- See Brink v Kitshoff NO 1996 (4) SA 197 (CC); Prinsloo v van der Linde 1997 (3) SA 1012 (CC); President of the Republic of South Africa v Hugo 1997 (4) SA 1 (CC); Harksen v Lane NO 1998 (1) SA 300 (CC); Larbi-Odam v MEC for Education (North West ProvinceJ 1998 (1) SA 745 (CC); Pretoria City Council v Walker 1998 (2) SA 363 (CC); National Coalition for Gay and Lesbian Equality v Minister of Justice 1999 (1) SA 6 (CC) (the Sodomy case)’, National Coalition for Gay and Lesbian Equality v Minister of Home Affairs 2000 (2) SA 1 (CC) (the Immigration case); and Hoffmann v South African Airways 2000 (1) SA 1 (CC). For a summary of the Court's approach, see in particular Harksen para 53.
- Issues focused on this article are raised in C Albertyn & B Goldblatt ‘Facing the Challenge of Transformation: Difficulties in the Development of an Indigenous Jurisprudence of Equality’ (1998) 14 SAJHR 248; D Davis ‘Equality: the Majesty of Legoland Jurisprudence’ (1999) 116 SALJ 398; and A Fagan ‘Dignity and Unfair Discrimination: A Value Misplaced and a Right Misunderstood’ (1998) 14 SAJHR 220. See also D Davis Democracy and Deliberation (1999) 69 — 97, A Stein ‘Constitutional Jurisprudence’ Annual Survey of South African Law 1997 45. See, too, the arguments made by the Centre for Applied Legal Studies (acting as amicus curiae) in National Coalition for Gay and Lesbian Equality v Minister of Justice (note 1 above) and the response thereto by Sachs J in the minority judgment (paras 120–29). Sachs J's sentiments are supported by the majority judgment of Ackermann J (para 78). The Court's dignity analysis has most recently been confirmed in National Coalition for Gay and Lesbian Equality v Minister for Home Affairs (note 1 above) and Hoffmann v South African Airways (note 1 above), and supported in extra-curial speeches by Ackermann J (L Ackermann ‘Equality and the South African Constitution: The Role of Dignity’ Bram Fischer Lecture delivered at Rhodes House, Oxford on 26 May 2000) and Chaskalson P (A Chaskalson ‘Dignity as a Foundational Value in the South African Constitution’ Third Bram Fischer Lecture delivered on 18 May 2000 at the Civic Centre, Johannesburg, since published in (2000) 16 SAJHR 193).
- Constitution of the Republic of South Africa Act 108 of 1996 (1996 Constitution). For dicta on the role of the Constitution in transformation, see Soobramoney v Minister of Health, KwaZulu-Natal 1998 (1) SA 765 (CC) para 8 (per Chaskalson P) and Azanian Peoples Organisation (AZAPO) v President of the Republic of South Africa 1996 (4) SA 671 (CC) para 43 (per Mahomed DP). See too the preambles to the Constitution of the Republic of South Africa Act 200 of 1993 (interim Constitution) and the 1996 Constitution.
- The equality right, protected in s 9 of the 1996 Constitution, reads:
- Everyone is equal before the law and has the right to equal protection and benefit of the law.
- Equality includes the full and equal enjoyment of all rights and freedoms. To promote the achievement of equality, legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken.
- The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.
- No person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of subsection (3). National legislation must be enacted to prohibit unfair discrimination.
- Discrimination on one or more of the grounds listed in subsection (3) is unfair unless it is established that the discrimination is fair.
- Section 1(a) of the 1996 Constitution proclaims ‘[h]uman dignity, the achievement of equality and the advancement of human rights and freedoms' to be values on which the Republic of South Africa is founded. The central and foundational place of the values of dignity and equality is also manifest in s 7, which ‘affirms the values of human dignity, equality and freedom’, s 36(1), which requires limitations on rights to be ‘reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom’ and s 39(1)(a), which enjoins courts, when interpreting rights, to ‘promote the values that underlie an open and democratic society based on human dignity, equality and freedom’. The right to dignity is protected in s 10, which provides: ‘Everyone has inherent dignity and the right to have their dignity respected and protected.’
