UBUNTU AND THE LAW IN SOUTH AFRICA*
The new constitutional dispensation, like the idea of freedom in South Africa, is also not free
of scepticism. Many a time when crime and criminal activity are rife, sceptics would lament
the absence of ubuntu in society and attribute this absence to what they view as the
permissiveness which is said to have been brought about by the Constitution with its
entrenched Bill of Rights.
In my view, there is a patriotic obligation on all of us not to allow our Constitution and the
idea of respect for human rights and dignity to slide into such disrepute.
Firstly, I would like to take this opportunity and (attempt to) demonstrate the irony that the
absence of the values of ubuntu in society that people often lament about and attribute to the
existence of the Constitution with its demands for respect for human rights when crime
becomes rife, are the very same values that the Constitution in general and the Bill of Rights
in particular aim to inculcate in our society.
Secondly, against the background of the call for an African renaissance that has now become
topical globally, I would like to demonstrate the potential that traditional African values of
ubuntu have for influencing the development of a new South African law and jurisprudence. I
would like you to view this presentation as a contribution to the early debates on the revival
of African jurisprudence as part of the total or broader process of the African renaissance.
The concept of ubuntu and the social values it represents
* Paper delivered at the first Colloquium Constitution and Law held at Potchefstroom on 31 October
1997. This paper was first published by the Konrad-Adenauer-Stiftung in their Seminar Report of the
Colloquium (Johannesburg 1998).
The concept ubuntu, like many African concepts, is not easily definable. To define
an African notion in a foreign language and from an abstract as opposed to a concrete
approach to defy the very essence of the African world-view and can also be particularly
elusive. I will therefore not in the least attempt to define the concept with precision. That
would in any case be unattainable. In one’s own experience, ubuntu it seems, is one of those
things that you recognise when you see it. I will therefore only put forward some views
which relate to the concept itself and like many who wrote on the subject, I can never claim
the last word.
In an attempt to define it, the concept has generally been described as a world-view of
African societies and a determining factor in the formation of perceptions which influence
It has also been described as a philosophy of life, which in its most fundamental sense
represents personhood, humanity, humaneness and morality; a metaphor that describes group
solidarity where such group solidarity is central to the survival of communities with a
scarcity of resources, where the fundamental belief is that motho ke motho ba batho ba
bangwe/umuntu ngumuntu ngabantu which, literally translated, means a person can only be a
person through others.2 In other words the individual’s whole existence is relative to that of
the group: this is manifested in anti-individualistic conduct towards the survival of the group
if the individual is to survive. It is a basically humanistic orientation towards fellow beings.
Kunene,3 however, warns against a superficial perception of the concept:
For indeed, it is not enough to refer to the meaning and profound concept of
ubuntuism merely as a social ideology. Ubuntu is the very quality that
guarantees not only a separation between men, women and the beast, but the
very fluctuating gradations that determine the relative quality of that essence.
It is for that reason that we prefer to call it the potential of being human.
1 Broodryk J Ubuntu in South Africa (LLD thesis UNISA 1997).
2 Mbigi L and Maree J Ubuntu: The Spirit of African Transformation Management (Sigma Press
Johannesburg 1995) 1-7.
3 Kunene M "The Essence of being Human: An African Perspective? in Inaugural Lecture 16 August
Such potential, he states can fluctuate from the lowest to the highest level during one’s life-
time, where there is constant harmony between the physicality and spirituality of life. That
harmony is achieved through close and sympathetic social relations within the group - thus
the notion umuntu ngumuntu ngabantu/motho ke motho ka batho ba bangwe, which also
implies that during one’s life-time, one is constantly challenged by others, practically, to
achieve self-fulfilment through a set of collective social ideals. Because the African world-
view cannot be neatly categorised and defined, any definition would only be a simplification
of a more expansive, flexible and philosophically accommodative idea.
