In the light of those principles, it considered that the method of protest envisaged by the defendants would be carried out in a manner which could not be interpreted as the “proper exercise of a right”. [80] The usefulness of this analysis lies in linking Ubuntu to maxims such as the Golden Rule. Khumalo J reminds us that Ubuntu overlaps with other important ethical and legal terms. Just as the Makwanyane Court sought to highlight how Ubuntu`s values align with and complement other values in the Bill of Rights, Justice Khumalo asserted that Ubuntu reflects many historical principles of law and ethics that still play a role in the conduct of justice today. Objections to Ubuntu as two general and vague, non-legal terms, unsuited to modern conditions that favor the interests of insiders and majorities, and are prone to manipulation to achieve political and ideological goals, are all addressed. We also examined the critique of the conceptualization of Ubuntu as a legal term, ranging from its ambiguity and redundancy to the perception of dichotomies and issues of exclusion. While most of the criticism was rejected, the paper has limited confirmation of the criticism of Ubuntu`s ambiguity and acknowledged the need for discussion and debate focused on gaining a common understanding of it. The paper also questioned how courts have uncritically applied the legal concept of Ubuntu, without referring to African sources to illustrate its importance in different contexts, and without questioning its compatibility with the Bill of Rights. The minority view, on the other hand, noted that contract law could no longer be limited to the colonial legal traditions that shaped and developed the common law before the advent of post-apartheid democracy. In his view, the idea that people can row companies to negotiate for business reasons “certainly involves Ubuntu.” [210] Most of the cases discussed in this section seem to use Ubuntu without discussing its nature in detail. Nevertheless, the extension of Ubuntu`s principles to areas of law other than restorative justice is worth considering. The wide variety of contexts illustrates the potential penetration of these principles into the pursuit of justice, dignity, freedom and equality.

In particular, a restorative justice issue has emerged in case law, encompassing customary law, eviction, defamation and criminal cases. This article examines the scope and content of Ubuntu as pronounced by the judiciary in various cases, and shows that its core elements of respect, municipalism, reconciliation, and inclusion enhance the landscape of constitutional interpretation. Two important periods are highlighted in the development of Ubuntu, which are marked by the constitutional decisions of Makwanyane and PE Municipality respectively. The former created the central development path for Ubuntu, while the latter marked the beginning of the thematic evolution of the concept towards restorative justice. In addition, the article takes a critical look at the use of Ubuntu, criticizing the conceptualization of Ubuntu as a legal term, ranging from its ambiguity and redundancy to perceptions of dichotomies and issues of exclusion. The paper also questions how the courts have uncritically applied the legal concept of Ubuntu, without referring to African sources to illustrate its importance in different contexts, and without questioning its compatibility with the Bill of Rights. Finally, it seeks to uncover the links between Ubuntu and the values underlying the Bill of Rights. Keep and Midgley point out that the pluralistic legal culture they envision is achievable in part because of the significant overlap between the values embodied by so-called Western models of human rights and those espoused by the concept of Ubuntu. A truly pluralistic South African legal culture requires a synthesis or harmonization of Western and African values. [12] Keep and Midgley advocate what might be called a “teleological” approach to values—one that focuses on what a given value seeks to achieve, rather than obsessing over its historical origin—and it is this approach that they argue enables the process of harmonization.

[13] As we shall see, the Constitutional Court has consistently highlighted the overlap between Ubuntu, the rights enshrined in the Constitution, and emerging international legal norms. As we can see from the statements of Mokgoro and Mohamed JJ, Ubuntu is closely tied to fundamentally social values. Langa J emphasized his community spirit, explaining that an Ubuntu culture “values community and the interdependence of a community`s members.” [31] It recognizes the humanity of every human being and the right of all peoples to “unconditional respect, dignity, worth and acceptance” of their own community. [32] It is important that these rights also imply the opposite: every human being has the corresponding duty to show each member of this community the same respect, dignity, value and acceptance. The ideas of mutual enjoyment of rights, sharing and co-responsibility are inherent in this community. [33] Justice Patel stated that the essential basis of South Africa`s constitution and democracy was Ubuntu.