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234 Chapter 9
beings in their being. The pursuit and the preservation of what is human and what
is implicated by being human are what, in a particular understanding, is signified
by African jurisprudence. Being African is a sign of being African and a sign of
being human. In this signature lies not only what is essential about African
jurisprudence, but also what is essential about the Africanness of African
jurisprudence. To learn how to decipher it, which in a sense implies learning
how to decipher oneself paves the way to a genuine understanding. 20
In a profound sense then, African jurisprudence articulates the principles of
African humanism. Ubuntu can and should be grasped as part of this other
jurisprudence and view of law. It is indeed a different story of law and justice
than the one imagined and told in the West. We will return to that
difference when we discuss the contrasts and similarities between Kantian
dignity and ubuntu.
For now I want to discuss Justice Mokgoro’s judgment in the Khosa
case, a judgment in which she does not actually use the word ubuntu, but
one that is infused with ubuntu thinking. 21 The case raised the issue of
whether non-citizens who were permanent residents would be eligible for
certain social welfare grants as long-standing members of the community.
Justice Mokgoro’s judgment granted such eligibility, but her justification for
so doing is what is important for our purposes. Remember Kaunda
emphasised three main virtues of African humanism: mutuality,
acceptance and inclusion. All three entered into Justice Mokgoro’s
reasoning in the Khosa case. First, the overriding idea of African
jurisprudence is reflected in the judgment. What would it mean to deny
non-citizens social welfare grants if ‘what is essential to law is what secures
human beings in their being?’ Further, Justice Mokgoro emphasises
mutuality. The people who are seeking grants are members of a community,
and mutuality here means that we must respect their contributions to the
community, but more profoundly that they are part of us and we are part
of them.
This turns us back to an earlier point in this essay in which I emphasised
that the community is not something out there, but instead signals how we are
inscribed in each other. Just as non-citizens have obligations to the
community, so the community, including the state, has obligations to them.
Secondly, a humane community is both accepting and inclusive. To refuse to
grant them eligibility would render them outsiders to whom we do not owe
relations of mutuality. In a sense then, to deny them social grants would violate
their dignity precisely because the mark of outsider is not only to push another
out of the community, but also outside what is owed to another human being
as a human being. They would be pushed outside of the human world of
mutual relations. Throughout, Justice Mokgoro emphasises actual
20 Murungi (n 19 above) 525 - 526.
21
For those who wish to read a review of the cases both in the Constitutional Court as
well as the lower court, see Cornell (n 2 above).