The State v T Makwanyane and M Mchunu

The two accused were convicted in the Witwatersrand Local Division of the Supreme Court on four counts of murder, one count of attempted murder and one count of robbery with aggravating circumstances. They were sentenced to death on the murder counts and to long terms of imprisonment on the other counts. The crimes were committed during an armed robbery of a bank security vehicle delivering wages to Coronation Hospital in Johannesburg, during which four persons (two policemen and two security officials) were killed. The Appellate Division dismissed the appeals against conviction and concluded the circumstances warranted the heaviest sentence permissible. However, it postponed the hearing on the death sentences pending determination by the Constitutional Court of whether section 277(1)(a) of the Criminal Procedure Act 51 of 1977, which provides for the death penalty for murder, is consistent with the Constitution which came into force after their conviction. At the time of the hearing, there were over 300 persons on death row, and no executions had taken place in South Africa since 1989 due to a moratorium declared in 1990.

• Whether section 277(1)(a) of the Criminal Procedure Act 51 of 1977, which prescribes the death penalty as a competent sentence for murder, is inconsistent with the Constitution
• Whether the death penalty constitutes 'cruel, inhuman or degrading punishment' prohibited by section 11(2) of the Constitution
• Whether the death penalty violates the right to life protected by section 9 of the Constitution
• Whether the death penalty violates the right to dignity protected by section 10 of the Constitution
• Whether any such violations can be justified under the limitations clause in section 33 of the Constitution
• Whether the death penalty can be justified on grounds of deterrence, prevention, or retribution
• Whether the death penalty negates the essential content of fundamental rights
• The relevance of public opinion in determining the constitutionality of the death penalty
• The relevance and admissibility of international law and foreign comparative law
• Whether disparities in the application of capital punishment laws in different parts of South Africa affect constitutionality

1. In terms of section 98(5) of the Constitution, and with effect from the date of the order, the provisions of paragraphs (a), (c), (d), (e) and (f) of section 277(1) of the Criminal Procedure Act, and all corresponding provisions of other legislation sanctioning capital punishment which are in force in any part of the national territory in terms of section 229, are declared to be inconsistent with the Constitution and accordingly invalid. 2. In terms of section 98(7) of the Constitution, and with effect from the date of the order: (a) The State and all its organs are forbidden to execute any person already sentenced to death under any of the provisions thus declared invalid; and (b) All such persons will remain in custody under the sentences imposed on them, until such sentences have been set aside in accordance with law and substituted by lawful punishments. The Court left open the constitutionality of section 277(1)(b) concerning treason committed during wartime, as no argument was addressed on that issue. The matter was referred back to the Appellate Division for appropriate sentencing.

1. The death penalty for murder constitutes "cruel, inhuman or degrading punishment" within the meaning of section 11(2) of the Constitution when assessed cumulatively considering: the destruction of life protected by section 9; the annihilation of dignity protected by section 10; the elements of arbitrariness and inequality in its application; the impossibility of correction in case of error; and the irreversible nature of the punishment. 2. The death penalty violates the right to life in section 9 of the Constitution. The unqualified statement that "every person shall have the right to life" means at minimum that the State may not deliberately, systematically deprive persons of life through judicial execution as punishment. 3. The death penalty violates the right to dignity in section 10 of the Constitution. The deliberate execution process and the conditions of death row are inherently destructive of human dignity, treating the condemned person as an object rather than a human being. 4. These violations cannot be justified under section 33(1) of the Constitution because: a) The death penalty is not a reasonable limitation - there is no clear proof it has greater deterrent effect than long-term imprisonment; b) It is not justifiable in an open and democratic society based on freedom and equality - it conflicts with core constitutional values including ubuntu, dignity, and respect for life; c) It is not necessary - the legitimate goals of punishment (deterrence, prevention, retribution) can be achieved through severe sentences of imprisonment, including life imprisonment; d) Retribution alone cannot justify the limitation, particularly where it amounts to vengeance rather than measured response. 5. The inherent arbitrariness in the application of the death penalty cannot be eliminated through procedural safeguards and violates the right to equality before the law (section 8) and the principles of the constitutional state based on rule of law. 6. Section 277(1)(a) of the Criminal Procedure Act 51 of 1977 and corresponding provisions in other legislation in force in parts of South Africa are inconsistent with the Constitution and invalid. 7. In constitutional interpretation, courts must adopt a generous and purposive approach that gives meaning to rights in light of the underlying values of the Constitution, the historical context, and the objective of establishing an open and democratic society based on freedom and equality. 8. Public opinion, even if it favours retention of the death penalty, cannot override constitutional rights. The protection of rights through constitutional adjudication is designed to protect minorities and vulnerable persons who cannot adequately protect themselves through the democratic process. 9. While international law and foreign comparative law are relevant interpretive aids under section 35(1), the Court must interpret the South African Constitution according to its own text, context, structure, language, and the values it enshrines. 10. The rights in Chapter 3 of the Constitution protect all persons, including convicted criminals. Criminal conduct does not result in forfeiture of constitutional rights. Prisoners retain all basic rights except those necessarily removed by law, expressly or by implication.

