S v Makwanyane and Another/Mokgoro J

S v Makwanyane and Another
Concurring judgment of Justice Mokgoro by Yvonne Mokgoro

[300]Mokgoro J: I am in agreement with the judgement of Chaskalson P, its reasoning, and its conclusions, and I concur in the order that gives effect to those conclusions. I give this brief concurring opinion to highlight what I regard as important: namely that, when our courts promote the underlying values of an open and democratic society in terms of Section 35 when considering the constitutionality of laws, they should recognise that indigenous South African values are not always irrelevant nor unrelated to this task. In my view, these values are embodied in the Constitution and they impact directly on the death penalty as a form of punishment.

[301]Now that constitutionalism has become central to the new emerging South African jurisprudence, legislative interpretation will be radically different from what it used to be in the past legal order. In that legal order, due to the sovereignty of parliament, the supremacy of legislation and the absence of judicial review of parliamentary statutes, courts engaged in simple statutory interpretation, giving effect to the clear and unambiguous language of the legislative text—no matter how unjust the legislative provision. The view of the court in Bongopi v Council of the State, Ciskei 1992(3) SA 250 (CK) at 265 H–I, as per Pickard CJ is instructive in this regard:

This court has always stated openly that it is not the maker of laws. It will enforce the law as it finds it. To attempt to promote policies that are not to be found in the law itself or to prescribe what it believes to be the current public attitudes or standards in regard to these policies is not its function.

[302]With the entrenchment of a Bill of Fundamental Rights and Freedoms in a supreme constitution, however, the interpretive task frequently involves making constitutional choices by balancing competing fundamental rights and freedoms. This can often only be done by reference to a system of values extraneous to the constitutional text itself, where these principles constitute the historical context in which the text was adopted and which help to explain the meaning of the text. The constitution makes it particularly imperative for courts to develop the entrenched fundamental rights in terms of a cohesive set of values, ideal to an open and democratic society. To this end common values of human rights protection the world over and foreign precedent may be instructive.

[303]While it is important to appreciate that in the matter before us the court had been called upon to decide an issue of constitutionality and not to engage in debate on the desirability of abolition or retention, it is equally important to appreciate that the nature of the court s role in constitutional interpretation, and the duty placed on courts by Section 35, will of necessity draw them into the realm of making necessary value choices.

[304]The application of the limitation clause embodied in Section 33(1) to any law of general application which competes with a Chapter 3 right is essentially also an exercise in balancing opposing rights. To achieve the required balance will of necessity involve value judgements. This is the nature of constitutional interpretation. Indeed Section 11(2) which is the counterpart of Section 15(1) of the Constitution of Zimbabwe[1], and provides protection against cruel, inhuman or degrading punishment, embodies broad idealistic notions of dignity and humanity. If applied to determine whether the death penalty was a form of torture, treatment or punishment which is cruel, inhuman or degrading it also involves making value choices, as was held per Gubbay CJ in Catholic Commision for Justice and Peace, Zimbabwe v Attorney-General, Zimbabwe, 1993(4) SA 239(ZS) at 241. In order to guard against what Didcott J, in his concurring judgement terms the trap of undue subjectivity, the interpretation clause prescribes that courts seek guidance in international norms and foreign judicial precedent, reflective of the values which underlie an open and democratic society based on freedom and equality. By articulating rather than suppressing values which underlie our decisions, we are not being subjective. On the contrary, we set out in a transparent and objective way the foundations of our interpretive choice and make them available for criticism. Section 35 seems to acknowledge the paucity of home-grown judicial precedent upholding human rights, which is not surprising considering the repressive nature of the past legal order. It requires courts to proceed to public international law and foreign case law for guidance in constitutional interpretation, thereby promoting the ideal and internationally accepted values in the cultivation of a human rights jurisprudence for South Africa. However, I am of the view that our own (ideal) indigenous value systems are a premise from which we need to proceed and are not wholly unrelated to our goal of a society based on freedom and equality. This, in my view too, is the relevance of the submissions of Adv. Davids, appearing as amicus curiae on behalf of the Black Advocates Forum, albeit that these submissions were inappropriately presented.

[305]In Dudgeon v United Kingdom (1982) 4 EHRR 149, the European Court of Human Rights, per Walsh J, expressed the view that:

… in a democracy the law cannot afford to ignore the moral consensus of the community. If the law is out of touch with the moral consensus of the community, whether by being either too far below it or too far above it, the law is brought into contempt (at 184).

Although this view was expressed in relation to the legislative process, in as far as courts have to comply with the requirements of Section 35 of the Constitution the approach it embodies is not wholly inapplicable in constitutional adjudication. Enduring values, however, are not the same as fluctuating public opinion. In his argument before the court, the Attorney General submitted that:

… the overwhelming public opinion in favour of the retention of the death sentence is sufficiently well-known to be accepted as the true voice of the South African society. This opinion of the South African public is evidenced by newspaper articles, letters to newspapers, debates in the media and representations to the authorities …

The described sources of public opinion can hardly be regarded as scientific. Yet even if they were, constitutional adjudication is quite different from the legislative process, because the court is not a politically responsible institution[2] to be seized every five years by majoritarian opinion. The values intended to be promoted by Section 35 are not founded on what may well be uninformed or indeed prejudiced public opinion. One of the functions of the court is precisely to ensure that vulnerable minorities are not deprived of their constitutional rights.

