REFLECTIONS ON JUDICIAL VIEWS OF UBUNTU
C Himonga*, M Taylor** and A Pope***
SUMMARY
Since S v Makwanyane, ubuntu has become an integral part of the constitutional
values and principles that inform interpretation of the Bill of Rights and other areas of
law. In particular, a restorative justice theme has become evident in the
jurisprudence that encompasses customary law, eviction, defamation, and criminal
law matters. This contribution explores the scope and content of ubuntu, as
pronounced on by the judiciary in various cases, and demonstrates that its
fundamental elements of respect, communalism, conciliation and inclusiveness
enhance the constitutional interpretation landscape. Two major epochs are
highlighted in the development of ubuntu, marked by the constitutional decisions
in Makwanyane and PE Municipality respectively. The former carved the central
avenue of development for ubuntu, while the latter marked the start of the thematic
development of the concept in the direction of restorative justice. Furthermore, the
article engages critically with the use of ubuntu, with criticisms levelled against the
conceptualisation of ubuntu as a legal notion, ranging from its ambiguity to its
redundancy, to perceptions of dichotomies, and issues of exclusion. The paper also
questions the manner in which the courts have applied the legal concept
of ubuntu uncritically, without reference to African sources to illustrate its meaning in
different contexts, and without questioning its compatibility with the Bill of Rights.
Finally, it attempts to reveal the connections between ubuntu and the values
underlying the Bill of Rights.
KEYWORDS: Ubuntu; Constitutional value; Restorative justice; Communal
Author: C Himonga, M Taylor and A Pope
, REFLECTIONS ON JUDICIAL VIEWS OF UBUNTU
P●E●R
2013 VOLUME 16 No 5
http://dx.doi.org/10.4314/pelj.v16i5.8
REFLECTIONS ON JUDICIAL VIEWS OF UBUNTU
C Himonga*, M Taylor** and A Pope***
1 Introduction
Defenders of ubuntu as an emerging value in South African law often emphasise its
power as a transformative tool to engender a new distinctively African flavour to
South Africa's maturing - but still relatively young - democratic legal culture. For
Keep and Midgley,[1] it is vital that South Africa's legal culture transforms so as to
express also the values that originated in African societies, because there is a "real
need" in South Africa to legitimate the legal system. On this view, South Africa's
legal system and culture are legitimate only if they reflect the demographic and
cultural diversity of the country. Keep and Midgley believe that an ideal South African
legal culture is one that is cohesive and plural.[2] Ubuntu is a distinctively African
value and, according to Keep and Midgley, it inherently embodies deep notions of
inclusivity, making it an "ideal overarching vehicle for expressing shared values" and
rendering it very well suited to spearheading the development of a genuinely plural
legal culture.[3]
,South Africa's interim Constitution included an historic post-amble entitled "National
Unity and Reconciliation", which declared:[4]
The adoption of this Constitution lays the secure foundation for the people of
South Africa to transcend the divisions and strife of the past, which
generated gross violations of human rights, the transgression of
humanitarian principles in violent conflicts and a legacy of hatred, fear, guilt
and revenge.
These can now be addressed on the basis that there is a need for
understanding but not for vengeance, a need for reparation but not for
retaliation, a need for ubuntu but not for victimisation.
This provision was historic at least partly because, for the first time in South Africa's
modern history, a traditional African concept - ubuntu - was incorporated in the
state's official law. South Africa's 1996 Constitution made no express mention
of ubuntu but did recognise customary law "subject to the Constitution",[5] requiring
courts to apply customary law "when that law is applicable, subject to the
Constitution and any legislation that specifically deals with customary law".[6]
While it is obvious that ubuntu and customary law are not synonymous, it ought to be
equally obvious that, as a fundamental value that informs the regulation of African
interpersonal relations and dispute resolution, ubuntu is inherent to customary law.
The recognition of customary law and ubuntu is closely connected with
the Constitution's "transformative" nature. It is often said that a distinctive feature of
South Africa's Constitution is that it is inherently forward-looking; ie it aims to
empower the state to transform South African society over time. Langa DP (as he
then was), in Investigating Directorate: Serious Economic Offences v Hyundai Motor
Distributors,[7] stated that a "spirit of transition and transformation characterises the
constitutional enterprise as a whole".
, Judges are therefore duty-bound to interpret the Constitution in a way that facilitates
this transformation. Academic literature refers to this important aspect of South
Africa's post-apartheid legal culture as "transformative constitutionalism". The origin
of this phrase is sometimes attributed to Karl Klare.[8] He described this future-
orientated phenomenon as:[9]
a long-term project of constitutional enactment, interpretation, and
enforcement committed...to transforming a country's political and social
institutions and power relationships in a democratic, participatory and
egalitarian direction.
The recognition of customary law is a vital aspect of transformative constitutionalism.
In Mayelane v Ngwenyama[10] the Constitutional Court recently considered what
recognising customary law "as one of the primary sources of law under the
Constitution" entails. It held that this involves acknowledging inter alia that: [11]
… the inherent flexibility of customary law provides room for consensus-
seeking and the prevention and resolution, in family and clan meetings, of
disputes and disagreements; and … [that] these aspects provide a setting
which contributes to the unity of family structures and the fostering of co-
operation, a sense of responsibility and belonging in its members, as well as
the nurturing of healthy communitarian traditions like ubuntu.
As will be seen, the judicial application of ubuntu and the implementation of
restorative justice measures frequently go hand-in-hand. The interim Constitution's
contrasting of ubuntu with "victimisation" would therefore prove to have been apt.
