S v Makwanyane and Another

Citation: CCT/3/94 ZACC 3

Court: Constitutional Court of the Republic of South Africa

Date of judgement: 6 June 1995

Parties involved: State, Themba Makwanyane and Mvuso Mchunu

Constitution Bench:

1. Chaskalson P
2. Ackermann J
3. Didcott J
4. Kriegler J
5. Langa J
6. Madala J
7. Mahomed J
8. Mokgoro J
9. O’Regan J
10. Sachs J
11. Kentridge AJ

Key Provisions/ Statutes:

• Constitution of the Republic of South Africa Act 200 of 1993 (Interim Constitution)
• Section 8: Right to Equality
• Section 9 : Right to Life
• Section 10: The right to dignity
• Section 11(2): Prohibition of Cruel, Inhuman or Degrading Punishment
• Section 33: The Limitations Clause
• Criminal Procedure Act 51 of 1977, s 277 (1) (a)

Summary:

The case of S v Makwanyane and Another case stands as one of the landmark and transformative final legal decision made by the Constitutional Court of the Republic of South Africa. The judgement in this case fundamentally shaped the legal field and law in South Africa. The matter in this case originated when the Appellate Division referred the question of the constitutionality of death penalty to the Constitutional Court in 1994, following the trial and the sentencing of both the defendants in April 1992. The defendants, T Mkwanyane and M Mchunu were sentenced to death for multiple counts of murder and robbery in April 1992. The S v Makwanyane and Another case was heard by the Constitutional Court of the Republic of South Africa in February 1995. The Constitutional Court’s final landmark judgement was delivered on 6 June 1995 which declared the death penalty unconstitutional.

Facts:

The two accused, Themba Makwanyane and Mvuso Mchunu, were both 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. On each murder count they were sentenced to death under Section 277 (1) (a) of the Criminal Procedure Act 51 of 1977.Defendants appealed against their convictions and the sentences to the Appellate Division of the Supreme Court. The Appellate Division (now the Supreme Court of Appeal) dismissed their appeal against the convictions. It further found that the circumstances of the murders committed required a heaviest sentence. The Appellate Division postponed the appeals against the death sentences until the Constitutional Court of the Republic of South Africa decided upon the matter. The matter of the case was escalated to the Constitutional Court of the Republic of South Africa in order to determine whether the death penalty punishment was consistent with the Constitution and the fundamental human rights. The Constitutional Court of the Republic of South Africa heard the matter between 15 and 17 February 1995 and delivered the final land marking judgement on 6 June 1995.

Issue:

• Is death penalty a competent punishment for murder under Section 277(1) (a) of the Criminal Procedure Act 51 of 1977?
• Whether the death penalty can be justified under Limitations Clause Section 33?
• Is death penalty consistent with the Interim Constitution of the Republic of South Africa?
• Whether death penalty violates the Section 9 Unqualified right of life and Section 11(2) prohibition against cruel, inhumane or degrading punishment?

Arguments:

Arguments for the accused  (defendants)

• The death sentence penalty is a cruel, inhuman and degrading
• The death sentence is an affront to human dignity, it violated the right to human dignity (Section 10).
• Inconsistent with Right to life: The death penalty infringed upon the unqualified right to life (section 9). The Constitution does not provide any exceptions which indicates that the death sentence cannot be justified under any circumstances as the right to life is
• Irremediable error: if there is judicial or systemic error, the death sentence cannot be reversed or corrected.
• The principle of ‘ubuntu’ is not compatible with death sentence as it upholds humanity and
• Death sentence invalidates the essential content of the right to life and other rights that flow from it.
• Capital punishment unequally and discriminatorily affects the poor and marginalized

Arguments for the State:

• State sanctioned killing serves as a deterrent to the violent and brutal
• The death penalty meets the society’s need for adequate retribution for heinous crimes and reflects public opinion.
• The death penalty serves as a way to prevent the crimes harming the public’s
• State sanctioned punishment is globally recognized as a legitimate form of
• Death penalty is a form of punishment that is considered and acceptable within the South African society.
• Within the Constitution death penalty has not been recognized as “cruel, inhuman or degrading” and therefore should be left to the Parliament to take a decision.

Ratio Decidendi:

The Constitutional Court led by Chaskalson P applied the constitutional provisions which were:

• Section 9 : Right to Life
• Section 10: Right to Dignity
• Section 11 (2):Prohibition of Cruel, Inhumane or Degrading Punishment
• Section33: Limitation Clause

Application:

The right to life

The Constitutional Court applied the Interim Constitution of South Africa, the right to life under section 9 which guarantees every person the right to life. This means that there is no exception to take human life and cannot be able to impose the death penalty. The Constitutional Court interpreted the unqualified right to prohibit death penalty. The right to life is a fundamental right that is inalienable. The right is non-derogable, which means that it cannot be violated or suspended even in a state of emergency. It is of the paramount importance of the state to uphold the protection of the lives of all humans and not endanger it. The right for everyone should be protected by law.

