Case

State v Makwanyane & Anor

Name
Topic

CRUEL, INHUMAN OR DEGRADING TREATMENT- Death penalty not justifiable

DEATH PENALTY- Death penalty not justifiable
LIFE- Death penalty not justifiable

Tribunal

Constitutional Court

Country

South Africa (Africa)

Case Date

06 Jun 1995

Judge(s)

Chaskalson P, Ackermann J, Didcott J, Kriegler J, Langa J, Madala J, Mahomed J, Mokgoro J,

O'Regan J, Sachs J, Kentridge Ag J

Resume:
The two appellants were convicted in the Witwatersrand Local Division of the Supreme Court on a
number of charges, including four counts of murder, and sentenced to death. Their trial took place
prior to the Constitution coming into force and consequently, after their appeals against conviction
were dismissed, the Appellate Division postponed the hearing of their appeals against sentence until
the Constitutional Court could determine the constitutionality of the death sentence. The accused
contended that the death penalty, which is not expressly referred to in the Constitution, breached the
prohibition on cruel, inhuman or degrading punishment (s 11(2)) and that it violated the unqualified
right to life (s 9). They also asserted that the application of the punishment was necessarily arbitrary
and that it was incapable of correction in case of error. The South African Government accepted that
capital punishment was an unconstitutional violation of s 11(2). The Attorney-General of the
Witwatersrand (whose office is independent of the government) alleged, however, that the death
penalty was a necessary and acceptable form of punishment which maintained wide support in the
community. Moreover, to the extent that capital punishment did violate certain rights, the AttorneyGeneral argued that it was justifiable under s 33 because it served deterrent and retributive purposes.
Section 33 provides that any limitation of a right entrenched in Chapter 3 must be justifiable in an open
and democratic society based on freedom and equality, both reasonable and necessary, and must not
negate the essential content of the right in question. He further contended that if the framers of the
Constitution had wished to abolish the practice they could have done so expressly.
In declaring the death penalty unconstitutional for murder, aggravated robbery, kidnapping, childstealing and rape, it was held that:
Chaskalson P (Ackermann, Didcott, Kriegler, Langa, Madala, Mahomed, Mokgoro, O'Regan and Sachs
JJ and Kentridge Ag J concurring):
1.

The prohibition on cruel, inhuman and degrading punishment must be construed in the
historical context of the Constitution, in light of other related fundamental rights provisions in
Chapter 3, such as the rights to life, dignity (s 10) and equality (s 8), and in a way which
secures the full measure of its protection for individuals (dicta of Lord Wilberforce in Minister
of Home Affairs v Fisher [1980] AC 319, 328-9 applied).

2.

Evidence of the constitutional drafting process can be taken into account where it is clear, not
in dispute and relevant to showing why particular provisions were or were not included.
Capital punishment was the subject of debate during the multi-party negotiating process and
the failure to resolve the issue in the draft Constitution was a 'Solomonic solution' that
deliberately left the constitutionality of the death penalty to be determined by the
Constitutional Court.

3.

International and foreign jurisprudence concerning the death penalty is relevant to

determining the issue but its value is limited by the fact that, where death penalty challenges
have failed in other jurisdictions, the relevant instruments have (in contrast to the South
African Constitution) either specifically sanctioned capital punishment or have contained a

right to life guarantee which is subject to exceptions sanctioned by law. The Hungarian
Constitution does not contain such express provisions and the Hungarian Constitutional
Court has declared the death penalty to be unconstitutional (Decision No 23/1990 (X.31) AB,
Hungarian Constitutional Court considered).
4.

Attempts to avoid arbitrary decisions in the United States have led to considerable expense
and interminable delays.

5.

The death penalty is cruel, inhuman and degrading punishment, given that it can only operate
in an arbitrary manner and carrying it out destroys life, annihilates human dignity and is
irremediable.

6.

It is for the party relying on the legislation to prove it is justifiable in terms of the requirements
of the general limitation clause (s 33). While there is no absolute standard for determining
reasonableness and necessity, the inquiry requires a case-by-case consideration of factors
such as the nature of the right that is limited, its importance to an open and democratic
society based on freedom and equality, the purpose for which the right is limited and the
importance of that purpose to such a society, the extent of a limitation, its efficacy and, in
particular, whether the desired ends could be reasonably achieved through other means less
damaging to the right in question.

7.

