Introduction and Foundation to Law Assignment Question 1:
Introduction:
The nature of law is defined as an important question in legal philosophy trying to
understand what law is and how it should function within society1. It is often broken
down into two perspectives which is natural law and legal positivism. Natural law is
often based on morality and justice, while legal positivism focuses on rules that is made
by higher authority so ‘’ written laws’’.
In the S V Makwanyane and other2, it explains how T Makwanyane and M Mchunu was
accused on four counts of murder, one count of attempted murder and one count of
aggravated robbery. Hence why they were sentenced to death on each count of
homicide and long-term imprisonment on the other counts. Hence their legal team,
therefore challenged their death penalty against The Constitution of the Republic of
South Africa3 ( the interim constitution) as it violated the right to life and dignity. Which
therefore led to the abolishment of the death penalty in South Africa.
Law, Morality and Justice
Law, justice and morality is the foundational structure to how society functions. Even
though they are all interconnected, they are not the same. Which means they have
distinguishing definitions. Law is a set of rules and regulations that is made by a higher
authority. Justice relates to equality, fairness and ethical rightness. Whereas, morality
includes identifying between what is wrong or right which is often influenced by culture,
religion and philosophical beliefs.4
Law:
Law is a set of norms distinguishing from good or bad. A norm is a rule that controls
human behavior but not all norms are legal rules. Law is often established by
governments to maintain order, solve problems and protect the public’s rights. It
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A Barratt, H van Coller, A Govindjee, S de Freitas ,PF lya, H Kruuse, K Pillay, M du Preez, PP Singh, L Tshingana, L
Meintjes-Van der Walt Introducion to law South African Law Fresh Perspectives 3rd ed (2024) 15
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1995 (3) SA 391 ( CC)
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200 of 1993
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Swekchha Chaturvedi, “ LAW JUSTICE AND MORALITY” August 2023 website at LAW JUSTICE AND MORALITY Legal Vidhiya [ Accessed 31 March 2025]
provides a predictable and consistent system within the community, allowing for people
to know their rights and responsibilities. Legal systems are different across the world
and this is often reflected in their history, culture and social context. Laws are rules that
is made by higher authority such as the government, however they are enforced and
interpreted by the courts.5
Justice:
Justice is based on fairness, equality and moral standards. It can be split up into
distributive justice and corrective justice. Distributive justice means there must be a fair
allocation between people in society, whereas corrective justice means to correct any
injustices imposed on individuals. Justice is more than the rules in our legal system
because it transcends into society, the economy and into politics. It acts as a moral
compass to ensure that the choices which are made is creating a fair community. The
interpretation of justice can be can be subjective and is influenced by many aspects like
religion.6
Morality:
Morality is a set of ethical rules and values which help people to differ between what is
right or wrong. These ethical principles come from different beliefs, cultures etc and they
shape the way individuals interact and cooperate with one another. It also helps to
develop the law society functions in. While the law is a set of legal rules affecting
society as a whole, moral standards can be seen on a personal basis affecting people’s
everyday decisions and interactions.7
Legal Positivism:
Legal positivism is defined as ‘’ what the law is and not what it ought to be’’. The law is
written down in statute books, rules and in court decisions that is made by those of
higher authority. Lawful force must not be based on science, religion, moral standards
or philosophy. Legal positivism is based on commands that is made by humans, does
not need to have any connection with morality and if it does it is just a coincidence,
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Swekchha Chaturvedi, “ LAW JUSTICE AND MORALITY” August 2023 website at LAW JUSTICE AND MORALITY Legal Vidhiya [ Accessed 31 March 2025]
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Swekchha Chaturvedi, “ LAW JUSTICE AND MORALITY” August 2023 website at LAW JUSTICE AND MORALITY Legal Vidhiya [ Accessed 31 March 2025]
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Swekchha Chaturvedi, “ LAW JUSTICE AND MORALITY” August 2023 website at LAW JUSTICE AND MORALITY Legal Vidhiya [ Accessed 31 March 2025]
judges reach court conclusions through using logic based on legal rules and not moral
empathy and conclusions made must be based on rational arguments, evidence or
proof.Legal positivism also may change overtime and since humans are the ones
making the law, what may be legal in one country maybe illegal in another country. 8
Early Positivists include Jeremy Bentham, John Austin and Hans Kelsen. John Austin
believed law was made by a sovereign and also considered that if some did not follow
the law, they could be punished or a country may suffer from a sanction. Buckland
summarized Austin’s view as the ‘’ Law is law since it is made by the Sovereign. The
Sovereign is the Sovereign because he makes the law”.9 Regarding to the case, this
view will back up the implementation of the death penalty since it was made by a
sovereign and those who did not follow the legal rules could be punished.
