LJU4801
Assignment 02
Semester 2 2025
Due Year 2025
,LJU4801
Assignment 02
Semester 2 2025
Due Year 2025
Legal Philosophy
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 defining moment in South
African constitutional jurisprudence. In this case, the Constitutional Court declared the
death penalty unconstitutional under the Interim Constitution of 1993.¹ The two accused,
convicted of murder, challenged capital punishment on the grounds that it violated
several 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 unanimously held that the death penalty was unconstitutional, grounding its
reasoning not only in universal human rights principles but also in indigenous African
values, particularly Ubuntu.³ As the quotation under consideration highlights:
“Members of the Makwanyane court found the death penalty repugnant because
retribution and group catharsis as the bases for punishment are inconsistent with an
Ubuntu-based jurisprudence of reconciliation, restorative justice, and democratic
solidarity… The presence of Ubuntu as a guiding norm in the interpretation of our basic
law is essential for the legitimation of our legal system.”⁴
, This essay argues that the judgment embodies an African legal philosophical approach
by integrating Ubuntu as a core interpretive tool. By emphasizing communal harmony,
human dignity, and restorative justice over retribution, the Court legitimised the post-
apartheid legal order through values rooted in indigenous African philosophy.
Overview of the Judgment
In S v Makwanyane, the Constitutional Court, led by President Chaskalson, considered
whether the death penalty could be justified under the limitation clause (section 33(1)) of
the Interim Constitution. The Court held that the death penalty infringed multiple rights
and could not be justified as a reasonable or necessary limitation in an open and
democratic society.⁵
Central to the Court’s reasoning was its analysis of the purposes of punishment—
deterrence, prevention, rehabilitation, and retribution—and whether these aligned with
constitutional values.⁶ The Court also drew upon the Constitution’s postamble, which
explicitly called for:
“a need for understanding but not for vengeance, a need for reparation but not for
retaliation, a need for ubuntu but not for victimisation.”⁷
This marked a decisive departure from colonial and apartheid-era jurisprudence,
signalling the incorporation of African philosophy into constitutional interpretation.
Understanding Ubuntu and African Legal Philosophy
Ubuntu, derived from Nguni languages and often translated as “humanity towards
others” or “I am because we are,” forms a central principle of African legal philosophy.⁸
It stresses interdependence, communal solidarity, compassion, and the inherent dignity
of all persons.
In African legal traditions, justice is not exclusively retributive but restorative. The goal is
to repair relationships within the community rather than isolate or eliminate offenders.⁹
Assignment 02
Semester 2 2025
Due Year 2025
,LJU4801
Assignment 02
Semester 2 2025
Due Year 2025
Legal Philosophy
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 defining moment in South
African constitutional jurisprudence. In this case, the Constitutional Court declared the
death penalty unconstitutional under the Interim Constitution of 1993.¹ The two accused,
convicted of murder, challenged capital punishment on the grounds that it violated
several 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 unanimously held that the death penalty was unconstitutional, grounding its
reasoning not only in universal human rights principles but also in indigenous African
values, particularly Ubuntu.³ As the quotation under consideration highlights:
“Members of the Makwanyane court found the death penalty repugnant because
retribution and group catharsis as the bases for punishment are inconsistent with an
Ubuntu-based jurisprudence of reconciliation, restorative justice, and democratic
solidarity… The presence of Ubuntu as a guiding norm in the interpretation of our basic
law is essential for the legitimation of our legal system.”⁴
, This essay argues that the judgment embodies an African legal philosophical approach
by integrating Ubuntu as a core interpretive tool. By emphasizing communal harmony,
human dignity, and restorative justice over retribution, the Court legitimised the post-
apartheid legal order through values rooted in indigenous African philosophy.
Overview of the Judgment
In S v Makwanyane, the Constitutional Court, led by President Chaskalson, considered
whether the death penalty could be justified under the limitation clause (section 33(1)) of
the Interim Constitution. The Court held that the death penalty infringed multiple rights
and could not be justified as a reasonable or necessary limitation in an open and
democratic society.⁵
Central to the Court’s reasoning was its analysis of the purposes of punishment—
deterrence, prevention, rehabilitation, and retribution—and whether these aligned with
constitutional values.⁶ The Court also drew upon the Constitution’s postamble, which
explicitly called for:
“a need for understanding but not for vengeance, a need for reparation but not for
retaliation, a need for ubuntu but not for victimisation.”⁷
This marked a decisive departure from colonial and apartheid-era jurisprudence,
signalling the incorporation of African philosophy into constitutional interpretation.
Understanding Ubuntu and African Legal Philosophy
Ubuntu, derived from Nguni languages and often translated as “humanity towards
others” or “I am because we are,” forms a central principle of African legal philosophy.⁸
It stresses interdependence, communal solidarity, compassion, and the inherent dignity
of all persons.
In African legal traditions, justice is not exclusively retributive but restorative. The goal is
to repair relationships within the community rather than isolate or eliminate offenders.⁹
