Legal Journals Dealing with the Role of Ubuntu

«I believe that part of the cultural dynamic behind South Africa`s political miracle must be attributed to the patience, maturity and capacity for forgiveness embodied by African leaders. Nelson Mandela and others found a way to discuss issues until a worthy consensus was found. We must also recognize the humility and commitment of white leaders who have chosen to listen. But ultimately, reconciling wisdom in the service of discovery and connection is an inherent gift of African cultural heritage, a gift that the world is only just beginning to recognize and deserves greater attention. Footnote 82 In violent conflict and at a time when violent crime is rampant, desperate members of society mourn the loss of Ubuntu. Thus, heinous crimes are the antithesis of Ubuntu. Cruel, inhuman or degrading treatment is deprived of Ubuntu. The Court recognised the vulnerability of permanent residents and held that the refusal to pay social security benefits was incompatible with Article 27(1)(c) of the Constitution, which grants «everyone» the right of access to social security. The Court also concluded that the exclusion of permanent resident children from social benefits constituted unjust discrimination and, taking into account the need to care for all, including permanent residents, concluded that «the right of every person to access social security includes permanent residence in the country».

This decision is another application of Ubuntu. Urbanization, wealth accumulation and materialism must not «deprive us of our warmth, hospitality and sincere interests in one another as human beings.» Ubuntu recognizes the status of anyone who deserves the unconditional respect, dignity, value, and acceptance of the community to which they belong. Judge Jajbhay considered that the proposal to relocate residents to an informal settlement «contradicts the concept that `a person is a person by persons`», as embodied by Ubuntu. [159] He emphasized that the right to work is one of the most precious rights of all – «to work,» he explains, «is to eat and, therefore, to live.» Given its belief that «Ubuntu must become a term with particular resonance in the construction of our constitutional democracy,» Jajbhay J felt that the city had an obligation to provide residents with access to adequate housing in the city center. [160] The purpose of this article was to assess the extent to which the cultural value of Ubuntu, which reflects unity, compassion, and respect for dignity in communities, is a source of law in South Africa. If so, it was intended to reveal emerging trends in Ubuntu jurisprudence. During this interrogation, the article unpacked the concept of Ubuntu, which includes an examination of its role in the TRC. He examined Ubuntu`s emerging jurisprudence to reveal its trends and distinctiveness. 52 Ibid. Keep and Midgley, for their part, argue that Ubuntu is a uniquely African value that embodies deep notions of inclusion. This makes Ubuntu an «ideal global vehicle for the expression of common values» and its application would lead to a truly plural legal culture and social cohesion in South Africa: H Keep and R Midgley «The emerging role of Ubuntu-botho in the development of a consensual South African legal culture» in F Bruinsma and D Nelken (eds) Recht der Werkelijkheid (2007, Reed Business) 29.

See also generally T Metz «Ubuntu as a moral theory and human rights in South Africa» (2011) 11/2 African Human Rights Law Journal 532. 9. M Langford «Domestic adjudication and economic, social and cultural rights: A socio-legal review» (2009) on International Journal on Human Rights 90. Although this decision is controversial, as has already been shown, it can be said that it has imbued the South African legal system with the African culture of understanding, tolerance and reconciliation. Henebury notes that the Azapo decision «amounts to a rejection of retaliation for restorative justice and highlights the ambitious character of Ubuntu`122, which seeks social harmony to transform society for the benefit of all. In an effort to redress balance, the TRC was created under the Act to promote national unity and reconciliation. [25] The TRC anchored in Ubuntu «was conceived as part of the bridge-building process designed to help lead the nation from a deeply divided past to a future based on the recognition of human rights and democracy.»26 According to Archbishop Desmond Tutu, Tutu stresses the importance of forgiveness and harmony for a better South Africa. This view was expressed in his book No Future Without Forgiveness.27 While Tutu asks for forgiveness from the victims, he believes that the perpetrators must also take responsibility for the damage caused and apologize extensively. Subsequently, responsibility and forgiveness prepare the ground for harmony and transformation in the form of reparation in the form of compensation and change in socio-economic conditions. The landmark case that designated Ubuntu as a source of law was Makwanayane.111 In this case, the death penalty was declared unconstitutional because, among other things, of its lack of compassion, respect for dignity, and solidarity. In this important judgment, Langa112 and Mokgoro113 stated that Ubuntu is a culture that emphasizes community, interdependence, solidarity, respect, conformity to fundamental norms and collective unity, and denotes humanity and morality. In addition, it is synonymous with duty to the community, shared co-responsibility and mutual enjoyment of rights by all.

