# 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."
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.
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.

## 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.

### 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.

### 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.

### 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.

## 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’.
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."