UBUNTU: AN AFRICAN EQUITY

The end of apartheid and the introduction of a democratic constitution provided the occasion for taking South Africa's indigenous systems of customary law more seriously. Although early calls to "Africanise" the country's legal system were not heeded, one small concession was made to the country's African legal heritage. For the first time in the history of South African law, a typically African concept was adopted into the general law of the law of the land. This was ubuntu.


Introduction
The end of apartheid and the introduction of a democratic constitution provided the occasion for taking South Africa's indigenous systems of customary law more seriously.Although early calls to "Africanise" the country's legal system were not heeded, one small concession was made to the country's African legal heritage.For the first time in the history of South African law, a typically African concept was adopted into the general law of the law of the land.This was ubuntu.
In many ways, it has been an exceptional event.Since the colonial conquest of Africa, indigenous customary laws have been treated as inferior, scarcely deserving recognition as true laws.At best, they were tolerated in terms of such monitoring devices as a repugnancy clause. 1 There was, of course, a traffic of ideas between the two systems, but always from the received Roman-Dutch law to customary law.
Although South Africa's new constitutional dispensation had the effect of elevating customary law to the same status as that of the common law, 2 the flow of terms and concepts remained unidirectional.The reception of ubuntu into the common law reversed this process.This paper concerns the meaning of ubuntu.Much of the discussion in academic circles about the concept has involved a search for its proper meaning, or at least a translation that will render the word comprehensible to a wider audience.The most obvious translations were the calques 3 "humanity", "personhood" or "humaneness", 4 but none has been especially helpful.They cannot convey the many connotations in ubuntu nor, of course, its cultural implications.
The search for definition has, unfortunately, proceeded on an assumption that ubuntu refers to some core abstract concept or an actual way of behaving. 5This paper suggests, however, that a better path to understanding ubuntu is to consider the ways and contexts in which the word is being used.An analysis of this nature assumes that we should pay less attention to predetermined, essentialised meanings and more to the way in which past and current users are constructing meanings.
At the outset, we need to be aware that ubuntu is a loanword in English.Such a word is highly susceptible to change, not only because it is novel, but also because it is isolated.Its links with the language from which it was borrowed are broken, and it has no semantic connections with other words in the language into which it has been absorbed. 6 a newcomer in a strange environment, it must fit in with existing legal terms and concepts.Even more importantly, it will be exploited by a range of new users to serve ends of their own.All of this assumes that the relationship between words, their users and meanings is dynamic and changing.

Uses of ubuntu
An obvious place at which to start the quest for the meaning of ubuntu is the history of its usage.It must be recognised at the outset, however, that it is impossible to trace the exact denotation of the word in its vernacular origins.Ubuntu is said, in a famous metaphor, to be shrouded in a "kaross of mystery".7 4 S v Makwanyane 1995 3 SA 391 (CC) para 308.

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Mokgoro 1998 Buff Hum Rts L Rev 15, who says that the Western use of abstractions "defies the very essence of the African world-view', which describes ideas through real contexts.
Nevertheless, we do know that ubuntu has always been a word in everyday usage.
It seems first to have been co-opted into a nation-wide public discourse in South Africa during the 1920s, when the Zulu cultural movement, Inkatha, used it as a slogan in its programme to revive respect for traditional Zulu values. 8From there, ubuntu migrated into the discourses of theology and business management, where it was used -as cynics put it -to package decision-making in the appearance of traditional African values. 9 Ubuntu then entered the law in a small but telling "postamble" to the 1993 Interim Constitution.The deeply divided society that emerged from apartheid bore a "legacy of hatred, fear, guilt and revenge".These divisions were now to "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". 10With no solid legal foundation, apart from this aspirational clause, ubuntu was then absorbed into the mainstream of legal discourse by a series of judgments in the Constitutional and High Courts.

