NATIONAL SENIOR CERTIFICATE: LIFE ORIENTATION (CAT) – LEARNER'S WORKBOOK Page 15 of 22
Question 2.2 – Ubuntu in the judiciary
The 1993 interim Constitution of South Africa ended with these words:
… a historic bridge between the past of a deeply divided society characterised 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 ... These can now be addressed on the basis that
there is a need for understanding but not for vengeance, a need for reparation but not for
retaliation, a need for ubuntu but not for victimisation.
Ubuntu and the 1996 Constitution of South Africa
The word 'ubuntu' is not mentioned in the 1996 South African Constitution. This leads some
people to think that this African philosophy was left out of the country's laws. However, this belief
may not be accurate. Even though the Constitution does not explicitly mention ubuntu, its
purpose and intent reflect the spirit of ubuntu. It promotes values like equality, dignity, non-
discrimination, and other fundamental rights listed in the Bill of Rights. This shows that ubuntu
remains a key part of South Africa's legal system. In fact, there is no conflict between the
Constitution's values and ubuntu, which is rooted within it. The absence of the word 'ubuntu'
does not mean it has been excluded from the highest law. Instead, ubuntu serves as the
foundation and inspiration that transforms the Constitution into a progressive and inclusive
document.
Ubuntu and the South African courts
The landmark case that established ubuntu as a source of law was S v Makwanyane. In this case,
the death penalty was declared unconstitutional because it lacked compassion, respect for
dignity, and solidarity, among other reasons. In their judgment, Justices Langa and Mokgoro
described ubuntu as a culture that values community, interdependence, togetherness, respect,
and shared responsibility. It emphasises humanity, morality, and the mutual enjoyment of rights
by everyone.
Although some judges in the case did not mention ubuntu or directly link the death penalty to
South African culture, the principles of ubuntu played a key role in the decision to abolish the
death penalty. Ubuntu's focus on compassion, care, and dignity was central to the ruling. As legal
scholar Malan noted, S v Makwanyane was the first case where ubuntu featured prominently,
and its influence on the outcome is undeniable, even if it wasn't explicitly mentioned in all parts
of the judgment.
[Adapted from: SD Kamga 'Cultural values as a source of law: Emerging trends of ubuntu jurisprudence in
South Africa' (2018) 18 African Human Rights Law Journal 625-649 (Accessed 11 December 2024)]
2.2.1 Why do you think the writers of the 1993 interim Constitution emphasised
understanding over vengeance and reparation over retaliation?
2.2.2 How does the emphasis on equality, dignity, and non-discrimination in the
Constitution align with the philosophy of Ubuntu?
2.2.3 Should judges consider cultural philosophies like Ubuntu when making decisions?
What are the potential positives and negatives?
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2.2.4 Divide yourselves into two groups: those who think the death penalty should be
abolished and those who think the death penalty should be reinstated.
Debate the merits of the death penalty and ensure that your debate includes the
following, irrespective of the stance you take:
- Criminals must be deterred from repeatedly committing crimes.
- The victims/families of the victims must receive justice for the crime committed
against them/their loved one(s).
- The principles of Ubuntu must be upheld.
2.2.5 Can you think of any circumstances where the principles of Ubuntu have been
warped and twisted to suit a person or group of peoples' agenda?
Share your thoughts with the class.
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