The Constitution as the Supreme Law

• Section 2 of the Constitution states that the Constitution is the supreme law of South
Africa.
• Any law or conduct inconsistent with the Constitution is invalid.
• All people, institutions (like companies, schools), government branches, legislation, and
common/customary law must comply with the Constitution.
• Section 8(1) and (2) binds the legislature, executive, judiciary, organs of state, natural
persons (individuals), and juristic persons (like companies) to the Bill of Rights.
• The Constitution guides the development of common law and requires the government
to create laws that promote human rights (e.g., section 9(4) requires laws to prevent
unfair discrimination).

The Bill of Rights (Chapter 2)

• The Bill of Rights is a fundamental part of democracy in South Africa, affirming human
dignity, equality, and freedom (Section 7(1)).
• The government must respect, protect, promote, and fulfill these rights (Section 7(2)).
• Human rights in the Bill of Rights are:
o Judicially enforceable,
o Universal,
o Exist regardless of government recognition,
o Place duties on individuals and governments,
o Set minimum social and governmental standards.

Application of the Bill of Rights

• Who benefits? Both natural persons (everyone, with some exceptions like political rights
only for citizens) and juristic persons (entities like companies) can benefit.
• Juristic persons can claim rights where appropriate (e.g., companies can claim freedom of
expression but not rights like human dignity or life).
• Section 8(1) and (2) make it clear that natural persons, juristic persons, and state organs
are bound by the Bill of Rights.
• To be a juristic person, an entity must have internal legal authority and exist
independently of its members.

Direct and Indirect Application of the Bill of Rights

• Indirect application: Courts interpret laws to align with the Bill of Rights before declaring
them unconstitutional.
• Direct application: Courts can declare laws or parts unconstitutional if they conflict with
the Bill of Rights.
 • Section 39(1) directs courts to interpret the Bill of Rights promoting democratic values,
considering international law, and possibly foreign law.

Constitutional Principles (Chapter 3 of the South African Constitution)

• Role of Government Spheres and Organs of State:

o All spheres of government (national, provincial, local) and organs of state must
preserve peace, unity, and promote the well-being of South Africans.
o An organ of state (Section 239) includes any government department or
institution exercising constitutional or public powers/functions.
• Cooperative Government:
o Government spheres and organs of state must cooperate with mutual trust and
friendly relations.
o This reflects the principle of cooperative government, emphasizing interrelated
and mutually supportive working relationships.
o However, each sphere or organ must respect the geographical, functional, and
institutional independence of others—no intrusion is allowed, preserving a
degree of autonomy.
• Separation of Powers and Checks and Balances:
o Although not explicitly stated, the Constitution implies the separation of powers
among the legislature, executive, and judiciary.
o This separation prevents excessive concentration of power in one branch (unlike
the old system where executive power was unchecked).
o There should be some interaction between these branches to ensure effective
governance.
o The judiciary plays a key role in overseeing that the executive acts according to
the Constitution.
o This oversight is called checks and balances, where courts can intervene if the
executive violates constitutional rights.
o The Grootboom judgment is an example where the courts enforced constitutional
compliance by the executive.

The Bill of Rights (Chapter 2 of the Constitution)

• Enshrines the basic, universal human rights of all people.

These rights are not dependent on sex, nationality, race, religion, or culture.
No government, institution, or person may interfere with these rights unless in terms of
the Constitution.
• Interpretation of Human Rights
• Rights like "freedom" or "when life begins" can have different meanings for different
people.
 Cultural, religious, family, and educational backgrounds influence our views.
These differences should be respected in a diverse society, as long as public order is not
violated.
• Discuss those human rights that may lend themselves to differences in
meaning and give examples
• Freedom of religion – Different faiths interpret beliefs and practices differently.
Right to life – Can be debated in cases like abortion or euthanasia.
Freedom of expression – What one sees as free speech, another may see as hate speech.
Human dignity – Different cultures may define dignity differently.
These rights are open to interpretation and can be controversial depending on context.
• Discuss those human rights that do not lend themselves to major differences in
meaning and contentiousness
• Right to education – Broad agreement that everyone should have access.
Right to access housing – Universally seen as essential for human dignity.
Right to healthcare – Few would dispute the importance of medical care.
Right to clean water and food – Basic needs with little room for interpretation.
Freedom from torture or slavery – Universally condemned.
• Civil and Political Rights (First Generation Rights)
• Focus on individual freedoms and participation in civil life.
Examples: right to life, dignity, freedom of speech, religion, political rights, association,
assembly, movement.
These rights are immediate, enforceable, and require the state to refrain from
interference.
• Economic, Social and Cultural Rights (Second Generation Rights)
• Focus on improving living standards and dignity.
Examples: right to housing, healthcare, education, and labour rights.
Require state resources and planning for progressive realisation.
In South Africa, these rights are justiciable (can be enforced in court).
• Environmental Rights (Third Generation Rights)
• Emerged in the 1980s due to global issues.
Examples: right to a clean environment, right to peace.
Require cooperation between governments and are hard to enforce.
Crucial for sustainable development and environmental protection.
• Who Can Use the Bill of Rights?
• In South Africa and India, courts are accessible not just to individuals directly affected.
Section 38 of the Constitution allows:
Anyone acting in their own interest
Anyone acting for someone unable to act
Members of a group or class
Anyone acting in the public interest
Associations acting on behalf of their members
This improves access to justice, especially for vulnerable communities.
4.6 Approaches used to interpret legislation

