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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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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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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Introduction



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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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 South Africa. This recognition of the substantive revolution will, in turn, inform the reinterpretation of the meaning of the foundational ideals of the Constitution. What we have tried to show, then, is the logic in the dignity jurisprudence in the relationships it draws between dignity, equality, and freedom. . Founding Provisions: 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. . Rights: () This Bill of Rights 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. . Human Dignity: Everyone has inherent dignity and the right to have their dignity respected and protected. . Limitations: () The rights in the Bill of Rights 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. . Interpretation: () When interpreting the Bill of Rights, a court, tribunal or forum must promote the values that underlie an open and democratic society based on human dignity, equality and freedom. . Judicial authority: () Organs of state, through legislative and other measures, must assist and protect the courts to ensure the independence, impartiality, dignity, accessibility and effectiveness of the courts.

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. Establishment and governing principles [of Chapter  Institutions]: () Other organs of state, through legislative and other measures, must assist and protect these institutions to ensure the independence, impartiality, dignity and effectiveness of these institutions. . Public Service Commission: () Other organs of state, through legislative and other measures, must assist and protect the commission to ensure the independence, impartiality, dignity and effectiveness of the Commission.31

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

A lack of linguistic and other analysis has made the debate on equality and nondiscrimination in the law more complex, and the neglect of such analysis has caused confusion. This article deals with a limited and preliminary, but vital, aspect of equality and nondiscrimination as constitutional and legal concepts and rights. It does not deal with wider aspects of constitutional equality jurisprudence; particularly not with the achievement of restitutional equality,1 nor with the horizontal application of the Bill of Rights, nor with any detailed analysis of the South African Constitutional Court’s equality jurisprudence to date. The narrow contention being advanced is that in law (as in ethics) the words equality, equal, or unequal—in order to be meaningful—can only be used as attributive parts of speech and not as predicative nouns or adjectives. In this respect, the terms attributive and predicative are not used in a strictly grammatical sense, but in a special logical sense that requires the object referred to be specified (e.g. human dignity) in order that the appropriateness of the attributive term (equal or equality) can be judged. Before developing this argument, I will touch on some of the confusion and uncertainty that, I suggest, still reign as to the “true” meaning of equality and nondiscrimination. Although the Constitutional Court has, for South Africa, clearly established that equality of human dignity (human worth) lies at the heart of these concepts, this is not universally accepted, and there are aspects of such an approach that are not yet fully appreciated. Following a methodology of conjecture and refutation,2 the problem I wish to address is the confusion or uncertainty that exists as to the meaning of equality in legal postulates such as “equality before the law,” “equal treatment by the law” and

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in relation to “unfair discrimination” which could be paraphrased as “unfair unequal treatment” or “unfair differentiation.” THE CONSTITUTIONAL COURT Both the South African Constitutional Court and the Canadian Supreme Court have, broadly stated, considered that equality and nondiscrimination are concerned with human dignity (human worth), that equality before the law means that all people should be treated equally with respect to their human dignity (human worth), and that the law should not differentiate in its treatment of persons in a way that affects their human dignity.3 Although the word dignity and on occasion human dignity, is used in the Constitution to describe the right as well as the value of dignity,4 there can be no doubt (in my view) that in the context of the Constitution dignity means “human worth” or “inherent human worth.” This makes the expression synonymous with menswaardigheid in the Afrikaans text and with Menschenwürde and Würde des Menschen in the equivalent article () of the German Basic Law. This is the view taken by the Constitutional Court.5 This is not the place to consider whether the distinction between the “right” to and the “value” of human dignity has always been properly appreciated by scholars or the courts.6 In retrospect, I am also concerned by the fact that, from the beginning, the Constitutional Court, while pointing to the centrality of the value of dignity in the concept of equality and unfair discrimination, has added the following obiter qualification: “Other forms of discrimination, which in some other way affect persons adversely in a comparably serious manner, may well constitute a breach of section () as well.”7 This qualification, although obiter, is not justified and detracts from the fact that as a matter of clear principle, the value of human dignity, and nothing else, is what gives meaning in the law to the concepts of equality and nondiscrimination. I hope that this obfuscatory qualification does not prove to have been too high a price to pay in order to have secured a unanimous judgment. Fortunately the court has never, to the best of my knowledge, had occasion to base any finding of unfair discrimination on the above qualification. One can but hope that it will, with the passage of time, become an anachronism. I do not propose dealing here with the precise legal methodology employed in applying this test, nor with the fact that South African courts clearly apply an objective test in determining whether the law has had a negative impact on human dignity,8 or whether the Canadian courts do the same.9 I limit my inquiry to the confusion and uncertainty that, to my mind, is still to be found among certain lawyers with regard to the legal (and ethical) concepts of equality and nondiscrimination. This is in large measure due, I suggest, to the fact that the various forms of the word equal used to express these concepts, positively or negatively, cannot (in the special logical sense I have already explained) be used predicatively, but only attributively.

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“THE EMPTY IDEA OF EQUALITY”? Aristotle is commonly said to have defined equality on the basis that equals ought to be treated equally and unequals treated unequally in proportion to their inequality; that proportion is the equality of ratios; and that just is that which is proportional and unjust that which violates proportionality.10 Aristotle is not, for present purposes, helpful in determining the particular quality shared by persons who are said to be equal. Not because “it is stated at too high a level of generality”11 but for the reason already advanced. It is therefore not too surprising that so much confusion and disagreement exists amongst lawyers as to what equal means in the concept of equal protection (and benefit) of the law, or what the circumstances are that render differentiation (used in this context as a neutral term) constitutionally objectionable. Aristotle was well aware of the difficulties and touches on some of them in his Politics:12 The good in the sphere of politics is justice; and justice consists in what tends to promote the common interest. General opinion makes it consist in some sort of equality. . . . [I]t holds that justice involves two factors—things, and the persons to whom things are assigned—and it considers that persons who are equal should have assigned to them equal things. But here there arises a question which must not be overlooked. Equals and unequals—yes; but equals and unequals in what? This is a question which raises difficulties, and involves us in philosophical speculation in politics. If you were dealing with a number of flute players who were equal in their art, you would not assign them flutes on the principle that the better born should have a greater amount. Nobody would play the better for being better born; and it is to those who are better at the job that the better tools should be given. If our point is not yet plain, it can be made so if we push it further. . . . Let us suppose a man who is superior to others in flute-playing, but far inferior in birth and beauty. Birth and beauty may be greater goods than ability to play the flute, and those who possess them may, on balance, surpass the flute-player more in these qualities than he surpasses them in his fluteplaying; but the fact remains that he is the man who ought to get the better supplies of flutes.13

I do not propose to survey the literature on the confusion regarding the use and meaning of equal, unequal, equality and so on, referred to above. For illustrative purposes, however, I mention one or two paradigmatic examples. One of the bestknown attempts to demonstrate that equality has no substantive content and is not an independent right, is Peter Westen’s article “The Empty Idea of Equality.”14 Contending that equality was becoming the “argument of first choice” that “threatens to swallow ‘rights’ that once ranked far above it,”15 and after adopting the Aristotelian

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definition of equality, Westen postulates that “[equality] . . . is an idea that should be banished from moral and legal discourse as an explanatory term” on the basis of two propositions that he seeks to establish: . that statements about equality logically entail (and necessarily collapse into) simpler statements of rights; and . that the additional step of transforming simple statements of rights into statements of equality not only involves unnecessary work but also engenders profound conceptual confusion.16 I do not doubt that confusion abounds, but will argue that it is for reasons differing profoundly from those that Westen asserts. Moreover, I believe that he errs fundamentally in asserting that all statements about equality “logically entail and necessarily collapse into” simpler statements of rights. In developing his argument17 that the Aristotelian proposition that likes should be treated alike “is tautological,” Westen advances arguments that, I will in due course endeavor to demonstrate, lack an important analytical step in considering both the philosophical and legal meaning of equality. He raises many well-known arguments seeking to demonstrate the absurdity of trying to explain what it means to call two people alike. Dealing with alike as meaning “alike in every respect” he points out the obvious that no two people are exactly alike in every respect and that “the only things that are completely alike in every respect are immaterial symbols and forms, such as ideal numbers and geometric figures, which are not themselves the subject of morals.”18 The logic is unassailable, but only if Westen’s (and others’) undisclosed and unsubstantiated major premise is granted, namely that the only characteristics of humans that are relevant to a comparative equality enquiry are their biological ones. If one were to postulate that a fundamental characteristic of humans is their dignity (fundamental human worth), that humans are endowed with equal dignity, and that dignity is the only relevant comparator, the same conclusion is far from obvious. I would define human dignity as follows: Human dignity (worth) is the capacity for and the right to respect as a human being, and arises from all those aspects of the human personality that flow from human intellectual and moral capacity; which in turn separates humans from the impersonality of nature, enables them to exercise their own judgment, to have self-awareness and a sense of self-worth, to exercise self-determination, to shape themselves and nature, to develop their personalities and to strive for self-fulfillment in their lives.19 Dealing with alike as meaning people who are alike in some but not all respects Westen asserts, “while the previous definition excludes every person in the world, the present definition includes every person and thing because all persons and things are alike in some respect; and one is left with the morally absurd proposition that ‘all people and things should be treated alike.’”20 It ceases to be absurd if, as argued

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above, the proposition is changed to “all people should be treated alike with respect to their human dignity (worth).” Dealing with alike as referring to people who “are morally alike in a certain respect” Westen remarks that: To say that people who are morally alike in a certain respect “should be treated alike” means that they should be treated in accord with the moral rule by which they are determined to be alike . . . more simply, people who by a rule should be treated alike should by the rule be treated alike, and, seemingly gleefully, concludes: So there it is: equality is entirely “[c]ircular.” . . . Equality is an empty vessel with no substantive moral content of its own. Without moral standards, equality remains meaningless, a formula that can have nothing to say about how we should act. With such standards, equality becomes superfluous, a formula that can do nothing but repeat what we already know.21

It is not, however, my purpose here to point out the circular reasoning of this very attack. I merely want to highlight that Westen does not deal at all with how different the argument would be if alike referred “alike with respect to their innate human dignity” and that like treatment referred to “like treatment with respect to such innate dignity.” Westen cites,22 with apparent approval, the following: “The idea of equality or non-discrimination is essentially a value judgment which cannot be derived from any assertions or speculations regarding the nature of man.”23 Apart from asking why it cannot be so derived, one must point out that the proposition dismisses, in one fell swoop, virtually the entire body of Kant’s work on ethics. At the heart of Westen’s criticism of equality as a moral or legal norm or right is his repeated assertion that equality is “an entirely formal concept,” a “‘form’ of discourse with no substantive content of its own.”24 He moreover contends that: As a form of analysis, equality confuses far more than it clarifies, for at least four reasons: () by masquerading as an independent norm, equality conceals the real nature of the substantive rights it incorporates by reference; () by framing a person’s entitlements in terms of his equivalence to others, equality misleadingly suggests that one person’s right vis-à-vis another’s are identical in all contexts; () by encouraging use of monolithic levels of judicial scrutiny undifferentiated by the importance of the underlying fundamental right, equality erroneously suggests that all questions of equality are to be scrutinised under a single (or sometimes, a two tier) standard of justification; and () by emphasizing that some issues of equality entail dual remedies, equality erroneously implies that it entails uniquely flexible remedies.25

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I refrain from commenting on the correctness of Westen’s analysis and criticism of American equality jurisprudence or on the different “standards of review” developed in such jurisprudence. My contention is a more fundamental one. Equality and its correlative, unfair discrimination (unfair nonequal treatment) do not—properly understood—lead to the negative consequences detailed by Westen. There is an understanding of equality, namely equality of dignity of all human beings that does not “camouflage . . . rights under a formula that makes no explicit reference to the substantive rights it incorporates from elsewhere . . . [or] produce . . . unnecessary confusion, because it does circuitously what could be done directly;”26 that does not “limit itself to ‘a search for equivalences’ with a tendency to assume that what makes for equality in mathematics also makes for equality in law and morals;”27 and that does not “mystify—and . . . skew moral and political discourse . . . [because] it is an empty form having no substantive content of its own.”28 Although Westen, in a subsequent book, Speaking of Equality,29 has modified his original views in several respects,30 he has not yet, in my view, discovered the key to unlocking the confusion. In the following passage he moves closer to the solution, but skirts past it: In order to declare people identical in “relevant respects,” therefore, one must possess a standard of comparison that is an appropriate measure of the state of affairs one wishes to bring about. To declare people identical in normatively relevant respects, one must possess a standard of comparison that is a normatively appropriate measure of the state of affairs one wishes to bring about. . . . The concept of equality does not itself contain criteria for judging standards of comparison; it presupposes them. Equality is a relationship that obtains amongst persons or things by reference to such standards of comparison as have been independently established as appropriate to the states of affairs one wishes to bring about.31

This still deprives equality of substantive content, even in the context of its use in relation to the treatment of human beings. As Westen describes it, it is not a right or an end in itself, but something dependent ultimately on a state of affairs “one wishes to bring about.” Unless of course one postulates (which Westen does not) that the state of affairs one wishes to bring about is one where the dignity of all is equally respected and protected. SOUTH AFRICAN DEBATES ON EQUALITY AND DIGNITY In South Africa, Cathi Albertyn and Beth Goldblatt, in an admirable early contribution,32 refer to the “shifting and contested meanings of equality” and claim that what the Constitution requires is “substantive equality.”33 Since the publication of their article (among other articles), the Constitutional Court has pointed out that “substantive equality” is an imprecise and contested expression not found in the

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Constitution, and has held that, apart from establishing formal equality, the Constitution envisages “remedial or restitutionary equality.”34 The authors themselves (rightly) state that one of the purposes of the equality rights is remedial.35 This is not to suggest that other aspects of equality are not still debated such as, for example, whether equality means equality of opportunity (to be achieved if necessary by remedial or restitutionary measures) or equality of outcomes, but this is not my present focus.36 Albertyn and Goldblatt correctly point out that “the Constitutional Court has sought to define equality by placing the value of dignity at the centre of the equality right.”37 My concern, however, is with the proposition they advance in the next sentence: “We do not agree with this, and argue for the right to substantive equality to be given a meaning independent of the value of dignity, primarily informed by the value of equality,”38 and later: “Equality has been defined in some of the judgments with reference to another value, dignity, rather than through attempting to distil its own, admittedly elusive, meaning.”39 I do not wish to elaborate my profound disagreement with their proposition that the Constitutional Court has erred by its “conflation of dignity with equality” and erred by its “conceptualisation and interpretation of the right to equality in relation to dignity.”40 I do not, of course, disagree with their insistence that contextual analysis is at the center of the equality enquiry,41 nor with much else in this incisive and thought-provoking article. I shall attempt to demonstrate, however, that in the passages highlighted above, the authors incorrectly believe that the word equality can perform a function that it is incapable of doing. I have similar problems with certain passages in the articles by Anton Fagan42 and Dennis Davis,43 apart from other problems that are not relevant here. Fagan argues that no connection exists between unfair discrimination and dignity and that the Constitutional Court simply “got it wrong.”44 He is wrong in singling out Justice Goldstone as the miscreant “who first placed dignity where it does not belong.”45 The three judicial authors of Prinsloo46 must shoulder equal and simultaneous blame if Fagan is right.47 Fortunately for the quartet he is not. I focus on the following comments of Fagan: Differentiation is unfair if it infringes an independent constitutional right or a constitutionally-grounded egalitarian principle.48 An act unfairly discriminates if and only if it confers benefits or imposes burdens on some but not on others, and in doing so it infringes either an independent constitutional right or a constitutionally grounded egalitarian principle.49

In addition, his arguments closely follow Westen’s thesis,50 for example, stating that “a proper understanding of equality reveals it to be superfluous” and that “in so far as our concern is to establish the appropriate action in any given situation, the right

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to equality has nothing to offer us. We might as well dispense with it.”51 Davis also refers to Westen’s article and observes that “[w]hen we consider that equality is central to our Constitution, Westen’s argument makes somewhat disturbing reading, particularly as the Constitution clearly intended that a definite content be given to the concept of equality.”52 After the author’s confidence in the Constitutional Court has been shaken by its judgment in Hugo53—the court having failed (in the author’s view) “to develop a substantive concept of equality which would give clear content to a foundational value”54—he bemoans the court’s “uncritical borrowing from the minority judgment of L’Heureux-Dubé J in the decision of the Supreme Court of Canada in Egan v. Canada . . . Equality is never defined or explained.”55 After a rather slighting reference to Justice O’Regan’s concurrence in Hugo as causing him “particular . . . surprise,” and voicing his dismay at the fact that “[s]uddenly equality has become an abstract notion without any use of a comparator,” he then asserts the following: “The clear problem in the application of . . . [the Constitutional Court’s] own test for equality must have concerned the Court, for it quickly seized the opportunity to clarify its position, in a most unlikely factual context in the case of Prinsloo.”56 As previously indicated, Prinsloo was argued before Hugo, the judgments were delivered simultaneously, and they have to be read together as a composite whole.57 After expressing certain further misgivings, Davis, as part of his conclusion, states the following in robust fashion: The Constitutional Court has rendered meaningless a fundamental value of our Constitution and simultaneously has given dignity both a content and a scope that makes for a piece of jurisprudential Lego-land to be used in whatever form is required by the demands of the judicial designer. Equality is too central a concept to be relegated to a secondary meaning. The Court needs to look at equality as a value which seeks to promote a democratic society that recognises and promotes difference and individual as well as group diversity and thereby exhibits a commitment to ensuring that all within society enjoy the means and conditions to participate significantly as citizens.58

By contrast I think that Susie Cowen has “got it (substantially) right” in her wellreasoned article “Can ‘dignity’ guide South Africa’s equality jurisprudence?,”59 although not specifically in the logico-grammatical terms I have advanced. In regard to the narrow issue with which I am dealing, she rightly comments: “To value equality without saying more does not explain what outcome it is that we value. In Amartya Sen’s language, it does not answer the question, ‘equality of what?’”60 At the root of the concerned and troubled thinking on equality that I have—as selective examples—referred to above, and at the root of similar approaches to equality, equal treatment and nonequal treatment in the context of ethics and law, is the mistaken analytical assumption I have referred to. It is to regard the word equal in

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phrases such as “equal before the law,” “equal treatment by the law,” “nonequal treatment,” and even when used as a noun in an expression like “equality before the law,” as a predicative adjective or a predicative noun, instead of as an attributive adjective or noun (in the special logical sense that I have used throughout). EQUALITY AS ATTRIBUTIVE It is the sort of mistaken assumption that philosophers Peter Geach and Philippa Foot have identified in the work they have done on the concept good as opposed to bad. It is also a mistaken assumption, I contend, in much of the debate on equality and nondiscrimination. Geach uses the terms “predicative adjective” and “attributive adjectives” in a special logical sense.61 In this sense he points out, by way of example, that “ ‘big’ and ‘small’ are attributive; ‘x is a big flea’ does not split up into ‘x is a flea’ and ‘x is big,’ nor ‘x is a small elephant’ into ‘x is an elephant’ and ‘x is small’; for if these analyses were legitimate, a simple argument would show that a big flea is a big animal and a small elephant a small animal.”62 On the other hand, “in the phrase ‘a red book’ ‘red’ is a predicative adjective in my sense although not grammatically so, for ‘is a red book’ logically splits up into ‘is a book’ and ‘is red.’ ”63 Geach concludes that “good” and “bad” are always attributive, not predicative adjectives and invites us to consider the contrast in such phrases as “red car” and “good car.” Person A, with poor eyesight, can at a distance see that an object that is red and B, a color-blind friend with keener eyesight, can merely see it is a car. By pooling information it can be established that the object is a red car. But, says Geach: [T]here is no such possibility of ascertaining that a thing is a good car by pooling information that it is good and that it is a car. This sort of example shows that “good” like “bad” is essentially an attributive adjective. Even when “good” or “bad” stands by itself as a predicate, and is thus grammatically predicative, some substantive has to be understood; there is no such thing as being just good or bad, there is only being a good or bad so-and-so.64

Foot65 affirms the foregoing with the following examples: Peter Geach puts “good” in the class of attributive adjectives, to which, for example, “large” and “small” belong, contrasting such adjectives with “predicative” adjectives such as “red.” Such a colour word operates in independence of any noun to which it is attached, but whether a particular F is a good F depends radically on what we substitute for “F.” As “large” must change to “small” when we find that what we thought was a mouse was a rat, so “bad” may change to “good” when we consider a certain book of philosophy first as a book on philosophy and then as a soporific.66

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The same can be said of equality or equal when applied to human beings and the application to them of the law. They are also words that, in the Geach and Foot sense, are attributive expressions. The expression that person A “is equal” to person B is on its own meaningless. Something has to be added to equal to give it meaning. It must be equal with respect to something else. My argument is that this something else is dignity as meaning “human worth.” To say that people are “equal before the law” and that they enjoy the “equal protection and benefit of the law” means that the law must protect and benefit all people equally with respect to their human dignity. So too, it is the fact that differential treatment impacts negatively on human dignity that “converts” differentiation (as a neutral term) into unfair and hence unconstitutional discrimination. This approach is implicit in Immanuel Kant’s categorical imperatives. For example: In the “Kingdom of Ends” everything has either a price or a dignity. What has a price can be replaced by something else as its equivalent; what on the other hand is raised above a price and therefore admits of no equivalent, has a dignity. What is related to general human inclinations and needs has a market price; that which, even without presupposing a need, conforms with a certain taste, that is, with a delight in the mere purposeless play of our mental powers, has a fancy price; but that which alone something can be an end in itself has not merely a relative worth, that is a price, but an inner worth, that is, dignity.67

And: [A] human being regarded as a persona, that is, as the subject of a morally practical reason, is exalted above any price; for as a person (homo noumenon) he is not to be valued merely as a means to the ends of others or even to his own ends, but as an end in itself, that is, he possesses a dignity (an absolute inner worth) by which he exacts respect for himself from all other rational beings in the world. He can measure himself with every other being of this kind and value himself on a footing of equality with them.68

The contemporary Kantian scholar Allen Wood, when emphasizing certain crucial features of Kant’s ethical thought, the centrality of which, he says “is not fully appreciated or whose very presence is often barely recognised,” succinctly states: “At the top of that list is Kant’s conception of human dignity: the absolute, hence equal, worth of all rational beings.”69 Bernard Williams,70 although disavowing reliance on Kant, implicitly adopts a logico-analytical approach similar to the one I suggest and is implicit in Kant’s reasoning. He advances a number of considerations “that can help to save the political

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notion of equality from [the] extremes of absurdity and of triviality.”71 The absurdity, says Williams correctly, relates to the factual statement that humans are equal in respect of, for example, physical, intellectual, emotional, creative gifts, and the triviality to the political statement that humans “should be equal, as at present they are not.”72 Although his solution to the problem does not explicitly embody the points made by Geach and Foot, to which I have referred, his very statement of the problem and the content of his solution do affirm that the unavoidable question to be asked is “with respect to what are humans equal” and that the answer to such question comes close to being “with respect to their human worth.” One consideration that Williams alludes to is “common humanity” whose features include the anatomical membership of the species homo sapiens, the capacity to speak a language, to feel pain (both from immediate physical causes and from “various situations represented in perception and in thought”) and the capacity to feel affection for others and “the consequences of this, connected with the frustration of this affection, loss of its objects, etc.” He correctly points out that alikeness in the possession of these characteristics is not trivial, and reminds us that there are political and social arrangements that systematically neglect these characteristics in the case of some groups while acknowledging and protecting them in others.73 He rightly rejects as false the suggestion that the different treatment of persons in regard to these human characteristics, merely on grounds of color, rests on some special sort of moral principle. Such a view, he maintains is a purely arbitrary assertion of will, like that of some Caligulan ruler who decided to execute everyone whose name contained three “Rs” . . . [T]hose who neglect the moral claims of certain men that arise from their human capacity to feel pain etc., are overlooking or disregarding those capacities; and are not just operating with a special moral principle, conceding the capacities to such men, but denying the moral claim. . There are other, however, other and less definable categories universal to humanity that may be neglected in political and social arrangements. . . . [T]here seems to be . . . a certain human desire to be identified with what one is doing, to be able to realize purposes of one’s own, and not to be the instrument of another’s will unless one has willingly accepted such role.74

Another respect in which, according to Williams, humans are equal, is with regard to certain sorts of moral ability or capacity, the capacity for virtue or achievement of the highest kind of moral worth . . . [T]here is a powerful strain of thought that centres on a feeling of ultimate and outrageous absurdity in the idea that the achievement of the highest kind of moral worth should depend on natural capacities, unequally and fortuitously distributed as they are; and this feeling is backed up by the observations that

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these natural capacities are not themselves the bearers of the moral worth, since those that have them are as gifted for vice as for virtue.75

In this regard Williams refers to Kant, in whom he believes this strain of thought is to be found “in its purest form.”76 Not only does Kant carry “to the limit the notion that moral worth cannot depend on contingencies” but, as Williams puts it, Kant also “emphasizes in his ‘Kingdom of Ends’ the idea of respect as a moral agent—and, since men are equally such agents, is owed equally to all, unlike admiration and similar attitudes, which are commanded unequally by men in proportion to their unequal possession of different kinds of natural excellence.”77 But I trespass again on work in progress. If my contention is correct, namely, that equal, equality, and similar expressions are attributive words or expressions in the Geach and Foot sense, then the real debate should center around the questions: In what respects are all humans equal? In what respects should all humans be treated equally? My contention is that the attribute in respect of which all humans are equal, must be treated equally and may not be discriminated against, is their common and immeasurable human worth (dignity). This still needs full exploration and elaboration, as does the meaning and import of the concept of human worth in the twenty-first century. However, those who would reject human worth (dignity, menswaardigheid, Menschenwürde) as the correct attribute with regard to the understanding of equality ought, at least, to come up with an alternative.

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

The dramatic history of the birth of a remarkable constitution is well documented.1 My overview of its gestation and birth must perforce be deceptively brief. The South African common law is not, historically, Anglo-Saxon but rather from the time of European settlement in , Roman-Dutch. The received Roman-Dutch law was the common law of Holland prior to the latter’s codification in the first decade of the nineteenth century, and as thereafter applied and adapted in South Africa. Since , English law, more particularly in the fields of company law, evidence, and criminal procedure, has exercised considerable influence. But when difficult questions of substantive private and criminal law arise that are not closely covered by South African precedent, it is to the European commentaries on Justinian’s Digest, and even to the Digest itself, that the courts in the first instance turn. On the other hand, the constitutional law of South Africa, after unification in , was modeled on that of the British Westminster system. The legislator was omnicompetent and supreme; no supreme law existed against which the validity of parliamentary legislation could be tested. IS “CONSTITUTIONAL REVOLUTION” NOT A CONTRADICTION IN TERMS? There was one serious flaw in the model. Even after the suffrage was extended to women, the vast majority of the population remained unenfranchised. By the time South Africa became a republic in , the very limited suffrage that black Africans and persons of mixed racial origin—known as coloreds—had enjoyed in the Cape Province had been removed, and more than  percent of the population had no

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vote in Parliament. Black Africans were supposed to exercise their political rights in their so-called homelands, which constituted less than  percent of the Republic’s territory. Prior to the constitutional revolution starting in , six so-called selfgoverning territories and four so-called independent states had come into existence, pursuant to the notorious scheme of grand apartheid. These were in truth no more than puppet territories. By this time, too, a presidential system had been adopted and the legislature came to be dominated by the executive. Increasing internal resistance and international isolation led to the adoption of the  Tricameral Parliament, which created three separate houses of Parliament for whites, coloreds, and Indians, blacks still being expected to exercise their political rights in their “homelands.” Although trumpeted by the government spin-doctors as a power-sharing arrangement, a variety of gerrymandering provisions ensured that power in the Tricameral Parliament was in fact retained by the majority political party in the white house. South Africa was still in effect a white oligarchy in which whites enjoyed a form of parliamentary democracy. Even the civil rights of whites became seriously attenuated by the passing of draconian security legislation and the promulgation of successive states of emergency in the s. By this time the South African Communist Party, the African National Congress (ANC), and various other liberation movements had been banned for some time. On  February , President F. W. De Klerk announced a series of dramatic concessions, including the unbanning of the major liberation movements, the release of certain political prisoners, and freer political activity. On  February , Mr. Nelson Mandela was released, and on  December  the Conference for a Democratic South Africa (CODESA) was convened. The CODESA process collapsed in mid-, but negotiations resumed in March  at the World Trade Centre outside Johannesburg. This was made possible by the liberation movements agreeing to a constitutionally entrenched system of executive power-sharing for the first five years after the first democratic elections. Thereafter the negotiations proceeded rapidly, with the Interim Constitution coming into effect on  April , and the  Constitution (which prudence and superstition inhibits me from calling the final Constitution) coming into effect on  February .

The Impasse Until eventually resolved, the fundamental impasse that kept the negotiation antagonists from agreement was the manner in which a constitution was to be adopted. The government in power in , the Nationalist Party, wanted agreement on a final constitution to be reached by the élite representatives of the negotiating parties, and such constitution to be passed by an act of the existing Parliament, which the Nationalist Party controlled. In this way the white government in power could keep control of the process until a constitution, with highly entrenched minority and other guarantees, including veto powers to its satisfaction, was agreed to and enacted by the old Parliament. The old government did not want the constitution process to

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be surrendered to a democratically elected constitutional assembly, even if such elections were conducted on the basis of proportional representation. In this way control would be lost of the constitution-making process, with no guarantee at all regarding the constitution that might eventually emerge. On the other hand, the ANC—the main liberation movement—and its allies opposed an élite-negotiated final constitution to be sanctioned and passed by the old Parliament. They saw this as fundamentally undemocratic, particularly as far as their own political supporters were concerned. A true constitution could only be a pact of the people, which could only be achieved if the representatives of all concerned had been authorized to conclude one after the holding of proper elections to this end. It would be undemocratic, demeaning, and limiting to accept a new constitution through and from the old apartheid Parliament. The one constituency feared engulfment by a black majority; the other was determined to eradicate apartheid and its consequences root and branch.

The Tri-component Resolution of the Impasse The negotiating parties concluded a tri-component compromise resolution of this deadlock in November . It embodied the following: a two-stage constitutionmaking and transition process; an agreement on a set of thirty-four inviolable constitutional principles with which the ultimate constitution had to comply; and, an arbiter in the form of the Constitutional Court.2 It enabled both sides to achieve substantially their goals and to keep faith—to a larger or lesser extent—with their respective constituencies. T HE F IRST C OMPONENT The first of these components, the two-stage constitution-making process, required the adoption of two successive constitutions: the Interim Constitution (IC) and a “new” Constitution (which I shall hereinafter refer to either as “the  Constitution” or simply “the Constitution”). The IC was agreed to by the leaders and representatives of the negotiating parties and was duly passed by the old Parliament. It provided for an interim government that would govern the country on a coalition basis while the new Constitution was being drafted. Provision was also made for an interim national legislature, elected (directly and indirectly) by universal adult suffrage, which consisted of a four-hundred-member National Assembly, elected on a purely proportional representation basis, and a ninety-member Senate elected by the nine provincial legislatures, also on a proportional basis. Although the IC came into operation formally on  April  (a date agreed upon in advance by the negotiating parties), its provisions relating inter alia to the election of the interim national legislature and incidental interim legislation came into operation earlier. Under the IC,3 the interim national legislature had to fulfill a dual function: to act as an interim legislature and to be the Constitutional Assembly,4 the constitution-making body that would draft and adopt the text of the new Constitution. As Constitutional Assembly it had to commence this constitution-making task

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within seven days from the first sitting of the Senate and adopt the new text, by a majority of at least two-thirds of the Constitutional Assembly, within two years of the first sitting of the National Assembly.5 T HE S ECOND C OMPONENT The second part of the compromise, relating to the constitutional principles, ensured that the Constitutional Assembly did not have a free hand in adopting the new constitutional text. The agreement reached by the negotiators, and referred to as a “solemn pact” in the preamble to the IC, related to thirty-four so-called constitutional principles and constituted the key to unlocking the impasse in the negotiations. It was the crux of the compromise reached. The IC stipulated that the new text passed by the Constitutional Assembly had to comply with these thirty-four constitutional principles. It did so by providing “the new constitutional text . . . or any provision thereof, shall not be of any force and effect unless the Constitutional Court has certified that all provisions of such text comply with the Constitutional Principles.”6 It is beyond the scope of this chapter to discuss the content of the Constitutional Principles in detail.7 They made provision, in broad terms, for a bill of rights–centered constitutional state, common citizenship, separation of powers, three tiers of government, allocation of powers between national and provincial government, an independent judiciary with full judicial review, the protection of language and cultural diversity, and associational individual rights. A few examples must suffice to convey some idea of their breadth and flavor: CP I: The Constitution of South Africa shall provide for the establishment of one sovereign state, a common South African citizenship and a democratic system of government committed to achieving equality between men and women and people of all races. CP II: Everyone shall enjoy all universally accepted fundamental rights, freedoms and civil liberties, which shall be provided for and protected by entrenched and justiciable provisions in the Constitution . . . ... CP IV: The Constitution shall be the supreme law of the land. It shall be binding on all organs of state at all levels of government.

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CP V: . . . Equality before the law includes laws, programmes or activities that have as their object the amelioration of the conditions of the disadvantaged, including those disadvantaged on the grounds of race, colour or gender . . . ... CP XV: Amendments of the Constitution shall require special procedures involving special majorities . . . ... CP XVIII, para : The powers and functions of the provinces defined in the Constitution, including the competence of a provincial legislature to adopt a constitution for its province, shall not be substantially less than or substantially inferior to those provided for in this Constitution. CP XIX: The powers and functions at the national and provincial levels of government shall include exclusive and concurrent powers . . . ... CP XXI: The following criteria shall be applied in the allocation of powers to the national government and the provincial governments: . . . ... CP XXVI: Each level of government shall have a constitutional right to an equitable share of revenue collected nationally so as to ensure that provinces and local governments are able to provide basic services and execute the functions allocated to them.

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T HE T HIRD C OMPONENT The third component of the compromise was the provision for an arbiter to certify that the provisions of the new text complied with the Constitutional Principles. This task, unique I believe in the annals of constitution making, was entrusted to the Constitutional Court, an entirely new court established under the IC. Both the IC and the  Constitution left the pre- judicial structures, and the judicial officers holding office there under, intact and undisturbed. At the superior court level, there were no more than two or three black judges and one female judge. Considerable criticism had been leveled by, amongst others, the liberation movements against the composition and the judicial performance of the senior judiciary during the apartheid years, and particularly during the various states of emergency. While these critics were, as part of the constitutional compromise, prepared to leave the existing courts intact, they were certainly not willing to entrust the task of reviewing the constitutional validity of national and provincial legislation and executive action in the first democratic South African state to the existing judiciary. For this and other reasons it was decided to introduce, at the apex of the judiciary, an entirely new court, new both in function and in composition. Thus, the Constitutional Court, consisting of eleven justices and obliged to sit en banc in all cases, came into being. Under the IC, the justices held office for a nonrenewable term of seven years, which under the  Constitution was extended to twelve years and later further increased to a maximum of fifteen years.8 Apart from its other exclusive constitutional jurisdiction, the Constitutional Court was, under the IC, the only court9 with the power to set aside parliamentary statutes and those of provincial legislatures, as well as any executive or administrative act, on the grounds of constitutional inconsistency.10 The IC expressly provided that the Appellate Division of the Supreme Court, which until the advent of the IC had been the highest court in South Africa and whose presiding judge had been the chief justice, would have “no jurisdiction to adjudicate any matter within the jurisdiction of the Constitutional Court.”11 The first president of the Constitutional Court, Chief Justice Arthur Chaskalson, was, under the provisions of the IC, appointed by President Mandela in consultation with the cabinet and after consultation with the chief justice.12 Under the Constitution, “in consultation with” means with the “concurrence of,”13 and “after consultation” means a decision taken “in good faith after consulting and giving serious consideration to the views” of the other functionary.14 In the case of the appointment of the president of the Constitutional Court, therefore, Mr. Mandela had to consult with the chief justice in the manner indicated and reach agreement with his cabinet on the incumbent. The Judicial Service Commission (JSC), presided over by the chief justice, was also a creature of the new constitutional dispensation and a decisive break with the past. Under the IC, the JSC was composed of an approximately even number of, on the one hand, representatives of the superior courts, the practicing profession, and

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the university law faculties, and, on the other hand, representatives of the executive and Parliament.15 It continues to have an important advisory function in regard to judicial appointments to all the superior courts. Of the remaining ten judges of the first Constitutional Court, four had to be appointed from among the judges of the existing superior court structure by the president in consultation with the cabinet and with the chief justice (who at this stage was still the presiding judge of the Appellate Division of the Supreme Court).16 I had the honor to be appointed to this position. In respect of the remaining six judges, the following procedure was followed: Candidates were nominated and then interviewed in public by the JSC. The JSC was obliged to recommend ten of these interviewed nominees for appointment.17 In making such recommendations the JSC was obliged to have regard to the need to constitute a court that was independent and competent, and representative in respect of race and gender.18 From those so recommended, the president, in consultation with the cabinet and after consultation with the president of the Constitutional Court, had to appoint the remaining six judges.19 If, however, the appointing authorities decided not to accept any or some of such recommendations, the JSC had to be informed thereof and furnished with the reasons therefore.20 Thereupon the JSC had to make further recommendations, whereafter the appointing authorities were obliged to make the appointments from the recommendations as supplemented.21 It needs to be mentioned in passing that the JSC has, to date, never been requested to make further recommendations. By October  all eleven judges had been appointed, comprising three black males, one black female, one white female, and six white males. Since then, two of the members of the original court have died and three have retired. The court, as presently composed, comprises six black males, one black female, one white female, and three white males. Pursuant to the provisions of the IC, the text of the new Constitution was adopted by the Constitutional Assembly on  May  by a majority of some  percent of its members.22 Two days later the chairperson of the Constitutional Assembly transmitted the text of the new Constitution to the Constitutional Court for the certification process under section () of the IC. The IC, moreover, provided “a decision of the Constitutional Court . . . certifying that the provisions of the new constitutional text comply with the Constitutional Principles, shall be final and binding, and no court of law shall have jurisdiction to enquire into or pronounce upon the validity of such text or any provision thereof.”23 As the Constitutional Court itself observed in the course of its First Certification Judgment, this provision cast “an increased burden [on the Court] in deciding on certification. Should we subsequently decide that we erred in certifying we would be powerless to correct the mistake, however manifest?”24 The court invited notices of objection and written argument in support thereof from political parties and private parties. In the event, objections, written representations, and oral argument were submitted on behalf of five political parties. In

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addition, eighty-four private parties lodged objections. The political parties, the Constitutional Assembly, and twenty-seven of the private parties were granted audience to present oral argument.25 Hearings before the court commenced on Monday  July , and continued until Thursday  July . On  September , judgment was delivered and an order issued declaring that the court was unable, and could therefore not certify that all provisions of the Constitution of the Republic of South Africa  comply with the Constitutional Principles.26 The court held that in nine respects the new text was not in compliance. It did, however, conclude with two observations: “The first is to reiterate that the [Constitutional Assembly] has drafted a constitutional text which complies with the overwhelming majority of the requirements of the [Constitutional Principles]. The second is that the instances of non-compliance . . . although singly and collectively important, should present no significant obstacle to the formulation of a text which complies fully with those requirements.”27 The Constitutional Assembly, pursuant to the provisions of section A() of the IC,28 duly reconvened and on  October  passed an amended text of the new Constitution, not only addressing the grounds for noncertification set forth in the First Certification Judgment, but also effecting many editorial and other minor changes. This amended text was duly29 submitted to the Constitutional Court for certification. Once again an opportunity was given to the political parties and private persons to raise objections and, together with the Constitutional Assembly itself, to make written and oral submissions to the Constitutional Court, who commenced hearing the matter on  November . On  December , the Constitutional Court handed down judgment certifying that all the provisions of the amended text complied with the Constitutional Principles contained in the schedule of the IC. Only from this moment could the  Constitution be put into effect, because of the provisions of section (), which provided “the new constitutional text . . . or any provision thereof, shall not be of any force and effect unless the Constitutional Court has certified that all provisions of such text comply with the Constitutional Principles.”

A Substantive Constitutional Revolution That the IC and  Constitution effected a substantive constitutional revolution cannot seriously be challenged. To take but a few examples: On  April , the omnicompetence of the South African legislature, at all levels of government, simply ceased to exist and the Constitution became 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 it provisions” being of “no force and effect to the extent of the inconsistency.”30 The Constitutional Court was empowered and obliged to declare any law or conduct inconsistent with the Constitution to be “invalid to the extent of its inconsistency.”31

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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. As dramatic as the foregoing was, the protection of fundamental human rights against legislative and executive incursion is, given the South African context, no less significant. Although the Constitution constitutes itself “the supreme law of the Republic” and enacts that law or conduct inconsistent with it is invalid, even this does not adequately reflect the extent of the normative change that has taken place. The Constitution embodies certain fundamental legal norms that are not merely hortatory but rather define the Constitution in a substantive way. Many constitutions, particularly those coming into existence in societies that have recently passed through national crisis, are to a greater or lesser degree reactive in nature; they often embody remedial or prophylactic responses to ills of the past. The South African Constitution is a reactive constitution and in this respect is closer in character to that of the German Basic Law than to the Constitution of the United States or that of Canada. It highlights dignity, equality, and freedom, because these are the rights that have suffered so much in the recent past, and it does so for much the same reason as is done in the Universal Declaration of Human Rights and in the United Nations Charter,32 because it has been the contemptuous disregard of these rights that have, in the words of the Universal Declaration’s preamble, “resulted in barbarous acts which have outraged the conscience of mankind” and whose protection by the rule of law is essential, if humans are not “to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression.”

An Analysis of Past Ills In interpreting the Constitution, and particular provisions thereof, it is permissible and indeed necessary to look at the ills of the past that they seek to rectify and in this way try to establish what equality and dignity mean in the relevant provisions. I do not wish to trivialize the sins of apartheid by attempting a passing summary of them. What lay at the heart of apartheid pathology, quite apart from the murder, torture, and other physical brutality that it eventually led to, was the extensive and sustained attempt to deny to the majority of the South African population the right of self-identification and self-determination. The fact that the apartheid laws did not ultimately achieve their ends, and that the greater majority of black South Africans claimed their freedom and exerted their moral agency, does not detract from the indignity and trauma inflicted by apartheid. The apartheid state not only denied to black South Africans all meaningful participation in the political process, it also tried generally to legislate the lives of its people on the sole criterion of race or ethnic origin. As Archbishop emeritus Desmond Tutu has expressed it: “Apartheid

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claimed that what imbued anyone with worth was actually a biological irrelevance— the color of one’s skin.”33 Who you were, where you could live, what schools and universities you could attend, what you could do and aspire to, and with whom you could form intimate personal relationships was determined for you by the state, or at least the state directed all its power at achieving this end. This of course also denied identity determination in certain respects to whites. However, because such denial in most cases worked to the advantage of whites, the impact was very different, but it could still be damaging. The state did its best to deny to blacks that which is definitional to being human, namely, the ability to understand or at least define oneself through one’s own powers and to act freely as a moral agent pursuant to such understanding or self-definition. Blacks were treated as a means to an end and hardly ever as an end in themselves— an almost complete reversal of the Kantian imperative and concept of priceless inner worth and dignity.34 Such a denial by the apartheid state of innate dignity, as absolute worth, had inevitably to lead, and did lead, to a similarly fundamental denial of freedom and also a most egregious denial of equality. It is, therefore, not surprising that the rights and inherent values of dignity, equality, and freedom lie at the heart of the South African Constitution. Thus, one of the four sets of values on which section  of the Constitution proclaims the sovereign democratic Republic of South Africa to be founded is: “Human dignity, the achievement of equality and the advancement of human rights and freedoms.” It is also the most deeply entrenched of all provisions in the Constitution, any amendment requiring a supporting vote of at least  percent of the members of the National Assembly, and of at least six out of nine provinces in the National Council of Provinces.35 Of particular significance in evaluating the nature of the change brought about by the new constitutional dispensation is the fact that the Constitution is not a formal constitutional document limited to protecting individuals against the unconstitutional exercise of public power, even though its Bill of Rights has the most extensive and detailed provisions of any constitution of which I am aware—in itself a monumental break with the past. The Constitution also establishes an objective normative value system that, as an underlying constitutional value for all areas of the law, acts as a guiding principle and stimulus for the legislature, as well as for the executive and the judiciary.36 I shall be dealing with aspects of this significant feature in the sections below. The above, perforce selective and cursory comments on the nature of the changes brought about by the IC and  Constitution illustrate, I trust, that the constitutional changes described constitute, in substance, a constitutional revolution, in the sense that the previous constitutional disposition was turned on its head, and that the content of the new constitutional dispensation differed radically from the previous one.

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Yet this radical constitutional change would not, in my view, qualify as a revolution procedurally. In his work, General Theory of Law and State, Hans Kelsen formulates a definition of a coup d’état or revolution that has gained wide recognition.37 The crux of the definition is that a revolution takes place “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,” or “the order in force is overthrown and replaced by a new order in a way which the former had not itself anticipated.”38 That did not occur in South Africa. There was no discontinuous legal fracture with the old legal order. The revolution was commenced by a parliamentary statute of that old order (namely, the IC) and controlled by it, and the Constitutional Court was created by it. On  April , the IC came into effect and the first ever democratic elections in South Africa took place. The nature of the change so achieved has been called a miracle. In more secular terms, it was a highly improbable settlement when viewed against the centuries of oppression and indignity inflicted by a minority on the vast majority of a country’s population that had persisted until the last decade of the twentieth century. A revolution indeed, but one achieved constitutionally, with all the accruing benefits. FUNDAMENTAL VALUES AND UNIQUE FEATURES OF THE CONSTITUTION In the previous section, I alluded to the fact that the rights and inherent values of dignity, equality, and freedom lie at the heart of the South African Constitution and enjoy the highest entrenchment in the Constitution, requiring for their amendment a supporting vote of at least  percent of the members of the National Assembly, and of at least six out of nine provinces in the National Council of Provinces.39 The inherent values of human dignity, equality, and freedom are emphasized 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. Section , entrenching equality, first proclaims in subsection () thereof that “everyone is equal before the law” before entrenching the right “to equal protection and benefit of the law.” Section , which entrenches the right to freedom and security of the person in a variety of ways, inter alia provides: “Everyone has the right . . . not to be deprived

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of freedom arbitrarily or without just cause.” The Constitutional Court has held that this right not only has a procedural component but a substantive one as well. This means that a person who is, for example, charged with a crime is not only entitled to fair process, which includes a fair hearing, but also that the conduct criminalized must itself be of such a nature that it warrants criminalization and, upon conviction thereof, the deprivation of the accused’s freedom. The legislature is not free to criminalize, on pain of imprisonment, whatever conduct it pleases. The constitutional validity of the offence itself is subject to judicial scrutiny as to whether it constitutes “just cause” for the deprivation of liberty. It is not wholly surprising that these values lie at the heart of our Constitution and Bill of Rights, because it is these values that are fast acquiring a universal character in democratic societies throughout the world. It is also one of the main reasons, although perhaps not expressly so articulated, why the South African Constitutional Court has set such great store by comparative constitutional jurisprudence, drawing freely on the constitutional jurisprudence of, for example, the United States, Canada, Australia, New Zealand, India, Germany, the European Court of Human Rights, Ireland, and the Privy Council; and why it will no doubt draw in the future on the judgments of the higher courts of the United Kingdom as they continue to develop the law around the Human Rights Act  (UK). I should like at this juncture to focus more closely on human dignity as a fundamental constitutional value, not only because of its own inherent importance but also because of its significance for equality and substantive freedom jurisprudence. Human dignity continues to be assaulted and threatened worldwide. In the previous section I referred to the central position taken by dignity in the Universal Declaration of Human Rights and the UN Charter, as a reminder to ourselves of the events in the s and s of the last century to which the Declaration was a universal response. It is its appeal for the protection of the dignity and equality of all by the rule of law that some regard as the most important “Article” in the Declaration.40 Repeated genocides, systematic torture, and the wholesale slaughter of innocents is surely one of the darkest stains on human civilization. One of the challenges of our times is to establish human dignity as an inviolable, universal legal and social norm. It is currently being threatened by appeals to cultural relativism. The South African Constitution has made its own contribution to counteracting this, in line with other post–World War II constitutions such as, for example, the German Basic Law (GBL). Article  of the GBL places human dignity (Menschenwürde, or “human worth”) at the very core of its protection of fundamental rights, and this Article is made immune from any form of amendment.41 This was a direct reaction to, and an outright rejection of, the totalitarianism and inhumanity of the preceding Nazi period encapsulated by the phrase: “You are nothing; your ‘volk’ is everything.”42 The South African Constitution has reacted similarly. As a point of departure I adopt Günter Dürig’s approach to human dignity: “All humans are human by virtue of their intellectual capacity (“Kraft seines Geistes”) which serves to

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separate them from the impersonality of nature and enables them to exercise their own judgment, to have self-awareness, to exercise self-determination and to shape themselves and nature.”43 The great constitutional and human rights scholar, Professor Louis Henkin, has a closely related approach: “On the highest level, dignity is a quality of worth or excellence, and when used in the compound term “human dignity”, it suggests all that for Kant is inherent in the human “personhood” of every human being.”44 I shall set out four aspects of Kant’s categorical imperative: First:45 So act that you use humanity, whether in your own person or in the person of any other, always at the same time as an end, never merely as a means.

Second:46 In the “Kingdom of Ends” everything has either a price or a dignity. What has a price can be replaced by something else as its equivalent; what on the other hand is raised above all price and therefore admits of no equivalent has a dignity. . . . [T]hat which constitutes the condition under which alone something can be an end in itself has not merely a relative worth, that is a price, but an inner worth, that is, dignity.

Third:47 [A] human being regarded as a person, that is, as the subject of a morally practical reason, is exalted above any price; for as a person (homo noumenon) he is not to be valued merely as a means to the ends of others or even to his own ends, but as an end in itself, that is, he possesses a dignity (an absolute inner worth) by which he exacts respect for himself from all other rational beings in the world. He can measure himself with every other being of this kind and value himself on a footing of equality with them.

Fourth:48 [Because the rational being is] an end in itself and, for that very reason, as lawgiving in the “Kingdom of Ends”—[such being] is as free with respect to all laws of nature, obeying only those which he himself gives and in accordance with which his maxims can belong to a giving of universal law (to which at the same time he subjects himself ). For nothing can have a worth other than that which the law determines for it. But the lawgiving itself, which determines all worth, must for that reason have a dignity, that is, an unconditional, incomparable worth; and the word respect alone provides a

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becoming expression for the estimate of it that a rational human being must give. Autonomy is therefore the ground of the dignity of human nature and of every rational [creature].

According to Ronald Dworkin, quoting John Rawls in part, the entitlement of everybody to equal respect is “‘owed to human beings as moral persons,’ and follows from the moral personality that distinguishes humans from animals.”49 Rawls sees “moral personality and not the capacity for pleasure and pain as the fundamental aspect of the self.”50 In the context of the constitutional state, or the state fully founded on the rule of law—there is no fully equivalent expression to that of the German Rechtsstaat—human dignity is therefore the acknowledgment, respect, and protection due to all people, both from the side of the state and also from all other persons, because of the human’s unique qualities of self-awareness, autonomy, and inestimable and incomparable worth. At the very least, all people are entitled to be treated as moral subjects and not as mere objects—as subjects with absolute and inherent worth, and therefore as moral subjects of equal worth. As essentially a court lawyer, with no formal training in philosophy, I dare to take my stand on Kant because his imperatives encapsulate for me, by way of contrast and in the rationally most compelling manner that I have been able to discover, what was so obscene about apartheid. It serves as a constant reminder of our very ugly recent past. As a reforming Constitution, it is right that human dignity should be so highly valued.

Some Judgments of the Constitutional Court The epilogue to the Interim Constitution read in part as follows: “This Constitution provides a historic bridge between the past of a deeply divided society characterized by strife, conflict, untold suffering and injustice, and a future founded on the recognition of human rights, democracy and peaceful coexistence and development for all South Africans, irrespective of color, race, class belief or sex.” The adoption of this Constitution lays the secure foundation for the people of South Africa to transcend the divisions and strife of the past, which generated gross violations of human rights, the transgression of humanitarian principles in violent conflicts, and a legacy of hatred, fear, guilt, and revenge. These can now be addressed on the basis that there is a need for understanding but not for vengeance, a need for reparation but not for retaliation, a need for uBuntu but not for victimization. uBuntu is an African concept usually translated as meaning “a human being is a human being because of other human beings.” In S v. Makwanyane,51 the case in which the Constitutional Court declared the death penalty to be unconstitutional, the importance of dignity for the new constitutional order was emphasized in several of the concurring judgments. The current Deputy Chief Justice Pius Langa referred to aspects of the concept of uBuntu in the

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following terms: “[uBuntu] recognises a person’s status as a human being, entitled to unconditional respect, dignity, value and acceptance from members of the community such person happens to be part of.”52 So did Justice Yvonne Mokgoro, pleading for “the need to revive the value of human dignity in South Africa, and in turn redefine and recognize the right to and protection of human dignity as a right concomitant to life itself and inherent in all human beings. . . . [L]ife and dignity are like two sides of the same coin. The concept of uBuntu embodies them both.”53 Justice Catharine O’Regan expressed herself as follows: The importance of dignity as a founding value of the new Constitution cannot be overemphasized. Recognizing a right to dignity is an acknowledgment of the intrinsic worth of human beings: human beings are entitled to be treated as worthy of respect and concern. This right is therefore the foundation of many other rights that are specifically entrenched. . . . Respect for the dignity of all human beings is particularly important in South Africa. For apartheid was a denial of a common humanity. The new Constitution rejects this past and affirms the equal worth of all South Africans. Thus recognition of and protection of human dignity is the touchstone of the new political order and is fundamental to the new Constitution . . . “it is the dignity and importance of the individual which is the essence and cornerstone of democratic government.”54

In its very first judgment on unfair discrimination, the court, in Prinsloo v. Van der Linde,55 highlighted human dignity as a key criterion for determining when differentiation amounted to unfair discrimination under the Constitution’s equality clause.56 It held: “At the heart of the prohibition of unfair discrimination lies a recognition that the purpose of our new constitutional and democratic order is the establishment of a society in which all human beings will be accorded equal dignity and respect regardless of their membership of particular groups.”57 The court also held: “[I]nherent human dignity is at the heart of individual rights in a free and democratic society. . . . Equality . . . means nothing if it does not represent a commitment to recognising each person’s equal worth as a human being, regardless of individual differences.”58 On this basis the court held that differentiation in treatment amounted to unfair discrimination if the impact of such differentiation adversely affected the human dignity of those differentiated against, since all persons enjoy equal dignity.59 This view has subsequently been consistently endorsed. The court’s approach emerges even more clearly in the following passage from the Prinsloo judgment: “We are emerging from a period of our history during which the humanity of the majority of the inhabitants of this 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.”60 This approach has consistently been endorsed by the court in its judgment on unfair discrimination on the grounds of sex, marital

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status, sexual orientation, and HIV/AIDS.61 I deal more fully with unfair discrimination in the next section. The importance attached to the values of human dignity, equality, and freedom are further emphasized by the Constitution62 obliging all courts, tribunals, and forums, when interpreting the Bill of Rights, to promote the values that underlie “an open and democratic society based on human dignity, equality and freedom.” The Constitution’s so-called limitation clause underscores this importance.63 In common with other constitutions, it recognizes that even fundamental rights are not absolute but may have to be limited because of their impact on competing fundamental rights of others or the general public interest. In all democracies the right to free speech is limited, for example, by the laws of defamation and fraud. The South African Constitution does so expressly and in general terms, like the New Zealand Bill of Rights Act .64 It provides that the limitation of a right is only justifiable to the extent that it is “reasonable and justifiable in an open and democratic society,” but then goes further and defines such open and democratic society as one “based on human dignity, equality and freedom.”65 Even in a state of emergency, threatening the life of the nation, and promulgated in compliance with the stringent provisions of the Constitution,66 the right to human dignity is fully protected against any form of suspension or limitation, although the Constitution permits certain other rights to be so derogated from.

Unique Features I turn next to certain features of the Bill of Rights and Constitution that, if not unique in the extreme sense of the word, illustrate the broad scope of protection afforded: Section  provides expressly for the “horizontal” application of the Bill of Rights to natural and juristic persons,67 in contrast to most constitutions, for example that of the United States, where the Bill of Rights is generally only applicable as between the state and its relationships to or with its subjects. It differs in this respect even from the German Basic Law, which applies only indirectly to the legal relationship between subjects. This is a powerful example of how far the Bill of Rights extends into the realm of the common and statute law, and illustrates how completely South Africa has become a constitutional state. There is a broadly defined right to privacy.68 There is no separation between church and state, and religious observances may be conducted at state or state-aided institutions, provided, inter alia, that they are conducted on an equitable basis and that attendance is free and voluntary.69 The right to freedom of expression (including freedom of the media) is broadly protected, but such protection does not extend to propaganda for war,

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incitement of imminent violence, or “advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm.”70 Various labor relations rights are entrenched.71 The property clause,72 with which I deal more fully in the following section, strikes a delicate balance between the function of property as serving a private purpose and its function as serving a public purpose.73 Expropriation for a public purpose or in the public interest, as against the payment of just and equitable compensation, is provided for. There are provisions dealing with land reform, land redistribution, and land restitution. Section (), for example, provides “A person or community dispossessed of property after  June  as a result of past racially discriminatory laws or practices is entitled to the extent provided by an Act of Parliament, either to restitution of that property or to equitable redress.” Children’s rights are extensively protected.74 Language and culture are protected.75 Eleven official languages are entrenched and provision made for the establishment of a Pan–South African Language Board with a variety of language protecting and enhancing duties, a variety of obligations being placed on government for the use, advancement, and protection of languages.76 Associational individual rights, such as cultural, religious, and linguistic rights, which cannot be fully or adequately exercised unless they are exercised in association with others belonging to the same affiliation, are extensively protected in the associational aspects of their exercise.77 The right to access to information and the right to just administrative action are constitutionalized.78 The right to access to adequate housing,79 the right to have access to health care, to sufficient food and water, to social security,80 and to education.81

The Enforcement of Rights I have emphasized earlier the fact that the Constitution makes provision for full judicial review, which really means supervisory control, of the exercise of all public power. The Constitution expressly provides that when deciding a constitutional matter within its power a court must declare that any law or conduct that is inconsistent with the Constitution is invalid to the extent of its inconsistency.82 The Constitutional Court may make any order that is just and equitable. This includes an order limiting the retrospective effect of the declaration of invalidity, and an order suspending the declaration of invalidity for any period, and on any conditions. The competent authority will be allowed to correct the defect.83 Although the High Courts and the Supreme Court of Appeal are, under the  Constitution, competent to make such orders of constitutional invalidity, such orders have no force unless confirmed by the Constitutional Court.84

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These provisions must be read with section  of the Bill of Rights. This section provides that when a right in the Bill of Rights has been infringed or threatened, a competent court “may grant appropriate relief.” Although the expression “may” is discretionary in form, the court has held that a court is under an obligation to provide the “appropriate” relief under section  when a right has been infringed or threatened with infringement. The court has laid down that this obligation should be understood as follows:85 Because of the historical context in which the Constitution was adopted, and in particular the extensive violation of fundamental rights that had preceded its adoption, a particular obligation rests on the courts to ensure that when a constitutional right is breached the courts must give an appropriate remedy for such breach. An appropriate remedy means one that is effective as well, for without an effective remedy for a breach of the Constitution, its underlying values and the rights it entrenches cannot be properly upheld or enhanced. Particularly in a country where so few people have the means to enforce their rights through the courts, it is essential that on those occasions when the legal process does establish that an infringement of a right has occurred, it must be effectively vindicated. The courts have a particular responsibility in this regard and “are obliged to ‘forge new tools’ and shape innovative remedies, if needs be, to achieve this goal.” Adopting this approach, the court has: Declared the whole, or parts of, statutory provisions to be invalid, the consequence of such invalidation being that the provisions simply cease to exist, as though they had been repealed by an amending statute. This has occurred both with and without orders suspending for a fixed period the declaration of invalidity, in order to give the legislator concerned the opportunity to remedy the unconstitutionality, and with or without orders limiting the retrospective operation of the declaration of invalidity. Made notional declarations of invalidity where the nature of the invalidity and the relevant statutory language are such that a grammatical severance of the offending parts is not linguistically possible.86 By its order inserted words or phrases into the text of the offending provision in order to eliminate the constitutional invalidity.87 This is known as remedial “reading in.” Held that where the invalidity of a statutory provision results from an omission, there are only two remedial options: declaring the whole of the relevant section invalid, or reading in words or phrases to cure such invalidity.88

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Thus, in National Coalition for Gay and Lesbian Equality v. Minister of Home Affairs89 the statutory provision in question was found to be invalid because it failed to extend to permanent same-sex life partners the immigration benefits it extended to married couples and thus constituted unfair discrimination. It was simply impossible to save the constitutionality of the provision by any means of statutory construction. By way of remedy the court could have eliminated the unfair discrimination by declaring the provision invalid and depriving the married couples of the humane benefits conferred by the provision. This, however, would have resulted in a downward equalization, which the court was averse to doing. Instead, it read words into the offending section, the effect whereof was to extend to permanent same-sex life partners the same benefits that the section had previously conferred on married couples only. I refer, lastly, to a provision made in the Constitution and which at first blush would appear strange to Anglo-American eyes, namely, the provision for an abstract review of statutory provisions in a limited class of cases, where the constitutional invalidity of the instrument has not been raised by an ordinary litigant in a real case. It is a general principle, and in many instances a salutary one, that courts insist on hearing and deciding real, existing, live disputes between contesting parties. This is usually expressed by saying that there must be “case and controversy.” The rationale is that court time is scarce and should not be wasted on giving opinions to members of the public in respect of disputes that have already been settled between the parties, or when the parties are merely at the stage of contemplating litigation. It is also felt that courts are better able to grasp the full complexities of a legal issue and give judgment more reliably on it when it arises in a concrete dispute. The German Basic Law permits abstract review, and the South African Constitution has followed this lead and allows abstract review in two instances, both in relation to parliamentary as well as provincial bills. I shall, by way of illustration, deal only with abstract review of parliamentary bills, the abstract review of provincial bills following an identical pattern.90 The Constitutional Court has exclusive jurisdiction to deal with such abstract reviews. The first case arises when the president has reservations about the constitutionality of a bill that he is requested to assent to and sign.91 If he has no such reservations he must sign the bill. If he has such reservations he must refer it back to the National Assembly for reconsideration. If after reconsideration the bill fully accommodates the president’s reservations, the president must assent to and sign the bill. If not, he must either assent to and sign the bill or refer it to the Constitutional Court for a decision on its constitutionality. If the Constitutional Court decides that the bill is constitutional, the president must assent to and sign it. In the second case members of the National Assembly may apply to the Constitutional Court for an order declaring that all or part of an Act of Parliament is

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unconstitutional.92 Such an application must be supported by at least one third of the members of the National Assembly and must be made within thirty days of the president assenting to and signing the bill. The Constitutional Court may order the suspension of the operation of all or a part of the statute pending its determination, and may ultimately make an order for costs against the applicants if the application is unsuccessful and did not have reasonable prospects of success. It may be that, generally speaking, issues of constitutionality are best decided in concrete cases, where the court’s attention is focused on concrete issues that have arisen in the course of a statute’s practical application. As against this, a judgment of the court has no authoritative or binding effect beyond what has been stated, expressly or impliedly, in its judgment as its reasons for the particular conclusion it has reached. Moreover, the precise ambit of its reasons cannot be definitively determined without having regard to the arguments addressed to the court and dealt with in its judgment. The fact, for example, that the court has, on the basis of certain arguments, held a statute to be constitutionally compatible in an abstract review case does not preclude the court from subsequently reconsidering the invalidity of the same statute when the constitutional attack is based on wholly different grounds. There are further 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 fulfill” 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.” South Africa is a comprehensive constitutional state, and the obligation to uphold and enforce the Constitution does not rest solely with the judiciary. A corresponding obligation, though differing in execution, rests on both the executive and the legislature. Abstract review not only highlights this obligation but also provides a remedy for its diligent discharge. Moreover, in the case of South Africa, with its small and poor litigating public, it is in the public interest that unconstitutional provisions be adjudicated on with no cost to the public. This prevents unconstitutional provisions in new statutes from remaining on the statute book longer than necessary. The constitutional features I have discussed give some indication of the deep commitment to constitutionalism that South Africa has shown in the structuring of its new constitutional state. A “TRANSFORMING CONSTITUTION”: EQUALITY, PROPERTY, AND SOCIOECONOMIC RIGHTS In order to deal with the consequences of apartheid, South Africa’s Constitution is, as I have already mentioned, a reforming (transforming) Constitution. The preamble, in a spirit of magnanimity, proclaims this. It commences by stating:

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We, the people of South Africa, Recognise the injustices of the past; Honour those who suffered for justice and freedom in our land; Respect those who worked to build and develop our country; . . .

It then proceeds to set out the following transforming objectives: Heal[ing] the divisions of the past and establish[ing] a society based on democratic values, social justice and fundamental human rights; Lay[ing] the foundations for a democratic and open society in which government is based on the will of the people and every citizen is equally protected by law; Improv[ing] the quality of life of all citizens and free[ing] the potential of each person; and Build[ing] a united and democratic South Africa able to take its rightful place as a sovereign state in the family of nations.

Apartheid also grossly skewed—through its structured inequalities—the distribution of social goods in general, and that of land in particular. After all, it was the principal architect of grand apartheid, Dr. Hendrik Vewoerd, who described apartheid as “compris[ing] a whole multiplicity of phenomena. It comprises the political sphere; it is necessary in the social sphere; it is aimed at church matters; it is relevant to every sphere of life. Even within the economic sphere it is not just a matter of numbers. What is of more importance there is whether one maintains the color bar or not.”93 The dispossession of land owned and used by indigenous South Africans, commenced with the arrival of European settlers at the Cape in  and continued during the ensuing centuries. On  June , a date I shall revert to later, the Native Lands Act came into operation, depriving black South Africans— representing more than  percent of the population—of the right to own land in more that  percent of the South African land mass.94 This land was set aside exclusively for ownership by whites, and land owned by black, colored, and Asian people in these areas was expropriated—often with inadequate compensation—and occupiers who refused to leave were forcibly evicted.

Equality as the Prohibition of Unfair Discrimination and Restitutive or Restitutional Equality One important aspect of equality could be called “equality as rationality.”95 It requires the state to act rationally when it differentiates in its treatment of people, for to do otherwise would be to regulate in a manner inconsistent with the rule of law and the fundamental premises of the constitutional state. This principle is entrenched in subsection () of the Constitution’s equality clause.96 It is uncontroversial and I shall not dwell on it.

