The Dignity Jurisprudence of the Constitutional Court of South Africa: Cases and Materials, Volumes I & II 9780823250080, 0823250083

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THE DIGNITY JURISPRUDENCE OF THE CONSTITUTIONAL COURT OF SOUTH AFRICA

Volumes I and II

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just

ideas

transformative ideals of justice in ethical and political thought

series editors Drucilla Cornell Roger Berkowitz

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THE DIGNITY JURISPRUDENCE OF THE CONSTITUTIONAL COURT OF SOUTH AFRICA CASES AND MATERIALS

Volumes I and II

Edited by Drucilla Cornell, Stu Woolman, Sam Fuller, Jason Brickhill, Michael Bishop, and Diana Dunbar

fordham university press new york

2013

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Copyright ©  Fordham University Press All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means—electronic, mechanical, photocopy, recording, or any other—except for brief quotations in printed reviews, without the prior permission of the publisher. Fordham University Press has no responsibility for the persistence or accuracy of URLs for external or third-party Internet websites referred to in this publication and does not guarantee that any content on such websites is, or will remain, accurate or appropriate. Fordham University Press also publishes its books in a variety of electronic formats. Some content that appears in print may not be available in electronic books. Library of Congress Cataloging-in-Publication Data Cornell, Drucilla. The dignity jurisprudence of the Constitutional Court of South Africa : cases and materials / edited by Drucilla Cornell, Stu Woolman, Sam Fuller, Jason Brickhill, Michael Bishop, and Diana Dunbar. — First edition. volumes cm. — (Just ideas) Includes bibliographical references and index. ISBN ---- (cloth : alk. paper) . Respect for persons—Law and legislation—South Africa. . Constitutional law— South Africa. . South Africa. Constitutional Court. I. Woolman, Stu II. Fuller, Sam (Lawyer) III. Brickhill, Jason IV. Bishop, Michael (Lawyer) V. Dunbar, Diana. VI. Title. VII. Series: Just ideas. KTL.C  .—dc  Printed in the United States of America         First edition

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To Emeritus Justice Lourens “Laurie” W. H. Ackermann For his profound commitment, both as a judge and as a scholar, to the development of the Dignity Jurisprudence

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Contents

Preface

xiii

Acknowledgments

xv

The Dignity Jurisprudence of South Africa Introduction Drucilla Cornell and Sam Fuller



Equality and Nondiscrimination: Some Analytical Thoughts Lourens W. H. Ackermann



The Legal Nature of the South African Constitutional Revolution Lourens W. H. Ackermann



Dignity Jurisprudence: Building a New Law on Earth Roger Berkowitz



The Architecture of Dignity Stu Woolman



Notes

 Legal Cases (–)

Makwanyane



Williams



Ferreira



Bernstein



Soobramoney



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x

Contents

Walker



National Coalition for Gay and Lesbian Equality []



August



National Coalition for Gay and Lesbian Equality []



Dawood



Christian Education South Africa



Hoffmann



Grootboom



Moseneke



Dodo



Mamabolo



Mohamed



Booysen



Carmichele



Investigating Directorate of Serious Economic Offences



Prince



Islamic Unity Convention



Khumalo



Du Toit



Jordan



Khosa



Daniels



Kaunda



Jaftha and Van Rooyen



De Reuck



Bhe



Volks NO



K



Minister of Home Affairs and Lesbian and Gay Equality Project



Van der Merwe



Dikoko



South African Broadcasting Corp.



Barkhuizen



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Contents

xi

Mec for Education



Occupiers



NM



Masiya

 Index of Cases



General Index



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Preface

This book presents the Dignity Jurisprudence of South Africa’s Constitutional Court from  to . To that end, this book contains four critical essays, forty summaries of what we believe to be the most important dignity-related legal cases (they capture the facts and legal history of each), and reduced versions of the most important opinions in those cases. The Dignity Jurisprudence of South Africa may well be one of the most sophisticated and important contributions of the Constitutional Court to International Constitutional Law. Dignity, of course, is also an important ideal, value, and right in other constitutional democracies—it plays, for example, a pivotal role in the legal systems of Germany and Canada. Dignity’s omnipresence in South African jurisprudence cannot be solely explained by its importance in the Western philosophical tradition (e.g., Kant) or its recognition in many post–World War II international instruments and constitutions. In South Africa, our understanding of dignity is shaped and influenced by the African ethical notion of uBuntu. uBuntu—properly understood—demands the respect and the recognition of the dignity of all others. To demonstrate that the relationship between uBuntu and dignity is both rich and generative, a second casebook on uBuntu—uBuntu and the Law: African Ideals and Postapartheid Jurisprudence, edited by Drucilla Cornell and Nyoko Muvangua—was published in . If one still asks, “Why emphasize uBuntu in a casebook on Dignity?” our answer is twofold: uBuntu is an African ideal, and the South African Constitution is, indeed, an African constitution; respect for African ideals, notions of law, and conceptions of jurisprudence is long overdue. We have chosen to present the cases chronologically, because of the importance of the very idea of transformative jurisprudence in a country that continues to undergo a substantive revolution. These cases take seriously the mandate that the Constitution of South Africa is to transform the new nation from one rooted in

