Symposium: A New Role for a New Court: S v Makwanyane

Toerien van Wyk

Melbourne Law School

If one has to pick a single case that would give a glimpse into South African constitutional law, S v Makwanyane and Another (Makwanyane) would be a likely contender. The case, dealing with the constitutionality of the death penalty, was the first heard by the South African Constitutional Court. The decision has had a significant impact on South African law and even beyond (with aspects of the judgment for example approved and applied by the Lesotho High Court). In my view, it is a case that remains of enduring significance.

Importantly, Makwanyane was decided fairly shortly after apartheid had officially ended. Negotiations for a transition from apartheid to democracy had led to the adoption of the so-called ‘Interim Constitution’ (the ‘IC’). The IC was the first constitution in South African history to include an expansive, justiciable Bill of Rights. Makwanyane was therefore decided in the context of significant political and social change. While Makwanyane was not itself a catalyst for radical change in the constitutional landscape — as the adoption of the IC was — the decision did make some key contributions to the South African transformation project.

The applicants in Makwanyane had been convicted of murder and sentenced to death. They challenged the constitutionality of the legislative provision, section 277(1)(a) of the Criminal Procedure Act, which made capital punishment a legally valid sentence. A unanimous main judgment, authored by then-President of the Court, Arthur Chaskalson, was supported by ten concurring judgments. Despite the fact that Makwanyane was decided under the IC, it remains an authoritative decision, as the key provisions of the IC in terms of which it was decided were retained in the South African Constitution, 1996 (the ‘Final Constitution’ or ‘FC’).

The main judgment found section 277(1)(a) infringed upon the constitutionally recognised right not to be “subject to cruel, inhuman or degrading treatment or punishment”. This infringement was because capital punishment impacted two related rights: the rights to life and dignity. The Court noted that capital punishment did not merely infringe upon the rights to life and dignity, but completely extinguished those rights. As the rights to life and dignity were seriously infringed, this in turn demonstrated the infringement of the primary right not to be subject to cruel, inhuman or degrading treatment or punishment.

Furthermore, the Court found that the aforementioned infringement was not justifiable in terms of the so-called ‘limitations clause’ in the IC. The reasons put forward for the limitation were that capital punishment performs deterrent, preventative and retributive functions. The Court found, however, that there was no evidence that the death penalty has a stronger deterrent or preventative effect than life imprisonment. It also found that retribution is not a reason compatible with the type of society to which the South African IC aspires. These reasons were therefore found not to be acceptable justifications for the infringement of the right, and the provision was thus held to be unconstitutional.

The judgments (main and concurring) made several significant contributions to various aspects of South African law. They gave recognition, for instance, to the need to draw on indigenous law and values that are compatible with the IC/FC to inform our understanding of South African constitutional law. They also made important findings in relation to fundamental rights adjudication. I will however focus on just two aspects of Makwanyane that I view as constitutionally significant: the role of the Court, and the shift in the Court’s approach to constitutional interpretation.

The Role of the Court

In recent years I have become more aware of the potential disadvantages of an over-reliance on courts to realise constitutional goals. In light of that awareness, the extent to which Makwanyane is a “court-centric” judgment is striking. Makwanyane emphasises the role of the Court as the interpreter and guardian of the IC/FC, seemingly at the exclusion of the other branches of government. The strong focus on the courts comes through particularly in the discussion, in several of the judgments, of the role of public opinion. Justice Madala perhaps put it most powerfully when he said: “The judiciary has the duty of implementing the constitutional safeguards that protect individual rights.”

