Ubuntu: An Underutilised Foundational Constitutional Principle of South African Environmental Law

Abstract

This article uses the doctrinal legal research method to examine how ubuntu, the indigenous value of humaneness, can serve as a foundational constitutional principle of South Africa’s environmental law and governance framework. It argues that ubuntu has a role to play in the re-imagination of humanity’s relationship with the environment, particularly when its building blocks are embedded in law to address the deep socio-ecological crisis of the Anthropocene and when applied alongside conventional and customary principles of environmental law, such as the no-harm rule, the precautionary principle, the principle of prevention, intergenerational equity and sustainable development. In South Africa, ubuntu already enjoys judicial recognition as a foundational constitutional principle. Its moral and normative force offers an alternative foundation to build a stronger environmental law framework that can protect the vulnerable living order. In this article, the basic proposal is that ubuntu is an underutilised constitutional principle that could be applied by South African courts to environmental disputes. Its potential in the adjudication of environmental cases emanates from its origins as an indigenous value and from the benefits that foundational constitutional principles generally bring in constitutional and human rights litigation.