S v Makwanyane
South Africa’s Constitutional Court invalidates the death penalty in S v Makwanyane
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Original prompt & settings (JSON) ↗More than 300 people — possibly as many as 400 — were waiting under sentence of death when the judgment came down. Not one of them walked out.
Eleven judges, one conclusion
On 6 June 1995 South Africa's 11-member Constitutional Court handed down its unanimous judgment in S v Makwanyane and Another, holding capital punishment unconstitutional under the 1993 Interim Constitution.
The principal judgment held that execution destroys the protected right to life, annihilates human dignity, involves arbitrariness, and is a cruel, inhuman and degrading punishment. Several judges agreed on the outcome while supplying separate reasons.
Its author, Arthur Chaskalson, was styled President of the Constitutional Court in 1995; he became Chief Justice later.
What the order actually struck out
The Court invalidated paragraphs (a), (c), (d), (e) and (f) of section 277(1) of the Criminal Procedure Act, together with corresponding capital-punishment provisions applying elsewhere in the national territory — not the murder paragraph alone.
The order forbade the state and all its organs from executing anyone already sentenced under the invalidated provisions. Those prisoners were to remain in custody until their death sentences were lawfully set aside and replaced.
Chaskalson recorded more than 300 people then under sentence of death, possibly as many as 400 once the former Transkei, Bophuthatswana and Venda were counted. Of 243 death sentences imposed after the 1990 amendment to section 277, 143 had been confirmed by the Appellate Division.
Why a court had to settle it
The Appellate Division referred the constitutional question because the Interim Constitution protected life, dignity and freedom from cruel, inhuman or degrading punishment without saying expressly whether capital punishment remained permissible.
No execution had been carried out since November 1989 and an executive moratorium was announced in March 1992, but neither amounted to legal abolition; courts went on imposing death sentences until this judgment.
Makwanyane was the Court's first case heard, though not its first judgment — S v Zuma had been decided on 5 April 1995.
Sources
Researched 24 Aug 2026 4 sources not yet audited Date corrected
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Date corrected. The research places this at 1995-06-06.