Constitutional law
Ubuntu has played its most prominent role in public law.Not only did the Interim Notions of participation and reconciliation were reasons for the success of South Africa's constitutional revolution, and a critical institution facilitating this process was the Truth and Reconciliation Commission. 13Ubuntu was expressly referred to in the preamble to the Commission's constitutive instrument, the Promotion of National Unity and Reconciliation Act. 14When discussing the TRC's extraordinary achievements, the Canadian philosopher John Ralston Saul concluded that a strong contributory factor was the outlook of the chair, Archbishop Desmond Tutu, who had "very consciously evoked pre-European African concepts such as Ubuntu" to "establish a personal and national sense of justice". 15e of the primary means for securing a political settlement was the amnesty offered to perpetrators of apartheid offences, provided that they confessed the truth of their deeds. 16 providing the environment in which victims could tell their own stories in their own languages, the Commission not only helped to uncover existing facts about past abuses, but also assisted in the creation of a narrative truth.
In so doing, it also sought to contribute to the process of reconciliation by ensuring that the truth about the past included the validation of the individual subjective experiences of people who had previously been silenced or voiceless. 17 In AZAPO and Others v TRC and Others, 18 however, the applicants argued that the removal of civil and criminal liability was unconstitutional and infringed their right of access to the courts.The Constitutional Court held that the amnesty procedure had been specifically chosen, because without it there would have been no incentive for offenders to disclose the truth and, as the truth unfolded, so would the processes of reconciliation and reconstruction.The Court noted, further, that amnesty was a 13 The TRC "was conceived as part of the bridge-building process designed to help lead the nation away from a deeply divided past to a future founded on the recognition of human rights and democracy".In AZAPO v TRC 1996 4 SA 562 (C) 570, the Court noted that "the new dispensation requires 'reconciliation between the people of South Africa and the reconstruction of society'.In order to achieve this, according to the post-amble, amnesty is required".crucial component of the negotiated settlement itself, without which the Constitution could not have been enacted.As Mahomed DP (as he then was) observed, the TRC sought to "promote national unity and reconciliation in a spirit of understanding which transcends the conflicts and divisions of the past". 19

Criminal law
While ubuntu was one of the keys to the political settlement, it has played a more important, long-term role in the criminal justice system.Here, African ideas of dispute resolution had (even earlier) been introduced to a sentencing policy under the label of "restorative justice".This concept was also central to the TRC process: although those who committed crimes of apartheid deserved punishment, peace and national unity dictated reconciliation (which has come to be seen as synonymous with restorative justice). 20 this sense, ubuntu made its debut in the jurisprudence of the Constitutional Court in S v Makwanyane. 21Here the word was given its first full exposition by the courts.
Mokgoro J held that: Metaphorically, [ubuntu] expresses itself in umuntu ngumuntu ngabantu, describing the significance of group solidarity on survival issues so central to the survival of communities.While it envelops the key values of group solidarity, compassion, respect, human dignity, conformity to basic norms and collective unity, in its fundamental sense it denotes humanity and morality.Its spirit emphasises respect for human dignity, marking a shift from confrontation to conciliation. 22stice Langa continued: It is a culture, which places some emphasis on communality and on the interdependence of the members of a community.It recognises a person's status as a human being, entitled to unconditional respect, dignity, value and acceptance from the members of the community [that] such person happens to be part of.It also entails the converse, however.The person has a corresponding duty to give the same respect, dignity, value and acceptance to each member of that community.More importantly, it regulates the exercise of rights by the emphasis it lays on sharing and co-responsibility and the mutual enjoyment of rights by all. 23cial harmony lies at the heart of ubuntu and, when applied to criminal justice, it completely upends the common-law system which, generally speaking, aims at retribution.Restorative justice seeks to promote cohesion 24 by inducing reconciliation between the offender, the victim and the community at large, thereby requiring the participation of all interested parties in the proceedings. 25storing social harmony is now one of the central aims of South Africa's sentencing policy.For example, in M v S (Centre for Child Law Amicus Curiae), 26 which dealt with correctional supervision, the court commended the fact that restorative justice places crime control in the hands of the community rather than criminal justice agencies.As a result, the offender has a better chance of social rehabilitation without suffering the negative effects of a prison sentence, loss of a job and possible destruction of family networks. 27conciliation and restorative justice also feature (predictably perhaps) in the reconfiguration of traditional courts.The Traditional Courts Bill, which was tabled on 9 April 2008, makes much of the need to "affirm the values of the traditional justice system, and to align the goals of restorative justice and reconciliation with the Constitution". 28The South African Law Commission has also proposed this policy for the community tribunals it recommends be established in the townships. 29 even more decisive goal of restorative justice appears in the Child Justice Act. 30 the "Aims" part of this enactment, a declaration is made to "expand and entrench the principles of restorative justice in the criminal justice system for children who are in conflict with the law, while ensuring their responsibility and accountability for crimes committed".Thereafter reconciliation and restorative justice appear frequently, as, for instance, in the "Objects of the Act" 31 and the policy of diverting juvenile offenders from the penal system. 32 Ubuntu has made only a brief appearance in the substantive criminal law.S v Mandela 33 involved a plea of compulsion.The accused, however, could prove no immediacy of life-threatening compulsion.The court held that, if lower standards were accepted for this defence, too little would be required of people who now live in a society based on freedom, dignity, ubuntu and respect for life.It was implicit in the idea of ubuntu that every person deserved equal concern and respect.

