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    Find The Case of S V Makwanyane and Another CCT 38

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    Musundwa Davhana
    The document summarizes the landmark 1995 South African Constitutional Court case S v Makwanyane and Another CCT 38/94. The Court ruled the death penalty unconstitutional, violating the right to life and human dignity in the Interim Constitution. The ruling recognized the importance of Ubuntu principles in African culture and their relation to constitutional values like dignity. It was a key step toward a more human rights-based criminal justice system in South Africa and led to the eventual elimination of the death penalty in 1997.

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    Find The Case of S V Makwanyane and Another CCT 38

    Uploaded by

    Musundwa Davhana
    60 views6 pages
    The document summarizes the landmark 1995 South African Constitutional Court case S v Makwanyane and Another CCT 38/94. The Court ruled the death penalty unconstitutional, violating the right to life and human dignity in the Interim Constitution. The ruling recognized the importance of Ubuntu principles in African culture and their relation to constitutional values like dignity. It was a key step toward a more human rights-based criminal justice system in South Africa and led to the eventual elimination of the death penalty in 1997.

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    The document summarizes the landmark 1995 South African Constitutional Court case S v Makwanyane and Another CCT 38/94. The Court ruled the death penalty unconstitutional, violating the right to life and human dignity in the Interim Constitution. The ruling recognized the importance of Ubuntu principles in African culture and their relation to constitutional values like dignity. It was a key step toward a more human rights-based criminal justice system in South Africa and led to the eventual elimination of the death penalty in 1997.

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    © All Rights Reserved
    Download as PDF, TXT or read online from Scribd
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    60 views6 pages

    Find The Case of S V Makwanyane and Another CCT 38

    Uploaded by

    Musundwa Davhana
    The document summarizes the landmark 1995 South African Constitutional Court case S v Makwanyane and Another CCT 38/94. The Court ruled the death penalty unconstitutional, violating the right to life and human dignity in the Interim Constitution. The ruling recognized the importance of Ubuntu principles in African culture and their relation to constitutional values like dignity. It was a key step toward a more human rights-based criminal justice system in South Africa and led to the eventual elimination of the death penalty in 1997.

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    of 6

    SCHOOL OF LAW

    UNIVERSITY OF SOUTH AFRICA

    INTRODUCTION TO RESEARCH METHODOLOGY

    (IRM1501)

    By

    Names: Davhana Musundwa Rodger

    Student number: 18566588

    Submitted in partial fulfilment of the requirements for the degree

    LLB

    In the

    Department of JURISPRUDENCE

    ASSIGNMENT:2

    SUPERVISORS: Prof M Swanepoel

    : Dr NQ Mabeka

    : Prof IJ Kroeze

    YEAR:2023 DUE DATE:21-04-2023 UNIQUE NO:892701


    Introduction

    The S v Makwanyane and Another CCT 38/94 1 was an innovative of the 1995 judgement of
    which took place in the Constitutional Court of South Africa. The Constitutional Court
    developed the punishment which was unreliable with the commitment of human rights which
    was expressed by the Interim Constitution.2

    Facts

    Both were proved shamefaced on four charges in the Witwatersrand Local Division of the
    Supreme Court under two counts of murder, one count of tried murder, and one criminal
    action of attempted theft.3 The accused were sentenced to death on each of the counts of
    murder and to long period of custody on the other counts. They appealed in the Appellate
    Division of the Supreme Court against all the convictions and the sentences. The Appellate
    Division of the Supreme Court rejected all the appeals which were made against the
    sentence on the counts of attempted murder and robbery and came to the conclusion that
    the two accused must receive the heaviest penalty according to the law. The trial was
    completed before the 1993 Constitution took effect.

    Legal Question

    1.Was the right to life, right to dignity and freedom from torture which was established by the
    Constitution was violated by the death penalty as it was a cruel and inhuman punishment
    which was declared unconstitutional?

    1
    S v Makwanyane and Another CCT 38/94 [1995] ZACC 3.
    2
    Constitution of the Republic of South Africa,1996.
    3
    Currie, I. and De Waal, J. The Bill of Rights Handbook (6th ed.) (Cape Town: Juta, 2013).
    Reasons for the decision

    The court ruled out that totally the death penalty was unconstitutional and violated the right
    to life and right to human dignity which was granted by the Interim Constitution. The court
    examined a number of considerations in making its judgement, including the international
    trend towards the closure of the death penalty, the chance of its implementation in South
    Africa, and the fact that it had not been verified to be an effective prevention to crime. The
    death penalty was an unreliable punishment which includes constitutional values of human
    dignity, equality, and freedom, was unconstitutional.

    Findings in the case

    The death sentence was pronounced unconstitutional by the Constitutional court and it was
    removed from the books. The ruling had more consequences for South Africa's criminal
    justice system, and it was the main landmark in the country's evolution to be more than a
    democratic society. The Court recognized the importance of protecting the right to dignity
    and the right to life, which are essential to the concept of Ubuntu in African culture. The
    Court's ruling was a key step toward a more human rights-based approach to criminal justice
    in South Africa. The decision has covered the way of the ending of the death penalty in
    South Africa, which was eventually eliminated in 1997.

    Principles of Ubuntu

    The Constitutional Court in the case of S v Makwanayane and Another CCT 38/94 [1995]
    ZACC 3 has acknowledged the importance of Ubuntu in African culture and its relation to
    Constitutional principles of human dignity and equality. The Court noted that Ubuntu shows
    the connectivity and interdependence of all the people in community as represented in the
    Ubuntu Constitutional value which indicates that “everyone has inherent to dignity and the
    right to have their dignity respected and protected”. 4 The Court indicated that the right to life
    and the right to dignity is crucial to the notion of Ubuntu, and the introduction of the death
    sentence was incompatible with this principle.5

    4
    Constitution of The Republic of South Africa,1996.
    5
    Currie, I. and De Waal, J. The Bill of Rights Handbook (6th ed.) (Cape Town: Juta, 2013).
    The Court stressed the need of adopting a restorative justice strategy based on Ubuntu
    ideals.6 The Court recognized that the retributive justice approach that was expressed in the
    application of the death sentence, was incompatible with the restorative justice approach,
    which tried to encourage healing and reconciliation in a community. The ruling in S v
    Makwanyane and Another CCT 38/94 [1995] ZACC 3 was a breakthrough point in South
    African constitutional history and recognizing the significance of Ubuntu in African culture
    and its connection to the constitutional values of human dignity and equality. 7

    Conclusion

    The right to life and right to dignity are the most important rights of all the human rights and
    all the sources of personal rights that are included in Chapter three. We are required to value
    the right to life and right to dignity by committing ourselves to society founded on the
    recognition of human rights. The State must establish everything it does including the
    punishments of criminals. This cannot be achieved by objectifying murders and punishing
    them in the expectation of intimidating others.8

    6
    S v Makwanyane and Another CCT 38/94 [1995] ZACC 3.
    7
    Le Roux, R (2012). Ubuntu and the South African constitutional imagination. Politikon: South African Journal
    of Political Studies,39(3), 449-468.
    8
    S v Makwanyane and Another CCT 38/94 [1995] ZACC 3.
    Bibliography

    Books

    • Currie I and De Waal J The bill of rights handbook (6th ed.) (Cape Town: Juta, 2013.

    Case law

    • S v Makwanyane and Another CCT 38/94 [1995] ZACC 3.

    Acts of the parliament

    • Constitution of Republic of South Africa Act of 1996.

    Journal Article

    • Le Roux, R (2012). Ubuntu and the South African constitutional imagination. Politikon: South
    African Journal of Political Studies ,39(3), 449-468.

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