Name: Mamokete Mofokeng

Student no: 20108337

Module: Constitutional Law (COLA6211)

Task: ICE Task 1

The interpretation of the Constitution and the Bill of Rights in the case of S v
Makwenyane 1995 (3) SA 391.

The first source for judicial decision-making in South Africa is the Constitution. This is
then followed by recognized current law which is inclusive of statutory law, common law,
customary law, court precedent, and so forth. In tougher cases like the one in question,
subjective constitutional interpretational methods are used by judges to come to a
conclusion 1. The decision can also be influenced by factors such as the judges'
upbringing, their political beliefs, life experiences, their culture, and many more. The
interpretation of the Constitution is governed by the book itself and is set out in Section
39 2. The decision or interpretation must promote and uphold Constitutional values,
which are human dignity, equality and freedom within them.

In this case, the Court held that provisions of the Constitution should not be analysed in
isolation, but with the inclusion of the history of the adoption of the Constitution and the
provisions of the Constitution itself. Due to the fact that there was no definition for cruel
and inhumane punishment the Court gave meaning to it. The Court was aware that
majority of the public favoured the continuation of the death penalty, but since its'
decision-making is constrained by the supremacy of the Constitution, it questioned
whether that type of punishment was Constitutional.

The judges based their reasoning on different aspects of Constitutional interpretation,

different values and different legal sources. Chief Justice Chaskalson stated that the
main argument in this case was against Section 11(2) which speaks on cruel and
inhumane punishment; however the right to life, human dignity and equality flows from
this right too, meaning it would be an infringement on all of them. Justice Langa and
Justice Madala used the concept of Ubuntu to emphasise the right to life. The decision
was reached by the judges relying on different Constitutional values and rights, different
3
sources and different Constitutional interpretational methods.

1
Klaasen, A. 2017.
2
The South African Constitution.
3
Klaasen, A. 2017.
The different methods are grammatical interpretation, which focuses on how natural
language can assist in legal interpretation and limit possible meanings of certain
provisions. The next method is systematic interpretation which looks at the history and
background of the provisions. The following method is purposive interpretation which
looks at the meaning and purpose or intention of Constitutional provisions. The last
method is Historical situating, which focuses on the background of the genesis of the
provisions and the Bill of Rights. Overall, the Court turned to human rights and values
for guidance. The Court had to make prescriptive judgement to give effect and meaning
to the undefined Constitutional rights.4

4
S v Makwenyane 1995 (3).
Bibliography.

Books:

Brand, D., Gevers, C., and others. 2019. South African Constitutional Law in Context.
ISBN: 978 019 599137 6. Oxford: Cape Town.

The Constitution of South Africa.

Cases:

S v Makwenyane 1995 (3) SA 391.

Online websites:

Klaasen, A. 2017. Constitutional Interpretation in the so-called ‘hard cases': revisiting S

v Makwenyane [online]. Available at http://www.scielo.org.za/scielo.php?
script=sci_arttext&pid=S2225-71602017000100002. [Accessed on 18 March 2021].