INTRODUCTION TO RESEARCH

METHODOLOGY, ASSESSMENT 2
by
MBALI MAHLANGU- 19104510
Submitted in partial fulfilment of the
requirements for the degree LLB
In the
DEPARTMENT OF JURISPRIDENCE
SCHOOL OF LAW UNIVERSITY OF
SOUTH AFRICA
SUPERVISOR: DR NOMBULELO
QUEEN MABEKA
(ASSIGNMENT NUMBER 02 / 03) (IN
THE CASE OF UNDERGRADUATE
MODULES ONLY)
2023
INTRODUCTION
S v Makwanyane is a case that is mainly based on the question of capital
punishment and the provisions which come with it. In the following essay we dissect
the case and get a better understanding of it and the conclusion which was made at
the end.

FACTS
There are two accused who had been convicted in the Witwatersrand Local Division
of the Supreme Court. These two has been accused on four counts of murder, one
count of attempted murder and one count of robbery with aggravating
circumstances1. The accused were sentenced to death for each count of murder.
They further went to appeal to the Appellate Division, these appeals against their
conviction were dismissed but further hearing of the appeals against death
sentences were postponed until the Constitutional court determines the
constitutionality of the death sentences. There had been no execution that had taken
place in South Africa since 1989. Meanwhile there had been a number of people
who had been sentenced to death and were waiting on death row for the issue to be
resolved.

LEGAL QUESTION
-Is the death penalty according to section 277(1)(a) of the Criminal Procedure Act2
cooperating with provisions of the Constitution?
-Was the death penalty cruel, inhuman or degrading punishment?
-Whether the Constitution thought the death penalty ought to be abolished or
retained?

REASONS FOR THE DECISION

Appeals against the death sentence were postponed until the Constitutional Court
had determined the constitutionality of the death sentence. Going back to when there
was wasn’t any equality, human rights there had been a huge gape within our
society and that caused for use to be a society which was deeply rooted in hurt for a
very long time. Going forward, the Constitutional court had set out the bill of right and
one of the rights there was the right to life. This right and section 11(2) of the
Constitution3 went against each other. In the case, “Attorney- General contended
that the death penalty is a necessary and acceptable form of punishment which is
not cruel, inhuman or degrading”.4 Many of the people in South Africa were
sentenced to death because of factors race and poverty. Coming from poverty
resulted in being at a disadvantage because it would be hard to defend themselves
or even afford for legal representation. This automatically creates inequality and
injustice. Furman v Georgia case had a approach which was taken into consideration
because of the factors that were there. In this case, section 277(1)(a) showed that
the death sentence is a cruel, inhuman and degrading punishment.

1
Prof Anel Ferreira-Synman, Introduction to Law, 2020.
2
Criminal Procedure Act 51 of 1977, s 277(1) (hereinafter Act 51 of 1977)
3
Constitution, s 11(2)
4
S v Makwanyane and another 1995 (6) BCLR 665 (CC)
In S v Zuma 1995 (4) BCLR 401 (SA)5 the interpretation of the fundamental rights
provision had been held to be one which was ‘generous’ and ‘purposive’, this gave
the expression to the underlying values of the Constitution. The death sentence
constitutes a serious impairment of human dignity. It also imposes limitation of the
fundamental rights in section 86, section 97 and section 108, the right to equality
before the law, the right to life and the right to respect for and the protection of one’s
dignity .When giving out the punishment such of a death sentence, section 89,910 and
1011 of the Constitution are associated provisions which were looked into and had
requirements in which had to be taken into consideration. The importance of the right
to life was emphasised in the Kindler case. It shows us how the death sentence
suspends the right to life and that it doesn’t comply with section 11 of the Interim
Constitution12.
The death penalty went against everything that “ubuntu” stands for. Ubuntu is
principal that has been created by the government for people to become one and be
a country which doesn’t discriminate or that has inequality. When the death sentence
punishment is put in place it automatically goes against everything Ubuntu is for.
Ubuntu can be defined or directly translated as ‘ I am because you are’. This
definition clearly shows us that in Ubuntu people need to take into consideration, the
rights of others and not only that but respect of those rights. The principles of Ubuntu
that are set out by the Constitution Court are of importance and are taken into
consideration when making decision which such cases. The constitutional court
doesn’t have a standard section with regards to capital punishment, this was done so
that the Constitutional court could choose whether the right to life can be limited
according to the limitations clause.

FINDINGS OF THE CASE

At the end, the court ordered that the provisions of paragraph (a), (b), (c), (d), (e) and
(f) of section 277(1) of the Criminal Procedure Act13 and all corresponding provisions
of other legislation sanctioning capital punishment which were in force in any part of
the national territory in terms of section 229 of the Constitution14, were declared to be
inconsistent with the Constitution and invalid.15
The court further ordered that section 98(7) of the Constitution16, as from the date the
court order the State and all its organs were forbidden and nobody can be executed
going forward, including the ones that have already been sentenced with capital
punishment under any provisions that are declared to be invalid. All the people of
such would be kept in custody until the penalty had been set aside according to the
law and there had been a substitute found by lawful punishment.

BIBLIOGRAPHY
5
S v Zuma and others 1995 (4) BCLR 401 (SA)
6
Constitution, s 8
7
Constitution, s 9
8
Constitution, s 10
9
Constitution, s 8
10
Constitution, s 9
11
Constitution, s 10
12
Interim of Constitution, s 11
13
Act 51 of 1977
14
Constitution, s 229
15
Ferreira-Synman, Introduction to Law.
16
Constitution, s 98(7)
BOOKS
Ferreira-Snyman, Introduction to Law
Prof Anel Ferreira-Synman, Introduction to Law, 2020

CASE LAW
South Africa
S v Makwanyane and another 1995 (6) BCLR 665 (CC)
S v Zuma and others 1995 (4) BCLR 401 (SA)

LEGISLATION
South Africa
Constitution of the Republic of South Africa, 1996
Criminal Procedure Act 51 of 1977
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Full Name............MBALI MAHLANGU ..........................................

Student No: .......19104510.....................................

Signature: …………M.T.M…………………..

Date: …….21 April 2023…………