• Courts must decide if a law applies to a situation through interpretation.

• Four main approaches to statutory interpretation:
1. Textual approach
2. Purposive approach
3. Contextual approach
4. Influence of international and foreign law
• The Constitution is the starting point for interpreting legislation.
• Interpretation should advance identifiable values in the Bill of Rights and comply with the
Constitution.
• Section 1 of the Constitution establishes South Africa as a sovereign state founded on
human dignity, non-racialism, sexism, and supremacy of the Constitution as the rule of
law.
• Section 233 requires courts to prefer interpretations consistent with international law.
• South Africa considers international trends despite being sovereign.

4.6.1 Textual approach

• Focuses on the exact wording of the statute.

• Gives words their ordinary grammatical meaning.
• Applies the law as written without referring to other sources if wording is clear.
• Example:
o Unemployment Insurance Amendment Act 10 of 2016 explicitly extends benefits
to learners and civil servants.
• Relies solely on the language used in the statute.

4.6.2 Purposive approach

• Seeks to understand the reason or purpose behind the law.

• Applied when the wording is unclear or ambiguous.
• Courts consider the social, political, or economic context of the law’s enactment.
• Example:
o Labour Relations Act 66 of 1995 addresses fairness and equal treatment in the
workplace to counter apartheid-era inequalities.
o Affirmative action introduced by the Employment Equity Act addresses historical
imbalances.
• Mokgoro J emphasized that the Constitution requires a purposive approach to statutory
interpretation.
• Courts avoid purposive interpretation if the law’s wording is clear (per Standard Bank
case).
• Courts may look at legislative documents (travaux préparatoires) for clarity (per
Mansingh v General Council of the Bar).
4.6.3 Contextual approach

• Places legislation within real-life circumstances and broader context.

• Helps identify the scope, beneficiaries, and application of the law.
• Considers:
o Historical and political events leading to the law’s enactment
o The rest of the legislative text
o Commission reports and parliamentary debates

4.6.4 Historical and political events

• Understanding South Africa’s apartheid history is key to interpretation.

• Apartheid laws oppressed the majority and lacked human rights protections.
• Laws served minority interests and promoted racism and unfair treatment.
• After apartheid, the Constitution and new laws protect human dignity and equality.
• Significant events like Nelson Mandela’s release and negotiations led to the new rights-
based Constitution.
• Courts place great importance on this history to give laws meaning.
• Example:
o Independent Electoral Commission Act 51 of 1996 was enacted to guarantee
voting rights for all South Africans.

4.6.5 Textual content of legislation

• The drafting history and negotiation records of the Constitution help interpret laws.
• Lawmakers’ statements during constitutional drafting provide insight into legislative
intent.
• Courts interpret statutes to ensure constitutional compliance.
• Example:
o Constitutional Court in Oudtshoorn Municipality case stressed considering
language, purpose, and context to interpret statutes.

Commission reports and parliamentary debates

• Courts sometimes reference commission reports and parliamentary debates to clarify

legislative intent.
• Examples:
o Western Cape Provincial Government: In re DVB Behuising (2001) used
parliamentary debates.
o Chairperson of the National Council of Provinces v Malema (2016) referenced
parliamentary debates to assess freedom of expression claims.
o De Reuck v Director of Public Prosecutions (2003) cited parliamentary debates,
task team reports, and academic views in interpreting the Films and Publications
Act 65 of 1996.
3.2 The History of Our Constitution

• South Africa has had multiple constitutions before 1996, including the 1963 Constitution
and the 1983 Tricameral Constitution.
• These earlier constitutions mainly served the interests of the white minority and did not
represent all citizens.
• Before 1994, South Africa was a system of parliamentary sovereignty, meaning
Parliament could make any law following procedure, and courts could not override laws
that violated human rights.

