When I began my 12-month stint clerking for the Chief Justice in 2012, it was a few fractious months after a tumultuous appointment process. The criticism of him has never really ceased. Throughout, however, he has endured the attacks with a remarkable stoicism and an admirable grace. Equally as important, in the years since his elevation his record as Chief Justice has proved his many critics very wrong. He is a man of integrity, dedicated to serving the public. I have a great deal of respect for the head of our judiciary.
For this reason, I stalled in writing this brief, hoping someone else would say what needed to be said. But, apart from general coverage [1] [2] [3] [4], and some critical comments about the minority and concurring judgments [5] [6] [7], nobody has adequately addressed what I think is the most important aspect of the majority judgment handed down by the Chief Justice in City of Tshwane Metropolitan Municipality v Afriforum. So, I have decided to express my concerns.
Despite some important problems with the judgment, there is much to praise. If not legally, morally-speaking the outcome is probably correct. Also, given the subject-matter, as well as certain repugnant submissions by Afriforum, the judgment is written in a passionate, fiery tone that is both warranted and refreshing. Unfortunately, however, the Chief Justice also overlooked, or perhaps did not place adequate emphasis on, an important rule of judicial decision-making.
Judges are conscious of their limitations, both intellectual and institutional. They know that they are not well-placed to decide controversial political issues or complex questions of policy. Decisions on these matters belong to the people and to their representatives. This self-awareness is the source of what theorists call ‘judicious avoidance’ or ‘decisional minimalism’, that is, a strategic avoidance of controversial questions and a deliberate effort to minimise definitive findings when deciding cases. In short, the less you decide, the less chance you might make a mess of things.
The Chief Justice’s judgment just goes too far. Instead of avoiding tough issues that did not require resolution, he pronounced with a forceful certainty on one of the more controversial questions in philosophy, ‘What does it mean to be human?’, thereafter linking his answer to what it means to be a true South African. Early on in his judgment, he says:
“All peace and reconciliation-loving South Africans whose world-view is inspired by our constitutional vision must embrace the African philosophy of “ubuntu”. “Motho ke motho ka batho ba bangwe” or “umuntu ngumuntu ngabantu” (literally translated it means that a person is a person because of others).”
As South Africans, we are prone to indulge in exceptionalism. This is understandable and in some ways it is justified. So, it is not too surprising that the Chief Justice emphasises the fact that ubuntu is an African concept. But, it is not uniquely African. The idea that our humanity, that is, our individual personality, is constituted in our relations with other people is common. It is as old as Aristotle, but it might have its roots in Heraclitus. It is found in the work of Aquinas, again in Hegel and Marx, and today we find it on our university campuses (imbibed by woke, decolonising disciples of these two 19th century German men and their more recent, mostly European and US, descendants), in the idea of ‘recognition’.
Despite the obvious appeal of this idea, if we were to be so foolish as to characterise the history of philosophy as a single dispute, it might be as a dispute over the nature of human beings.
Certainly from Plato, but perhaps from Parmenides before him, there are philosophers who conceive of human beings differently. In the Enlightenment, we find it in Descartes and a little later in Hobbes. Come the end of the 19th century, it is incarnated in Nietzsche. Today we can find it in strands of neo-Kantian, libertarian, neo-liberal and anarchist thought. These are well-established traditions that see human beings first and foremost as individuals. Yes, we can and do come together, sometimes forming relationships and communities. But, before and after this, we are individuals who can and do exist independently of each other.
What is the significance of this otherwise obscure disagreement?
Its significance was apparent to Cameron and Froneman JJ, who dissented from the judgment of the Chief Justice. Writing with a characteristic sensitivity and humility that did not warrant the gratuitous attack levelled against them by Jafta J in his concurring judgment, they said the following:
“. . . we agree that it would be beneficial if all South Africans approached matters with appreciation and respect for others. But the Constitution does not impose that as an obligation on citizens, either by enjoining the adoption of the ubuntu world-view, or otherwise. . . . We have already pointed out that the Constitution generally does not mandate the imposition of a particular conception of this national project by the courts . . . But, on its own terms, [the majority’s approach] also carries within it the destruction of its objective of inclusivity. . . . What is the effect of a failure to embrace ubuntu, by evincing appreciation of and respect for others? Does the person lose his or her constitutional protections? The first judgment seems to suggest Yes.”
One reason why such a radical conclusion might follow from the judgment of the Chief Justice is not merely the fact that he adopted a particular metaphysical view. This is perhaps unavoidable. Rather, it is his finding that people “must embrace the African philosophy of ubuntu” if they are to be truly South African, that is, for them to be committed to unity and reconciliation.
The significance of this finding cannot be overstated. It now appears that if you do not embrace this conception of humanity, you will in a sense become an outlaw. Like all outlaws, not only will you be stripped of your legal personality and its unique concomitant protections, you will also be seen as a threat to the community. So, you must be exiled or subdued. If the latter, how will you be treated? To be consistent, you will be treated as a foreigner and perhaps as a terror threat.
I know this seems quite fantastical. But, it is not my doing. It is because the Chief Justice’s judgment, conceptually-speaking, lends itself to such dramatic conclusions.
Camus once warned against an uncompromising, dominating spirit of totality in politics. Writing in the rubble of WWII, he warned against the idea that in politics unity can only ever be obtained in the absence of basic, fundamental difference and division. This view of politics, he pleaded for us to see, always leads to authoritarianism, to war and to death camps. In politics, we arrive at unity not by liquidating division. We arrive at unity in conflict, that is, through the peaceful expression and the temporary, practical settlement of divergent beliefs, values and ideas—including ideas about what it means to be human.
This does not mean that anything goes. Nor does it mean that we should, under cover of diversity and tolerance, be so intellectually dishonest, so callous and so crude, as to equate the architect of a crime against humanity with a young man executed by a criminal regime. Rather, it means that contrary to the Chief Justice, unity, transformation and reconciliation do not insist on a shared or particular metaphysics. We are constituted as a political community, as ‘We, the people of South Africa’, by the facts of our shared history and by way of our participation in the Constitution (that is, by way of our shared belief in its value and shared commitment to its use for the sake of the common good). Nothing here requires a commitment to the concept of ubuntu.
This conclusion is actually supported by the concept of ubuntu itself. We are related, yes, but we are separate at the same time. It is the aspect of separateness—together with its accompanying freedom, not only for those who subscribe to a particular conception of ‘We, the people’, but also for people who think differently—that the Chief Justice seems to neglect. Ubuntu is unity, and unity is conflict. So, even if the Constitution does codify ubuntu (to the exclusion of its metaphysical opponents), there would still be space, created by this very same Constitution, for those who embrace conflicting philosophies to live truly South African lives.
No judge should readily assume authority to decide the question, ‘What does it mean to be human?’ This is not simply because he is not a philosopher king, a Hercules J, with infinite time, wisdom and patience to reach the right decision. It is because the question itself refuses final resolution. It is the responsibility of every person, every generation, to ask this question afresh—not just once, but again and again, always with the sense of urgency that its nature requires. It might not be the first question of metaphysics, but it is probably the first practical question. My, your and our answers limit and shape the answers to the infinity of more concrete, practical questions that confront us daily, both as individuals and as South Africans.
By unnecessarily legislating in favour of a particular school of metaphysics, by deciding for all of us what it means to be human and linking this to a conception of South African citizenship, the Chief Justice erred. But, this should not overly shock. After all, in my view at least, to err is human.
Matthew Kruger
Legal Researcher
matthew@hsf.org.za