- See s 9(3) (note 4 above).
- Note 1 above para 47.
- See s 36 of the 1996 Constitution. See also, for example, the Immigration case (note 1 above) paras 58–59.
- See Hugo (note 1 above) para 41; the Sodomy case (note 1 above) paras 60 — 62; and Walker (note 1 above) paras 31 and 85.
- On the importance of context, see Hugo (note 1 above) para 41 and Walker (note 1 above) para 85. On the remedial aspect, see the Sodomy case (note 1 above) para 62. This view is set out in Albertyn & Goldblatt (note 2 above) 254 and J Kentridge ‘Equality’ in Chaskalson et al (eds) Constitutional Law of South Africa (1996) 14–2.
- See for example Walker (note 1 above) para 31. The classic example of this would be an affirmative action measure. There would seem to be no reason in principle why these considerations cannot be seen also to reside in the Aristotelian idea of equality. See O'Regan J's judgment in Hugo (note 1 above) para 41 fn 63 and Kentridge (note 9 above) 14–3 and 14–5.
- The problem of definition is highlighted by Davis ‘Equality: the Majesty of Legoland Jurisprudence’ (note 2 above) 413, who queries what is meant when the Court says that the unfairness of a measure should be determined by its impairment of dignity or a measure that affects persons ‘in a comparatively serious manner’. Davis asks whether this ‘necessitates reference to other rights such as privacy and bodily or psychological integrity, [or whether] we have to engage in a deconstruction of dignity to explain its multifaceted meanings' (ibid). He seems concerned with the elusiveness of the concept, which he suggests is exacerbated by the elasticity required in order to cater for different kinds of cases.
- The constitutional provisions that enshrine the rights and values being discussed are referred to in note 4 above.
- See Davis ‘Equality: the Majesty of Legoland Jurisprudence’ (note 2 above). Fagan (note 2 above) passim, but especially 247, is concerned that the Court's equality jurisprudence elevates dignity to a pivotal role in the analysis that should be shared by all ‘moral rights’ recognised and protected by the 1996 Constitution. This, in turn, he argues, results in a test for inequality that is too stringent to be viable in fulfilling the central role in South Africa's constitutional jurisprudence that is generally envisaged for it.
- Note 2 above 254 (emphasis added).
- Note 2 above.
- ‘Equality: the Majesty of Legoland Jurisprudence’ (note 2 above) 412–13. See, too, Davis Democracy and Deliberation (note 2 above) 73–74 and 95–97.
- Note 2 above 257–58 and 272.
- Note 2 above (SALJ) 414. In Democracy and Deliberation (note 2 above) 97, Davis urges the Court to ‘engage with the component parts of equality’ and seeks an examination of the basis of the equality right itself.
- ‘Equality: the Majesty of Legoland Jurisprudence’ (note 2 above) 413.
- Note 2 above 250.
- See 35–37 above.
- This is clear from Harksen (note 1 above) para 47, where the Court refers to characteristics that ‘impair the fundamental dignity of persons as human beings, or… affect them in a comparably serious manner’ (emphasis added). The Court's consideration of the factors (see text between notes 6 and 7 above) goes to a determination not only of whether the discrimination has led to an impairment of dignity, but alternatively whether it constitutes an impairment of a comparably serious nature.
- Law v Canada (Minister of Employment and Immigration) [1999] 170 DLR 4th 1 (SCC) para 51; referred to in the Immigration case (note 1 above) para 41 and discussed in Chaskalson (note 2 above) 203n44.
- These points raise the debate whether equality as a value can be seen as lacking independent substantive content, a view expressed by P Westen ‘The Empty Idea of Equality’ (1982) 95 Harvard LR 95. See Amartya Sen's response in Inequality Reexamined (1992) 24. See, too, Fagan (note 2 above) 233–44. Fagan suggests that ‘although the unfair discrimination provision [may create] no right of its own, it does create a procedural mechanism, namely the shift of onus.’ (Ibid 235.) Davis responds to Westen's ideas in Democracy and Deliberation (note 2 above) 73.
