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S v Makwanyane
Constitutional court of South Africa.jpeg
Court Constitutional Court of South Africa
Full case name State v Makwanyane and Another
Decided 6 June 1995
Citation(s) [1995] ZACC 3, 1995 (3) SA 391 (CC), 1995 (6) BCLR 665 (CC), [1996] 2 CHRLD 164, 1995 (2) SACR 1 (CC)
Case history
Prior action(s) Referral from Appellate Division [1994] ZASCA 76
Case opinions
The death penalty is inconsistent with the Interim Constitution; the provisions of the Criminal Procedure Act, or any other law, sanctioning capital punishment are invalid.
Court membership
Judges sitting Chaskalson P, Ackermann, Didcott, Kriegler, Langa, Madala, Mahomed, Mokgoro, O'Regan & Sachs JJ, Kentridge AJ
Case opinions
Decision by Chaskalson
(all judges wrote concurring opinions)
capital punishment, human rights, constitutional law

S v Makwanyane and Another (CCT 3/94) was a landmark 1995 judgement of the Constitutional Court of South Africa. It established that capital punishment was inconsistent with the commitment to human rights expressed in the Interim Constitution. The court's ruling invalidated section 277(1)(a) of the Criminal Procedure Act 51 of 1977, which had provided for use of the death penalty, along with any similar provisions in any other law in force in South Africa. The court also forbade the government from carrying out the death sentence on any prisoners awaiting execution,[1] ruling that they should remain in prison until new sentences were imposed.[2] Delivered on 6 June, this was the newly established court's "first politically important and publicly controversial holding."[3]


The Court held that, in practice, there was an element of chance at every stage of the process of implementing the death penalty:

The outcome may be dependent upon factors such as the way the case is investigated by the police, the way the case is presented by the prosecutor, how effectively the accused is defended, the personality and particular attitude to capital punishment of the trial judge and, if the matter goes on appeal, the particular judges who are selected to hear the case. Race and poverty are also alleged to be factors.[4]

Human rights[edit]

The Court held further that the rights to life and dignity were the most important of all human rights and the source of all the other personal rights detailed in Chapter 3 of the Interim Constitution. Having committed to a society premised on the recognition and realisation of human rights, the State was required to value these two rights above all others, and to demonstrate that valuation in everything it did, including the punishment of criminals. This would not be achieved by depersonalising and executing murderers, even as a deterrent to others.[5] Quite apart from the fact that vengeance or payback had not the same constitutional heft as the right to life and the right to dignity, the court was not satisfied that it had been shown that capital punishment would be more effective as a deterrent than a life sentence.[6] Chaskalson P, writing for the majority, concluded that

the death sentence destroys life, which is protected without reservation under section 9 of our Constitution, it annihilates human dignity which is protected under section 10, elements of arbitrariness are present in its enforcement and it is irremediable [...]. I am satisfied that in the context of our Constitution the death penalty is indeed a cruel, inhuman and degrading punishment. "[7]

The court also affirmed its commitment to the principle of constitutionalism, and more specifically constitutional values such as freedom, dignity and equality, by rejecting the "arbitrary and capricious" nature of the death penalty.[7] Ackermann J made this much clear in his judgment:

We have moved from a past characterised by much which was arbitrary and unequal in the operation of the law to a present and a future in a constitutional state where state action must be such that it is capable of being analysed and justified rationally. The idea of the constitutional state presupposes a system whose operation can be rationally tested against or in terms of the law. Arbitrariness, by its very nature, is dissonant with these core concepts of our new constitutional order. Neither arbitrary action nor laws or rules which are inherently arbitrary or must lead to arbitrary application can, in any real sense, be tested against the precepts or principles of the Constitution.[8]

He went on to cite Prof. Etienne Mureinik in this regard: "If the new Constitution is a bridge away from a culture of authority, it is clear what it must be a bridge to. It must lead to a culture of justification—a culture in which every exercise of power is expected to be justified [....] If the Constitution is to be a bridge in this direction, it is plain that the Bill of Rights must be its chief strut."[9]

Public opinion[edit]

Although it was widely believed that a majority of the population favoured retention of the death penalty, the court affirmed its commitment to its duties as an independent arbiter of the Constitution.[10] It would not act merely as a vector for public opinion:

The question before us, however, is not what the majority of South Africans believe a proper sentence for murder should be. It is whether the Constitution allows the sentence.[11]

If public opinion were to be decisive, Chaskalson reasoned, there would be no need for constitutional assessment and adjudication. Although popular sentiment could have some bearing on the court's considerations, "in itself, it is no substitute for the duty vested in the Courts to interpret the Constitution and to uphold its provisions without fear or favour."[12] This was consistent with South Africa's recent passage from parliamentary sovereignty to supremacy of the constitution.

