INDEPENDENT INSTITUTE OF LAY

ADVENTISTS OF KIGALI
(INILAK)

FACULTY OF LAW

CRIMINAL PROCEDURE WORK

DISCUSSION ON THE FACTS AND

LEGAL ISSUES IN S V MAKWANYANE
1995 (3) S.A.391 (CC)

Prepared by: Hyacinthe H.

Kigali, March 2011

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ABBREVIATIONS AND ACRONYMS

CC : Criminal Court
Http : Hyper Text Transfer Protocol
Ibid : Ibidem
Id : Idem
Sv : State Versus
S.A. : South Africa
ULK : Kigali Independent University
WWW : World Wide Web
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TABLE OF CONTENTS

ABBREVIATIONS AND ACRONYMS.............................................................................i

TABLE OF CONTENTS....................................................................................................ii

1. INTRODUCTION............................................................................................................1
1.1. Facts............................................................................................................................1
1.2. Legal issues.................................................................................................................1
1.3. Death penalty..............................................................................................................1

2. DISCUSSION ON FACTS AND LEGAL ISSUES IN S v. Makwanyane..................2

2.1. Fundamental rights and limitation of rights................................................................2
2.2. The essence of human dignity in South Africa today.................................................3
2.3. Death penalty..............................................................................................................3
2.4. Legal issues of death penalty by other countries.........................................................4

BIBLIOGRAPHY................................................................................................................6
 1

1. INTRODUCTION

This course work is about a summary of facts and legal issues in the S v Makwanyane
1995 (3) S.A. 391 (CC), and for a good comprehension of this work, I prefer to start on the
definitions of key words in the topic of this work which are: facts, legal issues, death
penalty.

1.1. Facts

According to the American Heritage® Dictionary of the English Language1, the word fact
(făkt) is a noun which means: 1) a. something demonstrated to exist or known to have
existed; b. A real occurrence; an event; 2) A thing that has been done, especially a crime;
3) Law The aspect of a case at law comprising events determined by evidence.

1.2. Legal issues

It is a noun which means affirmation, allegation, argument, asseveration, cause, concern

arising from law, counter argument, debatable point, declaration, disputed point of law,
fact put in controversy by the pleadings, item, insistence on a right or claim, justification2.

According to Catherine Baker, legal issues are questions concerning the protections that
laws or regulations should provide3.

1.3. Death penalty

According to Gerard N. Hill & al, death penalty means the sentence of execution for
murder and some other capital crimes4.

1
The American Heritage® Dictionary of the English Language, 4th edition Copyright © 2010 by Houghton
Mifflin Harcourt Publishing Company. All rights reserved, [Online] available at
http://www.yourdictionary.com/fact, accessed on 23rd February 2011.
2
X, legal issue [Online], available on http://legal-dictionary.thefreedictionary.com/legal+issue, accessed at
23rd February 2011.
3
Catherine Baker, Exploring the Issues Raised by Genetic Research, [on line] available at
http://www.ornl.gov/sci/techresources/Human_Genome/publicat/genechoice/glossary.html#legal, accessed
on 23rd February 2011.
4
Gerald N. Hill and Kathleen T. Hill, Copyright © 1981-2005 All Right reserved [Online] available at
http://legal-dictionary.thefreedictionary.com/death+penalty, accessed on 23rd February 2011.
 2

2. DISCUSSION ON FACTS AND LEGAL ISSUES IN S v.

Makwanyane

This part of my assignment is about what are facts and what are legal issues according to
other countries other than South Africa and which were the reasons and position of
Makwanyane on death penalty.

2.1. Fundamental rights and limitation of rights

Fundamental rights and freedoms are not absolute. Their boundaries are set by the rights of
others and by the legitimate needs of society. Generally, it is recognized that the public
order, safety, health and democratic values justify the imposition of restrictions on the
exercise of fundamental rights5.

States are obliged in different ways by human rights bearing duties to respect, to protect
and to fulfill. This concept was first developed by Shue 6 and has become widely used, for
example by the Committee on Economic, Social and Cultural Rights. Most importantly in
this context, it is also laid down in section 7 (2) of the South African Constitution.7

The limitation is a synonym for infringement. A law which limits a right infringes that
right. … The reasons for limiting a right need to be exceptionally strong. The limitation
must serve a purpose that most people would regard as particularly important8.

The rights in the Bill of Rights may be limited only in terms of law of general application
to the extent that the limitation is reasonable and justifiable in an open and democratic
society based on human dignity, equality and freedom9.

A limitation of rights that serves a purpose that does not contribute to an open and power
by people for people to people means the democratic society based on human life because
is at the central of values.
5
Gerhard Erasmus Limitation and suspension in D van Wyk et al (eds) Rights and Constitutionalism (1994)
629. Cited by Johan de Waal et al (2001), The bill of right handbook, 4th edition, JUTA&C O LTD, p. 144.
6
Inga T. Winkler (2007: 5), Respect, Protect, Fulfil: The implementation of the human right to water in
South Africa[Online] available at http://www.ielrc.org/activities/workshop_0704/content/d0729.pdf, accessed
on 22nd February 2011.
7
Republic of South Africa, Constitution of 1996, Act No. 108 of 1996, available at:
www.polity.org.za/html/govdocs/constitution/saconst.html?rebookmark=1, accessed on 22nd February 2011.
8
Johan de Waal et al (2001), op.cit., p. 145.
9
Ibid.
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2.2. The essence of human dignity in South Africa today

…. Nowhere is this more apparent than in the application of the social and economic rights
entrenched in the Constitution. These rights are rooted in respect for human dignity, for
how can there be dignity in a life lived without access to housing, health care, food, water
or in the case of persons unable to support themselves, without appropriate assistance10.

Even though the rights to life and human dignity carry a great deal of weight in the Bill of
Rights this is not to say that they could never be limited, for example, that the right to life
can be justifiably limited in the cases of self-defense11.

Section 36 contains a set of “relevant factors” to be taken into account by the court when
considering the reasonableness and justifiability of a limitation. These correspond exactly
to the factors identified as making up the proportionality enquiry in S v Makwanyane as12:
 The nature of the right;
 The importance of the purpose of the limitation;
 The nature and extent of the limitation;
 The relation between the limitation and its purpose, and
 Less restrictive means to achieve the purpose.

It is not easy to justify the limitation of such rights than other; a court must be based on
the importance of a particular right is the overall constitutional scheme.

2.3. Death penalty

Death is a cruel penalty and the legal processes which necessarily involve waiting in
uncertainty for the sentence to be set aside or carried out, add to the cruelty. It is also an
inhuman punishment for it "...involves, by its very nature, a denial of the executed person's
humanity",13 and it is degrading because it strips the convicted person of all dignity and
10
University of South Africa, Nazeem MI Goolam: human dignity - our supreme constitutional value,
available at http://www.ajol.info/index.php/pelj/article/view/43490/27025, accessed on 23rd February 2011.
11
Johan de Waal et al (2001), supra note 5, p. 155.
12
Ibid.
13
Furman v. Georgia, 408 U.S. 238, 290 (1972) (Brennan, J., Concurring), cited in S v Makwanyane
available on http://law.gsu.edu/ccunningham/fall03/DeathPenalty-SouthAfrica-Makwanyane.htm, accessed
on 22nd February 2011.
 4

treats him or her as an object to be eliminated by the state. The question is not, however,
whether the death sentence is a cruel, inhuman or degrading punishment in the ordinary
meaning of these words but whether it is a cruel, inhuman or degrading punishment within
the meaning of section 11(2) of our Constitution.14 The accused, who rely on section 11(2)
of the Constitution, carry the initial onus of establishing this proposition15.

According to S v Makwanyane was regarded with the constitutionality of the death penalty.
That capital punishments is the l imitation of rights to life, to human dignity and then to
freedom.

The death penalty served three purposes that could not be adequately served by another
punishment:
1. It served as a deterrent to violent crime;
2. It served to prevent the recurrence of violent crime;
3. It served as fitting retribution for violent crimes.

The state is obliged, to take action to protect human life against violation by others, like the
second but the third was not considered to be purpose fitting the type of the society.

