Common-ing the Language of the Uncommon Law of Property by Interpretation

Introducing the book’s third essential part on ‘property’, this chapter sets out Alter-Native Constitutionalism’s jurisprudential framework for constitutional and statutory interpretation informed by vernacular law and oriented towards the everyday, ordinary South African as the ‘reasonable’ person in law. It draws on ethnography and sociolinguistics, problematising the continuities in how democratic South African law treats ‘customary law’ consistently with colonial-apartheid. A SiSwati conversation with Make Ng’Gogo frames the chapter’s exploration of vernacular law’s indigenous ethical orientation, embodied in Ubu-Ntu, as it applies to guiding not only societal organisation but also land rights – emphasising human-centred values over individualistic property rights. By first examining indigenous normative relationships with land then translating their application into critique of Constitutional Court interpretive practices, the chapter advances an Alter-Native framework that represents a paradigm shift in constitutional interpretation, privileging Ubu-Ntu’s holistic world-sense. This framework advocates reinterpretation of dignity and rights under the Constitution, moving beyond Western legal principles toward a jurisprudence grounded in indigenous natural law and relational ethics. The chapter argues for South Africa’s Constitutional Court to adopt this indigenously transformative constitutional approach to interpretation, treating vernacular law as equally legitimate to European ‘common law’ and thereby making truly transformative socioeconomic outcomes more possible.