The right to human dignity

The Constitutional Court applied section 10, the right to human dignity which ensures that everyone is treated with dignity, respect and protected. The death penalty violated against the right to dignity of the defendants as the death sentence. The Court reasoned that the capital punishment is unconstitutional and did not align with the right to dignity. The death penalty was deemed inhumane as it denied the defendants fundamental humanity. It is degrading as it takes away a person’s dignity.

Section 11 (2): Prohibition of Cruel, Inhumane or Degrading Punishment

The Court applied section 11 (2) prohibited any person from being subjected to cruel, torture of any kind, inhumane or degrading punishment. The specific selection of which people deserve the death penalty was found to be discriminatory and arbitrary. The long awaited time for execution spent on death row was seen to be a form of a cruel and degrading punishment.

Limitation Clause:

Section 33 of the Limitation Clause granted the Constitution the authority to limit rights however it must be justifiable in an open and democratic society. The State could not be able to justify the death penalty under section 33. The State could not prove that the death sentence is a reasonable deterrent to murder than any alternative extreme punishment of life imprisonment. The lack of justification proved that the death penalty cannot be justified as a punishment for murder committed by the defendants. The Constitutional Court did not find conclusive proof that death penalty was an important reasonable deterrent to murder instead of life imprisonment.

Obiter Dicta:

• Ubuntu: Several judges upheld the Africa concept of ‘Ubuntu’ which emphasizes humanity, dignity, interconnectedness and social justice in order to support the abolition of death penalty.
• Judicial Independence: Chaskalson J confirmed that the state’s legal duty is to interpret the Constitution and further uphold its provisions with impartiality and objectiveness.
• Public Opinion: The bench had different interpretations of death sentence. The minority agreed upon the death penalty as they reasoned it with protection of the society from heinous crimes. The majority agreed upon analysing and interpreting the Constitution and not only relied on public opinion. Even though most of the societies in South Africa were supported death penalty at the time, the court upheld the constitutional rights.
• The death penalty should be much more focused on correcting, rehabilitation not revenge.

Judgement:

The Constitutional Court with 11 judges unanimously held that section 277 (1) (a) of the Criminal Procedure Act 51 of 1977 was not aligning with the constitution and invalid. The full bench of eleven judges unanimously ruled that the capital punishment was unconstitutional. The court upheld section 9, 10 and 11 (2) of the Constitution of South Africa. Even if the death sentence violated and limited section 9, 10 and 11 (2) cannot be justified as reasonable in an open and democratic society. The Court reaffirmed the need of a generous approach in interpreting the fundamental human rights in Chapter Three which ensures that the individuals should receive the protection.

• The Constitutional Court unanimously held that the death penalty is unconstitutional as it constitutes the cruel, inhuman and degrading punishment.
• The Court upheld the right to life and
• The Constitutional Court’s ruling invalidated Section 277 (1) (a) of the Criminal Procedure Act 51of 1977 which stated the death sentence as a competent sentence that can be imposed to a person who convicted murder.

Conclusion:

The 1995 final judgement in S v Makwanyane and Another handed down by the Constitutional Court of the Republic of South Africa ruled the death penalty as unconstitutional. The death penalty was declared inconsistent with the fundamental human rights enshrined in the Interim Constitution of South Africa. The Constitutional Court declared death penalty invalid and upheld the right to life, dignity and constitutional values. Section 277 (1) (a) of the Criminal Procedure Act 51of 1977 was invalidated. The S v Makwanyane and Another is arguably the most foundational judgement of the South Africa’s Constitutional Court. This case’s ruling not only developed the South African legal framework but also corrected the systemic flaws within the application and enforcement of law in the societies. The case represents the transforming and evolving law which adapts to the constant changing societal morals and constitutional values. The case resolved the prolonged debates regarding the state sanctioned killings, eliminating it as a legal punishment sentence in South Africa. This final judgement remains one of the land marking decisions to uphold the fundamental human rights and continues to build the South African legal framework until the present day.

Bibliography:

Legislation

1. Constitution of the Republic of South Africa Act 200 of 1993(Interim Constitution)
2. Criminal Procedure Act 51 of 1977

Case Law

3. S v Makwanyane and Another 1995 (3) SA 391 (CC)