Ubuntu and the law in South Africa
ABSTRACT 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.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.The concept ubuntu, like many African concepts, is not easily definable. 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 social conduct. It has also been described as a philosophy of life.Much as South Africa is a multicultural society, indigenous law has not featured in the mainstream of South African jurisprudence. Without a doubt, some aspects or values of ubuntu are universally inherent to South Africa’s multi cultures.The values of ubuntu are therefore an integral part of that value system which had been established by the Interim Constitution.The founding values of the democracy established by this new Constitution arguably coincide with some key values of ubuntu(ism).Ubuntu(-ism), which is central to age-old African custom and tradition however, abounds with values and ideas which have the potential of shaping not only current indigenous law institutions, but South African jurisprudence as a whole.Ubuntu can therefore become central to a new South African jurisprudence and to the revival of sustainable African values as part of the broader process of the African renaissance.
- SourceAvailable from: Lukoye Atwoli[Show abstract] [Hide abstract]
ABSTRACT: South Africa's unique history, characterised by apartheid, a form of constitutional racial segregation and exploitation, and a long period of political violence and state-sponsored oppression ending only in 1994, suggests a high level of trauma exposure in the general population. The aim of this study was to document the epidemiology of trauma and posttraumatic stress disorder (PTSD) in the South African general population. The South African Stress and Health Study is a nationally representative survey of South African adults using the WHO's Composite International Diagnostic Interview (CIDI) to assess exposure to trauma and presence of DSM-IV mental disorders. The most common traumatic events were the unexpected death of a loved one and witnessing trauma occurring to others. Lifetime and 12-month prevalence rates of PTSD were 2.3% and 0.7% respectively, while the conditional prevalence of PTSD after trauma exposure was 3.5%. PTSD conditional risk after trauma exposure and probability of chronicity after PTSD onset were both highest for witnessing trauma. Socio-demographic factors such as sex, age and education were largely unrelated to PTSD risk. The occurrence of trauma and PTSD in South Africa is not distributed according to the socio-demographic factors or trauma types observed in other countries. The dominant role of witnessing in contributing to PTSD may reflect the public settings of trauma exposure in South Africa and highlight the importance of political and social context in shaping the epidemiology of PTSD.BMC Psychiatry 07/2013; 13(1):182. · 2.23 Impact Factor
Article: In Defence of Ubuntu[Show abstract] [Hide abstract]
ABSTRACT: The article defends ubuntu against the assault by Enslin and Horsthemke (Comp Educ 40(4):545–558, 2004). It challenges claims that the Africanist/Afrocentrist project, in which the philosophy of ubuntu is central, faces numerous problems, involves substantial political, moral, epistemological and educational errors, and should therefore not be the basis for education for democratic citizenship in the South African context. The article finds coincidence between some of the values implicit in ubuntu and some of the values that are enshrined in the constitution of South Africa and that on that basis argues that ubuntu has the potential to serve as a moral theory and a public policy. The educational upshot of this article’s argument is that South Africa’s educational policy framework not only places a high premium on ubuntu, which it conceives as human dignity, but it also requires the schooling system to promote ubuntu-oriented attributes and dispositions among the learners. The article finds similarities between ubuntu and bildung, whose key advocates, among others was German scholar and intellectual Wilhelm von Humboldt. It argues that it would be ethnocentric, and indeed silly to suggest that the ubuntu ethic of caring and sharing is uniquely African when some of the values which it seeks to promote can also be traced in various Eurasian philosophies.Studies in Philosophy and Education 31(1). · 0.39 Impact Factor
- Human Rights Review 01/2012;
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.