3.2.1 The Interim Constitution

• Came into effect on 27 April 1994, the date of the first democratic elections.
• Marked the transition from apartheid to a democracy based on equality and human
rights.
• Legally protected all citizens’ rights regardless of race, sex, sexual orientation, religion, or
culture.
• Ended legal discrimination and favoritism of any group.
• Served as a temporary constitution paving the way for the Final Constitution.

3.2.2 The Final Constitution

• Adopted in 1996, it is the supreme law of South Africa.

• All government branches, laws, and individuals must comply with its principles, values,
and rights.
• Courts gained independent power to review and challenge laws and conduct against the
Constitution.
• Important parts, like Section 1 (values) and the Bill of Rights (Chapter 2), are entrenched
and cannot be easily amended by Parliament.
• Entrenchment protects the permanence of key constitutional principles and rights.

12.1 South African Constitutional Law

• Nation and Government:

o A nation forms when a group controls a specific territory and manages internal
(government-subject) and external (government-other states) relations.
o Constitutional law regulates how government functions.
• State and Government:
o Terms "state" and "government" are used synonymously in this context.
• Government Power and Limits:
o Government needs sufficient power to govern effectively.
o Power must follow guidelines to prevent chaos and abuse.
 o The Constitution’s values, principles, and human rights form the legal foundation
ensuring proper relations between government and people, and among citizens.

12.1.1 The Way Government Functions

• The Constitution regulates both government functioning and human rights protection.
• Previous chapters cover:
o Legislative functions (Chapter 4)
o Judicial authority and court structure (Chapters 6 & 10)
o Administrative law and state organs’ functions (Chapter 13 upcoming)
• Values and principles in the Constitution guide how government should operate.

12.1.2 Values of the Constitution

• Values are moral norms that guide society and governance.

• Section 1 of the Constitution declares South Africa a sovereign, democratic state based
on these values:
o Human dignity, equality, and advancement of human rights and freedoms
o Non-racialism and non-sexism
o Supremacy of the Constitution and rule of law
o Universal adult suffrage, national common voters’ roll, regular elections, and a
multi-party democratic government ensuring accountability, responsiveness, and
openness.
• Key Definitions:
o Sovereign = possessing supreme power
o Dignity = inherent human value and self-worth
o Accountability = government responsible to the people

12.1.3 Principles of the Constitution

• Constitutional principles help government protect all societal interests.

• Examples include:
o Cooperative government
o Separation of powers
o Checks and balances
o Rule of law
o Democracy
• Although not explicitly mentioned, separation of powers and checks and balances are
implied by the Constitution.
• These principles influence all branches of law.
• The chapter highlights the importance of the rule of law and democracy in detail.
Rule of Law

• Definition:
o The law is supreme, and both government and citizens must obey it equally.
o Law must be clear and applied equally regardless of race, gender, sexual
orientation, religion, or culture.
• Fundamental Rights:
o The government must respect basic human rights such as dignity, equality, and
life.
• Substantive and Procedural Aspects:
o Substantive: Content of laws, e.g., freedom of expression.
o Procedural: Fair legal procedures for enforcing rights, including impartial
enforcement by independent courts without arbitrary action.
• Rule of Law as Principle and Value:
o It underpins constitutional values and human rights, including access to courts
and fair trials.
o Emphasizes judicial independence, which was lacking before 1994 but is now
fundamental.

Democracy

• Origin:
o From Greek demos (people) and kratos (rule), meaning “the people rule.”
• Types of Democracy Recognized in the Constitution:
1. Representative Democracy:
▪ Citizens elect representatives or political parties to make decisions and
govern on their behalf.
▪ South Africa operates as a representative democracy with multiple
political parties.
2. Participatory Democracy:
▪ Citizens actively engage in decision-making beyond voting, such as
commenting on draft legislation (bills).
▪ Includes civil society involvement and the role of amicus curiae (friends of
the court) in providing expert opinions in court cases.
3. Direct Democracy:
▪ Citizens directly participate in decisions without representatives, e.g.,
referendums on major issues like marriage equality.
▪ Important for giving all adults the chance to influence critical national
decisions.

