Authored By: Vuyokazi Jako
Cape Peninsula University of Technology
INTRODUCTION
The case of S v Makwanyane and Another is a landmark 1995 decision by the Constitutional Court of South Africa that unanimously abolished the death penalty, finding it inconsistent with the human rights commitments in the nation’s interim Constitution. The Court ruled that capital punishment was inconsistent with the rights enshrined in the country’s interim Constitution.
FACT AND LEGAL BACKGROUND
The two accused, T Makwanyane and M Mchunu, were convicted in the Supreme Court on multiple counts of murder, attempted murder, and robbery with aggravating circumstances and were sentenced to death for the murders.
Their appeal was heard by the Appellate Division after the Interim Constitution of the Republic of South Africa came into force. The Appellate Division invited argument on whether the death penalty, as provided for in Section 277(1)(a) of the Criminal Procedure Act No. 51 of 1977, was consistent with the new Constitution. The constitutional issue was then referred to the Constitutional Court for a final decision.
The core legal issue was whether the death penalty, as provided for in the Criminal Procedure Act, was inconsistent with the fundamental rights enshrined in the new Interim Constitution.
LEGAL ISSUE
The Constitutional Court examined whether the death penalty violated specific rights in the Bill of Rights and if so, whether such a limitation could be justified.
The Court considered the following constitutional provisions:
- Section 9: Every person shall have the right to life.
- Section 10: Every person shall have the right to respect for and protection of their dignity.
- Section 11(2): No person shall be subjected to cruel, inhuman, or degrading treatment or punishment.
In a unanimous decision with eleven concurring opinions, the Court held that the death penalty was unconstitutional. The key strands of the Court’s reasoning were:
- Violation of Foundational Rights: The Court emphasized that the rights to life and dignity are the most important human rights and the source of all other personal rights. The death penalty destroys life and annihilates human dignity, which the state is constitutionally bound to protect.
- Cruel, Inhuman, and Degrading Punishment: The Court found that the death penalty is inherently cruel and inhuman. Its irreversibility means that any miscarriage of justice can never be rectified.
- Arbitrariness and Inequality: The Court noted that the application of the death penalty was inherently arbitrary and could be influenced by factors such as the quality of legal representation, the attitudes of judges, and the accused’s race and financial means, making it impossible to apply fairly.
- Deterrence and Public Opinion: The Court rejected the argument that the death penalty was a unique deterrent to crime, finding no proof it was more effective than a life sentence. It also held that public opinion favouring the death penalty could not override the Court’s duty to uphold the Constitution.
- A New Legal Culture: The judgment underscored a break from the apartheid past, moving toward a “culture of justification” where every exercise of state power must be justified under the Constitution.
JUDGEMENT
The Court delivered a unanimous judgment, with all eleven judges writing separate but concurring opinions, collectively providing a rich and multi-faceted rationale for abolishing the death penalty.
- Primacy of Life and Dignity: The Court held that the rights to life and dignity are the most important of all human rights and the source of all other personal rights. The state must value and protect these rights in everything it does. The death penalty destroys life and annihilates human dignity.
- Cruel, Inhuman, and Degrading Punishment: The Court found the death penalty to be a cruel, inhuman, and degrading punishment. Its irreversibility means that any miscarriage of justice can never be rectified.
- Element of Chance and Arbitrariness: The judgment highlighted that the application of the death penalty was inherently arbitrary. The outcome could depend on factors such as the quality of the police investigation, the skill of the prosecutor and defender, the personal attitudes of the judges, and the accused’s race and social or economic status. This arbitrariness is fundamentally at odds with a constitutional state built on the rule of law.
- Deterrence and Public Opinion: The Court was not satisfied that the death penalty had been shown to be a more effective deterrent to crime than a sentence of life imprisonment. Furthermore, while public opinion might have favored the death penalty, the Court affirmed its duty to interpret and uphold the Constitution without fear or favor, stating that public opinion is “no substitute for the duty vested in the Courts”.
- A Bridge to a “Culture of Justification”: The Court emphasized a decisive break from the apartheid past, moving toward a new legal order. As cited by Ackermann J, this new order is a “culture of justification” where every exercise of state power must be justified under the Constitution.
OUTCOME
The Court declared Section 277(1)(a) of the Criminal Procedure Act and any other law authorizing the death penalty to be invalid. The government was prohibited from carrying out any pending executions, and prisoners on death row were to have their sentences commuted to imprisonment. S v Makwanyane is the cornerstone of South Africa’s constitutional jurisprudence. It established the primacy of human dignity and life, set a powerful precedent for rights-based adjudication, and aligned South African law with evolving international human rights norms.
The Makwanyane case was the first major holding of the newly established Constitutional Court and had a profound impact:
- It resulted in the invalidation of all laws authorizing the death penalty in South Africa.
- It established the Court’s role as a guardian of the Constitution and signaled a decisive break from the apartheid past toward a “culture of justification,” where every exercise of state power must be justified under the Constitution.
- The judgment is renowned for its extensive use of comparative and international law, marking a shift in South Africa’s interpretive approach to a more purposive method focused on the values underlying the Constitution.
REFERENCE(S):
1.https://en.wikipedia.org/wiki/S_v_Makwanyane
2.https://lawlibrary.org.za/akn/za/judgment/zacc/1995/3/eng@1995-06-06
6.https://recordoflaw.in/s-v-makwanyane-and-another-cct-3-94/
7.https://recordoflaw.in/s-v-makwanyane-and-another-cct-3-94/