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Equality as the prohibition of unfair discrimination can, in my understanding, take a number of forms. The first, which I call formal equality, requires no more from the state than to remove all measures that unfairly discriminate against any person. The second, which is variously called restitutive equality or equality of opportunity (and sometimes—unhelpfully—substantive equality), recognizes the fact that the ongoing negative effects of past discrimination, and particularly past patterns of discrimination, are often not eradicated by formal equality, but rather require restitutive or remedial action by the state. I call this second form restitutive or remedial equality, expressions articulating far more clearly the purpose of the equality guarantee in the South African context than the expression affirmative action. The third concept of equality, sometimes called equality of result, is based on the proposition that any unequal outcome in the distribution of social goods in society is caused by unfair discrimination and must be eradicated by radical statistical egalitarianism. The Constitution embraces both formal and restitutive (or remedial) equality, but not equality of result. In the National Coalition for Gay and Lesbian Equality v. Minister of Justice case, the Constitutional Court expressed it thus: [S]ubstantive equality . . . [is] a contested expression which is not found in either of our Constitutions. . . . It is insufficient for the Constitution merely to ensure, through its Bill of Rights, that statutory provisions, which have caused . . . unfair discrimination in the past are eliminated. Past unfair discrimination frequently has ongoing negative consequences, the continuation of which is not halted immediately when the initial causes thereof are eliminated, and unless remedied, may continue for a substantial time and even indefinitely. Like justice, equality delayed is equality denied. . . . The need for . . . remedial or restitutionary measures has therefore been recognised in . . . the interim and  Constitutions . . . One could refer to such equality as remedial or restitutionary equality.97

Formal equality is important and entrenched in the Constitution, and courts are required to declare invalid any law (including statute law) or conduct that unfairly discriminate against any person. The key to deciding whether differentiating laws or conduct are unfairly discriminatory is to assess whether the impact of that law negatively affects the human dignity of the person affected thereby. In the previous section I sought to explain what human dignity means in this context. I now look more closely at how section  of the Constitution seeks to achieve formal equality. It does so in two steps. The first is to list particular grounds of prohibited unfair discrimination.98 They are “race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.” The second is to provide that where discrimination takes place on one of the listed grounds, such discrimination will be presumed to constitute unfair discrimination—and hence a breach of the section—unless it is

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established that the discrimination is fair.99 Normally it is the plaintiff who has to prove all the facts constituting an infringement of an entrenched right. The equality guarantee reverses part of this basic rule in respect of the above-listed grounds. All the plaintiff needs to do is to establish an infringement based on a listed ground. Such infringement is then presumed to be unfair. It is for the defendant to establish that the discrimination is fair, for example that the discrimination does not impact unfairly on the plaintiff ’s human dignity. If the defendant fails to do so, an infringement of the right will have been established. The listed grounds of discrimination do not, however, constitute a closed category of grounds in respect of which unfair discrimination can take place. A plaintiff can rely on any ground of discrimination, listed or not, but when an unlisted ground is relied on, the plaintiff must prove both the fact of such discrimination and also that, in the circumstances, such discrimination is unfair. So much for formal equality. Restitutive equality is mandated by section (), which provides in its relevant part “[t]o 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.” Pursuant to its provisions the Employment Equity Act was enacted.100 I do not propose pursuing restitutive equality further here.101 It is surprising that measures providing for restitutive equality have seldom been challenged in the High Courts and never in the Constitutional Court. It is hard to imagine, however, that human dignity will not have: “a role to play in determining the correct meaning and limits of [restitutive equality]. The object of [subsection ()] is to redress disadvantage caused by unfair discrimination. It would be difficult to understand what ‘disadvantaged’ or ‘unfair discrimination’ in the subsection meant, or what the limits of the remedial measures were, divorced from human dignity and its established role in unfair discrimination jurisprudence thus far.”102

The Breadth and Impact of the Equality Clause Formal and restitutive equality are not limited to the relationship between the state and the individual, but are extended by the Constitution to legal relations between individuals; it has horizontal operation, as explained above. Section () does so in the following terms: “No person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of subsection (). National legislation must be enacted to prevent or prohibit unfair discrimination.” These provisions must be read in context, in particular in association with the relevant provisions of section , which is the general provision giving horizontal effect to all the rights guaranteed in the Bill of Rights. Applying rights horizontally differs from applying them against the state, because the individuals on whom horizontality places an obligation are themselves rights holders. Every horizontal application of a constitutional right in favor of A against B will almost invariably constitute some limitation, at the level of horizontality, of one of B’s constitutional

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rights. For this reason section () provides,103 in the case of the horizontal application of a provision in the Bill of Rights, that a court: (a) must apply, or if necessary develop, the common law to the extent that legislation does not give effect to that right; and (b) may develop rules of the common law to limit the right, provided that the limitation is in accordance with [the Bill of Rights’ limitation clause,] section (). The Constitutional Court has not yet considered these provisions. I argue that, in relation to the horizontal application of the right not to be unfairly discriminated against, an appropriate use of the concept of human dignity will be vital and inescapable. In what follows, I acknowledge my indebtedness in particular to the influence of Professor Louis Henkin of the Columbia University Law School.104 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 the right to equality on the one hand and nondiscrimination on the other, the rights to freedom (in its various forms), privacy, property (and possibly others), or combinations of such rights.105 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. Some of the problems posed by horizontality, direct or indirect, are illustrated by the following examples: . Primus sells his house to Secundus with a restrictive term prohibiting Secundus from selling it to a female or black purchaser. In breach of this condition Secundus sells the property to Tertia, a black woman, whereupon Primus applies to court to have the Secundus/Tertia sale set aside and the parties interdicted from proceeding with the transfer of the property to Tertia.106 The arguments for the remedy would be based on property and freedom of contract rights. The arguments against the remedy might proceed along the following lines: The exclusion of blacks and women is an unqualified and naked preference, which has no regard for the age, profession, financial stability, income, sobriety, morality, or indeed any personal characteristic of the persons excluded, other than their race and gender. The covenant excludes no white male, however violent, dishonest, immoral, and antisocial he may be. It is embodied in an otherwise standard commercial document. Under these circumstances its impact on Tertia constitutes a deep affront to her human dignity. She has suffered in the past from patterns of disadvantage on the double ground of race and gender and has been unable, because of such disadvantage, to acquire the sort of house that is the subject of the sale. At the same time the covenant advances no substantive interest of either Primus or Secundus and if struck down would constitute

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a mere abstract limitation of their general freedom to contract, and of Primus’s right to dispose of his property as he pleases. The relevant circumstances and impact, if evaluated in accordance with established vertical equality jurisprudence in relation to dignity, suggests that the covenant ought to be declared void and the transfer interdicted. The conclusion is reached by the development of the common law in a manner that promotes “the spirit, purport and objects of the Bill of Rights.”107 The concept of public policy, well recognized in South African common law as a basis for invalidating a contract, would be developed so as to include discrimination on the grounds of race and gender as grounds for such invalidation.108 . 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’s 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 trespasser’s human dignity. Against this Primus would assert, at least, his right to privacy109 and his right to freedom of association,110 contending that there is no “open and democratic society based on human dignity, freedom and equality”111 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 recognized 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.”112 Professor Henkin suggests that it “may be a different matter when a storekeeper, restaurateur, or innkeeper, who opens to all, refuses entry to some on the basis of race” and that “in these relationships, the state could outlaw the discrimination.”113 One of his reasons for coming to this conclusion is that “[g]enerally, the discrimination is public, blatant, and widespread; the inequality and indignity therefore notorious and extensive, with important communal consequences.”114 . Primus is a widower. In his will, with discrimination aforethought, he bequeaths his entire, very considerable estate to Secundus, his only son, who spends more time in prison than out and leaves nothing at all to his only daughter, Tertia, who has led an exemplary life and is obliged to fund personally and constantly expensive medication for an incurable but not life-threatening disease. Tertia is able to support herself but challenges the will. Is Primus not entitled as a testator and as owner to be unfair in the disposal of his own property, or at the least entirely irrational? A final observation can be made on human dignity and its felicity and importance for equality adjudication. Constitutional and other courts exercising judicial review against acts of democratically elected legislatures, run legitimacy risks with consequent

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dangers for constitutionalism if their reasoning is seen as casuistic, in the pejorative sense, merely intuitive, or little more than the expression of a personal subjective preference not rooted in the Constitution. Constitutional decision making must be neutral and principled. The example that follows illustrates what I mean. In Shelley v. Kraemer115 the US Supreme Court, in , on facts analogous to the sale of property example I have given, refused to enforce the racial covenant on the simple ground that it was racially discriminatory and that the enforcement order of a court amounted to action of the state. While the result of the decision was universally applauded, the reasons for the Supreme Court’s decision have given rise to a number of celebrated journal articles agreeing with the conclusion but criticizing the reasoning of the court as lacking in neutral principle.116 While supporting the result of the judgment, Herbert Wechsler criticized the reasoning for lacking neutrality, and generality because it does “not suffice to uphold the judgment, unless it is affirmed that a private discrimination becomes a discrimination by the state whenever it is legally enforced. But such a proposition is absurd and would destroy the law of wills and a good portion of the law of property, which is concerned precisely with supporting owners’ rights to make discriminations that the state would not be free to make on the initiative of officials.”117 According to Wechsler, “the judicial process . . . must be genuinely principled, resting with respect to every step that is involved in reaching judgment on analysis and reasons quite transcending the immediate result that is achieved,” and cases must be decided “on grounds of adequate neutrality and generality tested not only by the instant application but by others that the principles imply.”118 Kent Greenawalt, in his “The Enduring Significance of Neutral Principles,”119 convincingly elaborates on Wechsler’s main thesis, but space does not permit a fuller reference to his views.120 In my view the concept of human dignity is an indispensable element in developing neutral principles of constitutional adjudication where the right not to be unfairly discriminated against is applied horizontally and conflicts with the rights of others. It is obviously not a mechanical exercise or an infallible route to correct decisions,121 but rather a sound and principled point of departure in an area of our constitutional law where neutral principles of adjudication are supremely important.

Constitutional Property Rights The Constitution’s property provisions embodied in section ,122 which are not limited to land, seek to strike a careful balance between property serving a public as well as a private interest. In the First National Bank case,123 the Constitutional Court held that although section  embodies a negative protection of property and does not expressly guarantee the right to acquire, hold, and dispose of property, this is implicit in the section.124 It moreover held that each of its subsections has to be construed in the context of the other subsections, in their historical context, and indeed in the context of the Constitution as a whole.125 The following statement by Professor

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A. J. Van der Walt, a South African expert on comparative constitutional property law, was endorsed: “[T]he meaning of s[ection]  has to be determined, in each specific case, within an interpretative framework that takes due cognizance of the inevitable tensions which characterize the operation of the property clause. This tension between individual rights and social responsibilities has to be the guiding principle in terms of which the section is analyzed, interpreted and applied in every individual case.”126 The court then held that the purpose of the section had to be seen “both as protecting existing private property rights as well as serving the public interest, mainly in the sphere of land reform but not limited thereto, and also as striking a proportionate balance between these two functions.”127 Central to the protection, both in regard to expropriation and other intrusive regulation by the state, is the section’s provision that “no law may permit arbitrary deprivation of property.” The court, after referring in its judgment to relevant comparative constitutional law,128 explains such use as follows: Comparative law cannot, by simplistic transference, determine the proper approach to our property clause that has its own context, formulation and history. Yet the comparative perspective does demonstrate at least two important principles. The first is that there are appropriate circumstances where it is permissible for legislation, in the broader public interest, to deprive persons of property without payment of compensation. . . . The second is that for the validity of the deprivation, there must be an appropriate relationship between means and ends, between the sacrifice that the individual is being asked to make and the public purpose this is intended to serve. It is one that is not limited to an enquiry into mere rationality, but is less strict than a full and exacting proportionality examination. Moreover the requirement of such an appropriate relationship between means and ends is viewed as methodologically sound, respectful of the separation of powers between judiciary and legislature (in the case of the United Kingdom between judiciary and executive) and suitably flexible to cover all situations.129

The court came to the conclusion that a deprivation of property is “arbitrary,” as meant by the section, when the law referred to therein “does not provide sufficient reason for the particular deprivation in question or is procedurally unfair.” It then proceeded to set forth in some detail how sufficient reason is to be established.130 After setting forth the ways in which variable ends and means could come about and should be evaluated, the court pointed out: “Depending on such interplay between variable means and ends, the nature of the property in question and the extent of its deprivation, there may be circumstances when sufficient reason is established by, in effect, no more than a mere rational relationship between means and ends; in others this might only be established by a proportionality evaluation closer to that required by [the limitation] section () of the Constitution.”131 The First

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National Bank case was concerned with a provision132 in the Customs and Excise Act133 that allowed the commissioner, in order to collect a customs debt owed, to sell goods not belonging to the customs debtor but rather to a third party. The First National Bank was the owner of certain vehicles it had leased and also sold under installment sale agreements. The commissioner detained such vehicles, with a view to selling them in discharge of customs debts owed by the lessees and purchasers of the vehicles in question. The court held that the end sought to be achieved by the deprivation was to exact payment of a customs debt, a legitimate and important legislative purpose, essential for the financial well-being of the country and in the interest of all its inhabitants. However, the statutory provision in question did not constitute sufficient cause for the deprivation because the means it uses “sanctions the total deprivation of a person’s property under circumstances where (a) such person has no connection with the transaction giving rise to the customs debt; (b) where such property also has no connection with the customs debt; and (c) where such person has not transacted with or placed the customs debtor in possession of the property under circumstances that have induced the Commissioner to act to his detriment in relation to the incurring of the customs debt.”134 The court accordingly held that such deprivation was arbitrary for purposes of section  and constituted an unjustified limitation (infringement) of the owner’s rights.135 Its orders included one of constitutional invalidity, making a notional severance of the bad from the good, and one limiting the retrospective operation of the order of invalidity.136

Indigenous Land Rights Before concluding this part I must refer, uncomfortably briefly, to the restitution of land rights. I have referred earlier to the consequences of the Native Lands Act. Section () of the Constitution provides: “A person or community dispossessed of property after  June  as a result of past racially discriminatory laws or practices is entitled, to the extent provided in an Act of Parliament, either to restitution of that property or to equitable redress.” By this express constitutional limitation to dispossessions of property after  June , the date on which the Native Lands Act came into operation, the courts have been spared many of the complex problems with which other national courts have had to grapple in connection with “aboriginal rights.”137 The Act of Parliament envisaged by section () was passed in the form of the Restitution of Land Rights Act.138 It created a Land Claims Court and made detailed provision for the settling and adjudication of land claims. Under the Act, claims for restitution had to be lodged before  December . The Constitutional Court has only once been seized with such a matter. In the Richtersveld case139—in which the Richtersveld community claimed restitution of a strip of land on the northwest coast of South Africa—the court held that, subject to the issues that stood over for determination by the Land Claims Court, the community was entitled to restitution of the right to ownership of the subject land (including

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its minerals and precious stones), and to the exclusive beneficial use and occupation thereof. A bizarre aspect of the case is the fact that the defendant in the proceedings and owner of the subject land, a public company, was wholly owned by the post government. The facts of the case established that the Richtersveld community had established a right of communal ownership in the subject land, including ownership of the minerals and precious stones, under indigenous law well before the annexation of the Cape by the British Crown in , and that this communal right had survived until after  June . The reason for this survival was the fact that the subject land was regarded by the colonizers as arid and worthless agricultural land. Interest in it was only sparked when diamonds were discovered on it in the s. Dispossession of the community rapidly followed and was completed by the end of . What may be of wider interest is the Constitutional Court’s approach to the status of indigenous law. It held: “While in the past indigenous law was seen through the common law lens, it must now be seen as an integral part of our law. Like all law it depends for its ultimate force and validity on the Constitution. Its validity must now be determined by reference not to the common-law, but to the Constitution.”140 The courts are obliged to apply customary law, when applicable, but subject always to consistency with the Constitution: “[T]he Constitution acknowledges the originality and distinctiveness of indigenous law as an independent source of norms within the legal system. . . . In the result, indigenous law feeds into, nourishes, fuses with and becomes an amalgam of South African law.”141 The writing of this judgment, the author being described as “THE COURT,” illustrates the collegial nature of the court. In several of its complex and multi-issue judgments, where it is important that the court be seen to speak with a united voice, judgments are similarly headed. They are indeed written collegially. After a post-hearing conference, the chief justice allocates to three or four committees of the justices the writing of specific parts of the judgment. When produced, these are circulated to all the justices, written comments and responses are exchanged and debated, and further conferences are held. If unanimity is reached, the judgment is carefully edited for consistency of style. In this way it was possible, after hearing the oral argument on  and  September , to hand down the -paragraph Richtersveld judgment on  October .

Socio-economic Rights Proper treatment here of this important topic is beyond the scope of this chapter.142 I therefore limit myself to a few broad propositions and comments: The Constitution defines the rights to housing, health care, food, water, and social security, and the state’s correlative obligations, in ways that mirror the International Covenant on Social, Economic and Cultural Rights.143 The extent of the state’s obligations is to “take reasonable legislative and other measures, within its available resources, to achieve the progressive realization of each of [the rights in question].”144

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It is a fallacy that the “red” socio-economic rights differ in principle from the “blue” civil and political rights because the latter only require negative enforcement and make no demand on the state purse. Classical blue rights, such as the right not to be tortured,145 the right to free, fair, and regular elections,146 the right to vote,147 and the right of accused persons to have a legal practitioner assigned to them by the state and at state expense,148 all require substantial state expenditure for their proper enforcement.149 It is also a fallacy that the enforcement by the courts of the socio-economic rights intrude impermissibly on the separation of powers doctrine in a democratic and constitutional state. In the first place the separation of powers principle does not exist in isolation from the checks and balances principle. In fact, checks and balances form an integral part of the modern separation of powers theory that is aimed at both diffusing and controlling the exercise of public power in a manner that does not unduly hamper effective and efficient government.150 Moreover, as Laurence Tribe has pointed out,151 in a passage endorsed by the Constitutional Court: “We must therefore seek an understanding of the Constitution’s separation of powers not primarily in what the Framers thought, nor in what Enlightenment political philosophers wrote, but in what the Constitution itself says and does. What counts is not any abstract theory of separation of powers, but the actual separation of powers “operationally defined by the Constitution.”152 In the Treatment Action Campaign case,153 which concerned the government’s failure to “roll out” anti-HIV medication, the government contended that under the separation of powers the making of policy was the prerogative of the executive and not the courts, and that courts cannot make orders that have the effect of requiring the executive to pursue a particular policy. The court dismissed this contention in the following terms: The Constitution requires the state to “respect, protect, promote, and fulfil the rights in the Bill of Rights.” Where State policy is challenged as inconsistent with the Constitution, courts have to consider whether in formulating and implementing such policy the State has given effect to its constitutional obligations. If it should hold in any given case that the State has failed to do so, it is obliged to say so. In so far as that constitutes an intrusion into the domain of the executive, that is an intrusion mandated by the Constitution itself. There is also no merit in the argument advanced on behalf of the argument that a distinction should be drawn between declaratory and mandatory orders against the government.154

In this case the court, after issuing various declaratory orders, handed down the following mandatory orders:

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. Government is ordered without delay to: (a) Remove the restrictions that prevent Nevirapene from being made available for the purpose of reducing the risk of mother-to-child transmission of HIV at public hospitals and clinics that are not research and training sites. (b) Permit and facilitate the use of Nevirapene for the purpose of reducing the risk of mother-to-child transmission of HIV and to make it available for this purpose at hospital and clinics when in the judgment of the attending medical practitioner acting in consultation with the medical superintendent of the facility concerned this is medically indicated, which shall if necessary include that the mother concerned has been appropriately tested and counselled. (c) Make provision if necessary for counsellors based at public hospitals and clinics other than the research and training sites to be trained for the counselling necessary for the use of Nevirapene to reduce the risk of motherto-child transmission of HIV. (d) Take reasonable measures to extend the testing and counselling facilities at hospitals and clinics throughout the public health sector to facilitate and expedite the use of Nevirapene for the purpose of reducing the risk of mother-to-child transmission of HIV. . The orders made in paragraph  do not preclude the government from adapting its policy in a manner consistent with the Constitution if equally appropriate or better methods become available to it for the prevention of mother-to-child transmission of HIV.

I trust that the foregoing provides some idea of how deeply imbedded the ideas of the constitutional state, the rule of law, and fundamental human rights are in the South African Constitution. As a transforming constitution, it has extended established ideas regarding enforceable fundamental rights to socio-economic and environmental spheres. Without entrenching socio-economic and environmental rights, the Constitution may very well have had little or no credibility for the dispossessed, the poor, and the socially marginalized. By entrenching them, the Constitution has highlighted the greatest challenge facing South African society at large, in the decades to come. Having shared in the development of the Constitution I still marvel at its coherence and integration. The framers are to be applauded for taking the best from the world’s existing constitutions and contextualizing them for the particular needs of South Africa. The most sophisticated tools have been fashioned for the courts to enforce, promote, and protect the Constitution and its values. But the ultimate fate of the Constitution, a bridge with a very long span, will not be decided by the jurisprudence of its courts alone, however devoted and inspired that may prove to be. A transforming constitution such as ours will only succeed if everyone in both

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government and civil society at all levels embraces and lives out its values and its demands. It will only succeed if restitutional equality becomes a reality and basic material needs are met, because it borders on the obscene to preach human dignity to the homeless and the starving. This must, however, be achieved in a manner consonant with the human dignity of all. We are only at the end of the beginning.

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Dignity Jurisprudence: Building a New Law on Earth Roger Berkowitz

South African dignity jurisprudence is part of a revolution under way in constitutional thought. The revolution revolves around the guarantee of human dignity as the constitutive right underlying modern legal systems. Article  of Germany’s  postwar Basic Law makes human dignity an inviolable right. The  Universal Declaration of Human Rights establishes the inherent human dignity of all persons as the foundation of freedom, justice, and peace in the world. In the s, the International Conventions on both Civil and Political Rights and on Economic and Social Rights both employ human dignity as the backbone of modern human rights. The  Israeli Basic Law on Human Dignity makes the protection of dignity a fundamental value of the Israel legal system. The Canadian Supreme Court has, throughout the s, increasingly come to see “the idea of human dignity” to be at the core of “almost every right and freedom guaranteed in the [Canadian] Charter.”1 Finally, dignity has come to the fore as the central and constitutive ground norm in the  South African Constitution. In both national and international law, the idea of an inviolable human dignity has emerged as a revolutionary idea that is transforming constitutional jurisprudence. The roots of the dignity revolution in constitutional law lie in what Carl Friedrich has named the “negative revolution” of post–World War II constitutions. In an article titled “The Political Theory of the New Democratic Constitutions,” Friedrich argued that the postwar constitutions in France, Italy, and Germany eschewed the liberal drive for individual freedoms that marked the seventeenth- and eighteenthcentury constitutions in England, France, and the United States. Similarly, the new constitutions rejected the embrace of majoritarian and socialist democracy characteristic of the post- political revolutions that sought to place absolute authority

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in the democratic expression of the popular will. Instead of both revolutionary liberalism and revolutionary socialism, the new constitutions signify for Friedrich a “third force.” In lieu of either individualist or socialist enthusiasms, the new constitutions represented a decided “No.” They do not want abstract liberty, an inviolable sphere of liberty, which brings with it the anarchy of the “free market” with its enterprises growing into gigantic monopolies. And they do not want popular fascism, communism, or dictatorship of the proletariat. What, then, do they want? The answer, Friedrich observed, was: “We want peace.”2 Friedrich calls the rise of these peace-loving constitutions a negative revolution. At the core of the negative revolution in constitutionalism is “the stress laid upon the dignity of man.”3 By the dignity of man, Friedrich means both individual freedoms usually associated with liberal constitutionalism and social and economic freedoms usually associated with the communist and more populist constitutional traditions. Governed by a spirit of moderation and compromise in the face of the passions of both liberalism and communism, the new constitutions dedicate themselves to “a patient effort to recapture the essentials of human freedom and dignity.”4 Dignity, Friedrich argued, was a broad ideal of common humanity that enabled a compromise between the warring ideologies of the nineteenth and twentieth centuries. Against the century-long vacillation betwixt the extremes of market liberalism and socialism on the one hand and liberal individualism and fascism on the other, human dignity stood apart to signal a renewed commitment to a moderate common sense approach to constitutional government. Friedrich’s claim that dignity has become a “third force” in constitutional theory has only been confirmed by the events of the last half-century. The constitutional guarantee of dignity is now poised to challenge, if not to supplant, both liberal individualism and populist majoritarianism as the dominant constitutional framework of the twenty-first century. This is especially so in South Africa. Nowhere has the force of dignity come to the fore in constitutional theory as in post-apartheid South Africa. Simply to read the South African Constitution is to be impressed by its overt foundation upon dignity. Most broadly, “Human Dignity” is the first “founding value” listed in chapter  of the Constitution, titled “Founding Provisions.” In chapter , which includes South Africa’s Bill of Rights, the “democratic values of human dignity, equality, and freedom” are affirmed as the cornerstone of South Africa’s democracy. Dignity is also considered a specific and justiciable right in itself, above and beyond its role as a foundational legal value. Thus section  of the Constitution reads: “Everyone has inherent dignity and the right to have their dignity respected and protected.” Section  of the Bill of Rights guarantees detained persons, including every sentenced prisoner, the right to “conditions of detention consistent with human dignity.” Section , the clause that determines the criteria for a limitation of a right in the Bill of Rights, requires that all the rights enunciated in the Bill of Rights can only be limited “to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dig-

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nity, equality and freedom.” Section  requires that the interpretation of the Bill of Rights “must promote the values that underlie an open and democratic society based on human dignity, equality and freedom.” These, and other, invocations of dignity in the Constitution show that dignity, as both a general value and a specific right, is imagined to be at the very heart of the South African legal tradition. The repeated appeals to dignity in the South African Constitution are, undoubtedly, a reaction to the evils and indignities of the apartheid regime that the new constitution has replaced. It is no accident that the rise of a dignity jurisprudence has its genesis in Germany, Israel, South Africa, and international law, four progressive legal systems that have had to confront the all too real existence of legally validated denial of human dignity in their recent pasts.5 In a profound sense, the constitutional project in these countries turns on the concerted and decisive effort that totalitarianism and apartheid will never again be a legitimate part of political life. The appeal to human dignity is to be seen, therefore, as both a negative and a positive value: A radical “no,” as Friedrich saw, to the passion-fired indignities of whatever ideology. And a firm “yes” to the common idea of mankind; to the humanitas of the homo man, his dignity or his worth. And yet, as widespread and as common as the appeal to dignity has become, it remains equally vague and unthought. The very moderation that Friedrich attributes to dignity is part and parcel of its potential vapidity. As often as not, dignity names little more than a rhetorical appeal, a wishful and aspirational invocation that one act rightly and treat others well. What is needed, however, is neither the reckless optimism of those who believe that dignity can save us, nor the reckless doom of those who insist that the nihilistic tide of history cannot be stopped. Optimism and doom are both, as Hannah Arendt noted, two sides of the same medal:6 the belief in the reign of human reason. On the one side, optimists argue that rational appeals to dignity will raise humanity over barbarism. On the other side, doomsayers insist that it is the iron cage of reason that has burst the limits of humanity in a world in which anything from torture to genocide can be rationalized. Beyond both optimism and doom stand the efforts of jurists and lawyers in South Africa and around the globe who are working to create a legal world in which dignity sounds with more than a hollow ring. What then might dignity offer as a meaningful foundation for constitutional law? It is difficult to know what an appeal to dignity means. Dignity has, as Dennis Davis, one of South Africa’s leading jurists has skeptically observed, “multifaceted meanings.” For Davis, the South African Constitution and its generous interpretation by the Constitutional Court have “given dignity both a content and scope that make for a piece of jurisprudential Lego land—to be used in whatever form and shape is required by the demands of the judicial designer.”7 As Davis suggests, dignity is blessed with a multiplicity of meanings. A quick glance at the dictionary reveals that dignity means “worth” or “excellence”; it depends upon discrimination amongst unequals. From the Latin dignitas, dignity

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originally referred to a person of high rank or title. Throughout antiquity, aristocrats and nobles were possessed of dignity in distinction from the common people and hoi polloi. In Greece and Rome, citizenship conferred a dignity that distinguished its members from foreigners and barbarians, and also slaves, laborers, and women. This ancient sense of distinction can be glimpsed in Plato’s famous discussion of the good in the Republic. The good, Socrates tells Glaucon, is not to be known in a way that can be communicated to others. It can only be seen by those trained in philosophy, those trained to see the forms of justice and the good that are high above their real world appearances. The good in Plato’s conception is that which is “beyond being, epekeina tes ousias,” in such a way that the good “exceeds being in dignity and power.”8 Plato’s word for dignity, Presbeia, has the sense of a right of seniority or the right to rule by virtue of age. Plato understands that the dignity of the good is rooted in the sense that the “good is older than being” and that it “rules over all beings by first bestowing upon them their being.”9 As an empowering distinction founded upon age, priority, and exceptionality, dignity was for the Greeks and Romans a source of political and social authority for the few over and against the many. As a mark of distinction, dignity seems quite foreign to a modern day politics based upon a presumption of equality. The transformation of the ancient idea of dignity as a comparative rank of distinction into the modern idea of human dignity begins with the rise of Christianity and the Christian belief in the equality of souls. Whereas Greek and Roman society saw a fundamental difference amongst peoples, Christianity, as a world religion, insisted on the equal dignity of human beings. Allen Wood argues that, given the history of dignity as distinguished high office or rank, the claim that humanity has dignity is paradoxical and subversive in that it claims the highest possible social status for every human being. “To speak of ‘human dignity’ amounts to an impudent declaration that the supreme rank or quality of honor that any human being could claim is simply their humanity.”10 The modern tradition in which dignity is claimed for all of humanity has its secular beginning in Immanuel Kant’s reformulation of Aristotle’s definition of man as a rational being. Kant famously concludes that man, as a rational being, is an end in himself.11 This oft-misunderstood statement has its basis in Kant’s belief that man is split. The Kantian person is at once rational (thinking) and being (sensible). Since the purpose and end of a rational being is to be rational, and since it has its reason in itself as one part of itself, every rational being is an end in itself, a being that sets its own ends and thus one who is free. For Kant, human dignity is grounded in radical autonomy. As an end in itself, every rational being is of absolute worth. As Wood argues: Kant uses the word “dignity” in a very precise sense. As a basic conception of value, he contrasts “dignity” with “price.” What has price has a kind of value that may be rationally sacrificed or traded away for something else having an

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equal or greater value. The market price of a commodity, for example, is the ratio at which it may be exchanged for other commodities whose value is deemed equal for the purposes of exchange. Dignity, however, is a value that is incomparable and absolute. It cannot be measured against other values in this way, because it can never rationally be sacrificed or traded away for anything at all, not even for something else having dignity. Though human beings come and go, the value of a human being is absolute and irreplaceable. It cannot be substituted for, even by the value of another human being.12

Kant thus distinguishes the dignity of rational man (Würde) from his value (Wert).13 While something of value can be bought, sold, and even destroyed in line with rational preferences, what is of absolute worth cannot be sacrificed or abandoned for any price. Modern political thought follows Kant in that it conceives of human dignity through man’s autonomy. But in contemporary political theory, the dignified autonomy of the human being is not the autonomy of a specifically rational being. Instead, autonomy is understood as an individual’s free agency, the liberty to determine one’s own best life, whether or not that choice is rational. Take, for example, Ronald Dworkin’s recent argument that there are two basic principles of human dignity that found our liberal democracy. The first, the principle of intrinsic value, “holds that each human life has a special kind of objective value.”14 The second, a version of Mill’s harm principle, holds that each person is free to lead his own life so long as he does so responsibly and doesn’t interfere with others.15 Together, these two principles of dignity are thought to ground a moral politics. Dworkin’s doubled understanding of dignity as self-determination both on an individual and a group level is widespread amongst political thinkers. Amy Gutmann argues that the dignity of human beings is, along with human agency and equality, one of the moral foundations of our democratic political system.16 Similarly, Michael Ignatieff imagines human dignity as agency that grants all men equally the rights to individual and collective self-determination.17 And Robert Post and Norberto Bobbio have gone so far as to argue that democracy has its foundation in the dignity of human autonomy, the right to choose one’s own life course.18 Jürgen Habermas sets the tension between the two ideas of dignity—dignity as civil rights and dignity as the right to democratic self-determination—at the center of the modern crisis of legitimacy.19 Habermas associates the dignity of civil and human rights with private autonomy: namely, that “Political Liberty consists in the power of doing whatever does not injure another.” This formula, taken from Article  of the  Declaration of the Rights of Man parallels not Kant’s formula of autonomy but Kant’s principle of right developed in the Metaphysics of Morals: that “each person is to have an equal right to the most extensive basic liberty compatible with a similar liberty for others.” Against the principle of private autonomy stands what Habermas variously names political autonomy, public autonomy, or the

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principle of popular sovereignty. Building upon Rousseau, Habermas argues that political autonomy requires that a citizen choose his government. A state will incorporate its citizens into its general will, either by force or by persuasion. Private and public autonomy are, for Habermas, the “sole ideas that can justify modern law;” at the same time, the opposition between them is what needs to be overcome in order to ground dignity.20 Habermas’s solution is a transcendental overcoming of the opposition through the idea of rational communication that would unite private and public will in harmony with reason.21 As Etienne Balibar writes, Habermas relies upon “the illocutionary binding forces of a use of language oriented to mutual understanding serve to bring reason and will together,” which means that “as participants in rational discourses, consociates under law must be able to examine whether a contested norm meets with, or could meet with, the agreement of all those possibly affected.”22 Against Habermas, Balibar sees that both directions of autonomy carry their internal limit that can’t be overcome with communicative rationality. The problem that plagues all of these modern invocations of dignity from Dworkin to Habermas is that they understand dignity as self-determination and then stumble upon the contradiction in self-determination. Self-determination— the right to personal autonomy that underlies human and civil rights—is frequently at odds with self-determination—the democratic right of citizens to collectively govern themselves. Indeed, the tension between individual self-determination and collective self-determination is at the root of many of great human rights tragedies of the modern era. The contradiction in the idea of autonomy as agency that lies at the very heart of contemporary political thinking about dignity is not simply an oversight. Rather, the incoherent embrace of self-determination as the essence of dignity is, as Hannah Arendt has argued, actually one important source for the crisis of human and political rights that plague modern politics. The crises of the twentieth and now the twentyfirst century are, Arendt suggests, the result, at least in part, of the idea that human dignity guarantees to every man a fundamental right to self-determination. By setting the rights of man on a fundamentally incoherent and contradictory understanding of dignity, modern human rights discourse has enabled the opinion that human rights are unfounded and thus violable.23 By accepting the Kantian transvaluation of dignity to all rational human beings but rethinking autonomy as selfdetermination rather than as Kantian autonomy, modern political thinkers have unwittingly undermined the ancient tradition of dignity. In the face of the crisis of politics that has its roots in the equation of dignity with self-determination, Arendt asks the question: how can we revitalize the political significance of the idea of dignity? She writes in The Origins of Totalitarianism that, “The subterranean stream of Western history has finally come to the surface and usurped the dignity of our tradition.” The evidence for the victory of this subterranean stream of western history is, she argues, clear. It includes anti-Semitism, imperialism and totalitarianism. We might add genocide, apartheid, and legalized

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torture. In any event, the parade of indignity of the last  years has, in Arendt’s words, “demonstrated that human dignity needs a new guarantee which can be found only in a new political principle, in a new law on earth.”24 For dignity to have meaning today, we must ground it anew. But what does it mean to ground dignity anew? And in what way can it be a political principle? Might it be that a new dignity jurisprudence that has its roots in the postwar Constitutions and is currently experiencing a revival in South Africa can offer insight into the new political principle, the new law on earth that Arendt called for back in ? Generations of scholars have looked in vain to find precisely what Arendt means by the new political principle that she announces in The Origins of Totalitarianism. Most of the attention has focused on Arendt’s enigmatic call for a “right to have rights” in the now iconic chapter on “The Decline of the Nation State and the End of the Rights of Man.”25 Scholars have parsed Arendt’s language to find in the right to have rights some solid foundation that would counter Arendt’s conclusion that, “The rights of Man, supposedly inalienable, proved to be unenforceable.”26 And yet, “when Arendt asked how the right of man to dignity might be guaranteed?” her answer was an expression of worry: “It is by no means certain that this is possible.”27 Recently, Peg Birmingham has argued, persuasively, that Arendt did indeed pursue a principle of humanity that grounds dignity: namely, the principle of natality that informs so much of her later thinking and writing.28 Natality means the act of giving birth. For Arendt, men and women exist and appear in the world as those beings who can begin things. Unlike Kant, for whom men are defined by their rational ends, and unlike Habermas for whom man’s rational ends are developed through discourse, Arendt argues that man is defined by his beginning, by his ability to begin.29 For Arendt, Birmingham argues, humanity’s guarantee of dignity lies “not in the end of humanity”—not in man’s end as a rational being—“but in its beginning”—in man’s capacity to act spontaneously and start things anew.30 It is the freedom of the beginner—the man who can initiate action—that Arendt argues is one source of human dignity. Natality, however, means more than beginning; for Arendt, natality names as well the givenness of human being, the fact that man is physei (Greek for nature)— that man grows naturally without following set rules and according to his own laws. Birmingham illuminates the givenness in natality by exploring the source of Arendt’s thinking in her critique of the discussion of physis in Heidegger’s Anaximander fragment. Since “physis is genesis, an unpredictable appearing,” it shares with natality a quality of an absolute beginning free of any cause or governing telos.31 The principle of natural givenness, for Arendt, is an “anarchic” principle that is “cut off and adrift from any sovereign constituting power or foundation.”32 Since each person is a radical beginning, human rights, and the right to have rights, “includes the principle of givenness,” by which Arendt means the mere right to exist, to appear as a singular, alien, foreign, and isolated individual.33 It is the obligation in the face of the alien

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that must be respected as part of the human that, pace Birmingham, underlies Arendt’s guarantee of the right to have rights to every human being. Since human existence, as physis, is cut off from any prior reason or ground, man is unjustifiable and thus vulnerable. Man stands alone as alien and strange. And this strangeness that attaches to man’s natality both underlies Arendt’s defense of plurality and her insistence that the right to have rights includes the right to be as you are. Natality, for Arendt, names the core sense of human dignity, man’s capacity to begin and to appear in the world as a new and unique person. Might Arendt’s idea of dignity as natality—the free, spontaneous, and thoughtful personal core of humanity—offer a meaningful foundation for the developing dignity jurisprudence in South Africa? I have suggested one positive answer to that question elsewhere.34 Here, I simply want to suggest that the importance of dignity as a Grundnorm of the Constitution may only in part depend on the explicit protection of the right of dignity. Beyond the rights that dignity girds, the South African Constitution itself has emerged as an institutional space of dignity. As the embodiment of dignity in the public life of South Africa, the Constitutional Court illuminates the ideal of dignity so that it, as Ralph Waldo Emerson says of heroic and free acts, “throws light upon the mystery of humanity.”35 It is not at all clear that such a mystery can be revealed in the bright light of day. Instead, the effort today, of which this book is a part, is to work with, develop, and uphold the call of dignity as an aspiration that summons all to the possibility of freedom.

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The Architecture of Dignity Stu Woolman

As essentially a court lawyer, with no formal training in philosophy, I dare to take my stand on Kant because his imperatives encapsulate for me, by way of contrast and in the rationally most compelling manner that I have been able to discover, what was so obscene about apartheid. It serves as a constant reminder of our very ugly recent past. As a reforming Constitution, it is right that human dignity should be so highly valued. —L O U R E NS A C K E R M A NN 1

South Africa boasts one of the world’s most developed bodies of dignity jurisprudence. Only the Federal Constitutional Court’s gloss on the meaning of dignity in Germany’s Basic Law can match the richness of our Constitutional Court’s account. As the epigraph from Justice Ackermann suggests, the richness of this jurisprudence flows, in part, from South African history. The Truth and Reconciliation Commission (TRC), for example, recognized that dignity has its roots in the simple idea that justice consists of the refusal to turn away from suffering. The TRC’s unflinching commitment to the provision of a historical record of such suffering under apartheid counts as the first step in our moral re-awakening. However, the demands of dignity trace an arc that extends beyond the narrow duty to refuse to turn away from suffering to a broader duty to recognize our fellow citizens as agents capable of governing themselves. The granting of a truly universal franchise, and its exercise in the election of Nelson Mandela in  (and in every other subsequent election), constitutes formal recognition of the capacity of each person to legislate for him- or herself.

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The history of dignity in South Africa does not end there. The formal recognition of our compatriots as autonomous moral agents ratifies an even wider obligation to assist our compatriots in the conversion of their innate talents into capabilities that will, in turn, enable them to realize their preferred way of being in the world. When refracted through the prism of dignity, the Final Constitution extends our obligations, beyond the franchise and those civil liberties that permit us to legislate for ourselves, to socio-economic rights that guarantee the material transformation of the lives of each and every human being in South Africa.2 This brief history of our newfound ability to recognize the inherent dignity of our fellow South Africans is meant to suggest how the extension of this right progresses from mere duties of justice to duties of virtue that have as their aim the qualitative perfection of humanity.3 Despite its deep and profound resonance with South African history, dignity is manifestly not like Auden’s valley cheese—“local, but prized everywhere.” The Constitutional Court quite consciously draws upon two exogenous sources.4 First, the court traces dignity’s place in the pantheon of political thought back to Immanuel Kant.5 The existing corpus of South Africa’s dignity jurisprudence tracks— the trajectory of Kant’s ethical thought and, in particular, his various formulations of the categorical imperative.6 The court’s jurisprudence turns in ever widening gyres of obligation: moving outward from “the refusal to turn away” as manifest in the death penalty and corporal punishment judgments, to “the equal respect” accorded nontraditional forms of intimate association in the gay and lesbian rights cases, to “the collective responsibility for the material conditions required for agency” contemplated in recent socio-economic rights decisions. Second, the court recognizes that the history of dignity is a history of the world after World War II.7 It is no accident that dignity occupies a central place in German constitutional jurisprudence, for “dignity” is the flip-side of “never again.” And just as the Germans have promised not to shovel people into stoves so too have South Africans promised never again to treat people like cattle to be packed off to Bantustans or to be slaughtered in the middle of the night. Dignity, like the words never again, may now have a new and deeper meaning post–Third Reich and postapartheid. But “dignity,” like “never again,” writes Alan Ryan, has, in fact, “been the watchword all along.”8 Ultimately, that watchword always returns us to first principles: the refusal to turn away. This essay engages the constitutional watchword of dignity in a number of discrete, but ultimately related, ways. First, I offer working definitions (or dimensions) of dignity. Second, I show how dignity operates—as a rule-generating right (a casedispositive right), a right informing right (a rule-informing right), a correlative right, a value, a principle and a Grundnorm—in both the text of the Final Constitution and in the judgments of our courts. Third, I catalogue the court’s use of dignity to work out the extension of various other substantive provisions in the Bill of Rights. Finally, I return, briefly, to more speculative observations about how dignity operates

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as right, value, and Grundnorm. Here I answer the “realist charge” that dignity means anything and everything, and therefore nothing. I offer, in place of the realist critique, an account of dignity that I believe best fits both the remedial purpose and the overall structure of the final Constitution. This account explains why dignity must function as a right, a value, and an ideal and imagines how dignity, properly understood, might serve the ends of a transcultural jurisprudence that would give equal weight to—or at least mediate—African and European conceptions of justice. As a methodological matter, these five definitions (or dimensions) of dignity, and a demonstration of how dignity operates as a rule-generating right, a case dispositive right, a right-informing right / a rule-informing right, a correlative right, a value and a Grundnorm is necessary because all lawyers and academics attempting to understand South Africa’s complex body of dignity jurisprudence require a Baedeker of this sort. But such a Baedeker alone is insufficient to the task of explanation. In the first place, dignity as a right, a value, a Grundnorm, and a regulative ideal often performs more than a single function in a single case. Not only do different denotations of dignity generate different kinds of rules, the very same definition of dignity may operate as a rule, a value, and an ideal. In the second place, while the word dignity may not be so open-textured as to be the basic unit in a jurisprudential “Legoland,” its multiple uses confound all attempts to reduce the courts’ jurisprudence to a finite number of rules.9 Three further methodological observations are in order. First, I have assiduously avoided offering a positivist account of dignity in these pages for the following reasons: Formally fair rules may mask substantially unjust arrangements.10 Once a constitutional norm such as dignity is reduced to rules, obedience to the law tends to supplant considerations of justice as the primary—and principled—end of our political community. We need to be regularly reminded that the legal rules or principles that the right to (and value of ) dignity produces are only as good as the everyday ethical practices that inform, and regularly transform, those rules. Second, I do not expressly address the gap between the court’s Anglo-American inflected understanding of right and the broader understanding of the term Recht in Germany’s Basic Law. (That broader understanding of the term Recht in Germany’s Basic Law and Kantian philosophy is engaged elsewhere in this work.) However, I would be remiss if I did not note that this gap between the Anglo-American inflected understanding of right and the broader understanding of the term Recht in Germany’s Basic Law (GBL) may explain why the South African understanding of an “objective, normative value order” lacks the heft of its German counterpart. That the term in the South African vernacular lacks the substantive content of its German counterpart is an observation that I pursue elsewhere.11

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Third, the difference between the court’s and my own Anglo-inflected understanding of law and any given German idealist conception of law might appear to place other authors and editors of this work and myself slightly at odds. If one takes the text of the Constitution and the judgments of the court seriously, then it becomes apparent that the text and the judgments track a certain arc: from rule-determining right, to right-informing right, to correlative right, to value and, finally, to ideal. But it would be churlish, and quite wrong, to suggest that this trajectory is the only way, or even the best way, of reading the text or the cases. Consistent with her commitments to German idealist thought, my colleague and coeditor Drucilla Cornell views dignity first and foremost as a value and an ideal. Moreover, such a view possesses genuine descriptive merit with respect to an elucidation of the case law. For as we will see below, dignity functions as a law developing value as often as it does a rule-generating right or as a right-informing right. Need one choose between these various schools of though? Not for the primarily descriptive purposes of this chapter. Once one has read through this chapter, and those on offer by my fellow editors and colleagues, the reader can, without harm, choose to read the section on “uses” in whatever order he or she prefers. If you happen to be a German idealist, then consider beginning your analysis with dignity as a value or Grundnorm. If your jurisprudential orientation tends to be AngloAmerican or South African inflected, then read the taxonomy of dignity from right through to rule, and then on to value and ideal. That these ways of reading may reflect a distinction without much difference is reflected in the next section of the definitions or dimensions of dignity. Each dimension of dignity can be linked with one or another variation of Kant’s categorical imperative or principle of right. One hopes that by the end of this section, the reader will have heard what John Rawls described as the “symphony” of Kant’s variations on the categorical imperative and a similar “sonata” on the meaning of dignity in the South African jurisprudence. DIMENSIONS OR DEFINITIONS OF DIGNITY This section identifies five primary definitions of dignity in the court’s jurisprudence. One aim of this taxonomy is to demonstrate how these five definitions draw down on the same basic insight: that we recognize all individuals as ends-in-themselves capable of self-governance. (Put pithily, each definition of dignity emphasizes a different dimension of our status as autonomous moral agents.) I suggest how these definitions build upon this common insight and interpenetrate one another to yield a theory of dignity. At the same time, one must recognize that the court’s definitions yield, at best, a partial theory of dignity. It falls then to commentators to flesh out the court’s theory, to identify the particular definition(s) or dimension(s) of dignity being deployed in a given case, and to explain, more importantly,

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. how the court responds when one denotation of dignity conflicts with another denotation of dignity, . how the court determines when one such denotation must yield to another, and . how the court resolves conflicts between dignity and other constitutional rights and values. It should go without saying that only after one has identified, as fully as possible, the various conceptions of dignity that animate the court’s reasoning does one earn the right to engage them critically.

Individual as an End-in-Herself (Dignity ) Justice Ackermann, the court’s original exponent of dignity, grounds the first definition of dignity in two sources that I have already identified, apartheid and the work of Immanuel Kant: [I]t is permissible and indeed necessary to look at the ills of the past which [the Constitution] seeks to rectify and in this way try to establish what equality and dignity means. What lay at the heart of the apartheid pathology was the extensive and sustained attempt to deny to the majority of the South African population the right of self-identification and selfdetermination. . . . Who you were, where you could live, what schools and universities you could attend, what you could do and aspire to, and with whom you could form intimate personal relationship was determined for you by the state. . . . That state did its best to deny to blacks that which is definitional to being human, namely the ability to understand or at least define oneself through ones own powers and to act freely as a moral agent pursuant to such understanding of self-definition. Blacks were treated as means to an end and hardly ever as an end in themselves; an almost complete reversal of the Kantian imperative and concept of priceless inner worth and dignity.12

For Kant, as for Ackermann, the recognition of every human being’s inherent dignity takes the form of an apparent variation on the golden rule,13 the categorical imperative: “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.” Stated in Kant’s uncompromising terms, such an ethical algorithm might seem impossible to enact. We all know that, even with the best of intentions, many of the myriad interactions we have with our fellow human beings will be almost entirely instrumental. We know that whether we take decisions for a family, a classroom of students, a neighborhood, a town, a province, or a nation, some form of a utilitarian calculus—the greatest good for the greatest number—will enter into

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our considerations. And we know that the relational or the communitarian quality of ethics is such that we will often privilege the claims of family, kin, neighborhood or nation over more general or universal claims.14 How then to understand Kant in a way that is neither sentimental nor woolly? Consider Oscar Schachter’s gloss on the categorical imperative: “Respect for the intrinsic worth of every person should mean that individuals are not to be perceived or treated merely as instruments or objects of the will of others.”15 Dignity, on this account, sets a floor below which ethical—and legal—behavior may not fall. Although some relationships will be purely instrumental, no individual person can be treated as a mere instrument over the entire domain of her social interactions. This floor supports—as the Dawood court suggests—chapter ’s express prohibitions on slavery, servitude, and forced labor.16 This definition of dignity also bars punishments that either extinguish the humanity of another entirely—say, the death penalty—or through their disproportionality reduce a human being to a mere signal within a large and impersonal system of social control.17

Equal Concern and Respect (Dignity ) The first primarily negative obligation not to treat another merely as a means and to recognize in that other the ability to act as an autonomous moral agent underwrites a conception of dignity as a formal entitlement to equal concern and respect. From this conception of dignity as an entitlement to equal concern and to equal respect, the Constitutional Court has constructed a two-part test in the final Constitution section  (the right to equality): . a right to equal treatment which ensures (a) that the law does not irrationally differentiate between classes of persons and (b) that the law does not reflect the “naked preferences” of government; and . a right to equal treatment that guarantees that individuals are not subject to unfair discrimination on the basis of largely ascriptive characteristics.18 Of this demand for equal concern and respect, Justice Ackermann writes: [A]t the heart of the prohibition of unfair discrimination lies the recognition that the purpose of our new constitutional and democratic order is the establishment of a society in which all human beings will be accorded equal dignity and respect regardless of their membership in particular groups. The achievement of such a society in the context of our deeply inegalitarian past will not be easy, but that that is the goal of the Constitution should not be forgotten or overlooked.19

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Self-actualization (Dignity ) A third dimension of dignity flows from a belief that we define ourselves—and our humanity—through the rational choice of all of our ends and not just those that are explicitly moral. This broader capacity to create meaning—to will value into the world—gives rise to the modern political preoccupation with self-actualization. An individual’s capacity to create meaning generates an entitlement to respect for the unique set of ends that the individual pursues. In Ferreira v. Levin, Justice Ackermann writes: Human dignity cannot be fully valued or respected unless individuals are able to develop their humanity, their “humanness” to the full extent of its potential. Each human being is uniquely talented. Part of the dignity of every human being is the fact and awareness of this uniqueness. An individual’s human dignity cannot be fully respected or valued unless the individual is permitted to develop his or her unique talents optimally. Human dignity has little value without freedom; for without freedom personal development and fulfillment are not possible. Without freedom, human dignity is little more than an abstraction. Freedom and dignity are inseparably linked. To deny people their freedom is to deny them their dignity.20

Dignity, properly understood, secures the space for self-actualization.21 That said, dignity qua self-actualization need describe only a political, and not a metaphysical, state.22

Self-governance (Dignity ) An essential feature of South African constitutional politics that flows from the place of dignity in our basic law is the recognition of the ability of all human beings—through their capacity to reason—to legislate for themselves. Indeed, as I have just noted, it is our capacity for self-governance, and the fact that we are not simply slaves to our passions, that distinguishes man from beast.23 Our capacity for self-governance—the capacity of (almost) all human beings to reason their way to the ends that give their lives meaning—is largely what makes democracy the only acceptable secular form of political organization. For if we are capable of shaping our own ends as individuals, equal political treatment demands that we be able to shape them as citizens in a democracy.24 At a minimum, it means we must be able to participate in the collective decision-making processes that determine the ends of our community. As Justice Sachs notes in August v. Electoral Commission: “The universality of the franchise is important not only for nationhood and democracy. The vote of each and every citizen is a badge of dignity and of personhood. Quite literally, it says that everybody counts.”25 This commitment to dignity qua self-governance is rather straightforward in the franchise cases.26 However, dignity qua self-governance

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may give rise to those odd (conspicuously rare) occasions where the Constitutional Court most conspicuously falters. Dignity qua self-governance ought to promote the court’s commitment to representation-reinforcing processes—most notably where our democratic processes cannot be profitably exploited by vulnerable minorities and out-groups. But cases such as Prince, Jordan, Volks, and De Reuck sound cautionary notes about the extent to which the court will extend itself on behalf of nontraditional associations, vocations, or professions.27 In these cases, the court reinforces a traditional morality supported by a majority of South Africans and effectively undermines the efforts of these out-groups to determine the ends in their own lives.28

Collective Responsibility for the Material Conditions for Agency (Dignity ) This failure to accord such out-groups the requisite level of equal respect is thrown into somewhat sharper relief by the fifth and final strand of the court’s dignity jurisprudence. Here the emphasis is not solely on the individual ends in our realm of ends. The court also contemplates a connotation of dignity that attaches to the realm as a whole. In a series of unfair discrimination and socio-economic rights cases, the Constitutional Court has made it clear that our commitment to dignity does not flow entirely from the inalienable rights of individuals. Whether it has engaged the stigma associated with HIV/AIDS, the urgent need for shelter, the entitlement of all to adequate food and water or the desperation associated with summary evictions, the Constitutional Court has, over the past several years, repeatedly emphasized the fact that “[i]t is not only the dignity of the poor that is assailed when homeless people are driven from pillar to post in a desperate quest for a place where they and their families can rest their heads. Our society as a whole is demeaned when state action intensifies rather than mitigates their marginalization.”29 Dignity, on this account, is not simply a constellation of duties owed by the state to each subject, or a set of entitlements that can be claimed by each member of the polity. Dignity is that which binds us together as a community, and it occurs only under conditions of mutual recognition. Moreover, such mutual recognition is not merely formal. The court in Khosa notes that the Final Constitution commits us to an understanding of dignity in which “wealthier members of the community view the minimal wellbeing of the poor as connected with their personal well-being and the well-being of the community as a whole.”30 The court’s account of dignity, which has heretofore supported various conditions required for the meaningful exercise of individual moral agency, now appears to describe dignity as a collective good. The case law even features a number of disputes in which the dignity interests of the collective are said to trump the dignity interests of an individual.31 But with the exception of a few aperçu in the socio-economic rights cases, and an aside or two in a handful of other disputes, the court rarely refers to our collective

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dignity.32 The court’s circumspection, in this regard, suggests that it does not have in mind some neo-romantic conception of the political community. How then to comprehend dignity as a collective concern? What the court wishes us to understand is that for dignity to be meaningful in South Africa, the political community as a whole must provide that basket of goods—including such primary goods as civil and political rights—which each member of the community requires in order to exercise some basic level of agency. This conception of dignity possesses several striking similarities to Amartya Sen’s politics of capability. For Sen, as for our Constitutional Court, the primary concern of the polity is not with wealth maximization. “Wealth,” as Aristotle wrote, “is evidently not the good we are seeking; for it is merely useful and for the sake of something else.”33 That something else, as Sen writes, is “[t]he expansion of the ‘capabilities’ of persons to lead the kinds of lives they value—and have reason to value. . . . Having freedom to do the things one has reason to value is () significant in itself for the person’s overall freedom, and () important in fostering the person’s opportunity to have valuable outcomes.”34 However, Sen’s aims are not limited to fostering the agency of the individual. Individual agents should be understood both as ends-in-themselves and as the “basic building blocks” of aggregate social development. The “greater freedom” of individuals not only “enhances the ability of people to help themselves and . . . to influence the world,” it is essential to the development of society as a whole.35 For Sen, the link between individual capabilities and development is part of a virtuous circle. Enhancement of individual freedom—by both political and material means—leads to greater social development, which, in turn, further enhances the possibilities for individual capabilities and the freedom to lead the kinds of lives we have reason to value. This virtuous circle would appear to be what the Constitutional Court in Khosa has in mind when it ties the well-being of the worst off to the well-being of the wealthy. The enhancement of individual capabilities of the poorest members of our political community enhances the development of South Africa as a whole. Or put slightly differently, the greater the agency of the least well-off members of our society, the greater the agency of all the members of our society. This gloss on Khosa emphasizes not the subjective sense of well-being that the well-off might experience by tying their well-being to that of the poor. Rather it emphasizes an increase in the objective well-being that flows from the enhancement of the agency of each individual member of our society.

The Relationship between the Five Definitions of Dignity and the Creation of a Realm of Ends We may be able to see, now, how dignity builds upon a simple premise, the refusal to turn away from suffering, and yields, ultimately, a realm of ends. The refusal to turn away marks the very beginning of our moral awareness—the first time we come to understand that others are not mere instruments for the realization of our

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desires, but beings who are ends in themselves. This moral awakening leads, almost ineluctably, to two further insights: (a) that others are entitled to the same degree of concern and respect that we demand for ourselves; and (b) that others are entitled to that equal respect and equal concern because they, like us, are possessed of faculties that enable them to pursue ends that give their lives meaning.36 The ability to give our lives meaning and to determine the course by which we give our lives meaning, leads to the recognition that we are able to govern ourselves. At a minimum, this mutual recognition of our ability to govern ourselves supports the formal political recognition that just as each one of us is entitled to govern our individual self, so too are we entitled to legislate as part of the broader community to which we belong. This mutual recognition of one another as rational beings capable of ordering the ends both of our own lives and of the larger community underwrites the final insight: that we not only live in a realm of ends, but that if such a realm is to have real meaning, we must be willing to order our community in a manner that enables each individual to realize their status as an end. Once we recognize others as ends we must be committed—at some level—to the provision of those material means necessary to live as ends. To refuse them such means might render meaningless the more formal guarantees found in the Final Constitution. As the court itself notes in Grootboom: The Constitution will be worth infinitely less than its paper if the reasonableness of state action concerned with housing is determined without regard to the fundamental constitutional value of human dignity. Section , read in the context of the Bill of Rights as a whole, must mean that the respondents have a right to reasonable action by the state in all circumstances and with particular regard to human dignity. In short, I emphasize that human beings are required to be treated as human beings.37

Two riders must attach to this account of dignity. First, the notion that the five definitions of dignity can be viewed as building blocks out of which we can construct a realm of ends is my speculative exercise. Certainly, the Constitutional Court has never said as much. However, that Kant and Rawls, amongst others, have offered similar philosophical constructs gives this reconstruction of the court’s jurisprudence more than a patina of plausibility. Second, that the five definitions of dignity can be viewed as building blocks out of which we can construct a reasonably coherent theory of dignity does not mean that these five definitions will always cohere with one another. As I will demonstrate, the definitions/dimensions sometimes pull in

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opposite directions and thereby generate significant doctrinal tension. I shall, in the section dignity’s relationship to other substantive rights indicate where such conflicts occur and suggest, where possible, how such conflicts might be resolved. USES OF DIGNITY The word dignity is sprinkled about the text of the Final Constitution. It is a founding value: FC section (a). It acts as a cornerstone of both democracy and the Bill of Rights: FC section (). It informs both our interpretation of the ambit of the specific substantive provisions of the Bill of Rights—FC section ()—and our analysis of the justification of any limitation of a right or freedom—FC section . It governs the behavior of our courts, other tribunals, and state institutions supporting constitutional democracy: FC sections , , and . It is, perhaps most importantly, the second substantive right identified in the Bill of Rights: FC section . That dignity operates as a rule-generating right (a case dispositive right), a ruleinforming right (right-informing right), a correlative right, a value and a Grundnorm—and sometimes all in a single case—is confirmed by Justice O’Regan’s oft quoted dictum in Dawood: Human . . . dignity informs constitutional adjudication and interpretation at a range of levels. It is a value that informs the interpretation of many, possibly all, other rights. . . . 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 labor.38

So, just as dignity denotes at least five different, though related, kinds of obligation, so too does dignity operate within our legal system in four sundry ways.39

Dignity as a Rule-generating Right Dignity is rarely a rule-generating right or a case-dispositive right. That is, the right to dignity alone is rarely dispositive of a constitutional matter. The first rule of South African dignity jurisprudence is that where a court can identify the infringement of a more specific right, FC section  will (ostensibly) not add to the enquiry.40 That said, dignity has operated as a rule-generating or case-dispositive right in a number of intimate association matters because the Constitutional Court could identify no other specific right that would protect the interests of the married couples or life partners in question.41 High Courts have extended the protection that FC section

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 affords intimate associations beyond the confines of marriage or life partnerships to relationships between grandparents and grandchildren.42 High Courts have also deployed dignity as a rule-generating or case-dispositive right when no other right would protect the linguistic interests of a party before the court.43

Dignity as a Rule-informing Right Dignity often operates as a rule-informing right. That is, dignity as a right-informing or rule-informing right determines how another rule-generating right or casedispositive right disposes of a given matter.44 Dignity, as a rule-informing or right-informing right features most prominently in equality (FC section ) cases. It does so in two ways. First, an impairment of human dignity may determine whether mere differentiation amounts to actual discrimination. Second, when attempting to determine whether discrimination amounts to unfair discrimination, the Constitutional Court will ask to what extent the law or the conduct in question impairs the dignity of the complainant and whether the law or the conduct in question re-inscribes systemic patterns of disadvantage for—and thus impairs the dignity of—a specific class of persons.45 As we shall see below shows, dignity, as a rule-informing or right-informing right determines: (a) whether punishments are disproportionate (FC section ); (b) whether the state has a duty of care with respect to the physical security of its citizens (FC sections  and ); (c) the extent of the state’s interest in fetal life (FC section ); (d) the parameters of contractual autonomy (FC section ); (e) the circumstances under which an individual may legitimately claim that his or her home is an impregnable castle (FC section ); (f ) when the conditions of existence amount to slavery (FC section ); and (g) when expressive conduct constitutes hate speech (FC section ).

Dignity as a Correlative Right The Constitutional Court often deploys rights simultaneously in the service of its arguments. It likes to describe rights as interdependent and symbiotic. This talk of interdependence is especially evident in challenges to law or to conduct grounded in the right to dignity. However, for my immediate purpose—to distinguish dignity as a correlative right from dignity as dignity as a rule-generating right, or dignity as a rule-informing right, I must show that dignity functions, in some respects, independently of other rights in constitutional challenges that rely upon multiple rights. S v. Jordan provides a paradigmatic example of dignity deployed as a correlative right. Justices O’Regan and Sachs note that although the rights to dignity, privacy, and freedom of the person intersect and overlap, the challenges brought in terms of each of these rights cannot be consolidated into a single challenge grounded in some

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“unenumerated” right to autonomy. Each challenge based upon a specific right must, they say, be considered individually.46. The court has adopted this multiple-challenge approach in a wide variety of cases. In Bhe, statutory provisions and customary law norms that enshrined the rule of male primogeniture were found to violate both the right to equality and the right to dignity.47 The National Coalition for Gay and Lesbian Equality I (NCGLE I) court, in finding that the common law criminalization of sodomy constituted a violation of the right to dignity, as well as a violation of the right to equality and a violation of the right to privacy, wrote “[i]t is clear that the constitutional protection of dignity requires us to acknowledge the value and the worth of all individuals as members of society”48 and that “the rights of equality and dignity are closely related, as are the rights of dignity and privacy.”49 The language in NCGLE I echoes Justice Ackermann’s assertion in Ferreira v. Levin that a strong correlation between the right to dignity and individual freedom.50 Dignity is not, however, just a correlate for negative liberty. It also buttresses the right to equality. As the court writes in Prinsloo v. Van der Linde: “‘In our view unfair discrimination [the linchpin of equality analysis] . . . principally means treating people differently in a way which impairs their fundamental dignity as human beings, who are inherently equal in dignity.”51 And if the correlation between the right to dignity, the right to equality and various freedoms in chapter  is still not clear, the court, in President of the Republic of South Africa v. Hugo states: “[D]ignity is at the heart of individual rights in a free and democratic society . . . [E]quality . . . means nothing if it does not represent a commitment to each person’s equal worth as a human being, regardless of their differences. Equality means that our society cannot tolerate legislative distinctions that treat certain people as second-class citizens.”52

Dignity as a Value, Grundnorm, or Aspirational Ideal Although dignity clearly operates as a rule-generating right, a rule-informing right, and a correlative right, it is invoked most often as a value. Part of the reason for this preference for deploying dignity as a value flows from the courts’ stated, and often problematic, preference for “developing” the law rather than making it.53 The result of this preference, is a palpable lack of precision. For example, in S v. Williams, the court writes that: The Constitution has allocated to the State and its organs a role as the protectors and guarantors of those rights to ensure that they are available to all. In the process, it sets the State up as a model for society as it endeavors to move away from a violent past. It is therefore reasonable to expect that the State must be foremost in upholding those values which are the guiding light of civilized societies. Respect for human dignity is one such value; acknowledging it includes an acceptance by society that “. . . even the vilest criminal remains a human being possessed of common human dignity.”54

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Dignity, in the previous paragraph, appears to operate as a value. In fact, juvenile whipping, in Williams, was challenged in terms of the right to equality, the right to dignity and the right to be free from cruel, inhuman, and degrading treatment. The Williams court held that juvenile whipping is a violation of the right to dignity (IC section ) and the right to be free from cruel, inhuman, and degrading treatment (IC section ()). Whatever the reason for this particular instance of analytical confusion, as a matter of doctrine, the Constitutional Court is on record as having little time for the putative collapse of the rule/value distinction. In Minister of Home Affairs v. National Institute for Crime Prevention, Chief Justice Chaskalson writes: “The values enunciated in section  of the Constitution are of fundamental importance. They inform and give substance to all the provisions of the Constitution. They do not, however, give rise to discrete and enforceable rights in themselves. This is clear not only from the language of section  itself, but also from the way the Constitution is structured and in particular the provisions of chapter  which contains the Bill of Rights.”55 Values are one thing, the National Institute for Crime Prevention (NICRO) court appears to be saying, rules another.56 While it is certainly true that the fundamental values articulated in the final Constitution will shape the rules expressed therein, and that the rules will have a reciprocal effect with respect to our understanding of those fundamental values, there remains a distinction with a difference. Rights give rise to rules and to enforceable claims. Values (ostensibly) do not. And so, doctrinally, it is with dignity. FC section —dignity as a rule-generating right / case-dispositive right, dignity as a rule-informing right / right-informing right and a correlative right—gives rise to enforceable claims. Dignity, where it appears as a value, allegedly does not. (It is hard to read the case law around dignity and reach such a pat conclusion.) The first reason that dignity is invoked more often as a value than as a casedispositive right is that FC section  states that the various substantive provisions in the Bill of Rights, and the Bill of Rights as a whole, must be interpreted so as to “promote the values that underlie an open and democratic society based on human dignity, equality, and freedom.” The second reason is that when a law is found to have infringed a fundamental right, the question raised, FC section  tells us, is whether the limitation in question “is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom.” The third reason is that the ubiquity of dignity has led the court to adhere to a relatively restrictive rule regarding the use of dignity as a rule-generating right: where a court can identify the infringement of a more specific right, FC section  should not be added to the enquiry. Because some rights are understood, immediately, to be expressions of the commitment to dignity—say, the prohibitions on torture (FC section ), slavery, servitude, or forced labor (FC section )—and many other rights, once refracted through the value of dignity, become expressions of the more basic (nonjusticiable)

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commitment to dignity—say the right to equality and the right not to be subject to cruel, inhuman, or degrading punishment—the need for dignity to function as a rule that disposes of cases directly is less pronounced than it might otherwise be. In the first class of “dignity as value” cases, dignity guides our interpretation of the right and, in so doing, shapes the ambit of a right. In Coetzee v. Comitis, the Cape High Court finds that the restraint of trade provision at issue “strips the player of his human dignity” and therefore constitutes an unjustifiable limitation of his freedom, under FC section , of trade, occupation, and profession.57 In Khosa v. Minister of Social Development, the Constitutional Court’s conclusion that “the exclusion of permanent residents in need . . . [from] social-security programmes” has “a serious impact on [their] dignity” supports a finding that the Social Assistance Act violates both the right to equality and the right to social security of permanent residents.58 In the second class of “dignity as value” cases, dignity is used to justify a limitation on a right. In Khumalo v. Holomisa, the Constitutional Court twins the privacy and the dignity rights that ground the interest in a good reputation to turn back a freedom of expression challenge to the constitutionality of the law of defamation.59 In De Reuck, the Constitutional Court finds that the state’s interest in protecting the dignity of all children justifies the limitation of the freedom of expression that the Films and Publications Act imposes upon the producers and the possessors of child pornography.60 In Christian Education, the mutually reinforcing rights of religion and culture said to sanction corporal punishment in private schools were deemed subordinate to a constellation of rights that included dignity, equality, and freedom and security of the person.61 In the third class of “dignity as value” cases, those cases in which the Bill of Rights does not apply directly, the court will often speak of dignity as a value that informs the development of the common law or the interpretation of a statute. In Carmichele v. Minister of Safety and Security, the Constitutional Court found that the value of dignity, as well as the values that animate freedom and security of the person, required that the duty of care imposed on the state in delictual actions be expanded so as to ensure that the state did not permit known and dangerous felons to imperil the lives of its citizens.62 Similarly, in NK v. Minister of Safety and Security, the Constitutional Court found that these same values required a significant alteration in the common law understanding of vicarious liability and ensured that the state remained responsible for police officers, who, acting under the color of law, abused their authority and violated the physical integrity of the very people they are duty bound to protect.63 In Metrorail, the Constitutional Court interpreted the Legal Succession of the South African Transport Act in light of the values that animate the rights to dignity, life, and freedom and security of the person and found that the Act, properly construed, required that the state actors responsible for rail travel take affirmative steps to ensure the safety of their commuters.64

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DIGNITY’S RELATIONSHIP TO SUBSTANTIVE PROVISIONS IN THE BILL OF RIGHTS Dignity’s presence—as a rule-generating right, a rule-informing right, and a correlative right, a value and a Grundnorm—in our jurisprudence ensures that dignity determines the extension of many of the substantive rights in chapter . However, dignity’s ubiquity guarantees that these same substantive rights will shape our understanding of dignity. The manner and the circumstances in which substantive rights recast our understanding of dignity may vary quite markedly: The relationship between dignity and the freedom of trade, occupation, and profession will differ from the relationship between dignity and various socio-economic rights. Despite such differences, the reciprocal effect of dignity and various substantive provisions on one another promises that however dignity is construed in a given matter, its meaning will never stray far from our core concern with the treatment of individuals as ends-in-themselves.