Administrative law
The porous concepts of administrative justice have given the courts better opportunities to invoke ubuntu in this branch of the law.Union of Refugee Women and Others v Director: Private Security Industry Regulatory Authority and Others, 34 for instance, was a case concerning the refusal to allow refugees from African countries to take up employment in the security industry.Sachs J considered a blanket refusal to be unfair discrimination. 35In his reference to ubuntu he spoke of Citing, in this respect, Hammond-Tooke Roots of Black South Africa 99, who said that, in traditional society, "the hospitality universally enjoined towards strangers, [is] captured in the Xhosa proverb: Unyawo alunompumlo ('"the foot has no nose").Strangers, being isolated from their kin, and thus defenceless, were particularly under the protection of the chief and were accorded special privileges".
unto ourselves 37 and, on the basis of this metaphor, proceeded to apply the principle to the state's relationship with foreigners. 38e courts have also derived the values of civility and trust from ubuntu.Masetlha v President of the RSA and Another, 39 for instance, was a case concerning the President's termination of the applicant's position as head of the National Intelligence Agency.The Constitutional Court held that, although the act of termination was not in itself unfair, three ancillary issues were: the due compensation; the manner in which the news was publicly communicated; 40 and the general public interest. 41The Court held that fairness and civility were inseparable from ubuntu.Civility was described as: more than just courtesy or good manners….It presupposes tolerance for those with whom one disagrees and respect for the dignity of those with whom one is in dispute.In this sense, civility was connected to ubuntu, and was said to be "deeply rooted in traditional culture", and "widely supported as a precondition for the good functioning of contemporary democratic societies". 42 Pharmaceutical Society of South Africa and Others v Tshabalala-Msimang and Another NNO; New Clicks South Africa (Pty) Ltd v Minister of Health and Another, 43 ubuntu was described as a relationship of mutual respect.The case involved an urgent application for leave to appeal from a judgment of the Cape High Court.
Harms JA held that the delay was so unreasonable as to be tantamount to a refusal.He noted a reference by the Judge President of the court a quo to the spirit of ubuntu in interpreting statutes, and said that this term ought to apply to the relationship between courts and the respect required of organs of State and courts towards citizens and towards each other... Delays in giving judgment give the impression of an imperious judge, and undermine public confidence in the judiciary, since "justice delayed is justice denied". 44 similar vein, Koyabe and Others v Minister for Home Affairs and Others (Lawyers for Human Rights as Amicus Curiae) 45 again associated ubuntu with a general obligation to treat people with respect and dignity, to avoid undue confrontation and, more specifically, to give reasons for administrative decisions.The case dealt with the removal of residence permits from non-South Africans, and it raised questions about just administrative action.Mokgoro J held that declaring a person an illegal alien has serious implications, inter alia, being compelled to leave the country and thereafter suffering an international stigma that can be used to deny entry into other countries. 46In addition, the Judge linked the principles of fairness, accountability and transparency with the policy of Batho Pele (meaning "People First" in seSotho), a slogan used in local government to indicate that the best interests of the public must be put first. 47 "customer" for the purposes of the public service (especially because the customers have no choice in service provider). 49seph's case concerned termination of the electricity supply to the applicants' residence, because the landlord had failed to pay the bills.The applicants sought reconnection of the electricity, as well as an order that they were entitled to procedural fairness (in the form of notice and an opportunity to make representations to the service provider, City Power).As tenants, however, the applicants had no contractual nexus with City Power.The Court nonetheless held that the company had to comply with the requirement of procedural fairness, 50 since government [must] act in a manner that is responsive, respectful and fair when fulfilling its constitutional and statutory obligations.This is of particular importance in the delivery of public services at the level of local government.
