This article records tradition as it has been passed down and reported. Its sources are not yet part of the atlas's verified catalogue.
South Africa's Constitutional Court had existed for less than a year when it took up a case that would decide whether the state could go on executing people. S v Makwanyane and Another was automatically referred to the new Court in 1994 under the interim Constitution, and on June 6, 1995 all eleven justices agreed, unanimously, that capital punishment for murder violated the rights to life and against cruel, inhuman or degrading punishment. That the vote was unanimous is itself remarkable for a court's very first major constitutional case; what makes the judgment still taught today is that all eleven justices wrote or joined separate opinions rather than simply signing one text, and several of them reached for the same word to explain why: ubuntu.
The word does not translate cleanly into a single English legal term, and the justices who invoked it, Yvonne Mokgoro, Albie Sachs, Ismail Mahomed and Pius Langa among them, did not all use it identically. Broadly, they drew on ubuntu's core idea, that a person is a person through other persons, to argue that the death penalty is inconsistent with a vision of justice grounded in communal interdependence and the possibility of restoration, rather than one built on retribution alone. They were not inventing this connection from nothing. The interim Constitution's own postamble had already invoked the word directly, closing with the statement that there is a need for understanding but not for vengeance, a need for reparation but not for retaliation, a need for ubuntu but not for victimisation, language the drafters of South Africa's transition from apartheid wrote in deliberately, anticipating exactly the kind of case the Court was about to decide.
Opinion polls at the time showed most South Africans favored keeping the death penalty. The Court struck it down anyway, grounding part of its reasoning in a value drawn not from English or Roman-Dutch legal tradition, the two sources South African law is usually described as blending, but from indigenous African ethical philosophy, given constitutional standing for the first time. That combination, a court willing to overrule majority preference on a founding rights question, doing so partly by reasoning from a customary ethical concept elevated into constitutional argument, is what makes Makwanyane a case comparative lawyers keep returning to, not only South African ones.