Equality Dignity is the lynchpin for equality analysis under FC section . Indeed, whether unfair discrimination is deemed to have occurred in terms of FC sections (), (), and () will often turn on whether, and the extent to which, the complainant’s dignity has been impaired. According to the Harksen court, the question as to whether differentiation amounts to unfair discrimination has two parts: Firstly, does the differentiation amount to “discrimination”? If it is on a specified ground, then discrimination will have been established. If it is not on a specified ground, then whether or not there is discrimination will depend upon whether, objectively, the ground is on attributes and characteristics which have the potential to impair the fundamental human dignity of persons as human beings or to affect them adversely in a comparably serious manner. If the differentiation amounts to “discrimination,” does it amount to “unfair discrimination”? If it has been found to have been on a specified ground, then unfairness will be presumed. If on an unspecified ground, unfairness will have to be established by the complainant. The test of unfairness focuses primarily on the impact of the discrimination on the complainant and others in his or her situation. If, at the end of this stage of the enquiry, the differentiation is found not to be unfair, then there will be no violation of [FC section ()].65

Dignity thus informs equality analysis at two stages. First, it enables us to distinguish mere differentiation from discrimination. Differentiation on a ground listed in FC section () amounts to discrimination because distinctions based upon such ascriptive characteristics are an affront to dignity (Dignity ). Second, and more importantly perhaps, the extent to which a discriminatory measure impairs the com-

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plainant’s dignity will determine whether discrimination found to be presumptively unfair on a listed ground in FC section (), or merely discriminatory on an analogous ground, will ultimately be held to be unfair. As a general matter, the court asks three discrete questions before arriving at a final conclusion as to the unfairness of the discrimination: . Is the complainant a member of a class of persons subject to past patterns of systemic discrimination? This question reflects the court’s well-founded belief that differential treatment of persons who are members of historically disadvantaged groups is more likely to impair their dignity (Dignity ), and thus be unfair, than is the differential treatment of persons who are members of groups that have, historically, been relatively well-off.66 . Does the discriminatory law or conduct in question impair the dignity, or some other fundamental right, of the complainant? This question draws our attention to the actual circumstances of the complainant and requires that the complainant experience some demonstrable harm that prevents self-actualization (Dignity ).67 . Is the discriminatory law or conduct in question designed to achieve an important societal goal and is the discriminatory law or conduct in question narrowly tailored to achieve this legitimate goal? This question recognizes that our constitutional order serves ends other than equality and that such ends cannot always be reduced to or be squared with egalitarian concerns.68 However, they can be described in terms of dignity interests in self-actualization and in self-governance (Dignity  and Dignity ). While we can characterize all three inquiries in terms of dignity, it is misleading to characterize all three inquiries solely in terms of the dignity interests of the complainant. For while the third question can be framed as an inquiry into the dignity of a class of persons who benefit from the discriminatory measure under scrutiny, it should not be understood as an elaboration of the restitutionary measures provision found in FC section ().69 The third prong of the test for unfairness is primarily concerned with creating the requisite space for other constitutionally mandated goods. Various rights—to religion, to reproductive capacity, to privacy, to expression, to association, to assembly, to education, to property, to language, to form political parties, to form families and to raise children—will and must commit us to discriminatory arrangements. To fail to recognize that a constitutional order based upon human dignity, equality, and freedom commits us to communitarian, egalitarian, and utilitarian ends that pull in different directions is to be soft-headed about hard choices. It is, moreover, to be obtuse about easy choices. If, for example, we wish to have educational institutions that further and deepen our various religious faiths, then we must permit those educational institutions to discriminate, at a

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bare minimum, in terms of admissions policies that require matriculants to accept a religious curriculum consistent with the belief set of the particular denomination that supports the school.70 For without such discrimination—which may offer no tangible benefits to historically disadvantaged persons—we will afford religious communities (or other tightly knit associations) no meaningful space within which to pursue their comprehensive vision of the good.71 A state that rejects such discrimination may possess many virtues, but one of them will not be freedom of even the most desiccated sort.72

Association The Constitutional Court has, in two discrete lines of cases, made dignity the primary justification for the protection of intimate association. In the first line of cases, the court has struck down a variety of laws that invidiously distinguished homosexual acts and relationships from heterosexual acts and relationships (Dignity ). The court has invalidated laws that criminalize sodomy,73 that differentiate between heterosexual married couples and gay, lesbian, and transgendered partners in terms of immigration rights,74 that deny benefits to the surviving same-sex life partner of a judge,75 that bar same-sex life partners from adopting children,76 that prevent samesex life partners from asserting parental rights in instances of artificial insemination,77 and that prevent same-sex life partners from securing public recognition of their life partnership as a marriage.78 In the second line of cases, the court has gone to great lengths to ensure that married couples could continue to cohabit within South Africa while a noncitizen partner seeks permanent residence,79 that foreign-national spouses seeking work in South Africa could remain in the country while their applications for work permits were processed,80 and that unwed fathers could secure access to their children.81 To the extent that these intimate associations take forms similar to those of traditional unions, the court has demonstrated a willingness to embrace them.82 The Dawood court hints at the historical basis for deploying dignity as a rule-generating right in the second line of family unit cases when it writes: “The Constitution asserts dignity to contradict [a] past in which human dignity for black South Africans was routinely and cruelly denied.”83 One of the most repugnant features of apartheid was the use of pass laws, denationalization, migrant labor, and work permits to wreak havoc on black South African families. In Daniels v. Campbell No and Others, the applicant was married to her deceased husband according to Muslim rites. And although the marriage was at all time monogamous, it had never been solemnized by a duly authorized marriage officer in terms of the Marriage Act  of .84 The Master of the High Court therefore did not recognize their marriage of just less than twenty years as a valid marriage in terms of South African law. In finding the section infirm, the majority held that linguistically the meaning of the word spouse can rather easily be interpreted to include parties to a Muslim marriage. In fact, the act would seem to run counter to the word’s plain meaning by excluding people

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married in accordance with Islamic rights. The act’s limited construction was a function of prejudice and discrimination.85 As in Dawood, Justice Sachs held that such a discriminatory interpretation was an affront to the dignity of Muslim community (Dignity  and Dignity ) and could no longer be sustained.86 In both lines of cases, the court sets its face squarely against those rules of law that might impair one of the most important sources of meaning in our lives: our intimate associations (Dignity ).87

Freedom and Security of the Person Dignity, as refracted through the prism of freedom and security of the person, has revolutionized three bodies of law: the common law of delict in the context of state liability for wrongful behavior; the state’s regulation of abortion; and punishment. D EVELOPMENT OF THE C OMMON L AW OF D ELICT IN THE C ONTEXT OF S TATE L IABILITY In both Carmichele v. Minister of Safety and Security88 and NK v. Minister of Safety and Security,89 the Constitutional Court found that the right to dignity and the right to freedom and security of the person imposed positive duties on the state to prevent, where possible, violations of physical integrity (Dignity ).90 The violations in these cases were not simply assaults—they were rapes. The seriousness of the crime, and the complicity of the state, led the Carmichele court to write: In addressing these obligations in relation to dignity and the freedom and security of the person, few things can be more important to women than freedom from the threat of sexual violence. . . . Sexual violence and the threat of sexual violence goes to the core of women’s subordination in society. It is the single greatest threat to the self-determination of South African women.91

The rights implicated, including dignity, did not give rise to a new constitutional action or a new constitutional remedy. The rights did require that a court hearing such a delictual matter must cast “the net of unlawfulness wider.”92 Although the Constitutional Court did not itself develop the common law, it directed the High Court and the Supreme Court of Appeal to do so. To ameliorate the defect in the extant law of delict, the Constitutional Court suggested that the courts craft a new test that would impose a duty of care on state actors in “circumstances where state authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life or physical security of an identified individual or individuals from the criminal acts of a third party” and where, in such circumstances, “they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk.”93 In NK, the state was more than merely complicit in the rape at issue. The state was deemed vicariously liable for a rape carried out by three police officers acting

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under the color of law. In rejecting the Supreme Court of Appeal’s conclusion that the principles of vicarious liability did not cover the behavior of policemen who had used, quite consciously, the trappings of their office to commit this crime, the Constitutional Court wrote: [T]he opportunity to commit the crime would not have arisen but for the trust the applicant placed in them because they were policemen, a trust which harmonizes with the constitutional mandate of the police and the need to ensure that mandate is successfully fulfilled. When the policemen—on duty and in uniform—raped the applicant, they were simultaneously failing to perform their duties to protect the applicant. In committing the crime, the policemen not only did not protect the applicant, they infringed her rights to dignity and security of the person. In so doing, their employer’s obligation (and theirs) to prevent crime was not met. There is an intimate connection between the delict committed by the policemen and the purposes of their employer. This close connection renders the respondent liable vicariously to the applicant for the wrongful conduct of the policemen.94

What ties both Carmichele and NK together, and what distinguishes them from other instances in which the state fails to discharge its responsibilities in terms of FC section , is the court’s concern with the dignity of women and the systemic violence to which they continue to be subjected. The court recognizes that so long as the law permits women to be treated as objects, and in particular, allows the state itself to indulge in this kind of abuse, women will never be able to enjoy equal respect in a realm of ends (Dignity , Dignity , and Dignity ). Moreover, the state’s complicity with respect to this culture of rape demeans us all and is something for which we must accept collective responsibility (in the form of damages in a delictual action) (Dignity ). The Supreme Court of Appeal deployed both FC section  and FC section  to develop the law of delict in the context of an omission by state actors to divest of firearms a person known to be a danger to the community. In Minister of Safety and Security v. Van Duivenboden, the court held that the state had had a duty, under section  of the Arms and Ammunition Act, to deprive the person in question of firearms after he had entered into a gun battle with police in .95 The failure of the police to act on the obvious danger posed by this person led to, or was certainly a sufficiently proximate cause of, his shooting to death, a year later, his wife and his daughter. The negligence of the police—their failure to take the necessary action to avert a reasonably foreseeable set of events and their disregard for the dignity, life, and bodily integrity of the people they are sworn to protect—justified the Supreme Court of Appeal’s imposition of vicarious liability on the responsible Minister.96

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R EPRODUCTIVE R IGHTS The Final Constitution’s concern for the dignity of women takes a very specific form in FC section (a). FC section (a), unlike its predecessor in the Interim Constitution, embraces a woman’s right “to make decisions concerning reproduction.” Although the Constitutional Court has yet to expressly vindicate the right to an abortion, two High Courts have heard, and rebuffed, challenges to the statutory expression of this right in the Choice on Termination of Pregnancy Act. In Christian Lawyers II, Justice Mojapelo held that FC section ()(a) and (b)97 guarantees the right of every woman to determine the fate of her pregnancy.98 He noted that while the state does have a legitimate interest in the protection of prenatal life, such regulation may not amount to a denial of a woman’s right to freedom and security of the person. The decision in Christian Lawyers II reflects something of an advance on Christian Lawyers I with respect to its treatment—or at the very least recognition— of the varying (and conflicting) kinds of dignity interests at stake when reproductive rights are pressed into service in the name of abortion. In Christian Lawyers I, Justice McCreath held that whatever the status of the fetus may have been under the common law, under the Final Constitution the fetus lacks legal personality.99 As a result, Justice McCreath could uphold the defendant’s exception that the plaintiff ’s particulars of claim did not disclose a cause of action in that “a foetus is not a bearer of rights in terms of ” FC section  and in that FC section  does not, therefore, “preclude the termination of pregnancy in the circumstances and the manner contemplated by the [Termination of Pregnancy Act] and protected under [FC] sections , , , , , () and ()(a).”100 While Christian Lawyers I recognizes expressly the dignity rights of women (Dignity  and Dignity ), Justice McCreath ducks the more difficult question of whether the state possesses an interest in the dignity of life generally (Dignity ), and thus the dignity of prenatal life, in particular. It remains possible, as both Christian Lawyers II and the Termination of Pregnancy Act reflect, to take a state interest in dignity seriously (Dignity ) without concomitantly undermining a woman’s right to dignity (Dignity  and Dignity ), and her ability to secure an abortion. P UNISHMENT Dignity and that subsection of freedom and security of the person that prohibits “cruel, inhuman and degrading treatment or punishment” have worked a minor, and sometimes unpopular, revolution in the criminal law. The revolution began with S v. Williams.101 In Williams, the Constitutional Court held unconstitutional those provisions of the Criminal Procedure Act that sanctioned the whipping of juveniles. In finding that whipping assailed the dignity of all individuals who participate in such a process and thus constituted cruel, inhuman, or degrading punishment (Dignity  and Dignity ), the Williams court wrote:

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The Constitution clearly places a very high premium on human dignity and the protection against punishments that are cruel, inhuman or degrading; very stringent requirements would have to be met by the State before these rights can be limited. . . . [T]here is no place for brutal and dehumanizing treatment and punishment. The Constitution has allocated to the State and its organs a role as the protectors and guarantors of those rights to ensure that they are available to all. In the process, it sets the State up as a model for society as it endeavors to move away from a violent past. It is therefore reasonable to expect that the State must be foremost in upholding those values which are the guiding light of civilized societies. Respect for human dignity is one such value; acknowledging it includes an acceptance by society that . . . “even the vilest criminal remains a human being possessed of common human dignity.”102

Dignity, in Williams, constitutes a rule-informing right that determines the application of a rule-generating right—the right not to be treated or punished in a cruel, inhuman, or degrading way. That a juvenile whipping constitutes a violation of the right to dignity generates the attendant finding of a violation of the right not to be subjected to degrading punishment. Dignity is deployed once again as a rule-informing right in the context of punishment in S v. Makwanyane.103 In Makwanyane, the Constitutional Court held the death penalty to be an unjustifiable abrogation of a panoply of constitutional protections—including the rights to life, dignity, equality, fair trial, and humane punishment. While the eleven justices differed as to the exact basis for this finding, dignity as a second order rule leads then President Chaskalson to write: The rights to life and dignity are the most important of all human rights, and the source of all other personal rights in Chapter Three [of the Interim Constitution]. By committing ourselves to a society founded on the recognition of human rights we are required to value these two rights above all others. And this must be demonstrated by the State in everything that it does, including the way it punishes criminals. This is not achieved by objectifying murderers and putting them to death to serve as an example to others in the expectation that they might possibly be deterred thereby.104

The centrality of dignity for the South African constitutional project not only enables the right to be free from cruel, inhuman, and degrading punishment to trump the various justifications for the death penalty offered by the state,105 it also underwrites a more subtle distinction between punishments. In rejecting the attorney general’s argument that no meaningful distinction exists between the death sentence and life imprisonment, because “a prisoner does not lose all his or her rights on entering prison,” President Chaskalson does not rely on a rather arid formalism that

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equates the termination of life with a denial of dignity.106 He invokes, instead, the particular meaning of the death penalty in South Africa. It was, for many years, a sword of Damocles hanging over the head of any black South African who might be inclined to challenge the authority and the legitimacy of the apartheid state. Kant and Hegel, in their rather Manichean universe, could view equal respect as the entitlement of every citizen who recognized that identical status in others, and simultaneously demand that those who failed to accord others such respect, i.e., by committing murder, should forfeit (in its entirety) the entitlement to that respect.107 The Makwanyane court refuses to endorse such a simple calculus: that kind of oversimplification seems more of a piece with the black-and-white ideology of apartheid than with the post-apartheid struggle to accord each individual equal concern and equal respect (Dignity ). The power of the court’s analysis lies not in refusing to impose a capital sentence. The judgment’s force flows from the court’s refusal, at least at the level of rhetoric, to use the law to treat individuals as mere means to achieve some (perceived) greater good (Dignity ).108 This leitmotif—of refusing to turn away from suffering and of not allowing individuals to simply disappear—recurs in a broad array of punishment cases. In Coetzee v. Government of the Republic of South Africa, the Constitutional Court held that a provision of the Magistrates Court Act that permitted incarceration without trial of a civil debtor constituted an unjustifiable infringement of the right to freedom and security of the person.109 The Coetzee court did away with these civil imprisonment provisions largely because incarceration for one’s “status”—and not a crime—is out of step with contemporary mores, and in particular, the constitutional commitment to human dignity.110 To treat a human being as a marker for a debt— and to keep them alive as a mere physical reminder to others to beware their financially frivolous ways (Dignity )—is entirely at odds with a vision of South Africa as a realm of ends (Dignity ). In Dodo, the court struggles mightily with the law’s inevitable use of individuals to send messages back to the community about the price of any given crime.111 Justice Ackermann writes: To attempt to justify any period of penal incarceration, let alone imprisonment for life as in the present case, without inquiring into the proportionality between the offence and the period of imprisonment, is to ignore, if not to deny, that which lies at the very heart of human dignity. Human beings are not commodities to which a price can be attached; they are creatures with inherent and infinite worth; they ought to be treated as ends in themselves, never merely as means to an end. Where the length of a sentence, which has been imposed because of its general deterrent effect on others, bears no relation to the gravity of the offence . . . the offender is being used essentially as a means to another end and the offender’s dignity assailed. So too where the reformative effect of the punishment is predominant and the offender sentenced to lengthy imprisonment, principally because he cannot be reformed in a shorter

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period, but the length of imprisonment bears no relationship to what the committed offence merits. Even in the absence of such features, mere disproportionality between the offence and the period of imprisonment would also tend to treat the offender as a means to an end, thereby denying the offender’s humanity.112

One might be surprised, after such a strong pronouncement, that the Dodo court would then go on to uphold any mandatory life sentence for any category of murder. But the Dodo court is not committed to the principle that any hint of a utilitarian calculus in the law is an affront to dignity.113 Rather, as Williams, Makwanyane, and Coetzee make clear, dignity simply demands that we do not allow the consequentialist character of the law to exhaust law’s moral content.114 Dignity forces us to attend constantly to law’s ultimate goal: not to control the ends of individuals, but to create a realm of ends (Dignity ).115 The Constitutional Court’s decision in Christian Education South Africa v. Minister of Education confirms that this commitment to law qua realm of ends is not empty rhetoric. Nothing would have been simpler than acceding to the applicants’ contention that the particular tenets of their faith—and the protection afforded by FC section —permitted the use of corporal punishment in private religious schools. Instead, the court recognizes that the state’s interest in banning corporal punishment in schools is justified by reference to the inherent dignity of all children—regardless of their parents’ religion—and that this commitment precludes the use of violence to maintain order. Or, in other words, the court forbade the use of (violence against) children as a means to enforce both discipline within the school and discipline within the broader religious community (Dignity ).116 P UNISHMENT AND D IGNITY R IGHTS A BROAD In Mohamed v. President of the Republic of South Africa, the court found that an applicant’s rights to dignity, life, and freedom and security of the person could not be sacrificed in the service of some greater political good—say, the war on terror— once a person had entered the South African legal system.117 Once within South Africa, a person is entitled to the full protection of the Bill of Rights and may not simply be extradited to a jurisdiction in which those rights enshrined in chapter , including dignity (Dignity ), would be infringed. In Kaunda v. President of the Republic of South Africa, the court held that no obligation could be imposed on the South African government to ensure that the rights that the applicants—sixty-nine mercenaries charged with capital offences—have in terms of the South African Bill of Rights are at all times respected and protected in Zimbabwe or Equatorial Guinea.118 However, South African nationals facing adverse legal action—and violations of their dignity—in a foreign state are entitled to request that the South African government provide protection against acts that violate accepted norms of international law. The government is obliged to consider such requests and

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deal with them appropriately. Mohamed looks to be one step forward—Kaunda two steps back. S ECURITY OF THE P ERSON AND P UBLIC V IOLENCE AGAINST W OMEN Van Der Merwe v. Road Accident Fund (Women’s Legal Centre Trust as Amicus Curiae) connects the protection of the physical security of women and the right to dignity.119 Vanessa Van der Merwe’s husband intentionally ran her over with a car; then reversed and ran over her again. Van der Merwe claimed both patrimonial damages—primarily medical expenses—and nonpatrimonial damages for pain and suffering, from the Road Accident Fund (RAF). The RAF admitted liability for Van der Merwe’s nonpatrimonial claim but, relying on sections (a) and (b) of the Matrimonial Property Act  of , denied liability for the patrimonial damages. Section  prohibited spouses married in Community of Property, which the Van der Merwes were, from claiming patrimonial damages from each other. In reply, Van der Merwe argued that the provision was unconstitutional because it unfairly discriminated against her on the basis of marital status and infringed her right to dignity. Deputy Chief Justice Moseneke held that section  violated FC section () of the Constitution: section () prohibits laws that are not rationally related to a legitimate government purpose. No reason existed to differentiate between married couples or between couples married in and out of Community of Property. However, the deputy chief justice also drove home some important statements about domestic abuse. “No one can credibly suggest,” Moseneke stated, “that the domestic road rage Mrs. Van der Merwe had to endure is not an affront to her self-worth and dignity.”120

Religion, Language, and Culture R ELIGION Despite the obvious centrality of religion for collective identity—and thus for individual dignity (Dignity  and Dignity )—religion and dignity as mutually reinforcing rights have not fared particularly well in the few cases to reach the Constitutional Court. In Prince v. President, Cape Law Society, a sharply divided Constitutional Court held that, although a Rastafarian’s right to freedom of religion in terms of FC section () of the Final Constitution permitted him to engage in Rastafarian rituals, the state was justified in proscribing the ritual use of cannabis.121 In reaching its conclusions, the majority relied heavily on the state’s evidence that even limited dagga smoking could lead to broader drug use in the country and greater narcotics trafficking through the country. This finding turned, at least in part, on an under-interrogated assumption that no meaningful exemption to existing laws could be carved out for ritual dagga use.122 When viewed through the lens of dignity analysis—which valorizes such constitutive attachments as marriage and the family (Dignity  and Dignity )—the majority’s cursory appraisal of the importance of this religious practice for an adherent is

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rather perplexing. The Prince court’s discourse permits a vague sense of danger to the commonwealth to overwhelm the dignity interests of a marginal religious minority (Dignity , Dignity , and Dignity ).123 The Constitutional Court’s decision in Christian Education South Africa v. Minister of Education, on the other hand, contains valuable language about how our dignity jurisprudence tolerates legal asymmetries.124 The essence of dignity and equality under the South African Constitution, so says the judgment, is that it does not require that we treat everyone the same way, but that we treat everyone with equal concern and equal respect (Dignity ).125 Unfortunately, the Christian Education court does not really extend the benefit of this understanding of dignity to religious belief and practice. The judgment assumes, without argument, that section  of the South African Schools Act limits FC sections  and . The court then explains why the state is justified in barring corporal punishment in all schools and why it need not consider an exemption for such punishment when religious doctrine so dictates. The problem with the judgment is not its result. It is perfectly reasonable to override religious dictates and to bar corporal punishment that impairs the dignity of children (Dignity  and Dignity ). The problem is with the distinction between the practice of religion in schools and the practice of religion elsewhere, i.e., the home. If children lack the capacity to decide for themselves whether religious practices will prove deleterious to their health—and it therefore becomes incumbent upon the state to intervene on their behalf to protect their dignity—then it would seem reasonable to conclude that barring religion-sanctioned corporal punishment at home should be no different than barring religion-sanctioned corporal punishment at school. But that is not what the court concludes. Rather, it contends that the parents “were not being obliged to make an absolute and strenuous choice between obeying a law of the land or following their conscience. They could do both simultaneously.”126 That is, parents could follow their conscience at home—and beat their children—but still obey the law of the land by having their children attend school free from corporal punishment. The court cannot have it both ways. Either a child’s right to dignity (Dignity ) is of such paramount importance that it precludes corporal punishment at home and at school, or the dignity interests of a religious community in practicing its faith (Dignity  and Dignity ) justify corporal punishment in school and at home. To say, as the court does, that the crux of the matter is the use of a teacher as the instrument of religious discipline is pure sophistry. If the teacher were the parent or the school were at home, then the court’s basis for enabling the parents’ “to do both simultaneously” would evaporate. The court’s refusal to offer any justification for this distinction does its dignity analysis a disservice.127 That said, the court might have just turned a corner. If Christian Education and Prince represent low water marks with respect to the court’s treatment of conflicts between the dignity interests of religious groups (Dignity  and Dignity ) and the dignity interests of individuals (Dignity , Dignity ,

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and Dignity ) or the polity as a whole (Dignity ), then the court’s recent ruling in Fourie and Pillay might be judged a marked improvement. In finding that the dignity interests (Dignity ) of same-sex life partners were unjustifiably limited by rules of common law and statutory provisions that prevented them from entering civilly sanctioned marriages, the Fourie court went out of its way to note that religious prohibitions on gay and lesbian marriage did not constitute an unjustifiable infringement and that religious officials could legitimately refuse to consecrate a marriage between members of a same-sex life partnership.128 In other words, the court recognized expressly constitutional goods—and, in particular, dignity interests—that had nothing to do with, and which might even be viewed as inimical to, egalitarian concerns. C ULTURE AND L ANGUAGE Conflicts over cultural practices often pit the dignity interests of the individual (Dignity ) against the dignity interests of communities and associations (Dignity  and Dignity ).129 Unlike the robust protection afforded religious practices under FC section , however, the Final Constitution makes it clear that cultural practices secure constitutional protection only where they do not interfere with the exercise of other fundamental rights.130 By granting communities the right to create schools based upon a common culture, language or religion, the Constitutional Court in Gauteng School Education Bill expressly recognized the importance of such attachments for individual dignity and group identity.131 The Supreme Court of Appeal in Mikro gave this finding “teeth” by holding that FC section ()—the right to receive education in an official language of choice at a public educational institution, where practicable— did not encompass the right to receive such education at each and every public school.132 The Mikro court further held that the state did not, as a general matter, have the power to substitute its judgment regarding appropriate language policy for that of the School Governing Body (SGB). Dignity  and Dignity  interests will not, therefore, always yield to Dignity  interests. The High Court in Laerskool Middelburg correctly added the corollary that the right to single-medium public schools cannot automatically trump the right of all public school students to education in the official language of their choice where the provision of such instruction is “reasonably practicable.”133 That said, Dignity  and Dignity  interests did yield to Dignity  interests in Pillay. In Pillay, a pupil at Durban Girls High School, Sunali Pillay pierced her nose and inserted a gold nose stud.134 The school told her to remove the stud because it contravened their dress code. The code banned virtually all jewelry. Sunali, supported by her mother, refused to remove the stud, on the grounds that it was part of her South Tamil culture and Hindu religion. The school considered and rejected the cultural and religious claim, and ordered Sunali to remove the stud or face suspension or expulsion from the school. Sunali’s mother took the school to the Equality Court. She argued that the school’s actions unfairly discriminated against her daughter.

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The Equality Court agreed. On appeal, the majority upheld Sunali’s right to wear the nose stud. It held that a seemingly neutral rule, such as the dress code, could still unfairly discriminate against Sunali on the grounds of culture and religion. Chief Justice Langa held that the objective evidence of the school’s own expert indicated that wearing the stud was a voluntary element of Sunali’s religion and culture. The chief justice then found that voluntary practices were entitled to as much constitutional solicitude as mandatory practices.135 Chief Justice Langa emphasized the importance of reasonable accommodation (Dignity , , ). That is, the Constitution requires the state to incur reasonable costs to accommodate diverse practices. What was “reasonable” would depend on the extent of the infringement and the cost that it would impose on the rights’ bearer. In the instant matter, the prohibition on the wearing of the stud had a serious impact on Sunali (Dignity —self-understanding)—as well as her religious and cultural practices—and little if any impact on the School (Dignity ). Justice O’Regan dissented. She found that the only problem with the school’s actions lay with its grant of exemptions to some students but not to Sunali. She saw no problem with the code itself. She also placed greater emphasis on the objective, associative nature of culture and the link between human dignity and associational rights.

Privacy The privacy jurisprudence of the Constitutional Court draws on the first and third dimensions of dignity identified at the outset. The notion that dignity entitles the individual to be treated as an end-in-herself (Dignity ) and to pursue some semblance of self-actualization (Dignity ) has driven the court to conclude that the individual is, consequently, entitled to a space within which to define herself without interference by the state or other members of society.136 In finding that section () of the Indecent or Obscene Photographic Matter Act  of  violated the right to privacy by prohibiting the possession of “indecent” or “obscene” materials in one’s own home, Justice Didcott, for a majority in Case & Curtis, wrote: “What erotic material I may choose to keep within the privacy of my home, and only for my personal use there, is nobody’s business but mine. It is certainly not the business of society or the state. Any ban imposed on my possession of such material for that solitary purpose invades the personal privacy which section  of the Interim Constitution guarantees that I shall enjoy.”137 But this understanding of privacy, dignity as self-actualization (Dignity ), secured neither the full endorsement nor the long-term support of the court. In her concurrence in Case & Curtis, Justice Mokgoro wrote: I would, however, respectfully part company from Justice Didcott to the extent that any part of his opinion might be read to suggest that it is not in any circumstances the business of the state to regulate the kinds of expressive

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material an individual may consume in the privacy of her or his own home. It may be so that, as in England, a “South African’s home is his (or her) castle.” But I would hesitate to endorse the view that its walls are impregnable to the reach of governmental regulation affecting expressive materials.138

The commitment to privacy grounded in individual autonomy would have to yield, as several other justices in Case & Curtis likewise noted, when the greater good so required.139 Thus, while neither Justice Mokgoro nor Justice Langa were willing, in Case & Curtis, to contest the right of an individual to receive and to read some kinds of pornography in the comfort of their own home; they strongly intimated that other kinds of dignity concerns might warrant the limitation of that right. In De Reuck v. Director of Public Prosecutions, Witwatersrand Local Division, Justice Langa identified at least one class of pornographic materials that no one in South Africa would be permitted to possess: child pornography.140 Justice Langa acknowledged that the right to privacy was infringed by section () of the Films and Publications Act  of .141 But that limitation was more than justified by the objectives of the act, and the means required to realize them. What is worth remarking upon in this essay are the putative grounds for the limitation. Justice Langa makes a point of trawling through the available evidence that child pornography is “harmful to children who are used in its production”; “potentially harmful because of the attitude to child sex that it fosters”; and harmful because of “the use to which it can be put in grooming children to engage in sexual conduct.”142 Having been convinced by this body of evidence, Justice Langa makes it part of the justification for the limitation of the right to privacy. However, a close reading of De Reuck shows that these grounds are not a necessary condition for the court’s ultimate conclusion. The only real justification that matters is the court’s belief that the mere fact of child pornography impairs the dignity of all children (Dignity ) and any society (Dignity ) that condones it: The degradation of children through child pornography is a serious harm which impairs their dignity and contributes to a culture which devalues their worth. Society has recognized that childhood is a special stage in life which is to be both treasured and guarded. The state must ensure that the lives of children are not disrupted by adults who objectify and sexualize them through the production and possession of child pornography. There is obvious physical harm suffered by the victims of sexual abuse and by those children forced to yield to the demands of the pedophile and pornographer, but there is also harm to the dignity and perception of all children when a society allows sexualized images of children to be available. The chief purpose of the statutory prohibitions against child pornography is to protect the dignity, humanity and integrity of children.143

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Given that less restrictive means could have been employed—and, indeed, are employed in England and Germany—to realize the three “empirical” justifications for the prohibition identified above, the only ground that justifies the continued validity of the provision of the Films and Publications Act at issue is dignity writ large (Dignity ). One might be inclined to characterize the conflict as one between dignity qua self-actualization (Dignity ) and dignity qua individual-as-end-inherself (Dignity ). In De Reuck, however, dignity qua self-actualization (Dignity ) actually succumbs to dignity qua good of the community (Dignity ). For the real offence, according to the court, is not to the class of actual individual children harmed. Were that the case, we could have expected the court to require the state to create means narrowly tailored to protect that vulnerable class. Instead, the offence is to the dignity of the entire community (Dignity ). For to say that all children have their dignity impaired by the mere fact of child pornography is to say that we have all had our dignity impaired—as children, as adults, and thus, as a society as a whole—by the mere fact of (real, imitated, or animated) child pornography. There is, quite clearly, a puritanical, and uninterrogated set of assumptions about the meaning of both childhood and sexuality at work here.144 What is more significant, for my immediate purposes, is the recognition that dignity is used not to protect the individual ends of the realm, but to protect the realm itself.

Freedom of Trade, Occupation, and Profession As seen in such cases as NCGLE I, Hugo, and Prinsloo, the South African courts often emphasize the extent to which various dimensions of dignity—say self-actualization (Dignity ) and self-governance (Dignity )—are necessary conditions for individual freedom. Given this link between dignity and freedom, it is hardly surprising that, as Justice Cameron explains in Brisley v. Drotsky, contractual autonomy should now be informed by our constitutional commitment to dignity.145 Moreover, Justice Cameron argues, contractual freedom, shorn of its excesses, “enhances rather than diminishes our self-respect and dignity.”146 The kind of enhancement contemplated by Justice Cameron is on full display in Coetzee v. Comitis. In Comitis, the Cape High Court assessed the constitutionality of National Soccer League (NSL) employment conditions which provided that any person wishing to play professional football: . had to register with the NSL; . had to obtain a clearance certificate from his former club before he could be registered by the NSL as a player of a new club; . had to ensure that after conclusion of a contract with a new club, his former club was duly compensated; and . remained a registered player of the club with which he was last employed—should the clubs not be able to agree on an appropriate

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transfer fee—for a period of thirty months (only after this period would the former club no longer be entitled to compensation). Prior to IC section , challenges to covenants in restraint of trade had foundered on the shoals of dicta set out in the preconstitutional Magna Alloys and Research (SA) (Pty) Ltd. v. Ellis.147 After noting that the jurisprudence generated under IC section  had been “uniformly dismissive of a suggestion that the Interim Constitution necessitated a revision of the restraint of trade law,”148 Justice Traverso states that “[c]onsiderations of public policy cannot be constant [given that] [o]ur society is an ever-changing one” and that “[w]e have moved from a very dark past into a democracy where the Constitution is the supreme law, and public policy should be considered against the background of the Constitution and the Bill of Rights.”149 Justice Traverso then holds that because the aforementioned employment conditions “strip the player of his human dignity” by treating him as no more than “goods and chattel . . . at the mercy of the employer,” the NSL Rules cannot be squared with the dictates of FC section () or FC section .150 The notion that the player is an end-in-himself— and no mere object—requires that the principle of the sanctity of contract yield to more basic considerations of human dignity (Dignity ).151 But other courts—including the Constitutional Court and the Supreme Court of Appeal—seem disinclined to follow Justice Traverso’s decision to deploy dignity in a manner that diminishes the deleterious consequences of contracts of adhesion, or of criminal sanctions visited upon those who have no choice but to engage in morally reprehensible behavior if they are to survive. In Afrox Healthcare Bpk v. Strydom, an agreement was concluded between the appellant, the owner of a private hospital, and the respondent, a party seeking medical treatment.152 After an operation at the hospital, negligent conduct by a nurse led to complications that caused further injury to the respondent. The respondent argued that the negligent conduct of the nurse constituted a breach of contract by the appellant and instituted an action holding the appellant responsible for the damages suffered. The Supreme Court of Appeal rejected the respondent’s various claims—including a constitutional challenge that relied upon an argument that values such as human dignity required the development of the common law on behalf of those persons who either do not possess the requisite capacity to understand fully the document they sign or occupy substantially weaker bargaining positions. Instead, the SCA concluded that the exemption clause at issue legitimately immunized the appellant from claims for negligence and that the courts are duty bound to enforce such contractual terms unless the Final Constitution or the boni mores of the community clearly dictate otherwise. Afrox rests on the classically liberal fiction that the common law constitutes a neutral contractual backdrop for relations between fully autonomous individuals. Unlike the Comitis court, the Afrox court shows little inter-

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est in assessing whether the actual contractual conditions that obtain with respect to most hospital admissions forms “strip the [patient] of his human dignity” and place him “at the mercy” of the hospital and its staff. The question as to whether these forms—and the common law that backs them up—can be squared with the dictates of FC sections (), , or () never arose. The Constitutional Court’s decision in Jordan must, in light of Comitis and Brisley, be viewed as doubly disappointing: It neither upholds contractual freedom in the service of dignity qua autonomy (Dignity ) nor comes to the aid of those individuals treated as chattel rather than as ends-in-themselves (Dignity ). While one might be excused for thinking, after the decisions in NCGLE I and NCGLE II, that the Final Constitution’s express commitment to dignity and equality would protect the sexual practices of a historically disadvantaged and marginal social group,153 the Jordan court rejected each and every constitutional challenge to the statutory proscriptions of prostitution.154 With respect to the argument from dignity, the court wrote: Our Constitution values human dignity which inheres in various aspects of what it means to be a human being. One of these aspects is the fundamental dignity of the human body, which is not simply organic. Neither is it something to be commodified. Our Constitution requires that it be respected. We do not believe that s[ection] ()(aA) can be said to be the cause of any limitation on the dignity of the prostitute. To the extent that the dignity of prostitutes is diminished, the diminution arises from the character of prostitution itself. The very nature of prostitution is the commodification of one’s body. . . . The very character of the work they undertake devalues the respect that the Constitution regards as inherent in the human body.155

The court’s assessment that the criminalization of prostitution could not be said to impair the right to dignity of the prostitute because “the diminution arose from the character of prostitution itself ”—the commodification of one’s body—is difficult to understand in a liberal, market-based society.156As I have written elsewhere: So much of what we do involves the commodification of our bodies. A day laborer is entitled to some level of constitutional protection of his dignity despite the fact that he has chosen to sell his body for the wages needed to pay for food and shelter. A Constitutional Court judge, while commodifying her body in the natural course of listening to arguments and writing opinions, is likewise entitled to some level of constitutional solicitude. It cannot be that the commodification of one’s body per se bothers the Court. All of us gainfully employed do just that. It must be a particular form of commodification—or the commodification of a particular body part—that provokes the Court. But when the offending commodification just happens to be a form of

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behavior that attracts the censure of many South Africans, then it is hard not to conclude that the Court has confused commodification with moralization.157

It is, of course, no reply to argue that the South African constitutional framework not only permits but requires the legislature to enact laws that foster the dignity of all South Africans (Dignity ).158 The question that goes begging is whether the conception of dignity fostered in Jordan can be squared with prior constructions of the right, the value and the ideal of dignity. Given the objectification and the commodification that attend all forms of sexual congress, the court can articulate no compelling dignity standard that might enable us to distinguish those historically suspect sexual acts, such as homosexual sodomy, that have now secured constitutional protection from those sexual acts, such as prostitution, that have not. Had the court grounded its dignity analysis either in a Brisley-like defense of dignity as contractual freedom (Dignity ) or a Comitis-like defense of dignity as emancipation (Dignity ), the result in Jordan might well have been different.159 Of course, as Drucilla Cornell loves to remind me, if we did not live in a materialist, capitalist, and liberal society, but under a truly socialist regime, then such issues as the commodification of body parts would lose all traction. An ideal socialist regime would eliminate the moralizing distinction between the judge’s body and the prostitute’s body by eliminating most forms of commodification. True. But we are not quite there yet.

Slavery, Servitude, and Forced Labor As I noted above, 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 labor.160 The Dawood dictum intimates that it is the infringement of FC section  (slavery) that establishes an infringement of FC section  (dignity)—and not the other way around. As we have already noted, this relationship reflects the first rule of South African dignity jurisprudence: Where a court can identify the infringement of a more specific right, FC section  will not add to the enquiry.161 But this rule does not reflect accurately the reciprocal effect between dignity and many, if not all, of the remaining rights in chapter . Given that dignity demands that each individual be permitted to develop his or her unique talents optimally (Dignity ), then dignity qua freedom from slavery underwrites the proscription of those practices where the exercise of “entitlements of ownership” in one person by another “impair substantially” the ability of a person to develop optimally her unique talents. Moreover, it requires that those who make law exercise their imagination and retire those edicts that promote such practices. S v. Jordan & Others, as discussed in the previous section, evinces such a failure of legal imagination in the context of freedom of trade, occupation, and profession.162

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It does so once again in the context of slavery and, in particular, sexual slavery. The majority’s very strong commitment to a form of metaphysical autonomy that makes all individuals morally and legally culpable for actions that issue ineluctably from their circumstances, fails dramatically the increasingly large number of prostitutes who are victims of sexual trafficking. Sexual trafficking is about the sale and exploitation of women and female children. Jordan has little if nothing to say about state complicity in a legal regime that condones institutionalized rape. Perhaps this characterization of Jordan’s Weltanschauung (world view) seems unfair. But the majority judgment speaks for itself: “It was accepted that they have a choice but it was contended that the choice is limited or ‘constrained.’ Once it is accepted that [the criminalization of prostitution] is gender-neutral and that by engaging in commercial sex work prostitutes knowingly attract the stigma associated with prostitution, it can hardly be contended that female prostitutes are discriminated against.”163 The Constitutional Court’s recent judgment in Khosa v. Minister of Social Development; Mahlaule v. Minister of Social Development hints at a way out of this autonomy bind.164 In Khosa, the Constitutional Court found unconstitutional, as a violation of both FC section  and FC section (), the exclusion of permanent residents from the class of persons entitled to a variety of social security grants. In Khosa, Justice Mokgoro writes: The exclusion of permanent residents in need of social-security programs forces them into relationships of dependency upon families, friends and the community in which they live, none of whom may have agreed to sponsor the immigration of such persons to South Africa. . . . Apart from the undue burden that this places on those who take on this responsibility, it is likely to have a serious impact on the dignity of the permanent residents concerned who are cast in the role of supplicants.165

Justice Mokgoro could well have added that permanent residents are, as supplicants, not merely dependent on family members, but quite literally at their mercy. Many sex slaves, and therefore a large number of prostitutes, would consider themselves fortunate to be supplicants. They are not just excluded from the protection of the law. Many sex slaves do not speak the language, find themselves in wholly unfamiliar surroundings, and lack the resources to engage effectively corrupt immigration officials or to escape criminal syndicates. Many are enslaved by their own families. The point is not that sex slaves are excluded from some particular benefit to which another class of persons is entitled. Khosa stands for the broader proposition that FC section () places the state under an obligation to protect and to fulfill the rights of all persons in South Africa. As the Khosa court rightly recognizes, legal regimes that offer incentives to individuals to become members of the political community but then punish persons who cannot act, ultimately, on such incentives—by withholding benefits or by imposing incarceration—are perverse. These disincentives deny the affected person

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that minimum level of dignity that FC section () obliges the state to provide (Dignity ). The Khosa court indicates that where the autonomy of our most vulnerable compatriots is largely extinguished (Dignity , ), the state bears a much greater burden with respect to demonstrating that it has discharged its duty to provide them with the entitlements necessary to vouchsafe their dignity (Dignity ). The current inability of most sex slaves or prostitutes to manumit themselves is a problem that can be solved by the state with only the most limited amount of imagination: decriminalization or regulation.166

Expression Freedom of expression, the first amongst equals in American constitutional law, can make no similar claim to status with regard to the South African Bill of Rights. Indeed, in head-to-head competition with dignity interests, in all their various manifestations, expressive interests invariably come up short. As Justice Kriegler notes in his analysis of the offense of scandalizing the court in S v. Mamabolo: The balance which our common law strikes between protection of an individual reputation and the right to freedom of expression differs fundamentally from the balance struck in the United States. The difference is even more marked under the two respective constitutional regimes. The United States constitution stands as a monument to the vision and the libertarian aspirations of the Founding Fathers; and the First Amendment in particular to the values endorsed by all who cherish freedom. But they paint eighteenthcentury revolutionary insights in broad, bold strokes. The language is simple, terse and direct, the injunctions unqualified and the style peremptory. Our Constitution is a wholly different kind of instrument. For present purposes it is sufficient to note that it is infinitely more explicit, more detailed, more balanced, more carefully phrased and counterpoised.167

The balance, the careful phrasing, the counterpoised concepts refer to what Justice Kriegler calls the “three conjoined, reciprocal and covalent values . . . foundational to the Republic: human dignity, equality and freedom.”168 One consequence of this conjoinment, reciprocity, and covalence is that “the right to freedom of expression cannot be said automatically to trump the right to human dignity.”169 Another more immediate consequence is that the crime of scandalizing the court survives the freedom of expression challenge in S v. Mamabolo. It survives because the administration of justice requires that the “dignity” of the judiciary as a whole be protected from comments designed to bring the system into disrepute (Dignity ).170 P ORNOGRAPHY AND C HILD P ORNOGRAPHY We have already noted, in the section on privacy, the Constitutional Court has, in emphasizing the different dimensions of dignity, arrived at different conclusions as

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to the level of constitutional solicitude that pornographic publications and their readers will be afforded. In Case & Curtis, a majority of the court declined the opportunity to decide whether the publication or the receipt of pornographic material was protected under IC section . It preferred instead to ground its finding, that the Indecent or Obscene Photographic Matter Act’s criminal sanctions with respect to possession of pornography were constitutionally infirm, in the right to privacy.171 In De Reuck v. Director of Public Prosecutions, Witwatersrand Local Division, the court found that pornography, as a form of expression, is entitled to the protection afforded by FC section .172 It then proceeded to hold, however, that the state’s interest in the dignity of children generally justified the particular limitations that the Films and Publications Act imposed on both the producers and the possessors of pornography that features children. I suggested that, whereas the majority in Case & Curtis might be inclined to characterize the conflict as one in which dignity qua selfactualization (Dignity ) trumps dignity qua good of the community (Dignity ), in De Reuck, dignity qua self-actualization (Dignity ) is justifiably limited—at least in the court’s view—by dignity qua good of the community (Dignity ). H ATE S PEECH Dignity (Dignity ) justifies our jurisprudence’s most significant incursion into freedom of expression: hate speech is unprotected. The incursion is built-in to FC section  itself. FC section () reads, in relevant part, that the right to freedom of expression “contained in subsection () does not extend to . . . (c) advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm.” In Islamic Unity Convention v. Independent Broadcasting Authority & Others, Justice Langa explains the purpose of the definitional limits of FC section () on FC s () as follows: “Section () therefore defines the boundaries beyond which the right to freedom of expression does not extend . . . Implicit in its provisions is an acknowledgment that certain expression does not deserve constitutional protection because, among other things, it has the potential to impinge adversely on the dignity of others and cause harm.”173 It does not follow, of course, that any proscription placed on hate speech is consistent with the dictates of FC section ()(c) and thus automatically justified by reference to an individual interest (Dignity ), a group interest (Dignity ), or a state interest in dignity (Dignity ). Indeed, at issue in Islamic Unity Convention was a section of the Code of Conduct for Broadcasting Services that prohibited any broadcast “likely to prejudice relations between sections of the population.” Given that any number of speech acts could be deemed likely to “prejudice relations between sections of the population” without either constituting “advocacy of hatred based on race, ethnicity, gender or religion” or constituting “incitement to cause harm” based upon such advocacy, the code clearly swept into its overly broad ambit speech acts that were protected in terms of FC section . The Islamic Unity Convention court concluded that the dignity interests at stake did not justify the code’s limits on expression. After articulating

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the grounds for its finding of invalidity, the court, as a remedy, notionally severed the offending text and read the more limited incursion of the hate speech clause in FC section () into the code. Despite the finding in Islamic Unity Convention, FC section ()(c) retains its teeth. In Freedom Front v. South African Human Rights Commission (SAHRC), the South African Human Rights Commission found that the slogan “Kill the farmer, kill the boer” constitutes advocacy of hatred of Afrikaners and incitement to do them harm.174 The SAHRC was able to reach this finding, as Iain Currie and Johann de Waal note, because it did not restrict “harm” to the physical, but found the term to embrace both emotional harm and psychological harm.175 The grounds for such an extension of the term can, Currie and De Waal suggest, be traced directly to the Canadian Supreme Court’s decision in R v. Keegstra.176 In Keegstra, the Canadian Supreme Court wrote: A person’s sense of human dignity and belonging to a community is closely linked to the concern and respect accorded the groups to which he or she belongs. The derision, hostility and abuse encouraged by hate propaganda therefore have a severe impact on the individual’s sense of self-worth and acceptance. This impact may cause target-group members to take drastic measures in reaction, perhaps avoiding activities which bring them into contact with outsiders or adopting attitudes directed towards blending in with the majority. Such consequences bear heavily on a nation that prides itself on tolerance and the fostering of human dignity through, among other things, respect for the many racial, religious and cultural groups in our society.177

Thus, just as dignity grounds the Keegstra court’s finding that anti-Semitic statements and Holocaust denial were not entitled to constitutional protection, so too does dignity (Dignity ) ground the SAHRC’s conclusion that the slogan “Kill the farmer, kill the boer” constitutes hate speech in terms of FC section ()(c) and falls beyond the protections afforded speech by FC section (). The Broadcasting Complaints Commission of South Africa (BCCSA) reached a similar conclusion in South African Human Rights Commission v. SABC.178 The BCCSA was asked to determine whether derogatory remarks about the South African Indian community that formed the primary riff in a well-known Zulu rap song constituted hate speech. The BCCSA concluded that because the song both advocated hatred with respect to members of the Indian community and caused harm that impaired the dignity of members of that community, the song qualified as hate speech for the purposes of FC section ()(c). In South African Human Rights Commission v. SABC, as in Freedom Front v. South African Human Rights Commission, the dignity-inflected demand for equal concern and equal respect (Dignity ) outweighs the dignity interest in expression as a form of self-actualization (Dignity ). The two tribunals have found that the prevention

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of genuine harm—physical or psychological—trumps the putative benefits of largely valueless forms of self-actualization because justice, in postapartheid South Africa, first requires that all persons be treated with equal respect. Although this restatement begs any number of questions about harm and value, our constitutional order appears to be committed to the proposition that only once the formal conditions of equal respect (Dignity ) have been secured are individuals free to pursue nonharmful forms of self-actualization (Dignity ). D EFAMATION The law of defamation, as the Khumalo court notes, “lies at the intersection of the freedom of speech and the protection of human dignity.”179 But at that intersection, the light is generally green for dignity and red for expression. Currie and De Waal observe that the law of defamation in South Africa, prior to , consistently undervalued freedom of speech, and in particular, “freedom of the media.”180 That devaluation was consistent with the suppression of all forms of expression by the state under apartheid.181 The ossification of the law of defamation under apartheid was finally addressed by the Supreme Court of Appeal in National Media Ltd v. Bogoshi.182 Although it declined to address directly the constitutional challenges to the existing law, the Bogoshi court did decide that the imposition of strict liability on the media with respect to a finding of unlawfulness could no longer be maintained. It replaced the strict liability standard for the media with the ordinary standard of reasonableness. Advocates of more robust protections for freedom of expression and freedom of the media were not satisfied with this via media. In Khumalo v. Holomisa, the defendants, on exception, asked the Constitutional Court to revisit Bogoshi in the light of the novel requirements of FC section ()(a). Although the Constitutional Court agreed that FC section ()(a) applied directly, it declined the invitation to alter the common law of defamation. Justice O’Regan, in support of her conclusion that “the common law as currently developed” was consistent with the requirements of the Final Constitution, wrote: In the context of the actio injuriarum, our common law has separated the causes of action for claims for injuries to reputation (fama) and dignitas. Dignitas concerns the individual’s own sense of self-worth, but included in the concept are a variety of personal rights including, for example, privacy. In our new constitutional order, no sharp line can be drawn between these injuries to personality rights. The value of human dignity in our Constitution is not only concerned with an individual’s sense of self-worth, but constitutes an affirmation of the worth of human beings in our society. It includes the intrinsic worth of human beings shared by all people as well as the individual reputation of each person built upon his or her own individual achievements. The value of human dignity in our Constitution therefore values both the personal

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sense of self-worth as well as the public’s estimation of the worth or value of an individual. . . . The law of defamation seeks to protect the legitimate interest individuals have in their reputation. To this end, therefore, it is one of the aspects of our law which supports the protection of the value of human dignity.183

Freedom of expression, described by the majority as a nonparamount value, generally yields to the dictates of dignity.184 But should it?185 What if the dignity interest that informs freedom of expression had featured in the court’s analysis? Judge van der Westhuizen, in the court a quo, recognizes dignity interests on both sides. Dignity qua equal concern and equal respect buttresses arguments in support of the right to one’s reputation (Dignity ), while dignity qua selfgovernance (Dignity ) values “expression” for the “central part” it plays in legislating for oneself, and for others, consistent with the dictates of reason.186 Indeed, in Sayed, Justice Davis suggests that had the Khumalo court taken dignity qua self-governance seriously, the outcome might have been different.187 Justice Davis reasons that even on the most uncontroversial reading of recent South African history, “democracy” ought to be understood as “the fundamental objective of the Constitution.” As a result, the entire structure of the Final Constitution “implies that [the] value of democracy needs to be given primacy of place [when] . . . we have to . . . balance . . . freedom of expression against [the interests of ] those who seek public office or positions of prominence in our public life.”188 Only a robust media, on Davis’s account, is commensurate with the dictates of both democracy and dignity qua selfgovernance (Dignity ).189 The Constitutional Court had a chance to follow Justice Davis’s incisive analysis in South African Broadcasting Corp Ltd v. National Director of Public Prosecutions.190 In  Schabir Shaik was found guilty by the Durban High Court of being in a corrupt relationship with then Deputy President Jacob Zuma. Shaik appealed his conviction and sentence to the Supreme Court of Appeal. Some three weeks before the hearing, the South African Broadcasting Corporation (SABC) applied for permission to broadcast live and edited versions of the appeal on both radio and television. Both Shaik and the National Director of Public Prosecutions opposed the application (Dignity ). The Supreme Court of Appeal refused to permit the SABC to broadcast the proceedings. It held that while the SABC and the public’s right to freedom of expression encompassed a right to broadcast judicial proceedings, it invariably impaired Shaik’s right to a fair trial. A majority of the court upheld the decision of the SCA. It first decided that each court exercised a significant degree of discretion in such matters. Appeal courts should only interfere if the lower court was clearly wrong. While it did not necessarily agree with the test the SCA had applied or the outcome in this case, the Constitutional Court could not say the SCA was clearly mistaken. It could not, therefore, interfere with the SCA’s exercise of discretion. However, the judgment also emphasized the importance of courts being open to the

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public and that courts should strive to better accommodate the media (Dignity ). Justice Mokgoro dissented. She found that the public’s right and ability to receive information was underpinned by, and a vital incident of, the value of human dignity (Dignity ). Two High Courts have recognized that, in a head-to-head contest between expression and privacy, the more important dignity interest might attach to expression. In MEC for Health, Mpumalanga v. M-Net, the High Court was asked to grant an urgent interdict that would have prevented a broadcaster from airing a piece of investigative journalism that relied on clandestinely obtained footage of negligent medical practices.191 Justice Bertlesmann rejected the request for the interdict. He held that the privacy interests of a public hospital and public hospital staff (Dignity ) must fall before the freedom of expression interests (the right to receive information) of the general public (Dignity  and Dignity ). Only by having access to these clandestinely filmed operations that demonstrate the patently negligent conduct of the public hospital staff could the fourth estate discharge its responsibility to ensure government accountability (Dignity ) and the general public meaningfully exercise its rights of self-governance (Dignity ).192 In Van Zyl v. Jonathan Ball Publishers, the High Court denied an applicant’s request for an interim interdict preventing dissemination, distribution, display, or sale of a book that the applicant claimed to be defamatory.193 It found, on balance, that the expressive interests of the respondent (and the public), as guaranteed by FC section  (Dignity  and Dignity ), outweighed the dignity interests of the applicants, as guaranteed by FC section  (Dignity ). The Jonathan Ball Publishers court went to some lengths, however, to point out that, although the requirements for an interim interdict were not satisfied, the outcome should not lead the media to conclude that they deserved or would receive “exceptional treatment” in defamation cases.194 S OCIO - ECONOMIC R IGHTS In the major socio-economic rights decisions handed down thus far, the Constitutional Court has taken great care to make its readers aware of the manner in which the commitment to human dignity—as rule, value, or ideal—has shaped the disposition of the matter before it.195 Even in Soobramoney v. Minister of Health, KwaZulu-Natal, where the court denied Mr. Soobramoney’s claim that right to emergency medical treatment of FC section () entitled him to access to the dialysis that he required for survival, the dismissal was justified in terms of much broader claims to dignity.196 As Justice Sachs writes: “In all the open and democratic societies based upon dignity, freedom and equality with which I am familiar, the rationing of access to life-prolonging resources is regarded as integral to, rather than incompatible with, a human rights approach to health care.”197 Subsequent decisions in Grootboom, TAC, and Khosa take progressively more seriously the dignity interests of the parties claiming relief under FC sections  or . In Grootboom, the court reversed the spin placed on the dignity interests at stake in Soobramoney. Justice Yacoob writes:

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It is fundamental to an evaluation of the reasonableness of state action that account be taken of the inherent dignity of human beings. The Constitution will be worth infinitely less than its paper if the reasonableness of state action concerned with housing is determined without regard to the fundamental constitutional value of human dignity. Section , read in the context of the Bill of Rights as a whole, must mean that the respondents have a right to reasonable action by the state in all circumstances and with particular regard to human dignity. In short, I emphasize that human beings are required to be treated as human beings.198

The demands of dignity, far from justifying a failure to deliver on various vague promises, become the measure of the state’s efforts to discharge its positive duties to act. As Sandy Liebenberg has astutely observed, the dignity discourse of the court suddenly shifts, in Grootboom, from the language of social exchange as a zero-sum game to the language of a social democratic state committed to “positive social relationships which both respect autonomy and foster the conditions in which it can flourish.”199 Critics of the court were quick to denigrate this commitment to social democratic principles by pointing to the failure of this more robust, relational notion of dignity to deliver actual houses or shelter to Mrs. Grootboom and her fellow litigants. However, in Treatment Action Campaign, the Constitutional Court did deliver the relief that it had said that dignity demands.200 It rejected the government’s claim that it could not, at this juncture in time, afford to extend its Nevirapine treatment protocol in order to diminish the rates of mother to child transmission (MTCT) of HIV. While noting that an order directing the government to provide even this relatively inexpensive anti-retroviral could have relatively significant budgetary implications, the court found that the needs of the women and children affected were simply too pressing to be ignored. Put in Kantian terms, the court decided, as Sandy Liebenberg writes, that “for society to deny poor women and their newborns access to ‘a simple, cheap and potentially lifesaving medical intervention’ would clearly indicate a lack of respect for their dignity as human beings entitled to be treated as worthy of respect and concern.”201 In Khosa v. Minister of Social Development, the court goes beyond dignity as minimal respect (Dignity ), or dignity as equal concern (Dignity ), and arrives at dignity as a collective concern (Dignity ).202 In finding that the state’s express refusal, under the Social Assistance Act, to provide permanent residents with social welfare benefits constituted a violation of the right to social security under FC section , Justice Mokgoro writes: “Sharing responsibility for the problems and consequences of poverty equally as a community represents the extent to which wealthier members of the community view the minimal well-being of the poor as connected with their personal well-being and the well-being of the community as a whole. In other words, decisions about the allocation of public benefits represent the extent to which poor

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people are treated as equal members of society.” The trajectory of the court’s dignity jurisprudence over these four cases is breathtaking. By committing us to the dual proposition that “we are diminished as a society” to the extent that any of our members are deprived of the opportunities to develop their basic capabilities to function as individual and social beings, and that “claims on social resources are strongly justified when people lack the basic material necessities of life to enable them to survive,”203 the court takes seriously the sense of urgency rooted in the manifold demands of dignity.204 What is truly remarkable about the court’s language in Khosa is the manner in which it sweeps up and engages all five primary definitions of dignity. The court first notes that socio-economic rights, like that of social security in FC section , invariably engage the “founding values of human dignity, equality and freedom.”205 It then teases out human dignity from these three covalent values, and invokes Dawood in support of the proposition that “[h]uman dignity . . . informs the interpretation of many, possibly all, other rights.”206 The three rights that dignity informs in the instant matter are life, equality and social security.207 From this doctrinal foundation, the Khosa court commits itself, in short order, to the following propositions: The Final Constitution recognizes “everyone” as deserving of equal concern and equal respect (Dignity ), whether it be in terms of differentiation by law in terms of FC section (), or the receipt of benefits in terms of FC section .208 Persons who “are already settled permanent residents and part of South African society” cannot be abandoned “to destitution if they fall upon hard times” simply because immigration officials see “some [pecuniary] advantage to the state in doing so”:209 that is, members of our community cannot be treated as mere means for the advancement of the greater good (Dignity ). “[T]he exclusion of permanent residents from the [social security] scheme” denies them the capacity “to sustain themselves,” and casts them in the role of supplicants:210 By definition, a supplicant does not govern himself, but remains dependent upon the largesse of those around him; such a state of affairs constitutes the abnegation of dignity (Dignity ). “The denial of access to social assistance” relegates many permanent residents to the “margins of society” and deprives them of those essential goods that are necessary for them “to enjoy other rights vested in them under the Constitution”;211 the denial of these goods and rights functions as an absolute bar to the development of the “unique talents” of each individual permanent resident (Dignity ). This failure to recognize permanent residents as more than means, as persons worthy of equal respect, as individuals capable of self-actualization and self-governance leads the court to conclude that adequate redress can only occur when we come to understand that our own dignity is linked inextri-

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cably to the “well-being of the poor . . . and the well-being of the community as a whole”212 (Dignity ). Each of Justice Mokgoro’s arguments regarding the constitutionality of the exclusion of permanent residents from the social security scheme at issue turns on one of the five definitions of dignity. These arguments from dignity reinforce one another and build toward a conclusion in which Justice Mokgoro appears to claim that the goal of the Final Constitution is “a realm of ends,” a community in which each of us identifies our own well-being, our own status as ends, with the identification of all other members of our community as ends-in-themselves.

Property and Housing The role dignity plays in property and housing cases suggests a Constitutional Court ever more willing to flex its muscle and assert the priority of rights that protect those persons most in need. In Jaftha v. Schoeman,213 the appellants were both poor unemployed women whose houses, acquired with the help of a state subsidy, had been sold in execution to satisfy debts of R and R respectively.214 The sales in execution, which took place on the same day, were undertaken in terms of sections ()(a) and  of the Magistrates’ Court Act  of . Section ()(a) provided that an order by a court for the payment of money can be enforced by execution against the moveable property of a judgment debtor. Only if there is insufficient moveable property to satisfy the judgment can the immovable property of that person be executed. Section  then provides for property that is necessary for the debtor to survive to be protected from execution. That protection did not extend to a debtor’s home. Justice Mokgoro, writing for the court, reemphasized that when a socio-economic right, such as the right to housing, is limited the right to dignity is “invariably implicated.”215 (So although direct reliance on the section  dignity right does not add anything to the inquiry, dignity does play a right informing right role in fleshing out the meaning of right to housing in FC section ().) One could not ignore—when teasing out the content of FC section ()—South Africa’s ugly history of forced removals and mass impairment of dignity (Dignity ).216 The court concluded that, at the very least, any measure which permits a person to be deprived of existing access to adequate housing limits the negative right in section () of access to housing. Section ()(a) permitted exactly that outcome and thus had to be justified under section . While the section served the important purpose of ensuring the payment of debts, it had the potential, as in these cases, to deprive a person of her constitutional right for a trifling amount (Dignity ). The court therefore found the limitation unjustified. Occupiers of  Olivia Rd, Berea Township and Another v. City of Johannesburg and Others arose as a challenge to an eviction order obtained by the City of Johannesburg against more than four hundred occupiers of two buildings in the inner

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city of Johannesburg.217 The city had found that the two buildings were “unsafe” and “unhealthy” in terms of section ()(b) of the National Building Regulations and Building Standards Act  of . Two broad issues seized the Constitutional Court: whether the eviction order should have been granted, and whether the city’s housing program was constitutionally compliant. Both questions necessarily engaged matters beyond the immediate factual situation of the occupiers because the occupiers had expressly pleaded the broader issue, in the public interest, as to whether the city had made reasonable provision for housing for inner city dwellers living in desperate conditions. The Constitutional Court decided three primary issues in upholding the appeal of the occupiers. First, it explained that its earlier “engagement order” obliged the parties to engage, fully, with each other in order to arrive at an optimal solution for all concerned (Dignity ).218 It follows that a court must take into account whether there has been meaningful engagement by a municipality before granting an eviction order. Second, while the city has statutory obligations to eliminate unsafe and unhealthy buildings, its constitutional duty to provide access to adequate housing means that potential homelessness must be considered by a city before it can seek an eviction order (Dignity ).219 DIGNITY’S POSSIBILITIES My reconstruction of the court’s dignity jurisprudence—the teasing out of five distinct definitions and five standard uses—stands then as something of an answer to Dennis Davis’s realist critique. I have suggested—in a manner identical to John Rawls’s characterization of Kant’s variations on the categorical imperative—that the various dimensions of our dignity jurisprudence are best understood as five complementary themes that build upon one another through four (or five) movements (uses) to create a coherent, moving symphony. Ten years ago, Davis heard not a symphony but rather a cacophony of disparate themes, each distinct theme played to suit the particular mood of the court.220 I hope to have shown that a dignity jurisprudence that begins with the simple proposition that one may never treat another human being solely as a means can, along with other variations on the categorical imperative, be used to develop an account of what it means to treat another as an object of equal concern and equal respect. I then suggested how the refusal to turn away and the principle of equal concern and equal respect have been leveraged, by the court, to generate defensible theses about dignity qua self-actualization and dignity qua self-governance as constitutive features of a just society. Finally, this cluster of definitions, all rooted in related notions of individual agency, grounds the more radical claim that dignity actually requires all citizens to assume responsibility for the manner in which all other citizens live.221 These definitions of dignity, when married to prescriptive appeals by Drucilla Cornell (and others) to the regulative ideal of dignity, provide a reliable guide for understanding what dignity in the Final Constitution is designed to do.