1. LEGISLATIVE HISTORY AND BACKGROUND: The Court extensively discussed the history of the death penalty in South Africa, the moratorium on executions since 1989, debates during the constitutional negotiations, and the deliberate decision by the framers to leave the issue open for judicial determination. While informative of context, these historical matters were not strictly necessary to the legal determination. 2. DEATH PENALTY STATISTICS: The Court noted that approximately 1,100 people were executed between 1981-1990, that over 300 people were on death row, and analyzed crime statistics. Chaskalson P and Didcott J discussed at length whether the moratorium period showed increased crime rates, concluding the statistics did not support claims that the death penalty deters crime. These detailed statistical analyses went beyond what was necessary for the constitutional determination. 3. INTERNATIONAL TRENDS: While relevant under section 35(1), the extensive discussion of abolition trends worldwide, practices in neighboring countries, and the number of executions globally provided contextual background rather than binding legal principles. 4. COMPARISON WITH OTHER CONSTITUTIONAL SYSTEMS: The detailed analysis of how the death penalty has been treated in the United States (Furman, Gregg), India (Bachan Singh), Germany, Hungary, Canada (Kindler), Zimbabwe, Tanzania, and other jurisdictions provided comparative context but the Court emphasized these are not binding and must be approached with caution given differences in constitutional texts. 5. PRO DEO REPRESENTATION: Chaskalson P's observations about the inadequacies of the pro deo system, the disadvantages faced by poor accused, and suggestions that section 25(3)(e) might improve access to justice were not necessary to the decision, though they informed the arbitrariness analysis. 6. SECTION 33(1)(b) - ESSENTIAL CONTENT: Multiple judges (Chaskalson P, Kentridge AJ, Mahomed J, O'Regan J, Kriegler J) explicitly stated it was unnecessary to determine the meaning of the prohibition against negating "essential content" of rights in section 33(1)(b), leaving this for future cases. The various theories discussed (subjective vs objective approaches, relative approaches) remain obiter. 7. SCOPE OF RIGHT TO LIFE: Several judges (particularly Kriegler J, Mahomed J, O'Regan J) noted it was unnecessary and undesirable to give a comprehensive definition of the right to life or to determine its application to issues such as abortion, euthanasia, when personhood begins, or brain death. These remain open questions. 8. SELF-DEFENSE AND WARFARE: The discussion by several judges of how the right to life accommodates killing in self-defense, defense of others, quelling insurrection, warfare, and use of force by police (section 49(2) of the Criminal Procedure Act) was not necessary to the decision. The validity of section 49(2) was specifically left open. 9. SECTION 277(1)(b) - TREASON IN WARTIME: The Court expressly left open the constitutionality of capital punishment for treason committed during wartime, noting different considerations might apply and no argument had been addressed on the issue. 10. INDIGENOUS AFRICAN LAW AND VALUES: The extensive discussions by Mokgoro, Langa, Madala and particularly Sachs JJ about traditional African jurisprudence, the need to incorporate African legal values, ubuntu, and research suggesting African judicial systems generally did not impose death for murder, while valuable for future jurisprudence, went beyond what was necessary for this decision. Sachs J explicitly noted these materials were not properly argued and his comments should not be regarded as "laying down the law." 11. TORTURE AND COLONIAL PUNISHMENT PRACTICES: Sachs J's historical discussion of torture and cruel modes of execution in colonial South Africa, and the evolution away from these practices, provided historical context but was not necessary to the legal determination. 12. RETRIBUTION: While relevant to section 33 analysis, the extensive philosophical discussions about retribution versus vengeance, the role of ubuntu, and the Constitutional commitment to "understanding not vengeance" went beyond what was strictly necessary, though they illuminate constitutional values. 13. PUBLIC PARTICIPATION: The discussion by several judges (particularly Madala and Sachs JJ) responding to submissions about the need to canvas public opinion or conduct further research into community values, while clarifying the Court's role, was not strictly necessary to the decision. 14. DEATH ROW PHENOMENON: While relevant to the cruelty analysis, the detailed descriptions from Zimbabwean, Jamaican, and other cases of conditions on death row and psychological effects of awaiting execution, though powerful, provided more detail than strictly necessary for the legal conclusion. 15. PROPORTIONALITY TESTS: The extensive discussion of proportionality approaches in Canadian (Oakes test), German, and European human rights jurisprudence, while informative for future cases, went beyond what was necessary given the Court's conclusion that the basic requirements of section 33(1)(a) were not met. 16. IMPRISONMENT AND DIGNITY: Observations about how imprisonment affects dignity, prisoners' rights, and comments about conditions of imprisonment were contextual but not necessary to determine that execution violates dignity. 17. FUTURE SENTENCING: Comments about life imprisonment as an alternative, the need for possibility of parole (Ackermann J), and concerns about protecting society from dangerous criminals, while important policy observations, were not necessary to declare section 277(1)(a) unconstitutional. These obiter statements, while not binding, provide important guidance for future constitutional interpretation, indicate the Court's values and concerns, and have been influential in subsequent jurisprudence on issues such as ubuntu, the role of African law, constitutional interpretation methodology, and the content of fundamental rights.