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Preface

profound injustice to one that aspires to the justice demanded by the recognition of the dignity of every human being. The court was founded under precarious circumstances, where there was constant worry about whether or not the new dispensation would hold. The justices knew what was at stake in their judgments, for they were giving body to the great ideals in both the preamble to the Constitution and the Bill of Rights itself. The dignity jurisprudence unfolds in the context of a struggle to fundamentally transform an unjust society, and is part of that struggle. These cases were edited so as to show how each of the justices comes to terms with the mandate of the Constitution to transform the country. Thus for example, the foundation for the entire new order rooted in dignity as both an overriding principle and value and a right was that the death penalty was outlawed. The story of how the foundations of a new nation were built is inseparable from the unfolding of this dignity jurisprudence. So the reader needs to follow through its development over the first thirteen years of the new dispensation. This book has only become a reality through the ongoing commitment of various people: Shaun Fergus, Dale Hutchison, and Ute Kuhlmann. We need to note here that Diana Dunbar and Michael Koch have worked tirelessly to bring a long and complicated manuscript to fruition. Without their devotion to this book, it would never have reached the publication stage. However, we would like to single out one person without whom this project would not have been possible: Justice Emeritus of the Constitutional Court, Lourens “Laurie” Ackermann. Justice Ackermann has not only provided enthusiasm for this project. In many respects, his role in the formation of the Constitutional Court’s dignity jurisprudence, and his extra-curial explication of those judgments, continues to inspire jurists, academics, and students alike. Drucilla Cornell Stu Woolman Sam Fuller Jason Brickhill Michael Bishop Diana Dunbar

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Acknowledgments

We want to thank the National Research Foundation through Drucilla Cornell’s Chair of Customary Law, Indigenous Values, and the Dignity Jurisprudence. We want to thank all of the justices of the Constitutional Court who each in his or her own unique way has helped to create the most significant Dignity Jurisprudence in the world today. We are also in their debt for the time, energy, and innumerable conversations that have been offered to all the editors of this book. A book of this size is truly a collective project. Diana Dunbar deserves special thanks for her careful reading and re-reading of the page proofs. Without her devotion and care, this book could not have seen the light of day. Her incisive mind allowed her to pick up mistakes that otherwise would have gone unnoticed. Her commitment to the dignity jurisprudence knew no bounds, and we needed that commitment. We are in her debt. Stephen Seeley also deserves thanks for undertaking the hard and painstaking work of putting together the index. Eric Newman of Fordham University Press has overseen this project from the beginning. Without his hard work and diligence this book would not have been possible. We also wish to thank Michael Koch, who was brave enough to undertake the copy editing of the entire manuscript; his painstaking work is evident on every page. Finally, we thank Helen Tartar for having the vision to publish a case book on South African jurisprudence. Without editors like Helen we would not be able to pursue projects that are both daring and absolutely necessary in our globalized world. Editor’s Note The excerpts and quotes from the legal cases and judgments of the Constitutional Court of South Africa included in this book have been minimally edited for consistency

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Acknowledgments

following US English spelling and punctuation and grammar rules. Footnotes have been omitted. The full case transcripts can be accessed through the website of the Constitutional Court of South Africa: www.constitutionalcourt.org.za/site/judgments/judgments.htm

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THE DIGNITY JURISPRUDENCE OF THE CONSTITUTIONAL COURT OF SOUTH AFRICA

Volume I

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The Dignity Jurisprudence of South Africa

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Introduction Drucilla Cornell and Sam Fuller

The Dignity Jurisprudence of South Africa lies at the very heart of the substantive legal revolution; an ongoing revolution that demands the transformation of South Africa from a horrifically unjust society to one that aspires to justice for all of its citizens. Section  of the Constitution explicitly states that the Republic of South Africa is founded on “human dignity, the achievement of equality and the advancement of human rights and freedoms.”1 THE DIFFERENCE BETWEEN A SUBSTANTIVE AND A FULL REVOLUTION In his work General Theory of Law and the State, Hans Kelsen defined a full legal revolution as “whenever the legal order of a community is nullified and replaced by a new order in an illegitimate way, that is, in a way not prescribed by the first legal order itself.”2 A full revolution would have simply obliterated the entire judicial system in South Africa, including the termination of all the Judges included in that system, as well as the declaration that the former law no longer has any legal validity. Famously, in South Africa, the constitutional dispensation arose out of complicated negotiations between the government of the time and the members of the various parties involved in the Liberation Movement. At the crux of this revolution were the institutional changes described by Justice Ackermann in an article included in this book: On April , , the omnicompetence of the South African legislature, at all levels of government, simply ceased to exist and the Constitution became

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the “supreme law of the Republic,” binding “all legislative, executive and judicial organs of state at all levels of government,” and resulting in “any law or act inconsistent with its provisions, being of no force and effect to the extent of the inconsistency.”3 At the same moment the six so-called “self-governing” territories, and the four so-called “independent” states, were simply imploded and, together with the previous four provinces of the Republic, became part of the national territory of the Republic and redivided into nine new provinces.4 Equally as dramatic in the establishment of this Constitution was its foundation in the ideals of section . These ideals are crucial to the development of a Rechtsstaat, which places demands on all levels of the government to promote the ideals and values of the Constitution through the development of an objective normative order. Thus, laws that do not promote the ideals and values of the Constitution, or worse yet, run against them, are invalid since the Interim Constitution took effect in . That this is the case is one of the complexities of a substantive revolution. Of course one crucial aspect of this complexity, which is not encountered by a full revolution in the Kelsenian sense, is how the invalidating of laws that are found to conflict with constitutional values and ideals will tailor remedies with retrospective effect. It is important to remember here that, whilst the two are linked, the finding of invalidity is separate to the remedy awarded. A declaration of invalidity, in the substantive revolution, is always going to demand a careful analysis of what should be maintained from the old order of law, what must be changed or regenerated so as to be consistent with the Constitution, and in certain extreme circumstances, what should be done away with altogether. Thus, after making an order of invalidity, the extent of the effect of the remedy that is to be afforded needs to be determined. Determining whether the remedy will apply prospectively or retrospectively, stems from the complex nature of a substantive revolution—a revolution that does not negate the previous legal system in a single instantaneous action. But it does establish an objective normative order—objective in the sense that it stands independent of subjects in an actual litigation, that is rooted either in a principle of right or, in the case of the South African constitutional democracy, in the ideals of section  of the Constitution. While it is in the nature of a substantive revolution that part of the old legal system remains, it is crucial that one does not lose sight of the revolutionary aspect of the change in the South African legal system: the introduction of a set of values encapsulated, formulated, and protected by the Constitution, which now prevails over all laws as the supreme law of the land.5 Thus, whether a law is invalidated with retrospective effect, or merely with prospective effect, it will necessarily involve a complex consideration of the founding values and ideals of the Constitution. But we need to note here that the South African Constitution does not rely on the subjective approach to invalidity when such an approach turns on an actual case or conflict between litigants. The difference between an objective and a subjective

