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

S v Makwanyane (1995) 3 SA 391 (CC) is the first major judgment of the South African Constitutional Court. It's a landmark case that abolished the death penalty and established key principles of constitutional interpretation that still guide South African law today.

Understanding Makwanyane is essential for:

• Constitutional law exams
• Understanding the right to life and human dignity
• Learning constitutional interpretation methods

This guide covers:

• Facts and procedural history
• The legal issues
• The Court's reasoning
• Significance and legacy
• Study tips

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Quick Summary

Citation: The State v T Makwanyane and M Mchunu 1995 (3) SA 391 (CC)

Court: Constitutional Court of South Africa

Date: 6 June 1995

Judges: Chaskalson P, Ackermann J, Didcott J, Kentridge AJ, Kriegler J, Langa J, Madala J, Mahomed J, Mokgoro J, O'Regan J, Sachs J

Key Issue: Is the death penalty constitutional?

Holding: No. The death penalty violates the right to life (Section 11) and the right not to be subjected to cruel, inhuman, or degrading punishment (Section 12(1)(e)). It cannot be justified under Section 36 (limitation clause).

Outcome: Death penalty abolished in South Africa.

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Background: Death Penalty in South Africa

Pre-1994

Under apartheid, South Africa had one of the highest execution rates in the world:

• Between 1910 and 1990, over 4,000 people were executed
• Executions were racially skewed — Black South Africans were disproportionately sentenced to death
• The death penalty was mandatory for certain offenses (e.g., murder with aggravating circumstances)

1990-1995: Moratorium

• In 1990, President F.W. de Klerk announced a moratorium on executions (pause, not abolition)
• The interim Constitution (1993) did not explicitly prohibit or permit the death penalty
• Section 11(2) of the interim Constitution protected the right to life, subject to lawful limitations
• The question remained: Is the death penalty a lawful limitation on the right to life?

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The Facts

The Accused

• Themba Makwanyane and Mvuzo Mchunu were convicted of four counts of murder and robbery with aggravating circumstances in the Witwatersrand Local Division.
• They participated in an attack on a residence in which four people were killed.
• The trial court sentenced both accused to death.

The Constitutional Challenge

• Makwanyane and Mchunu challenged the constitutionality of the death penalty under the interim Constitution.
• The case was referred directly to the Constitutional Court for determination.

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The Legal Issues

The Constitutional Court addressed two main questions:

###1 Is the death penalty consistent with Section 11(2) (right to life) of the interim Constitution?

Section 11(2) of the interim Constitution:

"Every person shall have the right to life."

But: The Constitution also allows rights to be limited (Section 33 of the interim Constitution = Section 36 of the final Constitution).

Question: Can the death penalty be justified as a lawful limitation on the right to life?

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2. Is the death penalty consistent with Section 9 (right to human dignity)?

Section 9 of the interim Constitution (now Section 10):

"Every person shall have the right to respect for and protection of his or her dignity."

Question: Does execution violate human dignity?

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3. Is the death penalty consistent with Section 11(2) (freedom from cruel, inhuman, or degrading punishment)?

Section 11(2) of the interim Constitution (now Section 12(1)(e)):

"No person shall be subject to torture of any kind, whether physical, mental or emotional, nor shall any person be subject to cruel, inhuman or degrading treatment or punishment."

Question: Is execution cruel, inhuman, or degrading?

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The Court's Reasoning

1. Constitutional Interpretation Methodology

President Chaskalson (writing for the Court) laid out how the Constitution should be interpreted:

(a) Purposive interpretation:
The Constitution must be interpreted purposively — with a focus on its underlying values (human dignity, equality, freedom).

(b) International law:
Courts must consider international law when interpreting the Bill of Rights (Section 39 of the final Constitution).

(c) Foreign comparative law:
Courts may consider foreign law (how other countries interpret similar rights).

Why this matters:
The Court looked at how other democracies (Canada, Germany, Hungary, India, the United States) dealt with the death penalty.

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2. The Right to Life (Section 11(2))

Issue: Does the death penalty violate the right to life?

Court's reasoning:

• The right to life is the most fundamental right — all other rights depend on being alive.
• The death penalty is the ultimate denial of the right to life.
• While some limitation of the right to life may be justified (e.g., self-defence, lawful killing in war), the death penalty as punishment is different.

Conclusion: The death penalty prima facie (on its face) violates the right to life.

But: The state argued it could be justified under Section 33 (limitation clause). The Court addressed this later.

