IN THE CONSTITUTIONAL COURT OF THE REPUBLIC OF SOUTH AFRICA
Case No. CCT/3/94
In the matter of:
THE STATE
versus
T MAKWANYANE AND M MCHUNU
Heard on: 15 February to 17 February 1995
Delivered on: 6 June 1995
________________________________________________________________
JUDGMENT
________________________________________________________________
[1] CHASKALSON P: 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 Appellate Division of the
Supreme Court against the convictions and sentences. The Appellate Division
dismissed the appeals against the convictions and came to the conclusion that the
circumstances of the murders were such that the accused should receive the heaviest
sentence permissible according to law.
[2] Section 277(1)(a) of the Criminal Procedure Act No. 51 of 1977 prescribes that the
death penalty is a competent sentence for murder. Counsel for the accused was
invited by the Appellate Division to consider whether this provision was consistent
with the Republic of South Africa Constitution, 1993, which had come into force
subsequent to the conviction and sentence by the trial court. He argued that it was
not, contending that it was in conflict with the provisions of sections 9 and 11(2) of
1
, the Constitution.
[3] The Appellate Division dismissed the appeals against the sentences on the counts of
attempted murder and robbery, but postponed the further hearing of the appeals
against the death sentence until the constitutional issues are decided by this Court.
See: S v Makwanyane en ‘n Ander 1994 (3) SA 868 (A). 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. Although there was no formal
reference of these issues to this Court in terms of section 102(6) of the Constitution,
that was implicit in the judgment of the Appellate Division, and was treated as such
by the parties.
[4] The trial was concluded before the 1993 Constitution came into force, and so the
question of the constitutionality of the death sentence did not arise at the trial.
Because evidence which might possibly be relevant to that issue would not have been
led, we asked counsel appearing before this Court to consider whether evidence, other
than undisputed information placed before us in argument, would be relevant to the
determination of the question referred to us by the Appellate Division. Apart from
the issue of public opinion, with which I will deal later in this judgment, counsel were
not able to point to specific material that had not already been placed before us which
might be relevant to the decision on the constitutional issues raised in this case. I am
satisfied that no good purpose would be served by referring the case back to the trial
court for the hearing of further evidence and that we should deal with the matter on
the basis of the information and arguments that have been presented to us.
[5] It would no doubt have been better if the framers of the Constitution had stated
specifically, either that the death sentence is not a competent penalty, or that it is
permissible in circumstances sanctioned by law. This, however, was not done and it
has been left to this Court to decide whether the penalty is consistent with the
provisions of the Constitution. That is the extent and limit of the Court's power in this
case.
2
,[6] No executions have taken place in South Africa since 1989.1 There are apparently
over 300 persons, and possibly as many as 400 if persons sentenced in the former
Transkei, Bophuthatswana and Venda are taken into account, who have been
sentenced to death by the Courts and who are on death row waiting for this issue to be
resolved. Some of these convictions date back to 1988, and approximately half of the
persons on death row were sentenced more than two years ago.2 This is an intolerable
situation and it is essential that it be resolved one way or another without further
delay.3
The Relevant Provisions of the Constitution
[7] The Constitution
1
The last execution in South Africa occurred on 14 November 1989. See infra note 26.
2
This information was contained in the written argument filed on behalf of the South African Government
and was not disputed.
3
The mental anguish suffered by convicted persons awaiting the death sentence is well documented. A
prolonged delay in the execution of a death sentence may in itself be cause for the invalidation of a sentence of
death that was lawfully imposed. In India, Zimbabwe and Jamaica, where the death sentence is not
unconstitutional, sentences of death have been set aside on these grounds. The relevant authorities are collected
and discussed by Gubbay CJ in Catholic Commission for Justice and Peace in Zimbabwe v Attorney-General,
Zimbabwe and Others 1993 (4) SA 239 (ZSC), and by Lord Griffiths in Pratt v Attorney-General for Jamaica
[1993] 3 WLR 995 (JPC).
3
, ... provides a historic bridge between the past of a deeply divided society
characterised by strife, conflict, untold suffering and injustice, and a future
founded on the recognition of human rights, democracy and peaceful co-existence
and development opportunities for all South Africans, irrespective of colour, race,
class, belief or sex.4
It is a transitional constitution but one which itself establishes a new order in South
Africa; an order in which human rights and democracy are entrenched and in which
the Constitution:
... shall be the supreme law of the Republic and any law or act inconsistent with its
provisions shall, unless otherwise provided expressly or by necessary implication in
this Constitution, be of no force and effect to the extent of the inconsistency.5
[8] Chapter Three of the Constitution sets out the fundamental rights to which every
person is entitled under the Constitution and also contains provisions dealing with the
way in which the Chapter is to be interpreted by the Courts. It does not deal
specifically with the death penalty, but in section 11(2), it prohibits "cruel, inhuman
or degrading treatment or punishment." There is no definition of what is to be
regarded as "cruel, inhuman or degrading" and we therefore have to give meaning to
these words ourselves.
4
These words are taken from the first paragraph of the provision on National Unity and Reconciliation with
which the Constitution concludes. Section 232(4) provides that for the purposes of interpreting the Constitution,
this provision shall be deemed to be part of the substance of the Constitution, and shall not have a lesser status
than any other provision of the Constitution.