Hans Kelsen developed The Pure Theory of Law (1968). He concluded that the legal
system was not based on any form of moral standards but was focused on a hierarchy
of norms (what must be done). The highest basic norm is known as the Grundnorm. The
Grundnorm is a fundamental rule in the legal system which derives all other norms.10
According to this view of Hans Kelsen it supports that the death penalty was binding
under the apartheid-era laws, even though it goes against the principles of natural law.
H.L.A Hart was a 20th century positivist who believed there was a fine line between
morality and the law. He did agree that in the past, many laws were influenced by moral
principles and standards and that a moral code could be integrated because of
legislative or judicial adoption. His theory is hence known as soft positivism. However,
H.L.A Hart also believed that the law could still be valid even if it did not follow basic
ethical principles. He explained that immoral laws are still part of legal positivism even
though they go against basic human rights. Hart did agree that there should be laws put
in place for the survival of people and there should be equality before the law and
neutrality in the administration of justice. Yet he further elaborated by explaining that
even though the law may meet certain requirements, some people may still regard the
law as rules lacking any moral code.11 According to his theory, since the apartheid-era
laws followed an established lawful procedure, the death penalty was seen as a legal
punishment.
Jeremy Bentham believed that modern or ancient law should be judged against
whether the law increased or decreased the happiness of the public- principle of utility
or usefulness. Jeremy Bentham believed that the law was a command made by a
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sovereign. 12Yet regarding to the case, Bentham’s theory would agree to the
abolishment of the death penalty because the punishment would not benefit society.
People would still commit murder even if the death penalty was still available.
Before The Constitution of the Republic of South Africa, 1996( The Constitution)13
punishments were often based on legal positivism rather than natural law. Legal
positivism supported the death penalty because it followed the rule of law and it was
created through an established legal system and procedure.
Natural Law:
Natural law can be defined as the law which is legislated and what it ought to be. The
main feature of natural law is the moral content. They are regarded as ‘’ higher norms’’
which legal positivism could be compared to. If man-made laws go against these
‘’higher norms ‘’ it is unjust. When laws are unjust, they become no law at all. Natural
law is based on humans reason and often believed to have been made by God. 14
Followers of natural law believe these rules are never changing and define what is right,
just and good. They agree it is accessible to all people, if they use reason and that it
applies to everyone, all the time and in different situations. Laws that are made by
humans only becomes assertive if it applies the principles of normative law.Examples of
actions that is derived by normative law is being honest, respecting parents, caring for
those who cannot care for themselves, not committing adultery when married and so
on. When written laws are not clear in certain circumstances, natural law can act as a
guide.15
Ronald Dworkin was a philosopher who influenced the South African legal system and
he believed that morality was an important concept for determining law. He believed that
legal systems consisted of rules, principles and policies. Rules are supposed to be
followed, while principles are to be observed because of the requirement of justice,
fairness and morality. While a policy however, is an objective that is based on any
economic, political or social feature, which helps to improve society and it has to be
achieved. He also supported judges that applied the ‘’law of integrity’’, which means
judges were making decisions that was fair and aligned with values of law rather than
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200 of 1993
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Duard Kleyn, Frans Viljoen, Emile Zitzke, Palesa Madi, BEGINNER’S GUIDE FOR LAW STUDENTS 5th ed (2022) 16
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just following a bunch of rules. 16Regarding to the Makwanyane case, judges used a
value-based interpretation that aligned with the ‘’ law of integrity’’ because they looked
at human dignity, equality and more and found that the death penalty was
unconstitutional.
John Locke was an important contributor to natural law. He agreed that natural law was
founded on reason and rationality. It was not enforced by higher authority. His main
beliefs was that people had natural rights like life, liberty and property and these rights
cannot be taken away by the government. The government was made to protect these
rights, and if they failed to do so, individuals had the right to defy their commands. 17 In
the Makwanyane case, the court got rid of the death penalty in an effort to protect the
right to life aligning with John Locke’s view that the government has the duty to protect
individuals’ rights.
