CONSTITUTIONAL LAW 271 BILL OF RIGHTS
LITIGATION
B: SUBSTANTIVE STAGE
SUBSTANTIVE STAGE
1. Interpretation (S 39)
• Ss 10, 1(a), 7(1), 36; 39(1)(a), 39(2) of the Constitution, 1996
• Dawood v Minister of Home Affairs 2000 (3) SA 936 (CC), 2000
(8) BCLR 837 (CC)
• Teddy Bear Clinic for Abused Children v Minister of Justice 2014
(2) SA 168 (CC); 2013 (12) BCLR 1429 (CC) paras 52 – 58
• Mahlangu v Minister of Labour 2021 2 SA 54 (CC) paras 1-9;
28-30; 108-115
HUMAN DIGNITY
S1(a)
1. The Republic of South Africa is one, sovereign, democratic state
founded on the following
values:
(a) Human dignity, the achievement of equality and the
advancement of human
rights and freedoms.
Why? Injustices of the past
Apartheid & colonialism = did not recognize importance of human
dignity
S v Makwanyane para 329 !
Respect for the dignity of all human beings is particularly
important in South Africa. For apartheid was a denial of a
common humanity. Black people were refused respect and
dignity and thereby the dignity of all South Africans was
diminished. The new constitution rejects this past and affirms
the equal worth of all South Africans. Thus recognition and
protection of human dignity is the touchstone of the new
political order and is fundamental to the new constitution
Human dignity & other foundational values
National Coalition for Gay & Lesbian Equality v Minister of Justice
para 28-29
Dignity & equality
Although common law crime of sodomy violates right to equality
(between hetero- and homosexual men) ALSO infringes right to
dignity enshrined in S10 of the CT
Para 28: The common-law prohibition on sodomy criminalises all
sexual intercourse between men: regardless of the relationship of
the couple who engage therein, of the age of such couple, of the
place where it occurs, or indeed of any other circumstances
whatsoever. In so doing, it punishes a form of sexual conduct which
is identified by our broader society with homosexuals. Its symbolic
effect is to state that in the eyes of our legal system all gay men are
criminals. As a result of the criminal offence, gay men are at risk of
, arrest, prosecution and conviction of the offence of sodomy
simply because they seek to engage in sexual conduct which is part
of their experience of being human
Ferreira v Levin
Dignity & freedom
If do not have freedom to fulfil protentional - impedes dignity &
dilutes how person views themselves
Dignity cannot be fully respected unless individual permitted to
exercise the view they hold of themselves to obtain fullest potential
& to deny this freedom = denial of dignity
Human dignity as a value & human dignity as a right:
VALUE of human dignity
S7(1): BOR is a cornerstone of democracy in South Africa - It
enshrines the
rights of all people in our country and affirms the democratic values
of human
dignity, equality and freedom
S36: The rights in the BOR may be limited only in terms of law of
general
application to the extent that the limitation is reasonable and
justifiable in an open
and democratic society based on human dignity, equality and
freedom
S39(1) INTERPRETATON OF BOR: When interpreting the BOR, a
court, tribunal or forum—
(a) must promote the values that underlie an open and democratic
society based
on human dignity, equality and freedom
Dawood v Min of Home Affairs para 35: Human dignity therefore
informs constitutional adjudication and interpretation at a range of
levels. It is a value that informs the interpretation of many,
possibly all, other rights
S39(2): Interpreting legislation, developing common law or
customary law = promote spirit, purport and objects of BOR
! HUMAN DIGNITY INFORMS INTERPRETATION OF OTHER RIGHTS
Eg. Right to access to adequate housing - cannot be fully enjoyed if
housing diminishes dignity (Daniels v Scribante)
Human dignity & civil rights:
August v Electoral Commission para 17: The vote of each and
every citizen is a badge of dignity and of personhood
Even if incarcerated = still have a voice, still human and dignity
needs to be promoted
Human dignity & socio-economic rights (reasonableness review)
Grootboom, Soobramoney
Positive obligation on the State
Access: within reasonable means of the State to realize these rights
taking into account limited resources
Grootboom:
LITIGATION
B: SUBSTANTIVE STAGE
SUBSTANTIVE STAGE
1. Interpretation (S 39)
• Ss 10, 1(a), 7(1), 36; 39(1)(a), 39(2) of the Constitution, 1996
• Dawood v Minister of Home Affairs 2000 (3) SA 936 (CC), 2000
(8) BCLR 837 (CC)
• Teddy Bear Clinic for Abused Children v Minister of Justice 2014
(2) SA 168 (CC); 2013 (12) BCLR 1429 (CC) paras 52 – 58
• Mahlangu v Minister of Labour 2021 2 SA 54 (CC) paras 1-9;
28-30; 108-115
HUMAN DIGNITY
S1(a)
1. The Republic of South Africa is one, sovereign, democratic state
founded on the following
values:
(a) Human dignity, the achievement of equality and the
advancement of human
rights and freedoms.
