UBUNTU AND THE AMENDE HONORABLE – A MARRIAGE BETWEEN AFRICAN VALUES AND MEDIEVAL CANON LAW

Abstract

The South African law of damages purports to be compensatory in nature. Although the inherent historical punitive element of the actio iniuriarum is generally recognised, the Constitutional Court has held that punitive damages have no place in South African law, because they would inter alia violate the public law-private law divide. The actio iniuriarum, the remedy for defamation, also places strain on the right of freedom to expression, because potential defendants could be intimidated by large damages awards from exercising this right. At the same time it protects the right to dignity of the individual. In the past decade the idea has been mooted by academics and also in our case law that the revival of the medieval amende honorable in our law would solve the problem of balancing the rights to freedom of expression and dignity. This remedy involves an apology by the defendant, and because with this remedy a potential defendant does not face financial ruin, his right to freedom of expression is upheld. At the same time an apology by the defendant for defamatory remarks could do much more to restore the plaintiff’s dignity than a monetary award.
This note juxtaposes the African concept of ubuntu with the amende honorable, a remedy which may be traced back to medieval European canon law. In the Constitutional Court judgment of Dikoko v Mokhatla (2006 6 SA 235 (CC)) two of the judges opined that the amende honorable has a place in the South African law of defamation, and moreover, that it is fully compatible with the notion of ubuntu.