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MHR5904 Assignment 2 (COMPLETE ANSWERS) 2024 - DUE 1 October 2024 $2.71   Add to cart

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MHR5904 Assignment 2 (COMPLETE ANSWERS) 2024 - DUE 1 October 2024

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MHR5904
ASSIGNMENT 2 2024
UNIQUE NO.
DUE DATE: 1 OCTOBER 2024

, MHR5904

Assignment 2 2024

Unique Number:

Due Date: 01 October 2024

Human Rights Interpretation

Essay
Critical Engagement with S v Makwanyane and the Abolition of the Death Penalty
in South Africa
Introduction

The S v Makwanyane (1995) case is a landmark decision in South African constitutional
law, as it declared the death penalty unconstitutional under the new democratic order.
The judgment is a rich legal document that touches upon human rights,
constitutionalism, and the role of the judiciary in a nascent democracy. This essay
provides a critical analysis of the reasoning in Makwanyane, with particular attention to
the constitutional values of human dignity, equality, and the right to life. I argue that
while the Constitutional Court’s decision was correctly grounded in the constitutional
framework, it leaves unresolved tensions about retributive justice and public opinion.

1. Constitutional Foundations and the Role of the Death Penalty

The Constitutional Court’s reasoning in Makwanyane centered on the fundamental
rights contained in Sections 9 (equality), 10 (dignity), and 11 (life) of the Interim
Constitution (1993). Chief Justice Chaskalson, delivering the majority judgment,
contended that capital punishment inherently violated the right to life and dignity. He
based his reasoning not only on South African law but also on international human
rights principles (Chaskalson, 1995). Comparative constitutional law, particularly from
Germany and India, significantly influenced the judgment, reflecting a cosmopolitan
approach to constitutional interpretation.

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