Case Study Analysis And Implications: S V. Makwanyane And Another


The Consitition aims to transform South Africa from an unjust society to one that aspires to justice for all of its citizens. In one of the first constitutional court cases, S v Makwanyane and Another (CCT3/94) ZACC 3, the Constitutional Court declared the death penalty unconstitutional and in contravention with transformation constitutionalism. With this declaration of the death sentence the court introduced to new possibilities for the reformation of the South African society. This is essay discusses this case and the implications of its rulings.

Facts of the case

The Defendant, T Makwanyane (Defendant) and another man, M Mchunu (Mr. Mchunu), were sentenced to death on four counts of murder, one count of attempted murder and one count of robbery with aggravating circumstances in the Witwatersrand Local Division of the Supreme Court. The accused appealed their convictions and sentences to the Appellate Division of the Supreme Court. The Appellate Division dismissed the appeals against the sentences on the counts of attempted murder and robbery, concluding that the accused should receive the heaviest sentence allowable by law because of the circumstances of the crimes. Counsel for the accused argued that the death penalty was in conflict with the provisions of sections 9 and 11(2) of the Constitution. As the Appellate Division did not have the constitutional jurisdiction to make a ruling on this issue at that time, it postponed the further hearing of the appeals against the death sentence. Consequently, the case was referred to the Constitutional Court to decide whether the death penalty is consistent with the provisions of the sections 9 and 11(2) Constitution.

Legal question

It is borne in mind that there were a number of issues that were brought before the court, which were incidental to this matter but the preliminary legal question is as follows: (1) Does the death sentence as penalty for murder under Section 277 of the Criminal Procedure Act adhere to the provisions as set out by the (interim) Constitution?

The decision of the court

The court answered the above legal questions in the negative and held that capital punishment as penalty for murder is inconsistent with the provisions set out in the Interim Constitution. It held that the rights to life and dignity were the most important of all human rights and the source of all the other rights detailed in Chapter 3 of the Interim Constitution. The court held that in the context of our Constitution the death penalty was a cruel, inhuman and degrading punishment and subsequently invalidated section 277 of the Criminal Procedure Act 51 of 1977. The court further declared any other law sanctioning capital punishment invalid. It was further ordered that in terms of section 98(7) of the Constitution that the State and all of its organs were forbidden to execute any prisoners awaiting execution, ruling that they should remain in custody until new sentences were imposed in accordance with the law.

Transformative constitutionalism

The Constitution does not only enshrine the Bill of Rights, but is integral to legal interpretation at every level, as required by section 39(2) of the Constitution. Accordingly, every aspect of the South African legal order is subject to re-evaluation in light of the Constitution and the values it enshrines. Laws which are incompatible with the values of the Constitution will need to be replaced. Within the post-1994 regime, the notion of transformative constitutionalism emerged. The idea was to guide South Africa’s new Constitution to transformation. This was especially important in post-apartheid South Africa, where there was a need to establish a State that upholds human rights, dignity, freedom and equality. This was because the capacity of the courts to enforce and protect human rights was severely hampered during the apartheid regime. Furthermore, the pre-1993 Constitutions did not contain bills of rights. This fact, coupled with the official constitutional subordination of the judiciary, meant that there was no basis upon which the courts could enforce fundamental rights and freedoms.

The most crucial aspects of transformative constitutionalism are long-term constitutional enactment; interpretation and enforcement committed to transforming the country's social, political and economic institutions; transforming power relations in a manner that is democratic, participatory and egalitarian and; large scale social change grounded in the legal system. Perhaps the most famous case of South African transformative constitutionalism is S v Makwanyane. In essence, by arguing that is capital punishment incompatible with the stated constitutional core values, the court illustrated its commitment to the Constitution and constitutional values in the promotion of the principle of transformative constitutionalism. These obligations relate not only to the respect, protection, and promotion of rights but also to their fulfilment in line with the values of human dignity, equality, and freedom. The court further argued that the purpose of the new legal order was to protect the rights of minorities, including social outcasts, who cannot protect their rights adequately through the democratic process.

S v Makwanyane and UbuntuA further contribution of the S v Makwanyane case was the introduction of ubuntu to South African jurisprudence. While Ubuntu is demonstrably integral to the traditional African philosophy, since S v Makwanyane case it has expanded considerably within the South African legal and public discourse. As a result, the term has gone beyond its origins as a cultural artefact and transformed into a guiding agent for South African legal reform. Ubuntu made a fervent debut in the post amble of the interim constitution, sealing its place as a constitutional value. While it was not expressly included among the values in the founding provisions of the final Constitution, it’s constitutional as a value has been reaffirmed by the Constitutional Court. Both Justice Madala and Mokgore maintained the duty on South African Courts to promote values based on human dignity, equality and freedom - values that encapsulate Ubuntu. Justice Langa added that respect for the dignity of every person is integral to Ubuntu. The emphasis on unconditional respect for human dignity corresponds with one of the founding values of the 1996 Constitution which is respect for human dignity. In this context, Ubuntu emerged as a guiding agent for the South African jurisprudence and legal reform, promoting transformative constitutionalism. Ultimately the S v Makwanyane case laid the foundation for human rights as a central feature of constitutional interpretation. The Court has subsequently demonstrated this intrepertation in other cases, including those relating to defamation, socio-economic rights equality and privacy.


The S v Makwanye case clearly demonstrated that constitutionalism and ubuntu has important implications for transformation of South Africa. Inasmuch as it is critical for the maintenance of peace and harmony within society that criminals be punished for their crimes, it is also important to impose sentences which are humane, balanced and is fundamentally compatible with a society based on constitutional values. In doing so, the state demonstrates its dedication of transformation. Consequently, this case illustrated how the application of constitutional procedures may take great strides in offering greater stability to the society as a whole. Ultimately, the constitution symbolizes a subtle nexus between peace, harmony and justice in South Africa.

01 April 2020
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