This article records tradition as it has been passed down and reported. Its sources are not yet part of the atlas's verified catalogue.
A common law court deciding a hard new question can usually reach for its own prior decisions, or at least a predecessor court's, and reason by analogy from settled ground. South Africa's Constitutional Court had no such luxury in 1994 and 1995: it was a brand new institution, created by the interim Constitution of 1993 as part of the country's transition away from apartheid, hearing S v Makwanyane and Another as effectively its first substantial constitutional judgment, with no prior body of its own constitutional case law to draw on at all.
What the justices reached for instead is itself a small lesson in how a new court builds legitimacy from nothing. The judgment surveys constitutional and international human rights jurisprudence from far outside South Africa, decisions of the United States Supreme Court, the Canadian Supreme Court, the European Court of Human Rights, the Tanzanian and Zimbabwean courts, and international instruments including the International Covenant on Civil and Political Rights, comparing how each had approached capital punishment under its own rights guarantees. Court President Arthur Chaskalson's principal judgment uses this comparative survey not to import a foreign rule wholesale but to test South Africa's own emerging constitutional language against how other courts had read similar words, before the individual justices turned to a source no foreign court could have supplied: ubuntu, and the interim Constitution's own postamble invoking it, as a specifically South African ground for the same conclusion the comparative survey had already pointed toward.
That combination, wide comparative research paired with an explicitly local source of value, has become something of a signature of South African constitutional reasoning in the decades since, and Makwanyane is where later scholars trace its origin. A court with no case law of its own to stand on chose neither to invent its reasoning from nothing nor to borrow it wholesale from elsewhere, but to build its first great judgment out of both a genuinely global comparative survey and a value it could claim as distinctly its own, a template the Court has returned to repeatedly in the three decades since.