DE-LINKING UBUNTU: TOWARDS A UNIQUE SOUTH AFRICAN JURISPRUDENCE

Abstract

The adoption in 1993 of the interim Constitution of the Republic of South Africa Act (200 of 1993) as the supreme law of the Republic marked a watershed moment in the history of South Africa. It was a moment of transition for which the interim Constitution was to serve as a bridge. In the words of the post-amble: “This Constitution provides a historic bridge between the past of a deeply divided society characterized by strife, conflict, untold suffering and injustice, and a future founded on the recognition of human rights democracy and peaceful co-existence and development opportunities for all South Africans, irrespective of colour, race, class, belief or sex.” (Under the section titled: “National Unity and Reconciliation”.) Given the volatile political context within which South Africa’s transition was negotiated, the drafters of the Constitution saw fit to append a postamble in which they called for the “need for understanding but not for vengeance, a need for reparation but not for retaliation, a need for ubuntu but not for victimisation” (under the section titled: “National Unity and Reconciliation”). For a country where the traditional legal discourse has been the domain of Western liberal values, the inclusion of an African value of ubuntu in the Constitution was in itself “a historic bridge”. In the words ofEtienne Mureinik, if this bridge is to “span the open sewer of violent and contentious transition” those who are entrusted with its upkeep need to know where the bridge is from and where it is leading to. For Mureinik, the interim Constitution is a bridge away from a culture of authority to a culture of justification where every exercise of power must be justified.