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Introduction



approach is that the passage of the Interim Constitution brought into existence a Rechtsstaat rooted in the ideals of section . Thus we need to understand that the Constitutional Court does not invalidate a particular existing law that is found to be inconsistent with the Constitution; it instead declares it to be invalid. In Ferreira v. Levin Justice Ackermann makes the following point: The court does not invalidate the law; it merely declares it to be invalid. It is very seldom patent, and in most cases is disputed, that pre-constitutional laws are inconsistent with the provisions of the Constitution. It is one of this Court’s functions to determine and pronounce on the invalidity of laws, including Acts of Parliament. This does not detract from the reality that preexisting laws either remained valid or became invalid upon the provisions of the Constitution coming into operation. In this sense laws are objectively valid or invalid depending on whether they are or are not inconsistent with the Constitution. The fact that a dispute concerning inconsistency may only be decided years afterwards, does not affect the objective nature of the invalidity. The issue of whether a law is invalid or not does not, in theory, therefore depend on whether, at the moment when the issue is being considered, a particular person’s rights are threatened or infringed by the offending law or not.6

THE SOUTH AFRICAN CONSTITUTIONAL STATE AS A RECHTSSTAAT Crucial to the understanding of the South African constitutional dispensation as a Rechtsstaat are section , governing the “Interpretation of the Bill of Rights,” and section , governing the “Application of the Bills of Rights.” The Constitutional Court has repeatedly stressed that the interpretation of the Constitution must be generous in spirit and explicitly teleological in that it seeks transformation of the entire society, not just the state and its institutions, to live in accordance with the values and ideals that undergird the rights in the Bill of Rights. To quote Justice O’Regan: “In interpreting the rights enshrined in chapter , therefore, the court is directed to the future: to the ideal of a new society which is to be built on the common values which made a political transition possible in our country and which are the foundations of its new Constitution.”7 So what does an explicitly teleological interpretation of the Constitution mean for section , and how do we understand section ’s relationship to the existence of freedoms and rights that were previously recognized as law under the preceding governments and legal systems? Section () of the Constitution explicitly states the following: “The Bill of Rights does not deny the existence of any other rights or freedoms that are recognised or conferred by common law, customary law or legislation, to the extent that they are consistent with the Bill.” So we must ask the question, what is the mandate of section  generally, and more specifically, of section ()? The mandate on the judiciary is to

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comb through the contested law, asking whether or not the specific right or freedom of the common law or customary law is consistent with the Constitution and thus making it evident that they have examined the law at hand as to its consistency with the Constitution. Famously, Justices Ackermann and Goldstone highlight the duty imposed upon the judiciary of the new South Africa in terms of Section (),8 even while recognizing the legal status of certain laws and freedoms of the common law: Our Constitution is not merely a formal document regulating public power. It also embodies, like the German Constitution, an objective, normative value system . . . The influence of the fundamental constitutional values on the common law is mandated by section () of the Constitution. It is within the matrix of this objective normative value system that the common law must be developed. This requires not only a proper appreciation of the Constitution and its objective, normative value system, but also a proper understanding of the common law. We have previously cautioned against overzealous judicial reform. The proper development of the common law under section () requires close and sensitive interaction between, on the one hand, the High Courts and the Supreme Court of Appeal which have particular expertise and experience in this area of the law and, on the other hand, this Court. Not only must the common law be developed in a way that meets the section () objectives, but it must be done in a way most appropriate for the development of the common law within its own paradigm.9

The Carmichele case dealt with the vertical application of the Bill of Rights. We wish to underscore that when there is a vertical application of the Bill of Rights the Constitutional Court, as well as all other courts, must take into consideration section (). This mandate always takes us back to the values and ideals of the Constitution which, in the most profound sense, are the reasons that not only directed the change, nor simply justified the new state’s legitimacy, but, rather, promised that the state transform itself towards a just society. We now need to turn to Dignity as it has been defended—certainly by Justice Ackermann, and arguably by Justices O’Regan and Sachs—as the Grundnorm of the entire Constitution. Undoubtedly, as is pointed out in the following paragraph from the Prinsloo judgment,10 dignity is precisely what was grotesquely violated by the regime of apartheid: “We are emerging from a period of our history during which the humanity of the majority of the inhabitants of the country was denied. They were treated as not having inherent worth, as objects whose identities could be arbitrarily defined by those in power rather than as persons of infinite worth. In short, they were denied recognition of their inherent dignity.”11 It is necessary for any transformation that respect for dignity is recognized as righting a violation. As

