UBUNTU: I AM BECAUSE WE ARE: UNTIL IT GETS INCONVENIENT

Something has shifted. You can feel it in the way people drive, the way they queue, the way they approach a negotiation. The default assumption has quietly changed: people are not trusted until proven trustworthy. Kindness is met with suspicion. Generosity is read as weakness. We have become, in many respects, a society that expects the worst from one another — and then wonders why it so often gets it.

This is not a new observation. But it is an increasingly urgent one.

Ubuntu and the Constitution

South Africa’s Constitution is, in many ways, an aspirational document. It was drafted in the aftermath of a system that denied the humanity of the majority, and it responded by placing human dignity at its very centre. Section 10 guarantees every person the right to have their dignity respected and protected. The preamble speaks of healing the divisions of the past and building a society founded on democratic values and the improvement of the quality of life for every citizen.

Threaded through all of this is ubuntu — the African philosophical tradition captured in the phrase umuntu ngumuntu ngabantu: a person is a person through other persons. It is not merely a cultural concept. The Constitutional Court has recognised ubuntu as a value that informs the interpretation of rights and the administration of justice. In S v Makwanyane [1995], several justices invoked ubuntu in discussions about human dignity, noting that it speaks to the communal nature of society and the worth inherent in every person. In Port Elizabeth Municipality v Various Occupiers [2004], Justice Sachs described ubuntu as providing a lens through which the competing interests of individuals and communities must be balanced — with care and with compassion.

Where Ubuntu Meets Real Life and Breaks Down

Nowhere is the tension between our constitutional ideals and our daily conduct more visible than in family law.

Divorce is, almost by definition, a moment of profound pain. But the law — through the Children’s Act 38 of 2005 and the Divorce Act 70 of 1979 — asks something remarkable of people in that pain: it asks them to remember that their children are whole human beings whose best interests must come first. It asks co-parents to communicate, to cooperate, to set aside personal grievance in service of a shared responsibility. It asks, in other words, for ubuntu.

What the courts see instead, all too often, is a race to the bottom. Parents weaponising children in maintenance disputes. Parties in commercial matters litigating in bad faith, using process as a weapon rather than a tool. Neighbours who would rather spend years in litigation than speak across a fence.

The law has mechanisms to manage this — adverse cost orders, obligations to negotiate in good faith, the duty to approach disputes with candour. But law is a poor substitute for the impulse it is trying to replace.

The Uncomfortable Truth

A legal system built on ubuntu cannot function properly in a society that has abandoned it.

Courts cannot legislate compassion. Judges can impose outcomes, but they cannot restore the trust that made the dispute unnecessary in the first place. The more we assume the worst of one another, the more conflict we generate — and the more we burden a justice system that was never designed to carry the full weight of a society that has stopped trying to resolve its own differences.

The Constitution asks us to be better than our worst impulses. Ubuntu asks us to recognise that our wellbeing is inseparable from the wellbeing of the people around us. These are not soft sentiments — they are foundational legal values.

The question is not whether the law still believes in them. It does. The question is whether we do.