IRM1501 May / June 2019 Portfolio
1. Facts of the Case
The two accused, T Makwanyane and M Mchunu were convicted in the Witwatersrand Local
Division of the Supreme Court on four counts of murder, one attempted murder and one count
of robbery with aggravated circumstances. Both accused were sentenced to death on each
count of murder and two long terms of imprisonment regarding the latter two counts. 1
The convictions and sentences were appealed to the Appellate Division of the Supreme Court,
this was however dismissed and it was concluded that in light of circumstances of the murder
the accused should receive the heaviest sentences allowable by the law.2
Counsel for the accused were invited by The Appellate Division to determine if the criminal
procedure act was contrary to the constitution - it was found that indeed it was.3 The Appellate
Division dismissed appeal for the counts of attempted murder and robbery but held out for the
death penalty regarding the four counts of murder.4
2. Legal Questions
1. Was the death penalty an appropriate punishment?
2. Was the trial court's sentence unconstitutional?
3. What is considered cruel inhumane and degrading?
Was the death penalty an appropriate punishment?
Section 277 (1) (a) of the Criminal Procedure Act5 stated that the death penalty is an
appropriate sentence for murder, however it contradicted the constitution, especially Chapter 3
Sections 8 through to Section 116. In summary these sections resonated the right to life,
protection of the law and not to be subject to cruel, inhuman and degrading treatment. And as
mentioned above it was found in contradiction to the Constitution.
The court took several factors into account to arrive at their findings; Ubuntu (which will be
discussed later), public opinion and other country stance on the death penalty. Public opinion
will obviously opt for the death penalty but alas the courts do not rely on public opinions to
determine sentences, instead at the Constitution.7 While India made provisions that the death
penalty was allowed, the United Nations committee considers it degrading and dehumanizing.8
1
S v Makwanyane and Another 1995 (3) SA 391 (CC) (Herein referred to as S v Makwanyane).
2
S v Makwanyane.
3
S v Makwanyane.
4
S v Makwanyane.
5
The Criminal Procedure Act 51 of 1977 .
6
The Interim Constitution of the Republic of South Africa 1993.
7
S v Makwanyane.
8
S v Makwanyane.
1. Facts of the Case
The two accused, T Makwanyane and M Mchunu were convicted in the Witwatersrand Local
Division of the Supreme Court on four counts of murder, one attempted murder and one count
of robbery with aggravated circumstances. Both accused were sentenced to death on each
count of murder and two long terms of imprisonment regarding the latter two counts. 1
The convictions and sentences were appealed to the Appellate Division of the Supreme Court,
this was however dismissed and it was concluded that in light of circumstances of the murder
the accused should receive the heaviest sentences allowable by the law.2
Counsel for the accused were invited by The Appellate Division to determine if the criminal
procedure act was contrary to the constitution - it was found that indeed it was.3 The Appellate
Division dismissed appeal for the counts of attempted murder and robbery but held out for the
death penalty regarding the four counts of murder.4
2. Legal Questions
1. Was the death penalty an appropriate punishment?
2. Was the trial court's sentence unconstitutional?
3. What is considered cruel inhumane and degrading?
Was the death penalty an appropriate punishment?
Section 277 (1) (a) of the Criminal Procedure Act5 stated that the death penalty is an
appropriate sentence for murder, however it contradicted the constitution, especially Chapter 3
Sections 8 through to Section 116. In summary these sections resonated the right to life,
protection of the law and not to be subject to cruel, inhuman and degrading treatment. And as
mentioned above it was found in contradiction to the Constitution.
The court took several factors into account to arrive at their findings; Ubuntu (which will be
discussed later), public opinion and other country stance on the death penalty. Public opinion
will obviously opt for the death penalty but alas the courts do not rely on public opinions to
determine sentences, instead at the Constitution.7 While India made provisions that the death
penalty was allowed, the United Nations committee considers it degrading and dehumanizing.8
1
S v Makwanyane and Another 1995 (3) SA 391 (CC) (Herein referred to as S v Makwanyane).
2
S v Makwanyane.
3
S v Makwanyane.
4
S v Makwanyane.
5
The Criminal Procedure Act 51 of 1977 .
6
The Interim Constitution of the Republic of South Africa 1993.
7
S v Makwanyane.
8
S v Makwanyane.