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Introduction



mentioned above dignity, as it appears in the new Constitution, has also been explicitly defended as the Grundnorm of the entire legal system. Kelsen has influenced Justice Ackermann’s understanding of dignity as a Grundnorm. In Kelsen, although this need not be the case, a Grundnorm is an external moral or ethical ideal that is the foundation for the entire legal system in question. It need not, and in most cases will not, be part of the legal system itself. So, on one level it is external to the legal forensics and rules of any actual legal system, even if it is the reason for having a legal system in the first place. Of course Kelsen, in his use of the Grundnorm, also turns us back to respect for the long-standing traditions of the community, including any particular nation state’s first Constitution. But under apartheid the rule of law was profoundly distorted to the point that the foundationalist principles of apartheid could certainly not provide a Grundnorm of the New South Africa. Thus, a revolution was called for, and one took place, even if it was not a full Kelsenian revolution. So what has to be respected is the righting of the violation of the dignity of the entire population. And this ethical recognition that the new dispensation must create a new foundation through that inversion is how we can best understand dignity as the Grundnorm of the Constitution. DIGNITY AS GRUNDNORM Having gone this far, how can dignity, understood as explained above (as the Grundnorm of the Constitution), be both external and internal to the Constitution? We need to look at the specific language of section  to understand how dignity is the “external” ethical ground of the entire new dispensation and the social relations within it, and an internal right enforceable by the new state. Section  of the Constitution states: “Everyone has human dignity and the right to have their dignity respected and protected”—everyone has dignity, and it is that inherent dignity that must be respected and protected as a right. Justice Ackermann has been most explicit in this reading of section , and has done so through an interpretation of the writing of Immanuel Kant. The inherent values of human dignity, equality, and freedom are emphasised and reinforced throughout Chapter  of the Constitution, comprising sections –, which constitute the Bill of Rights. It is significant that section  first proclaims that “everyone has inherent dignity” before entrenching the right of “everyone . . . to have their dignity respected and protected.” This underscores, in my view, the recognition by the Constitution that human dignity is not merely a protected and entrenched right, but that the concept of human dignity is definitional to what it means to be a human—that all humans have inherent dignity as an attribute independent of and antecedent to any constitutional protection thereof. It is, I would argue, accepted as a categorical constitutional imperative.12

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Drucilla Cornell and Sam Fuller

To summarize, dignity is a moral attribution of persons that precedes any constitutional dispensation. But dignity is also the moral ideal, the foundation of the entire Constitution and its Bill of Rights. To understand dignity as an ideal attribution we have to turn to Immanuel Kant, as did Justice Ackermann. KANT IN THE CONSTITUTION Justice Ackermann has explicitly introduced Immanuel Kant into the South African Constitution as an important secular justification for the understanding that dignity is an ideal attribution of all persons, and therefore it follows that all persons have intrinsic equal worth. Kant has a very different conception of freedom to that which has been developed in the empiricist Anglo-American tradition. Under the AngloAmerican tradition freedom is most broadly defined as absence of restraint, and particularly from the interference of others. For Kant, a human being is of incalculable worth and has dignity precisely because through our practical reason we can exercise our autonomy and lay down a law unto ourselves, which for Kant is the moral law, or, the categorical imperative. Kant, famously, tried to capture our finitude by arguing that we are creatures who live our desires and our needs, as do all other animals, and yet we have a possibility that can neither be theoretically demonstrated, nor theoretically denied, that we can, as a matter of possibility at least, act other to the mechanics of those desires and needs. Kant is often accused of being a terrible prude because negative freedom is seemingly reducible to not doing what you want to do. But that is not at all the case. For Kant a human life is purposive, and when we take ourselves seriously as a being that can set ends for himself or herself as a long-term direction in life, then we should also have the possibility of coordinating our purposes and ends with the ends of others. Indeed, the idea of humanity for Kant is ultimately, inseparable from this possibility that each and every one of us can not only project our ends as our own but also seek to promote a community in which my ends can be harmonized with yours in the “Kingdom of Ends.” Negative freedom, for Kant, is much more limited than positive freedom, but even here he begins with a different notion of freedom than the empiricist Anglo-American one. It does mean, at times, restraining our short-term desires in the name of an overall purpose for our lives. For example, a young man who is a surfer sees perfect waves and yet it is exam time and he is studying to be a lawyer. He weighs the short-term desire to throw away his books and run into the ocean against his long-term desire to enhance his own wellbeing, which could well include both being a lawyer and a surfer. But, during exam period it means that the young man should forsake the waves. This is what Kant means by negative freedom and it is what he calls “prudence.” But positive freedom for a creature that must live in a finite body, and thus within the laws of nature, since a new world or self cannot be created out of nothing, but must proceed through a notion of autonomy that reconciles law and freedom. Indeed, positive freedom for Kant is causality through moral action in which we can

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Introduction



create a new beginning for ourselves as a moral person, and with other persons at least aspire to create a new community guided by the “Kingdom of Ends.” For Kant, autonomy is not at all reducible to the common sense notion of being left alone by others, even if this is more affirmatively defined as self-determination. This is the case precisely because, for Kant, freedom must be law like. Therefore, we are autonomous not when we are self-determining, but when we represent ourselves as free from the pulls and tugs of our day-to-day world and determine ourselves in accordance with what we ought to be and what we ought to do. When we act under the law of the categorical imperative we can also represent ourselves as acting with others who have this possibility of autonomous action. We can also represent ourselves as acting as both legislators and members of the “Kingdom of Ends” in which we regulate ourselves in accordance with the possibility of positive freedom. Human beings, for Kant, have dignity as an ideal attribution because we are the ones who are able to exercise freedom both in a positive and a negative sense. Negative and positive freedom together, as Kant understands them, means that it is human beings who set value “on ends” and that there is an “I” that we project as a necessary postulate of reason to which we come back to as the basis of those ends.13 To understand freedom in this way has two aspects, which are extremely significant for the law of the New South Africa. First, as we have seen, all human beings have equal worth because we all have the possibility of the rational exercise of freedom. We can and must regard all human beings through the representation of that possibility. Thus, Kant introduces the idea of horizontal thinking, by which we mean the recognition that all creatures that are defined by this possibility because of their finitude have equal worth. And therefore, any return to hierarchies, which denies to any human being that they too have this possibility, is fundamentally rejected. Thus, in this sense, Justice Ackermann has it exactly right when he connects dignity with equal worth through his understanding that the possibility of acting morally and ethically is always one that anyone of us can aspire to. As an ideal attribution dignity can be violated and can be the basis of equal worth; but dignity is not something that can be lost. Thus the inversion that we have referred to as the basis of the Grundnorm of the Constitution, that is that everyone has dignity, is not a statement about how human beings are, but how we might possibly be together in the “Kingdom of Ends.” And of course section  protects, respects, and indeed enforces the right to have one’s dignity recognized. For Justice Ackermann the categorical constitutional imperative is, precisely, that never again will dignity be violated, and that its respect demands that dignity will not only be treated as a right—as it must be—but also as an ideal that must inform how the other rights in the Bill of Rights are to be interpreted. Thus, on this reading of dignity as an ideal attribution, when a judge uses dignity as a constitutional imperative that a judge is not locked into a kind of formalistic reasoning that says, “we respect the Constitution because it is the Constitution.”

