LUNGELO PRISCILLA MASHIYANE
S v Makwanyane and Another (1995)
FACTS:
Early in June 1995, South Africa’s highest constitutional authority issued a ruling that
shifted both law and ethics across the country. At stake were two individuals - T.
Makwanyane and M. Mchunu - found guilty of homicide, condemned to execution
through laws created before democracy took hold. Though their convictions stood,
resistance to capital punishment climbed toward the top judicial level just when
change was taking root. This happened while the new order operated under a
temporary foundational charter - one boldly affirming freedoms such as existence
itself and protection from brutal or humiliating penalties.
They never said they were innocent. Instead, they claimed something much larger -
the death sentence went against the Constitution. To justify keeping it, officials said
killing convicted people stopped violence and matched what most citizens wanted,
especially those afraid due to rising crime. So began more than a legal clash - it
pulled at deeper tensions, pulling justice apart one moment, lifting human worth the
next, swinging between control by government and freedom for people, caught
between old wounds and new possibilities.
ISSUE:
The core constitutional question before the court was: Could putting someone to
death for murder go against basic rights listed in South Africa’s 1993 interim
constitution, specifically Section 9 (the right to life), Section 10 (the right to human
dignity), and Section 11(2) (the right to be free from cruel, inhuman, or degrading
punishment).
RELEVANT LAW:
The judges leaned hard on the fresh wording inside Act 200 of 1993, South Africa’s
temporary constitution. What mattered most came down to specific sections tucked
within that framework:
Section 9: Every person shall have the right to life.
Section 10: Every person shall have the right to respect for and protection of
his or her dignity.
Section 11(2): No person shall be subject to cruel, inhuman, or degrading
punishment.
Crucially, these rights were not absolute as core freedoms had their boundaries as
well. That limitation came through section 33(1), where rules applying across the
board could trim those rights - so long as the cut made sense and fit within a free,
equal, open system. At stake: whether capital punishment passed that tough check.
APPLICATION:
President Arthur Chaskalson shaped the ruling with steady care. Not once did he
lean on empty formulas; instead, each thought built slowly, rooted in deep conviction.
What emerges is not about laws on paper but how they breathe in real life.
Philosophy slips in quietly, beside examples drawn from other nations, tied always to
South Africa’s past. You see it unfold across distinct lines of reasoning, none
overlapping, each holding its own weight.
The application can be broken into several key strands: Firstly, Death Penalty and
the Right to Life, Dignity, and Protection from Cruel Punishment: how taking a life
clashes directly with the basic claim that everyone deserves to live. Dignity crumbles
when a person is reduced to a symbol for others’ satisfaction. Seen another way,
ending a human life punishes beyond correction or repair. Waiting years under threat
of death adds suffering long before any final act occurs. This prolonged dread
shapes experience just as much as the outcome itself. Finality defines the penalty -
unchanging, irreversible, absolute in its reach.
Additionally, the Limitation Clause Analysis (Section 33): Though rights got
breached, attention turned sharp to whether such breach held up as fair within
today's values. Justification hinged on claims of discouraging crime and paying back
harm done. Each argument faced close inspection without leniency. Hanging around
with stats from other countries did not help prove execution scares people straight
better than locking them up forever. Studies piled high still left doubts about whether
dying stops killers more than lifelong bars ever could. People acting out in rage,
caught in gang fights, or driven by politics are not necessarily slowed down by
fearing their own end.
Even though many people back capital punishment out of real concern for safety,
judges decided basic rights must stand firm regardless of popular sentiment. What
citizens think might matter a little when weighing legal questions, yet alone it cannot
replace the job courts have - to apply the Constitution boldly and fairly. That
document asks justices to push culture toward kindness, not just mirror its harshest
reactions. A single word separated justice from emotion - retribution stood within
legal bounds, while vengeance lurked outside. Proportion mattered, the court said,
because fairness shaped lawful penalties. Human dignity formed the base of public
life when trust had broken apart. Power could not mirror cruelty, even when
responding to it. Giving too much importance to payback disturbed careful judicial
weighing. Punishment by execution echoed revenge, not law. Such acts clashed with
what the founding charter imagined - a society calm enough to heal. Furthermore,
the "Values of the Constitution" and Ubuntu: This idea formed the core of what was
decided. Not just a set of rules, the Constitution became seen here as something
linking deep wrongs long endured - cruelty backed by power, lives torn apart - with
hopes for healing and fairness ahead. Out of Africa's deeper thinking came Ubuntu:
respect through shared existence, care woven into justice, balance restored without
erasing pain. When discipline destroys instead of guiding back, when only the act
matters and never the person who acted, such ways clash sharply with Ubuntu’s
heart and this nation’s fresh beginning. Ending life in response? That method
belongs elsewhere - locked behind history’s door, out of step with dignity upheld
equally, growth protected, people valued.
Lastly, The Role of the Judiciary in a Transformative Society: A bold statement on
judicial power emerges here. Though facing resistance, the court accepted
responsibility for upholding constitutional values. Standing firm, it saw its task as
protecting moral clarity within national life. What defines South Africa’s legal
approach now shifts - less about punishment, more about dignity rooted in human
worth.
CONCLUSION:
A decision came down, all judges in agreement, saying capital punishment for killing
someone is unconstitutional. It declared:
The death penalty was inconsistent with Sections 9, 10, and 11(2) of the
Interim Constitution.
The infringement of these rights could not be justified under the limitation
clause (Section 33).
The relevant sections of the Criminal Procedure Act providing for the death
penalty were invalid.
The sentences of the appellants and all others on death row were commuted
to life imprisonment.
A delay of twelve months came with the ruling, giving lawmakers time to revise
legislation. Still, whatever change follows must fit within the boundaries set by this
decision. The judges left no room for workaround solutions.
The Makwanyane case marks one of those rare turns where law becomes
something more than rules - a quiet defiance shaped by conscience. When voices
across society demanded harsh responses, justice instead turned toward healing
rather than repetition of harm. Rooted in Ubuntu, a philosophy long present yet often
overlooked, the decision wove local wisdom into global principles without force or
pretence. Instead of matching pain with punishment, the ruling insisted on restraint,
even when emotions pulled strongly elsewhere. Crime had shaken many lives
deeply, grief ran wide - but power, it said, must not mimic what it condemns. What
emerged was neither weak nor distant; it held firm ground between memory and
progress. Dignity became law's anchor, not because it sounded noble, but because
survival required it. In refusing vengeance, the court pointed forward quietly, building
stability through refusal to destroy. A choice like this turned away from quick
retaliation, aiming instead at a future where fairness walks with compassion. By
acting, the court went past reading rules - it shaped what a self-governing people
might become.1
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S v Makwanyane and Another (1995)