4. Substantive Rights: Human Dignity &
Privacy
TheOneright to Human Dignity
of the founding values of the C, and an enforceable right
•
• The right creates an expectation to be protected from conditions or treatment which
offends a person’s sense of worth in society. In particular, treatment which is degrading,
abusive, humiliating or demeaning. Moreover, conduct which treats a person as less than
human or non-human or as an object
Dignity as a Right and Value
• Dawood: illustrates the fact that dignity operates as both a right and value
• National Coalition: dealing with discrimination on the basis of sexual orientation – court
held that the CL criminalisation of sodomy violated equality and dignity
• Grootboom: notion of dignity invoked in socio-economic rights interpretation, as it is
often done when determining whether the state has acted reasonably to give effect to
various social and economic rights
• Because the value of human dignity informs the interpretation of many rights in the BoR,
in most cases where dignity is offended, the primary constitutional breach occasioned
may be of a more specific right
• This leaves a limited but pivotal role for the right (as opposed to the value) of dignity
• The right to dignity will usually be relied on where none of the other rights will specifically
protect the interest at stake (e.g. Dawood)
• Right to dignity has the potential to be used by the courts to deal with human rights
infringements not specifically addressed by other rights explicitly included in the BoR
• Society may evolve and new forms of indignity arise, and so the court can use the right to
human dignity to provide protection to people affected by things not encapsulated in the
BoR
• This turns the right to dignity into a powerful tool to ensure the BoR addresses evolving
human rights concerns
HUMAN RIGHTS: WHY AND HOW?
Courts often start by asking what the purpose of the right is to see what we are trying to
•
protect with the right. When they decide the scope and content they often do so
contextually (may be different in different cases). Often tension between the individual
and the community – another way of thinking about rights is in a communal sense.
Privacy
TheOneright to Human Dignity
of the founding values of the C, and an enforceable right
•
• The right creates an expectation to be protected from conditions or treatment which
offends a person’s sense of worth in society. In particular, treatment which is degrading,
abusive, humiliating or demeaning. Moreover, conduct which treats a person as less than
human or non-human or as an object
Dignity as a Right and Value
• Dawood: illustrates the fact that dignity operates as both a right and value
• National Coalition: dealing with discrimination on the basis of sexual orientation – court
held that the CL criminalisation of sodomy violated equality and dignity
• Grootboom: notion of dignity invoked in socio-economic rights interpretation, as it is
often done when determining whether the state has acted reasonably to give effect to
various social and economic rights
• Because the value of human dignity informs the interpretation of many rights in the BoR,
in most cases where dignity is offended, the primary constitutional breach occasioned
may be of a more specific right
• This leaves a limited but pivotal role for the right (as opposed to the value) of dignity
• The right to dignity will usually be relied on where none of the other rights will specifically
protect the interest at stake (e.g. Dawood)
• Right to dignity has the potential to be used by the courts to deal with human rights
infringements not specifically addressed by other rights explicitly included in the BoR
• Society may evolve and new forms of indignity arise, and so the court can use the right to
human dignity to provide protection to people affected by things not encapsulated in the
BoR
• This turns the right to dignity into a powerful tool to ensure the BoR addresses evolving
human rights concerns
HUMAN RIGHTS: WHY AND HOW?
Courts often start by asking what the purpose of the right is to see what we are trying to
•
protect with the right. When they decide the scope and content they often do so
contextually (may be different in different cases). Often tension between the individual
and the community – another way of thinking about rights is in a communal sense.
