, LJU4801 Assignment 2
Semester 2 2025
DUE September 2025
Use this document as a guide and for references to answer your assignment
Why S v Makwanyane Embodies an African Legal-Philosophical
Approach
Introduction
S v Makwanyane and Another* (Constitutional Court, 1995) abolished the
death penalty under South Africa’s interim Constitution. Beyond its
immediate holding, the case is celebrated for the way it reframed
constitutional interpretation around uBuntu (also spelled botho)—an African
value system emphasizing humaneness, relational personhood, and
communal solidarity. Read this way, Makwanyane is not only an anti–death-
penalty case; it is a blueprint for an African jurisprudence that centers
dignity, reconciliation, and restorative justice as constitutional values.
This essay explains how the judgment embodies that approach: (1) the Court’s
articulation of uBuntu as a constitutional value; (2) its preference for restorative
over purely retributive penology; (3) its relational conception of dignity, life, and
equality; (4) its historically situated, community-conscious method; and (5) its
dialogic understanding of public opinion and democratic legitimacy. It also notes
common critiques while showing why the case remains foundational for an African
legal philosophy of the post-apartheid order.
1) Locating uBuntu Within Constitutional Interpretation
A hallmark of the judgment is the way several Justices (notably Langa, Mokgoro,
Madala and Sachs JJ in concurring opinions) brought uBuntu to the surface as a
guiding norm for reading the Bill of Rights. uBuntu, in African philosophy, frames
a person as a person through other persons (―I am because we are‖). It stresses
humaneness, compassion, solidarity, respect, and reconciliation over
vengeance.
Semester 2 2025
DUE September 2025
Use this document as a guide and for references to answer your assignment
Why S v Makwanyane Embodies an African Legal-Philosophical
Approach
Introduction
S v Makwanyane and Another* (Constitutional Court, 1995) abolished the
death penalty under South Africa’s interim Constitution. Beyond its
immediate holding, the case is celebrated for the way it reframed
constitutional interpretation around uBuntu (also spelled botho)—an African
value system emphasizing humaneness, relational personhood, and
communal solidarity. Read this way, Makwanyane is not only an anti–death-
penalty case; it is a blueprint for an African jurisprudence that centers
dignity, reconciliation, and restorative justice as constitutional values.
This essay explains how the judgment embodies that approach: (1) the Court’s
articulation of uBuntu as a constitutional value; (2) its preference for restorative
over purely retributive penology; (3) its relational conception of dignity, life, and
equality; (4) its historically situated, community-conscious method; and (5) its
dialogic understanding of public opinion and democratic legitimacy. It also notes
common critiques while showing why the case remains foundational for an African
legal philosophy of the post-apartheid order.
1) Locating uBuntu Within Constitutional Interpretation
A hallmark of the judgment is the way several Justices (notably Langa, Mokgoro,
Madala and Sachs JJ in concurring opinions) brought uBuntu to the surface as a
guiding norm for reading the Bill of Rights. uBuntu, in African philosophy, frames
a person as a person through other persons (―I am because we are‖). It stresses
humaneness, compassion, solidarity, respect, and reconciliation over
vengeance.
