s v makwanyane and another 1995 3 sa 391 cc

Government of the Republic of Namibia & Another v Cultura … It established that capital punishment was inconsistent with the commitment to human rights expressed in the Interim Constitution. S v Makwanyane at 146. 5 Mokgoro 1998 Buff Hum Rts L Rev 15, who says that the Western use of abstractions "defies the very essence of the African world-view', which describes ideas through real contexts. Two issues were raised: the constitutionality of section 277(1)(a) of the Criminal Procedure Act, and the implications of section 241(8) of the Constitution. Citation(s) [1995] ZACC 3 , 1995 (3) SA 391 (CC), 1995 (6) BCLR 665 (CC), [1996] 2 CHRLD 164, 1995 (2) SACR 1 (CC) Case history. 1 Kwikspace Modular Building Ltd v Sabodala Mining Company SARL and Another, 2010 (6) SA 477 SCA. 7 See Langa J at para 217 (b), who says: ‘I do not exclude the application of the limitations clause to the right to life. [8], He went on to cite Prof. Etienne Mureinik in this regard: "If the new Constitution is a bridge away from a culture of authority, it is clear what it must be a bridge to. S v Makwanyane and Another (CCT 3/94) was a landmark 1995 judgement of the Constitutional Court of South Africa.It established that capital punishment was inconsistent with the commitment to human rights expressed in the Interim Constitution.The court's ruling invalidated section 277(1)(a) of the Criminal Procedure Act 51 of 1977, which had provided for use of the death penalty, along with any similar … 7 Mutwa Indaba … Chaskalson P recognised that the State is obliged to take action to protect human life and held that 'those who commit violent crime should be met with the full rigor of the law'. SOLANGE ROSA Research assistant, Media Law Project, Centre for Applied Legal Studies, University of the Witwatersrand S v Makwanyane and Another CCT/3/94; 1995 (3) SA 391 (CC); 1995 (6) BCLR 665 (CC). S v Pitje 1960 (4) SA 709 (A). Such a choice might also seem to evade … The court also affirmed its commitment to the principle of constitutionalism, and more specifically constitutional values such as freedom, dignity and equality, by rejecting the "arbitrary and capricious" nature of the death penalty. 4 Moloi and Others v Road Accident Fund, 2001 (3) SA 546 SCA. S v Makwanyane and Another 1995 (3) SA 391 (CC) (1995 (6) BCLR 665). The issue of the death penalty has to be dealt with on the basis of the decision in S v Makwanyane and Another1995 (3) SA 391 (CC) (1995 (2) SACR 1; 1995 (6) BCLR 665), in which it was held that capital punishment is inconsistent with the constitutional values and provisions contained in the interim Constitution (the Constitution of the Republic of South Africa Act 200 of 1993). Afr., S v. Makwanyane, 1995 (3) SA 391 (CC) S. "South Africa v Makwanyane and Michunu, Referral to Constitutional Court, Case No CCT/3/94, [1995] ZACC 3, 1995 (3) SA 391 (CC), 1995 (2) SACR 1, 1995 (6) BCLR 665 (CC), ILDC 647 (ZA 1995), 6th June 1995, South Africa; Constitutional Court [CC]" published on by Oxford University Press. 16 Langa P “Transformative constitutionalism” 2006 (3) Stellenbosch Law Review 351–360 351. Race and poverty are also alleged to be factors. Does a customary law marriage nullify further marriages entered into with a different spouse? Harksen v President of the Republic of South Africa and Others (CCT 41/99) [2000] ZACC 29; 2000 (2) SA 825 (CC); 2000 (1) SACR 300; 2000 (5) BCLR 478. See: S v Makwanyane en ‘n Ander [1994] ZASCA 76; 1994 (3) SA 868 (A). In an assessment of the reasonableness of any limitation the question of proportionality must accordingly also be considered. collective responsibility to transform. The case of S v Makwanyane and Another (6 June 1995) (S Afr) (hereinafter referred to as Makwanyane) is one of the watershed cases (concerning the death penalty) of the new constitutional... Users without a … South Africa v Makwanyane and Michunu, Referral to Constitutional Court, Case No CCT/3/94, [1995] ZACC 3, 1995 (3) SA 391 (CC), 1995 (2) SACR 1, 1995 (6) BCLR 665 (CC), ILDC 647 (ZA 1995), 6th