S v Makwanyane Case Summary

S v Makwanyane Case Summary (firac)
Key notes: this matter was decided under the interim constitution, the trial began
before the interim constitution.
1. Facts
The two accused in this matter were convicted in the Witwatersrand Local Division of
the Supreme Court on four counts of murder, one count of attempted murder and one
count of robbery with aggravating circumstances. They were sentenced to death on
each of the counts of murder and to long terms of imprisonment on the other counts.
They appealed to the AD of the Supreme Court against the convictions and sentences.
The AD dismissed the appeal and emphasized that the accused deserve the heaviest
sentence permissible by law1. Section 277(1)(a) of the Criminal Procedure Act No.
51 of 1977 prescribes that the death penalty is a competent sentence for murder. They
then appealed to this court.
2. Issue(s)
In this court Two issues were raised:
The constitutionality of section 277(1)(a) of the Criminal Procedure Act, and the
implications of section 241(8) of the Constitution.2
3. Rule of Law
Section 11(2), it prohibits "cruel, inhuman or degrading treatment or punishment: No

person shall be subject to torture of any kind, whether physical, mental or emotional,
nor shall any person be subject to cruel, inhuman or degrading treatment or
punishment
Section 9: right to life: Every person shall have the right to life
1
Para 2
2
Para 3
S10: Human dignity: Every, person shall have the right to respect for and protection of
his or her dignity.
Section 8: Every person shall have the right to equality before the law to equal
protection of the law.
4. Analysis
Limitation: section 33(1) for any limitation of the rights contained in section 11(2) are
that the limitation must be justifiable in an open and democratic society based on
freedom and equality, it must be both reasonable and necessary and it must not negate
the essential content of the right.3 The limitation of constitutional rights for a purpose
that is reasonable and necessary in a democratic society involves the weighing up of
competing values, and ultimately an assessment based on proportionality4
S9 An individual's right to life has been described as "[t]he most fundamental of all
human rights". Limiting this right affects even the protection of the other rights5.
S10 (dignity) Under our constitutional order the right to human dignity is specifically
guaranteed. It can only be limited by legislation which passes the stringent test of
being 'necessary'.6
S11(2) Death is the most extreme form of punishment to which a convicted criminal
can be subjected. Its execution is final and irrevocable. It puts an end not only to the
right to life itself, but to all other personal rights which had vested in the deceased
under Chapter Three of the Constitution.7 The death sentence is undoubtedly a cruel
punishment. It is degrading because it strips the convicted person of all dignity and
treats him or her as an object to be eliminated by the state.
S8 gives rise to the right to equality. The death sentence could not be used to limit s9
(the right to life) as of s33. This is because the death sentence was not a law of general
4
Para 104
5
Para83
6
Para 58
7
Para 26
application. There are some parts of the republic where it did not apply. It means that
offenders were treated differently or unequally due to their geographical location in the
republic8
5. Conclusion
[PARA113]
In terms of section 98(5) of the Constitution, and with effect from the date of this order,
the provisions of section 277(1) of the Criminal Procedure Act, and all
corresponding provisions of other legislation sanctioning capital punishment which are
in force in any part of the national territory in terms of section 229, are declared to be
inconsistent with the Constitution and, accordingly, to be invalid.
In terms of section 98(7) of the Constitution, and with effect from the date of this order:
(a) the State is and all its organs are forbidden to execute any person already
sentenced to death under any of the provisions thus declared to be invalid; and
(b) All such persons will remain in custody under the sentences imposed on them,
until such sentences have been set aside in accordance with law and substituted by
lawful punishments.9
8
Para 29
9
Para 151

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S v Makwanyane Case Summary (firac)

In this court Two issues were raised:

Section 11(2), it prohibits "cruel, inhuman or degrading treatment or punishment: No

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