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3. The Right to Human Dignity (Section 9)

Issue: Does the death penalty violate human dignity?

Court's reasoning:

• Human dignity is a foundational value of the Constitution.
• Execution treats a person as an object to be eliminated, not as a human being with inherent worth.
• The death penalty is degrading — it denies the executed person's humanity.

Conclusion: The death penalty violates human dignity.

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4. Freedom from Cruel, Inhuman, or Degrading Punishment (Section 11(2))

Issue: Is the death penalty cruel, inhuman, or degrading?

Court's reasoning:

(a) The act of execution itself:

• Hanging (the method used in South Africa) is violent and degrading.
• It causes physical suffering (even if brief).

(b) The death row phenomenon:

• Condemned prisoners spend years on death row, awaiting execution.
• This prolonged period of mental anguish and uncertainty is cruel and inhuman.

(c) Impossibility of rehabilitation:

• The death penalty is irreversible. It denies any possibility of rehabilitation or redemption.

Conclusion: The death penalty is cruel, inhuman, and degrading.

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5. Can the Death Penalty Be Justified Under Section 33 (Limitation Clause)?

Even if the death penalty violates rights, it could still be constitutional if it's a justifiable limitation under Section 33 (now Section 36).

Section 33 test (now Section 36):

A limitation is justified if it's reasonable and necessary in an open and democratic society, considering:

• The nature of the right
• The importance of the purpose of the limitation
• The nature and extent of the limitation
• The relationship between the limitation and its purpose
• Less restrictive means to achieve the purpose

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Arguments FOR the Death Penalty (State's Position):

(a) Deterrence:
The death penalty deters crime (especially murder).

(b) Retribution:
Society has a right to exact the ultimate punishment for the ultimate crime.

(c) Public opinion:
Polls showed majority support for the death penalty.

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Court's Response:

(a) Deterrence:

• No conclusive evidence that the death penalty deters crime more effectively than life imprisonment.
• International studies show no clear deterrent effect.
• South Africa's high crime rate persisted despite having the death penalty for decades.

Conclusion: Deterrence does not justify the death penalty.

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(b) Retribution:

• Retribution is a legitimate sentencing objective, but it must be proportionate and respect human dignity.
• The death penalty is disproportionate — it treats the offender as beyond redemption.
• Life imprisonment can serve retribution without violating dignity.

Conclusion: Retribution does not justify the death penalty.

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(c) Public opinion:

• Public opinion cannot override constitutional rights.
• The Constitution protects minorities and unpopular individuals from the tyranny of the majority.
• Rights would mean nothing if they could be overridden by popular vote.

Chaskalson P:

"Public opinion may have some relevance to the enquiry, but in itself, it is no substitute for the duty vested in the Courts to interpret the Constitution and to uphold its provisions without fear or favour. If public opinion were to be decisive there would be no need for constitutional adjudication."

Conclusion: Public opinion does not justify the death penalty.

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(d) Risk of executing the innocent:

• The death penalty is irreversible. Wrongful convictions cannot be corrected after execution.
• South Africa's criminal justice system is not infallible — errors occur.
• The risk of executing an innocent person is too high a price to pay.

Conclusion: The irreversible nature of the death penalty weighs against justification.

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6. International and Foreign Law

The Court considered international and comparative law:

International Law:

• International Covenant on Civil and Political Rights (ICCPR): Article 6 permits the death penalty but restricts its use (e.g., only for "most serious crimes," not for juveniles, pregnant women).
• Trend toward abolition: Many democracies have abolished the death penalty (Canada, Germany, France, Australia, most of Europe).
• UN General Assembly resolutions calling for moratoriums and abolition.

Foreign Jurisdictions:

• Canada (R v Smith): Death penalty violates the right not to be subjected to cruel and unusual punishment.
• Germany: Death penalty abolished (violates human dignity).
• Hungary: Death penalty unconstitutional.
• India: Death penalty permitted but only in "rarest of rare" cases.
• United States: Death penalty permitted, but subject to strict procedural safeguards (and remains highly controversial).

Court's conclusion:
International law and foreign precedent support abolition. While not binding, they inform constitutional interpretation.

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The Court's Conclusion

Holding:

1. The death penalty violates:

   • Section 11(2): Right to life
   • Section 9: Right to human dignity
   • Section 11(2): Right not to be subjected to cruel, inhuman, or degrading punishment

2. The death penalty cannot be justified under Section 33 (limitation clause).

3. All provisions authorizing the death penalty in South African law are unconstitutional and invalid.

Order:

• The death sentences imposed on Makwanyane and Mchunu are set aside.
• The cases are remitted to the trial court for resentencing (to life imprisonment or another lawful sentence).