[306]In support of her main contention, Adv. Davids quite appropriately expressed concern for the need to consider the value systems of the formerly marginalised sectors of society in creating a South African jurisprudence. However, for reasons outlined in the concurring opinion of Sachs J, the issue was regrettably not argued. Indeed even if her submissions might not have influenced the final decision of the court, the opportunity to present and argue properly adduced evidence of those undistorted values historically disregarded in South African judicial law-making would have created an opportunity of important historical value, injecting such values into the mainstream of South African jurisprudence. The experience would, in my view, also have served to emphasise that the need to develop an all-inclusive South African jurisprudence is not only incumbent upon the judiciary, let alone the Constitutional Court. The broad legal profession, academia and those sectors of organised civil society particularly concerned with public interest law, have an equally important responsibility and role to play by combining efforts and resources to place the required evidence in argument before the courts. It is not as if these resources are lacking; what has been absent has been the will, and the acknowledgment of the importance of the material concerned.

[307]In interpreting the Bill of Fundamental Rights and Freedoms, as already mentioned, an all-inclusive value system, or common values in South Africa, can form a basis upon which to develop a South African human rights jurisprudence. Although South Africans have a history of deep divisions characterised by strife and conflict, one shared value and ideal that runs like a golden thread across cultural lines, is the value of ubuntu—a notion now coming to be generally articulated in this country. It is well accepted that the transitional Constitution is a culmination of a negotiated political settlement. It is a bridge between a history of gross violations of human rights and humanitarian principles, and a future of reconstruction and reconciliation. The post-amble of the Constitution expressly provides,

… there is a need for understanding but not for vengeance, a need for reparation but not for retaliation, a need for ubuntu but not for victimisation …

Not only is the notion of ubuntu expressly provided for in the epilogue of the Constitution, the underlying idea and its accompanying values are also expressed in the preamble. These values underlie, first and foremost, the whole idea of adopting a Bill of Fundamental Rights and Freedoms in a new legal order. They are central to the coherence of all the rights entrenched in Chapter 3—where the right to life and the right to respect for and protection of human dignity are embodied in Sections 9 and 10 respectively.

[308]Generally, ubuntu translates as humaneness. In its most fundamental sense, it translates as personhood and morality. Metaphorically, it expresses itself in umuntu ngumuntu ngabantu, describing the significance of group solidarity on survival issues so central to the survival of communities. While it envelops the key values of group solidarity, compassion, respect, human dignity, conformity to basic norms and collective unity, in its fundamental sense it denotes humanity and morality. Its spirit emphasises respect for human dignity, marking a shift from confrontation to conciliation.[3] In South Africa ubuntu has become a notion with particular resonance in the building of a democracy. It is part of our rainbow heritage, though it might have operated and still operates differently in diverse community settings. In the Western cultural heritage, respect and the value for life, manifested in the all-embracing concepts of humanity and menswaardigheid are also highly priced. It is values like these that Section 35 requires to be promoted. They give meaning and texture to the principles of a society based on freedom and equality.

[309]In American jurisprudence, courts have recognised that the dignity of the individual in American society is the supreme value. Even the most evil offender, it has been held, remains a human being possessed of a common human dignity (Furman v Georgia 408 US 238 at 273 (1972)), thereby making the calculated process of the death penalty inconsistent with this basic, fundamental value. In Hungarian jurisprudence, the right to life and the right to human dignity are protected as twin rights in Section 54(1) of that Constitution[4]. They are viewed as an inseparable unity of rights. Not only are they regarded as a unity of indivisible rights, but they also have been held to be the genesis of all rights. In international law, on the other hand, human dignity is generally considered the fountain of all rights. The International Covenant on Civil and Political Rights (1966) G.A. Res 2200 (XXI), 21 U.N. GAOR, SUPP. (No, 16) at 52, U.N. DOC. A/6316(1966), in its preamble, makes references to the inherent dignity of all members of the human family and concludes that human rights derive from the inherent dignity of the human person . This, in my view, is not different from what the spirit of ubuntu embraces.

[310]It is common cause, however, that the legal system in South Africa, and the socio-political system within which it operated, has for decades traumatised the human spirit. In many ways, it trampled on the basic humanity of citizens. We cannot in all conscience declare, as did a United States Supreme Court justice in Furman v Georgia 408 US 238, at 296 (1972) with reference to the American context, that respect for and protection of human dignity has been a central value in South African jurisprudence. We cannot view the death penalty as fundamentally inconsistent with our harsh legal heritage. Indeed, it was an integral part of a system of law enforcement that imposed severe penalties on those who aspired to achieve the values enshrined in our Constitution today.