Aristotle was a Greek philosopher who believed there was a natural order that controlled
the world, which can be discovered through human reason. It tells individuals what is
morally right and just. One of his concepts speaks about ‘telos’ (purpose)- everything
has a goal. For humans it is happiness which is translated to ‘eudaimonia’.18 In the
Makwanyane case, even though Aristotle did not specifically talk about a death penalty,
his theory on justice and ‘eudaimonia’ speaks about how taking a life goes against
human dignity and hinders the ability for moral reconstruction therefore supports the
court’s decision for the abolishment of the death penalty.
Thomas Aquinas is a medieval philosopher and theologian who stressed about the
importance of common good. This means that laws should be put in place to promote
the well-being of people and to create a harmonious society. He also spoke about
prudence which is practical wisdom that allows people to make ethical decisions in
particular circumstances allowing them to uphold justice and common good.19
Application:
Legal Positivism:
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Abogados Gold USA “ John Locke and Natural Law: A Comprehensive Overview” John Locke and Natural Law: A
Comprehensive Overview - Abogados Gold [ Accessed 21 March 2025]
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Abogados Gold USA “ The Influence of Aristotle on Natural Law Theory” The Influence of Aristotle on Natural Law
Theory - Abogados Gold.[ Accessed 21 March 2025]
19
Abogaos Gold USA “Insights into St. Thomas Aquinas’ Views on Law” Insights into St. Thomas Aquinas' Views
on Law - Abogados Gold. [ Accessed 21 March 2025]
17
Legal positivists see law as being created and enacted by a legitimate authority.
Regarding to the Makwanyane case, the death penalty would be seen as legally valid
since it is created and enacted by apartheid government, even if it the law is seen as
unjust and accused of going against basic moral and ethical standards. However still
using this perspective, the legal team of Makwanyane can invalidate the death penalty
as going against the new constitution which speaks about how it violates human rights.
So, using the post-apartheid The Constitution, they can still declare the death penalty as
being invalid showing that the interpretation of a law can change when a new legal
system with moral conscious is put in place.
Natural Law:
Natural law is a theory in which man-made laws must align with moral standards and
principles that is discovered through human reason. Seen in the Makwanyane case, the
death penalty is seen as a law that contradicts basic moral principles which in this
scenario is the right to life. Natural law is based on moral conduct which therefore
means since the death penalty takes the life of Makwanyane and Mchunu it is immoral.
Natural law principles can be witnessed in the Constitutional Court’s decision to abolish
the death penalty since it contradicted the right to life and human dignity seen in the bill
of rights. The ruling shows that any law which permits the death penalty is immoral
because it would go against basic human rights.
Opinion:
Relationship Between Morality and Law?
I believe that law and morality are intertwined yet they also differ. Morality is based on
ethical standards discovered through human reason whereas law is based on legal
rules made by an established authority. My view is that morality can help guide law to
develop a more equal society. For example, during apartheid, laws lacked morally
conscious therefore allowed for the use of the death penalty. However, after being
judged against the constitution it was abolished. Therefore, I believe law should evolve
to align with morality so that more ethical decisions affecting society would be made.
Difference between positivism and naturalism in practice?
The Makwanyane case shows the death penalty with legal positivism and natural law.
Before the constitution the death penalty was legally valid therefore anyone who
committed murder was supposed to be executed. However, taking into account the
natural law approach the death penalty would be seen as unconstitutional going against
human rights. Seeing the differences between the two perspectives allows me to
believe that the natural law approach would be better fitted in this scenario showing the
emphasis on the importance of human life.
In conclusion we can now understand that the death penalty was valid under legal
positivism because it was based on ‘’written laws’’ made by an established government
and that morality and justice is not considered. However, in the natural law theory
morality is highly focused on and therefore the death penalty is seen as unconstitutional
because it violates the right to life and human dignity. In natural law the death penalty is
unjust because it does not align with the universal norms. The main difference between
legal positivism and natural law is that legal positivism is rules that is created by man
and enforced regardless of any moral conscious and natural law is universal rules that
was discovered through human reason and understanding.
