Authored By: Teboho Mmako
University of South Africa
Introduction
Ubuntu, an African philosophy centered on humaneness, compassion, and interconnectedness, has become one of the most profound moral foundations of South Africa’s post-apartheid legal order. Rooted in the expression “umuntu ngumuntu ngabantu” a person is a person through other people Ubuntu recognises that one’s identity and dignity are shaped within community. After decades of racial division and legalised inequality, the adoption of the Constitution of the Republic of South Africa, 1996 sought not only to guarantee rights but to redefine the meaning of justice.
The Constitutional Court has consistently drawn upon Ubuntu to interpret the Constitution in a way that promotes reconciliation, dignity, and restorative justice. Yet, as South Africa continues to evolve, Ubuntu’s role in a rights-based democracy raises complex questions: can a philosophy grounded in communal obligation coexist with the liberal structure of individual rights? This article explores how Ubuntu has shaped constitutional interpretation, influenced restorative justice, and continued to guide the transformation of South African law.
Ubuntu in Constitutional Interpretation
The Constitutional Court first articulated Ubuntu’s constitutional significance in S v Makwanyane and Another 1995 (3) SA 391 (CC), the landmark decision that abolished the death penalty. Justice Langa described Ubuntu as embodying “humaneness, social justice and fairness,” while Justice Mokgoro viewed it as an indigenous expression of dignity and respect for life.1 The Court reasoned that punishment rooted in vengeance could not coexist with a constitutional order founded on dignity and compassion. Ubuntu therefore provided a moral and philosophical lens through which the Court gave life to the values enshrined in section 10 (dignity) and section 11 (life).
Ubuntu re-emerged as a guiding value in Port Elizabeth Municipality v Various Occupiers 2005 (1) SA 217 (CC), where Sachs J emphasised that the eviction of unlawful occupiers must be handled with empathy and understanding.2 He held that the Constitution does not only protect property rights but requires “grace and compassion in the enforcement of laws.” Ubuntu thus became a constitutional compass directing courts to interpret rights in a manner that reconciles legality with humanity.
Scholars such as Yvonne Mokgoro and Thandabantu Nhlapo argue that Ubuntu enriches constitutional interpretation by integrating African moral consciousness into legal reasoning.3 Rather than being an abstract ideal, Ubuntu bridges the gap between the Constitution’s transformative vision and the lived realities of South Africans. It ensures that law reflects both justice and mercy, individual freedom and collective responsibility.
Ubuntu and Restorative Justice
Ubuntu has also influenced the development of restorative justice in South Africa. After apartheid, the Truth and Reconciliation Commission (TRC) embodied the philosophy of Ubuntu by prioritising truth-telling, forgiveness, and reconciliation over retribution.4 Archbishop Desmond Tutu, who chaired the TRC, often described Ubuntu as the moral essence of the process the idea that healing the nation required acknowledging shared humanity, even among those divided by violence and oppression.
In criminal justice, courts have invoked Ubuntu to justify restorative sentences aimed at repairing harm rather than punishing offenders harshly. For example, in State v Maluleke 2008 (1) SACR 49 (T), the Court recognised that reconciliation between victim and offender aligned with the values of Ubuntu and community restoration.5 This approach reflects a broader constitutional trend of interpreting justice as an opportunity for societal rebuilding rather than mere retribution.
The incorporation of Ubuntu into restorative justice also complements the constitutional value of dignity. By focusing on healing relationships, it affirms that every person offender, victim, and community member possesses inherent worth.6 As Bennett explains, Ubuntu’s restorative nature challenges the Western notion of justice as adversarial, promoting instead a system where justice restores social balance and moral order.7
The Tension Between Rights and Community
Despite its virtues, Ubuntu presents interpretative challenges. Some critics argue that it risks undermining individual rights by emphasising communal harmony over personal autonomy.8In a liberal democracy built on the Bill of Rights, this tension cannot be ignored.
The Constitutional Court has had to navigate this delicate balance in cases such as Bhe and Others v Magistrate, Khayelitsha and Others 2005 (1) SA 580 (CC). The Court struck down the male-only rule of inheritance in customary law, holding that while Ubuntu values respect for tradition, equality and dignity must prevail when custom perpetuates discrimination.9 Similarly, in Everfresh Market Virginia (Pty) Ltd v Shoprite Checkers (Pty) Ltd 2012 (1) SA 256 (CC), the Court considered whether Ubuntu could influence the enforcement of contractual obligations. Justice Yacoob noted that good faith and fairness, inspired by Ubuntu, are consistent with the Constitution’s transformative objectives.10
These cases illustrate that Ubuntu functions not as a competing norm but as a harmonising principle. It encourages the interpretation of rights in context ensuring that equality, freedom, and property are exercised with social responsibility. Ubuntu humanises the law by reminding society that rights carry duties and that justice must heal, not divide.
