S v Makwanyane Explained: The Case That Abolished the Death Penalty

Citation: S v Makwanyane 1995 (3) SA 391 (CC)
Court: Constitutional Court
Date: 6 June 1995
Judges: Chaskalson P, Langa DP, Ackermann J, Didcott J, Kriegler J, Madala J, Mahomed J, Mokgoro J, O'Regan J, Sachs J, and others

Significance: This was the first major decision of the Constitutional Court and one of the most important judgments in South African legal history. It abolished the death penalty and established key principles for interpreting the Bill of Rights.

The Facts

• Makwanyane and another were convicted of murder and robbery with aggravating circumstances.
• They were sentenced to death under the Criminal Procedure Act.
• They challenged the constitutionality of the death penalty, arguing it violated their rights under the Constitution.

The Issues

1. Is the death penalty consistent with the Constitution?

2. Specifically, does it violate:

   • Section 9 (Equality)
   • Section 10 (Dignity)
   • Section 11 (Right to life)
   • Section 12 (Freedom and security, including freedom from cruel punishment)

3. If it does violate these rights, can the violation be justified under Section 36 (the limitations clause)?

The Holding

The Constitutional Court unanimously held that the death penalty is unconstitutional.

Key finding: The death penalty violates Section 11 (right to life) and Section 10 (dignity). It cannot be justified under Section 36.

The Court's Reasoning

1. The Death Penalty Violates the Right to Life (Section 11)

Section 11: "Everyone has the right to life."

The court held that the right to life is foundational. Taking a life, even as punishment, is the most extreme violation of this right.

From the judgment:
"The very purpose of capital punishment is to take life... [It] is the ultimate denial of human rights."

2. The Death Penalty Violates Dignity (Section 10)

Section 10: "Everyone has inherent dignity and the right to have their dignity respected and protected."

The court emphasized that dignity is central to the Constitution.

Dignity reasoning:

• The death penalty treats the offender as an object to be eliminated, not a human being with inherent worth.
• It denies the offender's capacity for rehabilitation.
• It rejects the possibility of redemption.

From the judgment:
"Respect for the dignity of all human beings is particularly important in South Africa. For apartheid was a denial of a common humanity."

3. The Death Penalty is Cruel, Inhuman, and Degrading (Section 12)

Section 12(1)(e): "Everyone has the right to freedom and security, including the right not to be treated or punished in a cruel, inhuman, or degrading way."

The court found that:

• The manner of execution (hanging) is cruel and inhuman.
• The waiting period on death row (uncertainty, isolation) constitutes inhuman treatment.
• The psychological suffering of awaiting execution is degrading.

4. The Death Penalty Cannot Be Justified Under Section 36

Even if the death penalty served a legitimate purpose (deterrence, retribution), the court held it could not be justified under the limitations clause.

Applying the Section 36 factors:

(a) Nature of the Right

Life and dignity are foundational rights. They are extremely difficult to limit.

(b) Importance of the Purpose

The state argued two purposes:

1. Deterrence: Preventing crime by making an example of offenders
2. Retribution: Punishing offenders proportionally

Court's response:

• Deterrence: No conclusive evidence that the death penalty deters crime more effectively than life imprisonment.
• Retribution: While punishment is legitimate, execution goes too far — it is disproportionate.

(c) Nature and Extent of the Limitation

The limitation is total — it completely extinguishes the right to life. This is the most severe limitation possible.

(d) Relation Between Limitation and Purpose

The connection between the death penalty and crime deterrence is weak and unproven.

(e) Less Restrictive Means

Life imprisonment achieves the same goals (incapacitation, retribution) without taking life.

Conclusion: The death penalty fails the Section 36 test.

How the Court Interpreted the Constitution

Makwanyane established foundational principles for constitutional interpretation:

1. Purposive Interpretation

Rights must be interpreted broadly and generously to give effect to their purpose.

From the judgment:
"The Constitution must be read as an integrated whole and its provisions must not be interpreted in isolation."

