THE INTEGRATION OF UBUNTU INTO SOUTH AFRICAN LEGAL SYSTEM

By

L.K Tsie

(48251887)

Submitted in partial fulfillment of the requirement of the degree of

BACHELOR OF LAWS

In the

DEPARTMENT OF CRIMINAL AND PROCEDURAL LAW

SCHOOL OF LAW

UNIVERSITY OF SOUTH AFRICA

SUPERVISOR: ADV LC COETZEE

ASSESSMENT 3

2023
ACADEMIC HONESTY DECLARATION

1. I understand what academic dishonesty entails and am aware of Unisa’s policies in

this regard.

2. I declare that this assignment is my own, original work. Where I have used
someone else’s work, I have indicated this by using the prescribed style of
referencing. Every contribution to, and quotation in, this assignment from the work or
works of other people has been referenced according to this style.

3. I have not allowed, and will not allow, anyone to copy my work with the intention of
passing it off as his or her own work.

4. I did not make use of another student’s work and submitted it as my own.

NAME.…………………………………………………..Louis Kabelo Tsie

SIGNATURE: ………………………………………………

STUDENT NUMBER……………………………………..48251887

MODULE CODE…………………………………………. RRLLB81

DATE……………………………………………………….13-09-2023

TOPIC SELECTED: JURISPRUDENCE: THE CONCEPT OF UNUNTU AND ITS

CONTRIBUTION TO THE IMPROVEMENT OF LAW

MARK RECEIVED FOR ASSIGNMENT 01:

MARK RECEIVED FOR ASSIGNMENT 02

2
ABSTRACT

The integration of the Ubuntu concept into the legal system refers to the incorporation
of African philosophy principles, which emphasize interconnectedness, community
and restorative justice, in legal processes. It is proposed that this integration could
promote sustainable development and restorative justice in modern society.

This research provides a unique perspective on how sustainable development can be

integrated into legal frameworks to promote environmental conservation and social
responsibility. Section 39(1) of the constitution places human dignity, equality and
freedom at the core of interpreting the Bill of Rights and other subsequent piece of
legislation.1

The importance of these findings is significant, as it highlights the potential of

integrating Ubuntu principles into modern legal systems. The findings further, suggest
that Ubuntu philosophy can provide an alternative perspective to existing legal
principles that prioritize retribution rather than restoration or reparation.

KEYWORDS

 Restorative justice
 Social justice
 Ethical issues
 Ubuntu
 Bill of Rights

The Constitution of the Republic of South Africa, 1996.

3
LIST OF ABBREVIATIONS AND ACRONYMS

Abbreviation/ acronym Meanings

SAC South African Constitution

BR Bill of Rights

SA South Africa

SALJ South African Law Journal

SAJHR South African Journal on Human Rights

4
Contents
ACADEMIC HONESTY DECLARATION………………………………………………...2
ABTRACT……………………………………………………………………………………3
KEYWORDS…………………………………………………………………………………3
LIST OF ABBREVIATION AND …………………………………………………………..4
1. INTRODUCTION……………………………………………………….…………..…6-7
1.1 Background to the research problem……………………………………………7-8
1.2 Problem statement……………………………………………………………………..8
1.3 Hypothesis ………………………………………………………………………………9
1.4 Research methodology
………………………………………………………………..9
1.5 Assumptions and points of
departure……………………………………………….9
2. UBUNTU IN CONTEXT…………………………………………………………………
10
2.1 The historical context of Ubuntu in modern day
society……………………….10
2.2 The South African perspective of Ubuntu………………………………………..11
2.3 The global perspective of Ubuntu………………………………………………….11
2.4 The three most important principle of Ubuntu…………………………………..11
3. INTEGRATION OF UBUNTU INTO SOUTH AFRICAN LEGAL SYSTEM……….12
3.1 Port Elizabeth Municipality v Various Occupiers (2005)……………………12-
13
3.2 MEC for Education v Pillay (2008)………………………………………………….13
3.3 S v Makwanyane (1995)
……………………………………………………………….13
9. CONCLUSION.....................................................................................................14
10. BIOBLIOGRAPHY………………………………………………………………….….15

