S v Makwanyane: Reasoning in 'Hard Cases'

S v Makwanyane: Reasoning in 'Hard Cases'

South Africa's Constitutional Court faced a significant challenge in 1995 when they heard the case of S v Makwanyane, which concerned the constitutionality of imposing the death penalty. This case became known as a 'hard case', implying that there was no authoritative precedent or established legal principle to guide the Court's interpretation. Instead, they had to rely on the principles contained in the Constitution itself, along with the drafters' intent and legislative history.

Key Challenges

One of the main challenges in this case involved the ambiguity surrounding sections 11 and 36 of the Constitution. While both sections dealt with human rights, they lacked specific qualifications or guidelines, leaving substantial room for interpretation. Additionally, there was no case law or jurisprudence from South Africa to serve as a direct comparison or precedent, further complicating matters.

Subjective Element in Interpretation

Judges in 'hard cases' relied heavily on their personal beliefs and experiences to reach a decision. However, they recognized the importance of being transparent and acknowledging the influence of their subjective perspectives. Many believe that judges should divulge their moral disposition when making a decision, allowing others to evaluate the fairness and consistency of their reasoning.

Balancing Objectivity and Subjectivity

To strike a balance between objectivity and subjectivity, the Constitutional Court employed various approaches. Traditional methods of interpretation were combined with elements of subjective constitutional interpretation, resulting in a final judgment that took into account both interpretive traditions.

Ubuntu and S v Makwanyane

While the focus of the case was primarily on the constitutional validity of capital punishment, the judgment also touched upon broader philosophical questions related to dignity, humanity, and morality. The concept of 'ubuntu', which emphasizes communal harmony and the worth of individuals in society, emerged as an influential component of the Court's reasoning.

Legacy and Significance

Since its inception, S v Makwanyane has served as a cornerstone for South Africa's constitutional jurisprudence, highlighting the unique challenges and opportunities that arise when interpreting a living document like the Constitution. Its legacy extends beyond the specific legal issue at hand, inspiring ongoing conversations about the relationship between moral values, individual rights, and collective responsibilities in a democratic society.