- This is a key concern in Sen's Inequality Reexamined (note 24 above) 12–30.
- On this Sen says: ‘For example, ‘libertarians’ are concerned with equal liberties; ‘economic egalitarians’ argue for equal incomes or wealths; utilitarians insist on equal weight on everyone's utilities in a consequentialist maximand; and so on.’ Note 24 above 130.
- This is sometimes referred to — rather unhelpfully — as ‘formal equality’.
- See Plessy v Ferguson 163 US 537 (1896) (overruled in Brown v Board of Education of Topeka 347 US 483 (1954)).
- See, for example, Minister of Posts and Telegraphs v Rasool 1934 AD 167 (division of post office into two portions for the service of ‘Europeans’ and ‘Non-Europeans’ respectively) and R v Carelse 1943 CPD 242 (prohibition of ‘Non-European’ persons from using a beach in a municipal locality with no separate and equal provision).
- Note 1 above para 22.
- Note 1 above para 129.
- Note 1 above para 132.
- Albertyn and Goldblatt refer to transformation as requiring ‘a complete reconstruction of the state and society, including a redistribution of power and resources along egalitarian lines. The challenge of achieving equality within this transformation project involves the eradication of systemic forms of domination and material disadvantage based on race, gender, class and other grounds of inequality. It also entails the development of opportunities which allow people to realise their full human potential within positive social relationships.’ Note 2 above 249.
- Note 2 above 202.
- Etymologically, dignity comes from the Latin root ‘dignitas’. which translates as ‘worth’. If one respects this, one holds it in esteem, deference, or has proper regard for it, both in the way that one feels or thinks about others, and in how one treats others. See O Schachter ‘Human Dignity as a Normative Concept’ (1983) 77 American J of Ini L 848–54, especially 849.
- Though not providing any justification for restraint, it should be acknowledged that such restraint is not unusual to South Africa. Oscar Schachter (note 35 above 848–89) points out that ‘[political leaders, jurists and philosophers have increasingly alluded to the dignity of the human person as a basic ideal so generally recognised as to require no independent support…. We do not find an explicit definition of the expression dignity of the human person in international instruments…. Its intrinsic meaning has been left to intuitive understanding, conditioned in large measure by cultural factors.’
- Though this must be a general call given the ample and increasing reliance on the concept both within and outside the Court's equality jurisprudence. For the role that dignity has played in other branches of constitutional law, see S v Manamela 2000 (3) SA 1 (CC) para 40 and S v Coetzee 1997 (3) SA 527 (CC) para 121 (on its relationship with the presumption of innocence), Augus v Electoral Commission 1993 (3) SA I (CC) paras 17 and 18 (the right to vote), S v Makwanyane 1995 (3) SA 391 (CC) (the death penalty); S v Williams 1995 (3) SA 632 (CC) (corporal punishment); and Groothoom v the Government of the RS A 2001 (1) SA 46 (CC) (right to housing).
- Note 37 above para 328. O'Regan J's comments are similar to those made by Ackermann J in the Sodomy ase (note I above) para 29. See too Sachs J in the Sodomy case quoted in text at note 31 above.
- Dawood v Minister of Home Affairs; Shalabi v Minister of Home Affairs; Thomas v Minister of Home Affairs 2000 (3) SA 936 (CC) para 35.
- Note 1 above para 36.
- See, too, Makwanyane (note 37 above) para 329.
- Note 2 above.
- It would also seem to form a central element of any substantive equality analysis because it provides the context in which disadvantage must be understood.
- See, too, Makwanyane (note 37 above) para 26 where Chaskalson P described the death penalty as ‘degrading because it strips the convicted person of all dignity and treats him or her as an object to be eliminated by the State’.
- Note 35 above 849. A translation of Kant puts it in these terms: ‘Act in such a way that you always treat humanity, whether in your own person or in the person of another, never simply as a means, but always at the same time as an end.’ I Kant The Moral Law: Kant ‘s Groundwork of the Metaphysic of Morals (trans HJ Paton, 1963) 96. referred to in D Meyerson Rights Limited (1997) 12.
