S v MAKWANYANE AND ANOTHER 1995 (3 ) SA 391 (CC ).doc - S v...

S v MAKWANYANE AND ANOTHER 1995 (3 ) SA 391 (CC )
1995 (3 ) SA p391
Citation 1995 (3 ) SA 391 (CC )
Case No CCT/3/94
Court Constitutional Court
Judge Chaskalson P , ACKERMANN J , DIDCOTT J , KENTRIDGE AJ ,
KRIEGLER J , LANGA J , MADALA J , MAHOMED J , MOKGORO J ,
O'REGAN J and SACHS J
Heard February 15, 1995 ; February 16, 1995 ; February 17, 1995
Judgment June 6, 1995
E
[zFNz] Flynote : Sleutelwoorde
Constitutional law - Legislation - Validity of - Section 277(1) (a) , (c) , (d) , (e) and (f) of
the Criminal Procedure Act 51 of 1977, and all corresponding provisions of other
legislation sanctioning capital F punishment which is in force in any part of the national
territory in terms of s 229 of the Constitution of the Republic of South Africa Act 200 of
1993, is inconsistent with the Constitution and accordingly invalid.
Criminal procedure - Sentence - Death sentence - Constitutionality of - Death sentence in
terms of s 277(1) (a) , (c) , (d) , (e) and (f) of the G Criminal Procedure Act 51 of 1977,
and all corresponding provisions of other legislation sanctioning capital punishment
which is in force in any part of the national territory in terms of s 229 of the Constitution
of the Republic of South Africa Act 200 of 1993, is inconsistent with the Constitution and
accordingly invalid.
H Constitutional law - Constitution - Interpretation of - Constitution of the Republic of
South Africa Act 200 of 1993 - Background material - Reports of technical committees
which advised Multi-Party Negotiating Process could provide a context for the
interpretation of Constitution - No reason why such evidence should be excluded -
Precise nature of evidence and the purpose for which it may be tendered determines the I
weight to be given to it - Comments of individuals should not be regarded as
determinative.
Constitutional law - Human rights - Right to equality before the law in terms of s 8 in
chap 3 of Constitution of the Republic of South Africa Act 200 of 1993 - Effect of s 229
of Constitution providing for continued J operation of the laws of formerly independent
States -
A Such laws, however, only continuing subject to Constitution - Right to equality before
the law not meaning that there had to be consistency and parity between the laws of the
different geographic areas themselves.

Constitutional law - Constitution - Interpretation of - Constitution of B the Republic of
South Africa Act 200 of 1993 - Public international law - Use of in terms of s 35 of the
Constitution - Public international law as intended by s 35 including non-binding as well
as binding law.
Constitutional law - Constitution - Interpretation of - Constitution of the Republic of
South Africa Act 200 of 1993 - Comparative law - Section C 35(1) of Constitution - In
dealing with comparative law it has to be borne in mind that it is the South African
Constitution which has to be construed - Such to be done with due regard to South
African legal system, history and circumstances and the structure and language of South
Africa's D own Constitution - South African Courts can derive assistance from public
international law and foreign case law but not bound to follow it.