Sibiya and Others v Director of Public Prosecutions, Johannesburg High Court and Others

After the Constitutional Court declared the death penalty unconstitutional in S v Makwanyane (1995), all death sentences imposed prior to that judgment had to be set aside and replaced with lawful sentences. Despite legislation enacted to regulate the substitution process, many death sentences remained unsatisfied years later. In Sibiya and Others, it emerged that dozens of prisoners sentenced to death before Makwanyane had still not had their sentences substituted. The Constitutional Court therefore issued a mandamus and supervisory order in May 2005, compelling the relevant state authorities to take all necessary steps to substitute all outstanding death sentences and to report regularly to the Court. Over a period exceeding a year, the Court supervised the process through multiple reports, extensions of time, and further directives, until ultimately all death sentences were substituted, the final one being that of Mr Zacharia Machaisa in July 2006.

The Court completed its supervisory jurisdiction on 28 July 2006 after confirming that all outstanding death sentences imposed before 5 June 1995 had been set aside and replaced with lawful alternative sentences. No further orders were required, and supervision was formally concluded.

This case is a leading authority on the Constitutional Court’s power to issue mandamus and exercise supervisory jurisdiction to ensure compliance with its orders. It demonstrates how courts may go beyond declaratory relief to enforce constitutional rights effectively, particularly where systemic executive delay undermines constitutional mandates. It also marks the practical completion of the abolition of the death penalty in South Africa.