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Dignity and the Politics of Capability Over the court’s first fourteen years the court’s various members have explained the presence of dignity in South Africa’s Final Constitution by reference to the denial of dignity under apartheid. As Justice O’Regan writes: “The Constitution asserts dignity to contradict our past in which human dignity for black South Africans was routinely and cruelly denied. It asserts it to inform the future, to invest in our democracy respect for the intrinsic worth of all human beings.”222 The Constitutional Court reacts to the particular ways in which dignity was denied under apartheid (the imposition of the death penalty to blunt political opposition, the implementation of pass laws to control both the intimate and economic lives of black South Africans, the use of corporal punishment as a form of social control) by finding unconstitutional those laws that continue to reinscribe these affronts to dignity. But as Justice O’Regan observes above, the Final Constitution does not simply ask us to react to, and to reverse, past indignities. It demands that we transform our society into one that will ultimately recognize the intrinsic worth of each individual. We can trace that process of transformation in the equality jurisprudence on sexual orientation. Our courts begin slowly, dispatching laws proscribing sodomy as a violation of intimate or private space. The courts go on to reject laws that impair the ability of same-sex partners to live—private lives—within South Africa. They then abolish laws that refuse to extend “public” benefits to the surviving same-sex life partner of a judicial officer. Ultimately, the dignity of same-sex partners is understood to be as important a public matter as it is private, and the public institution of marriage sanctions heterosexual and homosexual unions alike.223 The public recognition of same-sex life partnerships as marriages takes dignity beyond the merely restitutional, and articulates an understanding of dignity that is fundamentally transformative of our politics. That this recent holding is fundamentally transformative, and not merely reactive, is reflected in the state’s response to the various challenges mounted against antigay and antilesbian enactments. The early challenges to sodomy laws and immigration laws met with little resistance. However, as the challenges to the law required public recognition of the equality of gays and lesbians—as opposed to mere sufferance of the homosexuals in our midst— the state’s resistance stiffened. In Satchwell I and Satchwell II, Parliament balked at providing spousal benefits to the survivors of same-sex life partnerships. In Satchwell II, the Constitutional Court had to take the unusual and uncomfortable step of invalidating a piece of legislation virtually identical to the legislation that it had found unconstitutional in Satchwell I. It is hard to read Parliament’s response to Satchwell I as anything but a refusal to recognize that same-sex partnerships are entitled to equal concern and equal respect. In Fourie, the state actively sought to block the recognition of samesex unions as marriages. Again, it is hard to read the state’s response as anything other than a refusal to accord same-sex life partnerships the same public recognition as opposite-sex life partnerships. The Constitutional Court and the Supreme Court

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of Appeal have reached beyond mere restitutionary forms of justice to a vision of dignity that forces all South Africans to reconsider their previous understandings of marriage. This new vision of dignity compels all South Africans to acknowledge publicly the variety of legitimate and valuable life partnerships within our society. It seems reasonable to ask, at this juncture, whether the court’s jurisprudence on equality and sexual orientation reflects a genuine transformation or the mere logical extension of the court’s liberal commitment to state nonintervention and the overt and explicit pressures of the written text. The question arises because some critics of the court’s early dignity jurisprudence have, correctly, suggested that the Constitutional Court permitted a Berlian understanding of negative liberty to slip into the court’s equality jurisprudence through the backdoor of dignity. The majority in Ferreira rejected Justice Ackermann’s view that IC section () and FC section () required that “freedom” and “security of the person” should be read disjunctively and that IC section () and FC section () contained a robust freedom right. However, in a number of cases decided shortly after Ferreira, the court appeared to accept Justice Ackermann’s contention that there exists an inextricable link between dignity and the need for individual freedom from state intervention. In Hugo, the court places “dignity . . . at the heart of individual rights in a free and democratic society.”224 In National Coalition for Gay and Lesbian Equality v. Minister of Justice, the court states that “it is clear that the constitutional protection of dignity requires us to acknowledge the value and the worth of all individuals as members of society.”225 Thus, over the course of several cases and the space of a couple of years, individual freedom qua negative liberty becomes the foundation for dignity, and dignity, in turn, becomes the basis for equality. One can accept the truth of the proposition that the Constitutional Court accepted the link between dignity and the need for individual freedom from state intervention without accepting the proposition that dignity is only about the need for individual freedom from state intervention. For example, Amartya Sen ties his notion of “development as freedom” to the provision of a basic basket of goods—both real and figurative—that enable human beings to develop those “capabilities” necessary for each individual to achieve those ends that each has reason to value. Sen contends that dignity and freedom and equality, rightly understood, are meant neither to achieve definitive outcomes nor to prescribe a univocal understanding of the good.226 What these covalent values do require is a level of material support (e.g., food) and immaterial support (e.g., civil liberties) that enable individuals to pursue a meaningful and comprehensive vision of the good life—as they understand it. I have suggested, in this essay’s analysis of the case law that the court has moved beyond a minimalist understanding of dignity, and a negative conception of freedom, to something richer and more substantial. In Grootboom the Constitutional Court announced: “A society must seek to ensure that the basic necessities of life are provided to all if it is to be a society based on dignity, equality, and freedom.” In Khosa v. Minister of Social Development, the court commits the state to the provision of

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actual resources, social assistance, to an identifiable class of persons—permanent residents. In so doing, the court moves well beyond dignity as negative liberty to a vision of dignity in which “wealthier members of the community view the minimal well-being of the poor as connected with their personal well-being and the wellbeing of the community as a whole.”227 Dignity qua collective responsibility for material agency moves us toward a Senlike capabilities model. Moreover, it does so without being susceptible to the critique of dignity qua negative liberty leveled by exponents of substantive equality. The capabilities model defines equal treatment as the provision of differently situated persons with the material and immaterial means that these individuals, in particular, require to pursue some specific vision of the good.228 So, for example, Sen argues that pregnant women need more nutrition than nonpregnant women and men and that any basic food program is obliged to recognize this difference in a basic nutritional package.229 Dignity qua collective responsibility based upon a Sen-like capabilities model also appears to answer the charge that a commitment to substantive autonomy reinscribes the extant status of disadvantage.230 A capabilities model does not underscore the lack of freedom of our fellow citizens, nor does it call undue attention to their injury, so much as it demands that we recognize that all of us require a certain basket of goods in order to pursue our preferred way of being in the world.231

Dignity and the Imaginary Domain This last insight into the lived experience of many women in a patriarchal society underwrites a more general claim to protection of what Drucilla Cornell has described as the “imaginary domain.”232 It is in this imaginary domain that each of us can explore—or at the very least come to terms with—who we really are. This imaginary domain maps on to the space I have identified with dignity because it requires that we agree to coordinate our actions with others so as to maximize our freedom, and yet do so only in so far as that freedom is consistent with the freedom of others. Moreover, this reconceptualization of dignity stands as a rebuttal, of sorts, to Dennis Davis’s somewhat disparaging description of the Constitutional Court’s equality and dignity jurisprudence as a mere “Legoland.” When viewed from the perspective offered by the imaginary domain, Booysen, Dawood, National Coalition of Gay and Lesbian Equality, Comitis, and Khosa can be understood as attempts by the courts to create the requisite space within which the individual—in a marriage to a South African citizen, in a same-sex life partnership, in a professional football league, or living life as a permanent resident—can reflect upon, and, if necessary, alter the fundamental meaning of one’s being. What the courts, in each of these cases, have done is require us to take seriously nondominant ways of being in the world by forcing us to attend to the centrality of a particular kind of relationship, practice or ascriptive characteristic for the self-representation of a given individual

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(or group). Dignity qua imaginary domain also offers an implicit critique of those Constitutional Court judgments that have failed to recognize adequately the practice of a nondominant group as essential to that group’s self-understanding and have, as a consequence, refused to accord the practice at issue the level of respect that it deserves.

Dignity and Transcultural Jurisprudence By asking us to take seriously the unchosen conditions of being of our fellow citizens, dignity qua imaginary domain points to the possibilities for overcoming the divide between European and African conceptions of justice. Just how it might do so—by taking seriously the traditional norms of African culture that ground the lives of many South Africans—is no easy matter to explain. The Constitutional Court’s decisions reflect demonstrable sympathy for the many vulnerable minorities that have sought one form of judicial solicitude or another. At the same time, the court’s current body of jurisprudence demonstrates the challenges that adhere to any attempt to accommodate subordinate bodies of law, be they sacred or profane, with that law—the Final Constitution—from which all other law must derive its force. As I have already noted, the Final Constitution makes it clear that a community’s cultural or linguistic practices secure constitutional protection only where they do not interfere with the exercise of other fundamental rights. This formally correct articulation of the relationship between FC section  and the rest of the Bill of Rights is often assumed to imply that the other substantive rights—including dignity—trump collective cultural concerns because dignity and other substantive rights do not protect such concerns. That, however, is untrue. For example, the Constitutional Court in Gauteng School Education Bill recognized the importance for individual dignity, and collective claims for equal respect, of granting communities the right to create schools based upon a common culture, language, or religion.233 Moreover, the courts often mediate conflicts that arise from cultural practices that pit the dignity interests of the individual against the dignity interests of the community. In Christian Education, the Constitutional Court had to assess the relative virtues of arguments that, on the one hand, justified corporal punishment of children in terms of an understanding of dignity refracted through the tenets of a specific religious faith, and on the other hand, called for bans on such punishment because it turned the children of religious parents into mere instruments for the articulation of a community’s beliefs. The difficulty in determining where exactly the polity’s interest in dignity lies—or which kind of dignity interest deserves primacy of place—ultimately led the Christian Education court to fudge the issue by declaring that the dignity of children was impaired by corporal punishment meted out in religious schools, but that the same child’s dignity was not necessarily so impaired by corporal punishment meted out in religious homes.234 The courts have had somewhat greater success in mediating the dignity interests

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at stake in a number of recent challenges to rules of customary law. In Bhe v. Magistrate, Khayelitsha and Others, the Constitutional Court found that the customary law rule of male primogeniture—and several statutory provisions that reinforced the rule—impaired the dignity of and unfairly discriminated against the deceased’s two female children because the rule and the other impugned provisions prevented the children from inheriting the deceased’s estate.235 However, it is the manner in which the Bhe court negotiates two different kinds of claims for equal respect that is most instructive for our current purposes. The Bhe court begins with the following bromide: while customary law provides a comprehensive vision of the good life for many South African communities and receives some level of constitutional solicitude, this new-found constitutional respect for traditional practices does not immunize them from constitutional review. The Bhe court must locate any justification of extant customary law in the provisions of the Final Constitution. The Bhe court then characterizes the customary law of succession in terms that validate its spirit without necessitating that the court be beholden to its letter. The customary law of succession is, according to the court, a set of rules: designed to preserve the cohesion and stability of the extended family unit and ultimately the entire community. . . . The heir did not merely succeed to the assets of the deceased; succession was not primarily concerned with the distribution of the estate of the deceased, but with the preservation and perpetuation of the family unit. Property was collectively owned and the family head, who was the nominal owner of the property, administered it for the benefit of the family unit as a whole. The heir stepped into the shoes of the family head and acquired all the rights and became subject to all the obligations of the family head. He inherited the property of the deceased only in the sense that he assumed control and administration of the property subject to his rights and obligations as head of the family unit. The rules of the customary law of succession were consequently mainly concerned with succession to the position and status of the deceased family head rather than the distribution of his personal assets.236

By recasting the justification for customary rules of succession in terms of family and community stability, rather than patriarchy and property, the Bhe court is able to soften its critique. It then notes that the conditions of family and community that gave rise to the challenged rules no longer obtain. The Bhe court writes: Modern urban communities and families are structured and organized differently and no longer purely along traditional lines. The customary law rules of succession . . . determine succession to the deceased’s estate without the accompanying social implications which they traditionally had. Nuclear fami-

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lies have largely replaced traditional extended families. The heir does not necessarily live together with the whole extended family which would include the spouse of the deceased as well as other dependants and descendants. He often simply acquires the estate without assuming, or even being in a position to assume, any of the deceased’s responsibilities. In the changed circumstances, therefore, the succession of the heir to the assets of the deceased does not necessarily correspond in practice with an enforceable responsibility to provide support and maintenance to the family and dependants of the deceased.237

Customary law has not, the Bhe court ruefully observes, evolved to meet the changing needs of the community. It fails African widows because: social conditions frequently do not make living with the heir a realistic or even a tolerable proposition; and the prerequisite of a good working relationship with the heir for the effectiveness of the widow’s right to maintenance, as a general matter, no longer exists. Again the court takes care to note that the fault for this arrested development lies outside traditional communities. Ruptures within traditional ways of life—caused by both apartheid, the hegemony of western culture and capitalism—have prevented the law’s evolution. This aside sets the stage for the delivery of the Bhe court’s coup de grace that “the official rules of customary law of succession are no longer universally observed.”238 The trend within traditional communities is toward new norms that “sustain the surviving family unit” rather than reinscribe male primogeniture. By having shown that the spirit of succession lies in its commitment to family cohesion, that the traditional family no longer coheres as it once did, and that “distorted” rules of customary law “emphasize . . . patriarchal features and minimize its communitarian ones,” the Bhe court closes the gap between constitutional imperative and customary obligation.239 Had customary law been permitted to develop in an “active and dynamic manner,” it would have already reflected the Bhe court’s conclusion that “the exclusion of women from inheritance on the grounds of gender is a clear violation of . . . [FC section] ().”240 Had customary law not been allowed to ossify, traditional communities would have noted how male primogeniture entrenched “past patterns of disadvantage among a vulnerable group” and endorsed the Bhe court’s reworking of customary understandings of the competence “to own and administer property” in a manner that vindicates a woman’s right to dignity under FC section .241 The Bhe court is able, therefore, to assert that traditional communities have conceptions of dignity worth protecting without being obliged to endorse a rule that quite clearly offends the dignity interests of many women and female children within those communities. Of course, the Bhe court could have taken a different view of the dignity interests at stake—a view that could, arguably, be said to take somewhat more seriously the claim that apartheid had ravaged African societies. Justice Ncgobo, in dissent, suggests that if the Bhe court had been truly serious about rectifying the wrongs done

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to African communities under apartheid, the court would not have, as it did, subordinated customary law to more general constitutional dictates and statutory enactments. Had the majority taken seriously its own interim conclusion that customary law under apartheid reflected a system of colonial control rather than an authentic expression of law, then it might have placed greater weight on recent trends in indigenous law which suggested that women were increasingly being allowed to take up positions in the family from which they had previously been barred. The majority, in Justice Ncgobo’s view, failed to acknowledge the multiplex kinship relationships that primogeniture was meant to protect and that traditional communities continued to support. Justice Ncgobo then articulates a response to the problem of primogeniture that—he believes—would have allowed indigenous law the requisite space in which to generate a remedy that honored both the dignity of women and the dignity of the communities of which these women remain a part.242 For Justice Ncgobo, equal concern and equal respect for the dignity of indigenous law requires that it be accorded a status equal to ostensibly more atomized notions of dignity found in European conceptions of justice.243 The challenge of transcultural jurisprudence now facing the Constitutional Court, in particular, and South Africa, in general, is how to contrive an ethic that refuses to privilege reflexively the language of the Western legal tradition over the language of indigenous law. If the discourse of dignity is, ultimately, to be privileged over talk of uBuntu, then, Justice Ncgobo suggests, such privileges must be earned and not merely assumed.

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Notes

INTRODUCTION Drucilla Cornell and Sam Fuller . Section (a) of the Constitution of the Republic of South Africa,  (hereafer referred to as the Constitution). . Hans Kelsen, General Theory of Law and State  (Harvard University Press ). . Interim Constitution,  section (). Compare section () of the Final Constitution, . . Lourens Ackermann, The Legal Nature of the South African Constitutional Revolution,  New Zealand L. Rev. – (). . Section  of the Constitution reads: “This Constitution is the supreme law of the Republic; law or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled.” . Ferreira v. Levin NO  () SA  (CC) at para . . S v. Makwanyane and Another  () SA  (CC) at para . Note that Justice O’Regan is referring to the Interim Constitution. Under the Interim Constitution the Bill of Rights was located in Chapter . . Section () of the Constitution reads: “When interpreting any legislation, and when developing the common law or customary law, every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights.” . Carmichele v. Minister of Safety and Security  () SA  (CC) at para –. . Prinsloo v. Van der Linde  () SA  (CC). . Prinsloo v. Van der Linde at para . . Ackermann (note  supra), . . For a reader unfamiliar with the works of Immanuel Kant see the Cambridge translations of Groundwork of the Metaphysics of Morals and Metaphysics of Morals (note  infra). See in particular H. J. Paton’s translation and commentary in his book The Moral Law.

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Notes to pages –

. Ackermann (note  supra), . See also Stu Woolman, Application in Constitutional Law of South Africa chapter  (S. Woolman, T. Roux, and M. Bishop eds., nd Edition, Original Service, Juta Law ). . Ackermann (note  supra), . . See Solomon Johannes Terreblanche, A History of Inequality in South Africa, – (University of Natal Press ). . Immanuel Kant, Groundwork of the Metaphysics of Morals :,  (Mary Gregor ed., Cambridge University Press ). . Dawood and Another v. Minister of Home Affairs and Others  () BCLR  (CC) at para . . On dignity as a right, value, Grundnorm, and ideal, see Stu Woolman, Dignity in Constitutional Law of South Africa chapter  (S. Woolman, T. Roux, and M. Bishop eds., nd Edition, Original Service, Juta Law ). . Lourens Ackermann, Dignity: Loadstar for Restitutionary Equality in South Africa, chapter  (forthcoming, draft on file with authors). . Ferreira v. Levin (note  supra). . Id. at para . . Historically there has been a large debate in Kantian scholarship over the relationship between the realm of internal freedom (the moral law) and the realm of external freedom (Recht, which is, of course, backed by the coercive power of the state). For a summation of the debate see: Allen Wood, Human Dignity, Right and the Realms of Ends in Dignity, Freedom and the Post-apartheid Legal Order, The Critical Jurisprudence of Laurie Ackermann – (A. J. Barnard-Naudé, Drucilla Cornell, and Francois du Bois eds., Juta Press ). Although it is beyond the scope of this introduction the concept of a constitutional categorical imperative demands a stronger link between the two realms that Kant, at times, would seem to defend. . See Isaiah Berlin, Two Concepts of Liberty in Four Essays on Liberty (Oxford University Press ). . Kant, : (note  supra), . . One of the ways to understand this space is through the concept of the “imaginary domain.” For a detailed discussion of this concept, as well as the concept of “sexuate” beings, see Drucilla Cornell, The Imaginary Domain (Routledge ). . Bernstein v. Bester  () SA  (CC). . Id. at para . Indeed Justice Ackermann, in his own philosphical writing, has added something very close to self-representation as integral to dignity. See Lourens “Laurie” Ackermann’s essay in this volume entitled Equality and Nondiscrimination: Some Analytical Thoughts where he defines dignity as including self-representation: “Human dignity (worth) is the capacity for and the right to respect a human being, and arises from all those aspects of the human personality that flow from human intellectual and moral capacity”; which in turn separates humans from the impersonality of nature, enables them to exercise their own judgment, to have self-awareness and a sense of selfworth, to exercise self-determination, to shape themselves and nature, to develop their personalities, and to strive for self-fulfilment in their lives. . Ackermann (note  supra), .

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. National Coalition for Gay and Lesbian Equality and Another v. Minister of Justice and Others  () SA  (CC) at para . . Constitution of the Republic of South Africa,  (Final Constitution or FC). EQUALITY AND NONDISCRIMINATION: SOME ANALYTICAL THOUGHTS Lourens W. H. Ackermann Lourens W. H. Ackermann is Emeritus Justice of the Constitutional Court of South Africa. This article is dedicated to Professor Emeritus Johan Degenaar of Stellenbosch, a free mind that kept the spirit of Socrates alive under difficult circumstances. . As to what is meant by restitutional equality under the Constitution of the Republic of South Africa,  see National Coalition for Gay & Lesbian Equality v. Minister of Justice  () SA  (CC) at paras –. . More fully expounded in Lourens Ackermann, Constitutional Comparativism in South Africa  Tulane L. Rev. , – (), and in slightly modified form in Lourens Ackermann Constitutional Comparativism in South Africa  SALJ , –  (). . For the South African law see Prinsloo v. Van der Linde  () SA  (CC) and Harksen v. Lane NO  () SA  (CC). For the Canadian Law see Law v. Minister of Human Resources Development []  DLR (th) . . See in particular section (a) of the Constitution (“the value . . . [of ] human dignity”); section () (the democratic values of human dignity); section  (everyone has inherent dignity and the right to have their dignity respected and protected); section () (an open and democratic society based on human dignity); section () (must promote the values that underlie an open and democratic society based on human dignity, equality, and freedom). . See, for example National Coalition v. Minister of Justice (note  supra) at para  (the constitutional protection of dignity requires us to acknowledge the value and worth of all individuals). . In National Coalition for Gay & Lesbian Equality v. Minister of Home Affairs  () SA  (CC), dealing with a case of unfair discrimination informed by the impact of the discriminatory measure on human dignity, the judgment of the Constitutional Court (written by the present author for a unanimous court) states in para  that “[The discrimination] denies to gays and lesbians that which is foundational to our Constitution and the concepts of equality and dignity, which at this point are closely intertwined, namely that all persons have the same inherent worth and dignity as human beings, whatever their other differences may be” (emphasis added). With the passage of time I am concerned that the emphasized words were not further explained. In determining what unfair discrimination is, it is the value of dignity that informs the right not to be unfairly discriminated against. It is of course also the value of dignity that informs the right to equality before the law and the right to equal protection and benefit of the law. But this is only in passing; a fuller treatment must wait for later. . Prinsloo (note  supra) at para . As coauthor I must naturally bear particular responsibility for this aberration.

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

Notes to pages –

. This flows from the court’s objective approach to constitutional invalidity established in Ferreira v. Levin NO  () SA  (SA)  (CC) paras – and in particular the dicta at para ; see also City Council of Pretoria v. Walker  () SA  (CC) para . . For example, in the leading case of Law (note  supra) at para , Justice Iacobucci states that the determination “whether legislation has the effect of demeaning a claimant’s dignity must be conducted from the perspective of the claimant. . . . [T]he focus of the discrimination inquiry is both subjective and objective” and (para ) that it is “essential to stress that the appropriate perspective is not solely that of a ‘reasonable person’ standard. . . . The appropriate standard is subjective-objective.” . Aristotle, The Nicomachean Ethics Book V, Chapter . There is some inconsistency in the translations. D Ross in The Nichomachean Ethics – (D Ross trans. and ed., rev. J. L. Ackrill & JO Urmson ) renders the relevant passages thus: The just, therefore, involves at least four terms; for the persons for whom it is in fact just are two, and the things in which it is manifested, the objects distributed, are two. And the same equality will exist between the persons and between the things concerned; for as the latter the things concerned are related, so are the former; if they are not equal, they will not have what is equal, but this is the origin of quarrels and complaints when either equals have and are awarded unequal shares, or unequals equal shares. Further, this is plain from the fact that awards should be according to merit; for all men agree that what is just in distribution must be according to merit in some sense, though they do not all specify the same sort of merit, but democrats identify it with the status of freeman, supporters of oligarchy with wealth (or with noble birth), and supporters of aristocracy with excellence. . . . The just, then, is a species of the proportionate. . . . For proportionate is equality of ratios. . . . . This, then, is what the just is—the proportional; the unjust is what violates the proportion. The passage that I have emphasised above is rendered as follows by J. A. K. Thompson The Ethics of Aristotle: The Nicomachean Ethics – (J. A. K. Thompson trans, rev. H. Tredennick, introduction and bibliography J. Barnes, Penguin Classics ): And there will be the same equality between the shares as between the persons, because the shares will be in the same ratio to one another as the persons; for if the persons are not equal, they will not have equal shares; and it is when equals have or are assigned unequal shares, or people who are not equal, equal shares, that quarrels and complaints break out. This is also clear from the principle of assignment according to merit. Everyone agrees that justice in distribution must be in accordance with merit in some sense, but they do not all mean the same kind of merit: the democratic view is that the criterion is free birth; the oligarchic that it is wealth or good family; the aristocratic that it is excellence. By contrast, the above emphasized passages are rendered as follows by John Gillies Aristotle’s Ethics: Comprising his Practical Philosophy  ():

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Notes to pages –



If the persons are exactly equal, so ought to be their shares; but of the persons are unequal, the shares ought also to be unequal in the same proportion: for complaints and strife always will arise, when either persons of unequal worth meet with the same treatment; or when persons of nearly equal worth are distinguished from each other by too considerably differences. This is universally acknowledged; but mens notion of worth vary with their political principles. In democracies it is measured by liberty; in oligarchies, by wealth or birth; in aristocracies, by virtue. I have chosen to follow the first two translations above. . P. W. Hogg Constitutional Law of Canada para . (rd ed. ) and compare similar remarks by D. Gibson The Law of the Charter: Equality Rights  (). . The Politics of Aristotle Book III Chapter XII (E. Barker trans., ). . Id. paras – and –. . Peter Westen, The Empty Idea of Equality  Harv. L. Rev.  (). . Id., . . Id., . . Id., –. . Id., . . I have, with additions of my own, modelled this on the generally accepted German formulation by Günter Dürig in the s in Der Grundrechtssatz von der Menschenwürde  AöR ,  (): “Jeder Mensch ist Mensch kraft seines Geistes, der ihn abhebt von der unpersönlichen Natur und ihn aus eigner Entscheidung dazu befähigt, seiner selbst bewußt zu werden, sich selbst zu bestimmen und sich und die Umwelt zu gestalten.” (All humans are human by virtue of their intellectual capacity [kraft seines Geistes] which serves to separate them from the impersonality of nature and enables them to exercise their own judgment, to have self-awareness, to exercise self-determination and to shape themselves and nature. My translation.) For a discussion of Dürigs definition see C. Enders, Die Menschenwürde in der Verfassungsordnung Jus Publicum  – (). I do not in this article deal more fully with the meaning of human dignity, nor with the proposition that all humans are equally endowed with dignity, nor with the claim that all human beings are morally and legally entitled to equal respect for and protection of their dignity. I hope to do so subsequently. But see my The Legal Nature of the South African Constitutional Revolution  NZ Law Review – (); Equality under the  South African Constitution in Gleichheit und Nichtdiskriminierung in nationalen und internationalen Menschenrechtsschutz vol  in the series Beiträge zum ausländisches öffentliches Recht und Völkerrecht – (R. Wolfrum, ed., ); and Equality and the South African Constitution: The Role of Dignity  Zeitschrift für ausländisches öffentliches Recht und Völkerrecht (Heidelberg Journal of International Law) –  (). . Westen (note  supra), . . Id., . . Id., –n. . D. Lloyd Introduction to Jurisprudence  (rd ed. ). . Westen (note  supra), –, for example. . Id., –.

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

Notes to pages –

. Id., –. . Id., –. . Id., . . Subtitled An Analysis of the Rhetorical Force of Equality in Moral and Legal Discourse (). . Id., xxi, where, in the preface, he states: “I now believe that equality in mathematics may differ fundamentally from equality elsewhere; that a certain class of rights may indeed be usefully viewed as equality rights; that the so-called presumption of equality has plausible force; and that the inherent ambiguities of equality, which I once considered solely a vice, may be a virtue in some contexts.” . Id. (emphasis in the original). . Cathi Albertyn and Beth Goldblatt, Facing the Challenge of Transformation: Difficulties in the Development of an Indigenous Jurisprudence of Equality  SAJHR  (). When this article was published the Constitutional Court had delivered only five judgments on equality: Brink v. Kitshoff NO  () SA  (CC); Prinsloo and Harksen (note  supra); President of the Republic of South Africa v. Hugo  () SA  (CC) and City Council of Pretoria v. Walker  () SA  (CC). . Id., . . National Coalition v. Minister of Justice (note  supra) paras –. . Albertyn and Goldblatt (note  supra), . . Although by now, nearly two decades after the collapse of Soviet communism, one would have thought that the idea or ideal of equality of outcomes would have come to be regarded as entirely utopian, in the pejorative sense of the word, and that any serious attempt to achieve such a state of affairs would require a dictatorial regime, the destruction of freedom, and would be doomed to ultimate failure. . Albertyn and Goldblatt (note  supra), . . Id. (my emphasis). . Id., . . Id., . . Id., –. . Anton Fagan, Dignity and Unfair Discrimination: A Value Misplaced and a Right Misunderstood  SAJR  (). . Dennis Davis, Equality: The Majesty of Legoland Jurisprudence  SALJ  (). This article was written and accepted for publication when the author, now a judge of the High Court, was a professor of law at the University of Cape Town. . Fagan (note  supra), . . Id. . Prinsloo (note  supra). . Prinsloo’s case was argued some time prior to Hugo (note  supra). The two judgments were delivered on the same day. The two judgments should therefore be viewed as a simultaneous precedent and be read as one, in the same way as one would read a single judgment disposing of two cases. . Fagan (note  supra), . . Id., . . Id., –.

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Notes to pages –



. Id., . . Davis, (note  supra),  (my emphasis). . Albertyn and Goldblatt (note  supra). . Davis (note  supra), . In passing I refer to the subsequent judgment of the Constitutional Court in National Coalition v. Minister of Justice (note  supra, paras –) where it rejects the unqualified use of the term substantive equality in favor of remedial or restitutionary equality. It would be helpful if those persisting in the unqualified use of substantive equality would indicate whether for them it encompasses the concept of equality of outcomes. . Id. (my emphasis). . Id., . (my emphasis). . See note  supra. . Davis (note  supra), – (my emphasis). . Susie Cowen, Can “dignity” guide South Africa’s equality jurisprudence?  SAJHR  (). . Id., . Footnotes omitted. . P. T. Geach Good and Evil in Theories of Ethics (P. Foot ed., ). . Id., –. . Id. . Id. . Philippa Foot, Natural Goodness (). . Id., –. . Immanuel Kant: Practical Philosophy in The Cambridge Edition of the Works of Immanuel Kant  (Mary J. Gregor trans. and ed., ). [Groundwork of the Metaphysics of Morals AK :–]. The reference in square brackets is throughout to the Berlin Academy Edition (AK) of Kant’s writings, citing the name (in English) of the work cited, and the volume and page. . Id., . [The Metaphysics of Morals AK : –]. . Allen Wood, Kant’s Ethical Thought xiv (). . Bernard Williams, The Idea of Equality in Philosophy, Politics and Society  (P. Laslett and W. G. Runciman eds., nd series, ). . Id., . . Id., –. . Id., –. . Id., –. . Id., –. . Id., . . Id. THE LEGAL NATURE OF THE SOUTH AFRICAN CONSTITUTIONAL REVOLUTION Lourens W. H. Ackermann . See, for example, Birth of a Constitution (de Villiers ed., ); Currie and de Waal, The New Constitutional and Administrative Law; Volume I Constitutional Law

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

Notes to pages –

(), and works referred to therein. Reference can also be made to the judgment of the Constitutional Court in Chairperson of the Constitutional Assembly, Ex Parte: In re: Certification of the Constitution of the Republic of South Africa,  (hereafter referred to as the First Certification Judgment)  () BCLR  (CC);  () SA  (CC), paras –. . The detailed development of the proposals in this regard can be garnered from the reports of the Technical Committee on Constitutional Issues, May–November . . IC, section (). . The National Assembly and the Senate sitting jointly constituted the Constitutional Assembly under section () of the IC. . IC, sections (), (), (), and (). . IC, section (). . The text of all the constitutional principles can be found in Annexure  to the First Certification Judgment. . Except that retirement was compulsory on reaching seventy years of age, even where the judge had not served twelve years. . With certain exceptions not now relevant. . IC, section (). . IC, section (). . IC, section ()(a). . IC, section (). . IC, section (). . IC, section . . IC, section (). . IC, section ()(a) read with section (). . IC, section ()(d). . IC, section (). . IC, section ()(b). . IC, section ()(c). . See the First Certification Judgment (note  supra), at paras  and . . Section (). . First Certification Judgment (note  supra), at para . . See the First Certification Judgment, note  supra, at para , and the summary of objections and submissions set forth in Annexure  to this judgment. . These are set forth in the First Certification Judgment (note  supra), at para . . Id., at para . . Section A of the IC provided, to the extent relevant, as follows: () If the Constitutional Court finds that a draft of the new constitutional text passed by the Constitutional Assembly . . . does not comply with the Constitutional principles, the Constitutional Court shall refer the draft text back to the Constitutional Assembly together with the reasons for its finding. () The Constitutional Assembly shall . . . pass an amended text in accordance with section () . . . taking into account the reasons of the Constitutional Court.

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Notes to pages –



() The amended text shall be referred to the Constitutional Court for certification in terms of section , whereupon the provisions of subsections () and () of this section again apply. . Under IC, section A(). . IC, section . Compare section  of the  Constitution. . IC, section (). Compare section () of the  Constitution. . In the preamble to the Universal Declaration, the “inherent dignity” and the equality of “all members of the human family” are singled out for mention as belonging to those values and human rights that constitute “the foundation of freedom, justice and peace in the world,” whose contemptuous disregard has “resulted in barbarous acts which have outraged the conscience of mankind, and whose protection by the rule of law is essential if humans are not “to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression.” It is this protection of and by the rule of law in order to obviate rebellion against tyranny and oppression that Nobel Laureate Nadine Gordimer regards as the most important “Article” in the Declaration (in The Universal Declaration of Human Rights: Fifty Years and Beyond vi–viii (Danieli et al. eds., ). Compare also Articles () and (c) of the United Nations Charter. Article  of the German Basic Law (GBL), which is referred to later in the text, places human dignity (Menschenwürde) at the center of and determinative for the GBL and its protection of fundamental rights; this constitutes a direct reaction to, and an outright rejection of, the totalitarianism and inhumanity of the preceding Nazi period encapsulated by the phrase: “You are nothing, your ‘volk’ is everything” (“Du bist nichts, dein Volk is alles”); see, for example, Werneke in Bonner Kommentar zum Grundgesetz Art.  Abs.  Rn. ,; and von Münch/Kunig Grundgesetz-Kommentar Band , . Aufl. Art.  Rn. . . In Danieli et al., Universal Declaration of Human Rights at xiii. . “So act that you use humanity, whether in your own person or in the person of any other, always at the same time as an end, never merely as a means”: Kant, Groundwork of the Metaphysics of Morals  (), as translated in Gregor and Wood, Immanuel Kant: Practical Philosophy  (); and “In the kingdom of ends everything has either a price or a dignity. What has a price can be replaced by something else as its equivalent; what on the other hand is raised above all price and therefore admits of no equivalent has a dignity. . . . [T]hat which constitutes the condition under which alone something can be an end in itself has not merely a relative worth that is a price, but an inner worth, that is, dignity”: Groundwork at –, as translated in Gregor and Wood, Practical Philosophy at . . Section () of the Constitution. . Carmichele v. Minister of Safety and Security and Minister of Justice and Constitutional Development  () BCLR  (CC);  () SA  (CC), at para . . Kelsen, General Theory of Law and State  (). See, for example, Makanete v. Lekhanya [] LRC  (Lesotho Court of Appeal) at g–h, and the authorities cited therein. . Id. . Section () of the Constitution. . See Danieli et al. (note  supra) at vii and viii. Compare also Articles () and (c) of the United Nations Charter.

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

Notes to pages –

. GBL, Article (). . “Du bist nichts, dein Volk is alles”; see, for example, Werneke in Bonner Kommentar zum Grundgesetz Art.  Abs.  Rn. , and von Münch/Kunig GrundgesetzKommentar Band , . Aufl. Art.  Rn. . . My translation of “Jeder Mensch ist Mensch kraft seines Geistes, der ihn abhebt von der unpersönlichen Natur und ihn aus eigner Entscheidung dazu befähigt, seiner selbst bewußt zu werden, sich selbst zu bestimmen und sich und die Umwelt zu gestalten.” Dürig, “Der Grundrechtssatz von der Menschenwürde” in AöR  ,  (). For a discussion hereon, see Enders, Die Menschenwürde in der Verfassungsordnung Jus Publicum Band  – (). . Henkin, Human Dignity and Human Rights  (). . Kant, Groundwork (note  supra) at , as translated in Gregor and Wood, note  supra at . . Kant, Groundwork (note  supra) at –, as translated in Gregor and Wood, note  supra at . . Kant, The Metaphysics of Morals  (), as translated in Gregor and Wood, note  supra at . See also Kant, On the Common Saying: That May Be Correct in Theory, But It Is of No Use in Practice () , as translated in Gregor and Wood, id. at . . Kant, Groundwork (note  supra), –, as translated in Gregor and Wood (note  supra), . . Dworkin, Taking Rights Seriously  (). . Rawls, A Theory of Justice  (). . S v. Makwanyane  () BCLR  (CC);  () SA  (CC). . Id., at para . . Id., at para . . Id., at paras –. . Prinsloo v. Van der Linde  () BCLR  (CC);  () SA  (CC). . IC, section , and section  of the  Constitution. . Id., at para . . Id. . Id., at para . . Id. . See, for example, National Coalition for Gay and Lesbian Equality v. Minister of Justice  () BCLR  (CC);  () SA  (CC); National Coalition for Gay and Lesbian Equality v. Minister of Home Affairs  () BCLR  (CC);  () SA  (CC); Hoffmann v. South African Airways  () BCLR  (CC);  () SA  (CC). . In section (). . In section (), which reads as follows: The rights in the Bill of Rights 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, taking into account all relevant facts including— the nature of the right; the importance of the purpose of the limitation;

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Notes to pages –



the nature and extent of the limitation; the relation between the limitation and its purpose; and less restrictive means to achieve the purpose. . Section , which provides: Subject to section  of the Bill of Rights, the rights and freedoms contained in this Bill of Rights may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. . It further requires, implicitly, a proportionality analysis in the balancing of competing factors, some of which are explicitly referred to in section () (see note  supra), as laid down in S v. Makwanyane  () BCLR  (CC);  () SA  (CC), para , and as adapted for the  Constitution in National Coalition for Gay and Lesbian Equality v. Minister of Home Affairs  () BCLR  (CC);  () SA  (CC), paras –. . Section . . Sections  and (). . In section . . Under section (). . Section (). . Section . Its provisions cover, for example: the right to fair labor practices; conventional trade union rights; the right to strike; the right of employers to form and join employers’ organizations; and the right to engage in collective bargaining. . Section  provides as follows: () No one can be deprived of property except in terms of law of general application, and no law may permit arbitrary deprivation of property. Property may be expropriated only in terms of law of general application for a public purpose or in the public interest; and subject to compensation, the amount of which and the time and manner of payment of which have either been agreed to by those or decided or approved by a court. The amount of the compensation and the time and manner of payment must be just and equitable, reflecting an equitable balance between the public interest and the interests of those affected, having regard to all relevant circumstances, including— The current use of the property; The history of the acquisition and use of the property; The market value of the property; The extent of direct state investment and subsidy in the acquisition and beneficial capital improvement of the property; and The purpose of the expropriation. For the purposes of this section the public interest includes the nation’s commitment to land reform, and to reforms to bring about equitable access to all South Africa’s natural resources; and property is not limited to land.

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

Notes to pages –

The state must take reasonable legislative and other measures within its available resources, to foster conditions which enable citizens to gain access to land on an equitable basis. A person or community whose tenure of land is legally insecure as a result of past racially discriminatory laws or practices is entitled, to the extent provided by an Act of Parliament, either to tenure which is legally secure or to comparable redress. A person or community dispossessed of property after  June  as a result of past racially discriminatory laws or practices is entitled, to the extent provided by an Act of Parliament, either to restitution of that property or to equitable redress. No provision of this section may impede the state from taking legislative and other measures to achieve land, water and related reform, in order to redress the results of past racial discrimination, provided the that any departure from this section is in accordance with the provisions of section (). Parliament must enact the legislation referred to in subsection (). . Section . See First National Bank of SA Ltd t/a Wesbank v. Commissioner, South African Revenue Service  () SA  (CC). See also T. Roux Property in Constitutional Law of South Africa (S. Woolman, T. Roux, and M. Bishop eds., nd ed., Original Service ) chapter . . Section . . Section . . Section . . Sections  and . . Sections  and , respectively. . Section . . Section . . Section . . Section ()(a). . Section ()(b). . Section ()(a). . Fose v. Minister of Safety and Security  () BCLR (CC);  () SA  (CC), para , as confirmed in National Coalition for Gay and Lesbian Equality v. Minister of Home Affairs  () BCLR  (CC);  () SA  (CC), para . . See, for example, Ferreira v. Levine NO; Vreyenhoek v. Powell NO  () BCLR  (CC);  () SA  (CC) para . . See, for example, National Coalition for Gay and Lesbian Equality v. Minister of Home Affairs  () BCLR  (CC);  () SA  (CC), para ; and see the discussion at paras –. . Id., at para , and the authorities referred to therein. . Id. . Abstract review of parliamentary statutes is dealt with in sections  and  of the Constitution, and the abstract review of provincial statutes in sections  and . . Section . . Section .

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Notes to pages –



. Quoted in Davenport, South Africa: A Modern History  (nd ed,, ). . Act  of . . Section  of the Constitution reads as follows: () 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, ex, 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 (). National legislation must be enacted to prevent or prohibit unfair discrimination. () Discrimination on one or more of the grounds listed in subsection () is unfair unless it is established that the discrimination is fair. . Prinsloo v. Van der Linde  () SA  (CC), para . . National Coalition for Gay and Lesbian Equality v. Minister of Justice  () BCLR  (CC);  () SA  (CC), paras –. . In section (). . In section (). . Act  of . . An instructive article on restitutive equality is that of Pretorius, “Constitutional Standards for Affirmative Action in South Africa: A Comparative Overview” in ZaöRV (the Heidelberg Journal for International Law) Band  () Nr. –, . . Ackermann, “Equality and the South African Constitution” in ZaöRV (the Heidelberg Journal for International Law) Band  () Nr. –,  at –. Compare Henkin, Human Dignity and Human Rights () . . Which, in its relevant part, reads: The rights in this Bill of Rights may be limited . . . to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including— the nature of the right; the importance of the purpose of the limitation; the nature and extent of the limitation; the relation between the limitation and its purpose; and less restrictive means to achieve the purpose. . I refer in particular to his seminal articles, Shelley v. Kraemer: Notes for a Revised Opinion (hereafter Notes) in  U. Pa. L Rev.  (), and Infallibility Under Law: Constitutional Balancing  Colum L Rev  ().

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

Notes to pages –

. Compare Henkin, Notes and Infallibility Under Law, id. . In Shelley v. Kraemer,  US  (), on analogous facts, the United States Supreme Court unanimously reversed the judgments of state courts enforcing the racist restrictive covenant. See the discussion accompanying note  infra. . Under s () of the  Constitution and the corresponding provisions of the IC. . See Carmichele v. Minister of Safety and Security and Minister of Justice and Constitutional Development  () BCLR  (CC);  () SA  (CC), paras –  and –. . Under section  of the Constitution. . Under section  of the Constitution. . The norm formulated in section () of the Constitution’s limitation clause. . Henkin, Notes (note  supra), . . Id., at . . Id. .  US  (). . See, for example, those by Wechsler, Towards Neutral Principles of Constitutional Law  Harvard LR  (); The Nature of Judicial Reasoning in Law and Philosophy  (Hook ed., nd ed., ); Henkin, Some Reflections on Current Constitutional Controversy  U Pennsylvania LR  (), and Notes, note  supra; and Greenawalt, The Enduring Significance of Neutral Principles  Columbia LR  (). Although the decision in Shelley must be seen in the context of the fourteenth amendment “state action” (verticality only) doctrine with which it was dealing, the depth of treatment of the issues of equality and principled neutral reasons for constitutional adjudication in these articles are relevant to equality adjudication under the South African Constitution, and in particular to issues of horizontality. . Wechsler, The Nature of Judicial Reasoning (note  supra), . . Wechsler, Towards Neutral Principles of Constitutional Law (note  supra), . . See note  supra. . First, he explains that “[a] person gives a neutral reason, in Wechsler’s sense, if he states a basis for a decision that he would be willing to follow in other situations to which it applies” (id., at ), and he illustrates this idea of neutral principle with the following example (id.): A says, “Communists should be allowed to preach Marxist doctrine because everyone has a right to say what he believes as long as he does not encourage imminent criminal acts.” If A would deny a person urging that whites are innately superior to the members of other races the right to speak, then the reason he asserts in defense of the Communist is not one which A subscribes to as a neutral principle. Second, he agrees that the principles must be adequately general and neutral and must “reach out beyond the narrow circumstances of the case . . . If an opinion is so limited to the facts that the reasoning gives little or no guidance as to how related situations would be treated, . . . [it] fails the criterion of generality” (ibid. at –). Third, he makes the point that, although certain legal standards may refer judges to open-ended assessments of morality or social

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Notes to page 



desirability, and that such assessments may have to be made when a judge is deciding between differing possible legal standards, “the legal materials may preclude altogether or greatly affect the weight of a principled argument of considerable moral force” (ibid at ). Fourth, he emphasises that principled decision-making must extend to the resolution of all the issues in the case (ibid). His final proposition is that a court should, in its judgment, furnish its real grounds of decision and should articulate all of them (ibid at ). He further discusses, for example, the limits of Wechsler’s thesis, the importance of neutral principles, a defence of their attainability, broader theories of judicial responsibility in constitutional adjudication, and so forth. . Compare Greenawalt (note  supra), . . Section  provides as follows: () No one can be deprived of property except in terms of law of general application, and no law may permit arbitrary deprivation of property. Property may be expropriated only in terms of law of general application for a public purpose or in the public interest; and subject to compensation, the amount of which and the time and manner of payment of which have either been agreed to by those or decided or approved by a court. The amount of the compensation and the time and manner of payment must be just and equitable, reflecting an equitable balance between the public interest and the interests of those affected, having regard to all relevant circumstances, including: the current use of the property; the history of the acquisition and use of the property; the market value of the property; the extent of direct state investment and subsidy in the acquisition and beneficial capital improvement of the property; and the purpose of the expropriation. For the purposes of this section— the public interest includes the nation’s commitment to land reform, and to reforms to bring about equitable access to all South Africa’s natural resources; and property is not limited to land. The state must take reasonable legislative and other measures within its available resources, to foster conditions which enable citizens to gain access to land on an equitable basis. A person or community whose tenure of land is legally insecure as a result of past racially discriminatory laws or practices is entitled, to the extent provided by an Act of Parliament, either to tenure which is legally secure or to comparable redress. A person or community dispossessed of property after  June  as a result of past racially discriminatory laws or practices is entitled, to the extent provided by an Act of Parliament, either to restitution of that property or to equitable redress.

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

Notes to pages –

No provision of this section may impede the state from taking legislative and other measures to achieve land, water and related reform, in order to redress the results of past racial discrimination, provided the that any departure from this section is in accordance with the provisions of section (). Parliament must enact the legislation referred to in subsection (). . First National Bank of SA Ltd t/a Wesbank v. Commissioner, South African Revenue Service  () BCLR ;  () SA  (CC). . Id., at para . . Id., at para . . Van der Walt, The Constitutional Property Clause – (). . First National Bank of SA Ltd t/a Wesbank v. Commissioner, South African Revenue Service  () BCLR ;  () SA  (CC), para . . See id. at paras –, and in particular the summary in paras –. . Id., at para –. . Id., at para  as follows: (a) Its is to be determined by evaluating the relationship between means employed, namely the deprivation in question and ends sought to be achieved, namely the purpose of the law in question. (b) A complexity of relationships has to be considered. (c) In evaluating the relationship in question, regard must be had to the relationship between the purpose for the deprivation and the person whose property is affected. (d) In addition, regard must be had to the relationship between the purpose of the deprivation and the nature of the property as well as the extent of the deprivation I respect of such property. (e) Generally speaking, where the property in question is ownership of land or a corporeal moveable, a more compelling purpose will have to be established in order for the depriving law to constitute sufficient reason for the deprivation than in the case when the property is something different and the property right something less extensive. This judgment is not concerned at all with incorporeal property. (f ) Generally speaking, when the deprivation in question embraces all the incidents of ownership, the purpose for the deprivation will have to be more compelling than when the deprivation only some incidents of ownership and those incidents only partially. (g) Depending on such interplay between variable means and ends, the nature of the property in question and the extent of its deprivation, there may be circumstances when sufficient reason is established by, in effect, no more than a mere rational relationship between means and ends; in others this might only be established by a proportionality evaluation closer to that required by [the limitation section] section () of the Constitution. (h) Whether there is sufficient reason to warrant the deprivation is a matter to be decided on all the relevant facts of each particular case, always bearing in

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Notes to pages –



mind that the enquiry is concerned with “arbitrary” in relation to the deprivation of property under section . . Id., at subpara (g). . Section . . Act  of . . First National Bank of SA Ltd t/a Wesbank v. Commissioner, South African Revenue Service  () BCLR ;  () SA  (CC), paras –. . Id., at paras  and –. . Id., at para . . See Alexkor Ltd v. The Richtersveld Community  () BCLR  (CC), paras –. . Act  of . . Alexkor Ltd v. The Richtersveld Community  () BCLR  (CC). . Id., at para . . Id. . For an analysis of socio-economic rights under the Constitution, see Justice Z Yacoob, The Entrenchment and Enforcement of Socio-Economic Rights, an unpublished paper delivered at the International Judges’ Conference at Johannesburg on March – , , to mark the inauguration of the new building for the Constitutional Court of South Africa. Five basic elements, relating to the judicial review of the reasonableness of state measures under the guarantee of access to adequate housing, are identified. First, a reasonable housing program must involve all spheres of government. Second, to be reasonable it must be capable of realizing the right. Third, a program to be reasonable must be reasonably implemented. Fourth, the reasonableness of housing measures is to be considered in the light of their social, economic, and historical context and the capacity of institutions responsible for their implementation. Fifth, reasonableness must be understood in the context of the whole of the Bill of Rights, having regard also to the basic needs of people and the value we attach to their humanity, and the degree and extent of the denial of the rights the program endeavors to address; the needs of the most desperate may not be ignored because a statistical advance has been achieved in the realization of the right. For an interesting discussion and analysis of the judgment of the court on the right to access to adequate housing in Government of the Republic of South Africa v. Grootboom  () BCLR  (CC), see Sunstein, Designing Democracy – (). . Article  of the Covenant. . Section (). . Section ()(d). . Section (). . Section ()(a). . Section ()(g). . See Holmes and Sunstein, The Cost of Rights: Why Liberty Depends on Taxes (). . S v. Dodo  () BCLR  (CC);  () SA  (CC), para . . Tribe, American Constitutional Law vol. ,  (rd ed., ) (footnoted omitted).

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Notes to pages –

. S v. Dodo  () BCLR  (CC);  () SA  (CC), para . . Minister of Health v. Treatment Action Campaign (No )  () BCLR  (CC);  () SA  (CC). . Id., at para . See generally, in this regard, paras –. DIGNITY JURISPRUDENCE: BUILDING A NEW LAW ON EARTH Roger Berkowitz . R. v. Salituro, []  S.C.R., . . C. J. Friedrich. The Political Theory of the New Democratic Constitutions,  The Review of Politics ,  (). . Id.,  . Id., . . I am indebted to Alfred Barnard for emphasizing this point. . Hannah Arendt, The Origins of Totalitarianism ix (Harvest Book ). . Dennis Davis, Equality. The Majesty of Legoland Jurisprudence,  SALJ – (). . Plato, The Republic b (Paul Shorey trans., Harvard University Press ). . John Sallis, Platonic Legacies  (State University of New York Press ). . Allen Wood, Human Dignity, Right and the Realm of Ends in Dignity, Freedom, and the Post-apartheid Legal Order  (Aj Barnard-Naudé, Drucilla Cornell, and François Du Bois eds., JUTA & CO LTD ). . “die vernünftige Natur existiert als Zweck an sich selbst (the rational being exists as an end in itself ).” Immanuel Kant, Grundlegung Zur Metaphysik Der Sitten  (Karl Vorländer ed., Felix Meiner, ). . Wood, . . Kant, . . Ronald Dworkin, Is Democracy Possible Here?  (Princeton University Press ). . Id., . . Amy Gutmann, introduction to Michael Ignatieff, Human Rights As Politics and Idolatry xxiii (Amy Gutmann ed., Princeton University Press ). . Michael Ignatieff, Human Rights as Politics and Idolatry (Amy Gutmann ed., Princeton University Press ). . Robert Post, Democracy and Equality  J. of Law, Culture and the Humanities – (). . Jürgen Habermas, Between Facts and Norms (William Rehg trans., MIT Press ). . Étienne Balibar, Is a Philosophy of Human Civic Rights Possible? New Reflections on Equaliberty The South Atlantic Quarterly  (Spring/Summer ). Citing Habermas, . . Habermas, –. . Balibar, . Citing Habermas, –. . Arendt, The Origins of Totalitarianism, . . Id., ix. . Id., .

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Notes to pages –



. Id., . For scholarly commentary on Arendt’s claim, see: Seyla Benhabib, The Reluctant Modernism of Hannah Arendt xxxiii,  (Sage Publications ); Dana Villa, Politics, Philosophy, Terror  (Princeton University Press ); Margaret Canovan, Hannah Arendt: A Reinterpretation of Her Political Thought – (Cambridge University Press ). See also, Peg Birmingham, Hannah Arendt and Human Rights (Indiana University Press ). . Arendt, The Origins of Totalitarianism, . . Peg Birmingham, Hannah Arendt and Human Rights (Indiana University Press ). . Hannah Arendt, The Human Condition (nd ed., University of Chicago Press ). . Birmingham, . . Id., . . Id., . . Id., . . Roger Berkowitz, Revolutionary Constitutionalism: Some Thoughts on Laurie Ackermann’s Jurisprudence in Dignity, Freedom, and the Post-apartheid Legal Order –  (Aj Barnard-Naudé, Drucilla Cornell, and François Du Bois eds., JUTA & CO LTD ). . Ralph Waldo Emerson, Nature in Nature Addresses and Lectures and Letters and Social Aims  (Houghton Mifflin, ). THE ARCHITECTURE OF DIGNITY Stu Woolman . L. W. H. Ackermann, The Legal Nature of the South African Constitutional Revolution  New Zealand L. Rev.  (). . See S. Liebenberg, The Value of Human Dignity in Interpreting Socio-Economic Rights  SAJHR  (). (Respect for human dignity requires society to respect the equal worth of the poor by marshalling its resources to redress the conditions that perpetuate their marginalization.) . Dignity dominates our literary as well as our legal history. It is, arguably, the chief leitmotif of J. M. Coetzee’s work. From the halting efforts of the magistrate to “see” his blind concubine in Waiting for the Barbarians, to the death march of the protagonist in Life and Times of Michael K., to the respect accorded animals in Disgrace and Elizabeth Costello, to the demand that we bear witness to the pain, as well as the struggle for autonomy, of a fictional character in Slow Man, Coetzee asks that we do more than acknowledge the existence of our fellow beings—human, animal, fictive. They may not be entitled to our love—they may, indeed, be unlovable—but they are all entitled to their dignity. Moreover, the dignity of which Coetzee speaks follows an arc of widening obligation strikingly similar to the constitutional concerns that animate this chapter. He moves, over time, from dignity as the refusal to turn away, to dignity as the formal recognition of others as ends, to dignity as the capacity to see others as they see themselves— a challenge that is especially great when that other is neither human nor animal, but, as in the case of Paul Rayment, entirely fictional. As to the phrase “qualitative perfection of

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Notes to page 

humanity,” I have here in mind the constellation of features captured by the terms mensch (Yiddish) or Menschlichkeit (German). These terms represent a goal of every human being: to rise above our passions and, in every moral transaction, to attempt to turn ourselves, as Henry James said, into persons “upon whom nothing is lost.” See H. James, The Art of the Novel  (). . Such potted histories necessarily verge on caricature. As a corrective, Laurie Ackermann suggests that a historical account of dignity’s South African roots must take note of another endogenous source: the Roman-Dutch law of personality. See L. W. H. Ackermann The Significance of Human Dignity for Constitutional Jurisprudence (Lecture, Stellenbosch Law Faculty, August , ) (manuscript on file with author) section . (Personality rights include the rights to dignity, life and bodily integrity, physical liberty, autonomy, reputation, feelings, privacy, self-realization and identity.) See also J. Neethling, J. M. Potgeiter, and P. J. Visser Neethling, Law of Personality – (nd ed., ); W. A. Joubert, Grondslae van die Persoonlikheidsreg (); Whittaker v. Roos and Bateman; Morant v. Roos and Bateman  AD , ; Universiteit van Pretoria v. Tommie Meyer Films (Edms) Bpk  () SA  (T), ; Jansen van Vuuren & Another NNO v. Kruger  () SA  (A), ; National Media Ltd. v. Jooste  () SA  (A), . Other authors have suggested that the African concept of uBuntu and dignity draw on quite similar moral intuitions. See Y. Mokgoro, Ubuntu and the Law in South Africa  Buffalo Human Rights L. Rev.  (); D. Cornell, A Call for a Nuanced Jurisprudence  SA Public Law  (); M. Pieterse, Traditional’ African Jurisprudence in Jurisprudence  (C. Roederer and D. Moellendorf eds., ); I. G. Kroeze, Doing Things with Values (Part ): The Case of Ubuntu  Stellenbosch L. Rev.  (); R. English, Ubuntu: The Quest for an Indigenous Jurisprudence  SAJHR  (). See also S v. Makwanyane  () SA  (CC),  () BCLR  (CC),  () SACR  (CC) at paras –. Justice Langa writes: “[uBuntu captures, conceptually,] a culture which places some emphasis on communality and on the interdependence of the members of a community. It recognises a person’s status as a human being, entitled to unconditional respect, dignity, value and acceptance from the members of the community such a person happens to be part of. It also entails the converse, however. The person has a corresponding duty to give the same respect, dignity, value and acceptance to each member of that community. More importantly, it regulates the exercise of rights by the emphasis it lays on sharing and co-responsibility and the mutual enjoyment of rights by all.” . For both the drafters of the Final Constitution and for Kant, the ideal basic law attempts to give adequate effect to three—sometimes covalent, sometimes conflicting— “ideas”: dignity, equality, and freedom. Of this ideal basic law, Kant writes: Surely an organization consisting of the greatest human freedom according to the laws through which the freedom of each can coexist with that of the others (not an organization consisting of the greatest happiness, for this will no doubt follow on its own) is at least a necessary idea. It is an idea that we must lay at the basis not merely in first drafting a political Constitution, but also in all laws; and in so doing we must initially abstract from the present obstacles, which perhaps may not so much arise inevitably from human nature, as arise, rather, from

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

our neglecting the genuine ideas in making laws. (Immanuel Kant, Critique of Pure Reason  [W. Pluhar trans., ]). . The Kantian nature of our “dignity” jurisprudence is dealt with at length elsewhere in this book by Drucilla Cornell, Sam Fuller, Roger Berkowitz, and Lourens Ackermann. It is worth noting, before I address the content of contemporary case law, that despite the rather conservative cast of many of Kant’s actual political positions—his opposition to suicide and his support for the death penalty—and some rather mystical and outré metaphysical commitments (such as his commitment to a noumenal free will)—contemporary philosophers are willing and able “to transpose Kant’s writing, hearing them in a different key . . . from that in which they were originally written.” A. W. Wood, What is Kantian Ethics in I. Kant, Groundwork of the Metaphysics of Morals  (A. W. Wood ed. and trans., ). . The former chief justice of the Constitutional Court has acknowledged South Africa’s debt to post–World World II constitutional jurisprudence. See A. Chaskalson Human Dignity as a Foundational Value of our Constitutional Order  SAJHR ,  (): “The affirmation of human dignity as a foundational value of the constitutional order places our legal order firmly in line with the development of constitutionalism in the aftermath of the second world war.” . A. Ryan, After the Fall: Judt’s Postwar: A History of Europe Since  LII New York Review of Books , ,  (November , ). . For an example of dignity’s simultaneous application as a rule-generating right, a correlative right and a value, see Moseneke and Others v. The Master  () SA  (CC),  () BCLR  (CC) at paras –. Provision of Black Administration Act providing that Master of High Court had no power to handle intestate estates of black South Africans found to be both a limitation of FC section —equality—because it “assails the dignity of those concerned” and a “limitation of the right to dignity in [FC] s .” Neither limitation could be justified in a state based upon the values of “human dignity, equality and freedom.” Different judges have used dignity in different ways to resolve the very same dispute. See Daniels v. Campbell  () SA  (CC),  () BCLR  (CC). Majority uses dignity as a value to engage in statutory interpretation that permits Intestate Succession Act to be read in conformity with the Final Constitution. Justice Moseneke, in dissent, found that the right to equality and the right to dignity had been violated, and that any legislative remedy for the violation must conform with such foundational values as dignity. Thus, dignity functions in these two judgments in the very same case as a first-order rule, a second-order rule, a correlative right, a value, and a Grundnorm. . John Finnis somewhat cheekily observes that “the rule of law” is “the name commonly given to the state of affairs in which a legal system is legally in good shape.” John Finnis, Natural Law and Natural Rights  (). But a commitment to the rule of law alone and to the formal features of law identified with it—is a necessary but not a sufficient condition for a just or a fair society. For more on those formal criteria, see S. Woolman and H. Botha, Limitations in Constitutional Law of South Africa chapter  (S. Woolman, T. Roux, and M. Bishop eds., nd ed., ). As Finnis notes, regimes that are exploitative or ideologically fanatical (or some mixture of the two) could submit themselves to the constraints imposed by the rule of law if it served the realization of

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Notes to pages –

their narrow conception of the good. Indeed, both Stephen Ellmann and David Dyzenhaus argue persuasively that the South African government under apartheid was an exploitative and ideologically fanatical regime committed to the rule of law. See S. Ellmann, In a Time of Trouble: Law and Security in South Africa’s State of Emergency (); D. Dyzenhaus, Hard Cases in Wicked Legal Systems: South African Law in the Perspective of Legal Philosophy (). See also J. Dugard, Human Rights and the South African Legal Order (). Here then are two additional points about the limits of a positivist account. Although the rule of law did constrain the apartheid state—and even allowed for a cramped conception of human rights—few would allow that it was fair or just. What it was missing was any respect for individual dignity and the attendant sense that the purpose of state was to assist all persons to “constitute themselves in community” (Finnis, Natural Law, –). In addition, although the two most important constitutional doctrines developed by the Constitutional Court in its first decade of operation turn on a substantive conception of the rule of law and an account of dignity that makes it a Grundnorm for the Final Constitution, those two doctrines alone are insufficient to guarantee the legitimacy of the new regime. For more on the rule of law, see F. Michelman, The Rule of Law, Legality and the Supremacy of the Constitution in Constitutional Law of South Africa chapter  (S. Woolman, T. Roux, and M. Bishop eds., nd ed., February ). . For more on the court’s use of the term “objective, normative value order,” see S. Woolman, Application, in Constitutional Law of South Africa chapter  (S. Woolman, T. Roux, and M. Bishop eds., nd ed., July ). . Ackermann, Legal Nature, . See also A. W. Wood, Humanity as an End in Itself in Critical Essays on Kant’s Groundwork of the Metaphysics of Morals ,  (P. Guyer ed., ). Wood defines the term “individual as an end-in-itself ” as “an end with absolute worth or (as Kant also says) dignity, something whose value cannot be compared to, traded off against, or compensated for or replaced by any other value.” . As a technical matter, Kant actually rejects the golden rule as a maxim for ethical action. See I. Kant, Groundwork of the Metaphysics of Morals – (A. W. Wood trans. and ed., ). He does so because the golden rule permits our individual inclinations to determine outcomes (“as you would have them do onto you”) and does not require the attempt at moral perfection (through reason) demanded by the procedures associated with the categorical imperative. See T. W. Pogge, The Categorical Imperative in Critical Essays on Kant’s Groundwork of the Metaphysics of Morals ,  (P. Guyer ed., ) For Kant, “the categorical imperative is not a version of the Golden Rule.” See also J. Rawls, Lectures on the History of Moral Philosophy  (). . See C. Lamore, Patterns of Moral Complexity (). . O. Schachter, Human Dignity as a Normative Concept  American J. of Int. L. ,  () (emphasis added). . See S. Woolman and M. Bishop, Slavery, Servitude and Forced Labour in Constitutional Law of South Africa chapter  (S. Woolman, T. Roux, and M. Bishop eds., nd ed., February ). . For more on the relationship between dignity and sentencing, see D. Van Zyl Smit, Sentencing and Punishment in Constitutional Law of South Africa chapter  (S. Woolman, T. Roux, and M. Bishop eds., nd ed., December ).

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Notes to pages –



. See President of the Republic of South Africa v. Hugo  () SA  (CC),  () BCLR  (CC) at para : “[T]he purpose of our new constitutional and democratic order is the establishment of a society in which all human beings will be accorded equal respect regardless of their membership in particular groups.” . L. W. H. Ackermann, Equality under the  South African Constitution in Gleichheit und Nichtdiskriminierung im Nationalen und Internationalen Menschenrechtssschutz  (Rüdiger Wolfrem ed., ). See also Law v. Canada (Minister of Employment and Immigration) ()  DLR th  (SCC) at para : “Human dignity is harmed when individuals and groups are marginalized, ignored or devalued, and is enhanced when laws recognize the full place of all individuals and groups within Canadian society.” . Ferreira v. Levin  () SA  (CC),  () BCLR  (CC) at para . . The majority in Ferreira rejected Justice Ackermann’s view that IC section () and FC section () contain a robust, self-standing freedom right (id. at paras – ; Chaskalson P). The Constitutional Court accepted, subsequently, Justice Ackermann’s thesis that dignity (FC section ) is meant to secure the space for self-actualization (autonomy). However, this characterization of self-actualization turns not on a commitment to political participation (Dignity ) or to social entitlements (Dignity )—also known as “positive liberty” or “freedom to”—but primarily on a commitment to limiting state power—also known as negative liberty or “freedom from.” The court’s conception of dignity qua freedom (autonomy) is elaborated in a series of early equality cases. See, for example, Hugo at para  (“dignity is at the heart of individual rights in a free and democratic society”); Prinsloo v. Van der Linde  () SA  (CC),  () BCLR  (CC); National Coalition for Gay and Lesbian Equality v. Minister of Justice  () SA  (CC),  () BCLR  (CC) (hereafter cited as NCGLE I). See also N. Haysom, Dignity in South African Constitutional Law: The Bill of Rights – (H. Cheadle, D. Davis, and N. Haysom eds., ). . See S. Woolman, The Selfless Constitution: Experimentalism and Flourishing as the Foundations of South Africa’s Basic Law (). D. Cornell, A Call for a Nuanced Constitutional Jurisprudence: Ubuntu, Dignity and Reconciliation  SA Public Law ,  (): “[I]f we give Kantian dignity its broadest meaning, it is not associated with our actual freedom but with the postulation of ourselves as beings who not only can, but must, confront . . . ethical decisions, and in making those decisions . . . give value to our world.” . See B. Williams, The Idea of Equality in Philosophy, Politics and Society  (P. Laslett and W. G. Runciman eds., ). Williams argues that the entitlement to equal treatment flows from the recognition that others have narratives (like our own) that shape their lives, that the pursuit of the ends in such narratives give life its meaning and that equal treatment requires that a person possess the material means necessary to make the pursuit of such ends genuinely possible. . For what such equal treatment in a democracy requires, see T. Roux, Democracy in Constitutional Law of South Africa chapter  (S. Woolman, T. Roux, and M. Bishop eds., nd ed., July ). . August v. Electoral Commission  () SA  (CC),  () BCLR  (CC) at para  (emphasis added).

