Abstract
This article is a critical engagement with the most recent contribution to the debate on the nature and content of ubuntu. The contribution (by Radebe and Phooko) attempts to provide the concept of ubuntu with substantive content in order for the concept to provide legal solutions for legal problems. This article shows how this attempt largely fails for three reasons. In the first place because some of the suggested rules are social/moral rules that cannot be enforced by law. In the second place because other rules are already contained in common law, legislation or case law. In the third place the remaining rules are arguably either unconstitutional or inappropriate in an open and democratic society. The conclusion is that the suggested rules are not appropriate in an open society.
Highlights
The concept of ubuntu was introduced into South African jurisprudence in the post-amble to the Interim Constitution,1 but was not included in the final Constitution
In the second place it seeks to develop the concept that some have characterised as bloated and yet strangely empty.13. More importantly, it seeks to develop ubuntu as a legal concept to enable legal solutions
The strange retort that Radebe and Phooko repeat is that "Keevy's criticism that ubuntu is not in line with the Constitution and the Bill of Rights is without merit as it flies in the face of decisions of the Constitutional Court"
Summary
The concept of ubuntu was introduced into South African jurisprudence in the post-amble to the Interim Constitution, but was not included in the final Constitution. Its inclusion is a moot point, but it is curious that it wasn't included. The concept of ubuntu was extensively discussed in the death penalty case, where five of the judges gave lengthy expositions on the nature and reach of the concept. Despite not being included in the Constitution, the concept was thereafter widely used in case law as if it were.. In almost all cases judges repeated phrases without developing the concept further. The reason for this lack of development was discussed elsewhere, but basically has to do with the formalism inherent in South African jurisprudence. 10 See, for example, IoDSA 2009 https://cdn.ymaws.com/www.iodsa.co.za/ resource/resmgr/king_iii/King_Report_on_Governance_fo.pdf para 38.5. This paper will not repeat the earlier debate, but will instead critically discuss a paper that is, to my knowledge, the latest attempt at the justification for or development of ubuntu. More importantly, it seeks to develop ubuntu as a legal concept to enable legal solutions.. More importantly, it seeks to develop ubuntu as a legal concept to enable legal solutions.14 All these aspects will be dealt with. The goal is to determine (a) if the concept can be used for the purpose Radebe and Phooko want to use it (i.e. as a constitutional principle that provides legal solutions) and (b) if the arguments are logically consistent
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