S v Makwanyane and Another

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S v Makwanyane and Another  (1995) 
by President Arthur Chaskalson, et. al., in the Constitutional Court of South Africa

S v Makwanyane and Another was a landmark decision of the Constitutional Court of South Africa, in which the court ruled that capital punishment was incompatible with the protection against "cruel, inhuman or degrading treatment or punishment" in the Interim Constitution. It therefore abolished the death penalty in South Africa.

It was the first case heard by the Constitutional Court, which sat for the first time on 14 February 1995. Argument in favour of abolition was led by Wim Trengove for the applicants, supported by George Bizos for the national government. Argument for the death penalty was led by Klaus von Lieres und Wilkau, Attorney-General of the Witwatersrand.

The judgement, delivered on 6 June 1995, was the second handed down by the court. The decision was unanimous; the opinion and order was written by Arthur Chaskalson, President of the Court, with the other justices writing concurring opinions.

In the Constitutional Court of the Republic of South Africa
Case No. CCT/3/94

In the matter of:

The State


T Makwanyane and M Mchunu

Heard on:  15 February to 17 February 1995
Delivered on:  6 June 1995


[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 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

Case No  :  CCT/3/94
Counsel for Applicant  :  W Trengrove SC
GJ Marcus
PHJ Van Vuuren
Instructed by  :  GM Budlender
NDB Orleyn-Sekete
Legal Resources Center
Counsel for Respondent  :  KPCO Von Lieres und Wilkau SC
TP McNally SC
JSM Henning SC
HE Van Jaarsveld
R Bhika
RJ Chinner
PP Stander
AJ Van Rensburg
AAL Neill
PJ Wasserman
Counsel for the Government of the Republic of South Africa  :  G Bizos SC
L M Molopa
Instructed by  :  The State Attorney
Counsel for Amicus Curiae—Black Advocates Forum (BAFO)  :  FE Davids
GM Makhanya
Instructed by  :  Nat A Victor
Counsel for Amicus Curiae—Lawyers for Human Rights, Centre for Applied Legal Studies, and the Society for the Abolition of the Death Penalty in South Africa  :  DM Davis
DI Berger
Instructed by  :  A Motala & S Ebrahim
Counsel for Amicus Curiae—Ian Glauber  :  E Zar SC
Instructed by  :  K Mundell

This work is in the public domain because it was created and first published in South Africa and it is an official text of a legislative, administrative or legal nature, or an official translation of such a text.

According to the Copyright Act, 1978, § 12 (8) (a), "No copyright shall subsist in official texts of a legislative, administrative or legal nature, or in official translations of such texts."