South African jurisprudence

South African jurisprudence refers to the study and theory of South African law. Jurisprudence has been defined as "the study of general theoretical questions about the nature of laws and legal systems."^[1]

It is a complex and evolving field that reflects the country's unique legal history and societal changes. It is grounded in a blend of Roman-Dutch law, English common law, and indigenous African customary law, all underpinned by the transformative Constitution of 1996.^[2]

In the South African context, "Ubuntu" based Jurisprudence has been considered the foreground of the Human Rights discourse in the region, even prior to the European Enlightenment Period.^[3]

Key Aspects of South African Jurisprudence

Constitutional Supremacy

South Africa's legal system is founded on constitutional supremacy, which means that all laws and actions by the state must comply with the Constitution. The Constitution is the highest law and includes a comprehensive Bill of Rights that protects the civil, political, and socio-economic rights of all individuals. The Constitutional Court plays a crucial role in interpreting the Constitution and ensuring that laws and state actions are constitutional.^[4]

Judicial Review and Human Rights

Judicial review in South Africa allows the courts to assess the constitutionality of legislative and executive actions. Landmark cases such as S v Makwanyane abolished the death penalty, reflecting the Constitution's emphasis on human dignity, equality, and freedom. The Constitutional Court ruled that capital punishment was inconsistent with the right to life and human dignity, setting a precedent for human rights protection.^[5]^[6]

Bill of Rights

The "Bill of Rights", specifically Chapter Two of the Constitution of South Africa applies to all law, and binds all branches of government. It enshrines rights that can be enforced directly or indirectly through the courts. Direct application occurs when a specific right is invoked in a case, while indirect application influences the interpretation and development of all laws to be consistent with constitutional values.^[7]

Delictual Liability

In the realm of private law, South African jurisprudence covers delictual liability, which is akin to tort law in other jurisdictions. This area deals with wrongful acts that cause harm to individuals, requiring a demonstration of harm, wrongful conduct, causation, and fault. The law of delict ensures that victims of harm can seek redress and compensation.^[8]

Notable Cases

S v Makwanyane (1995)

Abolished the death penalty, emphasizing the right to life and dignity as fundamental human rights.

Government of the Republic of South Africa v Grootboom (2000)

Established the state's obligation to progressively realize socio-economic rights, such as the right to housing.

Minister of Health v Treatment Action Campaign (2002)

Addressed the right to healthcare, mandating the government to provide antiretroviral drugs to prevent mother-to-child transmission of HIV.

Ubuntu Jurisprudence and its specificity

Ubuntu Jurisprudence

It is imperative to examine the Constitution of South Africa and case law to reveal the principles of ubuntu jurisprudence.

Ubuntu and the 1996 Constitution

It is surprising and important to note that the word ‘ubuntu’ does not feature in the 1996 South African Constitution, which created a perception that the African philosophy was excised from the law of the land - a significant point of criticism towards the Constitution. Such a point of criticism can be analysed in various essays including ‘Tensions in legal and religious values in the 1996 South African Constitution’.^[9]

This critical point itself has been subjected to much criticism as it presupposes that the 'moral fabric' of African society is absent from the Constitution itself. However, upon closer inspection at the substance of the Constitution and its firm prioritisation of Human Rights, another interpretation states that - "Although the Constitution did not expressly mention ubuntu, a teleological interpretation or an investigation of its intent reveals that the Constitution carries within it the spirit of ubuntu. In this respect it calls for equality, dignity, nondiscrimination and all other fundamental rights recorded in the Bill of Rights."^[10]

References

Moosa, E. "Tensions in Legal and Religious Values in the 1996 South African Constitution." In Beyond Rights Talk and Culture Talk: Comparative Essays on the Politics of Rights and Culture, edited by Mahmood Mamdani, 131–153. Cape Town: David Philip, 2000.

Books

Dias, RWM. Jurisprudence. 5th edition. Butterworths, 1985.
Currie, I, and de Waal, J. The New Constitutional and Administrative Law, Volume 1: Constitutional Law. Juta & Co Ltd, 2001.
Chaskalson, A, et al. Constitutional Law of South Africa. 2nd ed., Juta, 2005.
De Vos, P, Freedman, W, eds. South African Constitutional Law in Context. Oxford University Press, 2014.
Neethling, J., Potgieter, J.M., and Visser, P.J. Law of Delict. 7th ed., LexisNexis, 2015.
Freeman MDA. Lloyd's Introduction to Jurisprudence. 7th edition. Sweet and Maxwell, 2001.
Harris JW. Legal Philosophies. 2nd edition. Butterworths, 1997.
Johnson, David, Steve Pete, and Max du Plessis. Jurisprudence: A South African Perspective. LexisNexis, 2008.
McCoubrey H. and White N. Textbook on Jurisprudence. 4th edition. Blackstone Press, 2003.
Riddal JG. Jurisprudence. 2nd edition. Butterworths, 1999.
Roederer C. and Moellendorf D. Jurisprudence. Juta & Co., 2004.
Van Blerk A. Jurisprudence: An Introduction. Butterworths, 1996.
Johnson, David, Steve Pete, and Max du Plessis. Jurisprudence: A South African Perspective. LexisNexis, 2008.

