S v Makwanyane and Another

• Jurisdiction: South Africa
• Judge: Chaskalson P, Ackermann J, Didcott J, Kentridge AJ, Kriegler J, Langa J, Madala J, Mahomed J, Mokgoro J, O'Regan J and Sachs J
• Judgment Date: 06 June 1995
• Court: Constitutional Court
• Docket Number: CCT/3/94
• Date: 06 June 1995
• Citation: 1995 (3) SA 391 (CC)

Chaskalson P: C

[1] 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 D 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.

E [2] Section 277(1)(a) of the Criminal Procedure Act 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 Act 200 of 1993, which had come into force subsequent to the conviction F and sentence by the trial Court. He argued that it was not, contending that it was in conflict with the provisions of ss 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 G 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 s 277(1)(a) of the Criminal Procedure Act, and the implications of s 241(8) of the Constitution. Although there was no formal reference of these issues to this Court in terms of s 102(6) of the Constitution, that was implicit in H 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 I 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, J counsel were not able to point to specific material

Chaskalson P

A 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. B

[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 C 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.

[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 D 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] E

The relevant provisions of the Constitution

[7] The Constitution

'. . . provides a historic bridge between the past of a deeply divided F 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 G entrenched and in which the Constitution

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A '. . . 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 3 of the Constitution sets out the fundamental rights to which B 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 s 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 C ourselves.

[9] In S v Zuma and Others [6] this Court dealt with the approach to be adopted in the interpretation of the fundamental rights enshrined in chap 3 of the Constitution. It gave its approval to an approach which, whilst paying due regard to the language that has been used, is 'generous' and D 'purposive' and gives expression to the underlying values of the Constitution. Kentridge AJ, who delivered the judgment of the Court, referred with approval [7] to the following passage in the Canadian case of ;ancaR v Big M Drug Mart Ltd:

E 'The meaning of a right or freedom guaranteed by the Charter was to be ascertained by an analysis of the purpose of such a guarantee; it was to be understood, in other words, in the light of the interests it was meant to protect.

In my view this analysis is to be undertaken, and the purpose of the right F or freedom in question is to be sought, by reference to the character and larger objects of the Charter itself, to the language chosen to articulate the specific right or freedom, to the historical origins of the concepts enshrined, and where applicable, to the meaning and purpose of the other specific rights and freedoms with which it is associated within the text of the Charter. The interpretation should be . . . a generous rather than a legalistic one, aimed at fulfilling the purpose of the guarantee and securing for individuals the full benefit of the Charter's protection.' [8] G

[10] Without seeking in any way to qualify anything that was said in Zuma's case, I need say no more in this judgment than that s 11(2) of the Constitution must not be construed in isolation, but in its context, which includes the history and background to the adoption of the Constitution, other provisions of the Constitution itself and, in particular, the provisions of chap 3 of which it is part. [9] It must also be construed H in a way

Chaskalson P

A which secures for 'individuals the full measure' of its protection. [10] Rights with which s 11(2) is associated in chap 3 of the Constitution, and which are of particular importance to a decision on the constitutionality of the death penalty, are included in s 9, 'every person shall have the right to life'; s 10, 'every person shall have the right to respect for B and protection of his or her dignity'; and s 8, 'every person shall have the right to equality before the law and to equal protection of the law'. Punishment must meet the requirements of ss 8, 9 and 10; and this is so whether these sections are treated as giving meaning to s 11(2) or as prescribing separate and independent standards with which all punishments must comply. [11] C

[11] Mr Bizos, who represented the South African Government at the hearing of this matter, informed us that the Government accepts that the death penalty is a cruel, inhuman and degrading punishment and that it should be declared unconstitutional. The Attorney-General of the Witwatersrand, D whose office is independent of the Government, took a different view, and contended that the death penalty is a necessary and acceptable form of punishment and that it is not cruel, inhuman or degrading within the meaning of s 11(2). He argued that, if the framers of the Constitution had wished to make the death penalty unconstitutional, they would have E said so, and that their failure to do so indicated an intention to leave the issue open to be dealt with by Parliament in the ordinary way. It was for Parliament, and not the Government, to decide whether or not the death penalty should be repealed, and Parliament had not taken such a decision.

Legislative history F

[12] The written argument of the South African Government deals with the debate which took place in regard to the death penalty before the commencement of the constitutional negotiations. The information that it placed before us was not disputed. It was argued that this background information forms part of the context within which the Constitution should G be interpreted.

[13] Our Courts have held that it is permissible in interpreting a statute to have regard to the purpose and background of the legislation in question.

H 'Certainly no less important than the oft repeated statement that the words and expressions used in a statute must be interpreted according to their ordinary meaning is the statement that they must be interpreted in the light of their context. But it may be useful to stress two points in relation to the application of this principle. The...