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

Drucilla Cornell and Sam Fuller

Instead, we respect the Constitution because it embodies the values and ideals of a substantive revolution as well as dignity as the Grundnorm of the entire Constitution. And it is these ideals and values of that revolution that give us respect for the Constitution. Thus, if the Constitution ceased to strive to embody the ideals of freedom and equality that, at least in Kant, are inseparable from dignity, then it would no longer be worthy of respect as the supreme law of the new South Africa that has undertaken a substantive revolution. The second aspect of this understanding of dignity as an ideal attribution that demands that our equal worth as persons be recognized is that it can help us understand the significance of the controversial section  of the Constitution. SECTION 8 AND HORIZONTAL THINKING Section () “binds the legislature, the executive and the judiciary and all organs of state.” In countries as poor as South Africa, few are able to afford the costs of litigation. To this end section () legitimates abstract review of statutory provisions where the constitutional invalidity of a statute has not been raised by a litigant in a natural case. Justice Ackermann refers to section  in his argument that there are positive institutional and constitutional considerations in favor of abstract review: Under section (), the Bill of Rights directly binds the legislature, the executive, and all organs of state, and section () obliges the state to “respect, promote and fulfil” the rights in the Bill of Rights. Section  not only provides that the Constitution is the “supreme law of the Republic,” and that law and conduct inconsistent with it “is invalid,” it also provides that the “obligations imposed by [the Constitution] must be fulfilled.”14

Furthermore, section () binds a natural or juristic person. Therefore the Constitution can be applied directly and horizontally to relationships between individual persons. And why is this the case? It is the case because this substantive revolution is a constitutional one and therefore there must be legal recognition of relationships of equal worth that can actually be backed by the coercive power of the state as this coercion is mobilized by one individual against another. Ideally, in Kant, since freedom is law-like, it is also internally limited by its law likeness, and therefore one should not be confused by asserting that freedom is a lack of constraint or interference from others. And, of course, we would all be aspiring to live lives in accordance with fidelity to the moral law. So, ideally in the New South Africa there would be no one who would confuse racism or sexism with freedom, because when we behave in a racist or sexist way we are driven by our desires and are not acting autonomously. Of course, we do not live in a world in which we live up to our potential for autonomous action. We give in to our racist and sexist behavior all the time. But, through the recognition of the direct horizontal application of the Constitution we

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

allow the new state to recognize that there will be conflicts of interest that implicate profoundly different views of what it means to treat someone as having equal worth, and indeed will, of course, lead to competing rights situations. And thus section , in a deep sense, is the recognition that we live in a non-ideal world, and yet one that aspires to the horizontal relationships between human beings that dignity demands. As Justice Ackermann himself has noted, there will be many complex situations through an attempt to develop a direct horizontal jurisprudence of dignity. For example, he argues about what it might mean to apply the equality provisions horizontally: In applying the equality provisions horizontally, a court would have to conduct, in effect, a proportionality analysis and evaluation in the process of balancing what is in essence a clash of rights between different persons. A clash between, on the one hand, the right to equality and nondiscrimination and, on the other, the rights of freedom (in its various forms), privacy, property (and possibly others), or combinations of such rights. This clash cannot be resolved without having regard to the nature or severity of the impact of the discrimination on the dignity of the person asserting the right to equality, when giving consideration under section ()(b) to limiting this right or the right clashing with it.15

These kinds of competing rights situations would inevitably lead to complex litigation and demand subtle and innovative thinking on the part of the judge as to how they might be resolved through an appeal to dignity. However, if we connect section  with the substantive constitutional revolution, then this complexity must be embraced. And, as Justice Ackermann has suggested, dignity will play an important role in working through tough competing rights situations. What we are suggesting here is that the horizontal, both direct and indirect, application of the Constitution is crucial to the substantive constitutional revolution that has taken place in the New South Africa. Yes, it is the case that there is no other Constitution in the world that has direct horizontal application. But this may just be one more reason why the South African Constitution is paradigmatic for what is demanded in a postcolonial society in which ethical relationships have been shattered and so many human beings deeply traumatized. It is an extremely difficult task to overcome  years of racialized exploitation.16 There has been a lot of confusion about section  and its relationship to section (). Every natural or juristic person is bound by the Bill of Rights. And it is precisely because of the protection of those rights that competing rights situations arise at the level of the Constitution itself. More importantly section () does not simply turn on whether a litigant chooses to invoke, since section , as well as all the other sections of the Constitution, is part of the objective normative order. As Justice Ackermann explains:

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

Drucilla Cornell and Sam Fuller

It is sometimes suggested that a party has the choice (absent legislation covering the matter) whether or not to invoke the Bill of Rights directly in a particular horizontal dispute. No such choice exists. The wording of section () can simply not be distorted to make horizontal operation of the Bill of Rights dependent on a private litigant’s choice. It is categorical and unconditional, stating quite simply that “[a] provision of the Bill of Rights binds a natural or juristic person . . .”; not “may bound” or “binds if.” It binds by unconstitutional and direct operation of the constitution. Once it so binds, then the provision of () follow. One is no doubt linguistically free, in an appropriate case, to categorize the process under sub-section () as “applying public policy” or “developing public policy.” I have no quarrel with that, provided that the requirements of the subsection are fulfilled. The name given to the process cannot alter the substance of the process.

