S v Makwanyane and Another (CCT 3/94) was a landmark

Landmark decision

Landmark court decisions establish new precedents that establish a significant new legal principle or concept, or otherwise substantially change the interpretation of existing law...

 1995 judgement of the Constitutional Court of South Africa

Constitutional Court of South Africa

The Constitutional Court of South Africa was established in 1994 by South Africa's first democratic constitution: the Interim Constitution of 1993. In terms of the 1996 Constitution the Constitutional Court established in 1994 continues to hold office. The court began its first sessions in February...

. It established that capital punishment

Capital punishment

Capital punishment, the death penalty, or execution is the sentence of death upon a person by the state as a punishment for an offence. Crimes that can result in a death penalty are known as capital crimes or capital offences. The term capital originates from the Latin capitalis, literally...

 was inconsistent with the commitment to human rights

Human rights

Human rights are "commonly understood as inalienable fundamental rights to which a person is inherently entitled simply because she or he is a human being." Human rights are thus conceived as universal and egalitarian . These rights may exist as natural rights or as legal rights, in both national...

 expressed in the Interim Constitution

South African Constitution of 1993

The Interim Constitution of 1993 was the fundamental law of South Africa from 1994 to 1996. It was a provisional document, intended to pave the way for the adoption of a permanent constitution...

. The court's ruling invalidated section 277(1)(a) of the Criminal Procedure Act 51 of 1977, which had provided for use of the death penalty, along with any similar provisions in any other law in force in South Africa. The court also forbade the government from carrying out the death sentence on any prisoners awaiting execution, ruling that they should remain in prison until new sentences were imposed. Delivered on June 6, this was the newly-established court's "first politically important and publicly controversial holding."

Chance

The Court held that, in practice, there was an element of chance at every stage of the process of implementing the death penalty:

The outcome may be dependent upon factors such as the way the case is investigated by the police, the way the case is presented by the prosecutor, how effectively the accused is defended, the personality and particular attitude to capital punishment of the trial judge and, if the matter goes on appeal, the particular judges who are selected to hear the case. Race and poverty are also alleged to be factors.

Human rights

The Court held further that the rights to life and dignity were the most important of all human rights and the source of all the other personal rights detailed in Chapter 3 of the Interim Constitution. Having committed to a society premised on the recognition and realisation of human rights, the State was required to value these two rights above all others, and to demonstrate that valuation in everything it did, including the punishment of criminals. This would not be achieved by depersonalising and executing murderers, even as a deterrent to others. Quite apart from the fact that vengeance or payback had not the same constitutional heft as the right to life and the right to dignity, the court was not satisfied that it had been shown that capital punishment would be more effective as a deterrent than a life sentence. Chaskalson P

Arthur Chaskalson

Arthur Chaskalson, is a former President of the Constitutional Court of South Africa and Chief Justice of South Africa...

, writing for the majority, concluded that

the death sentence destroys life, which is protected without reservation under section 9 of our Constitution, it annihilates human dignity which is protected under section 10, elements of arbitrariness are present in its enforcement and it is irremediable [...]. I am satisfied that in the context of our Constitution the death penalty is indeed a cruel, inhuman and degrading punishment. "

The court also affirmed its commitment to the principle of constitutionalism

Constitutionalism

Constitutionalism has a variety of meanings. Most generally, it is "a complex of ideas, attitudes, and patterns of behavior elaborating the principle that the authority of government derives from and is limited by a body of fundamental law"....

, and more specifically constitutional values such as freedom, dignity and equality, by rejecting the "arbitrary and capricious" nature of the death penalty. Ackermann J

Lourens Ackermann

Lourens Wepener Hugo Ackermann is a former justice of the Constitutional Court of South Africa, where he served from 1994 to 2004....

 made this much clear in his judgment:

We have moved from a past characterised by much which was arbitrary and unequal in the operation of the law to a present and a future in a constitutional state where state action must be such that it is capable of being analysed and justified rationally. The idea of the constitutional state presupposes a system whose operation can be rationally tested against or in terms of the law. Arbitrariness, by its very nature, is dissonant with these core concepts of our new constitutional order. Neither arbitrary action nor laws or rules which are inherently arbitrary or must lead to arbitrary application can, in any real sense, be tested against the precepts or principles of the Constitution.

He went on to cite Prof. Etienne Mureinik in this regard: "If the new Constitution is a bridge away from a culture of authority, it is clear what it must be a bridge to. It must lead to a culture of justification—a culture in which every exercise of power is expected to be justified [....] If the Constitution is to be a bridge in this direction, it is plain that the Bill of Rights must be its chief strut."

Public opinion

Although it was widely believed that a majority of the population favoured retention of the death penalty, the court affirmed its commitment to its duties as an independent arbiter of the Constitution. It would not act merely as a vector for public opinion:

The question before us, however, is not what the majority of South Africans believe a proper sentence for murder should be. It is whether the Constitution allows the sentence.

If public opinion were to be decisive, Chaskalson reasoned, there would be no need for constitutional assessment and adjudication. Although popular sentiment could have some bearing on the court's considerations, "in itself, it is no substitute for the duty vested in the Courts to interpret the Constitution and to uphold its provisions without fear or favour." This was consistent with South Africa's recent passage from parliamentary sovereignty

Parliamentary sovereignty

Parliamentary sovereignty is a concept in the constitutional law of some parliamentary democracies. In the concept of parliamentary sovereignty, a legislative body has absolute sovereignty, meaning it is supreme to all other government institutions—including any executive or judicial bodies...

to constitutional supremacy.

External links

• Text of the judgment at SAFLII