The Landmark Case Of S V Makwanyane
- Lets Learn Law
- Oct 8
- 3 min read
The S V Makwanyane case questioned the integrity of our Interim Constitution and the values we claim to stand on as a nation, especially during a period of transition from Apartheid to democracy. This case is regarded as a landmark case as it abolished the death penalty in South Africa.
1. Facts of the case
T. Makwanyane and M. Mchunu 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 for the murder counts under section 277(1)(a) of the Criminal Procedure Act 51 of 1977. They appealed to the Appellate Division, which dismissed the appeals against convictions but referred the constitutionality of the death penalty to the Constitutional Court, as the new Interim Constitution (1993) raised questions about its validity.
2. Issues of the case
The question that arose was whether the death penalty, as authorized by section 277(1)(a) of the Criminal Procedure Act, violate the rights to life (section 9), dignity (section 10), and freedom from cruel, inhuman, or degrading punishment (section 11(2)) under the Interim Constitution of South Africa?
3. Rulings from legislations
The Interim Constitution protects fundamental rights, including the right to life (section 9), the right to dignity (section 10), and the right to be free from cruel, inhuman, or degrading punishment (section 11(2)). Section 35(1) requires courts to interpret these rights in light of public international law and comparable foreign case law, promoting values of an open and democratic society based on freedom and equality. Any limitation of rights must be reasonable and justifiable under section 33.
4. Application of the legislative provisions to the case
The Constitutional Court, in a unanimous decision, analysed the death penalty’s compatibility with the Interim Constitution. The Court, led by Chaskalson P, held that the death penalty violates the right to life and dignity, which are central to the Constitution’s values. The Court found that the death penalty is cruel, inhuman, and degrading punishment, as it negates the inherent worth of human life and involves arbitrary application due to factors like race, poverty, and judicial discretion.
The Court considered international and comparative law (e.g., U.S., Indian, and Canadian cases) and found no compelling evidence that the death penalty is more effective than life imprisonment in deterring crime. The concept of ubuntu, emphasizing human dignity and communal values, further supported the Court’s reasoning. The state failed to justify the death penalty as a necessary limitation under section 33.
5. Conclusion
The Constitutional Court declared the death penalty unconstitutional, invalidating section 277(1)(a) of the Criminal Procedure Act and any similar provisions. The Court ruled that no executions could proceed, and prisoners awaiting execution should remain in prison until resentenced. This decision abolished the death penalty in South Africa, affirming the primacy of human rights in the new constitutional order.
References
Case Law
S v Makwanyane and Another (CCT3/94) [1995] ZACC 3; 1995 (6) BCLR 66 1995 (3) SA 391; [1996] 2 CHRLD 164; 1995 (2) SACR 1 (6 June 1995)
Legislation
Criminal Procedure Act 51 of 1977
Interim Constitution of South Africa, Act 200 of 1993
This article is authored by Duduzile Sikhosana, 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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