Authored By: Oyena Fatyi
North West University
Abstract
This study explores the significant role that Ubuntu, an African philosophical concept, plays in shaping how South African courts approach justice. Through a careful examination of its influence on the development of South African jurisprudence, the study investigates how Ubuntu impacts judicial reasoning, particularly in the promotion of values such as social and restorative justice. Rooted deeply in African philosophy, the concept of Ubuntu embodies principles of inclusivity and interconnectedness, offering a compelling framework for fostering shared values and cultivating a truly pluralistic legal culture in South Africa.
Introduction
Ubuntu, a concept that has its origins in African philosophy, advances “humanness” and “respect for humanity.”[1] This has been a way of living within African communities, putting emphasis on the interdependence of people and the importance of collective community-building. The concept has also found expression in South African caselaw, becoming a pivotal element in shaping the way in which South African courts define justice in a post- apartheid South Africa. This study aims to explore the origins of Ubuntu, exploring how it influences judicial decisions in South Africa’s constitutional framework. It specifically looks at Ubuntu’s potential to guide courts toward a restorative and rehabilitative approach to justice, while also reflecting on the challenges and opportunities of integrating Ubuntu-based perspectives into the justice system. This will be done by taking cognisance to the philosophical principles underlying Ubuntu, its connection to restorative justice, and some ground-breaking instances where Ubuntu has been integrated into constitutional and contract law decisions.
The Philosophical and Cultural Foundations of Ubuntu
Perhaps, in order to fully grasp the essence of Ubuntu, it is important to consider observations made by the late Justice Mokgoro in the case of S v Makwanyane:[2]
“Generally, ubuntu translates as “humaneness”. In its most fundamental sense, it translates as “personhood” and “morality”. Metaphorically, it expresses itself in “umuntu ngumuntu ngabantu”, describing the significance of group solidarity on survival issues so central to the survival of communities. While it envelops the key values of group solidarity, compassion, respect, human dignity, conformity to basic norms and collective unity, in its fundamental sense it denotes humanity and morality. Its spirit emphasises respect for human dignity, marking a shift from confrontation to conciliation. In South Africa ubuntu has become a notion with particular resonance in the building of a democracy. It is part of our “rainbow” heritage, though it might have operated and still operates differently in diverse community settings. It is values like these that Section 35 requires to be promoted. They give meaning and texture to the principles of a society based on freedom and equality.”[3]
Ubuntu stresses the value of group solidarity and interdependence, particularly for the survival of communities. The phrase “umuntu ngumuntu ngabantu” embodies this spirit, highlighting that one’s existence is deeply tied to the collective well-being of others. Ubuntu advocates values such as compassion, respect, human dignity, conformity to social norms, and collective unity. It promotes a shift from confrontation to conciliation, which has become vital in South Africa’s democratic transition.
Ubuntu’s roots in African philosophy make it resistant to a single definition but encompass key principles such as human dignity, respect for life, and community solidarity. In traditional African societies, Ubuntu is an essential value and a way of life which guides the daily existence and interactions of African people, promoting a sense of communal responsibility and community-building. Another component that is embodied in this concept is the Zulu saying, “ingane yami ingane yakho” (“my child is your child”), which can also be found in the famous saying “it takes a village to raise a child”. This illustrates the shared responsibility for raising and guiding children in the community. This signifies the distinction between a child and an adult in that the child owes respect to all adults in the community, not only to those of his or her immediate family.
Another important component of ubuntu involves the moral duty between family members, neighbours, and community at large. This is a component in terms of which one is bound by morality to extend a helping hand when one is in a position to do so, and another finds himself in a position of desperation and trouble. This component finds expression in the maxim ‘motho ke motho ka batho ba bangwe’ which means ‘I am because you are’. This is a clear example of the fact that African societies encourage communitarianism over individualism.
The Interplay Between Ubuntu and Restorative Justice
Restorative justice, as a theory of justice, prioritizes rehabilitation over punishment, aiming to reintegrate offenders into society as law-abiding members, while in the same vein, restoring victims and the community to a position as before the commission of a crime. Ubuntu, with its focus on interconnectedness and community, aligns closely with restorative justice by emphasizing the need for healing, reconciliation, and the rehabilitation of offenders. By promoting communal values and relationships, Ubuntu-based justice systems create opportunities for victims and communities to heal, while addressing the root causes of crime and fostering reintegration for offenders.
