Cultural values as a source of law: Emerging trends of ubuntu jurisprudence in South Africa

Abstract

From time immemorial the cultural value which epitomises togetherness and 'caring for each other' in a community has been a way of life in various African communities, including that of South Africa. According to this value one is his or her brother's or sister's keeper. This philosophy, which developed into a way of life, was expressed before the period of Enlightenment in Europe, considered as foregrounding a human rights discourse. In other words, a human rights discourse in the form of caring for one another was a lived reality and experience in Africa in terms of the ubuntu philosophy. The aim of this article is to examine the emerging trends of the ubuntu jurisprudence in South Africa. The South African model is chosen for a case study for several reasons. The country peacefully transited the apartheid era to democracy, arguably under the guidance of ubuntu. The ubuntu philosophy possibly is part of a South African jurisprudence. Unlike Western philosophy expressed in abstract terms and focused on individualism, the uniqueness of ubuntu rests upon the need to secure social equilibrium, compassion, humaneness and a strong consideration of the other's humanity.