Authored By: Bokamoso Ramadie
University of Johannesburg
1 Introduction
The recent judgment raises an important idea of Ubuntu as a significant aid to the law, specifically in its value to South Africa’s development in legal and constitutional fields. The emergence of the 1993 Constitution in this country has made ubuntu be given more attention, and the analysis of this matter is continuous. The case of S v Makwanyane also contributed significantly to Ubuntu becoming an intrinsic part of the constitutional ideals and concepts that underpin the interpretation of the Bill of Rights and other areas of law. The preamble of the provisional Constitution declares:
The adoption of this Constitution provides a solid foundation for the people of South Africa to overcome the divisions and strife of the past, which resulted in gross violations of human rights, violations of humanitarian standards in violent conflicts leave a legacy of anger, fear, guilt, and vengeance. These can now be handled because there is a need for understanding but not revenge, a need for reparation but not retaliation, and a need for ubuntu but not victimization.
In the process of showing the development of Ubuntu in the legal and constitutional sense, I will discuss some of the case laws which lead to its growth and some chapters in the 1996 Constitution of the Republic of South Africa.
2 Defining Ubuntu
There are numerous definitions of ubuntu; the most recent one defines it as a set of principles and practices that Black people of African or African descent believe make persons true human beings. While the specifics of these beliefs and practices differ amongst ethnic groups, they all point to the same thing: a real individual human being is a part of a wider and more important rational, communal, sociological, environmental, and spiritual world. In much simpler terms, it means an African way of life that accords respect to human dignity and equality to any person, irrespective of status in a communitarian sense. The principles of ubuntu are loving, trust, discipline, sharing, commitment, and respect. Without these principles in the community shows that there is no ubuntu present there.
The idiom, which says Umuntu ngumuntu nga bantu, which is translated as “I am because we are”, plays a role in the philosophy of ubuntu. It means that we, as people with different backgrounds, ought to have a bond of sharing that connects us. Ubuntu is taken from community practices and inheritance from the past. Ubuntu means a person cannot exist by himself, by himself, or for himself; people need each other. At a very young age, children are taught that any adult they come across is their parent, and they must show respect towards them. They are also taught to respect each other and share what they are eating with each other. This indicates that Ubuntu is practiced from a very young age.
3 The connection between the 1996 South African Constitution and Ubuntu
There is a link between Ubuntu and the 1996 Constitution, which is going to be evident when discussing a few sections of the Constitution. Ubuntu is included in the 1993 Constitution, not in the 1996 Constitution, but a teleological interpretation or an investigation of its intent reveals that the latter Constitution carries within the spirit of ubuntu. By calling for equality, human dignity, non-discrimination, and all other important rights recorded in the Bill of Rights, the Constitution expresses ubuntu. The 1996 Constitution was drafted in a peace-making manner, which is comparable with the preamble of the 1993 Constitution in that it puts a strong headline on the significance of national reconciliation and is permeated by respect for human dignity. Appreciation for human dignity secures and demolishes certain constituents of other rights accustomed in the Bill of Rights. The strong emphasis on human dignity shows a reaction to the human rights violations that took place before the 27 April 1994 constitutional era. Appreciation for human dignity must form a bridge between the past and future.
Madala J spoke of ubuntu as a “concept that permeates the Constitution generally and more particularly chapter three, which embodies entrenched fundamental rights”. Mokgoro J backed this viewpoint while admitting that the Constitutional Court’s role is to protect the rights of vulnerable minority. According to her, understanding the Bill of Fundamental Rights and Freedoms requires an inclusive value system or common values in South Africa as a foundation for developing human rights jurisprudence. Despite a history of deep divisions marked by turmoil and violence, South Africans share the principle of ubuntu, which is now widely articulated in this country.
Both Madala J and Mokgoro J believe that Ubuntu could serve as a basis from which an interpretation of the Bill of Rights could proceed.