June 1995, South Africa; Constitutional Court [CC] Headnote. S v Makwanyane and Another (CCT3/94) [1995] ZACC 3; 1995 (6) BCLR 665; 1995 (3) SA 391; [1996] 2 CHRLD 164; 1995 (2) SACR 1 (6 June 1995) S v Mamabolo (CCT 44/00) [2001] ZACC 17; 2001 (3) SA 409 (CC); 2001 (5) BCLR 449 (CC) (11 April 2001) Although there was no formal reference of these issues to this Court in terms of section 102(6) of the … Kalla and Another v The Master and Others 1994(4) BCLR 665 (CC), 1995(1) SA 261(T) PGNO. Pretoria, Not Peoria S v. Makwanyane and Another, 1995 (3) SA 391 Carol S. Steiker* At first blush, it may seem an affront to American law for an American law professor (and former lawyer and law clerk) to choose a favorite judicial opinion that is the product of a court of another country-and, indeed, a new court for whom the decision was one of its very first efforts. 11 See also S v Makwanyane 1995 3 SA 391 (CC) 431CD and Cloete Sentencing: ublic expectations and reaction” 2000 SALJ 618 622: But public expectation is not synonymous with public interest. Access the latest information on: Posts tagged as S v Makwanyane and Another 1995 (3) SA 391 (CC), Are you aware of all the different advertising options at De Rebus? Visit the De Rebus website to find out about al…, S v Makwanyane and Another 1995 (3) SA 391 (CC), Faith in the time of lockdown: A Constitutional right to freedom of religion. S v Makwanyane at 156. 2 See for example S v Makwanyane and Another 1995 (3) SA 391 (CC); 1995 (6) BCLR 665 (CC) at para 262 (‘What the Constitution expressly aspires to do is to provide a transition from these grossly unacceptable features of the past to ); Du Plessis and Others v De Klerk and Another 1996 (3) SA 850 (CC); 1996 (5) BCLR 658 (CC) at para 157 (The Constitution ‘is … Therefore, transformative constitutionalism has to take place in an environment that promotes the democratic values of human dignity, equality and freedom. S v Makwanyane at 144. Mpisi v Trebble 1994 (2) SA 136 AD 24. 2. How does the Law Society of South Africa fulfil its functions? 6 S. v Makwanyane and Ano, 1995 (3) SA 391 CC. S v Makwanyane and Another 1995 (3) SA 391 (CC) (1995 (6) BCLR 665). Regulation 35(4) of the Pension Funds Act regulations is declared invalid and unenforceable, Pauperien liability: Strict liability reigns supreme again, Employment law update – Unfair dismissal referred to CCMA when pending automatically unfair dismissal claim in the Labour Court, Employment law update – Resigning after disciplinary inquiry but before sanction handed down and Labour Court’s jurisdiction to hear a claim for unlawful dismissal, Recent articles and research – December 2020, Electoral reform – constitutionality of the Electoral Act. Tsotetsi v Mutual and Federal Insurance Co Ltd1997 (1) SA 585 … t is the duty of the courts to serve the public interest.” 12 S v Mhlakaa 1997 1 SACR 515 (SCA) 518e–g. It must lead to a culture of justification—a culture in which every exercise of power is expected to be justified [....] If the Constitution is to be a bridge in this direction, it is plain that the Bill of Rights must be its chief strut."[9]. Sante Fe Independent School District v Doe 530 US 290 (2000). [2] Delivered on 6 June, this was the newly established court's "first politically important and publicly controversial holding."[3]. 8. Satchwell v President of the Republic of South Africa and Another 2002 (6) SA 1 (CC) (2002 (9) BCLR 986). 6 S v Makwanyane and Another 1995 (3) SA 391 (CC); 1995 (6) BCLR 665 (CC) at para 104. 7 Mutwa Indaba 555-556. See also S v Makwanyane & another 1995 (3) SA 391 (CC), 1995 (6) BCLR 665 (CC) ('Makwanyane'). 3 In S v Makwanyane and Another 1995 (3) SA 391 (CC) at para 373 it was argued that “recognition should be given also to African law and legal thinking as part of the source of values which sec. S v Makwanyane and Another. 5 Mokgoro 1998 Buff Hum Rts L Rev 15, who says that the Western use of abstractions "defies the very essence of the African world-view', which describes ideas through real contexts. 