Municipalities are, after all, at the forefront of government interaction with citizens. 51butt v Centre for the Study of Violence and Reconciliation, and Others 52 involved unfinished business of the TRC, ie a form of amnesty for those who had not participated in the process.To that end the President announced a special pardon for those who had committed politically motivated offences.The question was whether victims were to be given a voice in this special dispensation or not.The Constitutional Court held that their participation was essential not only in order to establish the truth, but also to achieve the objectives of nation-building and national reconciliation. 53e notion of participatory democracy is also an African one.Victim participation was the norm in deciding the proper "punishment" for offenders in traditional African society….this remarkable tradition of participation and Evictions from and Unlawful Occupation of Land Act (hereafter PIE), 63 legislation that aims to address the plight of the homeless and those forced to seek shelter on property owned by another.In order to achieve a just and equitable settlement, the Act requires the courts to consider the lawfulness of the squatters' occupation, their interests and their circumstances, together with broader constitutional values.
Hence, although claims are based on sound legal grounds, they may be refused in order to realise higher norms.These have been variously described as justice, equity, fairness, grace and compassion. 64e leading case relating to PIE is Port Elizabeth Municipality v Various Occupiers. 65 response to a petition signed by 1600 people in the neighbourhood, the Municipality sought an eviction order against 68 people who, for a number of years, had been occupying shacks on privately owned land within the Municipality.Sachs J put the Constitutional Court's approach in the following terms: PIE expressly requires the court to infuse elements of grace and compassion into the formal structures of the law.It is called upon to balance competing interests in a principled way and to promote the constitutional vision of a caring society based on good neighbourliness and shared concern. 66e next few sentences are redolent of the language of ubuntu: The Constitution and PIE confirm that we are not islands unto ourselves.

Family law
Aside from the Child Justice Act mentioned earlier, ubuntu has featured in only three cases in this branch of the law.The first was Ryland v Edros, 72 which concerned recognition of a Muslim marriage.Previously, such marriages had been considered contrary to South African public policy and boni mores.On the basis of the postamble to the Interim Constitution and Langa J's exposition of ubuntu in S v Makwanyane and Another, 73 however, the court held that the values of equality and tolerance demanded a new approach.
In Badenhorst v Badenhorst, 74 a married couple's claim to the husband's parents' farm was found to be an abuse of the parents' generosity.The court spoke of the wife's claim as "an irresistible temptation of greed", and added that "her attitude undermined ubuntu, that godly value with which all human beings are ordained".
Bhe and Others v Magistrate, Khayelitsha and Others, 75 a case dealing with the constitutionality of the customary law of succession, considered ubuntu in an obiter dictum.The Constitutional Court described the valuable features of customary law, its inherent flexibility, consensus-seeking in family meetings for the prevention and resolution of disputes, the unity of the family structures, the "fostering of cooperation, a sense of responsibility in and of belonging to its members", and "the nurturing of healthy communitarian traditions such as ubuntu". 76

Delict
Although the law of delict leaves itself open to ubuntu via such open-ended concepts as reasonableness, the duty of care, and the largely discretionary process of assessing damages, the concept has had little effect.without deciding the content of that value system. 79 Dikoko v Mokhatla 80 is the only case in which ubuntu played a significant role.Here Mokgoro J held that monetary compensation for defamation diverted attention away from two basic considerations in this aspect of the law: that the reparation represents injury to dignity and reputation, not necessarily to the pocket, and that courts should attempt to re-establish a respectful relationship between the parties.An old remedy of amende honorable (apology) was therefore revived to acknowledge a sense of ubuntu and to emphasise restorative rather than retributive justice.

Contract
Contract, too, has proved resistant to ubuntu, although a possible reception of the concept in this area is a more complex matter.It could well be argued that contract law already has specific mechanisms to deal with the type of problems which ubuntu addresses.
