LJU4801
ASSIGNMENT 2 2025
UNIQUE NO.
DUE DATE: AUGUST 2025
, LJU4801: Assignment 02 – 2025/02
Essay
Introduction
The landmark judgment in S v Makwanyane and Another 1995 (3) SA 391 (CC)
marked a turning point in South African constitutional jurisprudence. The Constitutional
Court declared the death penalty unconstitutional, grounding its reasoning not only in
the text of the Constitution but also in the broader moral framework of uBuntu. This
decision has been widely recognised as embodying an African legal philosophical
approach, distinct from purely Western jurisprudence. By rejecting retribution and
collective vengeance in favour of reconciliation, restorative justice, and human
dignity, the Court affirmed the significance of African values in shaping a new
constitutional order.
This essay will explain why the judgment in Makwanyane can be seen as embodying an
African legal philosophical approach by focusing on three main aspects: (1) the
incorporation of uBuntu as a normative value in constitutional interpretation, (2) the
rejection of retribution in favour of restorative justice, and (3) the role of the judgment
in legitimising South Africa’s legal system within a democratic and post-apartheid
African context.
1. Ubuntu as a Foundational Norm
The concept of uBuntu—often captured in the phrase “umuntu ngumuntu ngabantu” (“a
person is a person through other persons”)—was central to the Court’s reasoning in
Makwanyane. Several judges, including Justice Langa and Justice Mokgoro, explicitly
emphasised that South Africa’s new constitutional order required a break from the
culture of state-sanctioned violence and vengeance.
ASSIGNMENT 2 2025
UNIQUE NO.
DUE DATE: AUGUST 2025
, LJU4801: Assignment 02 – 2025/02
Essay
Introduction
The landmark judgment in S v Makwanyane and Another 1995 (3) SA 391 (CC)
marked a turning point in South African constitutional jurisprudence. The Constitutional
Court declared the death penalty unconstitutional, grounding its reasoning not only in
the text of the Constitution but also in the broader moral framework of uBuntu. This
decision has been widely recognised as embodying an African legal philosophical
approach, distinct from purely Western jurisprudence. By rejecting retribution and
collective vengeance in favour of reconciliation, restorative justice, and human
dignity, the Court affirmed the significance of African values in shaping a new
constitutional order.
This essay will explain why the judgment in Makwanyane can be seen as embodying an
African legal philosophical approach by focusing on three main aspects: (1) the
incorporation of uBuntu as a normative value in constitutional interpretation, (2) the
rejection of retribution in favour of restorative justice, and (3) the role of the judgment
in legitimising South Africa’s legal system within a democratic and post-apartheid
African context.
1. Ubuntu as a Foundational Norm
The concept of uBuntu—often captured in the phrase “umuntu ngumuntu ngabantu” (“a
person is a person through other persons”)—was central to the Court’s reasoning in
Makwanyane. Several judges, including Justice Langa and Justice Mokgoro, explicitly
emphasised that South Africa’s new constitutional order required a break from the
culture of state-sanctioned violence and vengeance.
