2. Bill of Rights Litigation:
(B) Substantive Stage:
Interpretation:
Human Dignity:
- S1(a): RSA = democratic state founded on the following values: human
dignity
o To prevent injustices of the past [Apartheid & Colonialism didn’t
recognise importance of human dignity]
o S v Makwanyane [329]:
Respect for the dignity of all human beings is particular
important in SA
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 and other foundational values:
- National Coalition for Gay & Lesbian Equality v MoJ :
o Dignity and equality
o Common law crime of sodomy violates right to equality but also
infringed right to dignity enshrined in S10 of the CT
o [28]: the CL 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 doing so, 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:
o Dignity and freedom
o If do not have freedom to fulfil potential – impedes dignity; dilutes how
person views themselves
, o To deny freedom to exercise how one views themselves = denial of
dignity
Human dignity as value, human dignity as right
Human Dignity: Value
- S7(1): BOR = Cornerstone of democracy in SA – enshrines democratic values
of human dignity, equality and freedom
- S36: rights in BOR limited – reasonable & justifiable in open democratic
society based on human dignity, equality and freedom
- S39(1): Interpretation of the BOR:
o Must promote values – human dignity, equality & freedom
- S39(2): interpreting legislation; CL, customary law; promote spirit, purport and
objects of BOR
- Dawood v Minister of Home Affairs: [35]
o Human dignity informs constitutional adjudication and interpretation of
many other rights
Right to access to adequate housing cannot be fully enjoyed if
housing diminishes dignity (Daniels v Scribante)
- Human dignity and civil rights
o August v Electoral Commission:
Vote of every citizen is a badge of dignity and personhood
Therefore, even if incarcerated – still have a vote and human
dignity still needs to be promoted
- Human dignity and socio-economic rights (and reasonableness review)
o Grootboom & Soobramoney
Reasonableness Review:
- Positive obligation on the state
- Access within reasonable means of the state to realise these rights taking into
account limited resources
Grootboom:
- Non-realisation of adequate housing (& basic necessities of life) = perpetual
diminishment of human dignity in a democracy of human dignity where this
value is enshrined
- Reasonableness of state action wrt CT values of human dignity if not
considered then CT would be worthless
(B) Substantive Stage:
Interpretation:
Human Dignity:
- S1(a): RSA = democratic state founded on the following values: human
dignity
o To prevent injustices of the past [Apartheid & Colonialism didn’t
recognise importance of human dignity]
o S v Makwanyane [329]:
Respect for the dignity of all human beings is particular
important in SA
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 and other foundational values:
- National Coalition for Gay & Lesbian Equality v MoJ :
o Dignity and equality
o Common law crime of sodomy violates right to equality but also
infringed right to dignity enshrined in S10 of the CT
o [28]: the CL 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 doing so, 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:
o Dignity and freedom
o If do not have freedom to fulfil potential – impedes dignity; dilutes how
person views themselves
, o To deny freedom to exercise how one views themselves = denial of
dignity
Human dignity as value, human dignity as right
Human Dignity: Value
- S7(1): BOR = Cornerstone of democracy in SA – enshrines democratic values
of human dignity, equality and freedom
- S36: rights in BOR limited – reasonable & justifiable in open democratic
society based on human dignity, equality and freedom
- S39(1): Interpretation of the BOR:
o Must promote values – human dignity, equality & freedom
- S39(2): interpreting legislation; CL, customary law; promote spirit, purport and
objects of BOR
- Dawood v Minister of Home Affairs: [35]
o Human dignity informs constitutional adjudication and interpretation of
many other rights
Right to access to adequate housing cannot be fully enjoyed if
housing diminishes dignity (Daniels v Scribante)
- Human dignity and civil rights
o August v Electoral Commission:
Vote of every citizen is a badge of dignity and personhood
Therefore, even if incarcerated – still have a vote and human
dignity still needs to be promoted
- Human dignity and socio-economic rights (and reasonableness review)
o Grootboom & Soobramoney
Reasonableness Review:
- Positive obligation on the state
- Access within reasonable means of the state to realise these rights taking into
account limited resources
Grootboom:
- Non-realisation of adequate housing (& basic necessities of life) = perpetual
diminishment of human dignity in a democracy of human dignity where this
value is enshrined
- Reasonableness of state action wrt CT values of human dignity if not
considered then CT would be worthless