In summation, one person can take another person to court based on the accusation that their behavior violated a right under the Bill of Rights. If there is no legislation giving effect to the right then the court has to develop the common law. This immediately activates section () and the consequent discipline of section (). The courts are of course bound to develop the common law, under section (), but when dealing with the horizontal operation of the Bill of Rights this must be done in harmony with and subject to the discipline of section (). Of course when dealing only with the vertical operation of the Bill of Rights, the courts will not be applying section () but will act under section () with due regard to section (). DIGNITY AS A VALUE OR IDEAL V. DIGNITY AS A RIGHT The Constitutional Court has explicitly distinguished between dignity as a value, or more precisely, as an ideal, and dignity as an enforceable right. Before continuing we need to distinguish the notion of ideal from the notion of value. Things have a price if they have a relative worth—if they can be replaced. This price is reflected in terms of either a market value or an aesthetic value. However, those things that constitute “the sole condition under which anything can be an end in itself ” exist outside the realm of exchange and replacement and their worth is not relative. And for such things it is absurd to describe their importance in terms of price. Their worth is intrinsic, and that intrinsic worth is dignity.17 This is our understanding of what Justice Ackermann means when he argues that dignity is a constitutional categorical imperative. There can be no competing value that can allow dignity to be replaced with something else. Thus, it is dignity that gives shape to the meaning of freedom and equality as it is integrally tied to both. This, again, is the heart of the inversion of a substantive revolution. Thus, dignity is most properly thought of as an ideal that is irreducible to the balancing processes that take place when weighing

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

competing values. In Dawood, Justice O’Regan, writing for the majority of the court, not only distinguishes dignity as a value and as a right, but also argues that it informs adjudication at many different levels: The value of dignity in our constitutional framework cannot therefore be doubted. The Constitution asserts dignity to contradict our past in which human dignity for black South Africans was routinely and cruelly denied. It asserts it too to inform the future, to invest in our democracy, respect for the intrinsic worth of all human beings. 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. This Court has already acknowledged the importance of the constitutional value of dignity in interpreting rights such as the right to equality, the right not to be punished in a cruel, inhuman or degrading way, and the right to life. Human dignity is also a constitutional value that is of central significance in the limitations analysis. Section , however, makes it plain that dignity is not only a value fundamental to our Constitution; it is a justiciable and enforceable right that must be respected and protected. In many cases, however, where the value of human dignity is offended, the primary constitutional breach occasioned may be of a more specific right such as the right to bodily integrity, the right to equality or the right not to be subjected to slavery, servitude or forced labour.18

Note, again, that Justice O’Regan can be read to be interpreting dignity as a constitutional categorical imperative even when the primary constitutional breach may be of another specific right.19 These rights, in a profound sense, as they are given jurisprudential significance, must be developed so that they do not violate the dignity of another human being. Importantly, Justice Ackermann has made the following observation: “This is the statement of the categorical imperative; however much the right to dignity may suffer infringement in an imperfect world, the inherent dignity that everyone has cannot be destroyed, short of death.”20 Dignity as an ideal attribution is something that can never be confused with the real phenomenal fact of our actual existence in the world, nor identified with any of our actual values. THE RELATIONSHIP BETWEEN DIGNITY, EQUALITY, AND FREEDOM We often find the words dignity, equality, and freedom cited as the founding values of the Constitution. Justice Ackermann first introduced Kant into the discussion of the South African Constitution in Ferreira v. Levin.21 There he quoted, and we paraphrase, that freedom is the original right that belongs to every human being, and that the external realm of freedom, or Recht, restricts the will only when it is incom-

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Drucilla Cornell and Sam Fuller

patible with the freedom of another person according to a universal law.22 We need to stress here that, in the Rechtsstaat, such as that which South Africa aspires to be, the will of another can only be restrained when that person fails to act in a manner that is respectful to the dignity of another person. The difficulty lies precisely in how demanding the constitutional mandate must be if it is indeed to respect the dignity of all others, which inevitably will turn you back to the categorical imperative, or the moral law.23 The minority judgment in Ferreira v. Levin has been controversial since it seems to underscore that freedom is reducible to negative liberty, understood as lack of constraint. As demonstrated above Justice Ackermann explicitly introduces Kant in his discussion in Ferreira so as to highlight freedom as the originary right of all human beings, and therefore the basis of their dignity. We explain what this means for Kant in a moment. For now we need to note that Ackermann relies on contradictory philosophical resources in order to explain that notion of freedom as an originary right. He relies not only on Kant but also on Isaiah Berlin. Berlin, in accordance with the Anglo-American tradition, defines freedom in the negative sense as the space in which a person has the liberty to act without interference from other persons.24 Positive liberty, in Berlin, involves the examination of when and how interference is to be allowed and further examination of the values behind that interference when we allow political legislation to limit negative liberty. Of course Berlin recognized that there would be politically and morally justifiable limitations on negative liberty but, as we will see, Kant and Berlin have completely different understandings of positive freedom. Furthermore, we are going to suggest that these different understandings of positive freedom are relevant to the way one understands the constitutional mandate to respect the dignity of all others. In terms of the South African Constitution Justice Ackermann can be understood to be raising two defences of an originary right to freedom; one following Berlin and one following Kant. Section () of the Constitution states that every person has the right to freedom and security. Justice Ackermann separates the first part of that right from the second. Thus, Justice Ackermann reads section () as stating that everyone has the right to freedom and that the state cannot intrude on that freedom without a proper limitations analysis. Also, the onus must be on the state to justify this intrusion on freedom. It is important to note that the restriction on freedom under the limitations analysis will appeal to another ideal other than freedom. Freedom, for Justice Ackermann, is limited by an external ideal. The majority disagreed with Ackermann’s reading of section (), with the exception of Justice O’Regan who left the question open. Here is where we see how philosophy and law become intertwined. However, as we have seen in Kant, freedom is internally self-limiting because autonomy can only be exercised by laying a law unto oneself, and therefore freedom is limited by its law-like nature. Autonomy, as we have seen, is neither lack of interference nor self-determination—an often commonplace way of understanding autonomy—but instead, the exercise of fidelity to the moral law which allows us to