24.2 The South African Legal System and Legal Theories

• Apartheid Era Legal System:

 o Based on the doctrine of parliamentary supremacy, where Parliament’s laws were
supreme.
o Parliament was elected only by the white minority, excluding 80% of the
population—thus not truly democratic.
o Laws enforced racial discrimination, controlling where people could live, marry,
work, and be educated (e.g., Group Areas Act, Prohibition of Mixed Marriages
Act).
o Non-white people were removed from voter rolls; civil disobedience was harshly
punished.
o Segregation laws controlled public amenities and transport use.
• Repressive Measures:
o Laws allowed indefinite detention and solitary confinement without court
challenge.
o Authorities had wide discretionary powers, including bail refusals and detention
based on suspicion.
o Courts were often asked to enforce these unjust laws.
• Legal Positivism vs. Natural Law:
o Judges often applied positivism: enforcing laws as they are, regardless of moral
considerations.
o This led to moral conflict as judges struggled with enforcing oppressive laws.
o Natural law theory emphasized universal human rights, arguing that black South
Africans had a moral right to political participation despite legal exclusion.
• Post-Apartheid Constitutional Breakthrough:
o The Interim and Final Constitutions of 1996 marked a clear break from apartheid.
o Section 1 of the Constitution sets the democratic foundation based on:
▪ Human dignity, equality, and human rights
▪ Non-racialism and non-sexism
▪ Supremacy of the Constitution and the rule of law
▪ Universal adult suffrage, regular elections, multi-party democracy
ensuring accountability and openness
• Bill of Rights:
o Section 7(1) declares the Bill of Rights as a cornerstone of democracy, affirming
human dignity, equality, and freedom for all.

4.6.4 Historical and Political Events

• Understanding the historical and political context helps clarify the purpose of legislation.
• During apartheid, South African laws were arbitrary and oppressive, targeting mainly
non-white citizens.
• The apartheid regime lacked a constitution protecting human rights; laws promoted
racism and unfair treatment of the majority.
• The majority population was excluded from voting; initially, only white people could vote,
later extended to Coloured and Indian people.
 • A major turning point was in 1990 when Nelson Mandela was released after 27 years in
prison for opposing apartheid.
• Mandela, with other leaders like F.W. de Klerk, negotiated a new Constitution to protect
and promote human rights.
• Courts give great importance to South Africa’s history when interpreting legislation, using
it to inform textual, purposive, or contextual meanings.
• Example: The Independent Electoral Commission Act 51 of 1996 was enacted to grant
voting rights to all South Africans.

3.1 What is a Constitution?

• Historical Background:
The South African Constitution emerged after a long history marked by white minority
rule, racism, and gender discrimination. Many heroes fought against these injustices,
paving the way for a Constitution grounded in moral values such as freedom, human
dignity, equality, and democracy.
• Comparison to the Wheel:
Just as the wheel was a revolutionary invention that took centuries to develop, the
Constitution is the result of centuries of philosophical, legal, and social development. It is
the foundational “prescriptive formula” for organizing society.
• Global Context:
Like constitutions in countries such as the USA, Canada, and Germany, South Africa’s
Constitution reflects core principles and values that guide governance and protect
citizens’ rights.
• Purpose and Function:
The Constitution is a special and fundamental law that includes the most important rules
for how government and society operate. It:
o Contains constitutional principles, values, and rights (e.g., human dignity,
freedom, equality, democracy).
o Regulates power by setting limits on how those in authority may exercise their
powers.
o Aims to harmonize and protect the interests of all people living in South Africa.
• The Role of Power and Law:
Using the analogy of people stranded on an island:
o Some people possess power (e.g., hunting skills, intelligence).
o Without laws, these powers might be abused for personal gain, harming the
group.
o Laws ensure that power is used for the benefit of the whole group.
o Similarly, in society, power (such as the police and defense forces) must be
regulated by law.
o When law based on moral values dominates power, governance serves the public
interest.
o If political power dominates law, it can lead to dictatorship and harm society.
 • Moral Values and Natural Law:
Moral values such as respect for human dignity and equality are the foundation of
constitutional law. They are widely accepted principles that guide what is just and fair.
• Complex Constitutional Questions:
The Constitution addresses many important issues, such as:
o The extent to which courts can assess legislation or conduct, especially on
controversial issues like the death penalty or abortion.
o Whether the majority’s views should always determine public interest or if
minority rights must also be protected.
o How to interpret rights in the Bill of Rights.
o How political power should be structured among the executive, judiciary, and
legislature.
o When and how rights can be limited.
• Public Interest:
Public interest refers to what benefits society as a whole. However, defining public
interest is not always straightforward because of differing opinions on issues like
pornography, prostitution, euthanasia, abortion, and religion in schools.
• Supremacy of the Constitution:
o Section 2 of the Constitution states: “The Constitution is the supreme law of the
Republic; law or conduct inconsistent with it is invalid.”
o All laws, including national/provincial legislation, common law, and customary
law, must align with the Constitution unless proven otherwise.
• South Africa as a Constitutional Democracy:
o Since 1994, South Africa has been a constitutional democracy, meaning:
▪ The government is elected by the people or their representatives.
▪ The government operates under a supreme Constitution.
▪ No law or conduct can violate constitutional principles or rights.
o The Bill of Rights binds the government, natural persons, and juristic persons
alike.