Formerly, one such mechanism was the exceptio doli generalis.This remedy could be invoked as a defence to the enforcement of unfair or unconscionable terms in contracts. 81 The matter was then referred back to the High Court to reconsider in light of the claimant's constitutional rights.In Carmichele v Minister of Safety and Security 2003 2 SA 656 (C) para 16, Chetty J confirmed the "strictly" common-law position on the matter, and then considered the effect of the Constitution.He emphasised that the criterion for wrongfulness -the legal convictions of the community -was now "to be found in the Constitution and not in some vague notion of public sentiment or opinion".See Van der Walt 2003 SAJHR 522-523,525.JA, it had disappeared in the middle ages and, as a "superfluous defunct anachronism", should be laid to rest.
Notwithstanding the elimination of the exceptio doli, the courts still had available principles of good faith and public policy, together of course with the Bill of Rights, to correct unfair contracts.Good faith has always been a fundamental principle of our law, 83 but its role is limited. 84In Brisley v Drotsky 85 the Supreme Court of Appeal held that good faith could not be used as an independent ground for setting aside or refusing to enforce contractual provisions.While the abstract idea of bona fides was a foundation and justification for legal rules 86 and could "perform creative, informative and controlling functions through established rules of contract law", it could not be used directly to intervene in contractual relationships.The courts should refer instead to rules of hard law.In this way, legal certainty could be preserved. 87 first sight, public policy would seem to embrace the ideas of ubuntu and justice, for it stands for "the general sense of justice of the community, the boni mores, manifested in public opinion". 88And shortly after the Bank of Lisbon case, Sasfin (Pty) Ltd v Beukes 89 invoked public policy to have a contract declared unenforceable.
Nevertheless, this principle does not have an unlimited scope of operation.Van der Merwe et al contend that "simple justice between man and man" in the parties' individual capacities cannot alone determine the public interest, because the idea is too simplistic and could lead to arbitrary decisions.Rather than relying on public policy alone to deal with contractual unfairness, the courts seem to prefer linking it to the Bill of Rights. 91Thus, in Barkhuizen v Napier , 92 the court said that: the proper approach to the constitutional challenges to contractual terms is to determine whether the term challenged is contrary to public policy as evidenced by the constitutional values, in particular, those found in the Bill of Rights.This approach leaves space for the doctrine of pacta sunt servanda to operate, but at the same time allows courts to decline to enforce contractual terms that are in conflict with the constitutional values even though the parties may have consented to them. 93 general, the courts' approach to ubuntu in the private law sphere has been conservative.Except for PIE related matters, they seem unwilling to incorporate new ideas.While mention has been made of ubuntu and/or equity in contract, 94 the courts have been reluctant to develop these norms any further. 95Davis has therefore remarked that principles of legal certainty and private autonomy seem to have prevailed over the transformative, communitarian power of the "constitutional values of freedom, equality and dignity" 96 -a sad reflection on the law that provides ground rules for the economic structure of South Africa's fragmented and unequal society. 97

Objections to ubuntu
Ubuntu sceptics criticise the concept on many grounds.For a start, they say that it is too vague to be of any use. 98This objection, however, can be immediately refuted.
As a metanorm, ubuntu is necessarily generalised.The concept cannot be described as a rule or even a principle. 99 closer to a value or, better still, a representation of the right way of living. 100In this sense, it is akin to the Hindu notion of dharma. 101 It is senseless to object to the ambiguity of such terms, for precision cannot be expected of concepts that must play such multifarious roles in society.This point is especially true for a legal system such as South Africa's, when the country is in the process of forging new values.To demand an exact definition of ubuntu would be to impose a premature restriction on its function. 102other objection claims that the communal ethic of ubuntu denies individual autonomy, and that the "appeal to cohesion privileges dangerous hierarchies [and]   corrupt tribal authorities".Because ubuntu is associated with an African tradition it is backward-looking and can have little to offer to the modern world.Drucilla Cornell, however, one of the foremost scholars working on dignity jurisprudence, would contest these objections on the ground that both ubuntu and the related concept of dignity are banners of a high ethical endeavour. 103atever the truth of the sceptics' allegations, we need to be aware that we are not bound by a single (or traditional) conception of ubuntu.How, then, are we to assess the function of ubuntu in our law?We should be aware that it started life as the product of an oral, not a written, culture.The written word has the effect of objectifying thought.It distances the word from the speaker, thereby facilitating a self-reflective, critical form of analysis characteristic of Western philosophy. 108untu, on the other hand, is a lived system of norms.(This should not be taken to imply that it is chaotic, arbitrary or wholly irrational.From what we know of the concept, ubuntu is a coherent and reasoned system.) 109t is now being used, of the culture is that the life of another person is at least as valuable as one's own.Respect for the dignity of every person is integral to this concept.During violent conflicts and times when violent crime is rife, distraught members of society decry the loss of ubuntu.Thus heinous crimes are the antithesis of ubuntu.Treatment that is cruel, inhuman or degrading is bereft of ubuntu".