5
1. INTRODUCTION
The concept of Ubuntu, is an Nguni Bantu term that roughly translates to "humanity
towards others", it is not a legal principle or formal rule in most legal systems.
However, it may influence legal decision making in certain contexts. This research
looks into the initial years of constitutional democracy in South Africa in relation to the
concept of Ubuntu. This research also aim to provide a complete importance and
understanding of this concept and how it has been influential in legal decision. In the
case of S v Makwanyane.2 The Court relied on the concept of Ubuntu to argue that
the state's use of capital punishment would undermine the country's moral and
constitutional values. An opportune moment to assert Ubuntu arose in the case of
Carmichele v Minister of safety and Security.3 When the court was called upon to
determine if the state owed the applicant a duty of care. The constitutional Court,
however did not decide this question. It held, instead, that adjustments to the
common law should be based on an “objective normative value system” reflecting
underlying constitutional values.4 without deciding the content of that value system.

In the context of South African law, the concept of Ubuntu plays an important role in
shaping the nation's legal system and its approach to justice. The South African
Constitution, which was adopted in 1996, explicitly recognizes Ubuntu as a
foundational value and principle that underpins the country's legal framework. The
concept is seen as a key component of the country's transformation from apartheid to
a more just and equal society, and it is often invoked in legal proceedings and
decisions. One example of the influence of Ubuntu in South African law is the
Restorative Justice approach, which seeks to repair harm caused by criminal acts by
2

S v Makwanyane and Another (CCT3/94) [1995] ZACC 3

3
Carmichelle v Minister of Safety and Security 2001 4 SA 938 (CC) para 54
4
Davis 2008 SAJHR 321

6
emphasizing the importance of healing relationships between victims, offenders, and
their communities. This approach, which is rooted in the concept of Ubuntu, is seen
as a more humane and effective alternative to punitive justice systems.

Ignoring the concept of Ubuntu can have cultural, ethical, legal, and sustainable
development disadvantages. It can lead to cultural insensitivity, miscommunication
and misunderstandings between different communities, and limit personal and
communal transformations. Ubuntu emphasizes the importance of compassion,
empathy, respect for others and sustainable development, and promotes legal
decisions that consider the broader social implications. Failing to recognize the
Ubuntu can result in unethical behavior and unsustainable development.

2. BACKGROUND TO THE RESEARCH PROBLEM

The concept of Ubuntu is rooted in African cultural and philosophical traditions and
has been recognized as an important guiding principle in several African countries.
While it is not legally binding in most legal systems, it has been incorporated into the
South African Constitution, legislation, and case law. Constitutional provisions,
legislation, case law, and academic literature are all relevant sources for
understanding how Ubuntu can be integrated into the legal system.

The primary sources that are relevant to understanding how Ubuntu can be integrated
into the legal system include constitutional provisions, legislation, case law, and
academic literature. The South African Constitution, which was adopted in 1996,
contains several references to Ubuntu and emphasizes the importance of principles
such as human dignity, equality, and respect for diversity. In particular, Section 39 of
the Constitution,5 requires that courts interpret the Constitution and all other laws in a
manner that promotes the "spirit, purport, and objects" of the Bill of Rights, which
includes the principles of Ubuntu.

Legislation can also be an important source of guidance on how Ubuntu can be

incorporated into the legal system. For example, in South Africa, the Traditional
5

The Constitution of the Republic of South Africa, 1996.

7
Courts Bill of 2017.6 includes provisions that recognize and promote traditional
dispute resolution mechanisms that are based on Ubuntu principles

Case law is also important in understanding how Ubuntu can be applied in legal
proceedings. The Constitutional Court of South Africa has developed a body of
jurisprudence that recognizes the importance of Ubuntu as a guiding principle in
constitutional interpretation and in the development of the common law. Finally,
academic literature can also provide insights into how Ubuntu can be integrated into
the legal system in a way that promotes social justice, human rights, and the rule of
law.

