Ubuntu and the law in South Africa

Potchefstroom Electronic Law Journal 01/1998; 1.
Source: DOAJ


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.

    • "Ubuntu, which translates to " I am because we are " (Booysen, 2001: 38) or " I am who I am through others " (Zoogah, Peng, & Woldu, 2015: 15), is a long-standing African cultural value that is 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 … a person can only be a person through others " (Mokgoro, 1998: 2). In short, ubuntu elucidates the connection, care, solidarity, and respect that directs South Africans' way of life such that group concerns are afforded greater importance than individual concerns, thus favoring decisions that are beneficial for the collective good (Booysen, 2001; Khoza, 1994; Mbigi, 1997). "
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    • "Tshoose, (2009) refer to these notions as 'parallels'. They embody compassion that is premised on a much more humane world (Sachs, 2012;Bennet, 2011;Tutu, 1999, Kamwangamalu, 1999, Mokgoro, 1998) to inculcate interdependence in human philosophy. Nonetheless, there remains a justification for the need to demystify the potential misconceptions that may result from misinterpretations of these notions. "
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    • "One reason for holding this suspicion is that the cultures found in this region characteristically place a higher premium on the value of community than Metz would allow. More specifically they take being in certain kinds of relationships as constitutive of the ultimate moral good and the basis of human dignity, insisting that merely having that capacity is not sufficient (Gbadegesin 1991, p. 65; Mokgoro 1998, p. 3; Gyekye 2004, p. 16; Iroegbu 2005, p. 442). Consider the statement by the renowned Archbishop Desmond Tutu, whom Metz cites approvingly. "
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