5 Constitution of the Republic of South Africa Act 200 of 1993. Attorney-General, Cape, and Another [1995] (2) SA 460 (C), [1995] (1) SACR 446; S. 35 of the Constitution required Courts to promote”. "[7]. his dictum has subsequently been cited The Court held that, in practice, there was an element of chance at every stage of the process of implementing the death penalty: The outcome may be dependent upon factors such as the way the case is investigated by the police, the way the case is presented by the prosecutor, how effectively the accused is defended, the personality and particular attitude to capital punishment of the trial judge and, if the matter goes on appeal, the particular judges who are selected to hear the case. In the case of S v Makwanyane and Another 1995 (3) SA 391 (CC), O’Regan J said, ‘[t]he right to life is, in one sense, antecedent to all the other rights in the Constitution. 8 See, eg, the Black Administration Act 38 of 1927, the Black Authorities Act 68 of 1951 and various pieces of legislation of black independent states or self-governing territories. Afr., S v. Leepile and Others (1) 1986 (2) SA 333 (W) S. TW BENNETT PER / PELJ 2011(14)4 32 / 351 Nevertheless, we do know … Minister of the Interior v Harris 195 2( 4) SA … 4 This uncertainty was expressed by Chaskalson P at paragraph 118 with reference to death row prisoners' anxiety about the moratorium on the execution of death penalties. ; sister projects: Wikipedia article, Wikidata item. Introducing the Interim Bill of Rights. Are tenants being robbed of their rental deposits? Mohamed and Another v President of the Republic of South Africa and Others (CCT 17/01) [2001] ZACC 18; 2001 … 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 … Although it was widely believed that a majority of the population favoured retention of the death penalty, the court affirmed its commitment to its duties as an independent arbiter of the Constitution. 1995 (2) SA 642 (CC); 1995 (4) BCLR 401 (SA) 2 S v Makwanyane and Another CCT 3/94 Handed down: 6 June 1995 Death penalty declared unconstitutional. If public opinion were to be decisive, Chaskalson reasoned, there would be no need for constitutional assessment and adjudication. See: S v Makwanyane en ‘n Ander 1994 (3) SA 868 (A). Without life, in the sense of existence, it would not be possible to exercise rights or to be the bearer of them. Satchwell v President of the Republic of South Africa and Another 2002 (6) SA 1 (CC) (2002 (9) BCLR 986). S v Makwanyane 1995 (3) SA 391 CC * 19. The court also forbade the government from … 17 S v Makwanyane and Another 1995 (3) SA 391 (CC). It is whether the Constitution allows the sentence.[11]. 4 S v Makwanyane 1995 3 SA 391 (CC) para 308. S v Makwanyane and another 1995 (3) SA 391 (CC) S v Makwanyane 1995 (2) SACR 1 (CC) S v Martin 1996 (2) SACR 378 (W) S v Masisi 1996 (1) SACR 147 (O) S v Mazibuko 1997 (1) SACR 255 (W) S v Mbele, 1996 (1) SACR 212 (W) S v Mdatjiece unreported judgment of the Transvaal Provincial Division SH 375/98 delivered on 30 December S v Mdau 1991 (1) SA 169 (A) S v Mhlongo 1994 (1) … Content is available under CC BY-SA 3.0 unless otherwise noted. Who takes the blame? Columbia Global Freedom of Expression seeks to advance understanding of the international and national norms and institutions that best protect the free flow of information and expression in an inter-connected global community with major common challenges to address. Arbitrariness, by its very nature, is dissonant with these core concepts of our new constitutional order. 3 Road Accident Fund v Vogel, 2004 (5) SA 1 SCA. 2 Alliance Ins Co Ltd v RHI Refractories Africa Ltd, 2008 (3) SA 425 SCA. Wim Trengove SC is a South African advocate best known for his role in the development of South African Constitutional jurisprudence and his involvement in high-profile political cases.. Career. The legal profession’s focus on the future, An overview of the Protection of Personal Information Act. The Land Claims Court has previously accepted this approach in respect of restitution: see … This would not be achieved by depersonalising and executing murderers, even as a deterrent to others. Judge: Kentridge AJ separate judgment . 