LJU4801
Assignment 02
Semester 2 2025
Due Year 2025
, LJU4801
Assignment 02
Semester 2 2025
Due Year 2025
Response 1
The Embodiment of an African Legal Philosophical Approach in S v Makwanyane
Introduction
The landmark judgment in S v Makwanyane (1995) marked a pivotal moment in South
African constitutional jurisprudence. The Constitutional Court declared the death penalty
unconstitutional under the 1993 Interim Constitution.¹ The case involved two accused
persons convicted of murder, who challenged the validity of capital punishment as a
violation of fundamental rights, including the right to life (section 9), dignity (section 10),
and protection from cruel, inhuman, or degrading punishment (section 11(2)).²
The Court’s unanimous decision to abolish the death penalty was grounded not only in
universal human rights principles but also in indigenous African values, most notably
Ubuntu.³ As reflected in the quotation under consideration, members of the Court found
the death penalty repugnant because retribution and group catharsis are inconsistent
with an Ubuntu-based jurisprudence of reconciliation, restorative justice, and democratic
solidarity. Importantly, their findings were broadly representative of South African moral
and cultural views, establishing Ubuntu as a guiding norm essential for legitimating the
post-apartheid legal order.⁴
This essay argues that the judgment embodies an African legal philosophical approach
by integrating Ubuntu as a core interpretive tool. It highlights communal harmony,
Assignment 02
Semester 2 2025
Due Year 2025
, LJU4801
Assignment 02
Semester 2 2025
Due Year 2025
Response 1
The Embodiment of an African Legal Philosophical Approach in S v Makwanyane
Introduction
The landmark judgment in S v Makwanyane (1995) marked a pivotal moment in South
African constitutional jurisprudence. The Constitutional Court declared the death penalty
unconstitutional under the 1993 Interim Constitution.¹ The case involved two accused
persons convicted of murder, who challenged the validity of capital punishment as a
violation of fundamental rights, including the right to life (section 9), dignity (section 10),
and protection from cruel, inhuman, or degrading punishment (section 11(2)).²
The Court’s unanimous decision to abolish the death penalty was grounded not only in
universal human rights principles but also in indigenous African values, most notably
Ubuntu.³ As reflected in the quotation under consideration, members of the Court found
the death penalty repugnant because retribution and group catharsis are inconsistent
with an Ubuntu-based jurisprudence of reconciliation, restorative justice, and democratic
solidarity. Importantly, their findings were broadly representative of South African moral
and cultural views, establishing Ubuntu as a guiding norm essential for legitimating the
post-apartheid legal order.⁴
This essay argues that the judgment embodies an African legal philosophical approach
by integrating Ubuntu as a core interpretive tool. It highlights communal harmony,