Public opinion concerning the retention of the death penalty is not a substitute for the duty of
the court to act as an independent arbiter and interpreter of the Constitution. The court exists
to protect the rights of minorities and those marginalised in the democratic process and thus
serves a different function than the legislature.

8.

The meaning of the requirement that the limitation shall not negate the essential content of the
right is not entirely clear but at a minimum the provision means that the right should not be
taken away altogether under the guise of a limitation.

9.

Deterrence, prevention and retribution do not provide adequate justifications for retaining the
death penalty because the alternative sentence of life imprisonment meets these concerns.
Moreover, retribution should not be a major consideration in the balancing process because,
in order to be consistent with the indigenous value of 'ubuntu' (meaning humaneness,
personhood, morality) set out in the postamble to the Constitution, the emphasis should be on
crime prevention and not on killing criminals for revenge.

10. Taking this into account, together with the elements of arbitrariness and the possibility of error
in enforcing the death penalty, the clear and convincing case required to justify the death
sentence as a penalty for murder has not been made out.
11. The prohibition on cruel, inhuman or degrading punishment is applicable to all punishments
implemented after the Constitution came into effect, including punishments which were lawful
at the time of sentencing. The appropriate sentence in the instant case can now be determined
by the Appellate Court. Prisoners under sentence of death imposed in other cases will remain
in custody until their sentences can be set aside and substituted by a lawful punishment.
Per Ackermann, Didcott, Kriegler, Langa, Mahomed, O'Regan and Sachs JJ:
The death penalty also contravenes the right to life.
Per Ackermann J:
1.

Arbitrariness, which characterised apartheid, is not a part of the new constitutional order
which guarantees every person equality before the law.

2.

The right to life, whatever its scope, must encompass the right not to be deliberately put to
death by the state in an arbitrary and unequal manner.

3.

Society is entitled to reassurance that, following the abolition of the death penalty, violent,
unreformed criminals will not be released from prison if there is a reasonable possibility that
they will repeat their crimes. If there is an individual right not to be put to death by the criminal
justice system there is a correlative obligation on the state, through the criminal justice
system, to protect society from once again being harmed by such criminals.

Per Didcott and Kentridge JJ:

The abolition of the death penalty is not to be construed as misplaced sympathy for murderers (dicta
of Wright CJ in People v Anderson (1972) 493 P 2d 880, 896, 899 considered). On the contrary, the state
must set the example by demonstrating the priceless value it places on the lives of all its subjects,
even the worst.
Per Kriegler J:
Capital punishment cannot be vindicated by s 33(1) since no research can prove that it has a greater
deterrent effect than long imprisonment.
Per Mahomed J:
The death sentences irreversible consequence makes any reparation or correction impossible.
ORegan J:
It is hard to see how the methodical and deliberate destruction of life by the government can be
anything other than a breach of the right to life.
Per Sachs J:
1.

There is no scope for striking a proportional balance between the exercise of the right to life
and permissible derogations from it since a derogation such as execution eliminates the
subject of the right itself.

2.

A survey of African jurisprudence and legal history indicates that, where judicial procedures
were followed, the death penalty was not generally used as a punishment for murder.

Lawyers

For the Accused: W Trengove SC, G J Marcus, P H J Van Vuuren; instructed by G M

Budlender, N D B Orleyn-Sekete and the Legal Resources Centre
For the Respondent: K P C O von Lieres unde Wilkau SC, T P McNally SC, J S M Henning
SC; H E van Jaarsveld, R Bheka, R J Chinner, P P Stander, A J van Rensburg, A A L Neill, P
J Wasserman
For the Government of the Republic of South Africa: G Bizos SC, L M Molopa; instructed
by the State Attorney
For the Black Advocates Forum (BAFO), as amicus curiae: F E Davids, G M Makhanya;
instructed by Nat A Victor
For Lawyers for Human Rights, Centre for Applied Legal Studies, and the Society for the
Abolition of the Death Penalty in South Africa, as amicus curiae: D M Davis, D I Berger;
instructed by A Motala, S Ebrahim
For Ian Glauber, as amicus curiae: E Zar SC; instructed by K Mundell

Citations

1995 (3) SA 391 (CC); 1995 (6) BCLR 655 (CC); [1995] 1 LRC 269;

Notes

The Court refrained from expressing any view on the constitutionality of s 277(1)(b) of the
Criminal Procedure Act, which provides for the imposition of the death sentence for
treason committed when the Republic is in a state of war, except to note that different
considerations arising from s 33(1) might possibly apply.