MHR5904
Assignment 2
Due 2025
, Human Rights Interpretation
Critical Reflection on S v Makwanyane and the Abolition of Capital Punishment in
South Africa
Introduction
The Constitutional Court’s ruling in S v Makwanyane and Another (1995) marked a
turning point in South Africa’s shift to constitutional democracy. By striking down the
death penalty as unconstitutional, the Court underscored the centrality of the rights to
dignity, equality, and life. This historic judgment not only eliminated capital punishment
but also symbolized a decisive break from the systemic violence and authoritarianism of
apartheid. Importantly, the decision highlighted that constitutional interpretation should
rest on principles of justice and human rights, rather than public opinion. This essay
critically examines the ruling, arguing that while the Court was justified in grounding its
reasoning in constitutional values and international human rights standards, ongoing
debates persist around retribution, societal opinion, and the influence of foreign
jurisprudence on South African constitutional law.
Constitutional Basis and the Death Penalty Debate
The Court’s decision was rooted in the 1993 Interim Constitution, particularly Section 9
(equality), Section 10 (human dignity), and Section 11 (life). Chief Justice Chaskalson,
writing for the majority, concluded that the death penalty was incompatible with these
rights because it extinguished life in a manner that disregarded the intrinsic worth of
individuals. His reasoning was supported not only by the constitutional text but also by
comparative jurisprudence, including precedents from the German Constitutional Court
and the Indian Supreme Court.
This comparative approach underscored South Africa’s ambition to situate its new
democracy within a global human rights tradition. Woolman (2012) characterizes the
decision as embodying a “selfless constitution,” one that prioritizes human dignity over
state power. On the other hand, Davis (1996) critiques the ruling for overlooking
society’s demand for retribution in the face of widespread violent crime. By emphasizing
constitutional values above popular will, the Court sought to insulate fundamental rights
Assignment 2
Due 2025
, Human Rights Interpretation
Critical Reflection on S v Makwanyane and the Abolition of Capital Punishment in
South Africa
Introduction
The Constitutional Court’s ruling in S v Makwanyane and Another (1995) marked a
turning point in South Africa’s shift to constitutional democracy. By striking down the
death penalty as unconstitutional, the Court underscored the centrality of the rights to
dignity, equality, and life. This historic judgment not only eliminated capital punishment
but also symbolized a decisive break from the systemic violence and authoritarianism of
apartheid. Importantly, the decision highlighted that constitutional interpretation should
rest on principles of justice and human rights, rather than public opinion. This essay
critically examines the ruling, arguing that while the Court was justified in grounding its
reasoning in constitutional values and international human rights standards, ongoing
debates persist around retribution, societal opinion, and the influence of foreign
jurisprudence on South African constitutional law.
Constitutional Basis and the Death Penalty Debate
The Court’s decision was rooted in the 1993 Interim Constitution, particularly Section 9
(equality), Section 10 (human dignity), and Section 11 (life). Chief Justice Chaskalson,
writing for the majority, concluded that the death penalty was incompatible with these
rights because it extinguished life in a manner that disregarded the intrinsic worth of
individuals. His reasoning was supported not only by the constitutional text but also by
comparative jurisprudence, including precedents from the German Constitutional Court
and the Indian Supreme Court.
This comparative approach underscored South Africa’s ambition to situate its new
democracy within a global human rights tradition. Woolman (2012) characterizes the
decision as embodying a “selfless constitution,” one that prioritizes human dignity over
state power. On the other hand, Davis (1996) critiques the ruling for overlooking
society’s demand for retribution in the face of widespread violent crime. By emphasizing
constitutional values above popular will, the Court sought to insulate fundamental rights