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Significance and Legacy

1. Abolished the Death Penalty

Makwanyane ended capital punishment in South Africa. No one has been executed since 1991 (the last execution pre-moratorium).

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2. Established Constitutional Interpretation Principles

The judgment set out how the Constitution should be interpreted:

• Purposive interpretation: Focus on underlying values (dignity, equality, freedom).
• International law is mandatory: Courts must consider international law.
• Foreign law is persuasive: Courts may consider how other democracies interpret similar rights.
• Public opinion does not override rights: Courts protect minorities and unpopular individuals.

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3. Affirmed the Role of the Constitutional Court

Makwanyane demonstrated that the Constitutional Court would:

• Protect fundamental rights even when unpopular
• Strike down laws supported by the majority
• Interpret the Constitution independently and fearlessly

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4. Influenced Global Abolition Movement

Makwanyane became a leading international authority on the death penalty. Courts in Kenya, Malawi, Uganda, and Zimbabwe cited Makwanyane when abolishing or restricting the death penalty.

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5. Set the Standard for Future Cases

Makwanyane is cited in almost every major Constitutional Court case on:

• Rights limitations (Section 36 analysis)
• Human dignity
• Use of international and foreign law

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Study Tips: Mastering Makwanyane for Exams

1. Know the Key Holdings

Three violations:

1. Right to life (Section 11)
2. Human dignity (Section 10)
3. Cruel, inhuman, degrading punishment (Section 12(1)(e))

Death penalty cannot be justified under Section 36.

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2. Understand the Limitation Analysis (Section 36)

The Court rejected three justifications:

1. Deterrence: No evidence it works better than life imprisonment.
2. Retribution: Can be achieved through life imprisonment.
3. Public opinion: Cannot override constitutional rights.

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3. Remember the Constitutional Interpretation Principles

Makwanyane established:

• Purposive interpretation
• Mandatory consideration of international law
• Persuasive value of foreign law
• Public opinion is irrelevant to rights protection

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4. Cite the Famous Quotes

On public opinion:

"If public opinion were to be decisive there would be no need for constitutional adjudication."

On human dignity:

"The rights to life and dignity are the most important of all human rights… By committing ourselves to a society founded on the recognition of human rights we are required to value these two rights above all others."

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5. Link to Other Rights and Cases

Makwanyane is relevant to:

• Section 11 (right to life)
• Section 10 (dignity)
• Section 12 (freedom from cruel treatment)
• Section 36 (limitation analysis)

Related cases:

• S v Williams (corporal punishment)
• S v Dodo (disproportionate sentences)
• Carmichele v Minister of Safety (state's duty to protect life)

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Common Exam Questions on Makwanyane

Question 1: What were the main reasons the Court gave for abolishing the death penalty?

Answer:

1. Violates right to life (Section 11)
2. Violates human dignity (Section 10)
3. Cruel, inhuman, and degrading (Section 12(1)(e))
4. Not justified under Section 36:
   • No evidence of deterrent effect
   • Retribution can be achieved through life imprisonment
   • Public opinion cannot override rights
   • Risk of executing the innocent

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Question 2: How did Makwanyane influence constitutional interpretation in South Africa?

Answer:

• Established purposive interpretation (focus on values: dignity, equality, freedom)
• Made international law mandatory (courts must consider it)
• Made foreign law persuasive (courts may consider it)
• Affirmed that public opinion does not override rights
• Demonstrated the Constitutional Court's role in protecting minorities and unpopular rights

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Question 3: Why did the Court reject the deterrence argument?

Answer:

• No conclusive evidence that the death penalty deters crime more effectively than life imprisonment.
• International studies show no clear deterrent effect.
• South Africa's high crime rate persisted despite having the death penalty for decades.
• The Court held that speculation or belief is not sufficient — evidence is required to justify limiting a fundamental right.

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Conclusion

S v Makwanyane is the foundation of South African constitutional law. It:

• Abolished the death penalty
• Established how the Constitution should be interpreted
• Affirmed the Constitutional Court's role as protector of rights
• Became a global landmark in the abolition movement

Master this case. You'll see it in almost every constitutional law exam.

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Related Reading

• Section 11 Explained: The Right to Life
• Section 10 Explained: The Right to Human Dignity
• Section 12 Explained: Freedom and Security of the Person
• Section 36 Explained: The Limitation Clause

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