Ubuntu and South African Law: Its Juridical Transformative Impact

Abstract

The paper examines the concept of ubuntu. It begins with a brief examination of the etymological origin, ontology and meaning of the concept. The writer then illustrates these by considering some South African maxims, cultural practices and traditions through which ubuntu finds expression and is concretised. He also examines how the South African courts, particularly the Constitutional Court, have begun to move away from the purely philosophical or theoretical exposition of the concept towards its juridical and transformative value—and implications—for the country’s constitutional jurisprudence. To demonstrate this shift, the writer reviews several ground-breaking instances in which the courts found occasion to infuse the country’s legal remedies with not only the relational ethos of ubuntu but also with its innate qualities of fairness, sympathy, justice, equity and empathy. The writer expresses the hope that the courts will, in the future, rely on ubuntu to resuscitate old remedies whose essence was in many ways consonant with ubuntu but were rendered obsolete for policy or ideological reasons under colonialism and apartheid. He is also optimistic that the courts will create a new set of remedies that will serve South Africa’s noble constitutional project well.