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

Notes to pages –

. See Minister of Home Affairs v. National Institute for Crime Prevention  () SA  (CC),  () BCLR  (CC); New National Party of South Africa v. Government of the Republic of South Africa  () SA  (CC),  () BCLR  (CC). . See Prince v. Law Society  () SA  (CC),  () BCLR  (CC); S v. Jordan & Others (Sex Workers Education and Advocacy Task Force & Others as Amici Curiae)  () SA  (CC),  () BCLR  (CC); De Reuck v. Director of Public Prosecutions, Witwatersrand Local Division  () SA  (CC),  () BCLR  (CC); Volks v. Robinson  () BCLR  (CC). Justice Sachs, in dissent in both Prince and Volks, and as the author of Fourie, has begun to adumbrate a jurisprudence that values the meaning of nondominant associations to their participants, but does not threaten the general principles to which the Final Constitution commits us. See Prince at para : “[W]here there are [religious] practices that might fall within a general legal prohibition, but that do not involve any violation of the Bill of Rights, the Constitution obliges the State to walk the extra mile”; and to find adequate means— perhaps a carefully constructed exemption—of accommodating the practice at issue. See also Volks (supra) at paras  and . Justice Sachs rejects the majority’s finding that the appellant, “having chosen cohabitation rather than marriage . . . must bear the consequences” and thus could not avail herself of the benefits of the Maintenance of Surviving Spouses Act. He contends that: “Respecting autonomy means giving legal credence not only to a decision to marry but to choices that people make about alternative lifestyles. Such choices may be freely undertaken, either expressly or tacitly. Alternatively, they might be imposed by the unwillingness of one of the parties to marry the other. Yet if the resulting relationships involve clearly acknowledged commitments to provide mutual support and to promote respect for stable family life, then the law should not . . . penalise or ignore them because they are unconventional. It should certainly not refuse them recognition because of any moral prejudice, whether open or unconscious, against them”; Minister of Home Affairs and Another v. Fourie and Another; Lesbian and Gay Equality Project v. Minister of Home Affairs CCT /; CCT / (unreported decision of December , ). . To be clear, and fair, the Constitutional Court never dismisses cavalierly the interests of a vulnerable class of persons. The point is, rather, that traditional mores inform—sometimes more and sometimes less—explicitly the reasoning of the court. So, for example, the court in Jordan concludes that the criminalization of prostitution could not be said to impair the dignity of the prostitute because “the diminution arose from the character of prostitution itself ” (Jordan at para ). And since prostitutes choose this ignominious fate, the court continues, they have no one to blame for the stigma that attaches to their profession but themselves (id. at paras  –): “If the public sees the recipient of reward as being ‘more to blame’ than the ‘client’, and a conviction carries a greater stigma on the ‘prostitute’ for that reason, that is a social attitude and not the result of the law. The stigma that attaches to prostitutes attaches to them, not by virtue of their gender, but by virtue of the conduct they engage in.” But see, for example, Fourie at paras –. Justice Sachs writes: “Equality . . . does not presuppose . . . suppression of difference . . . Equality . . . does not imply . . . homogenization of behavior. . . . [T]here are a number of constitutional provisions that underline the constitutional value of acknowledging diversity and pluralism in our society, and give a particular

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Notes to pages –



texture to the broadly phrased right to freedom of association contained in section . Taken together, they affirm the right of people to self-expression without being forced to subordinate themselves to the cultural and religious norms of others, and highlight the importance of individuals and communities being able to enjoy what has been called the ‘right to be different.’ In each case, space has been found for members of communities to depart from a majoritarian norm.” . See Port Elizabeth Municipality v. Various Occupiers  () SA  (CC),  () BCLR  (CC) at para  (emphasis added). . Khosa v. Minister of Social Development  () SA  (CC),  () BCLR  (CC) at para . The court’s language echoes Rawls’s description of a Kantian “realm of ends” in which everyone recognizes everyone else as not only honoring their obligation of justice and duties of virtue, but also, as it were, legislating law for their moral commonwealth. For all know that they are reasonable and rational, and that this fact is mutually recognized. See Rawls, Lectures, . See also S. Hoctor, Dignity, Criminal Law and the Bill of Rights  SALJ ,  (): “Dignity has a communitarian aspect: by requiring respect for others’ claims to dignity, vindication of the human dignity of all is better assured, and a community of mutual co-operation and solidarity is fostered.” . In two High Court judgments, the general public’s right to receive information (Dignity ) trumped the rather attenuated privacy claims of individuals who asserted a right to withhold information (Dignity ). See S v. Dube  () SA  (N); MEC for Health, Mpumalanga v. M-Net  () SA  (T). . One exception is S v. Makwanyane, where Justice Langa connects uBuntu with the dignity of individuals and the solidarity of the community: [Ubuntu exists in] a culture that places some emphasis on communality and on the interdependence of the members of a community. It recognizes a person’s status as a human being, entitled to unconditional respect, dignity, value and acceptance from the members of the community such a person happens to be part of. It also entails the converse, however. The person has a corresponding duty to give the same respect, dignity, value and acceptance to each member of that community. More importantly, it regulates the exercise of rights by the emphasis it lays on sharing and co-responsibility and the mutual enjoyment of rights by all. (Makwanyane at paras –) . Aristotle, Nichomachean Ethics Bk I, paras ,  (D. Ross trans., ). . A. Sen, Development as Freedom  (). . Id., . . In a lecture in , Justice Ackermann offers a working definition of dignity that resonates with at least four of the five definitions of dignity adumbrated in these pages: I would define Human dignity as follows: It is a concept comprising all those aspects of the human personality that arise from human intellectual and moral capacity; which in turn separate humans from the impersonality of nature, enables them to exercise their own judgment, to have self-awareness and a sense of self-worth, to exercise self-determination, to shape themselves and nature, to

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

Notes to pages –

develop their personalities and to strive for self-fulfillment in their lives. I have modeled this on the classic German concept propounded by Prof Günter Dürig in the s: “Jeder Mensch ist Mensch kraft seines Geistes, der ihn abhebt von der unpersönlichen Natur und ihn aus eigner Entscheidung dazu befähigt, seiner selbst bewußt zu werden, sich selbst zu bestimmen und sich und die Umwelt zu gestalten.” I have somewhat broadened his exposition by introducing the desire for self-fulfillment, in preference to the word “happiness” . . . I have also added the individual’s own sense of self-worth as an aspect of human personality; for when a person is dealt with in a demeaning way, . . . the observer can actually experience the impairment of the victim’s sense of self-worth. Criticism of another provides a subtle example. No matter how justified, objectively, the content of criticism might be, if it is delivered in an insulting or demeaning way, it unjustly impairs the victim’s legitimate sense of self-worth as a human being. See L. W. H. Ackermann, The Significance of Human Dignity for Constitutional Jurisprudence (Lecture, Stellenbosch Law Faculty, August , ) (manuscript on file with author) section , quoting G. Dürig, Der Grundrechtssatz von der Menschenwürde  Archiv für öffentliches Recht ,  (): “All humans are human by virtue of their intellectual capacity (‘kraft seines Geistes’) which serves to separate them from the impersonality of nature and enables them to exercise their own judgment, to have selfawareness, to exercise self-determination and to shape themselves and nature” (Ackermann’s translation). . Government of the Republic of South Africa and Others v. Grootboom and Others  () SA  (CC),  () BCLR  (CC) at para  (emphasis added). . Dawood & Another v. Minister of Home Affairs and Others  () SA  (CC),  () BCLR  (CC) at para  (emphasis added). . It is worth noting that even judges comfortable with the common law and quite uncomfortable with constitutional development of that body of law still recognize that the protection afforded individuals under FC section —and elsewhere in the Final Constitution—is substantially broader than the notion of dignitas that animates the actio injuriarum. See, for example, Dendy v. University of the Witwatersrand  () SA  (W). In Dendy, the High Court found no need to develop the common law in light of FC section  (a rule-generating right [a case dispositive right]) or FC section () (a right informing right [a rule-informing right]). The Dendy court simply noted, in passing, that in these circumstances dignity functions as a residual right (correlative right). Id. at para . . Dawood at para . What happens, then, when the court finds that law or conduct has violated both FC section  and some other right in chapter ? As I note in the section on dignity as a correlative right, when dignity and another right are both are violated, the content of that other right—at least in so far as the particular challenge is concerned—would appear to be a particular manifestation of the right to dignity at the same time as it is informed by the value of dignity. . Id. See also Booysen v. Minister of Home Affairs and Another  () SA  (CC),  () BCLR  (CC); Daniels v. Campbell  () SA  (CC),  () BCLR  (CC). Justice Moseneke, in dissent, found that the statutory provisions and common law rules in question constituted an affront to the dignity of all persons married

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Notes to pages –



under Muslim law and, consistent with the finding in Dawood, undermined their capacity to enjoy the full benefits of their intimate association. . See Petersen v. Maintenance Officer, Simon’s Town  () SA  (C),  () BCLR  (C). The High Court found that the common law’s differentiation between children born in wedlock and children born out of wedlock, which only placed duty of support on paternal grandparents for children born in wedlock, violated the right to dignity, the right to equality, and the best interests of the child. . See S v. Pienaar  () BCLR  (NC) at para  (Failure to acknowledge difference in language, and to ignore the speaker, may violate the speaker’s right to dignity); Advance Mining Hydraulics v. Botes NO  () SA  (T),  () BCLR ,  (T). Right to dignity requires, at the very least, that “persons be treated as recipients of rights and not as objects subjected to statutory mechanisms without a say in the matter.” The presiding officer’s failure to warn an examinee—in a section  inquiry—of his right to legal representation before compelling him to answer questions he did not understand constituted a “blatant affront” to the examinee’s dignity. . In this regard—the disposal of specific disputes—dignity as a second-order rule differs from dignity as a value. As I will demonstrate in my discussion of the court’s equality cases, the effect of law or conduct on the dignity of the complainant determines, in part, whether differentiation counts as discrimination and whether discrimination amounts to unfair discrimination. The repeated invocation of the Harksen test by the court in equality cases, and the Harksen test’s appraisal of the impairment of the complainant’s dignity as a second step in its calculus of unfair discrimination turns dignity into a second order rule. Similarly, where a punishment is so disproportionate to the crime as to turn a convict into a mere signal in a larger system of social control, the court will find that the dignity of the convict is impaired. This impairment of the convict’s dignity may then support a finding that the sentence imposed on the prisoner constitutes cruel, inhuman or degrading punishment. Again, the rule that disproportional punishment impairs the dignity of a person determines, in part, whether the court will find that a violation of FC section  has occurred. . See Moseneke and Others v. The Master  () SA  (CC),  () BCLR  (CC) at paras  and . Provision of Black Administration Act providing that Master of High Court had no power to handle intestate estates of black South Africans held to be both an unjustifiable impairment of FC section —Equality—because it “assails the dignity of those concerned” and an unjustifiable “limitation of the right to dignity in [FC] section .” . S v. Jordan  () SA  (CC),  () BCLR  (CC) at paras –. . Bhe v. Magistrate, Khayelitsha  () SA  (CC),  () BCLR  (CC). . National Coalition for Gay and Lesbian Equality v Minister of Justice  () SA  (CC),  () BCLR  (CC)(‘NCGLE I’) at para . . Id. at para . . Ferreira v. Levin  () SA  (CC),  () BCLR  (CC) at para . . Prinsloo v. Van der Linde  () SA  (CC),  () BCLR  (CC) at para  (emphasis added). . President of the Republic of South Africa v. Hugo  () SA  (CC),  () BCLR  (CC) at para  citing Egan v. Canada ()  CRR (d) , –

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

Notes to pages –

(emphasis added). For further analysis of the relationship between equality and dignity, see C. Albertyn and B. Goldblatt, Equality in Constitutional Law of South Africa chapter  (S. Woolman, T. Roux, and M. Bishop eds., nd ed. March ). . See, for example, Advance Mining Hydraulics (Pty) Ltd and Others v. Botes and Others  () SA  (T),  () BCLR  (T). The High Court holds that it is unnecessary to decide whether proceedings at issue violated the right to dignity when it could be decided by reference to FC section ()’s injunction to interpret all law in light of the spirit, purport and objects of the Bill of Rights—namely the creation of an open and democratic society based upon human dignity, equality and freedom—as well as the Final Constitution’s founding provisions in FC section . . S v. Williams  () SA  (CC),  () BCLR  (CC) at para . . Minister of Home Affairs v. National Institute for Crime Prevention  () SA  (CC),  () BCLR  (CC) at para . . But see C. Roederer, Post-matrix Legal Reasoning: Horizontality and the Rule of Values in South African Law  SAJHR  (). Roederer argues, incorrectly, that the Final Constitution—in particular various operational provisions in chapter  such as FC section  and FC section —makes the distinction between rules and values unimportant for the purposes of constitutional interpretation. For a critique of this position, see S. Woolman Application in Constitutional Law of South Africa chapter , appendix (S. Woolman, T. Roux, and M. Bishop eds., nd ed., February ); S. Woolman, The Amazing, Vanishing Bill of Rights  SALJ  (). . Coetzee v. Comitis  () SA  (C),  () BCLR  (C). . Khosa v. Minister of Social Development  () SA  (CC),  () BCLR  (CC) at para  (emphasis added). . Khumalo v. Holomisa  () SA  (CC),  () BCLR  (CC). . De Reuck v. Director of Public Prosecutions, Witwatersrand Local Division  () SA  (CC),  () BCLR  (CC) at paras –. . Christian Education South Africa v. Minister of Education  () SA  (CC),  () BCLR  (CC) at para . . Carmichele v. Minister of Safety and Security  () SA  (CC),  () BCLR  (CC). . NK v. Minister of Safety and Security  () SA  (CC),  () BCLR  (CC), [] JOL  (CC)(CCT /) (hereafter cited as NK). . Rail Commuters Action Group and Others v. Transnet Ltd t/a Metrorail and Others  () SA  (CC),  () BCLR  (CC). . Harksen v. Lane  () SA  (CC),  () BCLR  (CC) at para . See also Prinsloo v. Van der Linde  () SA  (CC),  () BCLR  (CC); President of the Republic of South Africa v. Hugo  () SA  (CC),  () BCLR  (CC); City Council of Pretoria v. Walker  () SA  (CC),  () BCLR  (CC). . National Coalition for Gay and Lesbian Equality v. Minister of Justice  () SA  (CC),  () BCLR  (CC); National Coalition for Gay and Lesbian Equality v. Minister of Home Affairs  () SA  (CC),  () BCLR  (CC) (hereafter cited as NCGLE II); Satchwell v. President of the Republic of South Africa  () SA  (CC),  () BCLR  (CC) (hereafter cited as Satchwell I); Satchwell v. President of the Republic of South Africa  () SA  (CC),  () BCLR  (CC) (hereafter cited

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Notes to page 



as Satchwell II); J and Another v. Director General, Department of Home Affairs and Others  () SA  (CC),  () BCLR  (CC); Bhe v. Magistrate, Khayelitsha  () SA  (CC),  () BCLR  (CC); Minister of Home Affairs and Another v. Fourie and Another; Lesbian and Gay Equality Project v. Minister of Home Affairs CCT /; CCT / (unreported decision of December , ). See also Du Plessis v. Road Accident Fund  () SA  (SCA),  () BCLR  (SCA). Where common law fails to recognize that same sex life partners owe same duty of care as married heterosexual partners it violates both FC section  and FC section . . Hoffmann v. South African Airways  () SA  (CC),  () BCLR  (CC). Though persons living with HIV/AIDS are not necessarily part of a historically disadvantaged group, the social stigma that attaches to their illness often results in conduct that impairs their dignity. The court found that the refusal to hire a person on the grounds of his HIV/AIDS status impairs his dignity by preventing him from living life “to the full extent of its potential.” That impairment of his dignity justifies the ultimate finding of unfair discrimination. . See Taylor v. Kurtstag []  All SA  (W) at para . FC section —freedom of association—“guarantees an individual the right to choose his or her associates and a group of individuals the right to choose their associates.” The High Court recognizes that the right of the group to choose their associates in the pursuit of such constitutionally recognized objectives as the practice of religion by necessity means the right to require those who wish to join the group to conform their behavior to certain dictates and the right to exclude—and thus discriminate against—those who refuse to conform. See also Wittmann v. Deutscher Schulverein, Pretoria and Others  () SA  (T), ,  () BCLR  (T). “Section  of the [I]nterim Constitution and s  of the [Final] Constitution recognize the freedom of association. [IC] s () and [FC] s () respectively recognize the freedom of religion which includes the right to join others in worship, propagation of the faith etc. Freedom of association entails the right with others to exclude non-conformists. It also includes the right to require those who join the association to conform with its principles and rules.” See, further, S. Woolman,‘Freedom of Association in Constitutional Law of South Africa chapter , sections .(c), .(c)(iii), .(c)(viii) (S. Woolman, T. Roux, and M. Bishop eds., nd ed., December ). . See Minister of Finance v. Van Heerden  () SA  (CC),  () BCLR  (CC). The Van Heerden court establishes FC section ()’s provision for restitutionary measures as a complete defense: The pivotal enquiry in this matter is not whether the Minister and the Fund discharged the presumption of unfairness under section (), but whether the measure in issue passes muster under section (). If a measure properly falls within the ambit of section () it does not constitute unfair discrimination. However, if the measure does not fall within section (), and it constitutes discrimination on a prohibited ground, it will be necessary to resort to the Harksen test in order to ascertain whether the measures offend the anti-discrimination prohibition in section (). . . . When a measure is challenged as violating the equality provision, its defender may meet the claim by showing that the measure is contemplated by section () in that it promotes the achievement of equality and is designed to protect and advance persons disadvantaged by unfair discrimination.

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

Notes to pages –

It seems to me that to determine whether a measure falls within section () the enquiry is threefold. The first yardstick relates to whether the measure targets persons or categories of persons who have been disadvantaged by unfair discrimination; the second is whether the measure is designed to protect or advance such persons or categories of persons; and the third requirement is whether the measure promotes the achievement of equality. (Van Heerden at paras –) . S. Woolman and B. Fleisch, The Constitution in the Classroom: Law and Education in South Africa, – (); S. Woolman, Admissions Policies and Discrimination: Rhetoric and Reality in the Equity Requirements for Public Schools and Independent Schools. (Presentation before and Submission to the South African Human Rights Commission’s Inquiry into Equality and Voluntary Association, June, ) (Manuscript on file with author). . See Fourie at paras –. . Because our history is one of radical inegalitarianism, equality is, understandably, often treated as the preeminent constitutional value. See President of the Republic of South Africa v. Hugo  () SA  (CC),  () BCLR  (CC) at para : “[T]he purpose of our new constitutional and democratic order is the establishment of a society in which all human beings will be accorded equal respect regardless of their membership in particular groups. The achievement of such a society in the context of our deeply inegalitarian past will not be easy, but that that is the goal of the Constitution should not be forgotten or overlooked.” The assertion of such preeminence has led some courts and some commentators to characterize equality either as the value with which all other values must cohere or as the value before which all other values must fall. Two problems face this reification of equality. As a methodological matter, this emphasis on coherence, while attractive and powerful, locates the problem of legal interpretation in some kind of theory of established meaning which does not specifically address the normative role of law, and the possibility of radical transformation. “Synchronization,” as Drucilla Cornell notes, “points us to the real problem”: How do we develop an institutional analysis that allows us not only to synchronize the competing rights of individuals, but also the conflicts between the individual and the community, and between different groups in society? The goal of a modern legal system is synchronization and not coherence. Synchronization recognizes that there are competing rights situations and real conflicts between the individual and the community that may not yield a coherent whole. The conflicts may be mediated and synchronized but not eradicated. D. Cornell, Pragmatism, Recollective Imagination, and Transformative Legal Interpretation Transformations , – (). Or to put the matter slightly differently, those who would make equality the measure of all things, and for whom equality as equal respect and full redress still falls short of some ideological ideal, err because they rely upon a notion of “rational coherence” that, in turn, depends upon the community acting as a single speaker: “In reality, a complex, differentiated community can never be reduced to a single voice. Synchronization recognizes the inevitable complexity of the modern state and the imperfection of all our attempted solutions” (id., ). As a substantive matter, a requirement that certain social formations open themselves up to a wider potential

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Notes to page 



membership because they control access to important social goods could be a compelling justification for interfering with an association’s rules regarding entrance, voice, and exit. However, it does not follow from such a commitment to equality as redress or equality as substantively equal opportunity that all individuals and all groups are always entitled to substantively equal treatment. The potential conflation of instrumental and ideological grounds for intervention—and the privileging of ideological egalitarianism over dignity-inspired egalitarianism—runs the risk of undermining the very institutions and social practices “that actually make political pluralism, cultural diversity, individual autonomy and social empowerment possible.” S. Woolman, Freedom of Association in Constitutional Law of South Africa chapter , section . (S. Woolman, T. Roux, and M. Bishop eds., nd ed., December ). This distinction—between equality as ideology and equality as dignity—has real teeth both in our equality jurisprudence and in the equality jurisprudence of other jurisdictions. See, for example, Fourie at paras –: Equality means equal concern and respect across difference. It does not presuppose the elimination or suppression of difference. Respect for human rights requires the affirmation of self, not the denial of self. Equality therefore does not imply a leveling or homogenization of behavior. . . . [T]here are a number of constitutional provisions that underline the constitutional value of acknowledging diversity and pluralism in our society, and give a particular texture to the broadly phrased right to freedom of association contained in section . Taken together, they affirm the right of people to self-expression without being forced to subordinate themselves to the cultural and religious norms of others, and highlight the importance of individuals and communities being able to enjoy what has been called the ‘right to be different’. In each case, space has been found for members of communities to depart from a majoritarian norm. See also Hurly v. Irish-American Gay, Lesbian and Bisexual Group of Boston ()  US . . National Coalition for Gay and Lesbian Equality v. Minister of Justice  () SA  (CC),  () BCLR  (CC) at para : Justice Sachs writes: “It is the tainting of desire, it is the attribution of perversity and shame to spontaneous bodily affection, it is the prohibition of the expression of love, it is the denial of full moral citizenship in society because you are what you are, that impinges on the dignity and selfworth of a group.” See also S v. H  () SA  (C); S v. Kampher  () SA  (C),  () BCLR  (C). Common-law or statutory offences that proscribe private homosexual acts between consenting adult males cannot survive constitutional scrutiny. . National Coalition for Gay and Lesbian Equality v. Minister of Home Affairs  () SA  (CC),  () BCLR  (CC). . Satchwell v. President of the Republic of South Africa  () SA  (CC),  () BCLR  (CC); Satchwell v. President of the Republic of South Africa  () SA  (CC),  () BCLR  (CC). . Du Toit v. Minister of Welfare and Population Development  () SA  (CC),  () BCLR  (CC). The court held that lesbian partners in a long-standing relationship had their right to dignity and right to equality impaired by various sections

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

Notes to pages –

of the Child Care Act  of  and the Guardianship Act  of  that only provided for the joint adoption and guardianship of children by married persons. . J and Another v. Director General, Department of Home Affairs  () SA  (CC),  () BCLR  (CC). . [zRPz]Minister of Home Affairs v. Fourie (Doctors For Life International, Amici Curiae); Lesbian And Gay Equality Project v Minister Of Home Affairs  () SA  (CC). The court acknowledged the long history of marginalization and persecution of gays and lesbians in South Africa. However, it then noted that the South African Constitution represents a radical rupture with a not-so-distant past in which marginalization, persecution, intolerance and exclusion were the leitmotifs of the apartheid state. While the court has made notable inroads in a broad array of areas that effect the lives of gay and lesbian couples, the long history of domination and discrimination on the basis of sexual orientation has meant that no comprehensive legal regulation of the family law rights of gays and lesbians exists. It then found that the exclusion of same-sex couples from the benefits and responsibilities of marriage is no small and tangential inconvenience. It represents a harsh if oblique statement by the law that same-sex couples remain outsiders and that the law continues to deny them their dignity (Dignity ). Id. at para . . Dawood v. Minister of Home Affairs  () SA  (C),  () BCLR  (C). . See Booysen v. Minister of Home Affairs and Another  () SA  (CC),  () BCLR  (CC). . See Fraser v. Children’s Court, Pretoria North  () SA  (CC),  () BCLR  (CC) (the court finds that unwed fathers in non-Christian marriages are entitled to same rights of access as other fathers); Minister of Welfare and Population Development v. Fitzpatrick  () SA  (CC),  () BCLR  (CC). . But see S v. Jordan and Others (Sex Workers Education and Advocacy Task Force & Others as Amici Curiae)  () SA  (CC),  () SACR  (CC),  () BCLR  (CC). . Dawood at para . . Daniels v. Campbell No and Others  () SA  (CC). . Id. at paras –. . Exceptions in the case law exist. See Volks NO v. Robinson and Others  () BCLR  (CC). Mrs. Robinson was in a permanent life-partnership with Mr. Schandling. They shared a home, a car, and many mutual friends. She was financially dependent on him and they were regarded by all who knew them as a couple. When Mr. Schandling died, Mrs. Robinson argued that she should have a claim for maintenance against his estate. However, the executor of the estate (Mr. Volks) read the Maintenance of Surviving Spouses Act, which provided the legal basis for a claim against the deceased estate of a spouse, to apply only to married couples. Mrs. Robinson—with the assistance of the Women’s Legal Centre—applied to the High Court for an order declaring that her rights to equality and dignity required that the act to apply to permanent life partners as well. Justice Skweyiya wrote for the majority of the court. He agreed with the High Court that “spouse” could not be interpreted to include unmarried couples. However, he found that the exclusion of unmarried couples did not violate the Constitution. While he was willing to assume that the distinction drawn in the act between married and unmarried couples amounted to discrimination, he found that that discrimination was fair. Justice

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Notes to pages –



Skweyiya stressed the unique nature of marriage as an institution. It imposed obligations and created benefits that could not be expected to exist in an unmarried relationship: “There is a fundamental difference between her position and spouses or survivors who are predeceased by their husbands. Her relationship with Mr. Shandling is one in which each was free to continue or not, and from which each was free to withdraw at will, without obligation and without legal or other formalities.” Id. at para . . The Dawood court says that it relies upon FC section  to protect intimate associations because “it cannot be said that there is a more specific right that protects individuals who wish to enter into and sustain permanent intimate relationships than the right to dignity in s ” (Dawood at para ). That conclusion seems rather odd given that the text expressly provides for freedom of association—FC section —and that intimate associations are, as a matter of foreign law, routinely protected under such a right. The US Supreme Court is inclined to protect intimate family household structures against state intervention, but to permit state intervention where a household does not possess the requisite level of insularity and selectivity. Compare Moore v. City of Cleveland ()  US  (striking down zoning laws because they struck too deeply into wellprotected sphere of domestic autonomy) with Village of Belle Terre v. Boraas ()  US  (upholding zoning laws because they were rationally related to a legitimate state interest and a household of college friends did not constitute an intimate arrangement deemed worthy of constitutional protection). . Carmichele v. Minister of Safety and Security  () SA  (CC),  () BCLR  (CC). . NK v. Minister of Safety and Security  () SA  (CC),  () BCLR  (CC) (hereafter cited as NK). . The interaction between FC section  and FC section  extends the commitment of the Final Constitution to the bodily integrity and the physical security of women to all sexual assaults against women. See S v. Baloyi (Minister of Justice and Another Intervening)  () SA  (CC),  () BCLR  (CC) (state under positive duty in terms of FC () read with FC  [freedom and security of the person] and FC section  [dignity] to prevent private threats to personal security, generally, and domestic violence, in particular); S v. Chapman  () SA  (SCA),  () SACR  (SCA) (rights of dignity, privacy, and freedom and security of the person, in the context of endemic sexual violence against women, means that convicted rapists will be shown no mercy). . Carmichele at para . . Id. at para . . Currie and De Waal at . Chastened by the Constitutional Court’s reversal, Justice Chetty subsequently altered the common law in Carmichele v. Minister of Safety and Security  () SA  (C),  () BCLR  (C). The Supreme Court of Appeal followed suit in Minister of Safety and Security v. Carmichele  () SA  (SCA),  () BCLR  (SCA). . NK at para . . Minister of Safety and Security v. Van Duivenboden  () SA  (SCA). . Id. at paras –. . FC section (): “Everyone has the right to bodily and psychological integrity which includes the right-(a) to make decisions concerning reproduction.” For more on

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

Notes to pages –

the relationship between FC section , FC section  and abortion, see M. O’Sullivan, Reproductive Rights in Constitutional Law of South Africa chapter  (S. Woolman, T. Roux, and M. Bishop eds., nd ed., February ). . Christian Lawyers Association v. National Minister of Health and Others  () SA ,  (T),  () BCLR ,  (T) (hereafter cited as Christian Lawyers II ). . Christian Lawyers Association of South Africa and Others v. Minister of Health and Others  () SA  (T),  () BCLR  (T) (hereafter cited as Christian Lawyers I ). . Id. at , . . S v. Williams  () SA  (CC),  () BCLR  (CC). . Id. at paras –, quoting Furman v. Georgia  US  (). . S v. Makwanyane  () SA  (CC),  () BCLR  (CC),  () SACR  (CC). . Id. at para . . Id. at para . . Id. at para . . See, for example, Kant, Metaphysics of Morals, –. . In a similar vein, the Constitutional Court refused, in Mohamed v. President of the Republic of South Africa, to allow the state to ignore the applicant’s rights to dignity, life, and freedom and security of the person in the service of some greater political good—say, the war on terror.  () SA  (CC),  () BCLR  (CC),  () SACR  (CC). . Coetzee v. Government of the Republic of South Africa  () SA  (CC),  () BCLR  (CC). . In Coetzee, Justice Sachs wrote: The essence of civil imprisonment, even in its milder forms, has always been that the debtor pays with his or her body. The Afrikaans word gyselaar (hostage) comes from the contract recognized in Roman-Dutch law in terms of which a freeman pledged his person as suretyship for performance. . . . The broad question before us would be whether, in the open and democratic society contemplated by the Constitution, it could ever be appropriate to use imprisonment as a means of ensuring that creditors got paid in full, bearing in mind that the amount to be collected would often fall below the costs of collection, not to speak of the costs to the taxpayer of keeping the debtor in prison. It is evident from the statistical data presented to us that committal to prison is in reality mainly for relatively small amounts and largely for debt in respect of goods purchased, services rendered and money borrowed . . . The persons most vulnerable to committal orders would be precisely those who were unemployed, and thus could not be subject to emoluments orders, and those who did not have any property that could be attached. To penalize the workless and the poor so as to frighten those a little better off would be exactly the kind of instrumentalising of human beings which the concept of fundamental rights was designed to rebut. (Coetzee at paras –)

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Notes to pages –



. S v. Dodo  () SA  (CC),  () BCLR  (CC),  () SACR  (CC). . Id. at para . . In S v. Chapman  () SA  (SCA),  () SACR  (SCA), Chief Justice Mohamed made it clear that the courts would use criminal sanctions to send a message to rapists, potential rapists, and the general community that sexual violence against women would not be tolerated and that our new constitutional ethos—and the rights of women to dignity, privacy, and bodily integrity—dictates that those who engage in sexual violence be shown no mercy. . See, for example, S v. Pennington  () SA  (CC),  () BCLR  (CC),  () SACR  (CC). An undue delay in appeals process could constitute an impairment of dignity if it turned out, in a particular case, that the delay visited extreme hardship; but delays are an inevitable part of the criminal justice system and they do not, per se, constitute an impairment of the right to a fair trial or the right to dignity. But see Johnson v. Minister of Home Affairs  () SA  (C). Failure to process immigration applications expeditiously—with detentions lasting over fourteen months—violates IC section ()’s prohibition on detention without trial and IC section ’s right to dignity. . See S v. Thebus  () SA  (CC),  () BCLR  (CC),  () SACR  (CC) at paras –. The court rejects the argument that the common purpose doctrine violates the right to dignity because it “de-individualizes . . . [and] dehumanizes people by treating them in a general manner as nameless faceless parts of the group.” It upholds the doctrine on the grounds that “effective prosecution is a legitimate, pressing social need” and that there is “need for a strong deterrent to violent crime.” Thus, an individual may be convicted of a crime in terms of the common purpose doctrine even though individual culpability for the act in question cannot be established. . The High Courts have, as a result of FC section ’s refusal to allow individuals to be treated as mere means, displayed increasingly greater empathy towards prisoners. In Stanfield, Justice van Zyl insisted that a terminally ill prisoner be given parole because his dignity (in terms of FC section ) demanded no less: Every sentenced prisoner is entitled to respect for and recognition of his equality, human dignity and freedom, in the sense of his right not to be treated or punished in a cruel, inhuman or degrading way. Section ()(e) ensures that he has the right ‘to conditions of detention that are consistent with human dignity, including at least exercise and the provision, at state expense, of adequate accommodation, nutrition, reading material and medical treatment’. What will be ‘consistent with human dignity’ in any particular case will, of course, depend on the facts and circumstances of each such case. (Stanfield v. Minister of Correctional Services and Others  () SA  (C),  () BCLR  (C) at para ) See also S v. Dube  () SA  (N),  () BCLR  (N), entrapment and the seizing of property of an accused person by the state violates dignity. The Supreme Court of Appeal has likewise held that the denial of important privileges, that normally attach to citizenship, to prisoners still awaiting trial and sentencing constitute a violation

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

Notes to pages –

of the Final Constitution’s commitment both to the rule of law and to human dignity. See Minister of Correctional Services v. Kwakwa and Another  () SA  (SCA). The Constitutional Court and the Supreme Court of Appeal have also placed significant limits on the use of violence—and in particular, deadly force—with respect to the prevention of crimes that involve no violence themselves. The principle of proportionality, as demonstrated in the punishment cases, demands that the state not employ means that are not narrowly tailored to meet a constitutionally legitimate objective. The use of deadly force, as contemplated by the Criminal Procedure Act, to apprehend a pickpocket is the epitome of disproportionality. These powers, therefore, constitute unjustifiable limitations on the rights to dignity, life, and freedom and security of the person. See Govender v. Minister of Safety and Security  () SA  (SCA),  () BCLR  (SCA),  () SACR  (SCA); Ex Parte Minister of Safety and Security: In re S v. Walters  ()  (CC),  () BCLR  (CC),  () SACR  (CC). . Mohamed v. President of the Republic of South Africa  () SA  (CC),  () BCLR  (CC),  () SACR  (CC). . Kaunda v. President of the Republic of South Africa  () SA  (CC). The Kaunda court writes: “The bearers of the rights are people in South Africa. Nothing suggests that it is to have general application, beyond our borders” (id. at para ). The Kaunda court’s entire textual argument on the lack of extraterritoriality turns on the presence of a word—the preposition “in”—that could never have been intended to carry such weight. As Justices O’Regan and Mokgoro note in their dissent: “There is nothing in our Constitution that suggests that, in so far as it relates to the powers afforded and the obligations imposed by the Constitution upon the executive, the supremacy of the Constitution stops at the borders of South Africa. Indeed, the contrary is the case. The executive is bound by the four corners of the Constitution. It has no power other than those that are acknowledged by or flow from the Constitution. It is accordingly obliged to act consistently with the obligations imposed upon it by the Bill of Rights wherever it may act” (id. at para ). . Van Der Merwe v. Road Accident Fund (Women’s Legal Centre Trust as Amicus Curiae)  () SA  (CC). . Id. at para . . Prince v. President  () SA  (CC),  () BCLR  (CC). . In fairness to the majority in Prince, it must be noted that: (a) the constitutionality of the proscription of the use of cannabis by criminal sanction was never raised by Prince; (b) the religious use of cannabis may appear—to some—indistinguishable from the recreational use of it; and (c) had the religious use been more circumscribed, the majority stated its willingness to carve out an exception. Of course, even with these caveats, the majority’s judgment still begs the question as to whether the lack of judicial solicitude turns entirely on the state’s identification of some intoxicants as criminal— marijuana—and other equally powerful intoxicants—alcohol—as acceptable. The need for an exemption could turn on distinctions without meaningful differences. . The minority judgment offers some solace for those inclined to treat religious belief with greater dignity. Justice Ncgobo writes: Apart from this, as a general matter, the court should not be concerned with questions whether, as a matter of religious doctrine, a particular practice is cen-

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Notes to pages –



tral to the religion. Religion is a matter of faith and belief. The beliefs that believers hold sacred and thus central to their religious faith may strike nonbelievers as bizarre, illogical or irrational. Human beings may freely believe in what they cannot prove. Yet that their beliefs are bizarre, illogical or irrational to others, or are incapable of scientific proof, does not detract from the fact that these are religious beliefs for the purposes of enjoying the protection guaranteed by the right to freedom of religion. The believers should not be put to the proof of their beliefs or faith. For this reason, it is undesirable for courts to enter into the debate whether a particular practice is central to a religion unless there is a genuine dispute as to the centrality of the practice. (Prince at ). Thus, the minority judgment recognizes: () how associations are constitutive of the beliefs and practices of individuals; and () how the fact of their being constitutive entitles them to constitutional protection. The judgment is remarkable in that it does not rely upon a model of rational moral agency to distinguish those beliefs that are entitled to judicial solicitude from those beliefs that are not. For a further discussion of the Constitutional Court’s analysis in Prince, Christian Education, and other religion cases, see S. Woolman, Freedom of Association in Constitutional Law of South Africa chapter  (S. Woolman, T. Roux, and M. Bishop eds., nd ed., December ) and P. Farlam, Freedom of Religion, Conscience, Thought and Belief in id., chapter . . Christian Education South Africa v. Minister of Education  () SA  (CC),  () BCLR  (CC). . Id. at para . . Id. at para . . Patrick Lenta has offered a similar analysis of Christian Education. See P. Lenta, Religious Liberty and Cultural Accommodation  SALJ ,  (): “Is Sach’s hinting, despite his refusal to rule on the question, that corporal punishment administered in the home should be constitutionally permissible. . . . It is hard to see how this could be so. There is no necessary qualitative difference between the two locations.” . Fourie at paras –. See also Fourie v. Minister of Home Affairs  () SA  (SCA),  () BCLR  (SCA) at paras –. No religious denomination would be compelled to marry gay or lesbian couples. . See Bhe v. Magistrate, Khayelitsha and Others  () SA  (CC),  () BCLR  (CC); Mabuza v. Mbatha  () SA  (C),  () BCLR  (C) at para : “[These rules] provide a setting which contributes to the unity of family structures and the fostering of co-operation, a sense of responsibility in and of belonging to its members, as well as the nurturing of healthy communitarian traditions such as uBuntu. These valuable aspects of customary law more than justify its protection by the Constitution. It bears repeating, however, that as with all law, the constitutional validity of rules and principles of customary law depend on their consistency with the Constitution and the Bill of Rights.” . FC section  reads as follows: “() Persons belonging to a cultural, religious or linguistic community may not be denied the right, with other members of that community—(a) to enjoy their culture, practice their religion and use their language; and (b) to form, join and maintain cultural, religious and linguistic associations and other organs of civil society; () The rights in ss () may not be exercised in a manner inconsistent

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

Notes to pages –

with any provision of the Bill of Rights.” FC section () could be construed to preclude all exclusionary and discriminatory policies. But that assumes—without any compelling argument—that all such practices are inconsistent with various provisions in the Bill of Rights, in particular, equality and dignity. . Ex Parte Gauteng Provincial Legislature: In Re Dispute Concerning the Constitutionality of Certain Provisions of the Gauteng School Education Bill of   () SA  (CC),  () BCLR  (CC). The court held that IC section (c) permitted communities to create schools based upon common culture, language, and religion. It further held that IC (c) provided a defensive right to persons who sought to establish such educational institutions and that it protected that right from invasion by the state. It did not, however, impose upon the state an obligation to establish such educational institutions.) . Western Cape Minister of Education v. The Governing Body of Mikro Primary School  () SA  (SCA),  () BCLR  (SCA). . Laerskool Middelburg en ‘n Ander v. Departementshoof, Mpumalanga Departement van Onderwys en Andere  () SA  (T). . Pillay (supra). . Id. at paras –. . For the leading statement on privacy, see Bernstein & Others v. Bester NO and Others  () SA  (CC),  () BCLR  (CC) at paras , , and . Justice Ackermann identifies “privacy” with the “inner sanctum of a person, such as his/her family life, sexual preference and home environment, which is shielded from erosion by conflicting rights of the community.” He quotes, with approval, the Council of Europe’s gloss on the right to privacy: “[The right to privacy] consists essentially in the right to live one’s own life with a minimum of interference. It concerns private, family and home life, physical and moral integrity, honour and reputation, avoidance of being placed in a false light, non-revelation of irrelevant and embarrassing facts, unauthorized publication of private photographs, protection from disclosure of information given or received by the individual confidentially.” Justice Ackermann then concludes that South African and foreign authorities are all inclined to limit “the ‘right to privacy’ . . . to the most personal aspects of a person’s existence, and not to every aspect within his/her personal knowledge and experience.” See also Pretoria Portland Cement and Another v. Competition Commission and Others  () SA  (SCA). Use of warrant to film premises, not approved in the warrant itself, constitutes grave violation of the right to privacy (FC section ) and the right to dignity (FC section ) of the applicant, as well as a denial of the applicant’s right of access to court (FC section ). But see Director of Public Prosecutions, Cape of Good Hope v. Bathgate  () SA  (C) at paras – (search and seizure provisions of Proceeds of Crime Act  of  that permitted confiscation of ill-gotten goods in order to prevent their concealment or dissipation did not constitute an unjustifiable limitation of the rights to dignity, property, privacy or a fair trial); S v. Huma  () SA  (W),  () SACR  (W) (the court holds that taking of fingerprints as part of criminal investigation does not constitute an impairment of the accused’s dignity in terms of IC section  or any other right associated with a fair trial).

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

. Case v. Minister of Safety and Security; Curtis v. Minister of Safety and Security  () SA  (CC),  () BCLR  (CC) at para , citing with approval Bernstein at paras – (right to privacy protects “the inner sanctum of a person” that lies within “the truly personal realm”). See also Investigating Directorate: Serious Economic Offences v. Hyundai Motor Distributors (Pty) Ltd. In Hyundai Motor Distributors (Pty) Ltd v. Smit NO  () SA  (CC),  () BCLR  (CC) at para  (right to privacy protects intimate space because such a space is a prerequisite for human dignity). . Case & Curtis at para . See also S v. Dube  () SA  (N). The High Court holds that the right to privacy does not embrace the right not to be secretly photographed while engaging in criminal activity. Such an extravagant notion of privacy— a highly attenuated Dignity  interest—even if constitutionally protected would have to yield before the overwhelmingly more important interests of the polity as a whole (Dignity ). . See also MEC for Health, Mpumalanga v. M-Net  () SA  (T). The privacy interests of a public hospital and public hospital staff (Dignity ) fall before the freedom of expression interests of the general public (Dignity  and Dignity ) in viewing clandestinely filmed operations that demonstrate the patently negligent conduct of the hospital staff. . De Reuck v. Director of Public Prosecutions, Witwatersrand Local Division  () SA  (CC),  () BCLR  (CC). . Id. at para . . Id. at para . . Id. at para . . For a critique of the court’s “sexuality” jurisprudence, see N. Fritz, Crossing Jordan: Constitutional Space for (Un)Civil Sex?  SAJHR  (). .  Brisley v. Drotsky  () SA  (SCA),  () BCLR  (SCA) at paras  and . . Id. at para  citing, with approval, the dicta of Justice Davis in Mort NO v. Henry Shields-Chiat  () SA  (C), , []  All SA  (C). . Magna Alloys and Research (SA) (Pty) Ltd v. Ellis  () SA  (A): “Magna Alloys’ Court held that a restraint of trade clause within a contract was prima facie valid and that whoever wished to prove the contrary bore the onus of showing that ‘the restriction conflicted with the public interest.” See also Waltons Stationery Co. (Pty) Ltd v. Fourie & Another  () SA  (O),  () BCLR  (O); Kotze en Genis (Edms) BPK v. Potgieter  () SA  (C),  () BCLR  (C); AK Entertainment CC v. Minister of Safety  () SA  (E),  () BCLR  (E); Knox D’Arcy (Ltd) and Another v. Shaw and Another  () SA (W),  () BCLR  (W). . Comitis at para . . Id. at paras  and  . Id. . For a similar analysis, see Santos Prof Football Club v. Igesund  () SA  (C), . The court finds that the most basic autonomy interests (Dignity ) of the player militate against the enforcement—by specific performance—of the contract in

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

Notes to pages –

question. See also Fidelity Guards Holdings (Pty) Ltd T/A Fidelity Guards v. Pearmain  () SA  (SE),  (“Insofar as . . . restraint [of trade clauses constitute] . . . a limitation of the rights entrenched in [FC] s , the common law as developed by the Courts, in my view, comply with the requirements laid down in [FC] s (). Any party to any agreement where a restraint clause is regarded as material is free to agree to include such a clause in the main agreement and the common law in this regard is therefore of general application”); Fidelity Guards v. Pearmain  () SA  (SE),  () BCLR  (SE). . Afrox Healthcare Bpk v. Strydom  () SA  (SCA). . National Coalition for Gay and Lesbian Equality v. Minister of Home Affairs & Others  () SA  (CC),  () BCLR  (CC) (hereafter cited as NCGLE II); National Coalition for Gay and Lesbian Equality v. Minister of Justice and Others  () SA  (CC),  () BCLR  (CC)(hereafter cited as NCGLE I). . S v. Jordan and Others (Sex Workers Education and Advocacy Task Force and Others as Amici Curiae)  () SA  (CC),  () BCLR  (CC). . Id. at para . . Id. . See Woolman, Association, section .(c)(x). . Jordan at para . . Most of the decisions handed down on FC section  read with FC section  have been equally deferential. In Affordable Medicines Trust v. Minister of Health  () SA  (T), the High Court held that the state is entitled to restrict the trade, occupation and practice of the complainants—including licenses to dispense medicine—if the restrictions are rational. Moreover, the court found that if anyone’s dignity was impaired it was that of the patients. That said, the mere inconvenience caused to the patients did not amount to an impairment of their dignity (id. at para ). . Dawood and Another v. Minister of Home Affairs and Others  () SA  (CC),  () BCLR  (CC) at para . See also S. Woolman and M. Bishop, Slavery, Servitude and Forced Labour in Constitutional Law of South Africa chapter  (S. Woolman, T. Roux, and M. Bishop eds., nd ed., February ). . Dawood at para . . S v. Jordan & Others  () SA  (CC),  () BCLR  (CC). . Jordan at para  (emphasis added). Why “knowing” under conditions of duress and compulsion makes one culpable remains unclear. . Khosa v. Minister of Social Development  () SA  (CC),  () BCLR  (CC). . Khosa at para . . See S. Woolman and M. Bishop, State as Pimp: Sexual Trafficking and Slavery in South Africa  Development SA  (). . S v. Mamabolo  () SA  (CC),  () BCLR  (CC),  () SACR  (CC) at para . . Id. at para . . Id. . However, the mere assertion by the state that the dignity of the community might be offended by some form of expression or behavior, without argument or evi-

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dence, is insufficient to justify a limitation on expression. See Phillips v. Director of Public Prosecutions, Witwatersrand Local Division  () SA  (CC),  () BCLR  (CC),  () SACR  (CC). . Case & Curtis at paras –. . De Reuck v. Director of Public Prosecutions, Witwatersrand Local Division  () SA  (CC),  () BCLR  (CC). . Islamic Unity Convention v. Independent Broadcasting Authority and Others  () SA  (CC),  () BCLR  (CC) at para  (emphasis added). Justice Langa further notes that “[t]here is no doubt that the state has a particular interest in regulating this type of expression because of the harm it may pose to the constitutionally mandated objective of building a non-racial and non-sexist society based on human dignity and the achievement of equality” (id. at para ; emphasis added). . Freedom Front v. South African Human Rights Commission  () BCLR  (hereafter cited as SAHRC ). . I. Currie and J. de Waal “Expression” The Bill of Rights Handbook ,  (th ed., ). . Id. at –, citing R v. Keegstra []  SCR . . Keegstra at – (emphasis added). . South African Human Rights Commission v. SABC  () BCLR  (BCCSA). . Khumalo v Holomisa  () SA  (CC),  () BCLR  (CC) at para . See Kausea v. Minister of Home Affairs  () SA  (Nm), . Utterances by a police officer accusing the entire command structure of racism constitute hate speech under statute and do not qualify as fair comment for purposes of defense against suit in defamation. “Freedom of expression,” writes the court “cannot . . . be used to violate the dignity of a person.” . Currie and De Waal, Expression, . . Compare Argus Printing & Publishing v. Esselen’s Estate  () SA  (A) (Appellate Division permits judge to sue for defamation in respect of criticism leveled at the judge in his official capacity) with S v. Mamabolo  () SA  (CC),  () BCLR  (CC),  () SACR  (CC) (contempt may only be found if there is actual harm done to the administration of justice; otherwise freedom of expression allows for criticism of judges in their individual capacity). . National Media Ltd v. Bogoshi  () SA  (SCA),  () BCLR  (SCA). However, the reluctance of the Appellate Division, the Supreme Court of Appeal and the Constitutional Court to revisit this body of law in light of constitutional imperatives did not stop lower courts from taking up the challenge. In Mandela v. Falati  () SA , – (W), the court stated that the new dispensation privileged speech over the reputations of politicians that expression should be largely unrestrained, and that courts should allow neither prior restraints nor defamation actions to silence critical voices. . Khumalo at paras –. See also Marais v. Groenewald  () SA  (T). The right to good name and reputation, underwritten by FC section , requires that the defendant be held liable for statements that he could believe “lawful” only because of his gross negligence and his refusal to take adequate steps to establish the truth. . Dikoko v. Mokhatla  () SA  (CC) concerned a claim for damages arising out of allegedly defamatory statements made by the applicant, Mr. David Dikoko,

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Notes to pages –

a municipal councilor. The Auditor-General summoned the applicant to appear before the North West Provincial Standing Accounts Committee to provide an explanation for certain unpaid cell-phone accounts. Dikoko stated that Mokhatla had done so deliberately in order to cause the applicant’s indebtedness to the council to accumulate so as to provide Dikoko’s political opponents with a basis to attack his integrity. Mokhatla instituted an action for damages against Dikoko in the Pretoria High Court, claiming that the latter’s statement to the Standing Committee was defamatory (Dignity ). In his defense, Dikoko entered a special plea claiming that the statement enjoyed privilege under the relevant legislation (Dignity ). Justice Mokgoro, writing for a unanimous court, dismissed the applicant’s arguments in relation to privilege. . Signs of a more generous approach to expressive interests in the context of defamation are on display in Hardaker v. Phillips  () SA  (SCA). The Supreme Court of Appeal finds that a jibe, though false and potentially defamatory, constituted fair comment and that any dignity interest that the plaintiff might have had must yield to a more general public interest in free and robust expression. . See Holomisa v. Khumalo and Others  () SA  (T). . See Sayed v. Editor, Cape Times  () SA  (C). . Id. at –. . Although careful to stay within the limits established by Bogoshi, the Supreme Court of Appeal in Mthembi-Mahanyele v. Mail and Guardian notes that “some latitude must be allowed in order to allow [for] robust and frank comment in the interest of keeping members of society informed about what government does” ( () SA  (SCA),  () BCLR  (SCA) at para ). Moreover, in assessing whether a comment is reasonable, the court must take cognizance of the duty of accountability that the Final Constitution places on the state and the role that the media plays in holding the state accountable (id. at ). Without announcing as much, the Supreme Court of Appeal, per Justice Lewis, appears to offer greater judicial solicitude for political speech. Indeed, the findings in favor of the respondents in both Sayed and Mthembi-Mahanyele suggest that the reasonableness requirement set out in Bogoshi may be sufficiently supple to accommodate a highly critical and confrontational press—so long as the press spends an “appropriate” amount of time checking its facts. . South African Broadcasting Corp Ltd v. National Director of Public Prosecutions  () SA  (CC). . MEC for Health, Mpumalanga v. M-Net  () SA  (T). . Id. at paras –. . Van Zyl v. Jonathan Ball Publishers  () SA  (W). . Id. at –. Indeed, courts have found that while a publication may, initially, have been reasonable—and not an impairment of dignity—because the author or the publisher was not aware of the harm that the publication might cause, the continued publication of a book after the author and the publisher have been made aware of the injury does constitute an actionable offence. See NM and Others v. Smith and Others []  All SA  (W), [] JOL  (W). The court holds that continued publication of a book that identified three women with HIV by name and without their permission constituted a violation of their common-law rights to dignity and privacy and warranted imposition of damages.

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Notes to pages –



. For an excellent restatement and reconceptualization of this area of the law upon which my analysis is parasitic, see S. Liebenberg, The Value of Human Dignity in Interpreting Socio-Economic Rights  SAJHR  (). . Soobramoney v. Minister of Health, Kwa-Zulu-Natal  () SA  (CC),  () BCLR  (CC). . Id. at para  (emphasis added). President Chaskalson denied Mr. Soobramoney’s claim on the grounds that the rights enshrined in the Bill of Rights were not always the entitlements their language suggested: The Constitution is forward-looking and guarantees to every citizen fundamental rights in such a manner that the ordinary person-in-the-street, who is aware of these guarantees, immediately claims them without further ado and assumes that every right so guaranteed is available to him or her on demand. Some rights in the Constitution are the ideal and something to be strived for. They amount to a promise, in some cases, and an indication of what a democratic society aiming to salvage lost dignity, freedom and equality should embark upon. They are values which the Constitution seeks to provide, nurture and protect for a future South Africa. (Id. at ) The dignity long denied the majority of South Africans was something that could not yet be recovered in full: it remained a “promise.” For a critique of this promise, see K. van Marle, “No Last Word”: Reflections on the Imaginary Domain, Dignity and Intrinsic Worth Stellenbosch L. Rev. , – (). . Government of the Republic of South Africa and Others v. Grootboom and Others  () SA  (CC),  () BCLR  (CC) at para  (emphasis added). The court finds that state has failed to discharge its responsibilities in terms of FC section . It holds, in addition, that the general entitlements secured through socio-economic rights are essential components of a just political order because they are necessary for self-actualization (Dignity  and Dignity ). . Liebenberg, . . Minister of Health v. Treatment Action Campaign ()  () SA  (CC),  () BCLR  (hereafter cited as TAC). . Liebenberg, , citing TAC at para . . See Khosa v. Minister of Social Development  () SA  (CC),  () BCLR  (CC). The Constitutional Court has discussed dignity as a collective responsibility in a number of its unfair discrimination decisions. See, for example, Hoffmann v. South African Airways  () SA  (CC),  () BCLR  (CC) at para : “The interests of the community lie in the recognition of the inherent dignity of every human being and the elimination of all forms of discrimination.” The Constitutional Court has written about dignity qua collective responsibility in the context of evictions and claims asserted under FC section  (Dignity ). See Port Elizabeth Municipality v. Various Occupiers  () SA  (CC),  () BCLR  (CC) at para : “It is not only the dignity of the poor that is assailed when homeless people are driven from pillar to post in a desperate quest for a place where they and their families can rest their heads. Our society as a whole is demeaned when state action intensifies rather than mitigates their marginalisation” (emphasis added). However, dignity qua collective responsibility does not mean

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

Notes to pages –

that the right to dignity can be successfully invoked against the state whenever the exercise of or entitlement to a socio-economic right is threatened. So, for example, in Hartzenberg v. Nelson Mandela Metropolitan Municipal (Despatch Administrative Unit)  () SA  (SE), the High Court held, correctly, that FC section  and FC section  had nothing to say about the disconnection of electrical services for failure to pay the arrears on water bills. That the state was not entitled to disconnect the electricity was a statutory matter for which the state lacked the requisite authority. . Liebenberg, . . On the relevance of urgency to an assessment of reasonableness, see D. Bilchitz, Giving Socio-Economic Rights Teeth: The Minimum Core and its Importance  SALJ , – (). See also M. Nussbaum, Women and Human Development  (): “Programs aimed at raising general or average well-being do not improve the situation of the least well-off, unless they go to work directly to improve the quality of those people’s lives. If we combine this observation with the thought . . . that each person is valuable and worthy of respect as an end, we must conclude that we should look not just to the total or the average, but to the functioning of each and every person. We may call this the principle of each person as an end.” . Khosa at para . . Id. at para . . Id.at paras –. . Id.at para . . Id.at para . . Id.at para . . Id.at para  . Id. at para . . Jaftha v. Schoeman  () SA  (CC). . Id. . Id.at para . . Id.at para . .  Olivia Rd, Berea Township and Another v. City of Johannesburg and Others [] JOL  (CC). . Id. at para . . Id. at para . . See D Davis ‘Equality: The Majesty of Legoland Jurisprudence’ ()  SALJ . Dennis Davis writes that: “The court has given dignity both the content and scope that make for a piece of jurisprudential Lego-Land to be used in whatever form and shape is required by the demands of the judicial designer” (id. at ). Even if I disagree with that indictment of our current dignity jurisprudence, Davis had good grounds—at the time of writing—for critiquing the Court’s nascent dignity and equality jurisprudence for being grounded in a predominantly “individualistic framework” (id. at ). . See D. Cornell, Defending Ideals – (). . Dawood and Another v. Minister of Home Affairs and Others  () SA  (CC),  () BCLR  (CC) at para . . See Minister of Home Affairs and Another v. Fourie and Another; Lesbian and Gay Equality Project v. Minister of Home Affairs  () SA  (CC).

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Notes to pages –



. President of the Republic of South Africa v. Hugo  () SA  (CC),  () BCLR  (CC) at para . . National Coalition for Gay and Lesbian Equality v. Minister of Justice and Others  () SA  (CC),  () BCLR  (CC) at para . . See A. Sen, Development as Freedom (). Sen asks us to take account, in his theory of distributive justice, of how the heterogeneity amongst individuals (both within societies and across societies) shapes the meaning of primary goods and incomes. For example, the meaning of a primary political good like freedom of assembly will have demonstrably different meanings for a person who is ambulatory and for a person who is not ambulatory, but housebound. Similarly, the utility of an income of R, will have demonstrably different value for a person who is ambulatory and for a person who is not ambulatory, but housebound. At a minimum, says Sen, quoting Adam Smith, our primary concern ought to be providing individuals with those necessities of life that will, in fact, give them “the ability to appear in public without shame” (id. at , quoting A. Smith, The Wealth of Nations – [R. H. Campbell and A. S. Skinner ed., ]). By “necessities”, Smith means “not only the commodities which are indispensably necessary for the support of life, but whatever the customs of the country render it indecent for creditable people, even the lowest order, to be without.” That sounds very much like South African dignity discourse. Sen argues that the best measure of dignity is the ability of individuals to convert such primary goods as income or civil liberties into the capability “to choose a life one has reason to value”—or in simpler terms, the ability to pursue one’s own ends (id. at ). The virtue of Sen’s approach is that it recognizes (a) the heterogeneity of capacity that people possess by virtue of biology, custom, or class; (b) the heterogeneity of critical functions—from nourishment to civic participation—that may be required to live a life one has reason to value; and (c) the heterogeneity of capabilities that people possess—different combinations of more basic functions—which, in turn, enable them to pursue different “lifestyles” or different visions of the good. Because Sen refuses to reduce “freedom” to a single basic unit—a utile or a liberty—he is, inevitably, quite pluralistic about the kinds of goods which individuals ought to be free to pursue. . Khosa at para . . See D. Cornell, Defending Ideals: War, Democracy, and Political Struggles (). . See Sen, Development, –. . S. Woolman and D. Davis, The Last Laugh: Classical Liberalism, Creole Liberalism and the Application of Fundamental Rights under the Interim and the Final Constitutions  SAJHR , – (). . See D. Cornell, Just Cause: Freedom, Identity and Rights (). . Drucilla Cornell’s “imaginary domain” is an intuition pump that—unlike Kant’s categorical imperative or Rawls’s original position—does not frame ethical decisions in terms of an abstract, ostensibly universalizable, community of “rational” individuals. See D. Cornell, The Imaginary Domain (); D. Cornell, At the Heart of Freedom (). The imaginary domain takes the radical givenness of individuals—and their desires— seriously as the departure point for ethical inquiry. Van Marle offers the following description of the imaginary domain: The imaginary domain means that psychic or moral space in which we are sexed creatures who care deeply about matters of the heart, are allowed to evaluate and

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Notes to pages –

represent who we are. Cornell argues that the right to the imaginary domain takes us beyond hierarchical definitions of the self. Integral to the imaginary is the notion that the person can never be assumed as a given, but is always part of a project of becoming. A person is understood as a possibility, an aspiration. . . . [S]he argues that the freedom to become a person is dependent upon the minimum conditions of individuation. . . . The freedom that a person must have to become a person demands the space for the renewal of the imagination and concomitant re-imagining of who one is and who one seeks to become. (Van Marle, No Last Word, ) Cornell identifies three necessary preconditions for the imaginary domain: physical security of the person; the ability to engage in sufficiently complex symbolic analysis to permit individuation of the self; and a commitment to the protection of the imaginary domain. Those conditions bear some similarity to the conditions that the Constitutional Court has identified with dignity: from not permitting physical violations of the self that make selfhood impossible (Dignity ), to those material conditions without which no meaningful individuation can occur (Dignity ), to the provision of some of the formal conditions required for self-actualization (Dignity ). The three preconditions for the imaginary domain are, like the five faces of dignity, constitutive features of a realm of ends. . Ex Parte Gauteng Provincial Legislature: In Re Dispute Concerning the Constitutionality of Certain Provisions of the Gauteng School Education Bill of   () SA  (CC),  () BCLR  (CC). The court held that IC section (c) permitted communities to create schools based upon common culture, language and religion. . Christian Education of South Africa v. Minister of Education  () SA  (CC),  () BCLR  (CC). . See Bhe v. Magistrate, Khayelitsha and Others  () SA  (CC),  () BCLR  (CC). . Id. at para . . Id. at . . Id. at para . . Id. at para . . Id. at para . . Id. at para . . Id. at para . . See, especially, M. Pieterse “It’s a Black Thing”: Upholding Culture and Customary Law in a Society Founded on Non-Racialism  SAJHR  (). Pieterse engages in a thorough analysis—conceptual and practical—of the manner in which the current ‘dualism’ of western and customary law might be overcome. See also D. Cornell, A Call for a Nuanced Jurisprudence  SA Public Law  ().

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S v. Makwanyane and Another  () SA  (CC) CASE SUMMARY

Facts This case, one of the first to be heard by the Constitutional Court, concerned the constitutionality of the death penalty. In terms of section ()(a) of the Criminal Procedure Act  of  the death penalty was a competent sentence for a conviction of murder. However, no executions had taken place in South Africa since . Section  of the Interim Constitution provided that everyone has the right to life. However, the Interim Constitution did not expressly state whether the death sentence remained no longer a competent punishment in our constitutional order.

Legal History The two accused had been convicted in the High Court of murder and were sentenced to death. They appealed against both their convictions and their sentences to the Appellate Division (now called the Supreme Court of Appeal). The Appellate Division dismissed the appeal against the convictions and held that given the circumstances of the murders, the most serious punishment permissible by law was appropriate, namely the death penalty. However, the court postponed further hearing of the appeal against the death sentences until the Constitutional Court had ruled on the constitutionality of the death penalty. (At the time, the Appellate Division did not have constitutional jurisdiction to make an initial ruling on these issues.)

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Legal Cases (–)

Issue Is the death penalty consistent with the Bill of Rights? Decision of the Constitutional Court As one of the first decisions delivered by the Constitutional Court, the judgment addresses many important issues beyond the narrow question of the constitutionality of the death penalty. In particular, it deals with the proper method for interpreting the Interim Constitution, the sources that can be employed in that endeavor, and the nature of the limitations inquiry under IC section . The main judgment and the court’s order were written by then President of the Constitutional Court Chaskalson. However, all of the remaining ten judges (Justices Ackermann, Didcott, Kriegler, Langa, Madala, Mahomed, Mokgoro, O’Regan, Sachs, and Acting Justice Kentridge) wrote their own concurring opinions in which they emphasized different aspects of Justice Chaskalson’s decision. The primary question addressed to the court was whether the death penalty infringed the IC section () right not to be subjected to “cruel, inhuman or degrading punishment.” In interpreting the phrase “cruel, inhuman or degrading” Justice Chaskalson stressed that the ordinary meaning of the words was not at issue. Such a plain meaning approach would clearly bar the death penalty. Instead, the court’s obligation was to explicate the meaning of the words in light of the text of the Interim Constitution as a whole. In short, the rights in the Interim Constitution could not be construed in isolation and section () had to be interpreted in light of the constitutional rights to life (section ), dignity (section ), and equal protection of the law (section ). After placing heavy emphasis on the interpretation of similar rights phrases in foreign jurisprudence and international law, Justice Chaskalson held that section () required the consideration of several specific factors. He noted that the death penalty, unlike other sentences, was final and irremediable. In addition, he found that an inevitable element of arbitrariness affected its application and that race and poverty played a role in who was sentenced to death. Finally, he considered the need for proportionality between the punishment and the crime. Taken together, these factors led Justice Chaskalson to the conclusion that the death sentence is a “cruel, inhuman and degrading punishment” (paragraph ). Justice Chaskalson then had to consider whether the death sentence was a reasonable and justifiable limitation of IC section () in terms of IC section  (the limitation clause in the Interim Constitution). The primary argument in favor of justification is that the death penalty deters people from committing crime. While Justice Chaskalson acknowledged that deterrence could be a valid justification for some categories of crime, he found that the death penalty did not serve as a greater deterrent with respect to capital offenses than other punishments (e.g., life imprisonment). Moreover, the state has an obligation—made explicit in the Constitution itself—to respect, promote, and protect fundamental rights. That obligation required the state to serve as model for a society attempting to overcome the depredations of

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apartheid and to use the law as a means of transforming our culture into one grounded in basic respect for human life and human rights. Justice Chaskalson also rejected arguments that the death penalty served a retributive function. The need for retribution, he concluded, could not outweigh the rights to life and dignity.

Order The court ordered that all legislation sanctioning the death penalty was inconsistent with the Constitution and therefore invalid. In addition the court prohibited the state from executing anyone who had been sentenced to death previously. Comment The eleven judgments in Makwanyane provide a wealth of different perspectives on the nature of human dignity and its role in the South African Constitution. They set up some of the important themes that would develop in the next thirteen years of the court’s jurisprudence. First, the court embraces the idea that dignity is something that is inherent in, or intrinsic to, every human being. It is not earned. And it can never be lost. To make this point, Justice Chaskalson invokes US Justice William Brennan’s conclusion that “even the vilest criminal remains a human being possessed of common human dignity” (paragraph ). That said, the court also recognized that even dignity is capable of limitation if the limitation provides sufficient benefit for the rest of society. Although it finds the evidence lacking in this matter, the court leaves open the door for the possibility that the death penalty could be justified if there was sufficient empirical evidence that it acted as a deterrent. Third, the court begins to unveil how dignity provides a foundation for most—if not all—the other rights in the Bill of Rights. The court examines dignity not only as a right, but also notes how, as a value, or Grundnorm, informs the right not to be subjected to cruel, inhuman, or degrading punishment. Next, many of the judgments engaged with the specific history of the death penalty in South Africa as a vital pointer to understanding the meaning of human dignity. Our history—especially the depredations of colonization and apartheid—might mean that we have a somewhat distinct South African conception of dignity as right, value, and ideal. Finally, Justices Langa, Madala, Mahomed, and Mokgoro engage the African ideal of uBuntu and its relationship to human dignity. While Western conceptions of dignity tend to focus on the rights of individuals, uBuntu, Justice Langa tells us, recognizes the “corresponding duty to give the same respect, dignity, value and acceptance to each member of that community” (paragraph ; emphasis added). PRESIDENT CHASKALSON [] No executions have taken place in South Africa since [November ,] . There are apparently over  persons, and possibly as many as  if persons sentenced in the former Transkei, Bophuthatswana and Venda are taken into account,

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Legal Cases (–)

who have been sentenced to death by the courts and who are on death row waiting for this issue to be resolved. Some of these convictions date back to , and approximately half of the persons on death row were sentenced more than two years ago. This is an intolerable situation and it is essential that it be resolved one way or another without further delay.