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

represent ourselves as acting solely from the dictates of practical reason. Indeed, Kant explains the principle of autonomy as such: the will is “not merely subject to the law, but it is so subject that it must be considered as also making the law for itself and precisely on this account as first of all subject to the law (of which it can regard itself as the author).”25 Thus, if Ackermann had followed Kant, the reading he gives to section () would protect a residual right of freedom that is irreducible to any enumerated liberties. As Kant reminds us, freedom always has a critical edge because it is an ideal possibility that allows for our personhood—that is, it makes us persons. Thus, what constitutes freedom can never be captured once and for all, even as our dignity is integrally connected to our possible compliance with the categorical imperative. Freedom cannot be captured once and for all because what it means to do the next right thing is only determined when you face a moral dilemma, and it is never possible to have knowledge of all the moral dilemmas with which you will be faced. Here we are discussing the realm of internal freedom, or moral freedom, but clearly Kant’s notion of freedom as internally self-limiting has implications for whether or not one can regulate under the ideal of freedom enshrined in the Constitution. Remember, internal self-limitation is the limitation of the categorical imperative. Thus, in the “Kingdom of Ends” as a regulative ideal, and that Justice Ackermann dares to argue that the new South Africa aspires to nothing less than the “Kingdom of Ends,” we can reconcile our freedom with all others precisely because freedom for the individual is already internally self-limiting. What do we mean by this? We mean that freedom for the individual is limited by autonomy, as understood in the manner that we have just described. Under this philosophical understanding of freedom, white people, although in control of the apartheid state, were not free under apartheid. Indeed, in the Kantian sense of freedom, no one was free. When we degrade another human being we fail to respect ourselves as well as other people as rational beings. Therefore we are not legislating together in a society that aspires to the “Kingdom of Ends,” and therefore we are not free, neither individually nor collectively. Clearly black people had their freedom horrifically violated. But, white people also lost their freedom. And, it was not only the white people who were banned, killed, or exiled, who had lost their freedom, it was all white people who had lost their freedom. Indeed the majority of white people were eaten up by an anxiety that blocked their ability to represent themselves as autonomous beings, and thus were not able to free themselves from the bonds of racism and coordinate their own ends with all others. This meant that nobody was free under the political regime of apartheid. Kant then, is in no traditional sense an individualist. Freedom has both a subjective and an objective aspect represented in Kant in the realms of internal freedom, or moral freedom, and external freedom, or Recht (which cannot simply be translated as law). The substantive revolution was to transform the realm of external freedom through, as we have argued, an inversion of a society in which the dignity of individuals was trampled upon, whether they were the oppressed, the oppressor, or the

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Drucilla Cornell and Sam Fuller

beneficiaries of oppression. Why would this matter in South Africa if it was legally possible to regulate under the name of freedom, and not simply limit freedom through external ideals such as equality? We can see immediately how this might impact on the field of social and economic rights in which people could be called upon to exercise their freedom, understood through the critical edge of Kant. So, for example, privileged whites could forsake some of their ends, for example, unlimited enrichment, not simply for the sake of some greater social good, but in the name of their own freedom to legislate in the “Kingdom of Ends.” We can also see how the protection of gay and lesbian rights, which now includes gay and lesbian marriage, can also be understood through a Kantian conception of freedom in that the denial of such rights to gays and lesbians degrades them in the Kantian sense. As sexuate beings we are, of course, not free to step out of our bodies and precisely because of this, we need the moral and psychic space to represent who and how we are in our sexuality and in our intimate relations.26 If one group of people are denied that right of self-representation then they are degraded, in the Kantian sense. They are treated as beings of lesser worth; as a means to an end, rather than ends in themselves. And thus if someone chooses to degrade persons they can be restricted under the name of freedom which, as we have seen in Kant, is integrally tied to dignity. Degradation, then, is the denial of our equal worth as persons. We can see how important the idea of self-representation is in the case of Bernstein,27 which develops a nuanced definition of privacy that recognizes that respect for the right to privacy necessarily involves the acknowledgment of the communal bonds and the responsibilities that inhere in the nature of those bonds. The right to privacy, then, is both grounded and limited through the appeal back to the concept of identity, or what we have called the right to self-representation. This definition of privacy is captured by Justice Ackermann in the following excerpt from Bernstein: “The scope of privacy has been closely related to the concept of identity and it has been stated that ‘rights, like the right to privacy, are not based on a notion of the unencumbered self, but on the notion of what is necessarily to have one’s own autonomous identity.’”28 In a certain sense then, including the freedom imbedded in the right to privacy cannot be separated from responsibility. And these responsibilities are given ever-greater weight as a person moves into the public realm, not just as a public official but as, for example, an accountant for a major corporation. However far one might wish to go with constitutional legal regulation in the name of freedom it should be clear by now why equal worth is inseparable from the respect for the dignity of all others. We have equal worth precisely because dignity is an ideal attribution to each one of us as part of the great idea of a shared humanity rooted in our autonomy. But why is the philosophical discussion of Kant relevant to the Constitution of South Africa? Obviously the Constitution cannot demand that we all be Kantians, and indeed it would be an outrageous hubris to make such a demand in an African country. We are making a different point here, which is that

