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South Africa's Constitutional Court Abolishes the Death Penalty in Landmark Judgement S v Makwanyane and Another

Abstract: 

The Constitutional Court’s 1995 decision in S v Makwanyane and Another abolished the death penalty in South Africa by declaring Section 277(1)(a) of the Criminal Procedure Act unconstitutional. Applying a purposive and value-based interpretation, the Court emphasized constitutional principles of dignity, life, and ubuntu. It held that capital punishment violated the rights to life, dignity, and protection against cruel, inhuman, or degrading treatment, while also being arbitrary and error-prone. The Court rejected deterrence and retribution as valid justifications, ruling that life imprisonment serves as a sufficient alternative. All death penalty provisions were invalidated, marking a decisive shift from vengeance to a human rights-centered order.


Introduction:

The Constitutional Court of South Africa, in its landmark 1995 decision of S v Makwanyane and Another, decisively ruled against the constitutionality of the death penalty. This judgment, delivered under the newly adopted Constitution of the Republic of South Africa Act 200 of 1993, addressed fundamental questions concerning human rights, legal interpretation, and the values of a nascent democratic society.


The case originated from the Witwatersrand Local Division, where two accused individuals were convicted of murder and sentenced to death. Their appeal to the Appellate Division led to the referral of the death sentence's constitutionality, specifically concerning Section 277(1)(a) of the Criminal Procedure Act 51 of 1977, to the Constitutional Court. This pivotal moment placed the newly established Court in the position of determining whether capital punishment could align with the overarching principles of the Constitution.


The Court, presided over by Chaskalson P, adopted a “generous” and “purposive” approach to constitutional interpretation, emphasizing the underlying values of the Constitution rather than a narrow textual reading. This approach necessitated considering the historical context, the legislative background, and other provisions of Chapter 3 of the Constitution, particularly Section 9 (the right to life), Section 10 (human dignity), and Section 11(2) (the right not to be subjected to cruel, inhuman, or degrading punishment).


Interpretation and Sources of Law:

The Court affirmed that while public international law and foreign case law could offer guidance, they were not binding, and interpretations must align with the unique South African legal system, history, circumstances, and the Constitution's language and structure. Crucially, the Court acknowledged that African sources of law and legal thinking, embodying values such as “ubuntu,” should be recognized as part of the foundational values the Constitution aims to promote. Reports from technical committees involved in the Multi-Party Negotiating Process were also deemed admissible as background material to provide context for constitutional interpretation.


Arguments and the Court's Response:

Counsel for the accused contended that the death penalty violated human dignity, was inconsistent with the unqualified right to life, was irremediable, and could not be enforced without arbitrariness. Conversely, the Attorney-General argued for its retention as a deterrent, a means of retribution, and an acceptable form of punishment within South African society. He suggested that the farmers' failure to explicitly abolish it implied it was a matter for Parliament. The Government, however, supported abolition, agreeing that the death penalty was cruel, inhuman, and degrading.


The Court explicitly rejected the notion that public opinion, even if assumed to favour the death penalty, should be determinative. Judicial function, particularly in constitutional cases, requires upholding the Constitution's provisions without fear or favour, especially to protect the rights of minorities and marginalized individuals who cannot adequately protect their rights through democratic processes.


Central to the Court's reasoning were several key considerations:

  1. The Court concluded that the death penalty is indeed a cruel, inhuman, and degrading punishment within the meaning of Section 11(2). This finding was based on the enormity and irredeemable nature of the death sentence, the unavoidable presence of error and arbitrariness in its application, and the existing disparities in practice often linked to factors like race, poverty, and ignorance. Several concurring judgments vividly described the “death row phenomenon,” highlighting the mental and physical anguish suffered by condemned persons as intrinsically cruel and inhuman.


  2. The Court underscored the paramount importance of the rights to life and dignity, describing them as the most crucial of all human rights and the source of all other personal rights in Chapter 3. The carrying out of a death sentence was deemed to destroy life (protected by s 9) and annihilate human dignity (protected by s 10). It was viewed as the deliberate, systematic killing by the State, fundamentally denying the value of the victim's life and dehumanizing both the individual and society.


  3. A significant aspect emphasized by Ackermann J in his concurring judgment was the inevitably arbitrary nature of the death penalty. The Court acknowledged that, despite judicial guidelines, elements of chance and individual assessment pervaded every stage of the process from police investigation to the personalities of trial and appeal judges. This qualitative difference between the death sentence and any other punishment meant that arbitrariness in its imposition assumed a fundamentally different and unacceptable dimension.


  4. The Court integrated the indigenous African concept of “ubuntu” into its reasoning, highlighting its values of communality, interdependence, unconditional respect for human dignity, and co-responsibility. “Ubuntu” was seen as incompatible with a retributive approach to punishment that seeks vengeance rather than rehabilitation and prevention.


  5. The Constitution's two-stage approach requires any limitation of a fundamental right to be justified as “reasonable and necessary in an open and democratic society based on freedom and equality,” and not to “negate the essential content of the right”.


Deterrence: The Attorney-General failed to provide conclusive proof that the death penalty had a greater deterrent effect than life imprisonment.


Prevention: Life imprisonment was deemed sufficient for preventing convicted murderers from endangering society or other prisoners.


Retribution: The Court held that retribution should not be given undue weight in a society founded on human rights. The philosophy of “ubuntu” suggested that society should aim to prevent crime, not simply "get even" with criminals.


Essential Content: While not definitively interpreted, the Court indicated that the death sentence, by irrevocably taking life and annihilating dignity, could be seen as negating the essential content of these rights.


Ultimately, the Constitutional Court declared that Sections 277(1)(a), (c), (d), (e), and (f) of the Criminal Procedure Act 51 of 1977, and all corresponding provisions in other legislation sanctioning capital punishment, were inconsistent with the Constitution and thus invalid. The Court ordered that the State and its organs were forbidden from executing any person already sentenced to death under these invalidated provisions. All such individuals were to remain in custody until their death sentences were lawfully set aside and substituted with appropriate legal punishments.


This judgment represented a profound commitment to human rights and dignity, asserting that a society founded on these values must uphold them even for those who have committed the most heinous crimes. By abolishing the death penalty, South Africa positioned itself to move away from vengeance and retaliation towards understanding, reparation, and “ubuntu,” setting a powerful example for the new constitutional order and emphasizing that the State should be a role model in valuing human life.


The decision signifies that the justice system's effectiveness lies not in the severity of its most extreme punishment, but in its ability to protect human rights, prevent crime, and foster an environment of respect for life and dignity, even for criminals, who are not beyond the Constitution's protections.


References:

2.  The Constitution of the Republic of South Africa Act 200 of 1993 available at: https://www.gov.za/documents/constitution/constitution-republic-south-africa-act-200-1993-repealed-28-jan-1994

3.  The Constitution of the Republic of South Africa, 1996 available at: https://discover.sabinet.co.za/document/1165720

4.  Criminal Procedure Act 51 of 1977 available at: https://discover.sabinet.co.za/document/11538575


This article is authored by Henny Laka, Law Student from South Africa and Trainee of Lets Learn Law Legal Research Training Programme. The views and opinions expressed in this piece are solely those of the author.


 
 
 

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