106 Cf Keep and Midgley "Emerging Role of Ubuntu-botho" 34, who reply that dignity can be interpreted as "beyond respect in an individualistic sense by incorporating an attitude of communality and inclusiveness: in other words, respect for dignity requires one not only to respect each member of society, but also to behave with dignity in ensuring that every member is given an opportunity to exercise his or her right to dignity to the full".Nevertheless, the authors say (at 33) that, although communalism is not unique to ubuntu, "a feature of Western legal thought is its use of concepts like rationality, reasonableness and equity and a strong emphasis on individualism and on freedom".Early Chancellors -known as "keepers of the King's conscience" 115 -were clerics, who obviously had a particular knowledge of canon law. 116Hence, the development of equity in English law owed much to canon law, which drew, in turn, from the principles of natural law, as espoused by St Thomas Aquinas, and even earlier by Greek and Roman philosophy. 117The origins of equity in religion have a clear resonance with ubuntu, which also finds its ultimate sanction in a spiritual realm: the departed ancestors who stand as guardians of the African moral order. 118 it happened, the English doctrine of equity was not received into South African law. 119Purists engaged in the bellum juridicum argued that an alien concept such as this would pollute Roman-Dutch law.Aside from which, equity was considered the unique product of a particular judicial system, with no place in our civil-law system, 120 which was already amply equipped with equitable remedies. 121deed, several institutions of Roman-Dutch law played the role of equity: unjust enrichment, public policy, good faith, the Bill of Rights (and, formerly, of course, the exceptio doli generalis).The rules of enrichment, for example, were there to correct situations of injustice caused by strict application of the common law. 122They differed from equity, however, in focusing on the specific enrichment of a defendant before determining whether it was unjust, and offering mainly compensation as opposed to a broader range of equitable remedies. 123st as the enrichment remedies have a fairly limited role to play in our law, so too do good faith and public policy.As we have seen above, in the context of contract, their range is not as pervasive as equity. 124Ubuntu, on the other hand, is being used to perform functions that go beyond both of the latter concepts.While public policy is informed by ubuntu, the converse is not necessarily true. 125Similarly, although ubuntu no doubt contains good faith, it can be realised in situations where the courts would refuse to invoke good faith. 126e supreme source of South Africa law, the Bill of Rights, has itself been mediated by ubuntu (as in the Port Elizabeth Municipality case). 127Mokgoro J said in S v Makwanyane: These values underlie, first and foremost, the whole idea of adopting a Bill of Fundamental Rights and Freedoms in a new legal order.They are central to the coherence of all the rights entrenched in Chapter 3 -where the right to life and the right to respect for and protection of human dignity are embodied in sections 9 and 10 respectively. 128

Conclusion
It therefore seems as if the South African courts have a metanorm, similar to equity.
If this is the case, we need to take care that we are not too quick to develop ubuntu in the same manner as equity.
In 1529 the post of the Chancellor was secularised, after which lawyers began to develop equity jurisdiction in the same casuistic manner as the common law. 129en these decisions came to be regarded as binding precedents -a process assisted by publication of the Chancellor's decisions -equity was treated in much the same way as the common law. 130It became a self-standing system, with its own rules and technicalities.As a result, the doctrine of equity is no longer accepted as a wholly beneficial adjunct to the common law. 132Although its strength lies in its flexibility and the possibility of achieving justice on a case-by-case basis, 133 equity jurisprudence has hardened into an institution sharing the same inflexibility as its common-law partner. 134Ironically, it can even result in inequitable outcomes. 135 should, therefore, hesitate before defining ubuntu and circumscribing its area of operation too soon.If we concede that meaning is not fixed in a primordial past, but that it is in the process of being shaped by courts, law-makers and scholars, ubuntu may be allowed free play to provide a new set of values and principles for our law.