[311]South Africa now has a new constitution however, which creates a constitutional state. This state is in turn founded on the recognition and protection of basic human rights, and although this constitutes a revolutionary change in legal terms, the idea is consistent with the inherited traditional value systems of South Africans in general—traditional values which hardly found the chance to bring South Africa on par with the rest of the world. As this constitution evolves to overcome the culture of gross human rights violations of the past, jurisprudence in South Africa will simultaneously develop a culture of respect for and protection of basic human rights. Central to this commitment is the need to revive the value of human dignity in South Africa, and in turn re-define and recognise the right to and protection of human dignity as a right concomitant to life itself and inherent in all human beings, so that South Africans may also appreciate that even the vilest criminal remains a human being (Furman v Georgia, supra). In my view, life and dignity are like two sides of the same coin. The concept of ubuntu embodies them both.

[312]In the past legal order, basic human rights in South Africa, including the right to life and human dignity, were not protected in a Bill of Fundamental Rights and Freedoms, in a supreme constitution, as is the case today. Parliament then was sovereign, and could pass any law it deemed fit. Legislation was supreme, and due to the absence of judicial review, no court of law could set aside any statute or its provision on grounds of violating fundamental rights. Hence, Section 277 of the Criminal Procedure Act, 51 of 1977, could survive untested to this day.

[313]Our new Constitution, unlike its dictatorial predecessor, is value-based. Among other things, it guarantees the protection of basic human rights, including the right to life and human dignity, two basic values supported by the spirit of ubuntu and protected in Sections 9 and 10 respectively. In terms of Section 35, this Constitution now commits the state to base the worth of human beings on the ideal values espoused by open democratic societies the world over and not on race colour, political, economic and social class. Although it has been argued that the currently high level of crime in the country is indicative of the breakdown of the moral fabric of society, it has not been conclusively shown that the death penalty, which is an affront to these basic values, is the best available practical form of punishment to reconstruct that moral fabric. In the second place, even if the end was desirable, that would not justify the means. The death penalty violates the essential content of the right to life embodied in Section 9, in that it extinguishes life itself. It instrumentalises the offender for the objectives of state policy. That is dehumanising. It is degrading and it violates the rights to respect for and protection of human dignity embodied in Section 10 of the Constitution.

[314]Once the life of a human being is taken in the deliberate and calculated fashion that characterises the described methods of execution the world over, it constitutes the ultimate cruelty with which any living creature could ever be treated. This extreme level of cruel treatment of a human being, however despicably such person might have treated another human being, is still inherently cruel. It is inhuman and degrading to the humanity of the individual, as well as to the humanity of those who carry it out.

[315]Taking the life of a human being will always be reprehensible. Those citizens who kill deserve the most severe punishment, if it deters and rehabilitates and therefore effectively addresses deviance of this nature. Punishment by death cannot achieve these objectives. The high rate of crime in this country is indeed disturbing and the state has a duty to protect the lives of all citizens—including those who kill. However, it should find more humane and effective integrated approaches to manage its penal system, and to rehabilitate offenders.

[316]The state is representative of its people and in many ways sets the standard for moral values within society. If it sanctions by law punishment for killing by killing, it sanctions vengeance by law. If it does so with a view to deterring others, it dehumanises the person and objectifies him or her as a tool for crime control. This objectification through the calculated killing of a human being, to serve state objectives, strips the offender of his or her human dignity and dehumanises, such a person constituting a violation of Section 10 of the Constitution.

[317]Although the Attorney General placed great reliance on the deterrent nature of the death penalty in his argument, it was conceded that this has not been conclusively proven. It has also not been shown that this form of punishment was the best available option for the rehabilitation of the offender. Retaining the death penalty for this purpose is therefore unnecessary. Section 277(1) which authorises the death penalty under these unnecessarily inhuman and degrading circumstances is inconsistent with the right to life and human dignity embodied in Sections 9 and 10 of the Constitution, respectively, and is in direct conflict with the values that Section 35 aims to promote in the interpretation of these sections. Taking the life of a person under such deliberate and calculated circumstances, with the methods already described in the judgement of Chaskalson P, is cruel, inhuman or degrading treatment or punishment. It is inconsistent with Section 11(2) of the Constitution. In my view, therefore, the death penalty is unconstitutional. Not only does it violate the right not be subjected to cruel, inhuman or degrading treatment or punishment, it also violates the right to life and human dignity.


  1. Act No 12 of 1979.
  2. See Jesse Choper quoted in Rights and Constitutionalism; The New South African Legal Order; Van Wyk D. et al, Juta, 1994 p. 9. The suggestion is that the judiciary is not wholly removed from the political process, where it plays a supervisory role, restraining the majority will through judicial review.
  3. Mbigi, L., with J. Maree, UBUNTU—The Spirit of African Transformation Management, Knowledge Resources, 1995, pp. 1–16.
  4. See analysis in the English translation of Decision No 23/1990 (X31) AB of the Hungarian Constitutional Court.