S v Makwanyane
| S v Makwanyane | |
|---|---|
 |
|
| 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) |
| Keywords | |
| 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, ruling that they should remain in prison until new sentences were imposed. Delivered on 6 June, this was the newly established court's "first politically important and publicly controversial holding."
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.
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. 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.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. "
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