The Current State of Justice in South Africa
The incorporation of the concept of Ubuntu into South African courts coincided with the country’s transition from apartheid to democracy. The Interim Constitution[4] emphasized the importance of Ubuntu in its preamble, recognising the need for “ubuntu but not victimization”.[5] Under apartheid, the justice system was largely punitive and failed to address the root causes of crime or promote social healing. However, as part of the transformative goal, the Constitution sought to dismantle these punitive structures in favour of a justice system based on human rights, dignity, and restorative principles.
Ubuntu and Restorative Justice: A Conceptual Framework
Restorative justice, with its focus on restoration and rehabilitation, benefits from Ubuntu’s unique perspective on justice, which stresses the importance of community and relationships. By incorporating Ubuntu into restorative justice practices, courts can foster reconciliation and healing for victims, encourage offender rehabilitation, and involve the community in the justice process. Ubuntu also enables a more nuanced, context-specific approach to understanding crime, acknowledging the societal and relational factors at play.
Ubuntu and Constitutional Law: A Critical Analysis of S v Makwanyane
The concept of ubuntu was first given content in South Africa’s jurisprudence in the landmark case of S v Makwanyane. This is a pivotal case where the Constitutional Court of South Africa declared the death penalty unconstitutional, thereby marking its abolition. This decision was on the argument that the imposition of the death penalty was in direct conflict with sections 9 and 11(2) of the Interim Constitution which made provision of the principles of human dignity and the sanctity of life.
In this case, two accused persons were convicted on four counts of murder, one count of attempted murder, and one count of robbery with aggravating circumstances. The Witwatersrand Local Division of the Supreme Court sentenced them to death on each of the four counts of murder and long periods of imprisonment on the other counts. They made an appeal to the Appellate Division against the convictions and sentences. The Appellate Division dismissed this appeal and held that circumstances of the murders permitted the heaviest penalty prescribed by law. In terms of the South African law, such penalty could be found under section 277(1)(a) of the Criminal Procedure Act 51 of 1977.[6]
The constitutionality of section 277(1)(a) of the Criminal Procedure Act was challenged in Makwanyane. The argument that was advanced was that the death penalty infringes the rights to life and human dignity. In fact, Chaskalson P and Didcott J make the point very clear that it entails a calculated destruction of a human life.[7] The constitutionality of section 277(1)(a) was also tested against section 11(2) of the Interim Constitution which advocated against subjecting a person to torture and degrading treatment.[8] The main concern that was raised was that the death penalty was the most extreme form of punishment anyone could be subjected to. Its execution was final and irrevocable.[9] The effect of it was that it puts an end to not only the right to life but also all other fundamental rights that emanate from the right to life. The Constitutional Court demonstrated compassion and respect for human life and human dignity. The court argued that the death penalty indeed represented an irreversible and inhuman punishment, highlighting Ubuntu’s role in promoting a more compassionate and humane approach to justice. The case demonstrated how Ubuntu can guide judicial reasoning to reject punitive measures in favour of dignity, rehabilitation, and respect for human life.
Ubuntu and the Law of Contract: A Judicial Perspective
Although Ubuntu is often linked to constitutional law, its principles have also influenced decisions in contract law. The focus here is on various principles that pertain to the conclusion, interpretation, application and enforcement of contracts. Concepts of fairness, good faith, and mutual respect among parties to a contract reflect the spirit of Ubuntu.
Good faith and fairness
The essence of these principles is that the concept of ubuntu highlights the importance of parties to a contract acting faithfully to one another and to the contract itself, and upholding the highest degree of integrity in the performance of their contractual duties. This also means that parties must have regard to one another’s best interests when carrying obligations in terms of the contract. The case of Barkhuizen v Napier[10] is an important judgment of the Constitutional Court that relates primarily to the principle of fairness under the law of contract.
The Constitutional Court in this was confronted with a case that involved a constitutional challenge to a time limitation clause in a short-term insurance contract. The Court had to answer the question whether the limitation clause in the contract in question contradicted public policy and whether it gives the claimant an adequate opportunity to seek the assistance of a court. The clause in question required the claimant to institute court proceedings within 90 days after the insurance company had rejected the claim. The Court then established a two-legged test for the determination of the fairness of a clause in a contract, establishing a relationship between public policy and ubuntu. The test was whether a contractual clause led to unfairness on a party to a contract. If it did, the second part of the test was whether the unfairness is so serious that it can be said to be inconsistent with public policy.[11] The importance of this test is to give powers to the courts to assess the validity of contractual clauses against important values such as ubuntu.