3. PROBLEM STATEMENT

The integration of the Ubuntu concept into the legal system is becoming increasingly
important in the modern world as many are seeking alternative approaches to justice
that focus on community, restoration, and reconciliation.

The Ubuntu philosophy, which emphasizes the interconnectedness of all people and
the importance of empathy, respect, and compassion in resolving conflicts, has
gained attention in recent years as a potential framework for legal reform in various
parts of the world. However, there are still many challenges and debates surrounding
the practical implementation of Ubuntu into existing legal systems and how it can be
balanced with other legal principles, such as individual rights and obligations.
Additionally, there is a need to examine the cultural context and implications of
incorporating Ubuntu into legal frameworks, particularly in terms of addressing
historical injustices, supporting marginalized communities, and promoting social
change.

4. HYPOTHESIS

6
Traditional Courts Bill of 2017.

8
The hypothesis regarding the integration of Ubuntu concept into the legal system is
that it can promote social justice, human rights, and the rule of law in a way that is
more inclusive and reflective of African cultural and philosophical traditions. The
incorporation of Ubuntu principles, such as human dignity, equality, and respect for
diversity, in constitutional provisions, legislation, and case law can guide and shape
legal processes and decisions towards a more just and equitable society. Additionally,
academic literature can provide insights into the practical challenges and theoretical
debates surrounding the application of Ubuntu principles in legal proceedings.
Overall, the hypothesis suggests that the integration of Ubuntu can contribute to a
more culturally sensitive and socially just legal system.

5. RESEARCH METHODOLOGY

The researcher will employ a historical legal research methodology with the goal of
systematizing, correcting, and clarifying the law relating to integrating the concept of
Ubuntu into the legal system. The researcher has selected this approach for the
aforementioned reason. The research uses a desk-top method of research. The focus
is on both primary and secondary research sources, literature includes legislation,
case law, electronic sources, textbooks as well journal articles.

6. ASSUMPTIONS AND POINTS OF DEPARTURE

The legal historical approach will be the research strategy adopted. The research will
be examined critically using a variety of sources, including legislation, case law,
journal articles, and electronic archives.

Ubuntu can promote social justice, human rights, and the rule of law: It is assumed
that incorporating Ubuntu principles into the legal system can lead to a more just and
equitable society by fostering notions of human dignity, equality, and respect for
diversity. This integration aims to address issues of systemic injustice and achieve
social transformation.

The integration of Ubuntu assumes that African cultural and philosophical traditions,
which emphasize communal values and interconnectedness, can provide valuable

9
insights and guidance for legal processes. It acknowledges that Western legal
traditions may not fully capture the specific needs and perspectives of African
societies. It is further It is assumed that including Ubuntu principles in constitutional
provisions, legislation, and case law can guide legal processes and decisions towards
a more just and equitable society. By incorporating Ubuntu, legal systems can align
more closely with community values and aspirations.

Overall, the assumptions and points of departure center on the belief that Ubuntu can
contribute to a more culturally sensitive and socially just legal system, addressing the
unique needs and values of African societies.

2. UBUNTU IN CONTEXT

2.1 The historical context of Ubuntu in modern day society

Ubuntu is an ancient African philosophy that has regained popularity in recent times.
Several African countries have incorporated Ubuntu into their political discourses and
policies to promote dialogue, reconciliation, and cooperation. Additionally, it has been
used for community development projects across Africa, emphasizing the importance
of sharing resources, building relationships, and working together. Ubuntu has also
gained attention in academic circles outside Africa for its unique perspective on ethics
and justice, challenging individualism and competition in Western philosophies.
Overall, its principles offer a vision of social harmony, cooperation, and social justice,
promoting empathy and interconnectedness.