Why? Injustices of the past
Apartheid & colonialism = did not recognize importance of human
dignity
S v Makwanyane para 329 !
Respect for the dignity of all human beings is particularly
important in South Africa. For apartheid was a denial of a
common humanity. Black people were refused respect and
dignity and thereby the dignity of all South Africans was
diminished. The new constitution rejects this past and affirms
the equal worth of all South Africans. Thus recognition and
protection of human dignity is the touchstone of the new
political order and is fundamental to the new constitution
Human dignity & other foundational values
National Coalition for Gay & Lesbian Equality v Minister of Justice
para 28-29
Dignity & equality
Although common law crime of sodomy violates right to equality
(between hetero- and homosexual men) ALSO infringes right to
dignity enshrined in S10 of the CT
Para 28: The common-law prohibition on sodomy criminalises all
sexual intercourse between men: regardless of the relationship of
the couple who engage therein, of the age of such couple, of the
place where it occurs, or indeed of any other circumstances
whatsoever. In so doing, it punishes a form of sexual conduct which
is identified by our broader society with homosexuals. Its symbolic
effect is to state that in the eyes of our legal system all gay men are
criminals. As a result of the criminal offence, gay men are at risk of
, arrest, prosecution and conviction of the offence of sodomy
simply because they seek to engage in sexual conduct which is part
of their experience of being human
Ferreira v Levin
Dignity & freedom
If do not have freedom to fulfil protentional - impedes dignity &
dilutes how person views themselves
Dignity cannot be fully respected unless individual permitted to
exercise the view they hold of themselves to obtain fullest potential
& to deny this freedom = denial of dignity
Human dignity as a value & human dignity as a right:
VALUE of human dignity
S7(1): BOR is a cornerstone of democracy in South Africa - It
enshrines the
rights of all people in our country and affirms the democratic values
of human
dignity, equality and freedom
S36: The rights in the BOR may be limited only in terms of law of
general
application to the extent that the limitation is reasonable and
justifiable in an open
and democratic society based on human dignity, equality and
freedom
S39(1) INTERPRETATON OF BOR: When interpreting the BOR, a
court, tribunal or forum—
(a) must promote the values that underlie an open and democratic
society based
on human dignity, equality and freedom
Dawood v Min of Home Affairs para 35: Human dignity therefore
informs constitutional adjudication and interpretation at a range of
levels. It is a value that informs the interpretation of many,
possibly all, other rights
S39(2): Interpreting legislation, developing common law or
customary law = promote spirit, purport and objects of BOR
! HUMAN DIGNITY INFORMS INTERPRETATION OF OTHER RIGHTS
Eg. Right to access to adequate housing - cannot be fully enjoyed if
housing diminishes dignity (Daniels v Scribante)
Human dignity & civil rights:
August v Electoral Commission para 17: The vote of each and
every citizen is a badge of dignity and of personhood
Even if incarcerated = still have a voice, still human and dignity
needs to be promoted
Human dignity & socio-economic rights (reasonableness review)
Grootboom, Soobramoney
Positive obligation on the State
Access: within reasonable means of the State to realize these rights
taking into account limited resources
Grootboom:
