Ubuntu
The Circle of Ubuntu
The foundational value of African customary law.
What ubuntu means
Ubuntu — "umuntu ngumuntu ngabantu" (a person is a person through other persons) — expresses humaneness, communal solidarity, dignity, compassion and reconciliation. It is the ethical foundation of customary law and a recognised constitutional value.
Ubuntu in the courts
Though ubuntu does not appear in the final Constitution's text, the courts have made it a constitutional value: it informed the abolition of the death penalty (Makwanyane), guides eviction decisions (Port Elizabeth Municipality), and shapes notions of good faith in contract (Everfresh).
Key Rule
Ubuntu = a person is a person through others: humaneness, solidarity, dignity, reconciliation. A foundational constitutional value (Makwanyane; Port Elizabeth Municipality).
Leading Cases
S v Makwanyane1995 (3) SA 391 (CC)Endorsed ubuntu as a foundational constitutional value emphasising human dignity and communal humaneness (in abolishing the death penalty).
Facts. The constitutionality of the death penalty was challenged in the Constitutional Court's first major judgment.
Legal question. Is the death penalty consistent with the Constitution, and what role does ubuntu play in the constitutional order?
Judgment. The Constitutional Court struck down the death penalty, several judges invoking ubuntu as a constitutional value.
Significance. The locus classicus for ubuntu as a foundational constitutional value, linking African values to the Bill of Rights.
Exam tip. Use Makwanyane as the source of ubuntu as a constitutional value; it shows African customary values shaping constitutional interpretation.
Port Elizabeth Municipality v Various Occupiers2005 (1) SA 217 (CC)Ubuntu informs the balancing of interests in eviction cases, requiring humaneness and mediation over formalism.
Facts. A municipality sought to evict unlawful occupiers from private land; the occupiers had nowhere else to go, raising the tension between property rights and the right to housing.
Legal question. How should courts approach eviction of unlawful occupiers, and what role does ubuntu play?
Judgment. The Constitutional Court refused the eviction on the facts, emphasising ubuntu, mediation and the need for a just-and-equitable enquiry.
Significance. A leading application of ubuntu to a modern socio-economic problem, showing its practical constitutional force beyond customary law.
Exam tip. Use Port Elizabeth Municipality to show ubuntu operating as a living constitutional value in eviction/housing law.
Land
The Communal Land
Communal tenure and indigenous land rights.
Communal tenure
Under customary law, land is typically held communally: the community (through its traditional authority) holds and administers the land, and members enjoy allocated use rights (to reside and cultivate) rather than individual ownership in the common-law sense — a system of nested rights.
Indigenous land rights
In Alexkor v Richtersveld Community the Constitutional Court recognised that a community held indigenous ownership of its land under customary law (including its minerals), surviving annexation — a landmark for customary land rights and restitution.
Legislative protection
Informal and customary land rights are protected by the Interim Protection of Informal Land Rights Act 31 of 1996 (IPILRA); earlier attempts at communal-tenure legislation (the Communal Land Rights Act) were struck down, and land-tenure reform remains unfinished.
Key Rule
Customary land is held communally with allocated use rights, administered by traditional authorities. Alexkor recognised indigenous ownership; IPILRA protects informal land rights.
Leading Case
Alexkor Ltd v Richtersveld Community2004 (5) SA 460 (CC)Recognised the community's indigenous (customary) ownership of its land and minerals, applying customary law as an independent source.
Facts. The Richtersveld community claimed restitution of land (rich in diamonds) from which it had been dispossessed. The question was whether the community had held rights in the land under indigenous law before annexation, and the status of customary law.
Legal question. Is customary law an independent source of law, and did the community hold indigenous ownership of its land under it?
Judgment. The Constitutional Court upheld the community's indigenous land rights and confirmed the constitutional status of customary law as an independent legal system.
Significance. The leading authority that customary law is an original, self-standing source of law equal to the common law, and a landmark for indigenous land rights and restitution.
Exam tip. Cite Alexkor for two propositions: customary law is an independent source (not subordinate to common law), and it recognises indigenous/communal land ownership.
Religious systems
The Other Personal Laws
Religious legal systems within the plural order.
Part of the plural order
Legal pluralism in SA includes religious personal-law systems — chiefly Muslim and Hindu personal law — which govern the marriage and family life of their communities alongside customary and common law.
From non-recognition to recognition
Religious marriages were historically not recognised as marriages because they were potentially polygynous (Ismail v Ismail). Courts then extended specific protections — e.g. the word "spouse" was read to include parties to Muslim marriages for succession and maintenance (Daniels v Campbell; Hassam v Jacobs) — and in Women's Legal Centre Trust the CC declared the non-recognition of Muslim marriages unconstitutional.
Key Rule
Religious personal law (Muslim, Hindu) is part of SA's plural order. Marriages moved from non-recognition (Ismail) to targeted recognition (Daniels, Hassam) to a declaration that non-recognition of Muslim marriages is unconstitutional (Women's Legal Centre Trust).
Common Mistake
Saying religious marriages are simply "not recognised". That is the old law — targeted recognition and the Women's Legal Centre Trust judgment have transformed the position.
Leading Cases
Daniels v Campbell NO2004 (5) SA 331 (CC)Read "spouse" to include a party to a monogamous Muslim marriage for intestate succession and maintenance.
Facts. The survivor of a monogamous Muslim marriage claimed as a "spouse" under the Intestate Succession Act and the Maintenance of Surviving Spouses Act, from which she was excluded because the marriage was not solemnised under the Marriage Act.
Legal question. Does "spouse" in those Acts include a party to a monogamous Muslim marriage?
Judgment. The Constitutional Court read "spouse" to include the Muslim widow, granting her the statutory protections.
Significance. A key step in the recognition of Muslim marriages within SA's plural legal order, for specific statutory purposes.
Exam tip. Use Daniels for the progressive recognition of religious marriages; note it covers monogamous Muslim marriages (Hassam extended it to polygynous ones).
Hassam v Jacobs NO2009 (5) SA 572 (CC)Extended intestate-succession protection to spouses in polygynous Muslim marriages.
Facts. A survivor of a polygynous Muslim marriage was excluded from the intestate-succession protection afforded to "spouses".
Legal question. Do spouses in polygynous Muslim marriages qualify for intestate-succession protection?
Judgment. The Constitutional Court extended intestate-succession protection to spouses in polygynous Muslim marriages.
Significance. Extends Daniels to polygynous Muslim marriages, deepening the recognition of religious personal law.
Exam tip. Pair Hassam with Daniels; both feed into the broader recognition confirmed in Women's Legal Centre Trust.
Women's Legal Centre Trust v President of the RSA2022 (5) SA 323 (CC)Declared the failure to recognise Muslim marriages unconstitutional, ordering interim relief pending legislation.
Facts. The State's continued failure to recognise Muslim marriages left spouses (especially women and children) without the protections of marriage law.
Legal question. Is the failure to recognise Muslim marriages as valid marriages unconstitutional?
Judgment. The Constitutional Court confirmed the invalidity and ordered interim measures pending reform.
Significance. The constitutional breakthrough on Muslim marriages within SA's plural legal order.
Exam tip. This is now the leading authority — avoid saying Muslim marriages are simply "not recognised".