Insurance Law and Ubuntu
By Dr Nyoko Muvangua, an advocate and member of the Johannesburg Bar practising at Group 621, Donald Dinnie, Director Deneys, Byron O’Connor, Director Deneys, and Boitumelo Phillips, Associate at Deneys.
Like other financial industries, South Africa’s insurance sector operates within a complex and often highly technical regulatory framework. It is a space defined by actuarial calculations, risk models, contractual clauses, exclusions, and claims ratios, all designed to ensure financial sustainability and predictability. Yet, despite this technical environment, the essence of insurance remains fundamentally human. Every claim is made by an individual or business facing loss, distress, or uncertainty. It is within this intersection of financial logic and human vulnerability that the philosophy of Ubuntu becomes increasingly relevant. Although Ubuntu is not explicitly cited in the Insurance Act. Treating customers fairly is. TW Bennet in Ubuntu: An African Equity featured in the Potchefstroom Electronic Law Journal discusses Ubuntu’s influence that is undeniably present through broader legal values. Constitutional Court judgments such S v Makwanyane in 1995 posited the centrality of Ubuntu in South Africa’s legal order. As insurers work to balance commercial imperatives with social obligations, Ubuntu offers a valuable lens through which fairness, empathy, and trust can be examined in a meaningful way. We set out to demonstrate the importance of Ubuntu in law, specifically in insurance law.
S Nkosi in his article titled “Ubuntu and South African Law: Its Juridical Transformative Impact” published in the Unisa Press delves into Ubuntu being often summarised by the well known adage “umuntu ngumuntu ngabantu”, expressing the idea that personal identity and value are shaped by one’s relationships with others. Similarly, in South African jurisprudence, C Himonga, M Taylor and A Pope explore how Ubuntu has come to signify humaneness, dignity, the pursuit of social harmony, community, and fairness in their article titled Reflections on Judicial Views of Ubuntu published in the the Potchefstroom Electronic Law Journal. Courts have repeatedly emphasised that Ubuntu embodies a commitment to compassion and sensitivity, particularly where asymmetries of power exist.
The intersection of Ubuntu and insurance law in South Africa is most authoritatively shaped by the Constitutional Court's 2007 decision in Barkhuizen v Napier (Barkhuizen), which established a two-stage public policy inquiry for assessing the enforceability of contractual terms, including those found in insurance policies. Under the first leg, a court must determine whether a clause is objectively unreasonable. Under the second, it must consider whether enforcement of that clause, on the particular facts of the case, would be contrary to public policy, including Ubuntu. The courts have been clear that Ubuntu does not provide a freestanding cause of action or a basis on which to override clear contractual terms to which the parties freely agreed; rather, it operates as a guiding principle within the established public policy enforceability inquiry. Contractual obligations are to be honoured by the parties who have entered into them freely, voluntarily and on an equal footing (pacta sunt servanda – agreements must be kept!).
The Constitutional Court's 2020 decision in Beadica 231 CC v Oregon Trust reinforced and refined these principles. In that case, close corporations operating franchise businesses failed to exercise a lease renewal option within the stipulated timeframe and sought to resist eviction on the grounds of Ubuntu, fairness, and the protection of a black economic empowerment initiative. The majority judgment held that constitutional values, including Ubuntu, do not provide a freestanding basis to escape contractual obligations. The court emphasised that the doctrine of pacta sunt servanda remains fundamental and important expression of freedom of contract, dignity, and the need for legal certainty that underpins economic development. Critically, however, the court also held that neither pacta sunt servanda nor Ubuntu is absolute; each is capable of yielding to the other, but only where the party challenging enforcement adduces sufficient evidence on the second leg of the Barkhuizen inquiry to demonstrate that enforcement would, in the circumstances, be unconscionable or contrary to public policy. The applicants in Beadica failed on this basis because they placed no adequate evidence before the court and provided no reasonable explanation for their non-compliance.
In the insurance context, those asymmetries are deeply embedded: insurers possess far greater knowledge, bargaining power, financial resilience, and operational resources than the ordinary policyholder. For this reason, the spirit of Ubuntu resonates strongly with the social and operational considerations that insurers face as discussed in SD Kamga’s Cultural values as a source of law: emerging trends of Ubuntu jurisprudence in South Africa African published in the Human Rights Law Journal. The combined effect of Barkhuizen and Beadica is that the enforceability of policy terms must be assessed not only on their face but also in light of the particular circumstances of the insured. An insurer that repudiates a claim on strictly correct contractual grounds may still face a successful challenge where enforcement produces an unconscionable result, particularly where the policyholder lacked the sophistication to understand the implications of the relevant clause.