Keep and Midgley emphasise that the pluralist legal culture they envision is
achievable partly because of considerable overlap between the values embodied by
C Himonga*, M Taylor** and A Pope***
SUMMARY
Since S v Makwanyane, ubuntu has become an integral part of the constitutional
values and principles that inform interpretation of the Bill of Rights and other areas of
law. In particular, a restorative justice theme has become evident in the
jurisprudence that encompasses customary law, eviction, defamation, and criminal
law matters. This contribution explores the scope and content of ubuntu, as
pronounced on by the judiciary in various cases, and demonstrates that its
fundamental elements of respect, communalism, conciliation and inclusiveness
enhance the constitutional interpretation landscape. Two major epochs are
highlighted in the development of ubuntu, marked by the constitutional decisions
in Makwanyane and PE Municipality respectively. The former carved the central
avenue of development for ubuntu, while the latter marked the start of the thematic
development of the concept in the direction of restorative justice. Furthermore, the
article engages critically with the use of ubuntu, with criticisms levelled against the
conceptualisation of ubuntu as a legal notion, ranging from its ambiguity to its
redundancy, to perceptions of dichotomies, and issues of exclusion. The paper also
questions the manner in which the courts have applied the legal concept
of ubuntu uncritically, without reference to African sources to illustrate its meaning in
different contexts, and without questioning its compatibility with the Bill of Rights.
Finally, it attempts to reveal the connections between ubuntu and the values
underlying the Bill of Rights.
KEYWORDS: Ubuntu; Constitutional value; Restorative justice; Communal
Author: C Himonga, M Taylor and A Pope
, REFLECTIONS ON JUDICIAL VIEWS OF UBUNTU
P●E●R
2013 VOLUME 16 No 5
http://dx.doi.org/10.4314/pelj.v16i5.8
REFLECTIONS ON JUDICIAL VIEWS OF UBUNTU
C Himonga*, M Taylor** and A Pope***
1 Introduction
Defenders of ubuntu as an emerging value in South African law often emphasise its
power as a transformative tool to engender a new distinctively African flavour to
South Africa's maturing - but still relatively young - democratic legal culture. For
Keep and Midgley,[1] it is vital that South Africa's legal culture transforms so as to
express also the values that originated in African societies, because there is a "real
need" in South Africa to legitimate the legal system. On this view, South Africa's
legal system and culture are legitimate only if they reflect the demographic and
cultural diversity of the country. Keep and Midgley believe that an ideal South African
legal culture is one that is cohesive and plural.[2] Ubuntu is a distinctively African
value and, according to Keep and Midgley, it inherently embodies deep notions of
inclusivity, making it an "ideal overarching vehicle for expressing shared values" and
rendering it very well suited to spearheading the development of a genuinely plural
legal culture.[3]
,South Africa's interim Constitution included an historic post-amble entitled "National
Unity and Reconciliation", which declared:[4]
The adoption of this Constitution lays the secure foundation for the people of
South Africa to transcend the divisions and strife of the past, which
generated gross violations of human rights, the transgression of
humanitarian principles in violent conflicts and a legacy of hatred, fear, guilt
and revenge.
These can now be addressed on the basis that there is a need for
understanding but not for vengeance, a need for reparation but not for
retaliation, a need for ubuntu but not for victimisation.
This provision was historic at least partly because, for the first time in South Africa's
modern history, a traditional African concept - ubuntu - was incorporated in the
state's official law. South Africa's 1996 Constitution made no express mention
of ubuntu but did recognise customary law "subject to the Constitution",[5] requiring
courts to apply customary law "when that law is applicable, subject to the
Constitution and any legislation that specifically deals with customary law".[6]
While it is obvious that ubuntu and customary law are not synonymous, it ought to be
equally obvious that, as a fundamental value that informs the regulation of African
interpersonal relations and dispute resolution, ubuntu is inherent to customary law.
The recognition of customary law and ubuntu is closely connected with
the Constitution's "transformative" nature. It is often said that a distinctive feature of
South Africa's Constitution is that it is inherently forward-looking; ie it aims to
empower the state to transform South African society over time. Langa DP (as he
then was), in Investigating Directorate: Serious Economic Offences v Hyundai Motor
Distributors,[7] stated that a "spirit of transition and transformation characterises the
constitutional enterprise as a whole".
, Judges are therefore duty-bound to interpret the Constitution in a way that facilitates
this transformation. Academic literature refers to this important aspect of South
Africa's post-apartheid legal culture as "transformative constitutionalism". The origin
of this phrase is sometimes attributed to Karl Klare.[8] He described this future-
orientated phenomenon as:[9]
a long-term project of constitutional enactment, interpretation, and
enforcement committed...to transforming a country's political and social
institutions and power relationships in a democratic, participatory and
egalitarian direction.
The recognition of customary law is a vital aspect of transformative constitutionalism.
In Mayelane v Ngwenyama[10] the Constitutional Court recently considered what
recognising customary law "as one of the primary sources of law under the
Constitution" entails. It held that this involves acknowledging inter alia that: [11]
… the inherent flexibility of customary law provides room for consensus-
seeking and the prevention and resolution, in family and clan meetings, of
disputes and disagreements; and … [that] these aspects provide a setting
which contributes to the unity of family structures and the fostering of co-
operation, a sense of responsibility and belonging in its members, as well as
the nurturing of healthy communitarian traditions like ubuntu.
As will be seen, the judicial application of ubuntu and the implementation of
restorative justice measures frequently go hand-in-hand. The interim Constitution's
contrasting of ubuntu with "victimisation" would therefore prove to have been apt.
Keep and Midgley emphasise that the pluralist legal culture they envision is
achievable partly because of considerable overlap between the values embodied by
