S v Makwanyane (Death Penalty Case)
Introduction
S v Makwanyane 1995 (3) SA 391 (CC) is the first and one of the most important judgments of the Constitutional Court of South Africa. Delivered on 6 June 1995, the case declared the death penalty unconstitutional, establishing the Court’s commitment to human dignity, equality, and the protection of fundamental rights. The judgment is foundational to South African constitutional law.
Facts
The accused, T Makwanyane and M Mchunu, were convicted of four counts of murder and one count of robbery. They were sentenced to death under section 277(1)(a) of the Criminal Procedure Act 51 of 1977, which provided for the death penalty as a competent sentence for murder. The case came before the Constitutional Court for confirmation of the constitutional validity of the death penalty, as required by the Interim Constitution.
Legal Issues
The central question was whether the death penalty was consistent with the Interim Constitution, particularly the rights to life (section 9), dignity (section 10), and freedom from cruel, inhuman, or degrading punishment (section 11(2)). The Court also considered whether the death penalty could be justified under the limitation clause (section 33).
Judgment
The Constitutional Court unanimously held that the death penalty was unconstitutional. Writing for the majority, President Chaskalson held that the death penalty violated the rights to life and dignity, and constituted cruel, inhuman, and degrading punishment. The Court found that the death penalty could not be justified under the limitation clause, as less restrictive alternatives (life imprisonment) were available.
Reasoning
The Court emphasised that the rights to life and dignity were the most important rights in the Bill of Rights. The death penalty, being irreversible and final, represented the ultimate negation of these rights. The Court rejected arguments based on deterrence, retribution, and public opinion, holding that constitutional rights cannot be sacrificed on the basis of popular sentiment.
Ubuntu
Several judgments in Makwanyane invoked the concept of ubuntu. Justice Langa described ubuntu as encapsulating values of group solidarity, compassion, respect, human dignity, and collective unity. Justice Mokgoro held that ubuntu militated against the death penalty, as it emphasised restorative rather than retributive justice. The invocation of ubuntu demonstrated the Court’s willingness to draw on indigenous African values in constitutional interpretation.
Significance
S v Makwanyane established several foundational principles. First, it confirmed the supremacy of the Constitution and the justiciability of fundamental rights. Second, it established the Court’s purposive, value-based approach to constitutional interpretation. Third, it demonstrated the Court’s independence from political pressure and public opinion. Fourth, it introduced ubuntu as a constitutional value. The case remains one of the most cited judgments in South African law.
Conclusion
S v Makwanyane is a landmark in South African constitutional law, affirming the inviolable dignity of every person and the state’s obligation to respect the right to life. The judgment set the tone for the Constitutional Court’s transformative jurisprudence, establishing the Court as a guardian of fundamental rights in the new constitutional order.