7 In S v Makwanyane [1995] ZACC 3; 1995 (3) SA 391 (CC); 1995 (6) BCLR 665 (CC) at para 262, Mahomed J said: “The South African Constitution is different: it retains from the past only what is defensible and represents a decisive break from, and a ringing rejection of, that part of the past which is 1995 (2) SA 642 (CC); 1995 (4) BCLR 401 (SA) 2 S v Makwanyane and Another CCT 3/94 Handed down: 6 June 1995 Death penalty declared unconstitutional. 4 1995 (3) sa 391 (cc). Negligent loss of a firearm: A dilemma for the state? Union Government v Mack 1917 AD 713 20. S v Makwanyane and Another was a landmark decision of the Constitutional Court of South Africa, in which the court ruled that capital punishment was incompatible with the protection against "cruel, inhuman or degrading treatment or punishment" in the Interim Constitution. 9 27 27 29 16 9 8 16 9. S v Makwanyane and Another | 3 SA 391 | June 06, 1995 | jmartinez@law.stanford.edu. View S v Makwanyane 1995 (3) SA 391 (CC).pdf from AA 1Source: Commentary on the Criminal Procedure Act (Du Toit)/Law Report Extracts/South African Law Reports/1995/ S v MAKWANYANE AND ANOTHER 1995 This passage provides support for the proposition that failure to … There were about 400 of them, a moratorium having been placed on executions since 1989 as part of the country's negotiated transition to democracy (Juta's Statutes Editors. I am satisfied that in the context of our Constitution the death penalty is indeed a cruel, inhuman and degrading punishment. Afr., Turner v. Jockey Club of South Africa, 1974 (3) SA 633 (A) Other national standards, law or … dignity, and everyone’s right to freedom and security of the person. 5 Aldeia and Ano v Coutinho, 1997 (4) SA 295 (O). The idea of the constitutional state presupposes a system whose operation can be rationally tested against or in terms of the law. S v Makwanyane at 48. Afr., Sutter v. Scheepers 1932 AD 165; S. Tsotetsi v Mutual and Federal Insurance Co Ltd1997 (1) SA 585 … See: S v Makwanyane en n Ander 1994 (3) SA 868 (A). Certain basic principles are inherent to transformative … [4], The Court held further that the rights to life and dignity were the most important of all human rights and the source of all the other personal rights detailed in Chapter 3 of the Interim Constitution. Sante Fe Independent School District v Doe 530 US 290 (2000). 5 Before the judgement in S v Makwanyane the death penalty was provided for in section 277(1)(a) of Act 51 of 1977. Full case name State v Makwanyane and Another. Ibid at para 117. see S v Makwanyane and Another 1995 (3) SA 391 (CC). Although popular sentiment could have some bearing on the court's considerations, "in itself, it is no substitute for the duty vested in the Courts to interpret the Constitution and to uphold its provisions without fear or favour. This Court declared section 277 (1)(a), (c), … The case of S v Makwanyane and Another (6 June 1995) (S Afr) (hereinafter referred to as Makwanyane) is one of the watershed cases (concerning the death penalty) of the new constitutional... Users without a subscription are not able to see the full content. 6 See the judgment of Sachs J at para 353. 5 Constitution of the Republic of South Africa Act 200 of 1993. 62 The Constitutional Court has clearly indicated this is the approach to be taken: see S v. Zuma & Others 1995 (2) SA 642 (CC) at 650H–653B; S v. Makwanyane and Another 1995 (3) SA 391 (CC) at 403C-404A; Soobramoney v. Minister of Health, KwaZulu-Natal 1998 (1) SA 765 (CC) at 772F–773A, 779B–I. related portals: South African case law. Judge: Ackermann J separate judgment . Two issues were raised: the constitutionality of section 277(1)(a) of the Criminal Procedure Act, and the implications of section 241(8) of the Constitution. x Bookmark In terms of s 15(1) of the Constitution ‘[e]veryone has the right to freedom of conscience, religion, thought, belief and opinion’ and in s … 3 1995(3) SA 391 (CC); 1995(6) BCLR 665 (CC). This had been succinctly described by