Another instance in which the concept of ubuntu shaped the law of contract is the case of the Port Elizabeth Municipality v Various Occupiers.[12] This is a case that revolves around the question of eviction and the right to housing. In this case, the applicant sought an eviction order from the South Eastern Cape Local Division of the High Court against about 68 people from privately-owned property that was situated in the suburb of Lorraine. The eviction resulted from a petition signed by the local residents about the unlawful occupation of the respondents. When the application was lodged, the respondents had been living in these properties for several years and were willing to relocate if alternative housing will be provided for them.
The eviction order was granted by the High Court, which held that the termination of unlawful occupation was justified in the public interest considerations. The occupiers then made an appeal to the Supreme Court of Appeal, which set aside the order of eviction on the basis that the municipality did not adequately consider the issue of suitable alternative housing in the eviction process. The Supreme Court of Appeal raised a concern about granting the eviction order without having to first ensure the safety and security of the occupiers.
The case ultimately ended up in the Constitutional Court which held that because the respondents had occupied the property for a long period of time and taking into account their vulnerable situation, it was not just to grant an eviction order. In essence, the significance of this case is to highlight the need to show compassion in dealing with matters of eviction. It also highlights the need to consider the vulnerable situation of the occupiers by providing alternative accommodation in cases of eviction.
Applying Ubuntu in South African Justice: Challenges and Opportunities
Implementing Ubuntu-based justice in South Africa presents several challenges, including overcoming institutional and systemic barriers, as well as the enduring legacy of apartheid and colonialism. The erosion of traditional communal structures in post-apartheid society also makes the application of Ubuntu in legal practice a difficult task indeed. However, there are significant opportunities for Ubuntu to shape a more restorative justice system. By focusing on rehabilitation, healing, and community involvement, Ubuntu offers a framework for addressing societal harm and fostering a more compassionate approach to justice.
Conclusion
Ubuntu has undeniably transformed how South African courts approach justice, moving the focus from mere punishment to the restoration of relationships and the healing of communities. From its origins in African philosophy to its current application in court decisions, Ubuntu offers a powerful framework that prioritizes human dignity, communal values, and restorative justice. By embracing Ubuntu, South Africa’s justice system has not only contributed to reducing recidivism but also fostered a society based on compassion, reconciliation, and mutual respect.
BIBLIOGRAPHY
Case law
- Barkhuizen v Napier [2007] 5 BCLR 691 (ZACC)
- Port Elizabeth Municipality v Various Occupiers [2004] 7 BCLR 1268 [ZACC]
- S v Makwanyane and Another [1995], 6 BCLR 665 (ZACC)
Legislation
- The Interim Constitution of the Republic of South Africa, 1993
- The Final Constitution of the Republic of South Africa, 1996
- The Criminal Procedure Act 51 of 1977
Journals
- Sibusiso Blessing Radebe, “Ubuntu and the law in South Africa: Exploring and understanding the substantive content of ubuntu” (2017) 36(2) South African Journal of Philosophy https://hdl.handle.net/10520/EJC-75f944463 Accessed on 22 September 2025
[1] Sibusiso Blessing Radebe, “Ubuntu and the law in South Africa: Exploring and understanding the substantive content of ubuntu” (2017) 36(2) South African Journal of Philosophy https://hdl.handle.net/10520/EJC-75f944463 Accessed on 22 September 2025
[2] S v Makwanyane and Another [1995], 6 BCLR 665 (ZACC) (hereafter referred to as Makwanyane)
[3] [1995], 6 BCLR 665 (ZACC) 171
[4] The Interim Constitution of South Africa, 1993 (hereafter referred to as the Interim Constitution)
[5] Preamble of the Interim Constitution
[6] Criminal Procedure Act 1977
[7] [1995], 6 BCLR 665 (ZACC) 125
[8] Section 11 of the Interim Constitution
[9] [1995], 6 BCLR 665 (ZACC) 18
[10] Barkhuizen v Napier [2007] 5 BCLR 691 (ZACC)
[11] [2007] 5 BCLR 691 (ZACC) 26
[12] Port Elizabeth Municipality v Various Occupiers [2004] 7 BCLR 1268 [ZACC]
