Ubuntu and South African law : its juridical transformative impact

• Date: 01 October 2018
• DOI: 10.10520/EJC-116da42f9f
• Record Number: sapr1_v33_n1_a1
• Pages: 1-20
• Published date: 01 October 2018
• Author: Sipho Nkosi

Article

Southern African Public Law

https://doi.org/10.25159/2522-68 00/2954

https://upjournals.co.za/index.php/SAPL

ISSN 2522-6800 (Online)

Volume 33 | Number 1 | 2018 | #2954 | 20 pages

© Unisa Press 2018

Ubuntu and South African Law: Its Juridical

Transformative Impact

Sipho Nkosi

Lecturer, University of Johannesburg

Advocate of the High Court of South Africa

Email: snkosi@uj.ac.za

Abstract

The paper examines the concept of ubuntu. It begins with a brief examination

of the etymological origin, ontology and meaning of the concept. The writer

then illustrates these by considering some South African maxims, cultural

practices and traditions through which ubuntu finds expression and is

concretised. He also examines how the South African courts, particularly the

Constitutional Court, have begun to move away from the purely philosophical

or theoretical exposition of the concept towards its juridical and transformative

value—and implications—for the country’s constitutional jurisprudence. To

demonstrate this shift, the writer reviews several ground-breaking instances in

which the courts found occasion to infuse the country’s legal remedies with not

only the relational ethos of ubuntu but also with its innate qualities of fairness,

sympathy, justice, equity and empathy. The writer expresses the hope that the

courts will, in the future, rely on ubuntu to resuscitate old remedies whose

essence was in many ways consonant with ubuntu but were rendered obsolete

for policy or ideological reasons under colonialism and apartheid. He is also

optimistic that the courts will create a new set of remedies that will serve South

Africa’s noble constitutional project well.

Keywords: Ubuntu; constitution; courts; justice; equity and fairness

2

Introduction

Any discussion of ubuntu is bound to be multidisciplinary and multifaceted. This is

because, as a concept, ubuntu encapsulates cultural, linguistic, etymological,

philosophical and juridical facets.1 The development of its juridical facet is still in its

nascent stage in South Africa, and it is hoped that academics, lawyers and judges will

help to give it content and meaning in the course of time. There is still a great deal of

misunderstanding of and misconception about ubuntu. This is due to a combination of

factors, such as cultural chauvinism,2 ignorance, the difficulties associated with

translation and a belief that ‘it is impossible to trace the exact denotation of the word in

its vernacular origins’.3 It is hoped that this article will serve as a reminder that one

cannot simply dismiss the existence of a concept or practice merely because one’s

sources do not point to it—one has to make a genuine effort to understand the etymology

or ontology of that concept. For instance, ubuntu belongs to the seventh declension of

isiZulu nouns.4 It shares the same root as ‘umuntu’,5 and it means a ‘human being’,

‘person’, an ‘individual’ or a ‘being’.6 As a gerund (verbal noun) the word also connotes

a person’s state of being (humaneness). In this context, as will be indicated below, it

also means a person’s readiness and willingness to do something in order to advance

goodness wherever they may be.7 It is a concept which denotes humanity in its totality,

with all its vices and virtues.8 It points to human beings who, though flawed in many

respects, are endowed with compassion, concern, consideration, empathy, fairness,

justice, mercy and social solidarity.9 It is for this reason that many South African legal

practitioners are beginning to rely on ubuntu.10 It is the aim of this article, therefore, to

1 As Devenish puts it: ‘The moral basis of constitutionalism and human rights has its genesis in the

ethical content of the teachings of the great religious traditions and philosophies of civilizations, both

occidental and oriental, as well as indigenous values like ubuntu’—George Devenish, A Commentary

on the South African Bill of Rights (LexisNexis 1999) 623.

2 See Thomas W Bennett, ‘Ubuntu: African Equity’ (2011) PER 30/351 and the authorities cited therein.

3 See Bennett (n 2) 31/351. However, see Devenish (n 1) 621, where the author says that values such as

ubuntu ‘should find appropriate expression in constitutional-law judgments so that our jurisprudence

can have an autochthonous [not foreign] charact er’.

4 GR Dent and CLS Nyembezi, Scholar’s Zulu Dictionary (Shooter & Shooter 1969) iii.

5 This word, in turn, falls under the first declension of isiZulu nouns.

6 The root is ‘ntu’ and the plural ‘abantu’.

7 See Bennett (n 2) 31/351.

8 Hence the scourges of slavery, xenophobi a, tribalism and ethnocentrism.

9 John Mbiti, African Religions and Philosophy (Heinemann 1990) 208–209; see also Jeffrie Murphy,

‘Mercy and Legal Justice’ in Jules Coleman and Ellen Paul (eds), Philosophy and Law (Blackwell

1987) 2.

10 For instance, on 8 August 2014, Advocate Barry Roux SC invoked ubuntu in defence of his client,

Oscar Pistorius, the South African Paralympic athlet ics champion who was facing a charge of murder.

He argued, persuasively, that the courts should reconsider the way in which they view the concept of

a ‘reasonable man’; and that it should no longer be denotive only of ‘a white man of the 1960s, in the

grey suit (and) wearing grey shoes.’