13.3 The constitutional right to just administrative action

• Historical Context:
Before 1994, South Africa operated under parliamentary sovereignty, where Parliament
was the highest authority, and courts could not question administrative actions—even if
unreasonable or unfair. The apartheid government used this power to enforce unjust
laws.
• New Phase Post-1994:
The Interim Constitution abolished parliamentary sovereignty, making the Constitution
the supreme law. The 1996 Constitution and PAJA require public administration to act
fairly, lawfully, and in accordance with the Constitution, serving the interests of all South
Africans.
13.3.1 Section 33: the right to just administrative action

• Everyone has the right to just (fair) administrative action.

• Administrative action must be:
o Reasonable,
o Lawful,
o Procedurally fair (e.g., people should be informed in advance and allowed to
respond).
• People have the right to request written reasons if administrative action negatively
affects them.
• National legislation (such as PAJA) must give effect to these rights.
• Summary of rights under section 33:
o Fair and reasonable administrative action within the law,
o Written reasons for adverse administrative decisions,
o The right to challenge incorrect decisions.
• Section 33 guarantees just administrative action as a fundamental constitutional right.

13.3.2 Section 195: basic values and principles governing public administration

• Public administration must follow the democratic values and principles of the
Constitution, including:
o Promotion and maintenance of high professional ethics,
o Efficient, economical, and effective use of resources,
o Being development-oriented,
o Providing services impartially, fairly, equitably, and without bias,
o Responding to people’s needs and encouraging public participation in policy-
making,
o Accountability of public administration,
o Transparency through timely, accessible, and accurate information,
o Good human-resource management and career development to maximize
potential,
o Being broadly representative of the South African people.

3.3.2 Constitutional principles

• Preservation of peace and well-being:

All spheres of government and organs of state must work to preserve South Africa’s
peace and unity and secure the well-being of its people.
• Definition of an organ of state:
According to section 239 of the Constitution, an organ of state includes any department
or institution exercising constitutional or public power or functions under legislation.

Cooperative government
 • Spheres of government and organs of state must cooperate based on mutual trust and
friendly relations.
• This reflects the principle of cooperative government, promoting interrelated and
collaborative working relationships.
• However, they must respect the geographical, functional, and institutional integrity of
each other’s governance areas, allowing for a degree of independence.

Separation of powers and checks and balances

• The Constitution indirectly reflects the principle of separation of powers by dividing

government authority among the legislature, executive, and judiciary.
• This division prevents excessive concentration of power in one entity or person.
• Past South Africa under parliamentary sovereignty showed dangers of excessive
executive power without judicial oversight.
• The separation should not be rigid; some interaction is necessary to ensure government
functions effectively.
• The principle of checks and balances ensures that, for example, courts monitor the
executive’s compliance with the Constitution and require corrective action when needed.
• The Grootboom judgment illustrates how courts enforce constitutional adherence by the
executive.

Transformative Constructionism

• The South African Constitution aims to transform the country from a history of division
and inequality into a society founded on equality, dignity, and freedom.
• Unlike many constitutions, it does not seek to maintain the status quo but instead
changes material conditions of society.
• The Constitution must be understood in its historical context, considering South
Africa’s past oppression under apartheid and the negotiated drafting process in the
1990s.
• It embodies substantive equality, allowing for measures like affirmative action to
address social inequalities.
• The Constitution includes justiciable socio-economic rights, enabling citizens to
challenge unfair material conditions in court.
• Transformative constitutionalism is the idea that the Constitution actively promotes
societal transformation through law.
• It involves a legal reasoning approach that recognizes the influence of morality and
politics in interpreting the law.
• Lawyers must understand how law impacts power relations, access to resources, and
human dignity.
• At its core, transformative constitutionalism uses law to help society progress toward a
better, more just version of itself, involving engagement with fundamental moral and
political ideas
 3.4.5

• Chapter 9 establishes state institutions to strengthen democracy in South Africa.

