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Ubuntu and the Law in South Africa
The concept of ubuntu and the social values it represents
The concept ubuntu, like many African concepts, is not easily definable. To define an African notion in a foreign language and from an abstract as opposed to a concrete approach to defy the very essence of the African world-view and can also be particularly elusive. I will therefore not in the least attempt to define the concept with precision. That would in any case be unattainable. In one's own experience, ubuntu it seems, is one of those things that you recognise when you see it. I will therefore only put forward some views which relate to the concept itself and like many who wrote on the subject, I can never claim the last word. In an attempt to define it, the concept has generally been described as a world-view of African societies and a determining factor in the formation of perceptions which influence social conduct.
It has also been described as a philosophy of life, which in its most fundamental sense represents personhood, humanity, humaneness and morality; a metaphor that describes group solidarity where such group solidarity is central to the survival of communities with a scarcity of resources, where the fundamental belief is that "motho ke motho ba batho ba bangwe/umuntu ngumuntu ngabantu" which, literally translated, means a person can only be a person through others. In other words the individual's whole existence is relative to that of the group: this is manifested in anti-individualistic conduct towards the survival of the group if the individual is to survive. It is a basically humanistic orientation towards fellow beings.
Kunene, however, warns against a superficial perception of the concept: For indeed, it is not enough to refer to the meaning and profound concept of ubuntuism merely as a social ideology. Ubuntu is the very quality that guarantees not only a separation between men, women and the beast, but the very fluctuating gradations that determine the relative quality of that essence. It is for that reason that we prefer to call it the potential of being human.
Such potential, he states can fluctuate from the lowest to the highest level during one's life-time, where there is constant harmony between the physicality and spirituality of life. That harmony is achieved through close and sympathetic social relations within the group - thus the notion "umuntu ngumuntu ngabantu/motho ke motho ka batho ba bangwe", which also implies that during one's life-time, one is constantly challenged by others, practically, to achieve self-fulfilment through a set of collective social ideals. Because the African world-view cannot be neatly categorised and defined, any definition would only be a simplification of a more expansive, flexible and philosophically accommodative idea.
The meaning of the concept however, becomes much clearer when its social value is highlighted. Group solidarity, conformity, compassion, respect, human dignity, humanistic orientation and collective unity have, among others been defined as key social values of ubuntu. Because of the expansive nature of the concept, its social value will always depend on the approach and the purpose for which it is depended on. Thus its value has also been viewed as a basis for a morality of co-operation, compassion, communalism and concern for the interests of the collective respect for the dignity of personhood, all the time emphasising the virtues of that dignity in social relationships and practices. For purposes of an ordered society, ubuntu was a prized value, an ideal to which age-old traditional African societies found no particular difficulty in striving for. This is so because these societies had their own traditional institutions which functioned on well-suited principles and practices. Of course in view of the influence and effect that various social forces had on African societies throughout their historical development, today, the well-suitedness of those original principles and practices is often questioned and in my view correctly so. Indeed, as Ali Mazrui observes,
"... Africa can never go back completely to its pre-colonial starting point but there may be a case for re-establishing contacts with familiar landmarks of modernisation under indigenous impetus."
But then, how often have we not heard that the imposition and assimilation of even those positive contributions of western notions, institutions and culture in African societies has not been very successful? Is the explanation for that shallowness based, as Ali Mazrui further opines, on that culture gap between the new structures and the ancient values, between alien institutions and ancestral traditions?
If there can be no reversion to the pre-colonial starting point, how then do we fill that cultural gap, where required, if we have to meet the constitutional challenges of the law that face us as South African lawyers today?
 Broodryk J Ubuntu in South Africa (LLD thesis UNISA