uBuntu as a constitutional value : a social justice perspective

Abstract

The preamble to the Constitution of the Republic of South Africa, 1996 (the Constitution) makes a commitment to social justice. This commitment is set against the background of a difficult and tumultuous past characterised by injustices and divisions. The commitment to realising a socially just society rests on all spheres of government, including the judiciary. The judiciary’s pursuit of social justice is also expressed as transformative constitutionalism, which requires the judiciary to approach adjudication in such a manner that it brings social change in the South African society. The notion of social justice has been linked to the concept of ubuntu as a constitutional value. The theoretical discussions on the role and functioning of constitutional values in South Africa are insufficient. Literature on ubuntu and social justice is more widespread. However, despite the existence of literature on ubuntu and social justice, there is none that links these two concepts or explicitly speaks of the constitutional functioning of ubuntu. This study thus sought to determine the ways in which ubuntu as a constitutional value can contribute to social justice when used by the judiciary. In establishing these linkages, this thesis unpacks the constitutional values to determine what their role and function should be during adjudication. The study then proceeds to arrive at a suitable legal understanding of ubuntu and social justice. This study does not settle on one specific framework of social justice but identifies three frameworks that could be utilised during adjudication. Specific frameworks of social justice that are suitable and aligned with transformative constitutionalism are identified. The ways in which elements from these frameworks are represented in the value of ubuntu are analysed. The study finds that courts contribute to the realisation of social justice by using the value of ubuntu as this value demands certain considerations to be brought forward in judicial matters. This includes different types of marginalisations and oppressions individuals and groups may face. This study makes an original contribution by being the first to determine the manner in which ubuntu as a constitutional value aids the judiciary in contributing to the realisation of social justice in South Africa.