The death penalty is unique in its irrevocability means that it differs from others
criminal punishment because it removes a person from the normal society I mean it is
her/his end of lifeabove16.

2.4. Legal issues of death penalty by other countries

In America: The earliest litigation on the validity of the death sentence seems to have
been pursued in the courts of the United States of America. The Fifth Amendment
(adopted in 1791) refers in specific terms to capital punishment and impliedly recognizes
its validity. The Fourteenth Amendment (adopted in 1868) obliges the states, not to
"deprive any person of life, liberty, or property, without due process of law" and it too
impliedly recognizes the right of the states to make laws for such purposes. The argument
that capital punishment is unconstitutional was based on the Eighth Amendment, which
14
Ibid.
15
Ibid.
16
Johan de Waal et al (2001), supra note 5, p. 155.
 5

prohibits cruel and unusual punishment.17 Although the Eighth Amendment "has not been
regarded as a static concept" and as drawing its meaning "from the evolving standards of
18

decency that mark the progress of a maturing society", 19 the fact that the Constitution
recognizes the lawfulness of capital punishment has proved to be an obstacle in the way of
the acceptance of this argument, and this is stressed in some of the judgments of the United
States Supreme Court.

In Europe: Article 2 of the European Convention protects the right to life but makes an
exception in the case of "the execution of a sentence of a court following [the] conviction
of a crime for which this penalty is provided by law." The majority of the Court held that
article 3 could not be construed as prohibiting all capital punishment, since to do so would
nullify article 220.

In India: Section 302 of the Indian Penal Code authorizes the imposition of the death
sentence as a penalty for murder. In Bachan Singh v State of Punjab, 21 the constitutionality
of this provision was put in issue. Article 21 of the Indian Constitution provides that: No
person shall be deprived of his life or personal liberty except according to procedure
established by law.

Concluding this assignment, in accordance with the theories above, I found that
everywhere in South Africa, United State of America, in Europe and in India they are
about the abolition of the death sentence.

17
S v Makwanyane, supra note 13,
18
Ibid.
19
Ibid.
20
Ibid.
21
Ibid.
 6

BIBLIOGRAPHY

1. Catherine Baker, Exploring the Issues Raised by Genetic Research, [on line] available
at
http://www.ornl.gov/sci/techresources/Human_Genome/publicat/genechoice/glossary.h
tml#legal, accessed on 23rd February 2011.
2. Furman v. Georgia, 408 U.S. 238, 290 (1972) (Brennan, J., Concurring), cited in S v
Makwanyane available on http://law.gsu.edu/ccunningham/fall03/DeathPenalty-
SouthAfrica-Makwanyane.htm, accessed on 22nd February 2011.
3. Gerald N. Hill and Kathleen T. Hill, Copyright © 1981-2005 All Right reserved
[Online] available at http://legal-dictionary.thefreedictionary.com/death+penalty,
accessed on 23rd February 2011.
4. Gerhard Erasmus Limitation and suspension in D van Wyk et al (eds) Rights and
Constitutionalism (1994) 629. Cited by Johan de Waal et al (2001), The bill of right
handbook, 4th edition, JUTA&C O LTD, p. 144.
5. Inga T. Winkler (2007: 5), Respect, Protect, Fulfil: The implementation of the human
right to water in South Africa[Online] available at
http://www.ielrc.org/activities/workshop_0704/content/d0729.pdf, accessed on 22nd
February 2011.
6. Republic of South Africa, Constitution of 1996, Act No. 108 of 1996, available at:
www.polity.org.za/html/govdocs/constitution/saconst.html?rebookmark=1, accessed on
22nd February 2011.
7. The American Heritage® Dictionary of the English Language, 4th edition Copyright ©
2010 by Houghton Mifflin Harcourt Publishing Company. All rights reserved, [Online]
available at http://www.yourdictionary.com/fact, accessed on 23rd February 2011.
8. University of South Africa, Nazeem MI Goolam: human dignity - our supreme
constitutional value, available at
http://www.ajol.info/index.php/pelj/article/view/43490/27025, accessed on 23rd
February 2011.
9. X, legal issue [Online], available on http://legal-
dictionary.thefreedictionary.com/legal+issue, accessed at 23rd February 2011.