The Relevant Provisions of the Constitution [] The Constitution “provides a historic bridge between the past of a deeply divided society characterized by strife, conflict, untold suffering and injustice, and a future founded on the recognition of human rights, democracy and peaceful coexistence and development opportunities for all South Africans, irrespective of color, race, class, belief or sex” [section ()]. It is a transitional constitution but one that itself establishes a new order in South Africa; an order in which human rights and democracy are entrenched and in which the Constitution “shall be the supreme law of the Republic and any law or act inconsistent with its provisions shall, unless otherwise provided expressly or by necessary implication in this Constitution, be of no force and effect to the extent of the inconsistency” [section ()]. [] Chapter  of the Constitution sets out the fundamental rights to which every person is entitled under the Constitution and also contains provisions dealing with the way in which the chapter is to be interpreted by the courts. It does not deal specifically with the death penalty, but in section () it prohibits “cruel, inhuman, or degrading treatment or punishment.” There is no definition of what is to be regarded as “cruel, inhuman, or degrading” and we therefore have to give meaning to these words ourselves. [] In S v. Zuma and Others [ () SA  (CC) ( () SACR )] this court dealt with the approach to be adopted in the interpretation of the fundamental rights enshrined in chapter  of the Constitution. It gave its approval to an approach which, whilst paying due regard to the language that has been used, is “generous” and “purposive” and gives expression to the underlying values of the Constitution. Acting Justice Kentridge, who delivered the judgment of the court, referred with approval to the following passage in the Canadian case of R v. Big M Drug Mart Ltd.: The meaning of a right or freedom guaranteed by the Charter was to be ascertained by an analysis of the purpose of such a guarantee; it was to be understood, in other words, in the light of the interests it was meant to protect. In my view this analysis is to be undertaken, and the purpose of the right or freedom in question is to be sought, by reference to the character and larger objects of the Charter itself, to the language chosen to articulate the specific right or freedom, to the historical origins of the concepts enshrined, and where applicable, to the meaning and purpose of the other specific rights and freedoms with which it is associated within the text of the Charter. The

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interpretation should be . . . a generous rather than a legalistic one, aimed at fulfilling the purpose of the guarantee and securing for individuals the full benefit of the Charter’s protection.

[] Without seeking in any way to qualify anything that was said in the Zuma case, I need say no more in this judgment than that section () of the Constitution must not be construed in isolation, but in its context, which includes the history and background to the adoption of the Constitution, other provisions of the Constitution itself and, in particular, the provisions of chapter  of which it is part. It must also be construed in a way that secures for “individuals the full measure” of its protection. Rights with which section () is associated in chapter  of the Constitution, and which are of particular importance to a decision on the constitutionality of the death penalty, are included in section , “every person shall have the right to life”; section , “every person shall have the right to respect for and protection of his or her dignity”; and section , “every person shall have the right to equality before the law and to equal protection of the law.” Punishment must meet the requirements of sections , , and ; and this is so whether these sections are treated as giving meaning to section () or as prescribing separate and independent standards with which all punishments must comply.

Section ()—Cruel, Inhuman, or Degrading Punishment [] Death is the most extreme form of punishment to which a convicted criminal can be subjected. Its execution is final and irrevocable. It puts an end not only to the right to life itself, but to all other personal rights that had vested in the deceased under chapter  of the Constitution. It leaves nothing except the memory in others of what has been and the property that passes to the deceased’s heirs. In the ordinary meaning of the words, the death sentence is undoubtedly a cruel punishment. Once sentenced, the prisoner waits on death row, in the company of other prisoners under sentence of death, for the processes of their appeals and the procedures for clemency to be carried out. Throughout this period, those who remain on death row are uncertain of their fate, not knowing whether they will ultimately be reprieved or taken to the gallows. Death is a cruel penalty and the legal processes, which necessarily involve waiting in uncertainty for the sentence to be set aside or carried out, add to the cruelty. It is also an inhuman punishment for it “involves, by its very nature, a denial of the executed person’s humanity” [Furman v Georgia,  US  () at ], and it is degrading because it strips the convicted person of all dignity and treats him or her as an object to be eliminated by the state. The question is not, however, whether the death sentence is a cruel, inhuman, or degrading punishment in the ordinary meaning of these words but whether it is a cruel, inhuman, or degrading punishment within the meaning of section () of our Constitution. The accused, who rely on section () of the Constitution, carry the initial onus of establishing this proposition.

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Legal Cases (–)

The Contentions of the Parties [] The principal arguments advanced by counsel for the accused in support of their contention that the imposition of the death penalty for murder is a “cruel, inhuman, or degrading punishment” were that the death sentence is an affront to human dignity, is inconsistent with the unqualified right to life entrenched in the Constitution, cannot be corrected in case of error or enforced in a manner that is not arbitrary, and that it negates the essential content of the right to life and the other rights that flow from it. The attorney general argued that the death penalty is recognized as a legitimate form of punishment in many parts of the world, it is a deterrent to violent crime, it meets society’s need for adequate retribution for heinous offenses, and it is regarded by South African society as an acceptable form of punishment. He asserted that it is, therefore, not cruel, inhuman, or degrading within the meaning of section () of the Constitution. These arguments for and against the death sentence are well known and have been considered in many of the foreign authorities and cases to which we were referred. We must deal with them now in the light of the provisions of our own Constitution. The Right to Dignity [] Although the United States Constitution does not contain a specific guarantee of human dignity, it has been accepted by the United States Supreme Court that the concept of human dignity is at the core of the prohibition of “cruel and unusual punishment” by the Eighth and Fourteenth Amendments. For Justice Brennan this was decisive of the question in Gregg v. Georgia [ US  ()]: The fatal constitutional infirmity in the punishment of death is that it treats members of the human race as nonhumans, as objects to be toyed with and discarded. (It is) thus inconsistent with the fundamental premise of the Clause that even the vilest criminal remains a human being possessed of common human dignity.

[] Under our constitutional order the right to human dignity is specifically guaranteed. It can only be limited by legislation that passes the stringent test of being “necessary.” The weight given to human dignity by Justice Brennan is wholly consistent with the values of our Constitution and the new order established by it. It is also consistent with the approach to extreme punishments followed by courts in other countries. [] In Germany, the Federal Constitutional Court has stressed this aspect of punishment: “Respect for human dignity especially requires the prohibition of cruel, inhuman, and degrading punishments. [The state] cannot turn the offender into an object of crime prevention to the detriment of his constitutionally protected right to social worth and respect” [()  BVerfGE  at ].

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[] That capital punishment constitutes a serious impairment of human dignity has also been recognized by judgments of the Canadian Supreme Court. [Joseph] Kindler v. Canada [()  CRR (d)  (SC)] was concerned with the extradition from Canada to the United States of two fugitives, Kindler, who had been convicted of murder and sentenced to death in the United States, and Ng, who was facing a murder charge there and a possible death sentence. Three of the seven judges who heard the cases expressed the opinion that the death penalty was cruel and unusual: “It is the supreme indignity to the individual, the ultimate corporal punishment, the final and complete lobotomy and the absolute and irrevocable castration. [It is] the ultimate desecration of human dignity.” [] Three other Judges were of the opinion that “[t]here is strong ground for believing, having regard to the limited extent to which the death penalty advances any valid penological objectives and the serious invasion of human dignity it engenders, that the death penalty cannot, except in exceptional circumstances, be justified in this country.” In the result, however, the majority of the court held that the validity of the order for extradition did not depend upon the constitutionality of the death penalty in Canada, or the guarantee in its Charter of Rights against cruel and unusual punishment. The charter was concerned with legislative and executive acts carried out in Canada, and an order for extradition neither imposed nor authorized any punishment within the borders of Canada. [] The issue in the Kindler case was whether the action of the minister of justice, who had authorized the extradition without any assurance that the death penalty would not be imposed, was constitutional. It was argued that this executive act was contrary to section  of the charter, which requires the executive to act in accordance with fundamental principles of justice. The court decided by a majority of four to three that in the particular circumstances of the case the decision of the minister of justice could not be set aside on these grounds. In balancing the international obligations of Canada in respect of extradition, and another purpose of the extradition legislation—to prevent Canada from becoming a safe haven for criminals, against the likelihood that the fugitives would be executed if returned to the United States, the view of the majority was that the decision to return the fugitives to the United States could not be said to be contrary to the fundamental principles of justice. In their view, it would not shock the conscience of Canadians to permit this to be done.

The International Covenant on Civil and Political Rights [] Ng and Kindler took their cases to the Human Rights Committee of the United Nations, contending that Canada had breached its obligations under the International Covenant on Civil and Political Rights. Once again, there was a division of opinion within the tribunal. In Ng [v. Canada] it was said: “The committee is aware that, by definition, every execution of a sentence of death may be considered to constitute cruel and inhuman treatment within the meaning of article  of the Covenant.”

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Legal Cases (–)

[] There was no dissent from that statement. But the International Covenant contains provisions permitting, with some qualifications, the imposition of capital punishment for the most serious crimes. In view of these provisions, the majority of the committee was of the opinion that the extradition of fugitives to a country that enforces the death sentence in accordance with the requirements of the International Covenant should not be regarded as a breach of the obligations of the extraditing country. In the Ng case the method of execution, which he would face if extradited, was asphyxiation in a gas chamber. This was found by a majority of the committee to involve unnecessary physical and mental suffering and, notwithstanding the sanction given to capital punishment, to be cruel punishment within the meaning of article  of the International Covenant. In the Kindler case, in which the complaint was delivered at the same time as that in the Ng case, but the decision was given earlier, it was held that the method of execution, which was by lethal injection, was not a cruel method of execution, and that the extradition did not in the circumstances constitute a breach of Canada’s obligations under the International Covenant. [] The committee also held in the Kindler case that prolonged judicial proceedings giving rise to the death row phenomenon do not per se constitute cruel, inhuman or degrading treatment. There were dissents in both cases. Some Commissioners in the Ng case held that asphyxiation was not crueler than other forms of execution. Some in the Kindler case held that the provision of the International Covenant against the arbitrary deprivation of the right to life took priority over the provisions of the International Covenant which allow the death sentence, and that Canada ought not in the circumstances to have extradited Kindler without an assurance that he would not be executed. [] It should be mentioned here that although article ()–() of the International Covenant specifically allows the imposition of the death sentence under strict controls “for the most serious crimes” by those countries which have not abolished it, it provides in article () that “[n]othing in this article shall be invoked to delay or to prevent the abolition of capital punishment by any state party to the present Covenant.” The fact that the International Covenant sanctions capital punishment must be seen in this context. It tolerates, but does not provide justification for, the death penalty. [] Despite these differences of opinion, what is clear from the decisions of the Human Rights Committee of the United Nations is that the death penalty is regarded by it as cruel and inhuman punishment within the ordinary meaning of those words, and that it was because of the specific provisions of the International Covenant authorizing the imposition of capital punishment by member states in certain circumstances that the words had to be given a narrow meaning.

The European Convention on Human Rights [] Similar issues were debated by the European Court of Human Rights in Soering v. United Kingdom [()  EHRR  at paras , , and ]. This case

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was also concerned with the extradition to the United States of a fugitive to face murder charges, for which capital punishment was a competent sentence. It was argued that this would expose him to inhuman and degrading treatment or punishment in breach of article  of the European Convention on Human Rights. Article  of the European Convention protects the right to life but makes an exception in the case of “the execution of a sentence of a court following (the) conviction of a crime for which this penalty is provided by law.” The majority of the court held that article  could not be construed as prohibiting all capital punishment, since to do so would nullify article . It was, however, competent to test the imposition of capital punishment in particular cases against the requirements of article — the manner in which it is imposed or executed, the personal circumstances of the condemned person and the disproportionality to the gravity of the crime committed, as well as the conditions of detention awaiting execution, were capable of bringing the treatment or punishment received by the condemned person within the proscription. [] On the facts, it was held that extradition to the United States to face trial in Virginia would expose the fugitive to the risk of treatment going beyond the threshold set by article . The special factors taken into account were the youth of the fugitive (he was  at the time of the murders), an impaired mental capacity, and the suffering on death row which could endure for up to eight years if he were convicted. Additionally, although the offense for which extradition was sought had been committed in the United States, the fugitive, who was a German national, was also liable to be tried for the same offense in Germany. Germany, which has abolished the death sentence, also sought his extradition for the murders. There was accordingly a choice in regard to the country to which the fugitive should be extradited, and that choice should have been exercised in a way that would not lead to a contravention of article . What weighed with the court was the fact that the choice facing the United Kingdom was not a choice between extradition to face a possible death penalty and no punishment, but a choice between extradition to a country that allows the death penalty and one that does not. We are in a comparable position. A holding by us that the death penalty for murder is unconstitutional does not involve a choice between freedom and death; it involves a choice between death in the very few cases which would otherwise attract that penalty under section ()(a), and the severe penalty of life imprisonment.

Capital Punishment in India [] In the amicus brief of the South African Police, reliance was placed on decisions of the Indian Supreme Court, and it is necessary to refer briefly to the way the law has developed in that country. [] Section  of the Indian Penal Code authorizes the imposition of the death sentence as a penalty for murder. In Bachan Singh v. State of Punjab [()  SCC ], the constitutionality of this provision was put in issue. Article  of the Indian

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Legal Cases (–)

Constitution provides that “[n]o person shall be deprived of his life or personal liberty except according to procedure established by law.” [] The wording of this article presented an obstacle to a challenge to the death sentence, because there was a “law” that made provision for the death sentence. Moreover, article  of the Constitution empowers the president and governors to commute sentences of death, and article  refers to the Supreme Court’s powers on appeal in cases where the death sentence has been imposed. It was clear therefore, that capital punishment was specifically contemplated and sanctioned by the framers of the Indian Constitution when it was adopted by them in November . [] Counsel for the accused in the Bachan Singh case sought to overcome this difficulty by contending that article  had to be read with article (), which guarantees the freedoms of speech, of assembly, of association, of movement, of residence, and the freedom to engage in any occupation. These fundamental freedoms can only be restricted under the Indian Constitution if the restrictions are reasonable for the attainment of a number of purposes defined in section ()–(). It was contended that the right to life was basic to the enjoyment of these fundamental freedoms, and that the death sentence restricted them unreasonably in that it served no social purpose, its deterrent effect was unproven and it defiled the dignity of the individual. [] The Supreme Court analyzed the provisions of article () and came to the conclusion, for reasons that are not material to the present case that the provisions of section  of the Indian Penal Code did “not have to stand the test of article () of the Constitution.” It went on, however, to consider “arguendo” what the outcome would be if the test of reasonableness and public interest under article () had to be satisfied. [] The Supreme Court had recognized in a number of cases that the death sentence served as a deterrent, and the Law Commission of India, which had conducted an investigation into capital punishment in , had recommended that capital punishment be retained. The court held that in the circumstances it was “for the petitioners to prove and establish that the death sentence for murder is so outmoded, unusual or excessive as to be devoid of any rational nexus with the purpose and object of the legislation.” [] The court then dealt with international authorities for and against the death sentence, and with the arguments concerning deterrence and retribution. After reviewing the arguments for and against the death sentence, the court concluded that: [T]he question whether or not [the] death penalty serves any penological purpose is a difficult, complex and intractable issue [that] has evoked strong, divergent views. For the purpose of testing the constitutionality of the impugned provisions as to death penalty . . . on the grounds of reasonableness in the light of articles  and  of the Constitution, it is not necessary for us to express any categorical opinion, one way or another, as to which of these

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antithetical views, held by the Abolitionists and the Retentionists, is correct. It is sufficient to say that the very fact that persons of reason, learning and light are rationally and deeply divided in their opinion on this issue, is ground among others, for rejecting the petitioners’ argument that retention of death penalty in the impugned provision, is totally devoid of reason and purpose.

It accordingly held that section  of the Indian Penal Code “violates neither the letter nor the ethos of article .” [] The court then went on to deal with article . It said that if article  were to be expanded in accordance with the interpretative principle applicable to legislation limiting rights under article (), article  would have to be read as follows: “No person shall be deprived of his life or personal liberty except according to fair, just and reasonable procedure established by a valid law.” And thus expanded, it was clear that the state could deprive a person of his or her life by “fair, just and reasonable procedure.” In the circumstances, and taking into account the indications that capital punishment was considered by the framers of the Constitution in  to be a valid penalty, it was asserted that “by no stretch of the imagination can it be said that [the] death penalty . . . either per se or because of its execution by hanging constitutes an unreasonable, cruel or unusual punishment” prohibited by the Constitution. [] The wording of the relevant provisions of our Constitution is different. The question we have to consider is not whether the imposition of the death sentence for murder is “totally devoid of reason and purpose,” or whether the death sentence for murder “is devoid of any rational nexus” with the purpose and object of section ()(a) of the Criminal Procedure Act. It is whether, in the context of our Constitution, the death penalty is cruel, inhuman, or degrading, and if it is, whether it can be justified in terms of section . [] The Indian Penal Code leaves the imposition of the death sentence to the trial judge’s discretion. In the Bachan Singh case there was also a challenge to the constitutionality of the legislation on the grounds of arbitrariness, along the lines of the challenges that have been successful in the United States. The majority of the court rejected the argument that the imposition of the death sentence in such circumstances is arbitrary, holding that discretion exercised judicially by persons of experience and standing, in accordance with principles crystallized by judicial decisions, is not an arbitrary discretion. To complete the picture, it should be mentioned that long delays in carrying out the death sentence in particular cases have apparently been held in India to be unjust and unfair to the prisoner, and in such circumstances the death sentence is liable to be set aside.

The Right to Life [] The unqualified right to life vested in every person by section  of our Constitution is another factor crucially relevant to the question whether the death sentence is cruel, inhuman or degrading punishment within the meaning of section () of

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our Constitution. In this respect our Constitution differs materially from the Constitutions of the United States and India. It also differs materially from the European Convention and the International Covenant. Yet in the cases decided under these constitutions and treaties there were Judges who dissented and held that, notwithstanding the specific language of the constitution or instrument concerned, capital punishment should not be permitted. [] In some instances the dissent focused on the right to life. In the Soering case before the European Court of Human Rights, Judge De Meyer, in a concurring opinion, said that capital punishment is “not consistent with the present state of European civilization” and for that reason alone, extradition to the United States would violate the fugitive’s right to life. [] In a dissent in the United Nations Human Rights Committee in the Kindler case, committee member B. Wennergren also stressed the importance of the right to life. The value of life is immeasurable for any human being, and the right to life enshrined in article  of the Covenant is the supreme human right. It is an obligation of state parties to the Covenant to protect the lives of all human beings on their territory and under their jurisdiction. If issues arise in respect of the protection of the right to life, priority must not be accorded to the domestic laws of other countries or to [bilateral] treaty articles. Discretion of any nature permitted under an extradition treaty cannot apply, as there is no room for it under Covenant obligations. It is worth repeating that no derogation from a state’s obligations under article , paragraph , is permitted. This is why Canada, in my view, violated article , paragraph , by consenting to extradite Mr. Kindler to the United States, without having secured assurances that Mr. Kindler would not be subjected to the execution of the death sentence.

[] An individual’s right to life has been described as “[t]he most fundamental of all human rights,” and was dealt with in that way in the judgments of the Hungarian Constitutional Court declaring capital punishment to be unconstitutional. The challenge to the death sentence in Hungary was based on section  of its Constitution which provides: () In the Republic of Hungary everyone has the inherent right to life and to human dignity, and no one shall be arbitrarily deprived of these rights. () No one shall be subjected to torture or to cruel or inhuman or degrading punishment.

[] Section , the counterpart of section  of our Constitution, provides that laws shall not impose any limitations on the essential content of fundamental rights.

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According to the finding of the court, capital punishment imposed a limitation on the essential content of the fundamental rights to life and human dignity, eliminating them irretrievably. As such it was unconstitutional. Two factors are stressed in the judgment of the court. Firstly, the relationship between the rights of life and dignity, and the importance of these rights are taken together. Secondly, the absolute nature of these two rights is taken together. Together they are the source of all other rights. Other rights may be limited, and may even be withdrawn and then granted again, but their ultimate limit is to be found in the preservation of the twin rights of life and dignity. These twin rights are the essential content of all rights under the Constitution. Take them away, and all other rights cease. I will deal later with the requirement of our Constitution that a right shall not be limited in ways that negate its essential content. For the present purposes it is sufficient to point to the fact that the Hungarian Court held capital punishment to be unconstitutional on the grounds that it is inconsistent with the right to life and the right to dignity. [] Our Constitution does not contain the qualification found in section () of the Hungarian Constitution, which prohibits only the arbitrary deprivation of life. To that extent, therefore, the right to life in section  of our Constitution is given greater protection than it is by the Hungarian Constitution. [] The fact that in both the United States and India, which sanction capital punishment, the highest courts have intervened on constitutional grounds in particular cases to prevent the carrying out of death sentences because, in the particular circumstances of such cases, it would have been cruel to do so, evidences the importance attached to the protection of life and the strict scrutiny to which the imposition and carrying out of death sentences are subjected when a constitutional challenge is raised. The same concern is apparent in the decisions of the European Court of Human Rights and the United Nations Committee on Human Rights. It led the court in the Soering case to order that extradition to the United States, in the circumstances of that case, would result in inhuman or degrading punishment, and the Human Rights Committee to declare in the Ng case that he should not be extradited to face a possible death by asphyxiation in a gas chamber in California.

Public Opinion [] The attorney general argued that what is cruel, inhuman, or degrading depends to a large extent upon contemporary attitudes within society, and that South African society does not regard the death sentence for extreme cases of murder as a cruel, inhuman, or degrading form of punishment. It was disputed whether public opinion, properly informed of the different considerations, would in fact favor the death penalty. I am, however, prepared to assume that it does and that the majority of South Africans agree that the death sentence should be imposed in extreme cases of murder. The question before us, however, is not what the majority of South Africans believe a proper sentence for murder should be. It is whether the Constitution allows the sentence.

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[] Public opinion may have some relevance to the enquiry, but, in itself, it is no substitute for the duty vested in the courts to interpret the Constitution and to uphold its provisions without fear or favor. If public opinion were to be decisive, there would be no need for constitutional adjudication. The protection of rights could then be left to Parliament, which has a mandate from the public, and is answerable to the public for the way its mandate is exercised, but this would be a return to parliamentary sovereignty, and a retreat from the new legal order established by the  Constitution. By the same token the issue of the constitutionality of capital punishment cannot be referred to a referendum, in which a majority view would prevail over the wishes of any minority. The very reason for establishing the new legal order, and for vesting the power of judicial review of all legislation in the courts, was to protect the rights of minorities and others who cannot protect their rights adequately through the democratic process. Those who are entitled to claim this protection include the social outcasts and marginalized people of our society. It is only if there is a willingness to protect the worst and the weakest amongst us that all of us can be secure that our own rights will be protected. [] This court cannot allow itself to be diverted from its duty to act as an independent arbiter of the Constitution by making choices on the basis that they will find favor with the public. Justice Powell’s comment in his dissent in Furman v. Georgia [ US  ()] bears repetition: [T]he weight of the evidence indicates that the public generally has not accepted either the morality or the social merit of the views so passionately advocated by the articulate spokesmen for abolition. But however one may assess amorphous ebb and flow of public opinion generally on this volatile issue, this type of inquiry lies at the periphery—not the core—of the judicial process in constitutional cases. The assessment of popular opinion is essentially a legislative, and not a judicial, function.

So too does the comment of Justice Jackson in West Virginia State Board of Education v. Barnette: The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.

Cruel, Inhuman, and Degrading Punishment [] The United Nations Committee on Human Rights has held that the death sentence by definition is cruel and degrading punishment. So has the Hungarian Con-

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stitutional Court, and three judges of the Canadian Supreme Court. The death sentence has also been held to be cruel or unusual punishment and thus unconstitutional under the state constitutions of Massachusetts and California. [] The California decision is People v. Anderson. Capital punishment was held by six of the seven judges of the Californian Supreme Court to be “impermissibly cruel” under the California Constitution, which prohibited cruel or unusual punishment. Also: “It degrades and dehumanizes all who participate in its processes. It is unnecessary to any legitimate goal of the state and is incompatible with the dignity of man and the judicial process.” [] In the Massachusetts decision in District Attorney for the Suffolk v. Watson [ Mass  ()], where the Constitution of the State of Massachusetts prohibited cruel or unusual punishment, the death sentence was also held, by six of the seven judges, to be impermissibly cruel. [] In both cases the disjunctive effect of “or” was referred to as enabling the courts to declare capital punishment unconstitutional even if it was not “unusual.” Under our Constitution it will not meet the requirements of section () if it is cruel, or inhuman, or degrading. [] Proportionality is an ingredient to be taken into account in deciding whether a penalty is cruel, inhuman, or degrading. No court would today uphold the constitutionality of a statute that makes the death sentence a competent sentence for the cutting down of trees or the killing of deer, which were capital offenses in England in the th century. But murder is not to be equated with such “offenses.” The willful taking of an innocent life calls for a severe penalty, and there are many countries that still retain the death penalty as a sentencing option for such cases. Disparity between the crime and the penalty is not the only ingredient of proportionality; factors such as the enormity and irredeemable character of the death sentence in circumstances where neither error nor arbitrariness can be excluded, the expense and difficulty of addressing the disparities which exist in practice between accused persons facing similar charges, and which are due to factors such as race, poverty, and ignorance, and the other subjective factors which have been mentioned, are also factors that can and should be taken into account in dealing with this issue. It may possibly be that none alone would be sufficient under our Constitution to justify a finding that the death sentence is cruel, inhuman, or degrading. But these factors are not to be evaluated in isolation. They must be taken together, and in order to decide whether the threshold set by section () has been crossed they must be evaluated with other relevant factors, including the two fundamental rights on which the accused rely, the right to dignity and the right to life. [] The carrying out of the death sentence destroys life, which is protected without reservation under section  of our Constitution, it annihilates human dignity, which is protected under section , elements of arbitrariness are present in its enforcement and it is irremediable. Taking these factors into account, as well as the assumption that I have made in regard to public opinion in South Africa, and giving

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the words of section () the broader meaning to which they are entitled at this stage of the enquiry, rather than a narrow meaning, I am satisfied that in the context of our Constitution the death penalty is indeed a cruel, inhuman, and degrading punishment. [] “Every person” is entitled to claim the protection of the rights enshrined in chapter , and “no” person shall be denied the protection that they offer. Respect for life and dignity, which are at the heart of section (), are values of the highest order under our Constitution. The carrying out of the death penalty would destroy these and all other rights that the convicted person has, and a clear and convincing case must be made out to justify such action. [] In the course of his argument the attorney general contended that if sentences imposed by the courts on convicted criminals are too lenient, the law will be brought into disrepute, and members of society will then take the law into their own hands. Law is brought into disrepute if the justice system is ineffective and criminals are not punished. But if the justice system is effective and criminals are apprehended, brought to trial and in serious cases subjected to severe sentences, the law will not fall into disrepute. We have made the commitment to “a future founded on the recognition of human rights, democracy and peaceful coexistence . . . for all South Africans.” Respect for life and dignity lies at the heart of that commitment. One of the reasons for the prohibition of capital punishment is “that allowing the state to kill will cheapen the value of human life and thus (through not doing so) the state will serve in a sense as a role model for individuals in society.” Our country needs such role models. [] The attorney general also contended that if even one innocent life should be saved by the execution of perpetrators of vile murders, this would provide sufficient justification for the death penalty. The hypothesis that innocent lives might be saved must be weighed against the values underlying the Constitution, and the ability of the state to serve “as a role model.” In the long run more lives may be saved through the inculcation of a rights culture than through the execution of murderers. [] If the essential content of the right not to be subjected to cruel, inhuman, or degrading punishment is to be found in respect for life and dignity, the death sentence for murder, if viewed subjectively from the point of view of the convicted prisoner, clearly negates the essential content of the right. But if it is viewed objectively from the point of view of a constitutional norm that requires life and dignity to be protected, the punishment does not necessarily negate the essential content of the right. It has been argued before this court that one of the purposes of such punishment is to protect the life and hence the dignity of innocent members of the public, and if it in fact does so, the punishment will not negate the constitutional norm. On this analysis it would, however, have to be shown that the punishment serves its intended purpose. This would involve a consideration of the deterrent and preventative effects of the punishment and whether they add anything to the alternative of life imprisonment. If they do not, they cannot be said to serve a life protecting purpose. If the

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negation were viewed both objectively and subjectively, the ostensible purpose of the punishment would have to be weighed against the destruction of the individual’s life. For the purpose of that analysis the element of retribution would have to be excluded and the “life saving” quality of the punishment would have to be established. [] It is however, not necessary to solve this problem in the present case. At the very least the provision evinces concern that, under the guise of limitation, rights should not be taken away altogether. It was presumably the same concern that influenced Chief Justice Dickson to say in R v. Oakes that rights should be limited “as little as possible,” and the German Constitutional Court to hold in the life imprisonment case that all possibility of parole ought not to be excluded.

The Balancing Process [] In the balancing process, deterrence, prevention, and retribution must be weighed against the alternative punishments available to the state, and the factors which, taken together, make capital punishment cruel, inhuman, and degrading: the destruction of life, the annihilation of dignity, the elements of arbitrariness, inequality, and the possibility of error in the enforcement of the penalty. [] The attorney general argued that the right to life and the right to human dignity were not absolute concepts. Like all rights they have their limits. One of those limits is that a person who murders in circumstances where the death penalty is permitted by section  forfeits his or her right to claim protection of life and dignity. He sought to support this argument by reference to the principles of selfdefense. If the law recognizes the right to take the life of a wrongdoer in a situation in which self-defense is justified, then, in order to deter others, and to ensure that the wrongdoer does not again kill an innocent person, why should it not recognize the power of the state to take the life of a convicted murderer? Conversely, if the death sentence negates the essential content of the right to life, how can the taking of the life of another person in self-defense, or even to protect the state itself during war or rebellion, ever be justified? [] This argument is fallacious. The rights vested in every person by chapter  of the Constitution are subject to limitation under section . In times of emergency some may be suspended in accordance with the provisions of section  of the Constitution. But, subject to this, the rights vest in every person, including criminals convicted of vile crimes. Such criminals do not forfeit their rights under the Constitution and are entitled, as all in our country now are, to assert these rights, including the right to life, the right to dignity and the right not to be subjected to cruel, inhuman, or degrading punishment. Whether or not a particular punishment is inconsistent with these rights depends upon an interpretation of the relevant provisions of the Constitution, and not upon a moral judgment that a murderer should not be allowed to claim them. [] The attorney general argued that all punishment involves an impairment of dignity. Imprisonment, which is the alternative to the death sentence, severely

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limits a prisoner’s fundamental rights and freedoms. There is only the barest freedom of movement or of residence in prison, and other basic rights such as freedom of expression and freedom of assembly are severely curtailed. [] Dignity is inevitably impaired by imprisonment or any other punishment, and the undoubted power of the state to impose punishment as part of the criminal justice system necessarily involves the power to encroach upon a prisoner’s dignity. But a prisoner does not lose all his or her rights on entering prison: [Prisoners retain] those absolute natural rights relating to personality, to which every man is entitled. True, [their] freedom had been greatly impaired by the legal process of imprisonment; but they were entitled to demand respect for what remained. The fact that their liberty had been legally curtailed could afford no excuse for a further legal encroachment upon it. [It was] contended that the [prisoners], once in prison, could claim only such rights as the Ordinance and the regulations conferred. But the directly opposite view is surely the correct one. They were entitled to all their personal rights and personal dignity not temporarily taken away by law, or necessarily inconsistent with the circumstances in which they had been placed. (Whittaker v. Roos and Bateman  AD  at –)

[] A prisoner is not stripped naked, bound, gagged, and chained to his or her cell. The right of association with other prisoners, the right to exercise, to write and receive letters, and the rights of personality referred to by Justice Innes are of vital importance to prisoners and highly valued by them precisely because they are confined, have only limited contact with the outside world, and are subject to prison discipline. Imprisonment is a severe punishment; but prisoners retain all the rights to which every person is entitled under chapter , subject only to limitations imposed by the prison regime that are justifiable under section . Of these, none is more important than the section () right not to be subjected to “torture of any kind . . . nor to cruel, inhuman or degrading treatment or punishment.” There is a difference between encroaching upon rights for the purpose of punishment and destroying them altogether. It is that difference with which we are concerned in the present case.

Conclusion [] The rights to life and dignity are the most important of all human rights, and the source of all other personal rights in chapter . By committing ourselves to a society founded on the recognition of human rights we are required to value these two rights above all others. And this must be demonstrated by the state in everything that it does, including the way it punishes criminals. This is not achieved by objectifying murderers and putting them to death to serve as an example to others in the expectation that they might possibly be deterred thereby.

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[] In the balancing process the principal factors that have to be weighed are, on the one hand, the destruction of life and dignity that is a consequence of the implementation of the death sentence, the elements of arbitrariness and the possibility of error in the enforcement of capital punishment, and the existence of a severe alternative punishment (life imprisonment) and, on the other, the claim that the death sentence is a greater deterrent to murder, and will more effectively prevent its commission than would a sentence of life imprisonment, and that there is a public demand for retributive justice to be imposed on murderers, which only the death sentence can meet. [] Retribution cannot be accorded the same weight under our Constitution as the rights to life and dignity, which are the most important of all the rights in chapter . It has not been shown that the death sentence would be materially more effective to deter or prevent murder than the alternative sentence of life imprisonment would be. Taking these factors into account, as well as the elements of arbitrariness and the possibility of error in enforcing the death penalty, the clear and convincing case that is required to justify the death sentence as a penalty for murder has not been made out. The requirements of section () have accordingly not been satisfied, and it follows that the provisions of section ()(a) of the Criminal Procedure Act  of  must be held to be inconsistent with section () of the Constitution. In the circumstances, it is not necessary for me to consider whether the section would also be inconsistent with sections , , or  of the Constitution if they had been dealt with separately and not treated together as giving meaning to section (). JUSTICE ACKERMANN [] I concur fully in the judgment of the president, both regarding his conclusions and his reasons therefore save in the respects hereinafter set forth. I also agree with the order proposed by him. [] I place greater emphasis on the inevitably arbitrary nature of the decision involved in the imposition of the death penalty as a form of punishment in supporting the conclusion that it constitutes “cruel,” “inhuman,” and “degrading punishment” within the meaning of section () of the Constitution, which cannot be saved by section (). [] In paragraphs – of his judgment the President deals with the arbitrariness and inequality of the death penalty. He deals (more particularly in paragraphs  and ) with the difficulties faced by the US Supreme Court in trying to eliminate the dangers of arbitrariness by employing the due process provisions of the Fifth and Fourteenth Amendments. Such efforts cause considerable expense and interminable delays, and the President concludes by expressing the view that we should not follow the United States route. I agree, but that does not mean that we ought not to accord greater weight to considerations of arbitrariness and inequality.

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Legal Cases (–)

The US Supreme Court has been obliged to follow the route it did because, so it seems to me, their Constitution postulates (by implication) that it is possible to devise due process mechanisms which can deal with the arbitrary and unequal features of death sentence imposition. We are not so constrained. Our right to life is not qualified in the way it is qualified in the Fifth and Fourteenth Amendments of the US Constitution. We are not constitutionally constrained to accept the arbitrary consequences of the imposition of the death penalty. [] The preamble to the Constitution refers to the creation of a new order in a state, which, amongst other things, is described as a “constitutional state.” Section () declares the Constitution to be the “supreme law of the Republic” which, by virtue of section (), “binds all legislative, executive and judicial organs of state at all levels of Government.” Every person’s right to equality before the law is entrenched in section (), and in section () a substantial number of different grounds of unfair discrimination are prohibited. The constitutional importance of equality is further underscored in section (), which enjoins the courts to promote the values that underlie an open and democratic society based on freedom and equality in interpreting the provisions of chapter . [] In reaction to our past, the concept and values of the constitutional state, of the “regstaat,” or Rechtsstaat and the constitutional right to equality before the law are deeply foundational to the creation of the “new order” referred to in the preamble. The detailed enumeration and description in section () of the criteria which must be met before the Legislature can limit a right entrenched in chapter  of the Constitution emphasize the importance, in our new constitutional state, of reason and justification when rights are sought to be curtailed. We have moved from a past characterized by much that was arbitrary and unequal in the operation of the law to a present and a future in a constitutional state where state action must be such that it is capable of being analyzed and justified rationally. The idea of the constitutional state presupposes a system whose operation can be rationally tested against or in terms of the law. Arbitrariness, by its very nature, is dissonant with these core concepts of our new constitutional order. Neither arbitrary action nor laws or rules, which are inherently arbitrary or must lead to arbitrary application, can, in any real sense, be tested against the precepts or principles of the Constitution. Arbitrariness must also inevitably, by its very nature, lead to the unequal treatment of persons. Arbitrary action or decision-making is incapable of providing a rational explanation as to why similarly placed persons are treated in a substantially different way. Without such a rational justifying mechanism, unequal treatment must follow. [] It is in the context of our (textually) unqualified section  right to life that I find certain observations in the US decisions supportive on the issue and consequences of arbitrariness. We are free to look at the incidence and consequences of arbitrariness without being constrained by a constitutional authorization (whether explicit or implicit) of the death penalty. One must of course constantly bear in mind that the relevant criteria in the Eighth Amendment of the US Constitution

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also differ from those in section () of our Constitution. Whereas in the former they are “cruel and unusual,” in the latter they are “cruel, inhuman or degrading.” [] In Furman v. Georgia [ US  ()], the US Supreme Court had to consider a case where the determination of whether the penalty for murder and rape should be death or another punishment was left by the state of Georgia to the discretion of the judge or of the jury. In the course of his judgment Justice Douglas referred with approval to the following comments in a journal article: “A penalty . . . should be considered ‘unusually’ imposed if it is administered arbitrarily or discriminatingly. . . . The extreme rarity with which applicable death penalty provisions are put to use raises a strong inference of arbitrariness.” He further expressed the view that “[t]he high service rendered by the “cruel and unusual” punishment clause of the Eighth Amendment is to require legislatures to write penal laws that are evenhanded, nonselective, and nonarbitrary.” [] On the issue of arbitrariness Justice Brennan observed in Furman that: In determining whether a punishment comports with human dignity, we are aided also by a second principle inherent in the (Cruel and Unusual Punishments) Clause—that the state must not arbitrarily inflict a severe punishment. This principle derives from the notion that the state does not respect human dignity when, without reason, it inflicts upon some people a severe punishment that it does not inflict upon others.

[] I am mindful of the fact that it is virtually impossible (save in the case of rigidly circumscribed mandatory sentences—which present other dangers) to avoid elements of arbitrariness in the imposition of any punishment. Arbitrary elements are present in the difficult decision to send an offender to prison for the first time, or in deciding what the appropriate length of the prison sentence should be in any case where it is imposed. However, the consequences of the death sentence, as a form of punishment, differ so radically from any other sentence that the death sentence differs not only in degree but also in substance from any other form of punishment. A sentence that preserves life differs incomparably from one that obliterates life. The executed person has, in fact, “lost the right to have rights” [Trop v. Dulles  US  () at ]. In this sense the death sentence is unique and the dimension and consequences of arbitrariness in its imposition differ fundamentally from the dimension and consequences of arbitrariness in the imposition of any other punishment. [] In paragraphs – of his judgment the president has referred to the relevant statutory provisions prescribing the tests to be applied for the imposition of the death sentence and the guidelines laid down for their application by the Appellate Division of the Supreme Court. In the end, whatever guidelines are employed, a process of weighing up has to take place between “mitigating factors” (if any) and “aggravating factors” and thereafter a value judgment made as to whether “the sen-

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tence of death is the proper sentence.” I am not suggesting that the statutory provisions could have been better formulated or that the Appellate Division guidelines could be improved upon. The fact of the matter is that they leave such wide latitude for differences of individual assessment, evaluation, and normative judgment, that they are inescapably arbitrary to a marked degree. There must be many borderline cases where two courts, with the identical accused and identical facts, would undoubtedly come to different conclusions. I have no doubt that even on a court composed of members of the genus Hercules and Athena there would in many cases be differences of opinion, incapable of rational elucidation, on whether to impose the death penalty in a particular case, where its imposition was, as in the case of section () of the Criminal Procedure Act, dependent on the application of widely formulated criteria and the exercise of difficult value judgments. [] My conclusion is that the imposition of the death penalty is inevitably arbitrary and unequal. Whatever the scope of the right to life in section  of the Constitution may be, it unquestionably encompasses the right not to be deliberately put to death by the state in a way that is arbitrary and unequal. I would therefore hold that section ()(a) of the Criminal Procedure Act is inconsistent with the section  right to life. I would moreover also hold that it is inconsistent with section (). Where the arbitrary and unequal infliction of punishment occurs at the level of a punishment so unique as the death penalty, it strikes me as being cruel and inhuman. For one person to receive the death sentence where a similarly placed person does not is, in my assessment of values, cruel to the person receiving it. To allow chance, in this way, to determine the life or death of a person is to reduce the person to a cypher in a sophisticated judicial lottery. This is to treat the sentenced person as inhuman. When these considerations are taken in conjunction with those set forth by the president in his judgment, they render the death penalty a cruel, inhuman and degrading punishment. For the reasons expounded by the president in his judgment, and with which I fully agree, neither the infringement of section  nor of section () by section ()(a) of the Criminal Procedure Act can be saved by the provisions of section () of the Constitution. Accordingly the provisions of section ()(a) must be held to be inconsistent with sections  and () of the Constitution. [] In paragraphs – of his judgment the president alludes to the provision in section ()(b) of the Constitution that a limitation “shall not negate the essential content of the right in question” but, after referring to uncertainties concerning its meaning, finds it unnecessary to resolve the issue in the present case. In paragraph  he postulates, however, a subjective and an objective approach to the problem. I do not necessarily agree with his formulation of the objective approach. In my view it is unnecessary in the present case to say anything at all about the meaning to be attached to this provision. It is one that the framers of our Constitution borrowed in part from article () of the German Basic Law (Grundgesetz), which provides that: “In keinem Falle darf ein Grundrecht in seinem Wesensgehalt angetastet werden. [In no case may the essence of a basic right be encroached upon.]”

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There are obvious differences in the wording of the qualification. Nevertheless there is a wealth of German case law and scholarship on the topic. Without the fullest exposition of, and argument on, inter alia, the German jurisprudence in this regard, I consider it undesirable to express any view on the subject. JUSTICE DIDCOTT [] I appreciate the concern of not wishing to anticipate the issue as to whether life imprisonment, however executed and administered, is constitutional or not. At the same time I do not believe that the two issues can be kept in watertight separate juristic compartments. If the death penalty is to be abolished, as I believe it must, society is entitled to the assurance that the state will protect it from further harm from the convicted unreformed recidivist killer or rapist. If there is an individual right not to be put to death by the criminal justice system, there is a correlative obligation on the state, through the criminal justice system, to protect society from once again being harmed by the unreformed recidivist killer or rapist. The right and the obligation are inseparably part of the same constitutional state compact. [] Article  of the German Basic Law declares that capital punishment is abolished. The German Federal Constitutional Court considered the constitutionality of life imprisonment in . The provision in the criminal code that prescribes life imprisonment for murder was challenged on the basis that it conflicted with the protection afforded to human dignity (article .) and personal freedom (article .) in the German Basic Law. The court upheld the law on the basis that it was not shown that the serving of a sentence of life imprisonment leads to irreparable physical or psychological damage to the prisoner’s health. The court did, however, find that the right to human dignity demands a humane execution of the sentence. This meant that the existing law, which made provision for executive pardon, had to be replaced by a law laying down objective criteria for the release of prisoners serving life sentences. In the course of its judgment, the court made clear that there is nothing constitutionally objectionable to executing a life sentence in full in cases where the prisoner does not meet the criteria. At  of the judgment the court said: Die Menschenwürde wird auch dann nicht verletzt, wenn der Vollzug der Strafe wegen fortdauernder Gefährlichkeit des Gefangenen notwendig ist und sich aus diesem Grunde eine Begnadigung verbietet. Es ist der staatlichen Gemeinschaft nicht verwehrt, sich gegen einen gemeingefährlichen Straftäter durch Freiheitsentzug zu sichern. [Human dignity is not infringed when the execution of the sentence remains necessary due to the continuing danger posed by the prisoner and clemency is for this reason precluded. The state is not prevented from protecting the community from dangerous criminals by keeping them incarcerated.]

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[] Whether execution ranks also as a cruel, inhuman, or degrading punishment is a question that lends itself to no precise measurement. It calls for a value judgment in an area where personal opinions are prone to differ, a value judgment that can easily become entangled with or be influenced by one’s own moral attitude and feelings. Judgments of that order must often be made by courts of law, however, whose training and experience warns them against the trap of undue subjectivity. Such a judgment is now required from us, at all events, and would have been inescapable whichever way the question was answered. Nor do we lack guidance on it. A provision of the Zimbabwean Constitution which banned inhuman or degrading punishment was considered by their Supreme Court in Catholic Commission for Justice and Peace in Zimbabwe v. Attorney-General, Zimbabwe, and Others  () SA  (ZS). Chief Justice Gubbay had this to say about it (at I–B): It is a provision that embodies broad and idealistic notions of dignity, humanity and decency. It guarantees that punishment . . . of the individual be exercised within the ambit of civilized standards. Any punishment . . . incompatible with the evolving standards of decency that mark the progress of a maturing society, or which involve the infliction of unnecessary suffering, is repulsive. What might not have been regarded as inhuman decades ago may be revolting to the new sensitivities that emerge as civilization advances.

The same goes, I firmly believe, for our section (). Chief Justice Gubbay continued thus (at B–C): [A]n application of this approach to whether a form of . . . punishment . . . is inhuman or degrading is dependent upon the exercise of a value judgment . . . ; one that must not only take account of the emerging consensus of values in the civilized international community (of which this country is a part) . . . , but of contemporary norms operative in Zimbabwe and the sensitivities of its people.

I take that view here, too, where such norms and sensitivities are demonstrated, above all else, by the altruistic and humanitarian philosophy, which animates the Constitution enjoyed by us nowadays. [] Capital punishment was discussed at length in Furman v. State of Georgia  US  (), a case handled by the Supreme Court of the United States of America in which a comparably liberal philosophy was expounded by a number of the Judges hearing it. Justice Stewart described that sentence (at ) as “unique . . . in its absolute renunciation of all that is embodied in our concept of humanity.” Justice Brennan agreed, declaring in the same case (at  and ) that: Death is truly an awesome punishment. The calculated killing of a human being by the state involves, by its very nature, a denial of the executed person’s

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humanity. The contrast with the plight of a person punished by imprisonment is evident . . . prisoner remains a member of the human family. . . . In comparison to all other punishments . . . the deliberate extinguishment of human life by the state is uniquely degrading to human dignity.

The distinctive features of the penalty were emphasized by Justice Brennan elsewhere in his judgment, when he wrote (at  and ) that: Death is today an unusually severe punishment, unusual in its pain, in its finality, and in its enormity. No other existing punishment is comparable to death in terms of physical and mental suffering. . . . Since the discontinuance of flogging as a constitutionally permissible punishment . . . , death remains the only punishment that may involve the conscious infliction of physical pain. In addition, we know that mental pain is an inseparable part of our practice of punishing criminals by death, for the prospect of pending execution exacts a frightful toll during the inevitable long wait between the imposition of sentence and the actual infliction of death. . . . The unusual severity of death is manifested most clearly in its finality and enormity. Death, in these respects, is in a class by itself.

[] Whether capital punishment ought to be abolished or retained amounted, so it was said, to a question of policy that Parliament should decide, representing as it did the citizens of the country and expressing their general will. The issue is also, however, a constitutional one. It has been put before us squarely and properly. We cannot delegate to Parliament the duty that we bear to determine it, or evade that duty otherwise, but must perform it ourselves. In doing so, we were counseled in the alternative, we had to pay great attention to public opinion, which was said to favor the retention of the death penalty. We have no means of ascertaining whether that is indeed so, but I shall assume it to be the case. One may also assume, with a fair measure of confidence, that most members of the public who support capital punishment do so primarily in the belief that, owing to its uniquely deterrent force, they and their families are safer with than without its protection. The feeling is quite understandable, given its basis. But it deserves no further homage if the premise underlying and accounting for it is fallacious or unfounded, as I consider that one to be. To allow ourselves to be influenced unduly by public opinion would, in any event, be wrong. Powell J disparaged such external pressures on constitutional adjudication when he said in Furman v. State of Georgia (at ): [T]he weight of the evidence indicates that the public generally has not accepted either the morality or the social merit of the views so passionately advocated by the articulate spokesmen for abolition. But however one may assess [the] amorphous ebb and flow of public opinion generally on this

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volatile issue, this type of enquiry lies at the periphery—not the core—of the judicial process in constitutional cases. The assessment of popular opinion is essentially a legislative, not a judicial, function.

In similar vein were these remarks passed by Justice Jackson on the earlier occasion of West Virginia State Board of Education v. Barnette and Others  U  () (at ): The very purpose of a bill of rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities . . . and to establish them as legal principles to be applied by the courts. One’s right to life . . . and other fundamental rights may not be submitted to (the) vote; they depend on the outcome of no elections.

[] The other point was not so much a contention as a complaint, one registered against the sympathy with murderers, and the lack of any felt for the victims and their families, which some proponents of capital punishment have seen as the motivation behind every attack on it. It is unnecessary, I hope, for this court to answer that canard. In rebuttal of the criticism, lest it be leveled at us all the same, one can do no better than to repeat the following excerpts from the judgment, which Chief Justice Wright wrote in The People v. Anderson (at  and ): We are fully aware that many condemned prisoners have committed crimes of the utmost cruelty and depravity and that such persons are not entitled to the slightest sympathy from society in the administration of justice or otherwise. . . . Our conclusion that the death penalty may no longer be exacted in California . . . is not grounded in sympathy for those who would commit crimes of violence, but in concern for the society that diminishes itself whenever it takes the life of one of its members. Lord Chancellor Gardiner reminded the House of Lords, debating abolition of capital punishment in England: “When we abolished the punishment for treason that you should be hanged, and then cut down while still alive, and then disemboweled while still alive, and then quartered, we did not abolish that punishment because we sympathized with traitors, but because we took the view that it was a punishment no longer consistent with our self-respect.”

[] South Africa has experienced too much savagery. The wanton killing must stop before it makes a mockery of the civilized, humane, and compassionate society to which the nation aspires and has constitutionally pledged itself. And the state must set the example by demonstrating the priceless value it places on the lives of all its subjects, even the worst.

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ACTING JUSTICE KENTRIDGE [] It follows, in my opinion, that the true issue for decision is whether or not the death penalty for murder is a “cruel, inhuman or degrading punishment,” although the entrenched right to life, like the right to dignity and to equality of treatment, does illuminate the issue. As both President Chaskalson and Justice Didcott have emphasized, capital punishment is qualitatively something quite apart from even the longest term of imprisonment. It entails the calculated destruction of a human life. Inequalities in its incidence are probably unavoidable. In the infliction of capital punishment judicial and executive error can never be wholly excluded nor, of course, repaired. With regard to the uniquely cruel and inhuman nature of the death penalty I would refer to the ample citation of American authority by Justice Didcott in paragraphs [] and [] of his judgment and to the various decisions of international tribunals cited by President Chaskalson. I would add to these the judgment of Justice Blackmun in Callins v. Collins  S Ct  (). The statement of Justice Stewart in Furman v. Georgia  US  at  cited by Justice Scalia in Harmelin v. Michigan  US  () also deserves repetition: The penalty of death differs from all other forms of criminal punishment, not in degree but in kind. It is unique in its total irrevocability. It is unique in its rejection of rehabilitation of the convict as a basic purpose of criminal justice. And it is unique, finally, in its absolute renunciation of all that is embodied in our concept of humanity.

The “death row” phenomenon as a factor in the cruelty of capital punishment has been eloquently described by Lord Griffiths in Pratt v. Johnson []  AC  and by Chief Justice Gubbay in Catholic Commission for Justice and Peace in Zimbabwe v. Attorney-General, Zimbabwe, and Others  () SA  (ZS). Those were cases of inordinately extended delay in the carrying out of the death sentence, but the mental agony of the criminal, in its alternation of fear, hope, and despair, must be present even when the time between sentence and execution is measured in months or weeks rather than years. [] It may be said that if the punishment is cruel, so was the act of the murderer. That cannot and should not be denied. In the present case the accused committed murders of horrifying callousness motivated by nothing but greed. In some of the cases summarized in the attorney general’s written submissions, all of them cases in which the Appellate Division had confirmed the sentence of death, the accused had, if that were possible, committed even more revolting acts of cruelty against their victims. I agree with President Chaskalson that proportionality is an ingredient to be taken into account in deciding whether a penalty is cruel, inhuman or degrading. But that does not mean that the state should respond to the murderer’s cruelty with

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a deliberate and matching cruelty of its own. As Simon Jenkins said in a recent article on the death penalty in The Times (London), that would imply that punishment must not merely fit the crime, but repeat the crime. [] [. . .] Even in countries that have the death penalty on the statute books there is a decline in its use. Although one cannot say that the death penalty is as yet contrary to international law, President Chaskalson has demonstrated that that is the direction in which international law is developing. I shall come later to the question of public opinion and the guidance to be obtained from it, but what is clear to my mind is that in general in civilized democratic societies the imposition of the death penalty has been found to be unacceptably cruel, inhuman and degrading, not only to those subjected to it but also to the society which inflicts it. Simon Jenkins, in the article that I have already quoted, says that the state is (or should be) “institutionalized civilization.” I would agree, and add that this is especially true of the state created by our new Constitution. The deliberate execution of a human however depraved and criminal his conduct must degrade the new society that is coming into being. JUSTICE KRIEGLER [] The basic issue, as President Chaskalson points out in the opening and concluding paragraphs of the main judgment, is whether the Constitution has outlawed capital punishment in South Africa. The issue is not whether I favor the retention or the abolition of the death penalty, nor whether this court, Parliament or even overwhelming public opinion supports the one or the other view. The question is what the Constitution says about it. [] In answering that question the methods to be used are essentially legal, not moral or philosophical. To be true the judicial process cannot operate in an ethical vacuum. After all, concepts like “good faith,” “unconscionable,” or “reasonable” import value judgments into the daily grind of courts of law. And it would be foolish to deny that the judicial process, especially in the field of constitutional adjudication, calls for value judgments in which extra-legal considerations may loom large. Nevertheless, the starting point, the framework, and the outcome of the exercise must be legal. The foundation of our state and all its organs, the rules which govern their interaction and the entrenchment of the rights of its people are to be found in an Act of Parliament, albeit a unique one. That act entrusts the enforcement of its provisions to courts of law. The “court of final instance over all matters relating to the interpretation, protection and enforcement” of those provisions is this court, appointment to which is reserved for lawyers. The incumbents are judges, not sages; their discipline is the law, not ethics or philosophy and certainly not politics. [] The exercise is to establish whether there is an invalid infringement of a right protected by chapter . This “calls for a ‘two-stage’ approach. First, has there

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been a contravention of a guaranteed right? If so, is it justified under the limitation clause?” For the first step, one need go no further than section  of the Constitution, which could not possibly be plainer: “Every person shall have the right to life.” Whatever else section  may mean in other contexts, with regard to which I express no view, at the very least it indicates that the state may not deliberately deprive any person of his or her life. As against that general prohibition, section () of the Criminal Procedure Act sanctions a judicial order for the deprivation of a person’s life. The two provisions are clearly not reconcilable. Therefore, the latter provision is liable to be struck down under section () of the Constitution, unless it is saved by the second step of the analysis/application of the limitations clause. [] Having concluded that capital punishment is inconsistent with section  of the Constitution and cannot be saved by section (), I find it unnecessary to consider its possible inconsistency with any other fundamental rights protected by chapter . Vigilant protection of the right to human dignity (section ) and of the immunity from cruel, inhuman or degrading punishment (section ()) is undoubtedly essential. So, too, arbitrariness in the imposition of any sentence is fatally inconsistent with the demand for equality so emphatically mandated in section () and (). I do not want to be understood as disagreeing with the views expressed by any of my colleagues in regard to those rights and their importance; but in the hierarchy of values and fundamental rights guaranteed under chapter , I see them as ranking below the right to life. Indeed, they are subsumed by that most basic of rights. Inasmuch as capital punishment, by definition, strikes at the heart of the right to life, the debate need go no further. JUSTICE LANGA [] The death sentence, in terms of the provisions of section  of the Criminal Procedure Act  of , is unconstitutional, violating as it does: (a) the right to life which is guaranteed to every person by section  of the Constitution; (b) the right to respect for human dignity guaranteed in section ; (c) the right not to be subjected to cruel, inhuman and degrading punishment as set out in section (). [] The emphasis I place on the right to life is, in part, influenced by the recent experiences of our people in this country. The history of the past decades has been such that the value of life and human dignity have been demeaned. Political, social, and other factors created a climate of violence, resulting in a culture of retaliation and vengeance. In the process, respect for life and for the inherent dignity of every person became the main casualties. The state has been part of this degeneration, not only because of its role in the conflicts of the past, but also by retaining

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Legal Cases (–)

punishments that did not testify to a high regard for the dignity of the person and the value of every human life. [] The primacy of the right to life and its relationship to punishment needs to be emphasized also in view of our constitutional history. The Doctrine of parliamentary sovereignty meant, virtually, that the state could do anything, enact any law, subject only to procedural correctness. [] When the Constitution was enacted, it signaled a dramatic change in the system of governance from one based on rule by Parliament to a constitutional state in which the rights of individuals are guaranteed by the Constitution. It also signaled a new dispensation, as it were, where rule by force would be replaced by democratic principles and a governmental system based on the precepts of equality and freedom. [] It may well be that for millions in this country the effect of the change has yet to be felt in a material sense. For all of us, though, a framework has been created in which a new culture must take root and develop. [] Implicit in the provisions and tone of the Constitution are values of a more mature society, which relies on moral persuasion rather than force; on example rather than coercion. In this new context, then, the role of the state becomes clear. For good or for worse, the state is a role model for our society. A culture of respect for human life and dignity, based on the values reflected in the Constitution, has to be engendered, and the state must take the lead. In acting out this role, the state not only preaches respect for the law and that the killing must stop, but it demonstrates in the best way possible, by example, society’s own regard for human life and dignity by refusing to destroy that of the criminal. Those who are inclined to kill need to be told why it is wrong. The reason surely must be the principle that the value of human life is inestimable, and it is a value that the state must uphold by example as well. As pointed out by Mr. Justice Schaefer of the Supreme Court of Illinois: “The methods we employ in the enforcement of our criminal law have aptly been called the measures by which the quality of our civilization may be judged” [Federalism and State Criminal Procedure  Harv. L. Rev.  () at ]. [] The ethos of the new culture is expressed in the much-quoted provision on National Unity and Reconciliation which forms part of the Constitution. President Chaskalson quotes the various components of it in paragraphs  and  of his judgment. It describes the Constitution as a “bridge” between the past and the future; from “the past of a deeply divided society characterized by strife, conflict, untold suffering and injustice, and a future founded on the recognition of human rights, . . . for all South Africans . . .”; and finally, it suggests a change in mental attitude from vengeance to an appreciation of the need for understanding, from retaliation to reparation and from victimization to uBuntu. The Constitution does not define this last-mentioned concept. [] The concept is of some relevance to the values we need to uphold. It is a culture that places some emphasis on communality and on the interdependence of the members of a community. It recognizes a person’s status as a human being, enti-

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tled to unconditional respect, dignity, value, and acceptance from the members of the community such person happens to be part of. It also entails the converse, however. The person has a corresponding duty to give the same respect, dignity, value, and acceptance to each member of that community. More importantly, it regulates the exercise of rights by the emphasis it lays on sharing and co-responsibility and the mutual enjoyment of rights by all. It is perhaps best illustrated in the following remarks in the judgment of the Court of Appeal of the Republic of Tanzania in DPP v. Pete [] LRC (Const)  [at b–d]: The second important principle or characteristic to be borne in mind when interpreting our Constitution is a corollary of the reality of coexistence of the individual and society, and also the reality of coexistence of rights and duties of the individual on the one hand, and the collective of communitarian rights and duties of society on the other. In effect this coexistence means that the rights and duties of the individual are limited by the rights and duties of society, and vice versa.

[] An outstanding feature of uBuntu in a community sense is the value it puts on life and human dignity. The dominant theme of the culture is that the life of another person is at least as valuable as one’s own. Respect for the dignity of every person is integral to this concept. During violent conflicts and times when violent crime is rife, distraught members of society decry the loss of uBuntu. Thus, heinous crimes are the antithesis of uBuntu. Treatment that is cruel, inhuman, or degrading is bereft of uBuntu. [] We have all been affected, in some way or other, by the “strife, conflict, untold suffering and injustice” of the recent past. Some communities have been ravaged much more than others. In some there is hardly anyone who has not been a victim in some way or who has not lost a close relative in senseless violence. Some of the violence has been perpetrated through the machinery of the state in order to ensure the perpetuation of a status quo that was fast running out of time. But all this was violence on human beings by human beings. Life became cheap, almost worthless. [] It was against a background of the loss of respect for human life and the inherent dignity, which attaches to every person that a spontaneous call has arisen among sections of the community for a return to uBuntu. A number of references to uBuntu have already been made in various texts, but largely without explanation of the concept. It has, however, always been mentioned in the context of it being something to be desired, a commendable attribute which the nation should strive for. [] At first blush, it may sound odd that the issue of the right to life is being decided on the basis of persons condemned to death for killing other human beings. In this regard, it is relevant to note that there are some  people presently under sentence of death for acts of violence. That in itself means that there are probably an equivalent number of victims whose lives have been prematurely, violently, terminated.

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Legal Cases (–)

They died without having had any recourse to law. For them there was no “due process.” [] That is why, during argument, a tentative proposition was made that a person who has killed another has forfeited the right to life. Although the precise implications of this suggestion were not thoroughly canvassed, this cannot be so. The test of our commitment to a culture of rights lies in our ability to respect the rights not only of the weakest but also of the worst among us. A person does not become “fair game” to be killed at the behest of the state because he has killed. [] The protection afforded by the Constitution is applicable to every person. That includes the weak, the poor, and the vulnerable. It includes others as well who might appear not to need special protection; it includes criminals and all those who have placed themselves on the wrong side of the law. The Constitution guarantees them their right, as persons, to life, to dignity and to protection against torture or cruel, inhuman or degrading punishment or treatment. [] The violent acts of those who destroy life cannot be condoned, neither should anyone think that the abolition of the sentence of death means that the crime is regarded as anything but one of extreme seriousness. The sentence itself was an indication of society’s abhorrence for the cruel and inhuman treatment of others. That moral outrage has been expressed in the strongest terms that society could muster. [] Severe punishments must be meted out where deserved, but they should never be excessive. As Justice Brennan observed in his concurring judgment in Furman v. Georgia [ US  () at ]: “a severe punishment must not be excessive. A punishment is excessive under this principle if it is unnecessary. . . . If there is a significantly less severe punishment adequate to achieve the purposes for which the punishment is inflicted, the punishment inflicted is unnecessary and therefore excessive.” Righteous anger against those who destroy the human life and dignity of others must be appropriately expressed by the courts; but in doing so, the state must not send the wrong message, namely, that the value of human life is variable. Society cannot now succumb to the doctrine of an eye for an eye. Its actions must be informed by the high values that reflect the quality of this nation’s civilization. [] The Constitution constrains society to express its condemnation and its justifiable anger in a manner that preserves society’s own morality. The state should not make itself guilty of conduct which violates that which it is in the community’s interests to nurture. The Constitution, in deference to our humanity and sense of dignity, does not allow us to kill in cold blood in order to deter others from killing. Nor does it allow us to “kill criminals simply to get even with them.” We are not to stoop to the level of the criminal. [] It follows from the remarks above that as a “punishment” the death penalty is a violation of the right to life. It is cruel, inhuman, and degrading. It is also a severe affront to human dignity. The “death row phenomenon” merely aggravates the position. Section  of the Criminal Procedure Act cannot be saved by the provisions of section () of the Constitution in respect of any of the rights affected.

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The punishment is not reasonable on any basis. In view of the available alternative sentence of a long term of imprisonment, it is also unnecessary. JUSTICE MADALA [] It was argued by Mr. Bizos, on behalf of the government, that the postamble enjoins the people of South Africa to open a new chapter which envisages the country playing a leading role in the upholding of human rights. He submitted further that the government favored the abolition of the death penalty because it believed that such punishment could not be reconciled with the fundamental rights contained in the Constitution and that its application diminished the dignity of our society as a whole. [] Against uBuntu must be seen the other side, the inhuman side of mankind, in terms of which the death penalty violates section () of the Constitution in that it is “cruel, inhuman or degrading treatment or punishment.” [] In Catholic Commission for Justice and Peace in Zimbabwe v. AttorneyGeneral, Zimbabwe, and Others  () SA  (ZS) at E–H Chief Justice Gubbay observed: From the moment he enters the condemned cell, the prisoner is enmeshed in a dehumanizing environment of near hopelessness. He is in a place where the sole object is to preserve his life so that he may be executed. The condemned prisoner is “the living dead.” . . . He is kept only with other death sentenced prisoners—with those whose appeals have been dismissed and who await death or reprieve; or those whose appeals are still to be heard or are pending judgment. While the right to an appeal may raise the prospect of being allowed to live, the intensity of the trauma is much increased by knowledge of its dismissal. The hope of a reprieve is all that is left. Throughout all this time the condemned prisoner constantly broods over his fate. The horrifying specter of being hanged by the neck and the apprehension of being made to suffer a painful and lingering death is, if at all, never far from mind. Grim accounts exist of hangings not properly performed.

[] Convicted persons in death row invariably find themselves there for a long time as they make every effort to exhaust all possible review avenues open to them. All this time they are subjected to a fate of ever increasing fear and distress. They know not what their future is and whether their efforts will come to naught; they live under the sword of Damocles—they will be advised any day about their appointment with the hangman. It is true that they might have shown no mercy at all to their victims, but we do not and should not take our standards and values from the murderer. We must, on the other hand, impose our standards and values on the murderer.

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Legal Cases (–)

[] In the aforementioned Zimbabwean case, the court concluded that the incarceration of the condemned person under those conditions was in conflict with the provisions of section () of the Zimbabwe Constitution which, like our Constitution, has entrenched guarantees against torture or inhuman and degrading punishment. [] The so-called “death row phenomenon” also came under attack in the case of Soering v. United Kingdom ()  EHRR . From the statistics supplied by the attorney general and from what one gleans daily from the newspapers and other media, we live at a time when the high crime rate is unprecedented, when the streets of our cities and towns rouse fear and despair in the heart, rather than pride and hope, and this in turn robs us of objectivity and personal concern for our brethren. But, as Justice Marshall put it in Furman v. Georgia (supra) at : “The measure of a country’s greatness is its ability to retain compassion in time of crisis.” [] This, in my view, also accords with uBuntu—and calls for a balancing of the interests of society against those of the individual, for the maintenance of law and order, but not for dehumanizing and degrading the individual. [] We must stand tallest in these troubled times and realize that every accused person who is sent to jail is not beyond being rehabilitated—properly counseled— or, at the very least, beyond losing the will and capacity to do evil. [] In order to arrive at an answer as to the constitutionality or otherwise of the death penalty or any enactment, we do not have to canvass the opinions and attitudes of the public. Ours is to interpret the provisions of the Constitution as they stand and, if any matter is in conflict with the Constitution, we have to strike it down. [] We, as judges, are oath-bound to defend the Constitution. This obligation, in turn, requires that any enactment of Parliament should be judged by standards laid down by the Constitution. The judiciary has the duty of implementing the constitutional safeguards that protect individual rights. When the state seeks to take away the individual fundamental right to life, the safeguards of the Constitution should be examined with special diligence. When it appears that an Act of Parliament conflicts with the provisions of the Constitution, we have no choice but to enforce the paramount commands of the Constitution. We are sworn to do no less. [] I agree with Ms. Davids’s submission about the need to bring in the traditional African jurisprudence to these matters, to the extent that such is applicable, and would not confine such research to South Africa only, but to Africa in general. [] For purposes of the determination of the question of the constitutionality of the death penalty, however, it is in my view not necessary or even desirable that public opinion should be sought on the matter in the manner she suggests. [] In my view, the death penalty does not belong to the society envisaged in the Constitution, is clearly in conflict with the Constitution generally and runs counter to the concept of uBuntu; additionally and just as importantly, it violates the provisions of section () of the Constitution and, for those reasons, should be declared unconstitutional and of no force and effect.

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JUSTICE MAHOMED [] All Constitutions seek to articulate, with differing degrees of intensity and detail, the shared aspirations of a nation; the values which bind its people, and which discipline its government and its national institutions; the basic premises upon which judicial, legislative and executive power is to be wielded; the constitutional limits and the conditions upon which that power is to be exercised; the national ethos which defines and regulates that exercise; and the moral and ethical direction which that nation has identified for its future. In some countries the Constitution only formalizes, in a legal instrument, a historical consensus of values and aspirations evolved incrementally from a stable and unbroken past to accommodate the needs of the future. The South African Constitution is different: it retains from the past only what is defensible and represents a decisive break from, and a ringing rejection of, that part of the past which is disgracefully racist, authoritarian, insular, and repressive, and a vigorous identification of and commitment to a democratic, universalistic, caring and aspirationally egalitarian ethos expressly articulated in the Constitution. The contrast between the past, which it repudiates, and the future to which it seeks to commit the nation is stark and dramatic. The past institutionalized and legitimized racism. The Constitution expresses in its preamble the need for a “new order . . . in which there is equality between . . . people of all races.” Chapter  of the Constitution extends the contrast in every relevant area of endeavor (subject only to the obvious limitations of section ). The past was redolent with statutes that assaulted the human dignity of persons on the grounds of race and color alone; section  constitutionally protects that dignity. The past accepted permitted, perpetuated and institutionalized pervasive and manifestly unfair discrimination against women and persons of color; the preamble, section  and the postamble seek to articulate an ethos that not only rejects its rationale but unmistakably recognizes the clear justification for the reversal of the accumulated legacy of such discrimination. The past permitted detention without trial; section () prohibits it. The past permitted degrading treatment of persons; section () renders it unconstitutional. The past arbitrarily repressed the freedoms of expression, assembly, association and movement; sections , , , and  accord to these freedoms the status of “fundamental rights.” The past limited the right to vote to a minority; section  extends it to every citizen. The past arbitrarily denied to citizens, on the grounds of race and color, the right to hold and acquire property; section  expressly secures it. Such a jurisprudential past created what the post-amble to the Constitution recognizes as a society “characterized by strife, conflict, untold suffering and injustice.” What the Constitution expressly aspire to do is to provide a transition from these grossly unacceptable features of the past to a conspicuously contrasting “future founded on the recognition of human rights, democracy and peaceful coexistence and development opportunities for all South Africans, irrespective of color, race, class, belief or sex.”

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Legal Cases (–)

[] The postamble to the Constitution gives expression to the new ethos of the nation by a commitment to “open a new chapter in the history of our country,” by lamenting the transgressions of “human rights” and “humanitarian principles” in the past, and articulating a need for understanding but not for vengeance, a need for reparation but not for retaliation, a need for uBuntu but not for victimization. “The need for uBuntu” expresses the ethos of an instinctive capacity for and enjoyment of love towards our fellow men and women; the joy and the fulfillment involved in recognizing their innate humanity; the reciprocity this generates in interaction within the collective community; the richness of the creative emotions which it engenders and the moral energies which it releases both in the givers and the society which they serve and are served by.

[] It is against this historical background and ethos that the constitutionality of capital punishment must be determined. [] The death penalty sanctions the deliberate annihilation of life. As I have previously said, [it] is the ultimate and the most incomparably extreme form of punishment. . . . It is the last, the most devastating and the most irreversible recourse of the criminal law, involving as it necessarily does, the planned and calculated termination of life itself; the destruction of the greatest and most precious gift which is bestowed on all humankind. (S v. Mhlongo  () SACR  (A) at e–g.)

This “planned and calculated termination of life itself ” was permitted in the past that preceded the Constitution. Is it now permissible? Those responsible for the enactment of the Constitution could, if they had so wished, have treated the issue as a substantially political and moral issue justifying a political choice, clearly expressed in the Constitution, either retaining or prohibiting the death sentence. They elected not to do so, leaving it to this court to resolve the issue as a constitutional issue. [] It is, for the purposes of the present case, unnecessary to give to the word “life” in section  a comprehensive legal definition that will accommodate the answer to these and other complex questions. Whatever be the proper resolution of such issues, should they arise in the future, it is possible to approach the constitutionality of the death sentence by a question with a sharper and narrower focus, thus: “Does the right to life, guaranteed by section , include the right of every person not to be deliberately killed by the state through a systematically planned act of execution sanctioned by the state as a mode of punishment and performed by an executioner remunerated for this purpose from public funds?” The answer to that question is in my view: “Yes,

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every person has that right.” It immediately distinguishes that right from some other obvious rights referred to in argument, such as, for example, the right of a person in life-threatening circumstances to take the life of the aggressor in self-defense, or even the acts of the state in confronting an insurrection or in the course of war. [] The deliberate annihilation of the life of a person, systematically planned by the state as a mode of punishment, is wholly and qualitatively different. It is not like the act of killing in self-defense, an act justifiable in the defense of the clear right of the victim to the preservation of his life. It is not performed in a state of sudden emergency, or under the extraordinary pressures that operate when insurrections are confronted or when the state defends itself during war. It is systematically planned long after—sometimes years after—the offender has committed the offense for which he is to be punished, and whilst he waits impotently in custody for his date with the hangman. In its obvious and awesome finality it makes every other right, so vigorously and eloquently guaranteed by chapter  of the Constitution, permanently impossible to enjoy. Its inherently irreversible consequence makes any reparation or correction impossible, if subsequent events establish, as they have sometimes done, the innocence of the executed or circumstances which demonstrate manifestly that he did not deserve the sentence of death. [] The death sentence must, in some measure, manifest a philosophy of indefensible despair in its execution, accepting as it must do that the offender it seeks to punish is so beyond the pale of humanity as to permit of no rehabilitation, no reform, no repentance, no inherent specter of hope or spirituality; nor the slightest possibility that he might one day successfully and deservedly be able to pursue and to enjoy the great rights of dignity and security and the fundamental freedoms protected in chapter  of the Constitution, the exercise of which is possible only if the “right to life” is not destroyed. The finality of the death penalty allows for none of these redeeming possibilities. It annihilates the potential for their emergence. Moreover, it cannot accomplish its objective without invading, in a very deep and distressing way, the guarantee of human dignity afforded by section  of the Constitution, as the person sought to be executed spends long periods in custody, anguished by the prospect of being “hanged by the neck until he is dead,” in the language of section () of Act  of . The invasion of his dignity is inherent. He is effectively told: “You are beyond the pale of humanity. You are not fit to live among humankind. You are not entitled to life. You are not entitled to dignity. You are not human. We will therefore annihilate your life.” (See the observations of Justice Brennan in Trop v. Dulles  US  at .) [] It is not necessarily only the dignity of the person to be executed which is invaded. Very arguably the dignity of all of us, in a caring civilization, must be compromised by the act of repeating, systematically and deliberately, albeit for a wholly different objective, what we find to be so repugnant in the conduct of the offender in the first place (see Furman v. Georgia  US  () at  [Justice Brennan, concurring]).

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Legal Cases (–)

[] The different parts of section () must be read disjunctively. The death sentence would (subject to section ) offend section () if it constitutes (a) (b) (c) (d) (e) (f ) (g)

torture; or cruel treatment; or cruel punishment; or inhuman treatment; or inhuman punishment; or degrading treatment; or degrading punishment.

(See Ex parte Attorney-General, Namibia: In re Corporal Punishment by Organs of State  () SA  (NmS) at B–D.) [] In my view, the death sentence does indeed constitute cruel, inhuman, or degrading punishment within the meaning of those expressions in section (). [] Undoubtedly, this conclusion does involve in some measure a value judgment, but it is a value judgment that requires objectively to be formulated, having regard to the ordinary meaning of the words used in section (); its consistency with the other rights protected by the Constitution and the constitutional philosophy and humanism expressed both in the preamble and the postamble to the Constitution; its harmony with the national ethos which the Constitution identifies; the historical background to the structures and objectives of the Constitution; the discipline of proportionality to which it must legitimately be subject; the effect of the death sentence on the right to life protected by the Constitution; its inherent arbitrariness in application; its impact on human dignity; and its consistency with constitutional perceptions evolving both within South Africa and the world outside with which our country shares emerging values central to the permissible limits and objectives of punishment in the civilized community. [] In my view, it also constitutes inhuman punishment. It invades irreversibly the humanity of the offender by annihilating the minimum content of the right to life protected by section ; by degrading impermissibly the humanity inherent in his right to dignity; by the inevitable arbitrariness with which its objective is implemented; by the continuing and corrosive denigration of his humanity in the long periods preceding his formal execution; by the inescapable denial of his humanity inherently involved in a sentence that directs his elimination from society. [] I am accordingly of the view that the death penalty does prima facie invade the right to life; the right to equality; the right to dignity; and the right not to be subject to cruel, inhuman, or degrading punishment, respectively protected by sections , , , and () of the Constitution. [] In order to qualify as a permissible limitation in terms of section  the state must therefore establish that the invasions on the right to life, the right to be protected from unfair discrimination, the right to dignity and the right to be pro-

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tected from cruel, inhuman, or degrading punishment, which the application of the death penalty causes, satisfy at least the three separate elements specified in sections ()(a)(i)–(ii) and ()(b). In the case of a limitation on the right to dignity and the right to be protected from cruel, inhuman, or degrading punishment, the fourth element of “necessity” contained in section ()(aa) must further be satisfied. [] The most plausible argument in support of the submission that the death penalty does satisfy these onerous conditions prescribed by section  is the submission that it acts as a deterrent. That argument has dominated perceptions in support of the death penalty, both in South Africa and abroad. [] It must readily be conceded that if it could be established that the death sentence does indeed deter the commission of serious offenses in respect of which the death penalty is a competent sentence, it would indeed be a very relevant and at least a potentially persuasive consideration in support of its justification in terms of section . There are, however, some serious difficulties involved in the acceptance of the proposition that the death penalty is, or ever has been, a demonstrable deterrence. [] The legitimacy of the argument must to a substantial degree be premised on an assumption that appears to me to be fallacious and, at the least, highly speculative and rationally unconvincing. That assumption is that a criminal, contemplating the commission of a serious offense, weighs the risk that he might be sentenced to death against the risk that he might not be sentenced to death but only to a long term of imprisonment of twenty years or more. The assumption is that he would decide to commit the offense even at the risk of receiving a long term of imprisonment but that, if the death sentence was the risk, he would refrain from committing the offense at all. I have serious difficulties with these assumptions. In the first place they are not supported by any empirical evidence or research in this country or abroad. Secondly, this argument attributes to the offender a capacity for reflection and contemplation and a maturity of analysis that appears to me to be unrealistic. Thirdly, and more fundamentally, it ignores what is possibly the real factor in any risk assessment that might activate a potentially serious offender: the risk that he considers is that he will not be caught. If he believed that there was a real risk of being apprehended, charged, and convicted, he would not willingly assume the prospect of many years of quite punishing imprisonment. [] If, as I believe, such offenders commit the crimes contemplated because of a belief that they will probably not be apprehended at all, it is a belief that is regrettably justified. On the information that was common cause in argument before us,  or  percent of offenders who commit serious crimes are not apprehended at all and a substantial proportion of those who are apprehended are never convicted. The risk is therefore worth taking, not because the death penalty would, in the perception of the offender, not be imposed but because no punishment is likely to result at all. The levels of serious crimes committed in South Africa are indeed disturbing. For many in the community, life has become dangerous and intolerable. Criminals do need vigorously to be deterred from conduct that endangers the security

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Legal Cases (–)

and freedom of citizens to a very distressing degree but, on the available evidence, it is facile to assume that the retention of the death penalty will provide the deterrence that is clearly needed. [] Successful deterrence of serious crime also involves the need for substantial redress in the socio-economic conditions of those ravaged by poverty, debilitated by disease and malnutrition and disempowered by illiteracy. Rapid amelioration in these areas must have some concomitant effect on the levels of crime. There has to be a corresponding campaign among the communities affected by serious crime to harness their own legitimacy and their own infrastructures in interaction with the security agencies of the state. The power and influence of agencies of moral authority such as teachers, school principals, and religious leaders must rapidly be restored. Crime is a multifaceted phenomenon. It has to be assaulted on a multi-dimensional level to facilitate effective deterrence. [] Bringing to bear upon the issue, therefore, a rational and judicial judgment, I have not been persuaded that the fear of the death penalty rationally or practically operates as a demonstrable deterrent for offenders seeking to perpetrate serious crimes. It remains, for the reasons I have previously discussed, an impermissibly cruel invasion of rights, the sustenance of which is fundamental to a defensible civilization, protected in South Africa by the ethos of a Constitution which is manifestly humanistic and caring in its content. [] That conclusion should make it unnecessary for me to deal with the other elements of justification set out in section , but I am in any event of the view that the state has not established that the limitations the death penalty imposes on the relevant rights in chapter , which I have discussed, can be said to be “necessary.” That is a material element for justification in terms of section  where what is limited is the right to human dignity in section  or the right to be protected from cruel, inhuman, or degrading punishment in terms of section (). The failure to satisfy that element is fatal to the attempt to establish justification in terms of section . Section ()(a) of Act  of  must therefore be the constitutional casualty of this conclusion and therefore be struck down. The reasons that have prompted that conclusion are substantially also of application to paragraphs (c), (d), (e), and (f ) of section () and must therefore endure the same fate. For the reasons given by President Chaskalson, I agree that the issue as to whether section ()(b) is unconstitutional should be left open. [] It also follows from my approach and the conclusions to which I have arrived that it is unnecessary to decide whether or not the death penalty does “negate the essential content of the right in question” within the meaning of section ()(b). I also prefer to leave this question open. In the absence of full argument, I do not consider it desirable to determine what the meaning of the reference to the “essential content of the right” is. President Chaskalson, in paragraph [] of his judgment, has, without deciding, referred to two approaches, which he describes as the “objective” and “subjective” determination of the essential content. Arguably, it is possible

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to consider a third angle, which focuses on the distinction between the “essential content” of a right and some other content. This distinction might justify a relative approach to the determination of what is the essential content of a right by distinguishing the central core of the right from its peripheral outgrowth, and subjecting “a law of general application” limiting an entrenched right to the discipline of not invading the core, as distinct from the peripheral outgrowth. In this regard there may conceivably be a difference between rights that are inherently capable of incremental invasion and those that are not. JUSTICE MOKGORO [] In interpreting the Bill of Fundamental Rights and Freedoms, as already mentioned, an all-inclusive value system, or common values in South Africa, can form a basis upon which to develop a South African human rights jurisprudence. Although South Africans have a history of deep divisions characterized by strife and conflict, one shared value and ideal that runs like a golden thread across cultural lines is the value of uBuntu—a notion now coming to be generally articulated in this country. It is well accepted that the transitional Constitution is a culmination of a negotiated political settlement. It is a bridge between a history of gross violations of human rights and humanitarian principles, and a future of reconstruction and reconciliation. The post-amble of the Constitution expressly provides: “[T]here is a need for understanding but not for vengeance, a need for reparation but not for retaliation, a need for uBuntu but not for victimization.” Not only is the notion of uBuntu expressly provided for in the epilogue of the Constitution, the underlying idea and its accompanying values are also expressed in the preamble. These values underlie, first and foremost, the whole idea of adopting a Bill of Fundamental Rights and Freedoms in a new legal order. They are central to the coherence of all the rights entrenched in chapter —where the right to life and the right to respect for and protection of human dignity are embodied in sections  and , respectively. [] Generally, uBuntu translates as “humaneness.” In its most fundamental sense it translates as personhood and “morality.” Metaphorically, it expresses itself in umuntu ngumuntu ngabantu, describing the significance of group solidarity on survival issues so central to the survival of communities. While it envelops the key values of group solidarity, compassion, respect, human dignity, conformity to basic norms and collective unity, in its fundamental sense it denotes humanity and morality. Its spirit emphasizes respect for human dignity, marking a shift from confrontation to conciliation. In South Africa uBuntu has become a notion with particular resonance in the building of a democracy. It is part of our rainbow heritage, though it might have operated and still operates differently in diverse community settings. In the Western cultural heritage, respect and the value for life, manifested in the all-embracing concepts of “humanity” and “menswaardigheid,” are also highly prized. It is values like these that section  requires to be promoted.

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They give meaning and texture to the principles of a society based on freedom and equality. [] In American jurisprudence courts have recognized that the dignity of the individual in American society is the supreme value. Even the most evil offender, it has been held, “remains a human being possessed of a common human dignity” [Furman v. Georgia  US  () at ], thereby making the calculated process of the death penalty inconsistent with this basic, fundamental value. In Hungarian jurisprudence the right to life and the right to human dignity are protected as twin rights in section () of that Constitution. They are viewed as an inseparable unity of rights. Not only are they regarded as a unity of indivisible rights, but they also have been held to be the genesis of all rights. In international law, on the other hand, human dignity is generally considered the fountain of all rights. The International Covenant on Civil and Political Rights () GA Res  (XXI),  UN GAOR SUPP (No ) at , UN DOC A/ () in its preamble makes references to “the inherent dignity of all members of the human family” and concludes that “human rights derive from the inherent dignity of the human person.” This, in my view, is not different from what the spirit of uBuntu embraces. [] It is common cause, however, that the legal system in South Africa, and the socio-political system within which it operated, has for decades traumatized the human spirit. In many ways it trampled on the basic humanity of citizens. We cannot in all conscience declare, as did a United States Supreme Court Justice in Furman v. Georgia  US  () at  with reference to the American context, that respect for and protection of human dignity has been a central value in South African jurisprudence. We cannot view the death penalty as fundamentally inconsistent with our harsh legal heritage. Indeed, it was an integral part of a system of law enforcement that imposed severe penalties on those who aspired to achieve the values enshrined in our Constitution today. [] South Africa now has a new Constitution, however, which creates a constitutional state. This state is in turn founded on the recognition and protection of basic human rights, and although this constitutes a revolutionary change in legal terms, the idea is consistent with the inherited traditional value systems of South Africans in general—traditional values which hardly found the chance to bring South Africa on par with the rest of the world. As this Constitution evolves to overcome the culture of gross human rights violations of the past, jurisprudence in South Africa will simultaneously develop a culture of respect for and protection of basic human rights. Central to this commitment is the need to revive the value of human dignity in South Africa, and in turn redefine and recognize the right to and protection of human dignity as a right concomitant to life itself and inherent in all human beings, so that South Africans may also appreciate that “even the vilest criminal remains a human being” (Furman v. Georgia [supra]). In my view, life and dignity are like two sides of the same coin. The concept of uBuntu embodies them both.

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[] In the past legal order, basic human rights in South Africa, including the right to life and human dignity, were not protected in a Bill of Fundamental Rights and Freedoms in a supreme Constitution, as is the case today. Parliament then was sovereign and could pass any law it deemed fit. Legislation was supreme and, due to the absence of judicial review, no court of law could set aside any statute or its provision on grounds of violating fundamental rights. Hence section  of the Criminal Procedure Act  of  could survive untested to this day. [] Our new Constitution, unlike its dictatorial predecessor, is value-based. Among other things, it guarantees the protection of basic human rights, including the right to life and human dignity, two basic values supported by the spirit of uBuntu and protected in sections  and  respectively. In terms of section  this Constitution now commits the state to base the worth of human beings on the ideal values espoused by open democratic societies the world over and not on race, color, political, economic, and social class. Although it has been argued that the currently high level of crime in the country is indicative of the breakdown of the moral fabric of society, it has not been conclusively shown that the death penalty, which is an affront to these basic values, is the best available practical form of punishment to reconstruct that moral fabric. In the second place, even if the end were desirable, that would not justify the means. The death penalty violates the essential content of the right to life embodied in section , in that it extinguishes life itself. It instrumentalizes the offender for the objectives of state policy. That is dehumanizing. It is degrading and it violates the rights to respect for and protection of human dignity embodied in section  of the Constitution. [] Once the life of a human being is taken in the deliberate and calculated fashion that characterizes the described methods of execution the world over, it constitutes the ultimate cruelty with which any living creature could ever be treated. This extreme level of cruel treatment of a human being, however despicably such person might have treated another human being, is still inherently cruel. It is inhuman and degrading to the humanity of the individual, as well as to the humanity of those who carry it out. [] Taking the life of a human being will always be reprehensible. Those citizens who kill deserve the most severe punishment, if it deters and rehabilitates and therefore effectively addresses deviance of this nature. Punishment by death cannot achieve these objectives. The high rate of crime in this country is indeed disturbing and the state has a duty to protect the lives of all citizens—including those who kill. However, it should find more humane and effective integrated approaches to manage its penal system, and to rehabilitate offenders. [] The state is representative of its people and in many ways sets the standard for moral values within society. If it sanctions by law punishment for killing by killing, it sanctions vengeance by law. If it does so with a view to deterring others, it dehumanizes the person and objectifies him or her as a tool for crime control. This objectification through the calculated killing of a human being, to serve state

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objectives, strips the offender of his or her human dignity and dehumanizes such a person, constituting a violation of section  of the Constitution. [] Although the attorney general placed great reliance on the deterrent nature of the death penalty in his argument, it was conceded that this has not been conclusively proven. It has also not been shown that this form of punishment was the best available option for the rehabilitation of the offender. Retaining the death penalty for this purpose is therefore unnecessary. Section (), which authorizes the death penalty under these unnecessarily inhuman and degrading circumstances, is inconsistent with the right to life and human dignity embodied in sections  and  of the Constitution, respectively, and is in direct conflict with the values that section  aims to promote in the interpretation of these sections. Taking the life of a person under such deliberate and calculated circumstances, with the methods already described in the judgment of President Chaskalson, is cruel, inhuman, or degrading treatment or punishment. It is inconsistent with section () of the Constitution. In my view, therefore, the death penalty is unconstitutional. Not only does it violate the right not to be subjected to cruel, inhuman, or degrading treatment or punishment, it also violates the right to life and human dignity. JUSTICE O’REGAN [] I have read the judgment of President Chaskalson and I agree with the order that he proposes. However, although I agree that the death sentence constitutes a breach of section () of the Constitution that is not justified in terms of section , it is my view that it also constitutes a breach of section  (the right to life) and section  (the right to dignity) for the reasons that are given in this judgment. [] There is no doubt that the crimes committed by the two prisoners were abhorrent. Our society cannot and does not condone brutal murder or robbery. Perpetrators of crimes such as these must be punished severely according to our system of criminal justice. In this case the prisoners have been tried, convicted and sentenced. The question that this court must answer is not whether the prisoners committed these crimes, nor whether they should be punished. It has been established by the proper courts that they did commit crimes, and for that they must be punished. What this court must consider is whether the form of punishment that has been imposed is constitutional. Does our Constitution permit any convicted criminal, however heinous the crime, to be put to death by the Government as punishment for that crime? [] The Constitution entrenches certain fundamental rights. Included amongst these are the right to life (section ), the right to the respect for and protection of dignity (section ) and the right not to be subjected to cruel, inhuman, or degrading punishment (section ()). The prisoners allege that the death penalty is in conflict with each of these. The language of each of these rights is broad and capable of different interpretations. How is this court to determine the content and scope of these

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rights? This question is at least partially answered by section () of the Constitution, which enjoins this court, in interpreting the rights contained in the Constitution, to “promote the values which underlie an open and democratic society based on freedom and equality.” [] No one could miss the significance of the hermeneutic standard set. The values urged upon the court are not those that have informed our past. Our history is one of repression not freedom, oligarchy not democracy, apartheid and prejudice not equality, clandestine not open government. As the epilogue to the Constitution states: This Constitution provides a historic bridge between the past of a deeply divided society characterized by strife, conflict, untold suffering and injustice, and a future founded on the recognition of human rights, democracy and peaceful coexistence and development opportunities for all South Africans, irrespective of color, race, class, belief, or sex.

[] 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 foundation of its new Constitution. This is not to say that there is nothing from our past that should be retained. Of course this is not so. As Acting Justice Kentridge described in the first judgment of this court (S v. Zuma and Others  () SA  (CC) ( () SACR )), many of the rights entrenched in section  of the Constitution concerning criminal justice are long-standing principles of our law, although eroded by statute and judicial decision. In interpreting the rights contained in section , those common-law principles will be useful guides. But generally section () instructs us, in interpreting the Constitution, to look forward not backward, to recognize the evils and injustices of the past and to avoid their repetition. [] Section  of the Constitution provides that: “Every person shall have the right to life.” This formulation of the right to life is not one that has been used in the constitutions of other countries or in international human rights conventions. In choosing this formulation, the drafters have specifically avoided either expressly preserving the death penalty or expressly outlawing it. In addition, they have not used the language so common in other constitutions, which provides that no one may be deprived of life arbitrarily or without due process of law. To the extent that the formulation of the right is different from that adopted in other jurisdictions, their jurisprudence will be of less value. The question is thus left for us to determine whether this right, or any of the others enshrined in chapter , would prima facie prohibit the death penalty. [] In giving meaning to section , we must seek the purpose for which it was included in the Constitution. This purposive or teleological approach to the interpretation of rights may at times require a generous meaning to be given to provisions

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of chapter  of the Constitution and at other times a narrower or specific meaning. It is the responsibility of the courts, and ultimately this court, to develop fully the rights entrenched in the Constitution. But that will take time. Consequently any minimum content that is attributed to a right may in subsequent cases be expanded and developed. [] The right to life is, in one sense, antecedent to all the other rights in the Constitution. Without life, in the sense of existence, it would not be possible to exercise rights or to be the bearer of them. But the right to life was included in the Constitution not simply to enshrine the right to existence. It is not life as mere organic matter that the Constitution cherishes, but the right to human life: the right to live as a human being, to be part of a broader community, to share in the experience of humanity. This concept of human life is at the center of our constitutional values. The Constitution seeks to establish a society where the individual value of each member of the community is recognized and treasured. The right to life is central to such a society. [] The right to life, thus understood, incorporates the right to dignity. So the rights to human dignity and life are entwined. The right to life is more than existence—it is a right to be treated as a human being with dignity: without dignity, human life is substantially diminished. Without life, there cannot be dignity. This was recognized by the Hungarian Constitutional Court in the case in which it considered the constitutionality of the death penalty: It is the untouchability and equality contained in the right to human dignity that results in man’s right to life being a specific right to human life (over and above animals’ and artificial subjects’ right to being); on the other hand, dignity as a fundamental right does not have meaning for the individual if he or she is dead. . . . Human dignity is a naturally accompanying quality of human life. (Decision No. / [X.] AB, George Feher’s translation.)

[] The right to dignity is enshrined in our Constitution in section : “Every person shall have the right to respect for and protection of his or her dignity.” The importance of dignity as a founding value of the new Constitution cannot be overemphasized. Recognizing a right to dignity is an acknowledgement of the intrinsic worth of human beings: human beings are entitled to be treated as worthy of respect and concern. This right therefore is the foundation of many of the other rights that are specifically entrenched in chapter . As Justice Brennan held when speaking of forms of cruel and unusual punishments in the context of the American Constitution: The true significance of these punishments is that they treat members of the human race as non-humans, as objects to be toyed with and discarded. They

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are thus inconsistent with the fundamental premise of the clause that even the vilest criminal remains a human being possessed of common human dignity. (Furman v. Georgia  US  () at –)

[] 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. [] But human dignity is important to all democracies. In an aphorism coined by Ronald Dworkin, “Because we honor dignity, we demand democracy.” Its importance was recognized, too, by Justice Cory in Kindler v. Canada (Minister of Justice) ()  CRR (nd)  (SCC) at , in which he held that “[i]t is the dignity and importance of the individual which is the essence and the cornerstone of democratic government.” [] The attorney general argued that the prisoners, and others like them, who are convicted of crimes for which the death penalty is currently competent have forfeited their right to life and dignity. This cannot be correct. It is a fundamental premise of our Constitution that the rights in chapter  are available to all South Africans, no matter how atrocious their conduct. As Chief Justice Gubbay held in Catholic Commission for Justice and Peace in Zimbabwe v. Attorney-General, Zimbabwe, and Others  () SA  (ZS) at G–H: It cannot be doubted that prison walls do not keep out fundamental rights and protections. Prisoners are not, by mere reason of a conviction, denuded of all the rights they otherwise possess. No matter the magnitude of the crime, they are not reduced to non-persons. They retain all basic rights, save those inevitably removed from them by law, expressly or by implication.

[] It must be emphasized that the entrenchment of a bill of rights, enforceable by a Judiciary, is designed, in part, to protect those who are the marginalized, the dispossessed and the outcasts of our society. They are the test of our commitment to a common humanity and cannot be excluded from it. [] Are the rights to life and dignity breached by the death penalty? The death sentence has been part of South African law since the colonial era. Not only has the law permitted the death sentence, but it has been regularly imposed by courts and carried out by the Government. For many years South Africa had the doubtful honor of being a world leader in the number of judicial executions carried out. Although there is some uncertainty about the statistics, it appears that between  and  approximately , people were executed in South Africa, including the Transkei, Ciskei, Bophuthatswana, and Venda. The death sentence was imposed

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sometimes for crimes that were motivated by political ideals. In this way the death penalty came to be seen by some as part of the repressive machinery of the former Government. Toward the end of the s there were several major public campaigns to halt the execution of people who were perceived to be political opponents of the Government. There is no doubt that these campaigns to prevent the execution of, amongst others, the “Sharpeville Six” and the “Upington ” were partly responsible for the Government’s decision in  to suspend the implementation of sentences of death. [] The purpose of the death penalty is to kill convicted criminals. Its very purpose lies in the deprivation of existence. Its inevitable result is the denial of human life. It is hard to see how this methodical and deliberate destruction of life by the Government can be anything other than a breach of the right to life. [] The implementation of the death penalty is also a denial of the individual’s right to dignity. The execution of the death penalty was described by Professor Chris Barnard as follows: The man’s spinal cord will rupture at the point where it enters the skull, electrochemical discharges will send his limbs flailing in a grotesque dance, eyes and tongue will start from the facial apertures under the assault of the rope and his bowels and bladder may simultaneously void themselves to soil the legs and drip on the floor. (Rand Daily Mail June , , cited in appellants’ heads.)

This frank description of the execution process leaves little doubt that it is one that is destructive of human dignity. As Justice Cory held in Kindler v. Canada (supra at ): “The death penalty not only deprives the prisoner of all vestiges of human dignity; it is the ultimate desecration of the individual as a human being. It is the annihilation of the very essence of human dignity.” [] But it is not only the manner of execution that is destructive of dignity; the circumstances in which convicted criminals await the execution of their sentence also constitutes a breach of dignity. These circumstances have been amply and aptly described by Chief Justice Gubbay in Catholic Commission for Justice and Peace in Zimbabwe v. Attorney-General, Zimbabwe, and Others  () SA  (ZS) at – . Although little evidence has been placed before us to describe the experience of condemned prisoners in South Africa, it seems all too probable that it resembles the conditions described by Chief Justice Gubbay. Indeed, the moratorium on the implementation of the death sentence described by President Chaskalson has probably aggravated the conditions of condemned prisoners considerably. [] Section  of the Criminal Procedure Act is therefore not only a breach of section () of the Constitution as held by President Chaskalson, but it is also a breach of section  (the right to life) and section  (the right to dignity). It is unnecessary and would be inappropriate to consider the further scope of these rights.

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[] The Constitution does recognize in section  that the rights it entrenches may be limited by law of general application if a law is reasonable and justifiable (and in some circumstances, necessary) in an open and democratic society based on freedom and equality. The infringement of the rights to life and dignity occasioned by section  of the Criminal Procedure Act needs to be measured against this test. In this regard, it should be noted that a law that infringes the right to dignity must be shown to be a reasonable, justifiable, and necessary limitation, whereas a law that contains a limitation upon the right to life need only be shown to be reasonable and justifiable. [] The purpose of the bifurcated levels of justification need not detain us here. What is clear is that section  introduces different levels of scrutiny for laws that cause an infringement of rights. The requirement of reasonableness and justifiability which attaches to some of the section  rights clearly envisages a less stringent constitutional standard than does the requirement of necessity. In both cases, the enquiry concerns proportionality: to measure the purpose, effects and importance of the infringing legislation against the infringement caused. In addition, it will need to be shown that the ends sought by the legislation cannot be achieved sufficiently and realistically by other means which would be less destructive of entrenched rights. Where the constitutional standard is necessity, the considerations are similar, but the standard is more stringent. [] In determining whether the breaches of sections  and  are justified in terms of section , the relevant considerations are the same as those traversed by President Chaskalson at paragraphs – of his judgment, albeit only in the context of a breach of section (). The attorney general argued that the purpose of section  was the deterrence and prevention of crime, and retribution. Although deterrence is an important goal, as President Chaskalson has described, the deterrent effect of the death penalty remains unproven, perhaps unprovable. [] The question of retribution is a more complex one. I agree with President Chaskalson that in a democratic society retribution as a goal of punishment should not be given undue weight. Indeed, I am unconvinced that, where the punishment is held to constitute a breach of a fundamental right, retribution would ever, on its own, be a sufficient ground for justification. As Justice Marshall noted in Furman v. Georgia  US  () at –: To preserve the integrity of the Eighth Amendment, the court has consistently denigrated retribution as a permissible goal of punishment. It is undoubtedly correct that there is a demand for vengeance on the part of many persons in a community against one who is convicted of a particularly offensive act. At times a cry is heard that morality requires vengeance to evidence society’s abhorrence of the act. But the Eighth Amendment is our insulation from our baser selves. The “cruel and unusual” language limits the avenues through which vengeance can be channeled. Were this not so, the language

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would be empty and a return to the rack and other tortures would be possible in a given case.

[] It remains then to balance the purposes of section  with the infringement of sections  and  it causes. In this exercise it is undeniable that sections  and  are rights that lie at the heart of our constitutional framework and that section  grievously infringes the ambit of these rights. They weigh very heavily in the scales of proportionality. On the other hand, while the goals of deterrence and prevention, which are the purpose of section , are important legislative purposes, it has not been satisfactorily demonstrated that they could not be sufficiently and realistically achieved by other means. After a careful consideration of the nature of the rights, the extent of the infringement of those rights, and the purposes of section , I remain unpersuaded that section  is a constitutionally acceptable limitation upon the rights to life and dignity. [] Section ()(b) provides that, in addition to being reasonable and justifiable (and, where appropriate, necessary), a limitation upon a right should not negate the essential contents of the right in question. As section  does not meet the requirements of reasonableness, justifiability, and necessity, it is not necessary and it would be inadvisable to consider whether it negates the essential contents of the rights in question. [] In conclusion, then, the death penalty is unconstitutional. It is a breach of the rights to life and dignity that are entrenched in sections  and  of our Constitution, as well as a breach of the prohibition of cruel, inhuman, and degrading punishment contained in section (). The new Constitution stands as a monument to this society’s commitment to a future in which all human beings will be accorded equal dignity and respect. We cannot postpone giving effect to that commitment. JUSTICE SACHS [] I agree fully with the judgment of the president of the court and wish merely to elaborate on two matters, both of emphasis rather than substance, which I feel merit further treatment. [] The first relates to the balance between the right to life and the right to dignity. The judgment appropriately regards the two rights as mutually reenforcing, but places greater reliance on the prohibition against cruel, inhuman or degrading punishment than it does on the right to life. For reasons that I will outline, I think the starting-off point for an analysis of capital punishment should be the right to life. [] Secondly, I think it important to say something about the source of values that, in terms of section  of the Constitution, our interpretation is required to promote.

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Makwanyane



The Right to Life and Proportionality [] Decent people throughout the world are divided over which arouses the greatest horror: the thought of the state deliberately killing its citizens, or the idea of allowing cruel killers to coexist with honest citizens. For some, the fact that we coldbloodedly kill our own kind taints the whole of our society and makes us all accomplices to the premeditated and solemn extinction of human life. For others, on the contrary, the disgrace is that we place a higher value on the life and dignity of the killer than on that of the victim. A third group prefer a purely pragmatic approach which emphasizes not the moral issues, but the inordinate stress that capital punishment puts on the judicial process and, ultimately, on the presidency, as well as the morbid passions it arouses in the public; from a purely practical point of view, they argue, capital punishment appears to offer an illusory solution to crime and as such actually detracts from really effective measures to protect the public. [] We are not called upon to decide between these positions. They are essentially emotional, moral, and pragmatic in character and will no doubt occupy the attention of the Constitutional Assembly. Our function is to interpret the text of the Constitution as it stands. Accordingly, whatever our personal views on this fraught subject might be, our response must be a purely legal one. [] This court is unlikely to get another case that is emotionally and philosophically more elusive, and textually more direct. Section  states: “Every person shall have the right to life.” These unqualified and unadorned words are binding on the state (sections  and ) and, on the face of it, outlaw capital punishment. Section  does allow for limitations on fundamental rights; yet, in my view, executing someone is not limiting that person’s life, but extinguishing it. [] Life is different. In the vivid phrase used by Justice Mahomed in the course of argument, the right to life is not subject to incremental invasion. Life cannot be diminished for an hour, or a day, or “for life.” While its enjoyment can be qualified, its existence cannot. Similarly, death is different. It is total and irreversible. Just as there are no degrees of life, so there are no degrees of death (though, as we shall see, there were once degrees of severity in relation to how the sentence of death should be carried out). A level of arbitrariness and the possibilities of mistake that might be inescapable, and therefore tolerable in relation to other forms of punishment, burst the parameters of constitutionality when they impact on the deliberate taking of life. The life of any human being is inevitably subject to the ultimate vagaries of the due processes of nature; our Constitution does not permit it to be qualified by the unavoidable caprices of the due processes of law. [] In the case of other constitutional rights, proportionate balances can be struck between the exercise of the right and permissible derogations from it. In matters such as torture, where no derogations are allowed, thresholds of permissible and impermissible conduct can be established. When it comes to execution, however, there is no scope for proportionality, while the only relevant threshold is, tragically, that to eternity.

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

Legal Cases (–)

[] Even if one applies an objective approach in relation to the enjoyment of the right to life, namely that the state is under a duty to create conditions to enable all persons to enjoy the right, in my view this cannot mean that the state’s function can be extended to encompass complete, intentional, and avoidable obliteration of any person’s subjective right. Subject to further argument on the matter, my initial view is that the objective approach can be used to qualify the subjective enjoyment of the right, but not to eliminate it completely, and certainly not to eliminate the subject. It can provide the basis for limiting enjoyment of other subjective rights— to dignity, personal freedom, movement—for a period, or in relation to a concrete situation, or in respect of a physical space, if the requirements of section  are met. Yet life by its very nature cannot be restricted, qualified, abridged, limited, or derogated from in the same way. You are either alive or dead. [] In my view, section  permits limitations on rights, not their extinction. Our Constitution in this sense is different from those that expressly authorize deprivation of life if due process of law is followed, or those that prohibit the arbitrary taking of life. The unqualified statement that “every person has the right to life” in effect outlaws capital punishment. Instead of establishing a constitutional framework within which the state may deprive citizens of their lives, as it could have done, our Constitution commits the state to affirming and protecting life. Because section  is not concerned with creating circumstances in which the right of any person may be disregarded altogether, nor with establishing exceptions that qualify the nature of the right itself, or exclude its operation, it cannot be invoked as an authorization for capital punishment. [] A full conceptualization of the right to life will have to await examination of a multitude of complex issues, each of which has its own contextual setting and particularities. In contrast to capital punishment, there are circumstances relating to the right to life where proportionality could well play an important role in balancing out competing interests. Whether or not section  would be applicable in each case, or whether proportionality will enter into the definition of the ambit of the right itself, or whether it relates simply to competition between two or more people to exercise the right when it is under immediate threat, need not be decided here. Thus, the German Constitutional Court has relied heavily on the principle of proportionality in relation to the question of when personhood and legally protected life begin and in particular of how to balance fetal rights as against the rights of the woman concerned [ BVerfGE  (nd Abortion Case)]. Force used by the state in cases of self-defense or dealing with hostage-takers or mutineers must be proportionate to the danger apprehended; the issue arises because two or more persons compete for the right to life; for the one to live, the other must die. The imminence of danger is fundamental: to kill an assailant or hostage-taker or prisoner of war after he or she has been disarmed is regarded as murder. [] Executing a trussed human being long after the violence has ended totally lacks proportionality in relation to the use of force and does not fall within the prin-

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Makwanyane



ciples of self-defense. From one point of view capital punishment, unless cruelly performed, is a contradiction in terms. The “capital” part ends rather than expresses the “punishment,” in the sense that the condemned person is eliminated, not punished. A living being held for years in prison is punished; a corpse cannot be punished, only mutilated. Thus, execution ceases to be a punishment of a human being in terms of the Constitution, and becomes instead the obliteration of a sub-human from the purview of the Constitution. [] At its core, constitutionalism is about the protection and development of rights, not their extinction. In the absence of the clearest contextual indications that the framers of the Constitution intended that the state’s sovereignty should be so extended as to allow it deliberately to take of the life of its citizens, section  should be read to mean exactly what it says: Every person shall have the right to life. If not, the killer unwittingly achieves a final and perverse moral victory by making the state a killer too, thus reducing social abhorrence at the conscious extinction of human beings.

The Source of Values [] The second issue that caused me special concern was the source of the values that we are to apply in assessing whether or not capital punishment is a cruel, inhuman, or degrading punishment as constitutionally understood. The matter was raised in an amicus brief and argued orally before us by Ms. Davids on behalf of the Black Advocates Forum. [] Her main contention was that we should not pronounce on the subject of capital punishment until we had been apprised by sociological analysis of the relevant expectations, sensitivities, and interests of society as a whole. In the past, she stated, the all-white minority had imposed Eurocentric values on the majority, and an allwhite Judiciary had taken cognizance merely of the interests of white society. Now, for the first time, she added, we had the opportunity to nurture an open and democratic society and to have due regard to an emerging national consensus on values to be upheld in relation to punishment. [] To begin with, I wish firmly to express my agreement with the need to take account of the traditions, beliefs, and values of all sectors of South African society when developing our jurisprudence. [] In broad terms, the function given to this court by the Constitution is to articulate the fundamental sense of justice and right shared by the whole nation as expressed in the text of the Constitution. The Constitution was the first public document of legal force in South African history to emerge from an inclusive process in which the overwhelming majority were represented. Reference in the Constitution to the role of public international law (section () and ) underlines our common adherence to internationally accepted principles. Whatever the status of earlier legislation and jurisprudence may be, the Constitution speaks for the whole of society and not just one section.

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Legal Cases (–)

[] Above all, however, it means giving long overdue recognition to African law and legal thinking as a source of legal ideas, values, and practice. We cannot, unfortunately, extend the equality principle backward in time to remove the humiliations and indignities suffered by past generations, but we can restore dignity to ideas and values that have long been suppressed or marginalized. [] Redressing the balance in a conceptually sound, methodologically secure, and functionally efficient way will be far from easy. Extensive research and public debate will be required. Legislation will play a key role; indeed, the Constitution expressly acknowledges situations where legal pluralism based on religion can be recognized (section ()), and where indigenous law can be applied (section ). Constitutional Principle XIII declares that “[i]ndigenous law, like common law, shall be recognized and applied by the courts, subject to the fundamental rights contained in the Constitution and to legislation dealing specifically therewith.” [] Yet the issue raised by Ms. Davids goes beyond the question of achieving recognition of different systems of personal law. [] In interpreting chapter  of the Constitution, which deals with fundamental rights, all courts must promote the values of an open and democratic society based on freedom and equality (section ()). One of the values of an open and democratic society is precisely that the values of all sections of society must be taken into account and given due weight when matters of public import are being decided. Ms. Davids’s concern is that when it comes to interpreting chapter , and in particular the concept of punishment, the values of only one section of the community are taken into account. [] Paul Sieghart points out that: the hallmarks of a democratic society are pluralism, tolerance and broadmindedness. Although individual interests must on occasion be subordinated to those of a group, democracy does not mean that the views of a majority must always prevail: a balance must be achieved which ensures the fair and proper treatment of minorities and avoids any abuse of a dominant position. (The International Law of Human Rights [Oxford , repr. ] at .)

The principle that cognizance must be taken of minority opinions should apply with at least equal force to majority opinions; if one of the functions of the Constitution is to protect unpopular minorities from abuse, another must surely be to rescue the majority from marginalization. [] In a democratic society such as we are trying to establish, this is primarily the task of Parliament, where the will of the majority can be directly expressed within the framework of a system of fundamental rights. Our function as members of this court—as I see it—is, when interpreting the Constitution, to pay due regard to the values of all sections of society, and not to confine ourselves to the values of one portion only, however exalted or subordinate it might have been in the past.

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Makwanyane



[] It is a distressing fact that our law reports and legal textbooks contain few references to African sources as part of the general law of the country. That is no reason for this court to continue to ignore the legal institutions and values of a very large part of the population, moreover of that section that suffered the most violations of fundamental rights under previous legal regimes, and that perhaps has the most to hope for from the new constitutional order. [] The positions adopted by the framers of the Mozambican and Namibian Constitutions were not apparently based on bending the knee to foreign ideas, as was implicit in Ms. Davids’s contention, but rather on memories of massacres and martyrdom in their own countries. As Churchill is reputed to have said, the grass never grows green under the gallows. Germany after Nazism, Italy after fascism, and Portugal, Peru, Nicaragua, Brazil, Argentina, the Philippines, and Spain all abolished capital punishment for peacetime offenses after emerging from periods of severe repression. They did so mostly through constitutional provisions. [] It is not unreasonable to think that similar considerations influenced the framers of our Constitution as well. In avoiding any direct or indirect reference to the death sentence they were able to pay due regard to the fact that one of this country’s greatest assets was the passion for freedom, democracy, and human rights amongst the generation of persons who fought hardest against injustice in the past. Included in this was a deep respect, amounting to veneration, for life. The emerging nation could squander this precious asset at its peril. The framers could not have been unaware of the fact that the time to guard against future repression was when memories of past injustice and pain were still fresh. If they chose sweeping language in favor of life, this could well in part have been because of a realization that this was the moment to remove any temptation in coming years to attempt to solve grave social and political problems by means of executing opponents. [] Historically, constitutionalism was a product of the age of enlightenment. It was associated with the overthrow of arbitrary power and the attempt to ensure that government functioned according to established principles and processes and in the light of enduring values. It came together with the abolition of torture and the opening up of dungeons. It based itself on the twin propositions that all persons had certain inherent rights that came with their humanity, and that no one had a God-given right to rule over others. [] The second great wave of constitutionalism after World War II was also a reaction to gross abuse of power, institutionalized inhumanity, and organized disrespect for life. Human rights were not merely declared to exist: against the background of genocide and crimes against humanity committed in the name of a racial ideology linked to state sovereignty, firm constitutional limits were placed on state power. In particular, the more that life had been cheapened and the human personality disregarded, the greater the entrenchment of the rights to life and dignity. [] Constitutionalism in our country also arrives simultaneously with the achievement of equality and freedom, and of openness, accommodation, and tolerance. When

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Legal Cases (–)

reviewing the past, the framers of our Constitution rejected not only the laws and practices that imposed domination and kept people apart, but those that prevented free discourse and rational debate, and those that brutalized us as people and diminished our respect for life. [] Accordingly, the idealism that we uphold with this judgment is to be found not in the minds of the Judges, but in both the explicit text of the Constitution itself and the values it enshrines. I have no doubt that even if, as the president’s judgment suggests, the framers subjectively intended to keep the issue open for determination by this court, they effectively closed the door by the language they used and the values they required us to uphold. It is difficult to see how they could have done otherwise. In a founding document dealing with fundamental rights you either authorize the death sentence or you do not. In my view, the values expressed by section  are conclusive of the matter. Everyone, including the most abominable of human beings, has the right to life, and capital punishment is therefore unconstitutional.

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Williams

S v. Williams and Others  () SA  (CC) CASE SUMMARY

Facts A full bench of the Cape Supreme Court (now the Western Cape High Court) consolidated five discrete cases in which six convicted juveniles were sentenced to receive a “moderate correction” of a number of strokes with a light cane. At the time of each trial, and prior to the inception of the Interim Constitution, juvenile whipping was a competent sentence in terms of section  of the Criminal Procedure Act  of  (CPA). The full bench of the Cape Supreme Court referred the consolidated matter to the Constitutional Court.

Issues The applicants contended that section  of the CPA violated section  (equality), section  (dignity), section  (the right to freedom of security of the person), and section  (children’s rights) of the Interim Constitution. The Constitutional Court framed the dispute solely in terms of whether the sentence of juvenile whipping constituted an unjustifiable infringement of the right to dignity (section ) and the right not to be subject to cruel, inhuman or degrading treatment.

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Legal Cases (–)

Decision of the Constitutional Court In a unanimous judgment, the Constitutional Court held that juvenile whipping constituted violations of both the right to dignity (section ) and the right to not to be subject to cruel, inhuman, or degrading treatment (section ()). In finding that CPA section  violated the right to dignity, the Constitutional Court accepted the applicants’ two-fold contention that “the intentional infliction of physical pain on a juvenile by a stranger at the instance of the state [is] incompatible with respect for and the protection of the dignity of the person being punished,” and that whipping likewise constituted a violation of the dignity of the person obliged to administer the whipping (paragraph ). In finding that CPA section  violated the right to not to be subjected to cruel, inhuman, or degrading treatment, the court held that the punishment was out of step with international norms and wrote that “[t]he severity of the pain inflicted is arbitrary, depending as it does almost entirely on the person administering the whipping. Although the juvenile is not trussed, he is as helpless. He has to submit to the beating, his terror and sensitivity to pain notwithstanding. Nor is there any solace to be derived from the fact that there is a prior examination by the district surgeon” (paragraph ). With respect to both violations, the court stated that “[t]he Government has a particular responsibility to sustain and promote the values of the Constitution. If it is not exacting in its acknowledgement of those values, the Constitution will be weakened. A culture of authority which legitimates the use of violence is inconsistent with the values for which the Constitution stands” (paragraph ). The court rejected the state’s attempt to justify juvenile whipping under section (), the limitations clause. Neither a lack of resources nor the use of whipping as a deterrent satisfied the section () requirements that a limitation of a fundamental right must be reasonable and justifiable in an open and democratic society based upon human dignity, equality, and freedom. Order The court invalidated that provisio of the legislation that allowed for corporal punishment. With respect to the retrospectivity of its order, the court held that no existing sentences should be carried out. Comment All criminal justice systems are systems of social control in which the punishment of individuals is used to send clear signals to the rest of a society regarding permissible and impermissible behavior. It must, therefore, be true that individuals are used, ultimately and primarily, as means to ends—whether the punishment is whipping, life imprisonment, or the death penalty. How does this utilitarian view of punishment square with the dignity-based analysis in Williams (given that no person should be reduced solely to, or merely to, a signal or a cipher)? What, if anything, distinguishes whipping from imprisonment?

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Williams



JUSTICE LANGA [] When the matter was argued before this court, it was common cause between the applicants and the state that the provisions in our law which authorize corporal punishment for adults are inconsistent with the Constitution. This consensus of course does not remove those provisions from the statute book; they have not been set aside by a competent body or authority and the relevant legislation has not been repealed. The agreement is, however, an acknowledgment of the effect that the provisions of the Constitution have in forcing a reassessment of the laws that govern us against the values expressed in the Constitution. The effect is to demarcate the parameters of civilized behavior, at least at the level of the administration of justice. [] Apart from provisions which permit juvenile whipping, the law presently allows whipping as a punishment, which may be imposed upon adult males between the ages of twenty-one and thirty years. This is notwithstanding the fact that over the last thirty years at least, South African jurisprudence has been experiencing a growing unanimity in judicial condemnation of corporal punishment for adults. Criticism of the practice has been consistent and emphatic, it being characterized as “punishment of a particularly severe kind . . . brutal in its nature . . . a severe assault upon not only the person of the recipient but upon his dignity as a human being”; “a very severe and humiliating form of punishment”; “n uiterste strafvorm”; “n erg vernederende en fisies baie pynlike vorm van bestraffing”; “cruel and inhuman punishment.” This tone of condemnation is to be found, not only in many decisions in this country, but also in other jurisdictions. [] If adult whipping were to be abolished, it would simply be an endorsement by our criminal justice system of a worldwide trend to move away from whipping as a punishment. As far back as , the Lansdown Commission of Enquiry, while recommending the retention of corporal punishment in limited form in South Africa, made the point that most civilized countries in the world had abandoned corporal punishment as a method of dealing with crime. The report of the Viljoen Commission, tabled in Parliament in January , also endorsed the view that whipping for adults was a brutal assault, not only on the person of the recipient, but also on his dignity as a human being. [] The provisions being challenged, however, relate to juvenile whipping. The state was at pains to point out that there are differences between adult and juvenile whipping. The contention was that corporal punishment was not in itself objectionable, particularly when restricted to male youths; what rendered adult whipping constitutionally unacceptable was the manner in which it was executed. The nub of the enquiry is, however, not the legality or otherwise of adult whipping or how different it is from juvenile whipping. The issue is whether juvenile whipping, on its own merits or demerits, is consistent with the Constitution.

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Legal Cases (–)

[] The act contains a number of related provisions that deal with the infliction of corporal punishment. Insofar as juveniles are concerned, no minimum age is fixed in the act, although practice and judicial decisions would seem to have fixed the lower age limit at nine years. A whipping may not be imposed “if it is proved that the existence of some psychoneurotic or psychopathic condition contributed towards the commission of the offence” [section ()]. Section ()(a) provides for a whipping to be carried out “by such person and in such place and with such instrument as the court may determine.” We were informed that, in practice, a cane is used, but it is significant that the act leaves this to the discretion of the magistrate [section ()]. The maximum number of strokes that may be imposed at any one time is seven [section ()(a)]. Juvenile whipping is inflicted over the buttocks, which must be covered with normal attire [section ()] and a parent or guardian may be present [section ()]. No whipping may be carried out unless a district surgeon or an assistant district surgeon has certified that the juvenile “is in a fit state of health to undergo the whipping” [section ()]. Juveniles over the age of seventeen years may be sentenced to a whipping in addition to any other sentence, provided that, where a sentence of imprisonment is imposed, the whole period must be suspended [Section ()(b)]. [] The applicants sought to impugn section  of the act on a number of grounds. It was contended that this provision violated sections , ,  and  of the Constitution. These provisions are contained in chapter , which is generally referred to as the chapter on fundamental rights. [] Section () of the Constitution guarantees to each person “the right to equality and to equal protection of the law.” Section () prohibits unfair discrimination on grounds which include race, gender, sex, color, and age; according to section (), “[p]rima facie proof of discrimination on any of the grounds specified . . . shall be presumed to be sufficient proof of unfair discrimination . . . until the contrary is established.” Applicants argued that the provisions of section  of the act discriminated unfairly against male juveniles on grounds of age and sex and, in the context of South Africa’s unjust and unequal past, their application was susceptible to racial bias. [] Section , for its part, guarantees to every person “the right to respect for and protection of his or her dignity.” The proposition advanced was that the circumstances under which juvenile whipping is administered, including the fact that it involves the intentional infliction of physical pain on the juvenile by a stranger at the instance of the state, are incompatible with respect for and the protection of the dignity of the person being punished. It was contended that this was a violation of the dignity of both the minor as well as that of the person administering the whipping. [] The provisions of section  of the Constitution are designed to protect children. It was argued that, inasmuch as the Constitution recognizes the vulnerability of children as a group and sets out to protect them, juvenile whipping infringed their right to security and not to be subjected to abuse.

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Williams



[] Much of the applicants’ argument was, understandably enough, devoted to the alleged violation of section () of the Constitution. As the heading indicates, this section deals with “[f ]reedom and security of the person” and the subsection provides that “[n]o person shall be subject to torture of any kind, whether physical, mental or emotional, nor shall any person be subject to cruel, inhuman or degrading treatment or punishment.” This is the only provision among those relied upon by the applicants that expressly refers to punishment. I propose to deal with the impact, if any, of sections  and () of the Constitution on the conduct, which is prescribed by section  of the act. [] It is clear that, when the words of section () of the Constitution are read disjunctively, as they should be, the provision refers to seven distinct modes of conduct, namely torture; cruel treatment; inhuman treatment; degrading treatment; cruel punishment; inhuman punishment and degrading punishment. [] In common with many of the rights entrenched in the Constitution, the wording of this section conforms to a large extent with most international human rights instruments. Generally, the right is guaranteed in absolute, nonderogable and unqualified terms; justification in those instances is not possible. [] The interpretation of the concepts contained in section () of the Constitution involves the making of a value judgment that “requires objectively to be articulated and identified, regard being had to the contemporary norms, aspirations, expectations and sensitivities of the . . . people as expressed in its national institutions and its Constitution, and further having regard to the emerging consensus of values in the civilized international community.” [] While our ultimate definition of these concepts must necessarily reflect our own experience and contemporary circumstances as the South African community, there is no disputing that valuable insights may be gained from the manner in which the concepts are dealt with in public international law as well as in foreign case law. [] The Oxford English Dictionary defines “cruel” as “causing or inflicting pain without pity,” “inhuman” as “destitute of natural kindness or pity, brutal, unfeeling, savage, barbarous” and “degrading” as “lowering in character or quality, moral or intellectual debasement.” In South African case law, definitions of “cruel,” with regard to treatment or punishment, are rare. The phrase “cruel treatment” has been used in the context of abuse of animals and has been described variously as “willfully caus[ing] pain without justification . . . intention of causing it unnecessary suffering”; “deliberate act causing substantial pain and not reasonably necessary in all the circumstances.” [] Whether it is necessary to split the words of the phrase and interpret the concepts individually is a matter that would largely depend on the nature of the conduct sought to be impugned. It may well be that, in a given case, conduct that is degrading may not be inhuman or cruel. On the other hand, other conduct may be all three. It was suggested to us that a useful approach might be to grade the concepts on a sliding scale of suffering inflicted, torture occupying the extreme position, followed by cruel, inhuman, and degrading, in that order.

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Legal Cases (–)

[] Article  of the European Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention) has been interpreted by distinguishing the concepts primarily by the degree of suffering inflicted. The European Commission of Human Rights (European Commission) described inhuman treatment as that which “causes severe suffering, mental or physical, which in the particular situation is unjustifiable” and torture as “an aggravated form of inhuman treatment.” The European Court of Human Rights (European Court) found the difference between torture and inhuman treatment in the fact that the former attaches “a special stigma to deliberate inhuman treatment causing very serious and cruel suffering.” The court also categorized degrading conduct as that which aroused in its victims feelings of fear, anguish and inferiority leading to humiliation and debasement and possible breaking of their physical or moral resistance. The same court distinguished between inhuman and degrading punishment in Tyrer v. United Kingdom, (–)  EHRR  and held that suffering had to reach a certain level before punishment could be characterized as inhuman. In a case where a juvenile had been sentenced to three strokes of the birch, the court found that, although that level had not been reached, the birching of the minor nevertheless amounted to degrading punishment. [] The Eighth Amendment to the Constitution of the United States of America (Eighth Amendment) as well as article  of the Canadian Charter of Rights and Freedoms (Canadian Charter) prohibit “cruel and unusual punishment.” In Furman v. Georgia,  US  () Justice Brennan postulated criteria in the assessment of what amounts to cruel and unusual punishment. He pointed out that punishment does not become “cruel and unusual” merely because of the pain inflicted. The true significance lay in the fact that members of the human race are treated “as nonhumans, as objects to be toyed with and discarded . . . [and that this is] . . . thus inconsistent with the fundamental premise of the Clause that even the vilest criminal remains a human being possessed of common human dignity.” [] Although some of the views expressed in Furman v. Georgia were qualified in the subsequent case of Gregg v. Georgia,  US  () Justice Stewart in the latter case affirmed that the basic concept underlying the Eighth Amendment “is the dignity of man.” [] In S v. Ncube; S v. Tshuma; S v. Ndhlovu the Zimbabwe Supreme Court, dealing with the issue of corporal punishment for adults, held that the practice was inhuman and degrading in violation of section () of the Declaration of Rights of the Zimbabwe Constitution which prohibits “torture or inhuman or degrading punishment.” The same conclusion was reached with respect to juvenile whipping by the Zimbabwe High Court in S v. F. Juvenile whipping was held to constitute inhuman and degrading punishment by the Zimbabwe Supreme Court in S v. A Juvenile [ () SA  (ZS)]. Acting Judge Gubbay characterized juvenile whipping as “inherently brutal and cruel; for its infliction is attended by acute physical pain. After all, that is precisely what it is designed to achieve. . . . In short, whipping,

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which invades the integrity of the human body, is an antiquated and inhuman punishment which blocks the way to understanding the pathology of crime.” [] The court in Tyrer v. United Kingdom characterized the whipping of a juvenile thus: The very nature of judicial corporal punishment is that it involves one human being inflicting physical violence on another human being. Furthermore, it is institutionalized violence that is in the present case violence, permitted by the law, ordered by the judicial authorities of the state and carried out by the police authorities of the state. Thus, although the applicant did not suffer any severe or long-lasting physical effects, his punishment—whereby he was treated as an object in the power of the authorities—constituted an assault on precisely that which is the main purpose of article  to protect, namely a person’s dignity and physical integrity. . . . The institutionalized character of this violence is further compounded by the whole aura of official procedure attending the punishment and by the fact that those inflicting it were total strangers to the offender.

[] Whether one speaks of “cruel and unusual punishment,” as in the Eighth Amendment of the United States Constitution and in article  of the Canadian Charter, or “inhuman or degrading punishment,” as in the European Convention and the Constitution of Zimbabwe, or “cruel, inhuman or degrading punishment,” as in the Universal Declaration of Human Rights, the ICCPR and the Constitution of Namibia, the common thread running through the assessment of each phrase is the identification and acknowledgment of society’s concept of decency and human dignity. [] In Tyrer v. United Kingdom the European Court put its finger on the basis for the distinction between punishment per se and punishment which was prohibited in terms of article  of the European Convention: the humiliation or debasement involved must attain a particular level and must be other than the usual, and perhaps inevitable, element of humiliation associated with punishment in general. In Furman v. Georgia Justice Brennan made it quite clear what he found to be particularly objectionable in this species of punishment: “[S]ince the discontinuance of flogging as a constitutionally permissible punishment, Jackson v. Bishop  F d  (CA ), death remains as the only punishment that may involve the conscious infliction of physical pain.” [] The severity of the pain inflicted is arbitrary, depending as it does almost entirely on the person administering the whipping. Although the juvenile is not trussed, he is as helpless. He has to submit to the beating, his terror and sensitivity to pain notwithstanding. Nor is there any solace to be derived from the fact that there is a prior examination by the district surgeon. The fact that the adult is stripped naked merely accentuates the degradation and humiliation. The whipping of both is, in itself, a severe affront to their dignity as human beings. I agree with the dicta

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in Campbell and Cosans v. United Kingdom [()  EHRR  at ] in which Mr. Klecker, in a dissenting opinion, stated: Corporal punishment amounts to a total lack of respect for the human being; it therefore cannot depend on the age of the human being. . . . The sum total of adverse effects, whether actual or potential, produced by corporal punishment on the mental and moral development of a child is enough, as I see it, to describe it as degrading within the meaning of article  of the Convention.

[] It was further claimed that age in itself was a redeeming feature; that while an adult whose character and personality has already been formed was likely to be hardened by the infliction of judicial whipping, the position was the opposite in the case of a juvenile. The basis for this was the view that as a juvenile’s character was still in the process of formation, he was still susceptible to correction and advice; corporal punishment might therefore still have a reformative effect on the young, even though it was accepted that it was likely to have the opposite effect on the old. [] I do not agree. One would have thought that it is precisely because a juvenile is of a more impressionable and sensitive nature that he should be protected from experiences that may cause him to be coarsened and hardened. If the state, as role model par excellence, treats the weakest and the most vulnerable among us in a manner that diminishes rather than enhances their self-esteem and human dignity, the danger increases that their regard for a culture of decency and respect for the rights of others will be diminished. As Justice Brandeis observes in a dissenting opinion in Olmstead v. United States [ US  () at ]: “Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example.” [] The process of political negotiations which resulted in the Constitution was a rejection of violence. In this context, it cannot be doubted that the institutionalized use of violence by the state on juvenile offenders as authorized by section  of the act is a cruel, inhuman and degrading punishment. The Government has a particular responsibility to sustain and promote the values of the Constitution. If it is not exacting in its acknowledgment of those values, the Constitution will be weakened. A culture of authority that legitimates the use of violence is inconsistent with the values for which the Constitution stands. [] The conclusion that I have reached, that section  of the act infringes the rights contained in sections  and () of the Constitution, is consistent with the view that has been expressed by many South African Judges before. As already indicated, the courts in this country have acknowledged the international consensus against corporal punishment and, in a sense, associated themselves with it in many judgments which have criticized, sometimes in the strongest terms, the infliction of corporal punishment. Judicial condemnation has resulted in adult whipping being imposed only in exceptional circumstances and juvenile whipping, in general, only as a device to keep the juvenile out of prison.

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[] The structure and content of chapter  suggests a two-stage enquiry. The first stage is concerned with establishing whether there is a violation of a right sought to be protected by the Constitution; this has been answered in the affirmative. The second leg of the enquiry deals with the question whether the violation constitutes a permissible limitation of the right in question. Section () of the Constitution provides: The rights entrenched in this chapter may be limited by law of general application, provided that such limitation— (a) shall be permissible only to the extent that it is— i) reasonable; and ii) justifiable in an open and democratic society based on freedom and equality; and (b) shall not negate the essential content of the right in question, and provided further that any limitation to (aa) a right entrenched in subsections ,  . . . shall, in addition to being reasonable as required in para (a)(i), also be necessary.

[] The grounds on which the state sought to justify juvenile whipping were, firstly, that it made good practical sense to have juvenile whipping as a sentencing option. The practice had advantages for both the offender and the state, particularly in view of a shortage of resources and the infrastructure required for the implementation of other sentencing options for juveniles. Secondly, it was suggested that juvenile whipping was a deterrent. [] The purpose of section  of the act is to provide a sentencing option for the punishment of juvenile offenders. What must be addressed is whether it is reasonable, justifiable and necessary to resort to juvenile whipping, notwithstanding the fact that it “constitutes a severe assault upon not only the person of the recipient, but upon his dignity as a human being.” The primary argument advanced in favor of juvenile whipping was that it constitutes a better alternative to imprisonment, particularly in the so-called “grey area” crimes. This was a reference to instances where a court has to deal with an offence that is not so serious as to merit a custodial sentence but is serious enough to render inappropriate the use of “softer” sentences. [] The introduction of correctional supervision with its prime focus on rehabilitation, through section  of the act, was a milestone in the process of “humanizing” the criminal justice system. It brought along with it the possibility of several imaginative sentencing measures, including, but not limited to, house arrest, monitoring, community service and placement in employment. This assisted in the shift of emphasis from retribution to rehabilitation. This development was recognized and hailed by Acting Justice Kriegler in S v. R [ () SA  (A) at I] as being the introduction of a new phase in our criminal justice system allowing for

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the imposition of finely tuned sentences without resorting to imprisonment with all its known disadvantages for both the prisoner and the broader community. [] The development of this process must not be seen as a weakness, as the justice system having “gone soft.” What it entails is the application of appropriate and effective sentences. An enlightened society will punish offenders, but will do so without sacrificing decency and human dignity. [] In addressing itself specifically to punishment, the Constitution ensures that the sentencing of offenders must conform to standards of decency recognized throughout the civilized world. Thus it sets a norm: measures that assail the dignity and self-esteem of an individual will need to be justified; there is no place for brutal and dehumanizing treatment and punishment. The Constitution has allocated to the state and its organs a role as the protectors and guarantors of those rights to ensure that they are available to all. In the process, it sets the state up as a model for society as it endeavors to move away from a violent past. It is therefore reasonable to expect that the state must be foremost in upholding those values that are the guiding light of civilized societies. Respect for human dignity is one such value; acknowledging it includes an acceptance by society that “even the vilest criminal remains a human being possessed of common human dignity” [Justice Brennan in Furman v. Georgia at ]. [] While there are obvious advantages to “quick” justice, society’s greater concern must be the form such punishment takes. The solutions we adopt in dealing with young offenders have to be part of a greater context and must be consistent with the promotion of the values that are reflected in the Constitution. It cannot be reasonable and in keeping with these values to imply, through the punishments we impose, that the infliction of violence is an acceptable option in the solution of problems. In any event, this consideration falls far short of the justification required to entitle the state to override the prohibition against the infliction of cruel, inhuman or degrading punishment. Its implications for the dignity of the individual are also far too serious. [] Finally, the perceived advantages or benefits of juvenile whipping must be weighed against the rights that the provision seeks to limit. Corporal punishment involves the intentional infliction of physical pain on a human being by another human being at the instigation of the state. This is the key feature distinguishing it from other punishments. The degree of pain inflicted is quite arbitrary, depending as it does on the person who is delegated to do the whipping. The court merely directs the number of strokes to be imposed. The objective must be to penetrate the levels of tolerance to pain; the result must be a cringing fear, a terror of expectation before the whipping and acute distress which often draws involuntary screams during the infliction. There is no dignity in the act itself; the recipient might struggle against himself to maintain a semblance of dignified suffering or even unconcern; there is no dignity even in the person delivering the punishment. It is a practice that debases everyone involved in it.