I think, however, that understanding the moment in history in which the judgment was handed down helps explain its court-centric focus. South Africa had just transitioned as a state from parliamentary supremacy to constitutional supremacy. Previously, laws enacted by the legislature could only be reviewed on procedural grounds; since the enactment of the IC, however, review is also possible on substantive grounds. In addition, the Constitutional Court was a newly created court, the answer to a legitimacy problem for an ‘old’ judiciary (largely white and male), which needed to function in a ‘new’ multi-racial South Africa striving for equality. As the main judgment put it:

“If public opinion were to be decisive there would be no need for constitutional adjudication. The protection of rights could then be left to Parliament, which has a mandate from the public, and is answerable to the public for the way its mandate is exercised, but this would be a return to parliamentary sovereignty, and a retreat from the new legal order established by the 1993 Constitution.” (emphasis added)

The colonial and apartheid governments had enacted many racist and repressive laws that allowed for the violation of various universally recognised rights. The judiciary, with limited review powers, had done little to prevent those rights abuses. With Makwanyane, the Court signalled a clear change. South Africans were assured that the new constitutional framework placed limits on the ways in which parliament could act to give effect to its mandate, and that the Court would enforce those limits. The extent to which the Court has, over the last 24 years, lived up to this promise and why, or why not, is not something I am able to engage with here; it has however been considered by others, recently for example by James Fowkes.

A Shift in the Interpretive Approach

The case is particularly well-known for its extensive use of comparative and international law. The main and concurring judgments considered and discussed case law from across the world, with citations from “11 countries and three supranational courts”. The Court found that comparative law should not be viewed as binding, but as providing insight into how other nations have dealt with similar, complex issues. The judgment also demonstrates how differences in text and circumstances should be borne in mind when comparative law is considered as part of the interpretive process.

A further consequence of the change to constitutional supremacy, referred to earlier, is the implications it had for the interpretation of enacted law generally, and the IC/FC specifically. Prior to 1993, the dominant legislative interpretive method relied on in South Africa was what Lourens du Plessis has called literalism-cum-intentionalism. The literalism aspect refers to an understanding that what is required of an interpreter is to determine the meaning of a provision from the text itself by giving the words used their ‘plain’ or ‘ordinary’ language meaning. The intentionalism aspect refers to an understanding that what is required of an interpreter is to give effect to the intention of the drafters of text. With Makwanyane (and its prior decision in S v Zuma and Others) the Court introduced a change in interpretive approach.

The Court highlighted four important aspects of constitutional interpretation under the new dispensation. First, despite there being a change in the interpretative approach, “due regard” will still be paid to the “language used”. Second, the text will be construed in context – both the historical context related to its adoption and the textual context provided by surrounding provisions. Third, instead of the literalism-cum-intentionalism method, a purposive method of interpretation will be employed. That is to say, a provision will be interpreted in light of the purpose for which it was enacted, and the purpose of the IC/FC as a whole. Lastly, expression will be given to the values underlying the IC/FC. Much could be said about each of these aspects, but in this post I will focus just on the last.

The South African society envisioned by the IC played a big role in the reasoning of the majority judgment as well as in nine of the ten concurring judgments. As Justice Langa put it in his concurring judgment, the Constitution provides “a framework … in which a new culture must take root and develop”. The Court found that the society envisioned in the IC is not one in which retribution would be prioritised over prevention and rehabilitation. As retribution carries such little weight in this new society, it was found not to be a strong enough justification for the implementation of a penalty that so severely limits core fundamental rights. The Court therefore illustrated how a constitutional commitment to a particular type of future society influences state action in order to create a more just and equal society – an illustration of the minimal aspect of transformative constitutionalism, as identified by Michaela Hailbronner, in action.

In short, Makwanyane was and remains an important case for a variety of reasons. There are some specific reasons why it remains interesting also to global constitutional law scholars. In particular, with respect to the Court’s reasons for the strengthening of the role of the judiciary, the use of international and comparative law and the move away from a literalism-cum-intentionalism interpretive method towards a more purposive approach to interpretation.

Toerien van Wyk is a PhD Candidate at Melbourne Law School.

Suggested citation: Toerien van Wyk, “A New Role for a New Court: S v Makwanyane” IACL-IADC Blog (17 December 2019) https://blog-iacl-aidc.org/constitutional-landmark-judgments-in-the-commonwealth/2019/12/17/a-new-role-for-a-new-court-s-v-makwanyane