Good faith, which historically governed all insurance relationships, owes its origins to the belief that both parties must act honestly and fairly so that risk assessments and claims decisions can be made accurately and transparently. Rules for the protection of policyholders assist in describing requirements of good faith process.
However, the operational realities of insurance can sometimes create tensions. For example, strict enforcement of exclusions, often necessary for prudential and underwriting integrity, can nevertheless feel harsh when applied without contextual consideration. Similarly, an Ubuntu influenced approach does not demand that insurers pay every claim, but rather that they engage with the insured in a manner that respects dignity, explains decisions clearly, and exercises discretion conscientiously in consideration of Himonga, Taylor and Pope’s views.
With the rise of digital transformation, automation is increasingly driving underwriting, pricing, and claims decisions. Algorithms, currently, lack the ability to interpret context, hardship, or human emotion. Ubuntu reminds insurers that technology should not eliminate the human element. Human oversight is essential to ensure fairness, especially where socio-economic factors, literacy levels, or personal crises influence policyholder behaviour. Decisions guided solely by automated triggers risk producing outcomes that, while contractually correct, may be questionable or reputationally damaging and lack the humanness that is driven by Ubuntu.
Many insurers have adopted customer centric cultures that emphasise empathy in claims interactions. Some conduct hardship assessments before rejecting claims. There are also others who provide grace periods for submissions or assist policyholders in gathering required information. Ombud schemes embody the restorative spirit of Ubuntu by focusing on fairness, dialogue, and remedial action rather than adversarial litigation as discussed by Kamga. Furthermore, product development is shifting. Insurers are exploring ways to design affordable, inclusive offerings that account for the socio economic realities of South Africa’s population. This includes flexible benefits, simplified disclosure requirements, and innovative microinsurance models. These efforts show that Ubuntu is not merely philosophical.
Ubuntu also has implications for dispute resolution. Insurance disputes can become adversarial very quickly, especially where communication has broken down or the insured feels unheard. Himonga, Taylor and Pope explore how an Ubuntu informed approach encourages early engagement, clear explanation of decisions, openness to mediation, and a willingness to restore trust wherever possible. Insurers can sometimes achieve better outcomes through empathy and constructive dialogue.
At an organisational level, Ubuntu encourages insurers to cultivate cultures where fairness and dignity guide internal processes as much as external interactions. This involves training staff to engage empathetically with customers and embedding transparency into governance structures which are core qualities of Ubuntu explored by Nkosi. It means acknowledging the impact of South Africa’s history on current customer experiences and being mindful of how past injustices shape present day vulnerabilities. An insurer guided by Ubuntu recognises that fairness is not a technical concept, but a lived experience shaped by communication, tone, and respect.
Importantly, Ubuntu does not negate the need for actuarial discipline or commercial viability. Insurers must remain solvent, manage moral hazard, and uphold the integrity of risk pools. Ubuntu does not demand that insurers pay claims that fall outside policy terms or ignore exclusions that protect the collective pool. Instead, it urges insurers to interpret and apply those rules with sensitivity to context, proportionality, and the lived realities of policyholders which K Malan in The suitability and unsuitability of ubuntu in constitutional law – inter-communal relations versus public office-bearing in the De Jure Law Journal speaks to. Its purpose is not to diminish legal logic but to humanise it, ensuring that contractual certainty does not come at the cost of dignity or fairness.
The realistic role of Ubuntu in insurance law is not to transform the legal framework entirely, but to shape the way it is operates. It acts as a moral compass guiding fairness in claims handling, ethical underwriting, product design, communication, and dispute resolution, As the industry evolves, customer expectations continue to rise. Policyholders want clarity, empathy, and fairness, not only in the outcome of their claims but in the way they are treated throughout the process. Insurers who integrate Ubuntu and treating customers fairly into their organisational DNA will not only meet regulatory standards but also strengthen policyholder trust, a vital asset in an industry built on promises of protection.
Ubuntu is not merely a philosophical ideal; it is an increasingly practical tool for ethical, sustainable, and customer aligned insurance practice in South Africa. In a sector where trust is currency, Ubuntu’s call to recognise and value the humanity of others is not only morally persuasive but strategically essential.