- Note 35 above 35 849–51.
- ‘Equality: the Majesty of Legoland Jurisprudence’ (note 2 above) 413–14. Emphasis added.
- Note 2 above 254. Emphasis added.
- In Democracy and Deliberation, Davis says that ‘[t]he objective of equality is not merely the recognition of a certain dignity of the human being as such, but it is also to provide him with the opportunity — equal to that guaranteed to others for protecting and advancing his interests and developing his (her) powers and personality.’ Note 2 above 74 (footnote omitted).
- Law v Canada (note 23 above) para 53.
- For example, one can differ on the extent to which human beings have the capacity for and are controlled by rational thought and what this means for children or people who lack (full) mental capacity.
- See, for example, Rhoda Howard's definition of dignity as ‘the particular cultural understandings of the inner moral worth of the human person and his or her proper relations of society’ (Howard ‘Dignity, Community and Human Rights’ in Abdullahi An-Na'im (ed) Human Rights in Cross-Cultural Perspectives (1992) 81, discussed in A Steiner and P Alston International Human Rights in Context (1996) 221, 222.
- Though it is not clear from his thesis. Fagan seems to hold the view that the right to dignity informs the equality analysis. He claims that dignity is elevated above other rights in the Constitution (note 2 above 247). Albertyn and Goldblatt on the other hand clearly view it as the value of dignity (note 2 above 249).
- Note 39 above para 35. Footnotes omitted.
- Note 1 above.
- See, too, the remarks by Sachs J in the Sodomy ruse (note 1 above) para 124 where he explains the distinction between the violation of dignity under the equality clause and the violation of s 10. which he says contemplates a wider range of situations. The distinction is less clearly draw n in the Immigration case (note 1 above).
- The importance of this relates to there being no need to embark on a limitations analysis in relation to the dignity right. However, in practice, a violation of s 10 might well go hand in hand with a violation of the equality right. Viewed in this way. it is possible that Fagan's concerns around the ‘strength’ of the test might be met. See note 13 above.
- See text accompanying notes 13 and 15 above.
- The International Covenant on Civil and Political Rights and the International Covenant on Social and Economic Rights are two international human rights instruments that endorse the view that other rights derive from dignity. See note 72 below. One need not take the view that dignity is a prior concept to accept that dignity can embrace other rights.
- Section 12 (2) of the 1996 Constitution.
- This relationship might be compared with that which exists between the value of freedom and other ‘freedom rights’ specifically identified in the Constitution. This was the point of difference between Ackermann J and Chaskalson P in Ferreira v Levin NO 1996(1) SA 984 (CC).
- For example, limitations on hate speech in the freedom of expression right (s 16) or resource limits on social and economic rights (ss 26 and 27).
- In Dawood (note 39 above), s 10 of the 1996 Constitution was held to cover the right to family life, which has no specific protection.
- See note 11 above.
- The result of this analysis is that the same values inform both the content of a right and considerations that have a bearing on justifications for its limitation. Meyerson raises this as a concern in Rights Limited (note 44 above) xxiv. This concern might be addressed in part in that the dignity in question might relate to different dignity interests or the dignity interests of different people. See for example Christian Education South Africa v Minister of Education 2000 (4) SA 757 (CC).
- This is not to suggest that human dignity or freedom, two other foundational values, should be understood out of their social and collective context.
- See Chaskalson (note 2 above) on the place of dignity in the United Nations instruments and its link to inequalities perpetrated by the Nazi regime.
- Proclaimed by the United Nations General Assembly (UNGA) by Resolution 1904 (IVIII) 20 November 1963.
- Albertyn and Goldblatt (text at note 17 above). Davis ‘Equality: the Majesty of Legoland Jurisprudence’ (note 2 above) 412 also takes the view that dignity is an individualistic concept. Davis argues in respect of the Harksen decision that the majority were prevented from analysing collective — rather than individual — concerns because of their conflation of the individual value of dignity with that of equality. He suggests that Sachs J (dissenting), though at pains to do so, did not succeed in including collective considerations in his analysis comfortably because of dignity's individualist dimensions. See, too, Davis Democracy and Deliberation (note 2 above) 94.
