Authored By: Snegugu Bhengu
University of Cape Town
Case Title & Citation
The State v T Makwanyane and Mchunu [1995] CCT/3/94.
Court Name & Bench
The Constitutional Court of the Republic of South Africa.
Chaskalson P, Ackermann J, Didcott J, Kentridge AJ, Kriegler J, Langa J, Madala J, Mahomed J, Mokgoro J, O’Regan J, Sachs J.
Constitutional Bench.
Date of Judgment
6 June 1995.
Parties Involved
The Appellants are Makwanyane and Mchunu who have been accused of four counts of murder, attempted murder and robbery with aggravating circumstances.
The Defendant is the state of the Republic of South Africa who believe that the accused should receive the heaviest sentence under the law.
Facts
The two who are accused of murder, attempted murder as well as aggravating robbery were initially sentenced to death. They were convicted in the Witwatersrand Local Division of the Supreme Court. The appealed to the Appellate Division and the counsel for the accused argued that the death penalty is in conflict with section 9 and 11 (2) of the Constitution of South Africa. The Appellate Division confirmed the prior findings and further held that the murders justified the harshest possible sentence.
However, the Interim Constitution had come into force, and this made the Appellate Division question whether the death penalty was constitutional and further referred to the Constitutional Court to deal with the matter.
Issues Raised
The constitutionality of section 277 (1) (a) of the Criminal Procedure Act (the Act that prescribed the death penalty) and the implications of section 241 (8) of the Constitution.
Whether the death penalty violates the right to life, right to human dignity as well as the prohibition of cruel, inhuman or degrading punishment.
Is the death penalty justifiable under the limitations clause of the constitution.
Arguments of the Parties
The Accused- The counsel for the accused parties argued that the death penalty constituted cruel, inhuman and degrading punishment under the law. They further argued that it violate the right to life and human dignity. They further stated that the death penalty was irreversible which makes it impossible to correct potential errors in judgment of an accused individual. They also argued that using the death penalty essentially negates the essential content of fundamental rights (human dignity) and more particularly, the right to not be subjected to degrading punishment. Furthermore, they argued that waiting on death row contributes significantly to extreme mental suffering. They held that the Constitution must be interpreted in light of its values. Additionally, counsel argued that section 277 of the Constitution was not a law of general application (this is required under the limitations clause that is used to justify limiting certain rights).
The State- the Attorney General argued that the death penalty is generally recognised as a valid and real form of punishments all around the world and it was an effective way to deter violent crimes. It also meets the need for adequate consequences for “heinous crimes”. He further referred to public international law as a factor that needed to be taken into consideration when evaluating whether the death penalty was a “cruel, inhuman or degrading punishment within the meaning of section 11 (2).
Final Decision
The court found section 277 (1) (a) of the Criminal Procedure Act was declared unconstitutional. The death penalty is inconsistent with the Constitution. Therefore, all the death sentences were declared invalid.
Legal Reasoning
Constitutional Interpretation- The court chose to adopt a generous and purposive approach in its interpretation of the constitutionality of the death
penalty. They highlighted that when analysing the constitutionality of a particular concept that it must be interpreted along the lines of South Africa history, as well as the values of human dignity, equality and freedom. The court held that section 11 (2) of the constitution must be read in line with the following rights: right to life, right to dignity and the right to equality.
Nature of the Death Penalty- The court painted a vivid image of the finality and intensity of the death penalty and that it cannot be taken lightly because it is a punishment that cannot be undone. It also effectively deletes the previously listed rights in light of the constitution. Essentially, the court found the death penalty to be cruel, inhuman and degrading and not in line with the founding principles of the constitution.
Right to Life- the court held that the Constitution protects life unqualifiedly. Dignity is something inherent in every human being and cannot be taken away under any circumstances. To execute someone is to ignore the core right to life upheld in the Constitution.
Limitation Clause- the limitations clause is a list of exceptions that allow particular rights to be violated/ taken away from people. However, the limitation cannot destroy the essential concept of the rights. The death penalty utterly and completely undermines the right to life and therefore, the death penalty cannot be justified under the section 33 Limitation Clause in the Constitution.
Public Opinion- the court found that public opinion may be relevant, but it is not above the law/ the constitution. The general public may feel that the death penalty may be just in certain circumstances, but that does not allow us to bend at the will of the public. The Constitution is supreme law, and court must uphold constitutional values regardless of whether it is a popular decision or not.
International and Comparative Law- the court deeply considered foreign and international law. Across the board, it was found that many democratic countries have abolished the death penalty. Although foreign and international law is not inherently binding, the court found that such reliance may be persuasive. In the end, South Africa’s Constitution offers much stronger protection against the death penalty and in line with the values in the Constitution, it is best for the death penalty to be abolished because of its unconstitutionality.
Conclusion
The Constitutional Court unanimously held that the death penalty violates the rights to life as well as the human dignity that is encourages. It further constitutes cruel, inhuman and degrading punishment and is therefore unconstitutional and invalid under South African law. The death sentences assigned to the accused were found to be invalid.
As a result, the death penalty was official abolished. The harshest lawful sentence one may receive in South Africa is life imprisonment as the court may not impose the death penalty.