5
Section 4(1) of the Constitution.
4
Case No. CCT/3/94
In the matter of:
THE STATE
versus
T MAKWANYANE AND M MCHUNU
Heard on: 15 February to 17 February 1995
Delivered on: 6 June 1995
________________________________________________________________
JUDGMENT
________________________________________________________________
[1] CHASKALSON P: 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 Appellate Division of the
Supreme Court against the convictions and sentences. The Appellate Division
dismissed the appeals against the convictions and came to the conclusion that the
circumstances of the murders were such that the accused should receive the heaviest
sentence permissible according to law.
[2] Section 277(1)(a) of the Criminal Procedure Act No. 51 of 1977 prescribes that the
death penalty is a competent sentence for murder. Counsel for the accused was
invited by the Appellate Division to consider whether this provision was consistent
with the Republic of South Africa Constitution, 1993, which had come into force
subsequent to the conviction and sentence by the trial court. He argued that it was
not, contending that it was in conflict with the provisions of sections 9 and 11(2) of
1
, the Constitution.
[3] The Appellate Division dismissed the appeals against the sentences on the counts of
attempted murder and robbery, but postponed the further hearing of the appeals
against the death sentence until the constitutional issues are decided by this Court.
See: S v Makwanyane en ‘n Ander 1994 (3) SA 868 (A). 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. Although there was no formal
reference of these issues to this Court in terms of section 102(6) of the Constitution,
that was implicit in the judgment of the Appellate Division, and was treated as such
by the parties.
[4] The trial was concluded before the 1993 Constitution came into force, and so the
question of the constitutionality of the death sentence did not arise at the trial.
Because evidence which might possibly be relevant to that issue would not have been
led, we asked counsel appearing before this Court to consider whether evidence, other
than undisputed information placed before us in argument, would be relevant to the
determination of the question referred to us by the Appellate Division. Apart from
the issue of public opinion, with which I will deal later in this judgment, counsel were
not able to point to specific material that had not already been placed before us which
might be relevant to the decision on the constitutional issues raised in this case. I am
satisfied that no good purpose would be served by referring the case back to the trial
court for the hearing of further evidence and that we should deal with the matter on
the basis of the information and arguments that have been presented to us.
[5] It would no doubt have been better if the framers of the Constitution had stated
specifically, either that the death sentence is not a competent penalty, or that it is
permissible in circumstances sanctioned by law. This, however, was not done and it
has been left to this Court to decide whether the penalty is consistent with the
provisions of the Constitution. That is the extent and limit of the Court's power in this
case.
2
,[6] No executions have taken place in South Africa since 1989.1 There are apparently
over 300 persons, and possibly as many as 400 if persons sentenced in the former
Transkei, Bophuthatswana and Venda are taken into account, who have been
sentenced to death by the Courts and who are on death row waiting for this issue to be
resolved. Some of these convictions date back to 1988, and approximately half of the
persons on death row were sentenced more than two years ago.2 This is an intolerable
situation and it is essential that it be resolved one way or another without further
delay.3
The Relevant Provisions of the Constitution
[7] The Constitution
1
The last execution in South Africa occurred on 14 November 1989. See infra note 26.
2
This information was contained in the written argument filed on behalf of the South African Government
and was not disputed.
3
The mental anguish suffered by convicted persons awaiting the death sentence is well documented. A
prolonged delay in the execution of a death sentence may in itself be cause for the invalidation of a sentence of
death that was lawfully imposed. In India, Zimbabwe and Jamaica, where the death sentence is not
unconstitutional, sentences of death have been set aside on these grounds. The relevant authorities are collected
and discussed by Gubbay CJ in Catholic Commission for Justice and Peace in Zimbabwe v Attorney-General,
Zimbabwe and Others 1993 (4) SA 239 (ZSC), and by Lord Griffiths in Pratt v Attorney-General for Jamaica
[1993] 3 WLR 995 (JPC).
3
, ... provides a historic bridge between the past of a deeply divided society
characterised by strife, conflict, untold suffering and injustice, and a future
founded on the recognition of human rights, democracy and peaceful co-existence
and development opportunities for all South Africans, irrespective of colour, race,
class, belief or sex.4
It is a transitional constitution but one which itself establishes a new order in South
Africa; an order in which human rights and democracy are entrenched and in which
the Constitution:
... shall be the supreme law of the Republic and any law or act inconsistent with its
provisions shall, unless otherwise provided expressly or by necessary implication in
this Constitution, be of no force and effect to the extent of the inconsistency.5
[8] Chapter Three of the Constitution sets out the fundamental rights to which every
person is entitled under the Constitution and also contains provisions dealing with the
way in which the Chapter is to be interpreted by the Courts. It does not deal
specifically with the death penalty, but in section 11(2), it prohibits "cruel, inhuman
or degrading treatment or punishment." There is no definition of what is to be
regarded as "cruel, inhuman or degrading" and we therefore have to give meaning to
these words ourselves.
4
These words are taken from the first paragraph of the provision on National Unity and Reconciliation with
which the Constitution concludes. Section 232(4) provides that for the purposes of interpreting the Constitution,
this provision shall be deemed to be part of the substance of the Constitution, and shall not have a lesser status
than any other provision of the Constitution.
5
Section 4(1) of the Constitution.
4