Question 2)
Introduction:
Transformative constitutionalism was a long-term plan enacted in South Africa to
transform the country from the apartheid to a democracy. They had interpreted and
enforced laws which encouraged democracy and equality. Which also attained a social
shift through a peaceful and legal mean rather than a violent political process. Seen in
the heart of the transformation is the judiciary particularly focusing on the constitutional
court, where the laws align with the values of the constitution developed in 1996.
An example can be seen in the S V Makwanyane case, where the constitutional court
declared that the death penalty is unconstitutional. Which also led for the president in
1997 to authorize the Criminal Law Amendment Act, which abolished the death penalty
because it went against the constitution in terms of human dignity and the right to life.
This is the reason why those who were previously sentenced to the death penalty, were
resentenced to different forms of punishments.
What is Transformative Constitutionalism
Democracy?
The constitution is transformative because it aims to replace a race-based and sexist
system with a system where principles of non-racialism, non-sexism and justice is
incorporated into law. Transformative constitutionalism focuses on the rights contained
in the bill of rights particularly values of human dignity, equality and freedom of
expression. During the post-apartheid constitution, it emphasized the importance of
freedom and voting rights going beyond the apartheid without specifically directly it to its
past. The constitution is often regarded as liberal because of its attitude towards social
issues and its political ideology of individual and personal freedom.
The bill of rights is post-liberal because it works vertically (governments power over
citizens) and horizontally (individuals rights among each other). It will also take into
account socio-economic rights making sure that higher authority takes responsibility for
individuals’ quality of life. The constitutional court also clarified that they do not only
require for legal equality because equality should also be applied in real-life as well.
Judicial Precedent
Judicial precedent is important in terms of legal practice. They help to guide court
decisions, creates consistency in law and helps to make legistations adaptable. The
importance of judicial precedent is that it creates stability in law , since they follow past
court cases rulings, it becomes predictable to know the outcome a case. Lawyers may
use case law to strengthen their case so that their argument becomes more persuasive
to the judges. Case law adapts over time and courts look at past decisions to interpret
existing laws in present day cases. This helps legistation to stay relevant overtime.
Judicial precedent can be applied to the S v Makwanyane case where the death
penalty was abolished as being seen as unconstitutional because it violated human
rights and the right to life. The Makwanyane case acted as a precedent for future cases
such as the Glenister v. President of the Republic of South Africa 2011 and the National
Coalition for Gay and Lesbian Equality v. Minister of Justice 1999. Both cases focused
on constitutional rights such as the right to life and equality. The Makwanyane case is a
landmark case which established the practice of applying constitutional values.
What Case Law is and its Importance as a Source of
Law?
Case law which is also known as judicial precedent or common law is past cases that is
made through the decisions of the courts. When a judge makes a decision on a case,
those legal principles can help guide future cases with related subjects. In a legal
system, higher courts (appeal courts) usually make rulings that are binding on lower
courts such as the magistrates’ courts. Case law can also develop overtime as courts
reinterpret law in terms of social shifts or new scenarios. Case law is also known as a
primary source of law which means it is it an original form of law and hence legally
binding to our South African courts.
In the Makwanyane case, the constitutional court made a decision to abolish capital
punishment. Case law was applied to this case in terms on the constitution and how
capital punishment violated human dignity and the right to life. Therefore, it was deemed
as immoral and inhuman. They also used international case law and how other
countries started to use other forms of punishment not just the death penalty. The
Makwanyane case was also compared to past cases in South Africa such as the S v
Mhlongo (1994) where the death penalty was seen as constitutional ruled by the
appellate court. Whereas, in the Makwanyane case it was seen as unconstitutional. As it
is noticed the law was reinterpreted choosing to not following the traditional way and
instead uphold the values enshrined in the Interim Constitution.
Distinguish Between Ratio Decidendi and Obiter
Dicta of a Courts Decision?
Not everything mentioned in the judgement is a precedent that has to be followed.
Usually, the court has to determine the facts of the case and the law that applies to
these facts. Most of the time, the facts of various cases are similar however they are
never fully identical. The facts may differ in one way or another. A finding only on facts
creates no precedent.
Obiter dicta does not create precedents because it is the casual comments on law that
judges make. It is not exactly relevant to the case therefore does not need to be taken
into account to reach a court’s decision. However, it can be persuasive.
