LJU4801
ASSIGNMENT 2 2025
UNIQUE NO.
DUE DATE: AUGUST 2025
, Legal Philosophy
Essay: S v Makwanyane and the African Legal Philosophical Approach
Introduction
The landmark Constitutional Court decision in S v Makwanyane and Another (1995)
abolished the death penalty in South Africa on the basis that it violated the right to life
and dignity entrenched in the Constitution. The judgment has been widely celebrated as
a constitutional moment that affirmed human rights while also grounding South African
jurisprudence in African philosophical traditions. Central to the Court’s reasoning was
the concept of uBuntu, understood as a principle of humanity, reconciliation, and
restorative justice. This essay argues that the judgment embodies an African legal
philosophical approach because it rejected purely retributive punishment in favour of a
jurisprudence rooted in human dignity, communal solidarity, and reconciliation, which
are defining features of African philosophy.
Ubuntu and African Legal Philosophy
Ubuntu is often captured by the phrase umuntu ngumuntu ngabantu (“a person is a
person through other people”), signifying an interdependent and relational view of
human existence. In African legal philosophy, justice is not limited to punishment or
deterrence but is oriented toward restoring harmony within the community. This
contrasts with Western retributive justice models, which emphasise punishment as
proportional to the crime. Ubuntu therefore foregrounds values of compassion,
empathy, and reintegration of offenders into the social fabric.
The Makwanyane judgment explicitly invoked Ubuntu as a constitutional value. Justice
Langa described it as embodying humaneness, social justice, and fairness, while
Justice Mokgoro emphasised its role in shaping a uniquely South African
jurisprudence.^2 The Court thus aligned constitutional interpretation with African moral
traditions, ensuring that the law reflected the lived values of the majority of South
Africans.
ASSIGNMENT 2 2025
UNIQUE NO.
DUE DATE: AUGUST 2025
, Legal Philosophy
Essay: S v Makwanyane and the African Legal Philosophical Approach
Introduction
The landmark Constitutional Court decision in S v Makwanyane and Another (1995)
abolished the death penalty in South Africa on the basis that it violated the right to life
and dignity entrenched in the Constitution. The judgment has been widely celebrated as
a constitutional moment that affirmed human rights while also grounding South African
jurisprudence in African philosophical traditions. Central to the Court’s reasoning was
the concept of uBuntu, understood as a principle of humanity, reconciliation, and
restorative justice. This essay argues that the judgment embodies an African legal
philosophical approach because it rejected purely retributive punishment in favour of a
jurisprudence rooted in human dignity, communal solidarity, and reconciliation, which
are defining features of African philosophy.
Ubuntu and African Legal Philosophy
Ubuntu is often captured by the phrase umuntu ngumuntu ngabantu (“a person is a
person through other people”), signifying an interdependent and relational view of
human existence. In African legal philosophy, justice is not limited to punishment or
deterrence but is oriented toward restoring harmony within the community. This
contrasts with Western retributive justice models, which emphasise punishment as
proportional to the crime. Ubuntu therefore foregrounds values of compassion,
empathy, and reintegration of offenders into the social fabric.
The Makwanyane judgment explicitly invoked Ubuntu as a constitutional value. Justice
Langa described it as embodying humaneness, social justice, and fairness, while
Justice Mokgoro emphasised its role in shaping a uniquely South African
jurisprudence.^2 The Court thus aligned constitutional interpretation with African moral
traditions, ensuring that the law reflected the lived values of the majority of South
Africans.
