S v Makwanyane and Another

by President Arthur Chaskalson, et. al., in the Constitutional Court of South Africa

In the Constitutional Court of the Republic of South Africa

Case No. CCT/3/94

In the matter of:

The State

versus

T Makwanyane and M Mchunu

Heard on:	15 February to 17 February 1995
Delivered on:	6 June 1995

---

Judgment

---

[1]Chaskalson P: 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 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.

[2]Section 277(1)(a) of the Criminal Procedure Act No. 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, 1993, which had come into force subsequent to the conviction and sentence by the trial court. He argued that it was not, contending that it was in conflict with the provisions of sections 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 hearing of the appeals against the death sentence until the constitutional issues are decided by this Court. See: S v

• Chaskalson P
• Ackermann J
• Didcott J
• Kentridge AJ
• Kriegler J
• Langa J
• Madala J
• Mahomed J
• Mokgoro J
• O'Regan J
• Sachs J

---

Case No	:	CCT/3/94
Counsel for Applicant	:	W Trengrove SC GJ Marcus PHJ Van Vuuren
Instructed by	:	GM Budlender NDB Orleyn-Sekete Legal Resources Center
Counsel for Respondent	:	KPCO Von Lieres und Wilkau SC TP McNally SC JSM Henning SC HE Van Jaarsveld R Bhika RJ Chinner PP Stander AJ Van Rensburg AAL Neill PJ Wasserman
Counsel for the Government of the Republic of South Africa	:	G Bizos SC L M Molopa
Instructed by	:	The State Attorney
Counsel for Amicus Curiae—Black Advocates Forum (BAFO)	:	FE Davids GM Makhanya
Instructed by	:	Nat A Victor
Counsel for Amicus Curiae—Lawyers for Human Rights, Centre for Applied Legal Studies, and the Society for the Abolition of the Death Penalty in South Africa	:	DM Davis DI Berger
Instructed by	:	A Motala & S Ebrahim
Counsel for Amicus Curiae—Ian Glauber	:	E Zar SC
Instructed by	:	K Mundell