Chaskalson P in the South African Constitutional Court in S v Makwanyane and Another 1995 (3) SA 391 (CC) at para 104: S v Makwanyane and Another (CCT3/94) [1995] ZACC 3; 1995 (6) BCLR 665; 1995 (3) SA 391; [1996] 2 CHRLD 164; 1995 (2) SACR. 11 See also S v Makwanyane 1995 3 SA 391 (CC) 431CD and Cloete Sentencing: ublic expectations and reaction” 2000 SALJ 618 622: But public expectation is not synonymous with public interest. At the outset, South Africa (SA) is currently in … Harksen v President of the Republic of South Africa and Others (CCT 41/99) [2000] ZACC 29; 2000 (2) SA 825 (CC); 2000 (1) SACR 300; 2000 (5) BCLR 478. 2 S v Makwanyane and Another para 365 per Sachs J. [7] Ackermann J made this much clear in his judgment: We have moved from a past characterised by much which was arbitrary and unequal in the operation of the law to a present and a future in a constitutional state where state action must be such that it is capable of being analysed and justified rationally. 8. 6 Ball "Lexis" 182-183. S v Makwanyane and Another (CCT 3/94) was a landmark 1995 judgement of the Constitutional Court of South Africa. Pretoria, Not Peoria S v. Makwanyane and Another, 1995 (3) SA 391 Carol S. Steiker* At first blush, it may seem an affront to American law for an American law professor (and former lawyer and law clerk) to choose a favorite judicial opinion that is the product of a court of another country-and, indeed, a new court for whom the decision was one of its very first efforts. S v Makwanyane and Another (CCT 3/94) was a landmark 1995 judgement of the Constitutional Court of South Africa.It established that capital punishment was inconsistent with the commitment to human rights expressed in the Interim Constitution.The court's ruling invalidated section 277(1)(a) of the Criminal Procedure Act 51 of 1977, which had provided for use of the death penalty, along with any similar … S v Makwanyane and Another (CCT3/94) [1995] ZACC 3; 1995 (6) BCLR 665; 1995 (3) SA 391; [1996] 2 CHRLD 164; 1995 (2) SACR. 7 In S v Makwanyane [1995] ZACC 3; 1995 (3) SA 391 (CC); 1995 (6) BCLR 665 (CC) at para 262, Mahomed J said: “The South African Constitution is different: it retains from the past only what is defensible and represents a decisive break from, and a ringing rejection of, that part of the past which is S v Makwanyane and Another (CCT 3/94) was a landmark 1995 judgement of the Constitutional Court of South Africa. Constitutional interpretation in the so-called ‘hard cases’: Revisiting S v Makwanyane 3 ... See: S v Makwanyane en n Ander 1994 (3) SA 868 (A). Issues; Facts. [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. South African jurisprudence at present is attempting to bridge the gap between the past where the law scarcely protected human rights and the future where their protection is paramount.1 The Constitutional Court is required to fulfil an important role in the process -- not only in guiding all inferior courts on matters constitutional but also in guiding the citizens of South Africa into the future.2 Thus the decision in S v Makwanyane3 to outlaw the death penalty came as no real surprise in spite of the apparent uncer… Seedat's Executors v The Master (Natal) 1917 AD 302. It established that capital punishment was inconsistent with the commitment to human rights expressed in the Interim Constitution. Citations: [1995] ZACC 3 . 7 … Neither arbitrary action nor laws or rules which are inherently arbitrary or must lead to arbitrary application can, in any real sense, be tested against the precepts or principles of the Constitution. F1; F2; F3; F4; Held. Magano & Another v District Magistrate, JHB 1994 (4) SA 172 WLD 23. There is G nothing in … Dadoo Ltd v Krugerdorp Municipal Council 1920 AD 520 21. [10] It would not act merely as a vector for public opinion: The question before us, however, is not what the majority of South Africans believe a proper sentence for murder should be. 7 It is submitted that not only the colonial policies but also modern urbanisation trends com-bined caused ancient Southern African societies to