S v Makwanyane summary and analysis

S v Makwanyane Case Summary
Para 9-29
Case: S v Makwanyane and Another (1995)
Topic: Interpretation of the Constitution and constitutionality of the death penalty


1. Interpretation Approach (Paras [9]–[10])
 Case relied on: S v Zuma and Others
o The Court endorsed a “generous and purposive” approach to constitutional interpretation.

o Interpretation must:

 Respect the language used;
 Give effect to the underlying values of the Constitution;
 Be broad and value-based, not narrow or textualist.
 Adopted from: R v Big M Drug Mart Ltd (Canada)
o The purpose of a constitutional right must guide its meaning.

o Consider:

 The object and spirit of the Constitution;
 The historical origins of the right;
 The interrelationship with other rights.
 Conclusion:
Section 11(2) (“No one shall be subjected to cruel, inhuman or degrading punishment”) must be
interpreted:
o In context (history, background, other rights);

o To secure individuals the full measure of protection.


2. Related Rights (Para [10])
Section 11(2) must be read with:
 Section 8: Equality before the law;
 Section 9: Right to life;
 Section 10: Right to dignity.
Punishment must comply with these rights — whether seen as shaping s 11(2) or as independent standards.


3. Positions Presented (Para [11])
 Government (Bizos):
Accepted that the death penalty is cruel, inhuman, and degrading → should be declared
unconstitutional.
 Attorney-General (Witwatersrand):
Opposed this, arguing:

, o Death penalty is necessary and acceptable;

o Constitution did not expressly prohibit it;

o Decision should rest with Parliament.


4. Legislative & Historical Context (Paras [12]–[25])
4.1 Use of Background in Interpretation
 Courts may consider the purpose and background of the Constitution.
 A Constitution is not an ordinary statute — it must be interpreted broadly and in light of its origins.
 International practice (US, Canada, Germany, India) allows looking at travaux préparatoires (drafting
history).
4.2 South African Background
 Before 1994: Death penalty was debated but not resolved.
 1990: President De Klerk — reform proposals to retain death penalty only for extreme cases; new law
(Criminal Law Amendment Act 107 of 1990).
 1991: Law Commission — described death penalty as highly controversial; proposed “Solomonic
solution” (let the Constitutional Court decide).
 1992: Minister of Justice suspended executions pending Bill of Rights negotiations (moratorium).
4.3 Constitutional Negotiations
 The Interim Constitution did not explicitly ban or permit the death penalty.
 It was left for the Constitutional Court to decide whether it violated Chapter 3 rights.


5. Nature of the Death Penalty (Paras [26]–[27])
 Death = most extreme punishment
o Final and irreversible — ends all rights.

o Prisoners face mental torment on death row.

o Cruel: Involves suffering and uncertainty.

o Inhuman: Denies person’s humanity.

o Degrading: Strips dignity and treats person as an object.

 Question: Is it cruel/inhuman/degrading within the meaning of s 11(2)?
→ The accused bear the onus to prove it is.


6. Parties’ Main Arguments (Para [27])

Accused (against death penalty) Attorney-General (for death penalty)

Violates dignity and right to life Recognised globally as legitimate

Cannot be reversed if wrong Acts as a deterrent

Arbitrary and inconsistent enforcement Meets society’s retributive needs

Destroys the essence of human rights Accepted by South African society