The Uses of Ubuntu under the South African Constitution

Nomfundo Ramalekana

Dr Nomfundo Ramalekana is a senior lecturer in public law at the University of Cape Town

A Constitution without Ubuntu

The South African Constitution has rightly come under criticism for, among other things, its embeddedness in what are considered 'western', 'Eurocentric', and liberal norms and values. This critique points to its silence on and exclusion of indigenous legal norms and values – Ubuntu being one. Although present in the postamble of the 1993 Interim Constitution, Ubuntu was subsequently dropped in the final 1996 constitutional text. For some, this exclusion is an embodiment of the ongoing epistemicide of African ways of knowing and being. At present, the only meaningful reference to indigenous law and legal systems is found in section 211(3) of the Constitution, which recognises customary law subject to its compliance with the Constitution and legislation enacted by parliament – a hierarchical relationship in which customary law is subordinate.

While well-founded, the critique of the South African Constitution’s exclusion of Ubuntu and other indigenous norms and values fails to account for the intellectual labour of judges and Black intellectuals in seeking to imbue the Constitution and its practice with African values and principles, specifically Ubuntu, and its potential contribution to addressing the epistemic injustice they have pointed out. That said, much more can be done to extend the epistemic repository from which judges and the broader community of constitutional interpreters draw from – starting with a deeper commitment to using Ubuntu and other African values in the quest to decolonise the law in South Africa.

Problems with the South African courts’ Ubuntu Jurisprudence

Despite its textual exclusion, several judges of the South African Constitutional Court have made attempts to construct a jurisprudence that draws on Ubuntu. In areas ranging from the law of delict, contract law, civil and political as well as socio-economic rights, these judges have reached outside of the text of the Constitution, using Ubuntu to identify new solutions to the legal questions before the Court and to bring a different understanding to the legal questions themselves. Unfortunately, a lot of this use of Ubuntu has been haphazard and under-theorised.

The haphazard and under-theorised use of Ubuntu can be explained by a range of factors. First, as noted by Judge Mokgoro in her extra-curial writing, the meaning of Ubuntu is not easy to translate into English. Defining, with the type of precision required by law, what some scholars have called “an African worldview” that is living and constantly evolving, poses a challenge to the Anglophone legal tradition’s commitment to precedent, legal certainty, consistency and stability. There is also likely some resistance rooted in South Africa’s relatively conservative legal culture and an unwillingness to look beyond the accepted canon in academic scholarship and in the courts’ comparative practice. It is no secret that South African judges, practitioners, and law schools continue to gaze North in the exercise of comparativism, drawing on the experiences of the usual suspects (the United States, Canada, and England) – compounding the hegemonic influence of the Anglophone legal tradition and the English language. In this way, it is arguable that South Africa’s current legal culture contributes to coloniality, what Maldonado-Torres has defined as “long-standing patterns of power that emerged as a result of colonialism, but that define culture, labour, intersubjective relations, and knowledge production well beyond the strict limits of colonial administrations”.

The barriers towards the use and development of Ubuntu and other indigenous legal norms and values highlighted above have arguably led to its haphazard use and underdevelopment. In relation to the latter, rather than develop a meaningful account of the meaning of Ubuntu, the courts have largely opted to describe it as being similar to the other values in the Constitution, specifically dignity. This approach is problematic because it ignores a rich body of scholarship, especially in African philosophy, which has sought to explore the meaning of Ubuntu as a living philosophy of African people. An engagement with this scholarship would, for example, have revealed and required a confrontation with Ubuntu’s communal thrust and the more individualistic values of dignity, equality and freedom (at least as they have been understood in South African legal scholarship and practice thus far).

A different way of reading the South African courts’ Ubuntu jurisprudence

It is not a surprise then, that the critics of the South African Constitution have made light of the court’s use of Ubuntu, labelling it as merely  an attempt to legitimise an illegitimate constitutional text and practice. Contrary to these critics, I think there is another way to view these uses of Ubuntu – as an attempt to reckon with the incompleteness of the Constitution. By referring to Ubuntu, even in the haphazard manner that we have seen thus far, the judges are broadening the landscape of epistemological and political possibilities. Of course, this can and should be done with a deeper and more explicit commitment to what this broadening can achieve, decentering Western, Eurocentric epistemologies (a necessary step towards the decolonisation of law). I think that by invoking the value of Ubuntu in its judgments, the courts have conjured a haunting over Western liberal values in the Constitution; this haunting can be a catalyst for remaking the Constitution and ourselves in a manner that restores what is lost while building for the future.

In essence, it is possible, I argue, for judges and the community of constitutional interpreters to embark on a journey of decolonising the law, within and through the current constitutional context by drawing on the available and wider set of epistemologies. For these actors, let us call them the ‘Ubuntu jurists’, to succeed in this work, they would have to commit to conceptual decolonisation, which includes asking questions and deriving solutions outside the settled epistemological landscape. This work would require the development of Ubuntu and other African ways of knowing and being on their own terms – not, as has been the practice, as an appendage to the Western, Eurocentric values which permeate the Courts' jurisprudence.

Language as a key instrument for our Ubuntu Jurist

Key tools for achieving conceptual decolonisation include the development of African legal thought in the many indigenous languages in Africa and a substantive change in our legal culture. This will necessarily begin with a commitment to legal education geared towards decolonisation, which includes teaching and learning in indigenous languages and expanding the canon of texts and other works (living customs, music and art of African peoples as expressions of legal values and norms) taught in the law classroom. While some of this work is underway, it is at its early stages. For example, a handful of judgments have been written in a language other than English and Afrikaans, one of which was written by the current Chief Justice of the South African Constitutional Court. Further, the Minister of Higher Education and Training has committed to extending teaching and learning to include indigenous languages, challenging the hegemony of English and Afrikaans in legal education and practice in South Africa. Just this week, the South African Journal on Human Rights, a leading law journal in South Africa, has published three articles that are a part of a special edition exploring the relationship between language and constitutional law and practice in South Africa.

Whether the project of decolonising law, at least in relation to ensuring that the scholarship and practice of law do not contribute to coloniality, will succeed, and what role Ubuntu will have, is unclear. The point is that the attempts which we have seen should be taken seriously – they are openings towards the adjacent possible. It may be that, as Ramose has argued, Ubuntu, as and African world view, cannot fit within the current constitutional paradigm in which the Constitution, with its embodiment of the conqueror’s world view, is supreme – but it cannot be that attempts made at expanding the range of available epistemologies have no role to play in addressing the epistemic injustice latent in the text and life of the South African Constitution.

Dr Nomfundo Ramalekana is a senior lecturer in public law at the University of Cape Town

Suggested Citation: Nomfundo Ramalekana, ‘The Uses of Ubuntu under the South African Constitution’ IACL-AIDC Blog (19 March 2026) The Uses of Ubuntu under the South African Constitution — IACL-IADC Blog