Reflections on Judicial Views of uBuntu
Since S v Makwanyane, ubuntu has become an integral part of the constitutional values and principles that inform interpretation of the Bill of Rights and other areas of law. In particular, a restorative justice theme has become evident in the jurisprudence that encompasses customary law, eviction, d...
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doaj-fd1c043c263b4d368bfd60898117e28d2020-11-25T03:29:38ZafrNorth-West UniversityPotchefstroom Electronic Law Journal1727-37812013-12-01165369427http://dx.doi.org/10.4314/pelj.v16i5.8Reflections on Judicial Views of uBuntuChuma Himonga0Max Taylor1Anne Pope2University of Cape TownUniversity of Cape TownUniversity of Cape TownSince S v Makwanyane, ubuntu has become an integral part of the constitutional values and principles that inform interpretation of the Bill of Rights and other areas of law. In particular, a restorative justice theme has become evident in the jurisprudence that encompasses customary law, eviction, defamation, and criminal law matters. This contribution explores the scope and content of ubuntu, as pronounced on by the judiciary in various cases, and demonstrates that its fundamental elements of respect, communalism, conciliation and inclusiveness enhance the constitutional interpretation landscape. Two major epochs are highlighted in the development of ubuntu, marked by the constitutional decisions in Makwanyane and PE Municipality respectively. The former carved the central avenue of development for ubuntu, while the latter marked the start of the thematic development of the concept in the direction of restorative justice. Furthermore, the article engages critically with the use of ubuntu, with criticisms levelled against the conceptualisation of ubuntu as a legal notion, ranging from its ambiguity to its redundancy, to perceptions of dichotomies, and issues of exclusion. The paper also questions the manner in which the courts have applied the legal concept of ubuntu uncritically, without reference to African sources to illustrate its meaning in different contexts, and without questioning its compatibility with the Bill of Rights. Finally, it attempts to reveal the connections between ubuntu and the values underlying the Bill of Rightshttp://www.nwu.ac.za/sites/www.nwu.ac.za/files/files/p-per/issuepages/2013volume16no5/2013%2816%295HimongaART%5B1%5D.pdfUbuntuConstitutional valueRestorative justiceCommunal |
collection |
DOAJ |
language |
Afrikaans |
format |
Article |
sources |
DOAJ |
author |
Chuma Himonga Max Taylor Anne Pope |
spellingShingle |
Chuma Himonga Max Taylor Anne Pope Reflections on Judicial Views of uBuntu Potchefstroom Electronic Law Journal Ubuntu Constitutional value Restorative justice Communal |
author_facet |
Chuma Himonga Max Taylor Anne Pope |
author_sort |
Chuma Himonga |
title |
Reflections on Judicial Views of uBuntu |
title_short |
Reflections on Judicial Views of uBuntu |
title_full |
Reflections on Judicial Views of uBuntu |
title_fullStr |
Reflections on Judicial Views of uBuntu |
title_full_unstemmed |
Reflections on Judicial Views of uBuntu |
title_sort |
reflections on judicial views of ubuntu |
publisher |
North-West University |
series |
Potchefstroom Electronic Law Journal |
issn |
1727-3781 |
publishDate |
2013-12-01 |
description |
Since S v Makwanyane, ubuntu has become an integral part of the constitutional values and principles that inform interpretation of the Bill of Rights and other areas of law. In particular, a restorative justice theme has become evident in the jurisprudence that encompasses customary law, eviction, defamation, and criminal law matters. This contribution explores the scope and content of ubuntu, as pronounced on by the judiciary in various cases, and demonstrates that its fundamental elements of respect, communalism, conciliation and inclusiveness enhance the constitutional interpretation landscape. Two major epochs are highlighted in the development of ubuntu, marked by the constitutional decisions in Makwanyane and PE Municipality respectively. The former carved the central avenue of development for ubuntu, while the latter marked the start of the thematic development of the concept in the direction of restorative justice. Furthermore, the article engages critically with the use of ubuntu, with criticisms levelled against the conceptualisation of ubuntu as a legal notion, ranging from its ambiguity to its redundancy, to perceptions of dichotomies, and issues of exclusion. The paper also questions the manner in which the courts have applied the legal concept of ubuntu uncritically, without reference to African sources to illustrate its meaning in different contexts, and without questioning its compatibility with the Bill of Rights. Finally, it attempts to reveal the connections between ubuntu and the values underlying the Bill of Rights |
topic |
Ubuntu Constitutional value Restorative justice Communal |
url |
http://www.nwu.ac.za/sites/www.nwu.ac.za/files/files/p-per/issuepages/2013volume16no5/2013%2816%295HimongaART%5B1%5D.pdf |
work_keys_str_mv |
AT chumahimonga reflectionsonjudicialviewsofubuntu AT maxtaylor reflectionsonjudicialviewsofubuntu AT annepope reflectionsonjudicialviewsofubuntu |
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