S v Makwanyane and Another

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 newly created constitutional court, deciding its first major case, choosing to strike down a punishment most of the country's population still supported, is not the safe opening move an institution worried about its own legitimacy would ordinarily choose. That is exactly the position South Africa's Constitutional Court was in when S v Makwanyane and Another reached it in 1994, automatically referred under the interim Constitution rather than chosen by the Court itself, and it is worth being clear about just how little cover the justices had for the decision they reached.

Opinion polling at the time showed most South Africans favored retaining capital punishment, in a country only recently emerged from decades of political violence in which the death penalty had itself been used, controversially, against opponents of apartheid. There was no clear textual command in the interim Constitution's Bill of Rights that unambiguously outlawed it; the Court had to construct that conclusion from the rights to life and to freedom from cruel, inhuman or degrading punishment, provisions that other constitutional courts, interpreting similar language, have read in both directions. And the Court had almost no institutional track record of its own to draw on: this was its first year of operation, deciding a case that would define, for decades, how much independence from majority sentiment South African constitutional review actually had.

The justices ruled against the death penalty unanimously, eleven to nil, and did so with eleven separate opinions rather than a single consolidated text, a choice that let each justice articulate their own route to the same result, from Court President Arthur Chaskalson's principal judgment through the ubuntu-grounded reasoning of Mokgoro, Sachs, Mahomed and Langa. South Africa has not reinstated capital punishment since. For a court to spend its very first major judgment establishing that it would enforce the Bill of Rights against both a preceding statute and a documented majority preference is the kind of founding act constitutional scholars point to when asked what actually makes a young court's later independence credible: not a promise, but a demonstrated willingness, on day one, to rule the harder way.

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.