LJU4801
Assignment 2
2025
, LJU4801 – Assignment 02 (2025/02)
Question
Carefully consider the following quotation:
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. As importantly, their findings should be understood as broadly representative
of South African views regarding the moral underpinnings of the basic law. The
presence of uBuntu as a guiding norm in the interpretation of our basic law is essential
for the legitimation of our legal system.
Essay:
1. Introduction
The Constitutional Court’s landmark ruling in S v Makwanyane and Another¹ abolished
the death penalty under South Africa’s Interim Constitution. At first glance, the decision
is grounded in legal rights: the right to life (s 11(2)), dignity (s 10), and the prohibition of
cruel, inhuman or degrading punishment. Yet, the case is far more than a technical
exercise in rights adjudication. It represents a jurisprudential moment where African
legal philosophy embodied in the concept of uBuntu was consciously infused into
constitutional interpretation.
The judges of the Makwanyane Court consistently rejected retribution and group
catharsis as legitimate bases for punishment, emphasising instead reconciliation,
restorative justice, and human dignity. These themes align closely with African moral
thought, which places emphasis on relational personhood, communal solidarity, and
reconciliation rather than vengeance. This essay argues that Makwanyane embodies an
African legal-philosophical approach by: (a) rooting constitutional meaning in the value
of uBuntu, (b) rejecting retribution in favour of restorative justice, (c) reflecting the
democratic solidarity of a transitioning society, and (d) grounding the legitimacy of the
legal order in values broadly held by South Africans.
Assignment 2
2025
, LJU4801 – Assignment 02 (2025/02)
Question
Carefully consider the following quotation:
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. As importantly, their findings should be understood as broadly representative
of South African views regarding the moral underpinnings of the basic law. The
presence of uBuntu as a guiding norm in the interpretation of our basic law is essential
for the legitimation of our legal system.
Essay:
1. Introduction
The Constitutional Court’s landmark ruling in S v Makwanyane and Another¹ abolished
the death penalty under South Africa’s Interim Constitution. At first glance, the decision
is grounded in legal rights: the right to life (s 11(2)), dignity (s 10), and the prohibition of
cruel, inhuman or degrading punishment. Yet, the case is far more than a technical
exercise in rights adjudication. It represents a jurisprudential moment where African
legal philosophy embodied in the concept of uBuntu was consciously infused into
constitutional interpretation.
The judges of the Makwanyane Court consistently rejected retribution and group
catharsis as legitimate bases for punishment, emphasising instead reconciliation,
restorative justice, and human dignity. These themes align closely with African moral
thought, which places emphasis on relational personhood, communal solidarity, and
reconciliation rather than vengeance. This essay argues that Makwanyane embodies an
African legal-philosophical approach by: (a) rooting constitutional meaning in the value
of uBuntu, (b) rejecting retribution in favour of restorative justice, (c) reflecting the
democratic solidarity of a transitioning society, and (d) grounding the legitimacy of the
legal order in values broadly held by South Africans.