Although Justices Ackerman, Didcott, Kentridge, Kriegler and O`Regan, as well as the Major Order of Ubuntu, did not mention Ubuntu and did not conclude that the death penalty was inherently incompatible with South African culture, the characteristics of Ubuntu, as emphasized by Justices Langa,114 Mokgoro,115 Sachs,116 Madala,117 and Mahomed,118, were instrumental in abolishing the death penalty. This violates the philosophy of compassion. Love and care for each other and, most importantly, dignity. Malan, in his analysis of Ubuntu`s importance in South African jurisprudence (rightly, in my view), writes that «the first case in which Ubuntu played a leading role played a leading role in S v Makwanyane.»119 Although Ubuntu was not mentioned by all the judges and did not appear in the main judgment, Its essential role in decision-making cannot be ignored. A national plan of action to combat racism, racial discrimination, xenophobia and related intolerance is now available. The NAP describes xenophobia as «the attitude of hostility towards foreigners of a given population». Footnote 46 In opening the NAP, President Cyril Ramaphosa (who has taken a commendable leadership role in the fight against Afrophobia and other hate crimes) acknowledged that «xenophobia wrapped in nationalism» manifests itself in society and that the state has the primary responsibility to combat it. Footnote 47 The NAP calls on all South Africans to display values and behaviours that will help the nation break with its painful past. The NAP takes a legalistic approach and proposes three key strategies (law enforcement, protection and prevention) as a means of combating human rights violations such as xenophobic attacks.

Under the NAP, state and non-state actors are mandatory, while anyone living within South Africa`s jurisdiction is the rights holder. The NAP contains comprehensive proposals to combat xenophobia, including the ultimate responsibility of the State to protect the human rights of all South Africans. Footnote 48 The NAP does not directly endorse Ubuntu as a value that should be promoted to combat prejudice and xenophobia in the country. If the case had been properly presented, a number of interrelated constitutional values would influence the development of the common law. Indeed, it is highly desirable and even necessary to infuse contract law with constitutional values, including the Ubuntu values that inspire much of our Constitutional Compact. This provision was at least partly historical, as for the first time in South Africa`s modern history, a traditional African concept – Ubuntu – was incorporated into official state law. The South African Constitution of 1996 did not explicitly mention Ubuntu, but recognized customary law «subject to the Constitution»,[5] which required courts to apply customary law «where such law is applicable, subject to the Constitution and any law dealing specifically with common law». [6] Ramose and others describe Ubuntu as an exclusively African way of life. However, legal scholar Cornell associates Ubuntu with human dignity in accordance with the transformative attributes16 of the South African Constitution, which aims to distance society from the injustices of the past and build an egalitarian society.

In Cornell`s approach to Ubuntu, it is important to forgive past wrongs and live together as one human family where respect for dignity is essential. The result could have been a simple amnesty for the perpetrators of apartheid; It`s not Ubuntu that insists on fixing. Nevertheless, the above epilogue led to the adoption of the policy establishing the TRC,18 and influenced the courts` decision to grant amnesty to the authors in the AZAPO case.19 Scholars such as Rashose dismiss this as a misinterpretation of Ubuntu.20 Ramose believes that apartheid organizers strategically relied on Ubuntu to avoid accountability for their crimes. They used the African philosophy of humanity to protect themselves from having to right the wrongs of the past. In this register, ubuntu, which is charged with notions of patience, kindness and community cohesion, as well as cultural uniqueness and interpretive challenges, is undermined to make room for the promotion of the idea of a common and manageable project to be realized under the notion of «nation building».21 In this context, Ubuntu is not a specific cultural tradition. but is the result of «false and bloodless historiography,» to quote Rampose.22 It is clear that Ubuntu has been invoked by different groups for different purposes and in different ways.