These values and principles, however, are distinctively African.It must be remembered that ubuntu is a "loan word" in English, which suggests that it was adopted to signify a phenomenon that was never before expressed in its new environment.
A new word is a solution to a problem.Often the need is obvious, but sometimes it is unseen or barely felt, and then it is only in finding something to plug the gap that we actually realise the gap was there in the first place. 136untu involves more than entitlements to equal treatment or fair play.It also obliges the individual "to give the same respect, dignity, value and acceptance to each member of [the] community.More importantly, it regulates the exercise of rights by the emphasis it lays on sharing and co-responsibility and the mutual enjoyment of rights by all". 137ep and Midgley observe that there is "very little in the Bill of Rights that is ostensibly "African" or a reflection of African values".The response could be that we have "no need to look for such characteristics, for the Bill of Rights reflects universal 132 Allen Law in the Making 425, for one, doubts whether the doctrine was of benefit to English law in general.
14 Promotion of National Unity and Reconciliation Act 34 of 1995.15 Saul Equilibrium 94.16 for forgiveness in African society also underlay, at a deeper level, the amnesty process.54Althoughs33 of the 1996 Constitution and the Promotion of Administrative Justice Act 55 have formalised administrative decision-making, the technicalities of determining administrative action have left significant loopholes.In Fedsure Life Assurance v Greater Johannesburg Metropolitan Council, 56 the Court was concerned with budgetary resolutions, which were clearly not "administrative actions", because the Council had acted as a legislative body.The Constitutional Court nonetheless held that the exercise of public power was subject to a principle of legality.57Thisprincipleprovidesanewarea of discretion and potentially another occasion for asserting ubuntu.Legality has subsequently been invoked with regard to the President's power to appoint a commission of inquiry, 58 prematurely proclaiming a statute in force,59the dismissal of the head of the National Intelligence Agency, 60 and the exercise of the power of pardon.61Ubuntuhasbeenfar less welcome in the field of private law than public law.62Theconcept has most often been asserted in relation to the Prevention of Illegal Centre for the Study of Violence and Reconciliation 2010 3 SA 293 (CC) para 91.Greater Johannesburg Metropolitan Council 1999 1 SA 374 (CC) para 58: "It seems central to the conception of our constitutional order that the legislature and executive in every sphere are constrained by the principle that they may exercise no power and perform no function beyond that conferred upon them by law".In other words, the exercise of public power was to be properly sourced in the law: Minister for Justice and Constitutional Development v Chonco 2009 6 SA 1 (SCA) para 27.
Albutt v Centre for the Study of Violence and Reconciliation 2010 3 SA 293 (CC) paras 56, 59 per Ngcobo CJ.Froneman J noted (para 90) that our constitutional democracy was not merely representative, but also participatory (citing Doctors for Life International v Speaker of the National Assembly 2006 6 SA 416 (CC) para 121 and Matatiele Municipality v President of the RSA (No 2) 2007 6 SA 477 (CC) para 40, a principle that determined even the executive function.capacity 54 Albutt v 55 Promotion of Administrative Justice Act 3 of 2000.56 Fedsure Life Assurance v Greater Johannesburg Metropolitan Council 1999 1 SA 374 (CC).57 Fedsure Life Assurance v 59 Pharmaceutical Manufacturers Association of SA: in re President of the RSA 2000 2 SA 674 (CC) paras 85, 89, 90.60 Masetlha v President of the RSA 2008 1 SA 566 (CC) paras 78, 81.61 Albutt v Centre for the Study of Violence and Reconciliation 2010 3 SA 293 (CC) esp paras 68-69.
the rule of law.68In another context he said that: "[o]ur Constitution requires a court ... to weave the elements of humanity and compassion within the fabric of the formal structures of the law ... and to promote ... a caring society based on good neighbourliness and shared concern".69Inordertoachieve justice and equity, the courts have been obliged to adopt a variety of innovative approaches.70InTransnet t/a Spoornet v Informal Settlers of Good Hope and Others, 71 for example, the court ordered the applicant to conduct a survey so that it could properly assess "the needs and the rights of the persons presently illegally occupying the Rail Reserve and the prospect, if any, of relocating the communities to a safer and healthier site".