Still, Ubuntu’s open-ended nature invites diverse interpretations. To avoid inconsistency, courts must continue to ground their reasoning in both constitutional text and the lived realities of South African communities. The legitimacy of Ubuntu as a legal value depends on its practical application, one that advances both communal solidarity and individual protection.
Ubuntu and Transformative Constitutionalism
Transformative constitutionalism, as defined by Klare, envisions a continuous process of legal and social change aimed at achieving substantive equality and democratic participation.11 Ubuntu fits seamlessly within this vision. It provides ethical vocabulary for transformation by infusing law with empathy and a sense of shared moral purpose.
The synergy between Ubuntu and transformative constitutionalism is evident in socio-economic rights jurisprudence. In Grootboom v Government of the Republic of South Africa 2001 (1) SA 46 (CC), although Ubuntu was not explicitly cited, the Court’s insistence on state compassion towards the homeless reflected its spirit. Similarly, in Khosa v Minister of Social Development 2004 (6) SA 505 (CC), Mokgoro J referenced Ubuntu indirectly by asserting that social security must reflect the Constitution’s commitment to human solidarity.12
Ubuntu thus acts as a moral thread linking constitutional ideals with practical governance. It challenges institutions to interpret rights not merely as entitlements but as tools for rebuilding social cohesion. As South Africa grapples with inequality, unemployment, and social fragmentation, Ubuntu offers a transformative lens through which justice can remain people centred and context-sensitive.
Conclusion: Ubuntu as the Future of Justice
Ubuntu remains one of South Africa’s most profound contributions to global constitutionalism. It grounds abstract rights in moral experience, transforming justice from punishment into restoration, from isolation into solidarity. As the Constitutional Court continues to navigate complex questions of equality, custom, and identity, Ubuntu serves as a compass ensuring that the law remains deeply human.
Looking forward, embedding Ubuntu more consistently across jurisprudence can strengthen public trust in the justice system and nurture social harmony. It reminds legal practitioners and citizens alike that justice is not merely about rules or remedies but about relationships. A Constitution inspired by Ubuntu is not just a legal document, it is a living promise that dignity, compassion, and humanity will forever define South Africa’s pursuit of justice.
Bibliography
Legislation
Constitution of the Republic of South Africa, 1996.
Cases
Bhe and Others v Magistrate, Khayelitsha and Others 2005 (1) SA 580 (CC). Everfresh Market Virginia (Pty) Ltd v Shoprite Checkers (Pty) Ltd 2012 (1) SA 256 (CC). Khosa v Minister of Social Development and Others 2004 (6) SA 505 (CC). Port Elizabeth Municipality v Various Occupiers 2005 (1) SA 217 (CC).
S v Makwanyane and Another 1995 (3) SA 391 (CC).
State v Maluleke 2008 (1) SACR 49 (T).
Bennett TW, Customary Law in South Africa (Juta 2004).
Himonga C and Nhlapo T (eds), African Customary Law in South Africa: Post-Apartheid and Living Law Perspectives (Oxford University Press 2014).
Klare K, ‘Legal Culture and Transformative Constitutionalism’ (1998) 14 South African Journal on Human Rights 146.
Mokgoro Y, ‘Ubuntu and the Law in South Africa’ (1998) Buffalo Human Rights Law Review 15. Tutu D, No Future Without Forgiveness (Rider 1999).
1 S v Makwanyane and Another 1995 (3) SA 391 (CC).
2 Port Elizabeth Municipality v Various Occupiers 2005 (1) SA 217 (CC).
3 Y Mokgoro, ‘Ubuntu and the Law in South Africa’ (1998) Buffalo Human Rights Law Review 15.
4 D Tutu, No Future Without Forgiveness (Rider 1999).
5 State v Maluleke 2008 (1) SACR 49 (T).
6 Constitution of the Republic of South Africa, 1996 s 10.
7 TW Bennett, Customary Law in South Africa (Juta 2004) 35.
8 C Himonga and T Nhlapo (eds), African Customary Law in South Africa: Post-Apartheid and Living Law Perspectives (OUP 2014) 50.
9 Bhe and Others v Magistrate, Khayelitsha and Others 2005 (1) SA 580 (CC).
10 Everfresh Market Virginia (Pty) Ltd v Shoprite Checkers (Pty) Ltd 2012 (1) SA 256 (CC).
11 K Klare, ‘Legal Culture and Transformative Constitutionalism’ (1998) 14 South African Journal on Human Rights 146.
12 Khosa v Minister of Social Development and Others 2004 (6) SA 505 (CC).