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

a Kantian informed understanding of freedom may help us think through the role of dignity in the competing rights situation that inevitably arises under section (), whether horizontality is direct or indirect. Even though in Ferreira v. Levin the majority of the constitutional court has disagreed with Justice Ackermann’s interpretation of section (), it is clear that the Constitutional Court continues to stress that there must be a principled relationship between dignity and freedom. Indeed this was explicitly recognized by Chief Justice Langa in the Pillay case where he made the following statement: “While the majority in Ferreira v. Levin distanced themselves from Ackermann J’s broad construction of freedom as a self-standing right, there is nothing to suggest they questioned his link between freedom and dignity.” We want to draw out the important constitutional implications of a more Kantian inspired notion of freedom. One of Justice Ackermann’s own examples demonstrates how this conception of freedom can help us give definitional significance to the use of dignity as a justiciable principle to resolve competing rights situations: “Primus, a white racist and sexist male, runs an all-white, all-male bridge club in his home. Secunda, a black female activist, seeks to join the club and enters Primus’ home for that purpose. Primus seeks to have her ejected for trespassing. The arguments might proceed as follows: Against ejection, reliance would be placed on the direct horizontal application of the equality provisions; the differentiation is on a specified ground, therefore it is presumed to constitute unfair discrimination and in any event the impact of the discrimination impairs the trespassers’ human dignity. Against this Primus would assert, at least, his right to privacy and his right to freedom of association, contending that there is no “open and democratic society based on human dignity, freedom and equality” that forbids persons to be whimsical or capricious or racist in their social relations, or as to whom they will admit to their homes. Primus is asserting a constitutional right, and if this right were to be limited by prohibiting ejection this would constitute a severe substantive limitation of a significant right universally recognised in the societies referred to. In granting ejection, the law’s enforcement of discrimination is incidental and “[t]he victim of such discrimination . . . suffers a minor limitation and a limited and unpublic indignity.”29

So, how could the more Kantian-inspired notion of freedom help us resolve this dispute? Under the Kantian notion of freedom, which we have defended, privacy must be read in conjunction with dignity. This means that even Justice Ackermann’s example does not yield an easy solution, despite the profound association with one’s home with an intimate space that must not be invaded, even by the greatest ideals. As Justice Ackermann himself has noted, privacy, as we move away from questions crucial to one’s most basic sense of self, becomes more and more attenuated. For

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example, although we are arguing freedom-as-autonomy, it forces us to rethink all of our prejudices about privacy, and certainly the concept of the sanctity of our own home, we want to change Justice Ackermann’s hypothetical somewhat so that the complexity of competing rights situations like this are put within the overall context in which horizontality refuses the privatisation of apartheid. If we now turn to our slightly revised hypothetical we can see how the degradation principle, associated with Kant’s notion of freedom, can and must do real constitutional work in the New South Africa. For instance, Primus is a restaurant owner who likes to invite his cronies in to play bridge. They sit at the back of the restaurant on Tuesday nights and play bridge. Sometimes a diner asks to join the club, and they are welcomed, as long as they are white men. Secunda, a regular diner, has noted that the bridge club can be expanded to include those other than the original group of cronies. However, when she herself requests to be included in the club she is refused, even though she is an avid, committed, and talented bridge player. In this hypothetical we would have no difficulty at all in concluding that Secunda has been degraded by her refusal into the bridge club in the semipublic setting of a private restaurant. We would argue that in both examples, even though one is more controversial, if Primus is acting from sexist and racist motives then he is degrading, even if unconsciously so, Secunda. He is degrading the black female activist by treating her as a person of lesser worth. And, given the inversion that we have described as the heart of the substantive revolution, we would need to be particularly sensitive to this kind of degradation. More importantly, Primus is not acting autonomously when he excludes her, and therefore it would not be a violation of his personhood to resolve the dispute by accepting that she should be included. This would be done under a concept of freedom, not simply under a concept of equality of women. Thus, when we understand section () as a matter of principle, its mandate is not to privatize apartheid. However, we want to give a particular interpretation of what the privatization of apartheid means, for indeed, in seeking to create a private space in which a black woman can be degraded is to fall afoul of the constitutional mandate to respect the dignity of all others. Primus can still have his club, he can still play bridge, he can still carry on with all of his activities, he would just have to do so in the presence of a black woman. What is the difference between this understanding of autonomy and the Anglo-American tradition of negative liberty? We are of course interfering with Primus’s action of exclusion and therefore we would need to appeal to an external ideal or value to justify such interference. However, since under the Kantian inspired notion of freedom Primus is not acting freely, we can therefore regulate Primus’s behavior in the name of his dignity as well as in the name of the dignity of the black female activist. Constitutionally, this protection of intrinsic equal worth has played a crucial role in the equality jurisprudence. It has played a role in the finding of discrimination on an unlisted ground and in the provision of legal meaning to what unfairness or fairness might mean even if discrimination is found. Fairness in the equality jurispru-

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

dence is directly connected to whether or not an individual’s dignity has been violated. As Justice Sachs distinctly argues: “I would like to endorse, and I believe, strengthen this argument by referring to reasons of principle and strategy why, when developing equality jurisprudence, the Court should continue to maintain its focus on the defined anti-discrimination principles of sections (), () and (), which contain respect for human dignity at their core.”30 What we have tried to show so far is the connection between dignity, freedom, and equality as these grounding ideals have been defined as integrally connected in the dignity jurisprudence. As we have already argued, Justice Ackermann has highlighted the centrality of dignity in the horizontal application of the Constitution. This horizontal application of the Constitution would have to involve the limitation of one of the party’s rights. To some degree, of course, and to turn to our earlier discussion, how one thinks about that limitation will turn on how far one should constitutionally undertake regulation in the name of freedom. That said, the limitations clause, as it justifies any limitation on the exercise of the rights in the Bill of Rights must itself turn back to whether that limitation is in accordance with human dignity. As we have stressed throughout, the reach of the dignity jurisprudence will ultimately turn on its central place in the substantive revolution, which constituted the new South Africa. In the further development of the dignity jurisprudence all judges will have to be returned to the significance of the substantive revolution in