Exploring the principle of ubuntu in the South African criminal law system

LL.M.Abstract: The principle of ubuntu, although an age old African principle was first given content in South Africa’s jurisprudence in the landmark case of S v Makwanyane 1995 3 SA 391 (CC). The court reminded us of the meaning of the principle as well as it’s compatibility with our Fundamental Human Rights as entrenched in the Constitution. The purpose of this study is to illustrate the important uses that ubuntu and some of its key values have in South Africa’s legal system, specifically in the sentencing stage of the criminal procedure. Currently the sentencing stage is regulated by the Criminal Law Amendment Act. Under the statue, judges can only deviate from the prescribed minimum sentences if there exists “substantial and compelling circumstances”. Although S v Malgas 2001 (2) SA 1222 (SCA) provided a meaning for the term as well as assurance that the term does not curtail a judge’s discretion at sentencing, there is evidence that more is needed to aid judges in reaching sentences reflect of South Africa’s transformative Constitution. This study proposes that the principle of ubuntu is such an aid. That within ubuntu’s breadth of meaning our courts are afforded with an interpretation not only in line with the Constitution, but one that encompasses values such as humanness, compassion, social justice, collective unity, fairness, human dignity and respect. Which values also accord with ideals of restorative justice