See also[edit]


  1. ^ There were about 400 of them, a moratorium having been placed on executions since 1989 as part of the country's negotiated transition to democracy (Juta's Statutes Editors. The Constitution of the Republic of South Africa. 9th Edition, 3rd Impression. Cape Town: Juta & Company, Ltd, 2010, p. xxxiii).
  2. ^ S v Makwanyane and Another [1995] ZACC 3 at 151, 1995 (3) S.A. 391
  3. ^ Juta's Statutes Editors, p. xxxiii.
  4. ^ S v Makwanyane at 48.
  5. ^ S v Makwanyane at 144.
  6. ^ S v Makwanyane at 146.
  7. ^ a b S v Makwanyane at 95.
  8. ^ S v Makwanyane at 156.
  9. ^ Mureinik, Etienne. "A Bridge to Where? Introducing the Interim Bill of Rights." South African Journal of Human Rights, 1994: 31–48 at 32.
  10. ^ S v Makwanyane at 89.
  11. ^ S v Makwanyane at 87.
  12. ^ S v Makwanyane at 88.

External links[edit]

Works related to S v Makwanyane and Another at Wikisource

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21 news items

Rand Daily Mail

Rand Daily Mail
Wed, 04 Nov 2015 22:33:45 -0800

Moreover, section 11 of the constitution guarantees for everyone the right to life, and section 12(1)(e) includes the right not to be punished in a cruel, inhumane or degrading way. In S v Makwanyane, the Constitutional Court held that these rights ...
Daily Maverick
Tue, 03 Nov 2015 13:05:50 -0800

This includes the right not to be treated or punished in a cruel, inhuman or degrading way. In S v Makwanyane, the Constitutional Court held that these rights (amongst others) precluded the state from imposing the death penalty, even in cases where a ...
Lexology (registration)
Fri, 31 Jul 2015 03:38:55 -0700

'In S v Makwanyane and Another I had occasion to consider whether background material is admissible for the purpose of interpreting the Constitution. I concluded that: "where the background material is clear, is not in dispute, and is relevant to ...

Mail & Guardian Online

Mail & Guardian Online
Mon, 25 May 2015 22:45:16 -0700

"Death sentence" was replaced by "life imprisonment" in 1995 in S v. Makwanyane CC: the former punishment i.t.o. Criminal Procedure Act of 1977 being abused by apartheid courts to convict and execute mercilessly the Africans only. Chris Hani did not ...

Rand Daily Mail

Rand Daily Mail
Thu, 07 May 2015 23:45:00 -0700

Welcome to Tweet of the Week. Every Friday I use this column to hand out an award to one person who has tweeted something of significance. There are no strict rules, only that the tweet in question must offer an important insight, define a debate ...

Independent Online

Independent Online
Fri, 27 Feb 2015 02:27:15 -0800

Johannesburg - Alex de Koker and Michael Erasmus were found guilty of murder, child abuse and assault with intent to do grievous bodily harm, by the Vereeniging Regional Court on Friday. They killed 15-year-old Raymond Buys at the Echo Wild Game ...

Independent Online

Independent Online
Mon, 10 Nov 2014 09:07:52 -0800

Besides, as Justice Chaskalson remarked in S v Makwanyane: “Capital punishment is not the only way that society has of expressing its moral outrage at the crime that has been committed. We have long outgrown the literal application of the Biblical ...
Mon, 23 Sep 2013 07:38:40 -0700

The CJA establishes a criminal justice system for children who are in conflict with the law, in terms of the values underpinning the Constitution and the spirit of ubuntu. Ubuntu negates any form of maltreatment abuse or degradation. In S v Makwanyane ...

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