2.2 The South African perspective of Ubuntu

10
Desmond Tutu describes the perspective Ubuntu as ‘is not’, “I think therefore I am.” It
says rather I am a human because I belong. I participate. African philosophy is
displayed through compassion, where individuals express a sense of deep caring for
and understanding of each other. The Ubuntu approach allows team members to
strive towards becoming caring, understanding and sharing (Poovan et 2006:24).7

2.3 The global perspective of Ubuntu

Ubuntu has garnered attention in academic circles beyond Africa for offering a unique
perspective on ethics, justice, and community building that challenges the
individualism and competition that characterizes Western philosophical traditions.
Ubuntu's emphasis on interconnectedness, empathy, and social justice provides a
foundation for an alternative framework for ethical and moral inquiry that transcends
borders.

Thaddeus Metz, the author examines the implications of Ubuntu for the
decolonization of African political theory, argues that “Ubuntu offers an alternative
political philosophy that challenges the Eurocentric assumptions of colonialism. By
prioritizing interconnectedness and community, Ubuntu offers a new framework for
democratic governance that transcends borders”.8

Ubuntu has its roots in African philosophy, specifically the Bantu-speaking peoples of
Southern Africa. The philosophy emphasizes the interconnectedness of all living
things and the importance of community and social relationships. In modern times,
Ubuntu has been embraced by many African countries as a means to promote social
cohesion and reconciliation in the wake of conflict.

"Ubuntu philosophy and the reconstruction of a divided society", Mogobe B. Ramose

examines how Ubuntu can be used to address the challenges facing African societies

N. Poovan, M.K Du Toit, A .S Engelbrecht. South African journal of Business

management
8
Thanddeus Meltz: The Anti-Colonial Ubuntu: Decolonizing African political
theory

11
in the post-colonial era. Ramose argues that Ubuntu is a valuable tool for
reconstructing a divided society as it promotes unity, respect, and social harmony.9

2.4 The three most important principle of Ubuntu

Professor Benedict O. Okereke, also known as Bennett TW 10, explores the concept of
Ubuntu and its potential to contribute to the development of a uniquely African
jurisprudence. Through an in-depth analysis of African social, cultural, and
philosophical traditions, Bennett TW argues that Ubuntu can provide a framework for
a legal system that is more inclusive, compassionate, and transformative. He further
examines how Western legal traditions have been applied in African societies and
highlights the challenges and limitations of such an approach. The five core values of
Ubuntu as identified by Mbigi11, (1997:33) are survival, spirit of solidarity, compassion,
respect and dignity. Survival enabled African communities, during difficult
environment conditions, to rely on each other for existence despite differences they
might have had amongst themselves.

3. INTEGRATION OF UBUNTU INTO SOUTH AFRICAN LEGAL SYSTEM

3.1 Port Elizabeth Municipality v Various Occupiers (2005)

In Port Elizabeth Municipality v Various Occupiers12 (2005), the principle of Ubuntu

was used to argue against the eviction of thousands of people who were occupying
land without the consent of the municipality. The Court found that the eviction would
be unconstitutional and violated the principles of Ubuntu. The Court explained that
Ubuntu recognizes the importance of community, compassion, and social solidarity.
The Court held that evicting people from their homes without providing them with
alternative accommodation would be cruel, inhuman, and degrading, and would

Mogobe B. Ramose: Ubuntu philosophy and the reconstruction of a divided

society
10
Bennett TW, UBUNTU: An African Jurisprudence (Juta)
11
Mungi Ngomane, Every day Ubuntu: Living better together, the African way
12

Port Elizabeth Municipality v Various Occupiers (CCT 53/03) [2004] ZACC; 2005
91) SA 217 (CC); 2004 (12) BCLR 1268 (CC) (1 October 2004).

12
undermine the principles of Ubuntu. The Court emphasized the need for the
municipality to engage in a meaningful dialogue with the occupiers to find a just and
sustainable solution that takes into account their rights and interests.

