When must a constitution revisit itself?

Sisipho Lobese | 17 September 2026

South Africa is once again confronting the unbearable reality of femicide. Women continue to be killed at devastating rates, while an entire generation of women is forced to negotiate a question that should never have become ordinary: Will I make it home alive?

The urgency of this Constitutional conversation is not abstract, As of the 17th of September 2026, nine women’s bodies have been found across Ekurhuleni over approximately two months. Amongst those identified is Elizabeth Moselakgomo, a 38 year old female whose body was found after she had gone out for her afternoon run.¹

It is within this reality that I believe we must be prepared to reopen an uncomfortable constitutional conversation, must S v Makwanyane remain beyond reconsideration?

This is not a call for vengeance nor is it an argument that the State should answer every social crisis by killing those who kill. However it is an invitation to interrogate whether a constitutional order can remain intellectually static while the society it governs changes around it?

In S v Makwanyane, the Constitutional Court unanimously held the death penalty to be unconstitutional, principally because it infringed the rights to life and dignity and it constituted cruel, inhuman and a degrading punishment.² Chaskalson P made the constitutional enquiry unmistakable, The question before us however, is not what the majority of South Africans believe a proper sentence for murder should be. It is whether the Constitution allows for such a sentence.³

That principle remains important however, perhaps the deeper lesson of Makwanyane is that constitutional questions must be confronted honestly, and rigorously. The Constitution itself establishes South Africa as a democratic state founded on human dignity, equality, human rights and the rule of law, while expressly committing the State to respect, protect, promote and fulfil the rights in the Bill of Rights.⁴ Section 9 guarantees equality and equal protection of the law, section 10 protects dignity, section 11 protects life and section 12 protects everyone’s freedom and security of the person.⁵

So now the question becomes, What does equal protection mean when women continue to live under a distinctly gendered threat of lethal violence? And we must ask an equally difficult question, if the death penalty is incapable of satisfying the Constitution today, what evidence, circumstances or constitutional developments if any could ever justify revisiting that conclusion?

Our Constitution must protect against the tyranny of the majority but constitutionalism must remain capable of confronting the lived realities of the people in whose name it operates. That means our response cannot stop at Makwanyane. We must interrogate policing, prosecution, bail, sentencing, parole, repeat offending, institutional accountability and the State's positive obligation to protect life. Parliament's own research acknowledges that despite legislation and policy interventions, gender-based violence remains deeply entrenched and requires attention to its structural and systemic dimensions.⁶

The death penalty question is therefore only one question within a much larger constitutional crisis. But neither should the death penalty be treated as a question that South Africans are constitutionally forbidden from asking.

Makwanyane itself demonstrates why the question must be approached with evidence rather than emotion. The Court considered whether capital punishment actually deterred murder and found the evidence insufficient to establish a substantially greater deterrent effect.That finding cannot simply be ignored by anyone advocating reconsideration. Yet the existence of that difficulty does not end the constitutional conversation it rather sharpens it.⁷

Conclusion

If deterrence cannot justify the death penalty, what constitutional response is sufficient to protect those whose right to life is being violently extinguished? Practitioners must interrogate the doctrine. Citizens must interrogate the social contract. Legislatures must interrogate whether existing law adequately protects those whom the Constitution promises to protect. Political leaders must account for implementation rather than merely express solidarity after another woman is killed. And the judiciary must remain willing to confront difficult constitutional questions where rights, punishment and public protection collide.Perhaps the question before us is therefore larger than Makwanyane. When the lived reality of a people changes, when the constitutional promise of protection repeatedly encounters institutional failure and when the right to life is being violently extinguished on a scale that society can no longer accept as ordinary, when, if ever, is it legitimate for a constitutional democracy to revisit the balance it once struck? That conversation will be uncomfortable, It should be. A Constitution worthy of the name should be strong enough to withstand the question.

Footnotes

¹ Mmangaliso Khumalo & Cliff Shiko, ‘’MAPPED Where the bodies of nine women were found in Ekurhuleni’’, Jacaranda FM
² S v Makwanyane and Another 1995 (3) SA 391 (CC), [1995] ZACC 3, particularly paras 95, 216–233 and 320–344. The Court held that capital punishment violated the constitutional rights to life and dignity and constituted cruel, inhuman or degrading punishment.
³ S v Makwanyane, supra, para 87. Chaskalson P expressly distinguished constitutional adjudication from simply following majority opinion.
⁴ Constitution of the Republic of South Africa, 1996, section 1(a) and 7(2).
⁵ Constitution of the Republic of South Africa, 1996, ss 9, 10, 11 and 12.
⁶ Parliament of the Republic of South Africa, Fact Sheet on Gender-Based Violence and Femicide, supra.
⁷ Makwanyane, supra, particularly paras 121–123 and 201. The Court considered the available statistical and other evidence concerning deterrence and concluded that it did not establish that the death penalty had a sufficiently greater deterrent effect.