2. Consideration of International Law

Section 39 requires courts to consider international law when interpreting rights.

The court noted that:

• Most democratic societies have abolished the death penalty.
• International human rights instruments (e.g., UN covenants) favor abolition.

However: International law is persuasive, not binding. The South African Constitution is supreme.

3. Consideration of Foreign Law

The court examined how other countries (e.g., Germany, Canada, India, US) treat the death penalty.

Key finding: There is a global trend toward abolition, especially in democracies committed to human rights.

4. Constitutional Values Guide Interpretation

The court emphasized that interpretation must be guided by South Africa's constitutional values:

• Dignity
• Equality
• Freedom
• Accountability, responsiveness, and openness

The Outcome

The death penalty provisions in the Criminal Procedure Act were declared invalid.

Effect:

• Makwanyane and all others on death row had their sentences commuted to life imprisonment.
• The death penalty was permanently abolished in South Africa.

Concurring Judgments

All 11 judges agreed that the death penalty was unconstitutional, but they wrote separate judgments emphasizing different reasons:

• Chaskalson P (main judgment): Focused on dignity, life, and cruel punishment
• Langa DP: Emphasized ubuntu (African philosophy of humanity and interconnectedness)
• Ackermann J: Focused on the arbitrariness of the death penalty (risk of wrongful executions)
• Mokgoro J: Emphasized the importance of rehabilitation
• Sachs J: Highlighted the trauma of waiting on death row

Key concept introduced: Ubuntu

Langa DP: "Ubuntu translates as humaneness. In its most fundamental sense, it translates as personhood and morality... [It] emphasises the importance of the community."

Why Makwanyane Matters

1. It Was the First Major Constitutional Case

The Constitutional Court's first major decision set the tone for all future Bill of Rights jurisprudence.

2. It Established Interpretive Principles

The court's approach to interpreting rights (purposive, generous, values-based) still guides constitutional law today.

3. It Affirmed Dignity as Central

Dignity is not just another right — it is the foundation of the entire Constitution.

4. It Showed the Power of the Section 36 Test

Even if a right infringement serves an important goal, it can fail the proportionality test if less restrictive means exist.

5. It Rejected Public Opinion

At the time, polls showed majority support for the death penalty. The court held that rights trump majorities — that's what makes them rights.

From the judgment:
"Public opinion may have some relevance... but in itself, it is no substitute for the duty vested in the Courts to interpret the Constitution."

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📚 Study Tips: Mastering Makwanyane

1. Memorize the Core Holdings

Makwanyane stands for three propositions:

1. The death penalty violates dignity (Section 10) and life (Section 11)
2. It constitutes cruel punishment (Section 12(1)(e))
3. It cannot be justified under Section 36

2. Link Makwanyane to Section 36

This case is the best example of the Section 36 test in action. Use it whenever you analyze limitations.

3. Understand the Role of International Law

Makwanyane shows how Section 39 works:

• International law is considered (not binding)
• Foreign law is persuasive
• South African constitutional values prevail

4. Know the Ubuntu Principle

Langa DP's concurrence introduced ubuntu as a constitutional value. It emphasizes:

• Community over individualism
• Humanity and interconnectedness
• Rehabilitation over retribution

5. Practice Applying the Ratio

Ratio decidendi: The death penalty is unconstitutional because it violates dignity and life, and less restrictive means (life imprisonment) exist.

Hypothetical: "Is life imprisonment without parole also unconstitutional?"
Apply the ratio: Does it violate dignity? Is there a less restrictive means?

6. Connect to Other Rights

Makwanyane is relevant for:

• Dignity (Section 10)
• Equality (Section 9) — The death penalty was applied disproportionately to Black South Africans
• Cruel punishment (Section 12)
• Section 36 analysis

7. Cite Makwanyane in Exams

This case is always relevant. If you're discussing:

• Dignity
• The right to life
• Cruel punishment
• Section 36

→ Cite Makwanyane.

8. Read the Full Judgment

The judgment is long but readable. The court's language is clear, and the reasoning is foundational. Read it at least once.

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