Although Justice Bertelsmann did not explicitly mention Ubuntu in Malueke, he advocated the consideration of restorative justice principles in criminal proceedings in S v. Sibiya,[123] this time with an explicit reference to Ubuntu. The accused had violated a protection order while serving a conditional sentence for a domestic violence conviction. The judge considered that a direct custodial sentence was the only appropriate sentence. Bertelsmann J. rejected this view. Serving a prison sentence would result in the offender`s job loss, which would be detrimental to the offender, his or her family and society. [124] Moreover, a prison sentence would expose him to the society of „experienced criminals,” whose denunciation would likely do more harm than good. [125] Bertelsmann J. found that a conditional sentence would have been and would have been more appropriate.[126] However, whatever ultimate role is determined for such open standards, they must be clearly defined. In the next Part III, I argue for a narrower and more commercially sensitive understanding of Ubuntu in the contract. A broader approach to the definition of Ubuntu and good faith is discussed in more detail in Part IV.
When you move from criminal misconduct to civil misconduct, the situation changes somewhat. It seems that Ubuntu „was much less welcome in the realm of private law than in the realm of public law.” [131] Bennett notes that Dikoko v Mokhatla[132] is the only case to date in which Ubuntu has had significant influence. Justices Sachs and Mokgoro were instrumental in applying Ubuntu`s restorative dimensions to tort law. 10 millions MB Ramose `L`éthique d`ubuntu` in PH Coetzee & APJ Roux (eds) Philosophy from Africa (2002) 324. Chapter 2, Part G, of Law 68 of 2008 on Consumer Protection gives a consumer the right to „fair, equitable and reasonable conditions” in contractual relations governed by law. Life and dignity are „like two sides of the same coin” and „the concept of Ubuntu embodies both,” according to Judge Mokgoro. [43] It cited with approval the statement in the preamble to the International Covenant on Civil and Political Rights that „human rights derive from the inherent dignity of the human person.” [44] She went on to explain, „In my opinion, it`s no different than that`s what the spirit of Ubuntu encompasses.” [45] In the PE Municipality case, the Court had to balance the residents` right to access adequate housing and their right not to be unlawfully evicted from their dwelling with the property rights of the landowner. [100] Articles 25 and 26 of the Constitution (dealing with property rights and property rights, respectively).
The Prevention of Unlawful Evictions and Illegal Land Occupation Act (PIE)[101] provides the constitutional and legal framework for this delicate balancing act. It seems fair to wonder whether Ubuntu`s values may conflict with those of the Bill of Rights, despite claims by several constitutional judges that Ubuntu serves to support and support the Bill of Rights and help interpret it. Ubuntu is a living value system, and if there is agreement with the normative value system of the Bill of Rights, it may be a happy coincidence rather than an inevitable outcome. Nevertheless, the idea that Ubuntu is fully compatible with the Bill of Rights is repeatedly expressed without explanation or supporting evidence. We wonder whether this idea should so easily be accepted as an undisputed hypothesis. The cultural value that embodies conviviality and „caring for each other” in a community has always been a way of life in various African communities, including South Africa. According to this value, one is the guardian of his brother or sister. This philosophy, which evolved into a way of life, was expressed before the Enlightenment in Europe, which was considered the foreground of a discourse on human rights. In other words, a discourse on human rights in the form of caring for each other was a reality and experience lived in Africa in the sense of Ubuntu philosophy. The objective of this article is to examine emerging trends in Ubuntu jurisprudence in South Africa. The South African model is chosen as the case study for several reasons.
The country has peacefully transitioned the era from apartheid to democracy, presumably under the leadership of Ubuntu. The Ubuntu philosophy can be part of South African jurisprudence. Unlike Western philosophy, which expresses itself in abstract terms and focuses on individualism, Ubuntu`s uniqueness stems from the need to ensure social balance, compassion, humanity, and a strong consideration of each other`s humanity.