be disrupted. Judge: Kriegler J separate judgment . Minister ofHome Affairs (Bermuda) v Fisher 1980 AC 319 11 11. S v Makwanyane and Another 1995 (3) SA 391 (CC); 1995 (2) SACR 1; 1995 (6) BCLR 665 S v Manamela and Another (Director-General of Justice Intervening) 2000 (3) SA 1 (CC); 2000 (1) SACR 414; 2000 (5) BCLR 491 S v Radloff 1978 (4) SA 66 (A) S v Rubenstein 1964 (3) SA 480 (A) S v Singo 2002 (4) SA 858 (CC); 2002 (2) SACR 160; 2002 (8) BCLR 793 S v Zuma and Others 1995 (2) SA … ; S v Makwanyane and Another was a landmark decision of the Constitutional Court of South Africa, in which the court ruled that capital punishment was incompatible with the protection against "cruel, inhuman or degrading treatment or punishment" in the Interim Constitution.It therefore abolished the … In S v Makwanyane & Another, the accused, Makwanyane and Mchunu, were convicted by the court a quo on four counts of murder, one count of attempted murder and robbery with aggravating circumstances. [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. … This concept of human life is at the centre of our constitutional values’. De Rebus → S v Makwanyane and Another 1995 (3) SA 391 (CC) Posts tagged as S v Makwanyane and Another 1995 (3) SA 391 (CC) Faith in the time of lockdown: A Constitutional right to freedom of religion. S v Makwanyane at 95. x Bookmark In terms of s 15(1) of the Constitution ‘[e]veryone has the right to freedom of conscience, religion, thought, belief and opinion’ and in s 31(1) it provides that […] Read more. Citations: 1995 (6) BCLR 665 (CC) Citations: 1995 (3) SA 391 (CC) Citations: 1995 (2) SACR 1 (CC) Judge: Chaskalson P Majority judgment . Establishment meetings for the LSSA provincial attorneys’ association, CV portal for candidate legal practitioners, Southern African Development Community Law Society. Juta's Statutes Editors, p. xxxiii. t is the duty of the courts to serve the public interest.” 12 S v Mhlakaa 1997 1 SACR 515 (SCA) 518e–g. 5 S v Makwanyane & another 1995 (3) SA 391 (CC), 1995 (6) BCLR 665 (CC). The court also forbade the government from carrying out the death sentence on any prisoners awaiting execution,[1] ruling that they should remain in prison until new sentences were imposed. The court's ruling invalidated section 277(1)(a) of the Criminal Procedure Act 51 of 1977, which had provided for use of the death penalty, along with any similar provisions in any other law in force in South Africa. 2 S v Makwanyane and Another CCT 3/94 Handed down: 6 June 1995 The Appellate Division dismissed appeals against the convictions of two accused for murder and other offences, but referred the constitutionality of the sentence of the death penalty to this Court, postponing the appeals against sentence until this Court decides the constitutional issues. The court's ruling invalidated section 277(1)(a) of the Criminal Procedure Act 51 of 1977, which had provided for use of the death penalty, along with any similar provisions in any other law in force in South Africa. Afr., Zuma and Others 1995 (2) SA 642 (CC) (1995 (1) SACR 56) S. A1; A2; A3; A4; A5; A6; A7; A8; A9; A10; Decision [eng] Chaskalson P: The Relevant … S v Zuma & others 1995 (2) SA 642 CC 18. 4 1995 (3) sa 391 (cc). This was particularly true in the new Republic of South Africa, where the framers of the interim Constitution were deliberately silent about the death penalty (Harcourt 255). 9 27 27 29 16 9 8 16 9. It established that capital punishment was inconsistent with the commitment to human rights expressed in the Interim Constitution. A cruel, inhuman and degrading punishment the proposition that failure to … future ’ SA! There would be no need for constitutional assessment and adjudication SA 546 SCA values of human dignity equality! Constitutional rights case Law therefore, transformative constitutionalism has to take place an. Africa Act 200 of 1993 be rationally tested against or in terms of the...., equality and freedom Zuma and Others 1995 ( 3 ) SA 391 CC executing murderers, even as deterrent. 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