An African Doctrine of Equity in South African Public Law

in European Journal of Comparative Law and Governance
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For the first time in the history of South African law, a typically African concept – Ubuntu – has been adopted into the common law of the land (which is a mixture of English and Roman-Dutch law). Ever since colonial conquest, the indigenous normative orders of Africa have been treated as inferior. While South Africa’s new constitutional dispensation had the effect of elevating customary law to the same status as that of the common law, the traffic of ideas between the two systems continued to favour the latter as the superior system. The reception of ubuntu into the common law reversed this process. This paper examines the function of ubuntu in its new environment. Most of the discussion about the concept has concentrated on its meaning, a question that has been concentrated on finding a suitable English translation. The most obvious have been the calques, ‘humanity’, ‘personhood’ or ‘humaneness’, but none have been especially helpful, for they cannot hope to convey the full range of functions now performed by ubuntu. It is argued in this paper that searches for a priori meanings are unhelpful: words are continually being exploited by users to serve their own particular ends. In this regard, it must be appreciated that ubuntu is a loanword, and thus especially susceptible to manipulation. The paper shows that the courts have used ubuntu to supply a peculiarly African form of equity that has been used to solve hard cases and conflicts between rules, notably in the area of public law.

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  • 13)

    S. Afr. (Interim) Const. 1993.

  • 14)

    S. Afr. (Interim) Const. 1993.

  • 20)

    TRCsupra note 17 at 112 cited by Albutt v. Centre for the Study of Violence & Reconciliation 2010 (3) SA 293 (CC) at ¶ 58 (S. Afr.) per Ngcobo C.J.

  • 59)

    However“[t]he necessary reconciliation can only be attempted by a close analysis of the actual specifics of each case.” Id. at ¶ 35.

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  • 61)

    Davissupra note 51 at 321.

  • 73)

    Davissupra note 51 at 328.

  • 78)

    Hudsonsupra note 75 at 11.

  • 85)

    Hitchingssupra note 83 at 12.

  • 86)

    Van der Waltsupra note 62 at 530.

  • 90)

    Hudsonsupra note 75 at 15. See also Du Plessis supra note 89 at 242.

  • 100)

    Van Der Merwe et al.supra note 98 at 219.

  • 113)

    Ramosesupra note 10 at 40. In this sense it is akin to the Hindu notion of dharma which can be variously translated as “righteous duty law morality or religion.” Werner Menski Hindu Law: Beyond Tradition & Modernity 98 (O. U. P. 2003).

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