This Case commentary is written by Lindiwe Nchonyane, a Second Year Law Student of University of Johannesburg

CASE DETAILS:

COURT: CONSTITUTIONAL COURT

BENCH: 11 BENCH JUDGES; CHASKALSON P, ACKERMANN J, DIDCOTT J, KENTRIDGE AJ, KRIEGLER J, LANGA J, MADALA J, MAHOMED J, MOKGORO J, O’REGAN J, SACHS J.

Citation: 1995 (6) BCLR 665, 1995 (3), [1996] 2 CHLRD,1995 (2) SACR 1

Type: Judgement

Judgment Date: 6 JUNE 1995

Key issues: Murder, Death Penalty, Robbery with aggravating circumstances, Foundation for human rights

PARTIES-

1. Prosecution: The State

2. Accused: T Makwanyane and M Mchunu- The two accused were convicted of four counts of murder, one count of attempted murder, and one count of robbery with aggravating circumstances, they were sentenced to death on each count of murder and life imprisonment on other counts.

Abstract:

This commentary focuses on one of the important cases decided by the Constitutional Court of South Africa, S v Makwanyane, 1995. This case brought about the abolishing of the death penalty. It emerged from two people who were found guilty of murder and were sentenced to death, which called for reconsideration of the death penalty under the new Constitution. The right to life and the ban against torture and inhuman, degrading punishment were at the very foundation of human dignity and equality. Besides, declaring the death penalty unconstitutional, this decision became a benchmark by which human rights were protected in South Africa in the age after apartheid. The commentary goes a step further to analyse this decision on South African Law and its contribution to the development of human rights law across the world and identifying the promotion of the rule of law and protection of individual rights as its major contribution.

Introduction:

The appellants challenged the constitutionality of the death penalty, arguing that it infringed upon their right to life as protected by the Constitution. The abolition of the death penalty had been an attempt of controversy in South Africa, especially during the apartheid regime where the death penalty was used against vulnerable groups. It landed before the Constitutional Court to decide whether the death penalty is a cruel, inhuman, and degrading punishment. The case was even more conspicuous given the social background of South Africa at that time. The country had changed from an authoritarian form of governance to a democratic form within the past few years and the new constitution aimed to rectify the injustices of the past. The considerations that the court was therefore relying on were not only legal but also moral and ethical on the matter of justice and punishment in the new South Africa.

The Judgement was based on the following facts:

The accused were charged with murder and robbery with aggravating circumstances about the worst crime of house invasion and assault of the deceased. They were convicted in the trial court, and the court sentenced them to death as was customary of the law at that time, Section 277(1)(a) of the Criminal Procedure Act No. 51 of 1977 prescribes that the death penalty is a competent sentence for murder. However, this decision was appealed for its constitutional implications and therefore was taken to the Constitutional Court. It was stated that the appeal embraced important concerns touching on the constitutional validity of the death penalty under the new 1993 South African Constitution that espoused rights to human dignity. Rarely in the history of South African law, the court was put in a position whereby the call for justice in crime circumstances had to be measured against constitutional rights.

The main issue raised in the S v Makwanyane and Another:

The main issue was whether the death penalty imposed was cruel, inhuman, and degrading.

At that time, Section 277(1)(a) of the Criminal Procedure Act No. 51 of 1977 prescribes that the death penalty is a competent sentence for murder.

Court's Holding and Reasoning

The Constitutional Court held that the death penalty is unconstitutional, ruling that it violated Section 9 (equality) and Section 11 (right to life) of the interim Constitution. The court reasoned that:

1. Right to Life: The court, in its reasoning sought to state that a right to life in any democratic society is paramount. The court also pointed out the fact that the state has to respect and promote life and an execution of capital punishment is in direct violation of life. This is because the death penalty is an irreversible punishment, that indicates that any mistake which may be made by the judicial system may be fatal.

2. Cruel and Unusual Punishment: In the eyes of the government capital punishment also equates to cruel treatment.[1] The world trend was shifting toward the rejection of the death penalty with many countries that bans it under human rights. The court also notes that a punishment should be appropriate for the crime committed and the death penalty is severe.

Justice Chaskalson delivered a majority judgment in which he portrayed a transformative Constitution for South Africa that re-emphasizes the need to have a justice delivery system that would uphold the tenets of human rights. Chaskalson’s judgment reflected the new Constitutional order, which seeks to entrench human rights and dignity.

Critical Analysis:

The decision in the case S v Makwanyane is not only legal but also moral and ethical in the history of South Africa. The detailed reasoning of the court shows the adherence to a fairly legal system. Moreover, the ruling also gives preference to rehabilitation rather than the reformatory site which is critical to creating a society. The court’s decision opens up the discussion of the kinds and purposes of punishment as well as the role of the state toward citizens. The given decision of the court should be seen as an invitation to continue thinking of how one can get justice done in a way that is human rights compliant, and that delivers social justice.

Conclusion

While the S v Makwanyane case law is probably one of the most famous cases in South African law, it is also a very important case as it shifts from a retributive approach to the issue to a rights-based approach. Not only did the court dismiss the death penalty intensely but it supported the right to life and made discussions of justice and humanity in the post-apartheid potential in the post-apartheid period. The importance the court placed on the value of human dignity and especially the right to life, became a thought-provoking issue that continues to shape legalese and ethical discourses in South Africa and the world over.

References:

1. Chaskalson A ‘The New South African Constitution: A Transformative Approach’ (1995) Constitutional Court Review 1(1) pg. 1-20.

2. Ratner S. R ‘The Future of the Death Penalty in South Africa: A Historical Perspective’ (2002) Journal of South African Law 119(4) pg. 590-6.

3.S v Makwanyane and Another [1995] ZACC 3.

4. Southern African Legal Information Institute (saflii.org)

5. The South African Constitution Act 108 of 1996.

6. The Criminal Procedure Act No. 51 of 197

[1] Par 11, S v Makwanyane and Another.