Ubuntu, Good Faith and Equity: Flexible Legal Principles in Developing a Contemporary Jurisprudence

July 1st, 2012

By Frank Diedrich (ed)

Cape Town: Juta Law

(2011) 1st edition

Price: R 125 (incl VAT)

168 pages (soft cover)

This publication is a welcome addition to the scant literature and information in an area that is increasingly receiving prominence in legal circles. The book is divided into nine chapters, each chapter being a paper presented at a conference in September 2010 at the North-West University, Potchefstroom on the topic ‘Ubuntu, Good Faith and Equity’. The contributors are academics and practitioners from various disciplines and their aim was to highlight the various facets of ubuntu, customary law and legal process as far as possible, although they do not claim to provide the final answers on the meaning and content of these concepts.

The contributors are well qualified to present ideas to the legal fraternity on the topic. The editor, Dr Frank Diedrich, is a professor at the Riga Graduate School of Law, Latvia and extraordinary professor at the North-West University.

Diedrich’s own contribution is titled ‘The procedural relationship between state law and customary law in civil and commercial matters’. He views the integration of an African word for ‘goodness’ and ‘humaneness’ into legal practice in South Africa as a challenge facing judges, academics and other law makers.

Equally informative to the legal relevance of the concept is the contribution by Professor Tom Bennett of the University of Cape Town. An acknowledged authority on customary law, his academic presentations have the distinctive feature of being reader-friendly and understandable.

In his paper titled ‘Ubuntu: An African equity’, he demonstrates that the end of apartheid gave South Africa a golden opportunity to break with the past of non-recognition or half-hearted recognition of customary law and give the legal system the prominence it deserves. However, calls to grasp the opportunity and ‘Africanise’ the country’s legal system fell on deaf ears.

Justice Yvonne Mokgoro has been credited with playing a role in the introduction of ubuntu into South African law. Her paper in this publication is titled ‘Ubuntu as a legal principle in an ever-changing world’. In her two-page article she states that ubuntu is a foundational value in traditional African society. She concludes that ubuntu has already informed the outcomes of some of the decisions before South African courts, for example Port Elizabeth Municipality v Various Occupiers 2005 (1) SA 217 (CC).

The saying ‘great minds think alike’ applies well to the various contributors to this interesting collection. These include the three contributions of Ilze Keevy of the University of the Free State, Seth Nthai and law lecturer Freddie Khunou, and Mwiza Jo Nkhatha of the University of Malawi. The theme of ‘kindness’ and ‘humanity’ surfaces in the Nthai and Khunou paper. Julia Sloth-Nielsen and Jacqui Gallinetti, both from the University of the Western Cape, contend that the Child Justice Act 75 of 2008 expresses a commitment to ubuntu. The other two contributors are overseas scholars Ulrich Spellenberg, who is a Professor Emeritus of the University of Bayreuth in Germany and Inga Svarca of the Max Planck Institute in Heidelberg, Germany, who goes further than other contributors such as Professor Bennett, stating that, in ubuntu, a concept of African customary law has been incorporated into South African constitutional law.

Objections to ubuntu include that the concept is too vague to be of any use; that it is redundant; and that, being associated with an African tradition, it is backward-looking and has little to offer the modern world (see the Bennett paper at 15 ff). The matter of utmost importance is its place in South Africa’s legal system. I would hasten to differ with the view that it is a ‘concept of African customary law’ as some of the writers suggest. ‘Humaneness’, ‘humanity’, ‘goodness’, ‘kindness’, etcetera are not confined to African communities and/or African jurisprudence. The danger of this approach is to cloud issues and distract attention from the serious issue facing the Constitutional Court and the legislature – the recognition of customary law as a legal system in its own right.

Digby Koyana is a Professor Emeritus at Walter Sisulu University in Mthatha.

This article was first published in De Rebus in 2012 (July) DR 57.