Case law

Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC).
Minister of Health v Treatment Action Campaign (TAC) [2002] ZACC 15, 2002 (5) SA 721 (CC), 2002 (10) BCLR 1033 (CC).
Incorporated Law Society v Wookey 1912 AD 623.
Jilani v The Government of Punjab PLD 1972 SC 670.
Madzimbamuto v Lardner-Burke, NO and Another, NO; Baron v Ayre, NO and Others, NNO 1968 (2) SA 284 (RA).
Marbury v Madison 5 U.S. 137 (1803).
Matiso and Others v The Commanding Officer, Port Elizabeth Prison and Others 1994 (3) BCLR 80 (SE).
Mitchell v Director of Public Prosecutions 1986 AC 73.
Nyamakazi v President of Bophuthatswana 1992 (4) SA 540 (BG).
Qozeleni v Minister of Law and Order and Another 1994 (3) SA 625 (E).
R v Big M Drug Mart Ltd [1985] 18 DLR (4d) 321.
Riggs v Palmer 115 NY 506, 22NE 188 (1889).
S v Makwanyane 1995 (3) SA 391 (CC).
S v Mhlungu and Others 1995 (3) SA 867 (CC).
S v Zuma 1995 (2) SA 642 (CC).
Government of the Republic of South Africa and Others v Grootboom and Others 2001 (1) SA 46 (CC).
The State v Dosso PLD 1958 SC 180, 553.
Uganda v Commissioner of Prisons, ex parte Matovu [1966] EA 514.

Legislation

Bophuthatswana Internal Security Act 32 of 1979.
Employment Equity Act 55 of 1998.
Immorality Act 23 of 1957.
Natives Land Act, 1913.
Prevention of Family Violence Act 133 of 1993.
Recognition of Customary Marriages Act 120 of 1998.
South Africa Act 1909.
Stamp Act 1765.
Sugar Act 1763.

Notes

^ Johnson et al 1.
^ S v Makwanyane 1995 (3) SA 391 (CC).
^ SD Kamga ‘Cultural values as a source of law: Emerging trends of ubuntu jurisprudence in South Africa’ (2018) 18 African Human Rights Law Journal 625-649. pg 1.
^ Currie, Iain, and Johan de Waal. The New Constitutional and Administrative Law, Volume 1: Constitutional Law. Juta & Co Ltd, 2001, pp. 78-100.
^ Chaskalson, Arthur, et al. Constitutional Law of South Africa. 2nd ed., Juta, 2005, ch. 9, "Judicial Review."
^ Dugard, John. Human Rights and the South African Legal Order. Princeton University Press, 1978, pp. 101-135.
^ De Vos, Pierre, Warren Freedman, eds. South African Constitutional Law in Context. Oxford University Press, 2014, pp. 204-230.
^ Neethling, J., Potgieter, J.M., and Visser, P.J. Law of Delict. 7th ed., LexisNexis, 2015, pp. 1-30.
^ E Moosa ‘Tensions in legal and religious values in the 1996 South African Constitution’ in M Mamdani (ed) Beyond rights talk and culture talk: Comparative essays on the politics of rights and culture’(2000) 131.
^ SD Kamga ‘Cultural values as a source of law: Emerging trends of ubuntu jurisprudence in South Africa’ (2018) 18 African Human Rights Law Journal 625-649. pg 1.

[1] Johnson et al 1.

[2] S v Makwanyane 1995 (3) SA 391 (CC).

[3] SD Kamga ‘Cultural values as a source of law: Emerging trends of ubuntu jurisprudence in South Africa’ (2018) 18 African Human Rights Law Journal 625-649. pg 1.

[4] Currie, Iain, and Johan de Waal. The New Constitutional and Administrative Law, Volume 1: Constitutional Law. Juta & Co Ltd, 2001, pp. 78-100.

[5] Chaskalson, Arthur, et al. Constitutional Law of South Africa. 2nd ed., Juta, 2005, ch. 9, "Judicial Review."

[6] Dugard, John. Human Rights and the South African Legal Order. Princeton University Press, 1978, pp. 101-135.

[7] De Vos, Pierre, Warren Freedman, eds. South African Constitutional Law in Context. Oxford University Press, 2014, pp. 204-230.

[8] Neethling, J., Potgieter, J.M., and Visser, P.J. Law of Delict. 7th ed., LexisNexis, 2015, pp. 1-30.

[9] E Moosa ‘Tensions in legal and religious values in the 1996 South African Constitution’ in M Mamdani (ed) Beyond rights talk and culture talk: Comparative essays on the politics of rights and culture’(2000) 131.

[10] SD Kamga ‘Cultural values as a source of law: Emerging trends of ubuntu jurisprudence in South Africa’ (2018) 18 African Human Rights Law Journal 625-649. pg 1.

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