64 Wine v Zondani 2009 JOL 24358 (SE), citing Port Elizabeth Municipality below.65 Port Elizabeth Municipality v Various Occupiers 2005 1 SA 217 (CC).The court approved Port Elizabeth Municipality v Peoples Dialogue on Land and Shelter 2000 2 1074 (SECD), which in turn was quoted with approval by Olivier JA in Ndlovu v Ngcobo; Bekker v Jikka 2003 1 SA 113 (SCA) para 65. 66 Port Elizabeth Municipality v Various Occupiers 2005 1 SA 217 (CC) para 37. 67 In City of Johannesburg v Rand Properties (Pty) Ltd 2007 6 SA 417 (SCA) para 62 per Jahbay J quoting Judge Sachs at para 37. and 68 However, "[t]he necessary reconciliation can only be attempted by a close analysis of the actual specifics of each case": City of Johannesburg v Rand Properties (Pty) Ltd 2007 6 SA 417 (SCA) para 35.69 City of Johannesburg v Rand Properties (Pty) Ltd 2007 6 SA 417 (SCA) para 62; Port Elizabeth Municipality v Various Occupiers 2005 1 SA 217 (CC) para 37.
opportune moment to assert ubuntu arose in the case of Carmichele v Minister of Safety and Security, 77 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,78 Ryland v Edros1997 2 SA 690 (C) 708.73 S v Makwanyane 1995 3 SA 391 (CC) para 224.74 Badenhorst v Badenhorst 2005 JOL 13583 (C) para 24.75 Bhe v Magistrate, Khayelitsha 2005 1 BCLR 1 (CC) para 45.An In Bank of Lisbon v De Ornelas, 82 however, the former Appellate Division decided that the exceptio did not form part of our law.According to Joubert 78Davis 2008 SAJHR 321.79 It has a much broader scope suggesting that it is 91 Christie Law of Contract 16-17.See also Brisley v Drotsky 2002 4 SA 1 (SCA) para 95; Carmichele v Minister of Safety and Security 2001 4 SA 938 (CC); South African Forestry Co Ltd v York Timbers 2005 3 SA 323 (SCA).

modern African version of equity?
Constitution of the Republic of SouthAfrica, 1996: "Everyone has inherent dignity and the right to have their dignity respected and protected".Makwanyane 1995 3 SA 391 (CC) para 225: "An outstanding feature of ubuntu in a community sense is the value it puts on life and human dignity.The dominant theme however, must be countered.TheWestern conception of dignity envisages the individual as the right-bearer, whereas ubuntu sees the individual as embedded in a community.106Thoseexploring dignity jurisprudence in South Africa, would concede 104 Section 10 105 See, for example, S v

131 125
Barkhuizen v Napier 2007 7 BCLR 691 (CC) para51.126Inorder to achieve simple justice between individuals.Cf Van der Merwe Contract above.Port Elizabeth Municipality v VariousOccupiers 2005 1 SA 217 (CC) para 37, where Sachs J affirmed that the spirit of ubuntu-botho "suffuses the whole constitutional order", combining individual rights with a communitarian philosophy and providing "a structured, institutionalised and operational declaration in our evolving new society of the need for human interdependence, respect and concern".Previously, with reference to the interim Constitution, Madala J expressed similar sentiments: S v Makwanyane 1995 3 SA 391 (CC) para 237.
Lotz JG "Enrichment" in Joubert WA and Faris JA (eds)The Law of South Africa (LexisNexis Butterworths Durban 2005) Vol 9 Equity and the Law of Trusts 9 th ed(Butterworths London 2001) 133 Zweigert and Kötz Introduction to Comparative Law 196.134 Kiralfy Historical Introduction 569.135 Allen Law in the Making 425.136 Hitchings Secret Life of Words 5.