to provide transparently reasoned, objective legal justifications.48 To safeguard institutional legitimacy, it is argued that when subjective moral predispositions are at play, judges must explicitly articulate them to allow for objectively verifiable criticism.49 Despite these academic critiques, the Court’s ultimate reliance on the inviolable right to life remains legally unimpeachable.50

9. Conclusion

The decision in S v Makwanyane serves as the foundational cornerstone of post-apartheid constitutional jurisprudence in South Africa.51 By confronting the constitutionality of the death penalty, the Court firmly established that the fundamental right to life is absolute and applies universally to all persons.52 The lasting impact of this judgment is its structural embedding of ubuntu and human dignity into the fabric of South African law.53 Furthermore, its implications continue to resonate globally, demonstrating that a nascent democratic court can successfully export progressive human rights paradigms worldwide.54

Bibliography

Klaasen A, ‘Constitutional interpretation in the so-called “hard cases”: Revisiting S v Makwanyane’ (2017) 1 De Jure 1.

Laubscher R and van Staden M, Landmark Constitutional Cases That Changed South Africa (UJ Press 2023).

Mathebe L, ‘Multiculturalism, Democratic Citizenisation and the Case of the Death Penalty in South Africa’ (2025) 17 Africa Review 406.

S v Makwanyane and Another (CCT3/94) [1995] ZACC 3.

Van den Eynde L, ‘The South African Constitutional Court’s death penalty and rendition cases as tools for litigants abroad’ (2016) 49 CILSA 1.

Footnote(S):

1 L Mathebe, ‘Multiculturalism, Democratic Citizenisation and the Case of the Death Penalty in South Africa’ (2025) 17 Africa Review 406.

2 S v Makwanyane and Another (CCT3/94) [1995] ZACC 3.

3 A Klaasen, ‘Constitutional interpretation in the so-called “hard cases”: Revisiting S v Makwanyane’ (2017) 1 De Jure 1.

4 L Van den Eynde, ‘The South African Constitutional Court’s death penalty and rendition cases as tools for litigants abroad’ (2016) 49 CILSA 1.

5 Mathebe (n 1).

6 Makwanyane (n 2).

7 Makwanyane (n 2).

8 Makwanyane (n 2).

9 Makwanyane (n 2).

10 Makwanyane (n 2).

11 Makwanyane (n 2).

12 Makwanyane (n 2).

13 Makwanyane (n 2).

14 Makwanyane (n 2).

15 Makwanyane (n 2).

16 Makwanyane (n 2).

17 Makwanyane (n 2).

18 Makwanyane (n 2).

19 Makwanyane (n 2).

20 Makwanyane (n 2).

21 Makwanyane (n 2).

22 Makwanyane (n 2).

23 Makwanyane (n 2).

24 Van den Eynde (n 4).

25 Klaasen (n 3).

26 Klaasen (n 3).

27 Klaasen (n 3).

28 Makwanyane (n 2).

29 Makwanyane (n 2).

30 Makwanyane (n 2).

31 Makwanyane (n 2).

32 Mathebe (n 1).

33 Makwanyane (n 2).

34 Makwanyane (n 2).

35 Makwanyane (n 2).

36 Makwanyane (n 2).

37 R Laubscher and M van Staden, Landmark Constitutional Cases That Changed South Africa (UJ Press 2023).

38 Mathebe (n 1).

39 Mathebe (n 1).

40 Mathebe (n 1).

41 Makwanyane (n 2).

42 Van den Eynde (n 4).

43 Van den Eynde (n 4).

44 Van den Eynde (n 4).

45 Klaasen (n 3).

46 Klaasen (n 3).

47 Klaasen (n 3).

48 Klaasen (n 3).

49 Klaasen (n 3).

50 Makwanyane (n 2).

51 Laubscher and van Staden (n 37).

52 Makwanyane (n 2).

53 Mathebe (n 1).

54 Van den Eynde (n 4).