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IRM1501 Assignment 2 Semester 2 2023
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IRM1501Assignment 2
Semester 2
2023
, QUESTION 1
S v Makwanyane and Another (CCT3/94) 1995 ZACC 31
Facts of the case
Makwanyane and Mchunu, both were accused and were convicted by the court of
first instance on four counts of murder, one count of attempted murder and robbery
with aggravating circumstances. Upon appeal the Appellate Division came to the
conclusion that the circumstances of the murders were such that the accused
should receive the heaviest sentence permissible by law, at that stage, the death
penalty. In the Constitutional Court Kentridge J described the acts of the accused
as ‘murders of horrifying callousness motivated by nothing but greed’. The trial
was concluded before the 1993 Constitution came into force, and so the question
of the constitutionality of the death sentence did not arise at the trial2. Although the
Makwanyane case is generally regarded as a landmark decision in South African
legal history, the facts are sadly, in general terms, neither new nor unique.
Throughout most of human history, it has been the difficult and distressing task of
judges to deal with inhuman acts committed by humans and to make decisions
about the fate of those members of society who have committed ‘evil’ acts.
Historically, this judgment upon evil is the traditional, perhaps most traditional, duty
of judges. It may therefore be fitting that the Constitutional Court started its career
performing this rather unenviable but time-honoured function. 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.
1 Hereinafter referred to as the Makwanyane case.
2 Para 1-4 of Makwanyane case.
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