- Section 39(1) provides that, ‘[w]hen interpreting the Bill of Rights, a court… (b) must consider international law.’
- See, generally, Chaskalson (note 2 above). Of particular importance is the foundational role that dignity, equality and freedom serves in the United Nations Charter and the African Charter on Human and Peoples' Rights (preamble and art 5).
- See the preambles to the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights that recognise that ‘these rights derive from the inherent dignity of the human person.’
- See, for example, the Second Optional Protqcol to the International Covenant on Civil and Political Rights on the Abolition of the Death Penalty (adopted by the UN General Assembly on 15 December 1989); the Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others, approved by Resolution 317 (IV) of UNGA on 2 December 1949; the Declaration on the Elimination of All Forms of Racial Discrimination, proclaimed by UNGA by Resolution 1904 (IVIII) on 20 November 1963.
- See the Declaration on the Granting of Independence to Colonial Countries and Peoples, adopted by Resolution 1514 (XV) of the UN General Assembly on 14 December 1960; the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious or Linguistic Minorities, adopted by UNGA by its Resolution 47/135 on 18 December 1992; the Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others, approved by Resolution 317 (IV) of UNGA on 2 December 1949 and the Declaration on the Elimination of All Forms of Racial Discrimination, proclaimed by UNGA by Resolution 1904 (IVIII) on 20 November 1963.
- See the preamble to the International Covenant on Civil and Political Rights, which reads: Considering that, in accordance with the principles proclaimed in the Charter of the United Nations, recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world, Recognising that these rights derive from the inherent dignity of the human person….
- See the preamble to the International Covenant on Economic, Social and Cultural Rights which is based on the recognition that human ideas can be realised only if ‘conditions are created whereby everyone may enjoy his economic, social and cultural rights, as well as his civil and political rights.’ The preamble uses the same terms as that of the International Covenant on Civil and Political Rights. See note 70 above. See, too, the Universal Declaration on Eradication of Hunger and Malnutrition adopted on 16 November 1974 by the World Food Conference and endorsed by UNGA on 17 December 1974 by its Resolution 3348 (XXIX).
- In this regard it is worth bearing in mind that groups can claim rights as members of a group under s 38(c) of the 1996 Constitution and that certain group rights are specifically afforded protection in ss 30–31.
- Ubunlu is the recognition of human worth and respect for the dignity of every person. See S v Makwanyane (note 34 above) paras 224 (per Langa J), 263 (per Mahomed J) and 308 (per Mokgoro J); and Hoffmann v South African Airways (note 1 above) para 38.
- Sachs J says the following in considering autonomy and privacy in the Sodomy case (note 1 above) para 117: ‘While recognising the unique worth of each person, the Constitution does not presuppose that a holder of rights is an isolated, lonely and abstract figure possessing a disembodied and socially disconnected self. It acknowledges that people live in their bodies, their communities, their cultures, their places and their times.’ Sachs J's remarks were supported by the full Court (ibid para 78). Sachs J also emphasises his view that substantive, and not formal, equality is guaranteed by the situation-sensitive approach because it insists on focusing not on abstract categories but ‘on the lives as lived and the injuries as experienced by different groups in society…. The focus on dignity results in emphasis being placed simultaneously on context, impact and the point of view of the affected persons' (ibid para 126).
- See D Feldman ‘Human Dignity as a Legal Value’ (1999) Public Law 682, 684. See also Schachter (note 35 above 850–1) and Howard (note 52 above).
- Note 52 above 222.
- Such a critique must include an examination of the ways in which protecting individual interests can serve to enhance collective interests and whether and in what circumstances collective interests not met in this way must trump the individual interests.
- ‘Two Concepts of Liberty’ in I Berlin Four Essays on Liberty (1969) 118, 124.