4 Case laws that played a role in the expansion of Ubuntu
The judge in Makwanyane accentuated the key values of group solidarity, conformity to basic norms, respect for human dignity, and collective unity, which are enclosed by the impression of ubuntu. She also regards Ubuntu as a partaken value that could be put into use to advance a new legal culture that integrates a normative approach to constitutional interpretation. According to Mokgoro J ubuntu has been viewed as a basis for a morality of cooperation, compassion, communalism, and care for the collective’s interests.
It also emphasizes the dignity of personhood and its virtues in social relationships.
She went on to say that the spirit of ubuntu strengthened the right to life and human dignity. The emphasis on human dignity in this decision underscores that respect for human dignity is always inherent in ubuntu. Mohamed J interpreted the post-amble’s reference to a “need for ubuntu” as expressing an instinctive love for others, the joy of recognizing their humanity, the reciprocity of interaction within the community, the richness of creative emotions, and the moral energies released in both givers and society.
As evidenced by the remarks of Mohamed J and Mokgoro J, Ubuntu is inextricably linked to fundamental societal principles.
Ubuntu can also be seen in the case law of Port Elizabeth Municipality v Various Occupiers; It addresses the application and interpretation of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (“PIE”). The justice in this case ruled that:
The Constitution and the PIE make it clear that we are not isolated. The spirit of ubuntu, which is part of the vast cultural heritage of most of the population, pervades the entire constitutional order. It blends individual rights and a communitarian mindset. It is a unifying feature of the Bill of Rights, which is nothing more than an organized, institutionalized, and practical assertion of the importance of human interdependence, respect, and care in our changing contemporary society.
The fact that Justice Sachs states that ubuntu “combines individual rights with a communitarian philosophy” suggests that ubuntu would include more than just balancing the interests of the parties, but would also be influenced by broader community interests. While good faith has historically referred to justice, reasonableness, and fairness between the parties, ubuntu, as a fundamental constitutional value, requires the promotion of fairness in contracts that takes into account the ideas of restorative justice and the transition to a more egalitarian society, which would include a consideration of the parties’ political, social, and economic statuses.
5 Conclusion
This article has explored the concept of Ubuntu as a valuable assistant in the legal field, highlighting its significant role in South Africa’s advancement in legal and constitutional matters. Defining Ubuntu was a crucial first step to facilitate a better understanding of its origins throughout the rest of the essay. To determine the relevance of Ubuntu in South Africa, it was necessary to examine its relationship with the 1996 Constitution, as well as some case law that played a role in enhancing the importance of Ubuntu.
Bibliography
Literature
English ‘Ubuntu: The quest for an indigenous jurisprudence’ (1996) SAJHR 641
Kamga ‘Cultural values as a source of law: Emerging trends of Ubuntu jurisprudence in South Africa’ (2018) African Human Rights Law Journal 625-649
Du Plessis ‘Evaluative reflections on the final text of South Africa’s bill of rights’1996 Stell LR 283 at 285
Netshitomboni’s ‘Ubuntu: Fundamental Constitutional value and Interpretive Aid’ (1998)
Gelfand, The Genuine Shona: Survival Values of an African Culture Mambo (1973) at 57-69.
Himonga et al ‘Reflections on Judicial Views of Ubuntu’ (2013) PER 67
Botha, ‘The values and principles underlying the 1993 Constitution’ (1994) SAPR/PL 233 at 237
Mureinik ‘A bridge to where? Introducing the interim bill of rights (1994) SAJHR 31 at 32
Mokgoro 1998 PELJ 3
Cachalia et al., Fundamental Rights in the New Constitution, Juta (1994)
Case law
S v Makwanyane 1995 3 SA 391 (CC)
Port Elizabeth Municipality v Various Occupiers 2005 1 SA 217 (CC)
Dikoko v Mokhatla 2006 6 SA 235 (CC)
Legislation
Constitution of the Republic of South Africa, 1996
Constitution of the Republic of South Africa Act 200 of 1993