3.2 MEC for Education v Pillay (2008)

In MEC for Education v Pillay,13 (2008), the principle of Ubuntu was used to challenge
a school's hair policy that prohibited students from wearing certain hairstyles,
particularly dreadlocks. The Court found that the school's policy violated the right to
cultural and religious freedom and the principles of Ubuntu. The Court argued that
Ubuntu recognizes the value of diversity and promotes mutual respect for all cultures
and religions. The Court also noted that African hair is an important aspect of African
culture and identity that should be protected and celebrated. Therefore, the Court
held that the school's policy was discriminatory and ordered the school to allow
students to wear dreadlocks and other culturally significant hairstyles.

3.3 S v Makwanyane (1995)

In the case of S v. Makwanyane14, the principle of Ubuntu was used to argue against
the death penalty in South Africa. The Court found that the death penalty violated the
principle of Ubuntu, which emphasizes the inherent worth and dignity of every
individual, and the interconnectedness of all beings. The Court argued that the death
penalty is dehumanizing both for the condemned person and for society, and
therefore cannot be reconciled with the principles of Ubuntu. The Court's decision in
this case led to the abolition of the death penalty in South Africa, and has been cited
as an example of how Ubuntu can be used to promote human rights and dignity.

13

MEC for Education: Kwazulu-Natal and others v Pillay (CC 51/06) [2007] ZACC
21; 2007 (3) BCLR 287 (CC); 2007 (2) SA 106 (CC) 2007 28 ILJ 133 (CC) (5
October 2007).
14
S v Makwanyane and Another (CCT394) [1995] ZACC. 3

13
4. CONCLUSION
In conclusion, the integration of Ubuntu into the legal system in South Africa has
played a crucial role in promoting a more inclusive, just, and democratic society. By
recognizing the importance of African values and traditions, the South African
Constitution and the courts have created legal frameworks that prioritize human
dignity, social justice, and equitable distribution of resources.

The principles of Ubuntu have been used to challenge discriminatory laws and
policies, promote cultural and linguistic diversity, and protect the rights of
marginalized and vulnerable groups. However, there are still challenges that need to
be addressed to fully integrate Ubuntu into the legal system, such as addressing the
disjuncture between legal language and African languages and recognizing the need
for reconciliation and healing after decades of apartheid. Nonetheless, the integration
of Ubuntu into the legal system in South Africa serves as a model for other countries
seeking to promote a more just and inclusive legal system that respects and values
human dignity and diversity.

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5. BIOBLIOGRAPHY
Legislation

The Constitution of the Republic of South Africa, 1996

The Constitution of the Republic of South Africa Act 200 of 1993

Traditional Courts Bill of 2017.

Case Law

S v Makwanyane and Another (CCT394) [1995] ZACC. 3

Port Elizabeth Municipality v Various Occupiers (CCT 53/03) [2004] ZACC; 2005 91)
SA 217 (CC); 2004 (12) BCLR 1268 (CC) (1 October 2004

MEC for Education: Kwazulu-Natal and others v Pillay (CC 51/06) [2007] ZACC21;
2007 (3) BCLR 287 (CC); 2007 (2) SA 106 (CC) 2007 28 ILJ 133 (CC) (5 October
2007).

Journal articles

Himonga C, Taylor M and Pope A, ‘Reflections on Judicial Views of Ubuntu’ (2013)

PELJ 67

N. Poovan, M.K Du Toit, A .S Engelbrecht. South African journal of Business

Management.

Books

Bennett TW, Ubuntu: an African Jurisprudence (Juta) 2018

Thanddeus Meltz: The Anti-Colonial Ubuntu: Decolonizing African political

Theory

Mogobe B. Ramose: Ubuntu philosophy and the reconstruction of a divided

Society

Rautenbach Introduction to Legal Pluralism in South Africa (6th ed) 29

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