- Note 37 above. See, too, Soobramoney (note 3 above) para 8.
- Note 37 above para 23.
- Ibid para 44.
- Ibid para 83.
- Note 2 above 204.
- Note 80 above 685.
- Marked by the recent passage of the Human Rights Act 1998 (making the rights protected in the European Convention on Human Rights directly enforceable in English courts for the first time).
- Dignity is not explicitly protected as a right in the European Convention though it informs Strasbourg jurisprudence, including its equality jurisprudence.
- Note 80 above 699.
- Conseil Constitutionnel decision no 94–359 DC: loi relative a la diversité de l'habitat 19 janvier 1995. Discussed in Feldman note 79 above 699–700. The discussion of the case demonstrates how dignity, located in the 1946 Preamble to the French Constitution, can serve collective interests and require positive state action.
- Note 45 above.
- Ibid 13.
- Ibid 14.
- Ibid
- Ibid 15.
- The Sodomy case (note 1 above) might be viewed as an example of this. See, too, note 40 above.
- See text at note 20 above. Though their point is focused on the adoption of a substantive equality analysis, it is relevant to the problem that a dignity analysis can support conflicting outcomes.
- See text at note 19 above. See Davis Democracy and Deliberation (note 2 above) 23–48 for a useful exposition of Davis's approach to key jurisprudential questions and its application to equality.
- ‘Equality: the Majesty of Legoland Jurisprudence’ (note 2 above) 413–14.
- Part of Meyerson's concern in Rights Limited (note 44 above) is to provide an interpretation of the phrase ‘human dignity, equality and freedom’ which ‘avoids the problems of subjectivity, uncertainty and apparent conflict between the fundamental values of the Constitution’ and to show that ‘the moral reasoning explicitly required of our judges by the Constitution is no less rigorous and disciplined than more traditional forms of legal reasoning and, in particular, that there is a rationally compelling and unifying account of the phrase’ See Introduction xxv–xxvii.
- For examples of limits on judicial power in Constitutional Court jurisprudence, see S v Mhlungu 1995(3) SA 867 (CC) para 59 (doctrine that the Court should decide constitutional issues only when necessary); Ex Parte the President of the Republic of South Africa In re: Constitutionality of the Liquor Bill 2000(1) SA 732 (CC) paras 6–20 (limited circumstances in which a court should offer an advisory opinion under s 79 of the Constitution), the Immigration case (note 1 above) paras 61–76 (when it is appropriate for a Court to use the remedy of ‘reading in’) and The Investigating Directorate: Serious Economic Offences v Hyundai Motor Distributors (Pty) Ltd 2001 (1) SA 545 (CC) paras 21–26 (the importance of reading statutes in conformity with the bill of rights where possible).
- Note 1 above para 123.
- Though clearly an important debate, it is not the purpose of this article to consider the antidiscrimination focus of the Court's equality jurisprudence. But see P De Vos ‘Equality for All? A Critical Analysis of the Equality Jurisprudence of the Constitutional Court.’ (2000) 63 THRHR 62. Interesting questions arise, for example, when considering the extent to which the equality clause should encompass ‘needs-based’ claims, especially where these are not covered by social and economic rights. This issue that will no doubt be debated in the wake of the Grootboom decision (note 37 above, especially para 23). In principle, it is submitted, there would seem to be no reason why the equality clause should not embrace such claims.
- In this regard see the contrasting approaches of Kriegler J and O'Regan J in the Hugo case (note 1 above) and Davis's arguments about the best way to forge new identities in the context of gender equality in Democracy and Deliberation (note 2 above) 80–82.
- Note 2 above 399. See generally Davis Democracy and Deliberation (note 2 above, especially 70–71). See too E Mureinik ‘A Bridge To Where? Introducing the Bill of Rights' (1994) 10 SAJHR 31, 32.
- ‘Equality: the Majesty of Legoland Jurisprudence’ (note 2 above) 399 and Democracy and Deliberation (note 2 above).
- Ibid.
South African Journal on Human Rights
Volume 17, 2001 - Issue 1