The meaning of the concept however, becomes much clearer when its social value is
highlighted. Group solidarity, conformity, compassion, respect, human dignity, humanistic
orientation and collective unity have, among others been defined as key social values of
ubuntu. Because of the expansive nature of the concept, its social value will always depend
on the approach and the purpose for which it is depended on. Thus its value has also been
viewed as a basis for a morality of co-operation, compassion, communalism and concern for
the interests of the collective respect for the dignity of personhood, all the time emphasising
the virtues of that dignity in social relationships and practices. For purposes of an ordered
society, ubuntu was a prized value, an ideal to which age-old traditional African societies
found no particular difficulty in striving for. This is so because these societies had their own
traditional institutions which functioned on well-suited principles and practices. Of course in
view of the influence and effect that various social forces had on African societies
throughout their historical development, today, the well-suitedness of those original
principles and practices is often questioned and in my view correctly so. Indeed, as Ali
... Africa can never go back completely to its pre-colonial starting point but
there may be a case for re-establishing contacts with familiar landmarks of
modernisation under indigenous impetus.4
1996 Durban 10.
4 Mbigi and Maree Ubuntu 5.
But then, how often have we not heard that the imposition and assimilation of even those
positive contributions of western notions, institutions and culture in African societies has not
been very successful? Is the explanation for that shallowness based, as Ali Mazrui further
that culture gap between the new structures and the ancient values, between
alien institutions and ancestral traditions?5
If there can be no reversion to the pre-colonial starting point, how then do we fill that
cultural gap, where required, if we have to meet the constitutional challenges of the law that
face us as South African lawyers today?
Ubuntu and South African law
Much as South Africa is a multicultural society, indigenous law has not featured in the
mainstream of South African jurisprudence. Although an opportunity presented itself with
the reforms effected by the Special Courts for Blacks Abolition Act 34 of 1986 and the Law of
Evidence Amendment Act 4 of 1988 which among others, empowered mainstream courts to
take judicial cognisance of indigenous law, not much has come of that either. Without a
doubt, some aspects or values of ubuntu are universally inherent to South Africa’s multi
cultures. It would be anomalous if dignity, humaneness, conformity, respect, etc. foreign to
any of South Africa’s cultural systems. It is however, in respect of methods, approaches,
emphasis, attitude etc. of those and other uncommon aspects and values of ubuntu that the
concept is unique to African culture. It is thus in respect of those unique aspects that there
has now arisen a need to harness them carefully, consciously, creatively, strategically and
with ingenuity so that age-old African social innovations and historical cultural experiences
are aligned with present day legal notions and techniques if the intention is to create a
legitimate system of law for all South Africans.
Such inclusivity is important for enhancing the legitimacy of a jurisprudence which is
required to manage the challenges that constitutionalism poses for us. There is therefore
much room for law reform by careful prioritisation of current socio-legal problems and
through appropriate research methods, find pragmatic and integrated solutions, as part of a
new law management strategy.
The Interim Constitution6 clearly set the tone for socio-political transformation in South
Ubuntu and the Constitution
Africa. That constitution itself created,
... a historic bridge between the past of a deeply divided society, characterised
by strife, conflict, untold suffering and injustice, and a future founded on the
recognition of peaceful co-existence ... for all South Africans.7
In order to realise that peaceful co-existence, the Interim Constitution recognised that despite
the injustices of the past, there is need for understanding, not vengeance. A need for
reparation, not retaliation. In addition that constitution recognised the need for ubuntu and
Thus in its preamble the Interim Constitution declared:
Whereas there is a need to create a new order in which all South Africans will
be entitled to a common South African Citizenship ... where there is equality
between men and women and people of all races so that all citizens shall be
able to enjoy and exercise their fundamental rights and freedoms,
... it is necessary for such purposes that provision should be made for the
promotion of national unity and the restructuring and continued governance of
5 Mbigi and Maree Ubuntu 5.
6 The Constitution of South Africa Act 200 of 1993.
7 Provision on National Unity and Reconciliation termed the postscript of the Constitution of South
Africa Act 200 of 1993.