This is one of the most important and celebrated judgments in South African legal history and constitutional jurisprudence worldwide. Its significance includes: 1. LANDMARK HUMAN RIGHTS DECISION: First major substantive decision of the newly established Constitutional Court, establishing its authority and interpretive approach. 2. CONSTITUTIONAL INTERPRETATION: Established the "generous and purposive" approach to interpreting the Bill of Rights, looking at the purpose of rights rather than narrow textual construction. Confirmed the two-stage approach: first determining if a right is infringed, then whether the limitation is justified under section 33. 3. BREAK FROM THE PAST: Symbolically marked South Africa's transition from apartheid to constitutional democracy. Demonstrated that the Constitution represents a decisive break from past injustices and authoritarianism. 4. AFRICAN CONTRIBUTION TO GLOBAL JURISPRUDENCE: South Africa joined the minority of nations to constitutionally abolish the death penalty. The judgment contributed significantly to the global abolitionist movement and international human rights jurisprudence. 5. UBUNTU AS CONSTITUTIONAL VALUE: First major case to give substantive content to the concept of ubuntu as a constitutional value, informing interpretation of rights. Several judges elaborated on ubuntu's meaning and significance. 6. DEATH PENALTY JURISPRUDENCE: Provides comprehensive analysis of death penalty issues including deterrence, retribution, arbitrariness, dignity, and the death row phenomenon. More thorough than many comparable judgments from other jurisdictions. 7. INTERPRETIVE AIDS: Established that foreign law and international law are relevant aids to interpretation under section 35, but South Africa must interpret its own Constitution in light of its specific context, language, and values. 8. ROLE OF PUBLIC OPINION: Clarified that public opinion, while relevant context, cannot override constitutional rights. The Court's duty is to protect minorities and the vulnerable, not to reflect majority will. 9. INDIGENOUS LAW: Several judges (particularly Mokgoro, Langa, Madala and Sachs JJ) emphasized the importance of African legal traditions and values in developing South African jurisprudence, calling for recognition of previously marginalized perspectives. 10. ARBITRARINESS AND EQUALITY: Established that inherent arbitrariness in application of punishment, when consequences are irreversible, violates constitutional equality guarantees and the rule of law. 11. DIGNITY AS FOUNDATIONAL: Confirmed human dignity as a core constitutional value, foundational to other rights. Even "the vilest criminal" retains human dignity and constitutional protection. 12. LIMITATIONS CLAUSE JURISPRUDENCE: Established stringent requirements for justifying limitations on fundamental rights, particularly rights to life and dignity. The State bears the onus of justification and must provide clear, convincing proof. 13. JUDICIAL INDEPENDENCE: Demonstrated the Court's independence by making a decision potentially at odds with public opinion and in the face of high crime rates. 14. INFLUENCE ON OTHER JURISDICTIONS: The judgment has been widely cited internationally and influenced death penalty litigation in other countries, particularly in Africa and the Commonwealth. 15. SOCIO-ECONOMIC CONTEXT: Recognized how poverty, inequality, race, and access to justice affect the criminal justice system and the arbitrary application of the death penalty. The case remains a cornerstone of South African constitutional law and is regularly cited for principles of constitutional interpretation, the values underlying the Constitution, the importance of dignity, and the approach to limitations on rights. It exemplifies the Constitutional Court's role in protecting fundamental rights and advancing constitutional values.