Ratio decidendi creates precedent because it included legislations to the facts of the
case in order for a decision to be reached. Law reports never consist of the specific
section that contains the ratio decidendi.
How Legal Systems Operated Under the Apartheid
Laws?
From 1948 to 1994 in South Africa, the apartheid was known as a time of great racial
discrimination and oppression. The National Party government implemented laws which
enforced races to be separated and face discrimination particularly non-white
individuals.
Examples of Apartheid legislations would include the prohibition of Mixed Marriages
Act( 1949)- different races could not get married and Group Areas Act (1950) which
legalized different races living in separate areas usually the land was given to the white
minority . Also included the immorality act which criminalized different races that got
into an intimidate relationship, the Bantu Education Act (1953) where non-white
students were provided with inferior education compared to white scholars, the
suppression of communism act ( 1950) and Terrorism Act ( 19670) that gave the
National Party government great power to suppress any liberation organization which
showed opposition to their policies and many more acts which enforced their values.
Other Acts included the Black Homeland Citizenship Act ( 1970)(-this act did not allow
non-white South Africans to gain citizens) and (The Internal Security Act( 1982) (- this
act gave the government great public power and ability to control any form of resistance
from their policies)
The legal system of the apartheid was dehumanizing which caused the oppression of
non-white individuals. These laws enforced discrimination, political resistance, restricted
freedom and opportunities for education for non-white citizens. While the apartheid
ended in 1994 when Nelson Mandela was elected as president, the impact of the
apartheid laws still influences South Africa’s socio-political landscape. Understanding
the history helps to acknowledge those who had suffered and this will help work towards
a more equal society for South Africa.
Outline the Ways South Africa has been
Reconstructed After Abolishment of Apartheid
F.W. de Klerk and Nelson Mandela new constitution was finalized in 1993, and it
contains the foundation for the reversal of apartheid law. They won a noble prize in
1993 for their assistance in removing racism. The new constitution focused on human
dignity which was lacked in the old apartheid law.
They reversed many old acts such as the Mixed Marriage act of 1949, which now is
made legal for interracial marriages. Under apartheid, there was segregation between
living areas based on racial groups seen in the Group Areas Act( 150) , even though
the restrictions were removed after apartheid, their effects are still seen socially in South
Africa’s cities. After the apartheid, there was a change seen in the Bantu Education Act
1953, where different racial groups started studying at the same educational intuition
and receiving the same opportunities. The Black homeland citizen act( 1970) was
abolished and regarding to the 1996 constitution it restored full citizens regardless of
ethnicity to all South Africans. The internal Security Act of 1982 was abolished and the
new democratic government allows for the rights of individuals aligning with the 1996 in
constitution.
Explain the Importance of Judicial Precedent in
Transformative Constitutionalism?
Judicial precedent is important in transformative constitutionalism because it helps to
develop the constitution to address present issues. Judicial precedent allows for the
constitution to respect its core values such as the fundamental human rights while also
changing overtime to adapt to new situtations. Judicial precedent helps ensure legal
consistency.This is because the courts would follow past rulings and apply the law in a
predictable way allowing for individuals to know that similar cases would be treated the
same way. Judicial precedent also ensures for the publics trust in making fair lawful
decisions. Judicial precedents from cases like S V Makwanyane becomes important to
judges because it helps them to make final judgements that promote fairness and
equality.
In my opnion, the coustitutional court made a ruling to abolish the death penalty as it
was seen as unconstitutional because it violated the right to life and human dignity
which aligns with constitutional values as seen in natural law. I believe yes it does
further the transformative constitutionalism because the rulings interprets the
constitutions values while also adjusting the law from past case laws. Therefore it
allows for changes while keeping the fundamental core values constant. This will allow
for a more adjustable democratic society in South Africa, which can interpret and apply
the law to different and new suitations
Conclusion
In conclusion, the courts help keep South Africa’s democracy transformative. They
interpret the constitution, review laws and protect the rights in the bill of rights ensuring
they are creating a fair society. The S V Makwanyane case is an example of how the
courts decision can cause a change in the law while also keeping the constitutional
values constant. As laws in South Africa keep on changing, the courts must keep the
fundamental values of the constitution constant.