S v Makwanyane

The Constitutional Court unanimously declared the death penalty unconstitutional under the interim Constitution, finding it violated the rights to life and dignity and constituted cruel, inhuman and degrading punishment. This landmark judgment abolished capital punishment in South Africa and established key principles of constitutional interpretation, including the role of foreign and international law and the court's duty to protect minority rights against majoritarian preferences.

Makwanyane and another were convicted of murder and sentenced to death under the Criminal Procedure Act. Before the sentences were executed, they challenged the constitutionality of the death penalty under sections 9 (right to life), 10 (human dignity), and 11(2) (prohibition of cruel, inhuman or degrading punishment) of the interim Constitution. The matter was referred directly to the Constitutional Court.

Whether the death penalty is consistent with the interim Constitution's protections of life, dignity, and the prohibition on cruel, inhuman or degrading punishment.

The death penalty is unconstitutional and invalid. All eleven judges agreed capital punishment violated the Constitution, though they differed in their principal reasoning, with the majority relying on the right to dignity and the prohibition on cruel, inhuman and degrading punishment, read with the right to life.

The death penalty is inconsistent with the Constitution's foundational commitments to human dignity and the right to life; the state may not deliberately terminate life as a form of punishment, as this constitutes cruel, inhuman and degrading treatment that is not justifiable under the limitations clause.

The Court engaged in an extensive analysis of domestic values reflected in the Constitution, international and foreign comparative law, and the purposes of punishment. It found that the death penalty serves no penological purpose that cannot be achieved by long-term imprisonment, that it is irrevocable and risks executing the innocent, that it has been arbitrarily applied, and that it is fundamentally inconsistent with a commitment to human dignity. Public opinion favoring capital punishment could not override constitutional rights, especially those of vulnerable minorities, and the state failed to show the death penalty was a justifiable limitation of constitutional rights.

The Court extensively discussed the role of public opinion in constitutional adjudication, emphasizing that courts must protect rights even against majority sentiment. The judgment also explored international and foreign law as interpretive aids, establishing their persuasive but not binding role in South African constitutional interpretation.

Makwanyane is the Constitutional Court's first major judgment and a foundational decision in South African constitutional law. It established core interpretive methodologies, affirmed the centrality of human dignity, and demonstrated the Court's willingness to protect fundamental rights independent of popular opinion, setting the tone for transformative constitutionalism.

S v Makwanyane 1995 (3) SA 391 (CC) [1995] ZACC 3