• Examples of these institutions include:
o Human Rights Commission: promotes and protects human rights and a culture of
human rights.
o Commission for Gender Equality: promotes respect for women’s rights.
o Auditor-General: audits and verifies the accuracy of government financial
statements.
o Independent Electoral Commission: manages elections fairly and impartially.

Decoloniality, ubuntu and human rights in South Africa: a bridge to social

justice

A. Introduction

• Colonisation in Africa lasted until the 1960s but Eurocentric knowledge systems still
dominate.
• Decoloniality emerged as a political movement in the 1960s, critiquing Western
imperialist knowledge and empowering African people.
• Since 2015, student protests in South Africa revived debates on decolonising institutions
and structures.
• South Africa’s 1996 Constitution aims for social justice but the legal system still retains
colonial-era laws (Roman-Dutch and English law).
• Courts have tried to integrate African values like ubuntu (communitarian ethic of care)
into law.
• The key question: Does the Western liberal constitutional approach sufficiently protect
human rights and social justice, or is ubuntu necessary for true decoloniality?

B. Decoloniality

• Decolonisation = physical removal of colonisers; Decoloniality = addressing lasting

colonial power structures and cultural patterns.
• Thinkers like Fanon describe psychological effects of colonialism, including "double
consciousness" where colonised people view themselves through colonisers’ standards.
• Coloniality shapes culture, labor, and knowledge beyond formal colonial rule.
• Post-independence African countries, including South Africa, struggled with true
decolonisation; South Africa’s apartheid system meant it wasn’t truly decolonised even
after independence.
• Recent academic discourse focuses on decolonising law and institutions.
C. The Decolonisation of the South African Legal System?

I. Common Law

• South Africa retained much common law and statutes from apartheid, with some
discriminatory laws repealed.
• Judicial discretion (section 39(2) of the Constitution) is used to develop law aligned with
constitutional values.
• Common law remains conservative, positivist, and literal, creating challenges for genuine
decolonial transformation.
• Some argue changes so far are superficial, and a more radical decolonial approach to
private law is needed.

II. Human Rights and Constitutionalism

• The human rights framework is critiqued for its Eurocentric origins, often ignoring
revolutions and contexts outside Europe/North America.
• South Africa adopts a transformative constitutionalism approach aiming to change
society morally and structurally.
• Klare’s concept of transformative constitutionalism includes social rights, equality,
affirmative duties, multiculturalism, and historical self-awareness.
• However, the Constitution’s historic self-awareness does not fully achieve decoloniality
because it insufficiently interrogates colonial injustice and African identity.

D. Ubuntu and Decoloniality

• Courts have used ubuntu to “Africanise” the legal system, emphasizing humanity,
compassion, and interdependence.
• Ubuntu was notably applied in abolishing the death penalty (S v Makwanyane) and
protecting vulnerable groups (PE Municipality v Various Occupiers).
• Ubuntu acts as an interpretive tool to promote fairness, care, and community values
within constitutional judgments.
• Critics like Ramose argue ubuntu’s deep connection to African religion cannot be fully
integrated into a secular constitutional framework.
• Ubuntu alone may not address historical injustices such as land dispossession under
apartheid laws.
• A comprehensive understanding of social justice must confront these colonial-era
injustices to build a new South African identity.

African Communitarianism and ubuntu in legal practice:

• Ubuntu’s Legal Use: Courts and the Interim Constitution have referenced ubuntu, but its
use as a legal approach, especially in lawyering, is less developed compared to other
approaches.
• Communitarian Focus: Ubuntu emphasizes community harmony rather than the lawyer
prioritizing the client’s autonomy alone.
• Lawyer’s Role: Lawyers should consider how their representation of clients contributes to
social harmony in the broader community.
• Alignment with Constitutional Values: This approach aligns with the South African
Constitution’s social, redistributive, and caring values, as noted by Justice Khampepe.
• Ubuntu Philosophy: The philosophy is captured in sayings like “umuntu ngumuntu
ngabantu” (a person is a person through other people), highlighting relational identity.
• Beyond Individualism: Ubuntu respects dignity and respect but does not support a legal
system solely serving individual interests.