## Facts

- T. Makwanyane and M. Mchunu were convicted in the Witwatersrand Local Division (Supreme Court) of four counts of murder, one count of attempted murder, and one count of robbery with aggravating circumstances.
- The trial court sentenced each accused to death on each murder count and imposed long prison terms on the other counts.
- The accused appealed their convictions and sentences to the Appellate Division of the Supreme Court.
- While the appeals were pending, South Africa’s Interim Constitution (Act 200 of 1993) came into force and introduced a justiciable Bill of Rights, but did not expressly state whether the death penalty was allowed.
- The Appellate Division dismissed the appeals against conviction, but postponed the appeal concerning the death sentences and referred the constitutional question to the Constitutional Court.
- The constitutional challenge focused on section 277(1)(a) of the Criminal Procedure Act 51 of 1977 (authorizing capital punishment for murder) and whether that pre-constitutional authorization remained valid after the Interim Constitution.

## Issues

1. Whether section 277(1)(a) of the Criminal Procedure Act 51 of 1977, and any other law permitting the death penalty, was inconsistent with the Interim Constitution’s rights to life, dignity, and the prohibition on cruel, inhuman, or degrading punishment.
2. Whether the State could carry out executions of persons already sentenced to death after the Interim Constitution took effect.
3. How the Interim Constitution’s transitional provisions (including section 241(8)) affected death sentences imposed under earlier law.

## Decision

- The Constitutional Court held that capital punishment is unconstitutional under the Interim Constitution.
- The Court declared section 277(1)(a) of the Criminal Procedure Act 51 of 1977 invalid, along with any other provisions authorizing the death penalty.
- The Court ordered that no executions may be carried out under South Africa’s constitutional order.
- The Court directed that prisoners under sentence of death remain in custody pending the imposition of lawful sentences under the post-decision legal framework.

## Legal Principles

- The Interim Constitution is supreme law; legislation and state action inconsistent with the Bill of Rights cannot stand once constitutional review applies.
- The rights to life and human dignity are foundational to the new constitutional order and limit the State’s power to punish, even in response to the most serious crimes.
- Capital punishment violates the prohibition on cruel, inhuman, or degrading punishment because it involves deliberate state killing and is accompanied by severe mental suffering associated with awaiting execution.
- The finality of execution—combined with the risk of wrongful conviction—counts strongly against the death penalty’s compatibility with constitutional rights.
- The administration of the death penalty is vulnerable to uneven outcomes influenced by contingencies in investigation, prosecution, quality of defense, and judicial decision-making; allegations of links to poverty and race reinforced concerns about unfairness and arbitrariness.
- Traditional penological aims such as deterrence and retribution cannot justify a punishment that infringes protected rights; the Court was not satisfied that the death penalty had been shown to deter more effectively than lengthy imprisonment.
- Public support for capital punishment cannot decide constitutionality; courts must apply the Bill of Rights even where majoritarian views favor limiting rights.
- International human-rights materials and comparative constitutional decisions may inform interpretation of the Bill of Rights, and the Court noted the global movement toward restricting or abolishing the death penalty.
- When a sentencing regime is found unconstitutional, the State may not carry out existing death sentences; the proper remedy is continued custody followed by lawful resentencing.

## Conclusion

In *State v. Makwanyane* (CCT/3/94), the Constitutional Court of South Africa ruled that the death penalty, authorized by section 277(1)(a) of the Criminal Procedure Act and related provisions, was incompatible with the Interim Constitution’s protections for life, dignity, and freedom from cruel, inhuman, or degrading punishment; it barred executions and required that those under sentence of death remain detained until they could be resentenced under constitutionally valid law.


State v. Makwanyane, Case No. CCT/3/94 (1995)