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[] No compelling interest has been proved which can justify the practice. It has not been shown that there are no other punishments that are adequate to achieve the purposes for which it is imposed. Nor has it been shown to be a significantly effective deterrent. On the other hand, as observed by Justice Page in S v. Motsoesoana, its effect is likely to be coarsening and degrading rather than rehabilitative. It is, moreover, also unnecessary. Many countries in the civilized world abolished it long ago; there are enough sentencing options in our justice system to conclude that whipping does not have to be resorted to. Thus, whether one looks at the adjectives disjunctively or regards the phrase as a “compendious expression of a norm,” it is my view that at this time, so close to the dawn of the st century, juvenile whipping is cruel, it is inhuman and it is degrading. It cannot, moreover, be justified in terms of section () of the Constitution. [] I accordingly find that the provisions of section  of the act violate the provisions of sections  and () of the Constitution and that they cannot be saved by the operation of section () of the Constitution. Although the provision concerned is a law of general application, the limitation it imposes on the rights in question is, in the light of all the circumstances, not reasonable, not justifiable and it is furthermore not necessary. The provisions are therefore unconstitutional.

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Ferreira

Ferreira v. Levin NO and Others; Vryenhoek and Others v. Powell NO and Others  () SA  (CC) CASE SUMMARY

Facts This case concerned the constitutionality of provisions in the Companies Act  of  that pertained to the winding up of companies. Section  provided that the master of the High Court may summon and examine any person mentioned in subsection  as to their affairs with the company that is being wound up. Section ()(b) provided as follows: “Any such person may be required to answer any question put to him at the examination, notwithstanding that the answer might tend to incriminate him, and any answer given to any such question may thereafter be used in evidence against him.” The applicants in the two matters had been summoned for examination in terms of section . They had both objected to being compelled to answer questions that might incriminate them and to supply answers that might be used as evidence against them in the future.

Legal History The applicants had applied to the Witwatersrand Local Division of the High Court for a temporary interdict prohibiting their further interrogation until the constitutionality of section ()(b) had been considered. The High Court dismissed the

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applications for interim relief but referred certain issues to the Constitutional Court for determination in terms of section () of the Interim Constitution.

Issues Do the provisions of the Companies Act challenged by the applicants infringe any of the rights in the Bill of Rights by requiring a person, on pain of imprisonment, to answer questions in an insolvency inquiry, when those questions can be used against them in a subsequent criminal case? Decision of the Constitutional Court The majority established two important constitutional principles before reaching the merits. First, the majority (per Justice Ackermann) held that the invalidity of a law is determined by an objective enquiry. The objective unconstitutionality approach ultimately renders the subjective positions of the parties irrelevant (paragraphs –). Secondly, the majority (per then President of the Constitutional Court Chaskalson) held that the Constitution mandated a broad approach to standing (paragraph ). Ultimately the court found that section ()(b) was inconsistent with the Interim Constitution. Although President Chaskalson concurred with the order proposed by Justice Ackermann, the judges differed on a number of issues. With respect to the right to freedom and security of the person, President Chaskalson (speaking for the majority) held that section ()(b) infringed the constitutional rule against self-incrimination and was therefore a violation of the right to a fair trial in section () of the Interim Constitution. Justice Ackermann, on the other hand, held that the applicants did not have standing to challenge the constitutional validity of section ()(b) on this ground because they had yet to face a trial. Justice Ackermann understood the section as a violation of the “residual” freedom right in section () of the Interim Constitution: a guarantee to “freedom in the negative sense” (paragraph ). Justice Ackermann described “negative liberty” as the “right of individuals not to have obstacles to possible choices and activities placed in their way” (paragraph ). Justice Ackermann suggested that such an expansive interpretation of section () was necessary in order to give substance to the right to human dignity. Justice Ackermann held that the limitation of section () by section ()(b) could not be justified under the limitations clause, section  of the interim Constitution. President Chaskalson, speaking again for the majority, preferred a narrower interpretation of section () premised primarily on the protection of physical integrity. Such an interpretation would not embrace the residual fair trial right articulated by Justice Ackermann (paragraph ). President Chaskalson held that Justice Ackermann’s reasoning with regard to section () would, in any event, have led him to conclude that section ()(b) violated section () of the Interim Constitution. President Chaskalson preferred—given the philosophical differences between the two judges—to decide the matter under section (). Thus,

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Legal Cases (–)

President Chaskalson agreed with Justice Ackermann’s conclusion that section ()(b) was inconsistent with the Interim Constitution but chose to do so on different grounds.

Order The court declared section ()(b) invalid only to the extent that it permitted answers to questions to be used in criminal trials. It also held that answers that had been obtained in the past under section ()(b) could still be used in criminal trials (thus limiting the retrospectivity of the order). Comment The judgment of Justice Ackermann in Ferreira provides an example of the use of the right to human dignity to inform the interpretation of another constitutional right, in this instance freedom and security of the person. At paragraph , Justice Ackermann reasoned: Human dignity cannot be fully valued or respected unless individuals are able to develop their humanity, their “humanness” to the full extent of its potential. Each human being is uniquely talented. Part of the dignity of every human being is the fact and awareness of this uniqueness. An individual’s human dignity cannot be fully respected or valued unless the individual is permitted to develop his or her unique talents optimally. Human dignity has little value without freedom; for without freedom personal development and fulfillment are not possible. Without freedom, human dignity is little more than an abstraction. Freedom and dignity are inseparably linked.

As noted above, Justice Ackermann held that section () of the Interim Constitution should be understood to guarantee “freedom in the negative sense” (paragraph ). Justice Ackermann describes “freedom in the negative sense” as the “right of individuals not to have obstacles to possible choices and activities placed in their way” (paragraph ). JUSTICE ACKERMANN [] The correctness of this attack by Mr. Cilliers on the applicants’ argument from section () of the Constitution needs to be considered first, before dealing with his other submissions. It seems to me that the only line of reasoning which might counter Mr. Cilliers’ objection would be along the following lines. There is authority in Australia and Canada for the proposition that the common-law privilege against extra-curial self-incrimination is a substantive right and not merely a rule of evidence; that, without being able to invoke such a right at trial, an accused cannot obtain a fair trial, and therefore reliance upon such right must be regarded as an unenumerated

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section () right. When the examinee at a section  of the act enquiry is asked a question that might tend to incriminate the examinee, he or she objects and raises the common-law right against self-incrimination. In so doing, the examinee is not invoking a section () right, but a substantive common-law right. The examiner counters this objection by pointing to the repeal of this common-law right, in the context of section  enquiries, by section ()(b) of the Act. The rejoinder of the examinee is that such purported repeal is invalid on the grounds that section ()(b) is unconstitutional by virtue of the fact that it is inconsistent with the section () rights of an accused. The objection that the examinee is not an accused in a criminal trial, and cannot therefore rely on a section () right which only accrues to an accused, is met by appealing to sections () and ()(b) of the Constitution. Section () provides in part that: “This Constitution shall be the supreme law of the Republic and any law or act inconsistent with [the Constitution’s] provisions shall, unless otherwise provided expressly or by necessary implication in this Constitution, be of no force and effect to the extent of the inconsistency.” This provision came into operation on April , . Section ()(b) provides, inter alia, that the relief referred to in section ()(a) (which includes a declaration of rights) may be sought by— (i) a person acting in his or her own interest; (ii) . . . (iii) . . . (iv) . . . (v) a person acting in the public interest.

[] There are four parts to the above line of reasoning. The first relates to the question whether the invalidity (being of “no force and effect”) of a statute (as a species of “law”) is determined by an objective or a subjective enquiry. The second relates to the question of the time at which such invalidity occurs. The third relates to the circumstances under which an appeal to invalidity may be made (the question of justiciability) and the fourth to the question as to who may invoke the invalidity (locus standi in the narrower sense). [] The answer to the first question is that the enquiry is an objective one. A statute is either valid or “of no force and effect to the extent of the inconsistency.” The subjective positions in which parties to a dispute may find themselves cannot have a bearing on the status of the provisions of a statute under attack. The Constitutional Court, or any other competent court for that matter, ought not to restrict its enquiry to the position of one of the parties to a dispute in order to determine the validity of a law. The consequence of such a (subjective) approach would be to recognize the validity of a statute in respect of one litigant, only to deny it to another. Besides resulting in a denial of equal protection of the law, considerations of legal certainty, being a central consideration in a constitutional state, militate against the

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adoption of the subjective approach. This also follows from the wording of section (). The words “shall be” do not refer to a date beyond April , . On April , , and subject to the qualification in the text of section () (“unless otherwise provided expressly or by necessary implication in this Constitution”), a law which is inconsistent with the Constitution ceases to have legal effect. For this reason, it was necessary to enact a provision such as section ()(a) of the Constitution which provides that, unless the Constitutional Court otherwise orders— the declaration of invalidity of a law or a provision thereof— (a) existing at the commencement of this Constitution, shall not invalidate anything done or permitted in terms thereof before the coming into effect of such declaration of invalidity.

[] The court’s order does not invalidate the law; it merely declares it to be invalid. It is very seldom patent, and in most cases is disputed, that preconstitutional 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 pre-existing 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. [] A pre-existing law that was inconsistent with the provisions of the Constitution became invalid the moment the relevant provisions of the Constitution came into effect. The fact that this court has the power in terms of section () of the Constitution to postpone the operation of invalidity and, in terms of section (), to regulate the consequences of the invalidity, does not detract from the conclusion that the test for invalidity is an objective one and that the inception of invalidity of a pre-existing law occurs when the relevant provision of the Constitution came into operation. The provisions of section () and (), which permit the court to control the result of a declaration of invalidity, may give temporary validity to the law and require it to be obeyed and persons who ignore statutes that are inconsistent with the Constitution may not always be able to do so with impunity. [] There is also Canadian authority for such an objective approach. Peter Hogg [in Constitutional Law of Canada rd ed. () at ] describes the position in that country as follows: This practice of ‘prospective overruling’ is difficult to justify in theory, however attractive it may be in practice, and it has never been accepted by

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Canadian courts. For a Canadian court, a constitutional restriction operates of its own force, even if judicial recognition of the fact has been delayed. Once the Supreme Court of Canada has held that a law is unconstitutional, there can be no doubt about the status of the law: it is invalid, and need not be obeyed. (Emphasis added.)

The German Federal Constitutional Court follows a similar approach. Klaus Schlaich [in Das Bundesverfassungsgericht rd ed () at –] puts it as follows: Das verfassungswidrige Gesetz ist, wie das BverfG formuliert, ‘mit dem Grundgesetz unvereinbar und daher nichtig.’ Das verfassungswidrige Gesetz ist von Anfang an (ex tunc) und dies ohne weiteren gestaltenden Akt (ipso iure) unwirksam . . . Nach deutscher Auffassung hebt das BverfG verfassungswidrige Gesetz nicht auf, es vernichtet sie nicht: Es stellt die Nichtigkeit nur (deklaratorisch) fest. [An unconstitutional law is, as the Federal Constitutional Court puts it, “inconsistent with the Basic Law and therefore invalid.” An unconstitutional law is from its inception (ex tunc) and without need for any further constitutive act (ipso iure) inoperative. . . . The German view is that the Federal Constitutional Court does not annul a statute, [the court] does not invalidate: it merely establishes the invalidity (in a declaratory way).]

[] The second question has really been resolved in the course of answering the first. The pre-constitutional law becomes invalid when the relevant provision of the Constitution came into operation (i.e. April , ), notwithstanding the fact that this court declares it to be invalid at a later date and has, in terms of section () and () of the Constitution, the power to postpone and regulate the operation of invalidity. [] The section () rights accrue, textually, only to “every accused person.” They are rights that accrue, in the subjective sense, when a person becomes an “accused person” in a criminal prosecution. The examinee is not such an “accused person.” It is a matter of pure speculation whether the applicants will ever become accused persons. Even should they become accused persons, their rights against extra-curial self-incrimination (assuming for the moment that such a right is an implied right in the larger category “right to a fair trial”) are not automatically infringed when they become accused persons. It will depend upon whether selfincriminating evidence given by the applicants at the section  enquiry is tendered in evidence against them. At that moment, for the first time, there is a threat to any section () right against extra-curial self-incrimination. The inescapable conclusion, therefore, is that section ()(b) does not constitute an infringement or threat of infringement of any section () rights of the applicants and that their

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attack on section ()(b) on this basis can accordingly not succeed. This was in fact the prima facie conclusion reached in Lynn NO and Another v. Kreuger and Others [ () SA  (N) ( [] BCLR )]. [] In the alternative, the applicants, for their constitutional challenge to section ()(b) of the Act, relied with differing degrees of enthusiasm and persistence on the rights protected in sections , , , , , , and  of the Constitution. The main alternative argument was, however, based on the rights to “freedom and security of the person” and “personal privacy,” respectively entrenched in sections () and . [] Section ()(a) of the Constitution does not present any difficulty to the applicants insofar as they seek to rely on such rights, since these rights are not limited to any category of persons nor restricted to any particular factual context. Such reliance does not raise mere “academic” questions of law, but ones which become justiciable the moment the applicants invoke these rights. [] The task of determining whether the provisions of section ()(b) of the act are invalid because they are inconsistent with the guaranteed rights here under discussion involves two stages: first, an enquiry as to whether there has been an infringement of the section () or  guaranteed right; if so, a further enquiry as to whether such infringement is justified under section (), the limitation clause. The task of interpreting the chapter  fundamental rights rests, of course, with the courts, but it is for the applicants to prove the facts upon which they rely for their claim of infringement of the particular right in question. Concerning the second stage, “(it) is for the Legislature, or the party relying on the legislation, to establish this justification (in terms of section () of the Constitution), and not for the party challenging it to show that it was not justified.”

The Infringement of the Section () Right to Freedom and Security of the Person [] In order to determine, at the first stage of the enquiry, whether the provisions of section ()(b) of the act are inconsistent with the section () right to freedom and security of the person, it is necessary, as a matter of construction, to define or circumscribe the section () right to the extent necessary for purposes of this decision. It is obviously unwise and undesirable (if not impossible) even to attempt an exhaustive or comprehensive definition or circumscription of the right designed to hold good indefinitely and for all further cases. Yet, even if the exact nature and boundaries of the right are to be defined on a case-to-case basis, some attempt must be made at this stage to determine the meaning, nature, and extent of the right. As part of this enquiry it is also necessary to determine more precisely what it is about the nature and operation of the provisions of section ()(b) of the Act, and their impact upon the examinee, which can be said to be inconsistent with the right to freedom.

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[] This court has given its approval to an interpretive approach “which, whilst paying due regard to the language that has been used, is ‘generous’ and ‘purposive’ and gives expression to the underlying values of the Constitution” as well as to that expressed in the following passage in the Canadian case of R v. Big M Drug Mart Ltd. [()  CRR ]: The meaning of a right or freedom guaranteed by the charter was to be ascertained by an analysis of the purpose of such a guarantee; it was to be understood, in other words, in the light of the interests it was meant to protect. In my view this analysis is to be undertaken, and the purpose of the right or freedom in question is to be sought, by reference to the character and larger objects of the charter itself, to the language chosen to articulate the specific right or freedom, to the historical origins of the concepts enshrined, and where applicable, to the meaning and purpose of the other specific rights and freedoms with which it is associated within the text of the charter. The interpretation should be . . . a generous rather than a legalistic one, aimed at fulfilling the purpose of the guarantee and securing for individuals the full benefit of the charter’s protection.

In the words of President Chaskalson, the provisions of chapter  must not be construed in isolation, but in its context, which includes the history and background to the adoption of the Constitution, other provisions of the Constitution itself and, in particular, the provisions of chapter  of which it is part. It must also be construed in a way which secures for ‘individuals the full measure’ of its protection.

I would, in the first place, read “freedom” disjunctively from “security of the person” in section (). The legislative history of the section would seem to confirm this. It was only in the Sixth Report of the Technical Committee on Fundamental Rights during the Transition that the right to “personal liberty” was combined with the right to “security of the person.” The right “to freedom” must be construed as a separate and independent right, albeit related to the right to “security of the person.” [] @txt:Conceptually, individual freedom is a core right in the panoply of human rights. The right to human dignity (“menswaardigheid”) is specifically entrenched in section  and has been categorized by this court, together with the right to life, as “the most important of all human rights. . . .” [] In Makwanyane Justice O’Regan pointed out that “without dignity, human life is substantially diminished” and pronounced the prime value of dignity in the following terms:

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The importance of dignity as a founding value of the new Constitution cannot be overemphasized. Recognizing a right to dignity is an acknowledgement of the intrinsic worth of human beings: human beings are entitled to be treated as worthy of respect and concern. This right therefore is the foundation of many of the other rights that are specifically entrenched in chapter .

I agree with these views. Justice O’Regan also pointed out, rightly in my view, that “(the) recognition and protection of human dignity is the touchstone of the new political order and is fundamental to the new Constitution.” [] Human dignity cannot be fully valued or respected unless individuals are able to develop their humanity, their “humanness” to the full extent of its potential. Each human being is uniquely talented. Part of the dignity of every human being is the fact and awareness of this uniqueness. An individual’s human dignity cannot be fully respected or valued unless the individual is permitted to develop his or her unique talents optimally. Human dignity has little value without freedom; for without freedom personal development and fulfillment are not possible. Without freedom, human dignity is little more than an abstraction. Freedom and dignity are inseparably linked. To deny people their freedom is to deny them their dignity. Although freedom is indispensable for the protection of dignity, it has an intrinsic constitutional value of its own. It is likewise the foundation of many of the other rights that are specifically entrenched.Viewed from this perspective, the starting point must be that an individual’s right to freedom must be defined as widely as possible, consonant with a similar breadth of freedom for others. [] There are other and more specific indications in the Constitution that the right to freedom is to be extensively interpreted. Section () embodies an injunction that, generally, in interpreting the chapter  provisions, a court of law must promote the values that underlie an “open” and democratic society “based on freedom and equality.” An “open society” most certainly enhances the argument that individual freedom must be generously defined. It is a society in which persons are free to develop their personalities and skills, to seek out their own ultimate fulfillment, to fulfill their own humanness and to question all received wisdom without limitations placed on them by the state. The “open society” suggests that individuals are free, individually and in association with others, to pursue broadly their own personal development and fulfillment and their own conception of the “good life.” [] A teleological approach also requires that the right to freedom be construed generously and extensively. In Makwanyane Justice O’Regan, adopting such a teleological approach, correctly observed as follows: 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

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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.

In my view exactly the same approach needs to be adopted in the case of the right to freedom. This is not the place to enumerate or elaborate on the vast number of limitations which, in the recent past and prior to the Constitution, had been placed neither on personal freedom, nor on the extent or variety of such limitations. No right-minded person in any society that claimed to be democratic and based on freedom and equality would today even try to justify these limitations. They started at birth and continued relentlessly until death. For the purposes of illustration, the most selective outline of such restrictions must suffice. The Population Registration Act and associated legislation eliminated or severely restricted the freedom to identify one’s child and hospitalize or educate one’s child. As an adult the curtailments of freedom related, amongst other things, to where one could reside, work, or own property; what work one could do; whom one could marry; how one could express or organize oneself politically; or where one could be buried. A feature common to all or many of these denials of freedom was a denial of the freedom to choose or develop one’s own identity, a denial of the freedom to be fully human. One of the main objects of the Constitution is to eradicate such denial or restriction of freedom, not in a casuistic way but as a profound constitutional commitment. In Makwanyane I had occasion to emphasize “the importance, in our new constitutional state, of reason and justification when rights are sought to be curtailed” and to refer to the fact that the Constitution is, in the words of Prof. E. Mureinik, “a bridge to . . . a culture of justification.” This further supports an extensive definition of freedom at the first stage of the enquiry. It may, in the state’s interest, be necessary to limit the right to freedom, but then it is for the body or person relying upon such limitation to establish in terms of section () inter alia, in the case of the limitation of a section () right, that such limitation is reasonable, justifiable in an open and democratic society based on freedom and equality, and necessary. [] I do not think that, in the context of the Constitution as a whole, there is any difference between freedom and liberty. In the negative sense freedom is, as pointed out by Isaiah Berlin, “involved in the answer to the question ‘What is the area within which the subject—a person or a group of persons—is or should be left to do or be what he is able to do or be, without interference by other persons?’” [Two Concepts of Liberty in Four Essays on Liberty  (Oxford University Press )]. In the positive sense freedom, so contends Berlin, “is involved in the answer to the question ‘What, or who, is the source of control or interference that can determine someone to do, or be, this rather than that?’” Section () is concerned with freedom in the negative sense and that is the sense in which I shall hereafter use it. It is essential to distinguish between freedom (liberty) and the conditions of its exercise. It could be dangerous to conflate the two concepts.

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If a man is too poor or too ignorant or too feeble to make use of his legal rights, the liberty that these rights confer upon him is nothing to him, but it is not thereby annihilated. The obligation to promote education, health, justice, to raise standards of living, to provide opportunity for the growth of the arts and the sciences, to prevent reactionary political or social or legal policies or arbitrary inequalities, is not made less stringent because it is not necessarily directed to the promotion of liberty itself, but to conditions in which alone its possession is of value, or to values which may be independent of it. And still, liberty is one thing and the conditions for it another . . . Useless freedoms should be made usable, but they are not identical with the conditions indispensable for their utility. This is not a merely pedantic distinction, for if it is ignored, the meaning and value of freedom of choice is apt to be downgraded. In their zeal to create social and economic conditions in which alone freedom is of genuine value, men tend to forget freedom itself; and if it is remembered, it is liable to be pushed aside to make room for these other values with which the reformers or revolutionaries have become preoccupied. . . . To provide for material needs, for education, for such equality and security as, say, children have at school or laymen in a theocracy, is not to expand liberty. We live in a world characterized by régimes (both right- and left-wing) which have done, or are seeking to do, precisely this; and when they call it freedom, this can be as great a fraud as the freedom of the pauper who has a legal right to purchase luxuries. Indeed, one of the things that Dostoevsky’s celebrated fable of the Grand Inquisitor in The Brothers Karamazov is designed to show is precisely that paternalism can provide the conditions of freedom, yet withhold freedom itself.

The fact that the right to freedom must, in my view, be given a broad and generous interpretation at the first stage of the enquiry, must therefore not be thought to be premised on a concept of the individual as being in heroic and atomistic isolation from the rest of humanity, or the environment, for that matter. I wish to emphasize quite explicitly that a broad and generous interpretation of freedom does not deny or preclude the constitutionally valid, and indeed essential, role of state intervention in the economic as well as the civil and political spheres. On the contrary, state intervention is essential to resolve the paradox of unlimited freedom (where freedom ultimately destroys itself ) in all these spheres. But legitimate limitations on freedom must occur through and be justified under the principles formulated in section (), not by giving a restricted definition of the right to freedom in section (). Kant luminously conceptualizes freedom as the “only one innate right” in the following terms: “Freedom (independence from the constraint of another’s will), insofar as it is compatible with the freedom of everyone else in accordance with a universal law, is the one sole and original right that belongs to every human being by virtue of his humanity” [The Metaphysical Elements of Justice  (Macmillan )].

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[] I also accept that it is not possible in all circumstances to fully harmonize all the chapter  rights with one another and that, in a given case, one right will have to be limited in favor of another. As Berlin points out: [S]ince some values may conflict intrinsically, the very notion that a pattern must in principle be discoverable in which they are all rendered harmonious is founded on a false a priori view of what the world is like. If . . . the human condition is such that men cannot always avoid choices . . . (this is) for one central reason . . . namely, that ends collide; that one cannot have everything. . . . The need to choose, to sacrifice some ultimate values to others, turns out to be a permanent characteristic of the human predicament.

[He] further comments: If we wish to live in the light of reason, we must follow rules and principles; for that is what being rational is. When these rules or principles conflict in concrete cases, to be rational is to follow the course of conduct which least obstructs the general pattern of life in which we believe. . . . [E]ven those who are aware of the complex texture of experience, of what is not reducible to generalization or capable of computation, can, in the end, justify their decisions only by their coherence with some over-all pattern of a desirable form of personal or social life, of which they may become fully conscious only, it may be, when faced with the need to resolve conflicts of this kind. If this seems vague, it is so of necessity.

Although Berlin’s views pertain to the field of political and moral philosophy, they are in my view equally applicable, mutatis mutandis, to constitutional interpretation and adjudication, where for the touchstone of “some over-all pattern of a desirable form of personal or social life” one could substitute “some over-all pattern of the norms and values of the Constitution.” Section () of our Constitution points to the norms and values “which underlie an open and democratic society based on freedom and equality.” As a prerequisite for the limitation of rights entrenched in chapter  of the Constitution, section ()(a)(ii) provides that such limitation shall be permissible only to the extent that it is “justifiable in an open and democratic society based on freedom and equality.” However, rights of freedom and equality are not always reconcilable and in concrete situations difficult choices may have to be made, because section ()(a)(ii) does not provide an obvious answer to the choice between freedom and equality. Nor does section (). It is, however, neither necessary nor desirable, for purposes of this case, to pursue this aspect of the matter any further. [] In the light of all the aforegoing I would, at this stage, define the right to freedom negatively as the right of individuals not to have “obstacles to possible

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choices and activities” placed in their way by (for present purposes we need go no further) the state. I am indeed mindful of the fact that, as alluded to in paragraph  above, specific “freedom rights” are separately protected in chapter . So, for example, the freedom to choose one’s place of residence is specifically protected in section , as is the right to enter, remain in, and leave the Republic in section . The meaning and ambit of these specifically and separately protected freedom rights must of course, in my view, be construed in the context of their specific entrenchment with due regard to the rules of constitutional construction and, in particular, the purpose they were intended to serve. It is also important to bear in mind that, when considering possible limitations on these section  and  rights in terms of the provisions of section () of the Constitution, such limitations do not, in addition to being reasonable, also have to be “necessary” for purposes of the provisos in subparagraphs (aa) or (bb) of section (). [] Similarly the freedoms of expression, assembly, demonstration and petition, association, and movement, are dealt with separately and specifically in sections  to  respectively. These rights, too, have to be construed and defined separately, as indicated above. Legitimate limitations on these rights are not subject to the additional requirement of being “necessary” in terms of proviso (bb) to section () unless and insofar as any such right “relates to free and fair political activity.” [] There are also specifically enumerated freedom rights where any limitation, in addition to being reasonable, must under all circumstances also be necessary in order to pass section () scrutiny. Such rights include the section () rights to freedom of conscience, religion, thought, belief, and opinion and the section  political rights. [] The implication of this separate enumeration and independent protection of specific freedom rights is of course that the freedom rights protected by section () should more properly be designated “residual freedom rights.” Consequently, when it is alleged that any freedom right has been infringed, the proper methodology would be first to determine whether the right infringed is a specifically enumerated freedom right. This will be done by analysis and construction of the specific section entrenching the right in question and applying it to the case at hand. If any limitation of such right is relied upon, regard will then be had to the specific provision in section () relating to such enumerated freedom right. If the alleged infringement is not of an enumerated freedom right, then the enquiry will be directed to determining whether a residual freedom right protected by section () has been infringed. If so, any limitation of such residual freedom right must, in addition to being reasonable, also be necessary because section  is included in proviso (aa) to section (). I have had the benefit of reading the President’s judgment in draft. I fully agree with his view that the ambit of the section () freedom right “does not depend on the construction of the section in isolation but on its construction in the context of chapter  of the Constitution.” It is, in fact, such an approach which has led me to the conclusion that it is a residual freedom right. I also agree, and have

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indeed adopted this approach, that in considering a constitutional challenge based on an alleged denial or limitation of freedom the first step is to enquire whether the impugned act falls within the freedoms elsewhere protected in chapter . [] It might be suggested that, because the Legislature has sought fit to subject any limitation of a residual freedom right to stricter scrutiny, that such residual freedom rights ought to be more narrowly construed. In my view there is no warrant for such an approach, for at least two reasons. First, it would constitute an unjustified “second-guessing” of the framers’ intention. They must have been only too well aware that at least some of the section () rights were residual freedom rights in view of the fact that so many freedom rights were specifically enumerated in other sections of the Constitution. Despite this awareness, they chose to confer the higher level of protection on these rights in proviso (aa) to section (). In my view, this decision, which is quite unambiguous, must be respected by this court. It is not our function to cut down artificially the patent protection afforded by section () to residual freedom rights by giving a limited construction, and a strained one at that, to these residual freedom rights. Second, such a construction would be in conflict with the “generous” and “full benefit” interpretative approach unanimously approved by this court in S v. Zuma and Others [ () SA  (CC) ( [] SACR ;  [] BCLR )] and in particular the following quotation approved of by Acting Judge Kentridge: “Constitutional rights conferred without express limitation should not be cut down by reading implicit restrictions into them, so as to bring them into line with the common law.” I respectfully disagree with the President’s view that those freedoms (and by implication other rights) whose limitation is made subject to the “necessary” test by section  of the Constitution are necessarily of a “higher order” than those freedoms which are not subjected to such an onerous test. A limitation of the section  equality right, for example, is not made subject to the more stringent “necessary” test, yet in my view it could scarcely be said that this right is of a “lower” order. I therefore consider it unhelpful to focus, as the President does, on the fact that a limitation of the section  right to privacy is only subject to the “reasonable” test. I certainly disagree, with respect, that this is anomalous. Even if it were anomalous, I do not believe that the anomaly assists this court in construing the section () right to freedom. It certainly does not call for what I would consider a strained and limited construction. There may well be good reason why the limitation of a section  right is only subject to the “reasonable” test. It may be because of the natural tension between this right and the right to freedom, or for some other reason, about which it is unprofitable to speculate. The fact that the guarantee against “torture” in section () is made subject to any limitation at all (particularly when regard is had to the fact that both the International Covenant on Civil and Political Rights and the European Convention on Human Rights outlaw any derogation from this right even in times of war or public emergency threatening the life of the nation) I find far more anomalous, but I do not consider such anomaly useful in construing other provisions of chapter .

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Legal Cases (–)

[] It needs to be emphasized that what is being contended for in this judgment is not an unlimited right to freedom or that the section () residual freedom rights are unlimited. What is being postulated is a broad and generous construction of these rights, which is quite different from contending that they are unlimited. These rights are indeed subject to limitation, but limitation justified in terms of section () of the Constitution. [] It might be contended that, by giving a broad and generous construction to the section () residual freedom rights, the court will, in the fields of criminal law and general regulatory provisions for example, be dragged into what are essentially legislative functions, because the state will be called upon to show in all these cases that the limitations imposed are necessary. I cannot, however, see that this differs in any principled way from the task which the court has to discharge when it tests any legislative or regulatory provision against the provisions of the Constitution in order to determine the validity of the former. Provisos (aa) and (bb) to section () embody an extensive array of Constitutional rights which, if infringed by any criminal statute or regulatory provision, would require the state (when rights enumerated in proviso (aa) are infringed and, in certain circumstances, when rights enumerated in proviso (bb) are infringed) to establish that limitations are, in addition to any other requirement, also necessary. [] It might also be contended that, by giving such a broad and generous construction to the section () residual freedom rights, the court will be inviting an intolerable workload because it will be obliged to test a multitude of criminal and other statutory provisions which are challenged on the grounds, inter alia, that the limitations thus placed on residual freedom rights are not necessary. Such an argument could proceed on the following basis: (a) that the majority of these statutory provisions will only be attacked if the right to freedom in section () is not narrowly construed; (b) that the court will be flooded with frivolous complaints; and (c) that the court is powerless to prevent this. In my view none of these premises can be assumed and all are unfounded. [] Depending on the nature of the criminal or other regulatory statutes involved, there are likely to be many other chapter  rights that are facially involved. It cannot simply be postulated that an internally unlimited residual freedom right will open the floodgates. After tracing the history of the embodiment of this rule in South African legislation, Acting Judge Kentridge concluded: [T]he common-law rule in regard to the burden of proving that a confession was voluntary has been not a fortuitous but an integral and essential part of the right to remain silent after arrest, the right not to be compelled to make a

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confession, and the right not to be a compellable witness against oneself. These rights, in turn, are the necessary reinforcement of Viscount Sankey’s “golden thread”—that it is for the prosecution to prove the guilt of the accused beyond reasonable doubt (Woolmington case [supra]). Reverse the burden of proof and all these rights are seriously compromised and undermined. I therefore consider that the common-law rule on the burden of proof is inherent in the rights specifically mentioned in s () and (c) and (d), and forms part of the right to a fair trial.

Even if it were not otherwise sufficiently clear from the wording of section ()(c) or (d) that these rights include the right of the accused not to be compelled to give evidence that incriminates them, the aforementioned approach unquestionably does. I conclude that the right of a person not to be compelled to give evidence which incriminates such person is inherent in the rights mentioned in section () and ()(c) and (d). The fact that such rights are, in respect of an accused person, included (implicitly or otherwise) in section () of the Constitution, does not for that reason preclude the court from giving residual content to section () and holding that section () protects rights similar to those in section ()(c) or (d) in contexts and in respect of persons other than those there mentioned. [] For this reason, the contention advanced by Mr. Cilliers that, because the section () rights were enumerated in such detail, it was not possible, on the proper construction of the Constitution as a whole, to interpret the section () right to freedom in such a way as to include a residual right not to be compelled to give evidence against oneself in a section  enquiry, cannot be sustained. [] In Reference re section () of Motor Vehicle Act Justice Wilson observed: “Indeed, all regulatory offences impose some restrictions on liberty broadly construed. But I think it will trivialize the charter to sweep all those offences into section  as violations of the right to life, liberty and security of the person even if they can be sustained under section .” I cannot, with due respect to so distinguished a judge, comprehend why an extensive construction of freedom would “trivialize” the charter, either in theory or in practice, or, more relevantly for our purposes, our present Constitution. It might trivialize a constitution (it would indeed cause chaos) if it resulted in the regulating measures being struck down. But that is not the consequence. An extensive construction merely requires the party relying thereon to justify it in terms of a limitation clause. It does not trivialize a constitution in theory; in fact it has the reverse effect by emphasizing the necessity for justifying intrusion into freedom. It does not trivialize a constitution in practice because in the vast majority of cases dealing with regulatory matters, the justification is so obviously incontestable that it is taken for granted and never becomes a live issue. In the borderline cases (and even in mundane regulatory statutes such cases may arise) there is no pragmatic reason why the person relying on the measure ought not to justify it.

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Legal Cases (–)

[] Section () of the transitional Constitution contains no internal limitation such as is found in section  of the Canadian Charter. There seems to be no reason in principle why the limitation of the right should not consistently be sought for and justified under section (). The drafters of section () were undoubtedly well aware of the provisions of section  of the Canadian Charter, yet they decided not to place any limitation in section (). Instead a detailed limitation clause has been crafted. It would seem to further the norms of the rule of law and of constitutionalism better for courts, in applying the Constitution, to seek for any limitation to section () rights in section (), where the Constitution lays down criteria for limitation, than to seek limits in section () by means of an interpretative approach which must of necessity, having regard to the nature of the right to freedom, be more subjective, more uncertain and more constitutionally undefined. In Zuma this court recognized the difference between the “single stage” approach and the “two-stage” approach to determining whether there has been an unconstitutional infringement of an entrenched right. It was further recognized that: The single stage approach (as in the United States Constitution or the Hong Kong Bill of Rights) may call for a more flexible approach to the construction of the fundamental right, whereas the two-stage approach may call for a broader interpretation of the fundamental right, qualified only at the second stage.

The fact that such a “two-stage” approach is prescribed by the Constitution, and that section () prescribes fully the criteria that have to be met before an entrenched right can be limited, in my view lends constitutional and policy support to an interpretative approach, which requires that the broadest interpretation be given to the entrenched right. If a limitation is sought to be made at the first stage of the enquiry, it requires, at best, an uncertain, somewhat subjective and generally constitutionally unguided normative judicial judgment to be made. The temptation to, and danger of, judicial subjectivity is great. This court would, in my view, be discharging its interpretative function best, most securely and most constitutionally, if, as far as is judicially possible, it seeks for any limitation of an entrenched right through section (). It may well be that the Constitution itself, either because of the descriptive ambit of one or more of the many other rights entrenched in chapter , or in some other way, expressly or by clear implication, indicates a limitation of an entrenched right at the first stage of the enquiry. Absent such an indication, the court would be on safer constitutional ground if it were to find any limitation on the basis of the prescribed criteria in section (). This approach will afford a better guarantee against the court, however unwittingly, reading its own subjective views into the Constitution. [] Article  of the German Basic Law deals with the right to freedom in two separate subparagraphs, namely:

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. Everybody has the right to self-fulfillment insofar as they do not violate the rights of others or offend against the constitutional order or morality. . Everybody has the right to life and physical integrity. Personal freedom is inviolable. These rights may not be encroached upon save pursuant to a law.

The formulation is patently different from that in section () of the transitional Constitution. The purpose of alluding to its provisions is not to attempt a direct comparison, but to illustrate that a Constitution can operate effectively where the widest possible construction is given to a freedom right. Article () is, it is generally agreed, given a very narrow construction which limits “personal freedom” to freedom from physical restraint. Article  contains detailed rights applying to detention and arrest. The legislative history of article (), the systematic structure of the fundamental rights and the existence of article  are used to support a narrow construction of article (). [] By contrast article () of the Basic Law has been interpreted so broadly by the Federal Constitutional Court that it presently allows the court to subject any legislative norm (statutory instrument) to constitutional scrutiny, the culmination of a process the basis for which was laid in the late s when the court interpreted the right to self-fulfillment as a protection of the general “freedom to act.” The freedom to act is guaranteed to the extent that it does not offend against the constitutional order, which includes all statutory instruments, but, in order to pass constitutional scrutiny, all statutes must conform formally and substantively with the Basic Law. Formally the court may, for example, examine whether the legislative provision was passed by the appropriate Legislature, but the substantive content of all legislative provisions are tested against the principle of proportionality. The Federal Constitutional Court requires the principle of proportionality to be respected even if a special limitation to the right, such as the “constitutional order” is invoked by the Legislature. The consequences of the extremely wide interpretation given to article () is that, in effect, all legislative provisions must be tested for compliance with the principle of proportionality. [] The phrase “insofar as they do not violate the rights of others or offend against the constitutional order or morality” which qualifies the “right to selffulfillment” in article () of the German Basic Law is not an internal qualification of this right for, as indicated above, the German Constitutional Court requires that all statutory provisions which prima facie limit this right be tested for compliance with the principle of proportionality. This is the equivalent of requiring all prima facie infringements of the residual freedom rights in section () of our Constitution to pass section () scrutiny. The German Constitutional Court has insisted on such justification according to the principles of proportionality in many cases. [] One’s sense is that the German Federal Constitutional Court seldom strikes down laws on the basis of section ()—the general freedom of action. The reason seems to be that the court shows deference to the Legislature in many of the areas

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Legal Cases (–)

protected by the freedom and not because it is not prepared to test legislation against the principles of proportionality or because it subjects the legislation to a different type of limitation test. The German Court is more inclined to exercise a stricter form of scrutiny on the basis of section () when the infringement is somehow analogous to the infringement of another right or freedom, not dissimilar to the heightened scrutiny the US Supreme Court employs through the “fundamental rights” strand of jurisprudence under that part of the Fourteenth Amendment that deals with due process. In other words, when the other rights or freedoms, for some reason or another, do not apply, section () is activated. This is the situation with which we are dealing here. It is important to define section () broadly in the first stage of the enquiry because it cannot function as a residual freedom right if narrowly defined at this stage. If a broad residual freedom right is not acknowledged by the court, the court will not be able to develop any form of due process jurisprudence— procedural or substantive. There may be concerns about substantive due process and Lochner, but in the absence of a broad interpretation of section () we will not have a general procedural due process right either. In the present case we are concerned with process as much as with substance. We are not creating a right, we are asking the state to be consistent—procedurally—when it denies individuals their rights. [] In the end result there appears to me to be no good reason for not giving section () the broad construction which I have suggested and requiring an infringement of its provisions to be justified under section (). The examinee, facing compulsion under section ()(b) of the Companies Act to give self-incriminating testimony, is subjected “to the cruel trilemma of self-accusation, perjury, or contempt.” On the basis of the considerations mentioned by Justice Wilson in Thomson’s case, to which I have already referred, I have no doubt that the provisions of section ()(b) of the Companies Act, which require an examinee summoned under section () to answer, under pain of fine or imprisonment, or both, any question put to the examinee, notwithstanding that the answer might tend to incriminate the examinee and notwithstanding that any answer to any such question may thereafter be used in evidence against the examinee, infringe the examinee’s section () right to freedom, more particularly the residual section () right of an examinee at a section  enquiry not to be compelled to incriminate himself or herself. [] [. . .] After stating that the right against compellability and the right against self-incrimination are “fundamental precepts of democratic societies which respect individual rights and freedoms,” Justice Wilson went on to describe the rationale for the right against self-incrimination as follows: Having reviewed the historical origins of the rights against compellability and self-incrimination and the policy justifications advanced in favor of their retention in more modern times, I conclude that their preservation is prompted by a concern that the privacy and personal autonomy and dignity of the individual be respected by the state. The state must have some justifica-

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tion for interfering with the individual and cannot rely on the individual to produce the justification out of his own mouth. Were it otherwise, our justice system would be on a slippery slope towards the creation of a police state.

[] The use immunity in section () of the CI Act which qualified the compulsion to testify and was the subject of enquiry in Thomson Newspapers read as follows: but no oral evidence so required shall be used or receivable against such person in any criminal proceedings thereafter instituted against him, other than a prosecution under section  of the Criminal Code for perjury in giving such evidence or a prosecution under section  of the Criminal Code in respect of such evidence.

It was a direct use immunity only and did not include a derivative use immunity such as was considered by the US Supreme Court in Kastigar. We are concerned with the constitutionality of a statutory compulsion to testify and an override of the privilege against self-incrimination with no indemnity against prosecution or use immunity of any nature. It is important, for our purposes, to consider the way in which policy considerations relating to use immunity were dealt with in the Thomson case. This will emerge more clearly later. [] As indicated above, only Justices Wilson and Sopinka came to the conclusion that the direct use immunity was insufficient to prevent section  of the CI Act from violating the “fundamental justice” provision in section  of the Canadian Charter (which qualified the right to “liberty and security of the person”). The purpose of the CI Act has authoritatively been stated to be the following: From this overview of the Combines Investigation Act I have no difficulty in concluding that the act as a whole embodies a complex scheme of economic regulation. The purpose of the act is to eliminate activities that reduce competition in the marketplace. The entire act is geared to achieving this objective. The act identifies and defines anti-competitive conduct. It establishes an investigatory mechanism for revealing prohibited activities and provides an extensive range of criminal and administrative redress against companies engaging in behavior that tends to reduce competition.

Justice Wilson also pointed out that: [T]he act contains numerous provisions enabling the director to collect information relating to anti-competitive behavior. Once this information has been obtained a variety of uses can be made of it, including the referral of the matter to the Attorney-General of Canada for possible prosecution.

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Legal Cases (–)

The attorney general is empowered, in terms of section () of the CI Act, to exercise all the powers and functions conferred by the Criminal Code on the attorney general of a province in any ensuing prosecution. Section  of the Canadian Charter, which provides that: [a] witness who testifies in any proceedings has the right not to have any incriminating evidence so given used to incriminate that witness in any other proceedings, except in a prosecution for perjury or for the giving of contradictory evidence

—only affords a limited protection against self-incrimination (I pause to point out that the immunity in the section is only a direct use and not a derivative use immunity). Likewise section (c) of the charter, which enacts that— Any person charged with an offence has the right . . . (c) not to be compelled to be a witness in proceedings against that person in respect of the offence”;

only affords a limited right of noncompellability. [] Justice Wilson held that the examinees could not avail themselves of either section  or (c) of the charter. After reviewing the historical origins of the rights against compellability and self-incrimination in a comparative perspective, Justice Wilson concluded that their preservation was prompted by a concern that the privacy and personal autonomy and dignity of the individual be respected by the state. The state must have some justification for interfering with the individual and cannot rely on the individual to produce the justification out of his own mouth. Were it otherwise, our justice system would be on a slippery slope towards the creation of a police state.

[] To meet the requirements of section () of the Constitution, any limitation of the section () right to freedom must: (a) be “reasonable”; (b) be “justifiable in an open and democratic society based on freedom and equality”; (c) “not negate the essential content of the right”; (d) be “necessary.” [] A recent decision in the Canadian Supreme Court, RJS v. The Queen; Attorney-General et al. Interveners [()  DLR (th) ] (hereafter cited as

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RvS (RJ)), which bears on the issue of derivative use immunity as a constitutional requirement, came to our attention after argument. It concerned two young offenders who were both charged with the same offence of “break, enter, and theft” but, because of their age and by virtue of relevant Ontario legislation, were to be tried separately. At the trial of the one young offender (“the accused”), the other young offender (“the witness”) was subpoenaed by the Crown to testify against the accused. On an application brought by the witness’s counsel, the subpoena against him was quashed on the basis that to require the witness to testify would violate section  of the Canadian Charter of Rights and Freedoms. Because of the resultant lack of evidence the accused was acquitted. On appeal by the Crown, the quashing of the subpoena was set aside and a new trial ordered, a decision confirmed by the Supreme Court. It is necessary to point out the obvious, namely that this particular problem could not arise in our law because of the transactional indemnity which, in similar circumstances, would be available to the witness by virtue of the provisions of section  of the Criminal Procedure Act. [] Nevertheless the decision is of significance for a number of reasons. First, it clearly affirms the principle that in all cases “a statutory compulsion to testify engages the liberty interest of s ” but that normally “the liberty interest is affected in accordance with the principles of fundamental justice.” Secondly, it confirms that a “deprivation of liberty may arise by virtue of a compulsion to speak per se” regardless of the character of the compelled speech. The character of the speech which is compelled (for example, self-incriminatory speech) may, however, depending on the particular construction of the charter, be determinative of the issue as to whether such deprivation of liberty is in accordance with the principles of fundamental justice or whether an infringement is justified under section  of the charter.Thirdly, it makes clear that the liberty interest in section  of the charter “may be engaged although there is no coincident deprivation in respect of the other section  interests, life or security of the person.” Fourthly, it holds, relying on earlier dicta, that not every restriction of absolute freedom constitutes a deprivation of liberty. Fifth, the judgment also confirms that, notwithstanding the provisions of sections (c) and  of the Canadian Charter, section  of the charter contains residual protections against self-incrimination extending beyond section (c) and  and that this is necessary, in part, to protect the section (c) right. Justice Iacobucci, highlighting “the vigor of section ,” held that there was “a functional, unifying principle” against self-incrimination and that pretrial silence was no longer merely “a particular manifestation of the general freedom to do as one pleases” but had “been elevated to the status of a constitutional right.” Lastly, it considers extensively the nature of derivative evidence and whether and to what extent a derivative use immunity is necessary in order to render compelled testimony in accordance with the principles of fundamental justice. I shall endeavor to deal as briefly as possible with this last aspect. [] The issue of derivative use evidence was considered on the basis that the principle of fundamental justice which operated in the case was the “principle against

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Legal Cases (–)

self-incrimination.” It was pointed out that the Canada Evidence Act had abolished the witness’s (as opposed to the accused’s) privilege and replaced it with a limited form of immunity, applicable in respect of subsequent proceedings and not at the moment of compelled testimony, inasmuch as section () of the Canada Evidence Act currently provides that a witness’s self-incriminatory answers cannot “be used or admissible in evidence against (the witness) in any criminal trial or other criminal proceeding against him thereafter taking place, other than a prosecution for perjury.” Justice Iacobucci describes the policy justification for the common-law protections as resting “on the idea that the Crown must establish a ‘case to meet’ and reflecting “a basic distaste for self-conscription.” [] The learned judge’s approach was to seek a compromise between, on the one hand, full transactional immunity if self-incriminating testimony is compelled and, on the other, mere direct use immunity where it is only the witness’s direct communication which is protected against subsequent use. In the course of his enquiry, Justice Iacobucci agreed with the following statement by Justice La Forest in Thomson Newspapers: “A right to prevent the subsequent use of compelled selfincriminating testimony protects the individual from being ‘conscripted against himself ’ without simultaneously denying an investigator’s access to relevant information. It strikes a just and proper balance between the interests of the individual and the state.” The conclusion reached by Justice Iacobucci was that the Canadian Charter did not demand absolute derivative use immunity. The learned judge approved of the distinction drawn by Justice La Forest between compelled testimony and derivative evidence and stated succinctly that “compelled testimony is evidence which has been created by the witness, whereas derivative evidence is evidence which has independent existence. It is only the class of created evidence which is, by definition, self-incriminatory.” [] There is, in my judgment, no reason why this approach cannot and ought not to be adopted in regard to the enquiry concerning the admissibility of derivative evidence in the context of s ()(b) of the Companies Act. I have little doubt that two different but related areas concerning the law of evidence will, in due course, have to be reconsidered fully in the light of chapter  of the Constitution and section () in particular. The one relates to the way in which evidence, particularly in criminal proceedings, is obtained and the second to the question of when and to what extent a trial Judge has a discretion to exclude otherwise admissible evidence. [] Prior to the coming into operation of the Constitution, courts in South Africa were not particularly concerned with the way in which evidence was obtained. Notable exceptions of course related to admissions, confessions, and, more recently, to acts of pointing out. In other cases, however, the general approach was that, provided the evidence was relevant, it was admissible. It is unnecessary in the present case to reconsider this issue beyond the very narrow area of the derivative use of compelled self-incriminating evidence. It can be noted, however, that, since the

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Constitution came into effect, a new approach is beginning to emerge in decisions of the Supreme Court. [] In considering matters of evidential admissibility or inadmissibility we ought not to limit the focus of our attention exclusively on the state of the law of evidence that existed prior to the present Constitution coming into operation. Section () of the Constitution guarantees to every accused person the broad right to a fair trial, which is not limited to the specific enumerated rights in paragraphs (a)–(j) of the subsection. In certain areas of criminal procedure, the specific provisions of these paragraphs will settle debates concerning criminal procedure and criminal justice generally which previously were uncertain or controversial. Thus, the application of section ()(e) of the Constitution in S v. Vermaas; S v. Du Plessis settled the lively controversy in our law (as to) whether persons standing trial on criminal charges who could not afford to pay for their legal representation were entitled to be provided with it at public expense once its lack amounted to a handicap so great that to try them on their own lay beyond the pale of justice.

The general discretion to exclude evidence in a criminal trial is a principle accepted, for example, both in England and in Canada. As Justice La Forest pointed out in Thomson Newspapers, the discretion to exclude evidence, which would otherwise have been admissible, has been applied in various areas of criminal procedure because this discretion is “ultimately grounded in the trial Judge’s duty to ensure a fair trial.” Justice La Forest had no hesitation in concluding that this discretion ought also to be exercised in the determination of when, and when not, derivative evidence relating to compelled self-incriminating testimony should be admitted against an accused. This approach, subject to its passing the test of section () of the Constitution, ought to apply in this country as well inasmuch as, just as in Canada, the right to a fair trial has been constitutionalized. [] Companies are used to raise money from the public and to conduct business on the basis of limited liability. There are obvious advantages to doing so. But there are responsibilities that go with it. Part of the responsibility is to account to shareholders for the way in which the company conducts its affairs and, if the company goes insolvent, to account to shareholders and creditors for the failure of the business. These responsibilities are well known to all who participate in the running of public companies. Giving evidence at a section  enquiry is part of the responsibility to account. It cannot simply be said that the administration of justice would necessarily be brought into disrepute by the subsequent use, even in criminal proceedings against the examinee, of derivative evidence obtained as a result of the application of section ()(b) of the act. Indeed, the public, and especially the victims of the crime, might find a denial of the right to use such evidence inexplicable. Although it has been held that an auditor is not an officer of the company within the meaning of that expression in section () of the  act (corresponding to section ()

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Legal Cases (–)

of the present act) and it has been suggested that there is no basis for regarding an auditor as being an officer of the company for any purpose of the act, in my view the same public policy considerations apply to the use of derivative evidence of an auditor of the company compelled to testify under section ()(b) of the Act. The auditor has, inter alia, many statutory duties under the Companies Act and the Public Accountants’ and Auditors Act, the purpose of which duties is, inter alia, to protect shareholders and creditors. The knowledge and expertise of the auditor is of particular importance in reconstructing the affairs of the company in liquidation and in achieving the other aims of the section  enquiry. An auditor is not obliged to become the auditor of a particular company or to discharge the attendant duties without remuneration. In accepting appointment as an auditor of any particular company the auditor is aware of these duties.

The Order [] I conclude that section ()(b) of the Companies Act is inconsistent with the right to freedom protected in section () of the Constitution to the extent indicated above. It must therefore, pursuant to section () of the Constitution, be declared invalid to the extent of such inconsistency. This is not a case where an order in terms of the proviso to section () ought to be made. The declaration of invalidity is very narrow. Its only effect will be to render inadmissible, in criminal proceedings against a person previously examined pursuant to the provisions of section ()(b), incriminating evidence given by such person under compulsion of the provisions of section ()(b). Neither the interests of justice nor good government require that these provisions should be kept in force any longer. A declaration of invalidity will not affect any of the other provisions of section  or  of the Companies Act and will have insignificant, if any, impact on the purpose or efficacy of enquiries under these proceedings. JUSTICE CHASKALSON [] The finding that section ()(b) of the Companies Act is inconsistent with the Constitution is in essence based on a finding that the section infringes the rule against self-incrimination. This is apparent from the reasons given by Justice Ackermann for holding the section to be inconsistent with the Constitution. The rule against self-incrimination is not simply a rule of evidence. It is a right that by virtue of the provisions of section () is, as far as an accused person is concerned, entitled to the status of a constitutional right. It is inextricably linked to the right of an accused person to a fair trial. The rule exists to protect that right. If that right is not threatened the rule has no application. Thus a person who has been indemnified against prosecution, or a person convicted of a crime who is subsequently called to give evidence against a coconspirator, would not be entitled to claim the privilege in respect of evidence covered by the indemnity or the conviction. This connection

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between the unconstitutionality of section ()(b) and the privilege is recognized in the order made by Justice Ackermann, which is designed to eliminate the conflict by ensuring that evidence given by a witness at a section ()(b) enquiry cannot be used against that witness if he or she is subsequently prosecuted. [] A challenge to the constitutionality of section ()(b) should therefore, in my view, be characterized and dealt with as a challenge founded on the right to a fair criminal trial. It is precisely because section ()(b) is inconsistent with that right, that its validity can be impugned. It is also the basis upon which the applicants launched their constitutional challenge in the present case. Although they relied on various provisions of chapter  to support their argument, at the core of their complaint was the concern that they were required to answer questions at the enquiry which might incriminate them, and which might thereafter be used in evidence against them. That they had such a fear was not disputed in argument. Although the matter was initially dealt with as directed by this court on the basis of a referral of what was then an abstract question of law, the applicant in the Ferreira matter had previously lodged with the court extracts from the record of the enquiry which showed that he was indeed being called upon to answer incriminating questions. Justice Heher pointed out in his judgment in this case in the Witwatersrand Local Division that both applicants had reasonable grounds for such an apprehension. As this was never disputed I see no need to delay the proceedings further by calling for the record in the Supreme Court case to be lodged with us. The applicants’ desire to secure a ruling on the constitutionality of the section cannot be characterized as being hypothetical or academic. It raises a real and substantial issue as far as the applicants are concerned, and I have no doubt that they have an interest in having that issue resolved. Whether that interest is sufficient to give them standing to challenge the constitutionality of section ()(b) is the matter to which I now turn. [] Chapter  of the Constitution enumerates the wide range of fundamental freedoms to which I have referred. All are subject to section , the limitations clause. The criteria according to which chapter  rights may be limited are referred to in paragraph  of Justice Ackermann’s judgment. Some grounds are common to all rights, but a distinction is drawn between those rights in respect of which a limitation must also be shown to be “reasonable” and those that require the limitation to be both “reasonable” and “necessary.” The differentiation pointedly made in section  of the Constitution between different categories of freedom has a bearing on the meaning to be given to section (). Limitations pointedly made in section  of the Constitution between different categories of freedom have a bearing on the meaning to be given to section (). Limitations of section () are subject to the “necessary” test, which is an indication that the section in concerned with a freedom of a higher order than those enumerated freedoms, which are not subjected to such an onerous test. A guarantee of the physical integrity of all persons is a freedom of the highest order which calls for the more onerous test of limitation. I am not persuaded, however, that this could be said of section () in general if it is given

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as wide a meaning as Justice Ackermann gives it in paragraph  of his judgment. I have found nothing in the legislative history to suggest that the frames of the Constitution intended section () to have such a meaning; nor do I consider it necessary, as Justice Ackermann has suggested that it may be, to adopt such a construction in order to give substance to the right to human dignity. In the context of the multiplicity of rights with which it is associated in chapter , human dignity can and will flourish without such an extensive interpretation being given to section (). [] It would in my view be highly anomalous to give to unenumerated rights forming a “residue” in section () a higher status, subject to closer scrutiny than a right so important to freedom as privacy, which is subject only to the “reasonable” test. If there are residual freedom rights within section (), that residue should be confined to freedoms which, though not enumerated elsewhere in chapter , are entitled to be characterized as fundamental freedoms and thus properly claimable under section (). If freedom were to be given the wide meaning suggested by Justice Ackermann, all regulatory laws, which are a feature of any modern society, would have to be justified as being necessary. In my view this is not what is contemplated by the provisions of section (), nor is it a conclusion to which we need be driven. It would require courts to sit in judgment on what are essentially political decisions, and in doing so to require the Legislature to justify such decisions as being necessary. This is not something that is required either by the words or the context of the section. If the intention had been to vest the control of freedom in that sense in the courts, I would have expected this to have been clearly stated and not left to be inferred from an extensive interpretation of the section. [] Liberty is dealt with in article  of the German Constitution. The wording of this article is also different to the wording of section  of our Constitution. The provision closest to section () is article () which provides: “Everyone shall have the right to life and to the inviolability of his person. The liberty of the individual shall be inviolable. These rights may be encroached upon pursuant to law.” As Justice Ackermann points out in paragraph  of his judgment “liberty” in the context of article () is construed as referring to freedom from physical constraint. The fact that it is found alongside a provision which explicitly lays down that “everyone shall have the right to the free development of his personality,” which in turn has been construed by the German Federal Constitutional Court as protection of a general freedom to act, is no reason for us to give that meaning to “freedom” in section () of our Constitution. Currie indicates that the extensive interpretation of the right to free development of the personality by the German Federal Constitutional Court was influenced by the legislative history of the provision. He also points out that in the Elfe case, referred to in paragraph  of Justice Ackermann judgment, the court held that the general right to freedom of action is limited “both by the Basic Law itself and ‘by every legal norm that conforms procedurally and substantively with the Constitution.’” That apparently requires laws to conform to “the principles of the rule of law and the social welfare state.” Implicit in the social

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welfare state is the acceptance of regulation and redistribution in the public interest. If in the context of our Constitution freedom is given the wide meaning that Justice Ackermann suggests it should have, the result might be to impede such policies. Whether or not there should be regulation and redistribution is essentially a political question that falls within the domain of the Legislature and not the court. It is not for the courts to approve or disapprove of such policies. What the courts must ensure is that the implementation of any political decision to undertake such policies conforms to the Constitution. It should not, however, require the Legislature to show that they are necessary if the Constitution does not specifically require that this be done. [] In terms of our Constitution we are enjoined to protect the freedom guaranteed by section () against all governmental action that cannot be justified as being necessary. If we define freedom in the context of section () in sweeping terms we will be called upon to scrutinize every infringement of freedom in this broad sense as being “necessary.” We cannot regulate this power by mechanisms of different levels of scrutiny as the courts of the United States do, nor can we control it through the application of the principle that freedom is subject to laws that are consistent with the principles of “fundamental justice,” as the Canadian courts do. [] We should be careful to avoid the pitfall of Lochner v. New York which has been described by Professor Tribe in his seminal work on American Constitutional Law, as being “not in judicial intervention to protect ‘liberty’ but in a misguided understanding of what liberty actually required in the industrial age.” The Lochner era gave rise to serious questions about judicial review and the relationship between the court and the Legislature and as Professor Tribe points out, the collapse of Lochner gave “credence to the notion that the legislative process should be completely willful and self-controlled, with absolutely no judicial interference except where constitutional provisions much more explicit than due process were in jeopardy.” [] The protection of fundamental freedoms is preeminently a function of the court. We should not, however, construe section  so broadly that we overshoot the mark and trespass upon terrain that is not rightly ours. In a famous dissent in the Lochner case, Justice Holmes said: I think that the word liberty in the Fourteenth Amendment is perverted when it is held to prevent the natural outcome of a dominant opinion, unless it can be said that a rational and fair man necessarily would admit that the statute proposed would infringe fundamental principles as they have been understood by the traditions of our people and our law.

The fundamental principles to which we must look for guidance in this regard are those laid down by our Constitution. They are the principles of an open and democratic society based on freedom and equality. In a democratic society the role of

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Legal Cases (–)

the Legislature as a body reflecting the dominant opinion should be acknowledged. It is important that we bear in mind that there are functions that are properly the concern of the courts and others that are properly the concern of the Legislature. At times these functions may overlap. But the terrains are in the main separate, and should be kept separate. [] This does not mean that we must necessarily confine the application of section () to the protection of physical integrity. Freedom involves much more than that, and we should not hesitate to say so if the occasion demands it. But, because of the detailed provisions of chapter , such occasions are likely to be rare. If despite the detailed provisions of chapter  a freedom of a fundamental nature which calls for protection is identified, and if it cannot find adequate protection under any of the other provisions in chapter , there may be a reason to look to section () to protect such a right. But to secure such protection, the otherwise unprotected freedom should at least be fundamental and of a character appropriate to the strict scrutiny to which all limitations of section  are subjected. [] Against this background I can see no objection to accepting provisionally that section () is not confined to the protection of physical integrity and that in a proper case it may be relied upon to support a fundamental freedom that is not otherwise protected adequately under chapter . This, however, is not such a case. The reason why the Canadian courts have dealt with this issue under section  of the charter is that the requirement of “fundamental justice” which is part of that section has been construed as “obviously requir[ing] that a person accused of a crime receive a fair trial.” Section () of our Constitution contains no comparable provision. In the context of our Constitution, and having regard to the specific wording of the section itself, and the fact that the right to a fair trial is dealt with specifically and in detail under section (), I cannot read section () as including a residual fair trial right. In paragraph  of this judgment I indicated that “a challenge to the constitutionality of section ()(b) should . . . be characterized and dealt with as a challenge founded on the right to a fair criminal trial.” It is precisely because section ()(b) is inconsistent with this right that its validity can be impugned. As long as incriminating evidence is not admissible at the criminal trial and the use of “derivative evidence” at such trial is made dependent on such use being subject to “fair criminal trial” standards, the rule against self-incrimination is adequately protected. If this is so, the first of the two requirements which would have to be established in order to invoke section () to protect a residual right of freedom, i.e., that the right is not otherwise protected adequately by chapter , has not been met, and it is not necessary to consider the second requirement, i.e., whether the “residual right” claimed is of a character appropriate for protection under section ().

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JUSTICE MOKGORO [] I have had the opportunity of reading the judgments of President Chaskalson and Justice Ackermann. I agree with Justice Ackermann that section ()(b) is unconstitutional and the order that he proposes. I, however, agree with President Chaskalson that the applicants do have standing to secure a ruling on the validity of section ()(b) of the said Act. I therefore concur in his judgment for the reasons that he gives. Although I am in agreement with him regarding the meaning of “freedom” in section () of the Constitution, this brief concurring note reflects the difference I have with him regarding his interpretation of “freedom” in section () of the Constitution. [] Section () is entitled “Freedom and security of the person.” Textually, this section, in my view, protects the two related rights of “freedom of the person” and “security of the person,” as opposed to “freedom” on the one hand and “security of the person” on the other. The conjunctive “and” in this section serves to connect “freedom” to “of the person.” Once “freedom” in section () is textually separated from “security of the person,” we run the risk of giving it a construction of an allembracing “right to freedom,” which it certainly is not. Attributing so broad a meaning to “freedom” in this section has the effect of extending it too far beyond the perimeters of physical integrity. That “freedom” in section () means freedom in the sense of physical integrity emerges from the plain meaning of the text and not from the narrowing of an all-embracing freedom right. This, however, does not mean that section () cannot be given a broad meaning sufficient to provide protection to an unenumerated right akin to freedom of the person, within the context of the rest of chapter . [] Section () provides for the “right to freedom and security of the person” and section () protects persons against “torture” and “cruel, inhuman and degrading treatment and punishment.” Therefore, viewed within the context of the whole of section , “freedom” in section () undoubtedly points toward physical integrity and not a broad, all-embracing right to freedom. This perspective is confirmed in various international human rights instruments, as has already been pointed out by President Chaskalson in his judgment. [] For the aforesaid reasons, I have no doubt in my mind that section () is not a resort for unenumerated residual freedom rights, which do not find adequate protection under any other provision of chapter  of the Constitution. [] Chapter  makes detailed provision for the protection of a variety of enumerated freedom rights. As the president of this court so correctly points out, there is therefore a rare likelihood that we may find occasion to protect an unenumerated freedom which calls for protection. While it is his view that we may have to look to section () to protect such rights, I respectfully do not share this view with him. As pointed out earlier [in paragraph ], section () does not provide protection

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Legal Cases (–)

for unenumerated freedom rights. If occasion for the protection of such an unenumerated right arises, that right may have to be classified under a chapter  right to which it is most akin and/or give that chapter  right a generous and full benefit construction to embrace that unenumerated right. [] The generous, full benefit and purposive approach to constitutional interpretation has already been adopted in previous decisions of this court (S v. Zuma and Others  () SA  (CC) ( () SACR ;  () BCLR ) ¶ ; S v. Makwanyane and Another  () SA  (CC) ( () SACR ;  () BCLR ) ¶ ; and S v. Mhlungu and Others  () SA  (CC) ( () SACR ;  () BCLR ) ¶ ). Although section () should also be generously construed, there would be no need to give it such a strained construction to accommodate an outcome, which we may nevertheless reach by invoking a generous, full-benefit and purposive construction of one or other enumerated right in chapter . In this way, the limitations tests in section  would apply appropriately, without any undue elevation or downgrading of an enumerated freedom right vis-à-vis any unenumerated freedom right in chapter  of the Constitution. [] [. . .] In S v. Makwanyane and Another (supra) President Chaskalson held that section  requires that the purpose and importance of the infringing rule be measured against the nature and effect of the infringement (at paragraph ). JUSTICE SACHS [] The specific question we have to decide is not what constitutional rights of the examinee could be violated as a matter of abstract reasoning, nor what rights could be infringed at a subsequent criminal trial, but, rather, what rights, if any, are violated at the moment that he or she is summoned to answer questions about the company’s affairs, or, more particularly, when the potentially incriminating questions are put. I have difficulty in accepting that the examinee’s right to a fair trial as guaranteed by section  of the Constitution is trespassed upon at that moment. It may be that the examinee’s right to have a fair trial at some time in the future is threatened, and in a manner far from academic, namely by the express provision that the answers may indeed be used against him or her at a subsequent criminal trial. What might have been fair compulsion in the context of reconstituting information about the affairs of the company could cease to be fair when it becomes a forced confession, actually tendered for the purposes of a criminal trial. Yet even if the examinee’s right to a fair trial in the future is being threatened, the examinee is still not an “arrested” or an “accused” person as contemplated by section , and might never become such. The time to assert a fair trial right would be when a trial was pending or imminent, and the use of the incriminating answers actually threatened. In the absence of imminent prosecution, the jeopardy in which the examinee is placed relates to the potentially unconscionable and concrete pressures of the moment, rather than

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the hypothetical, even if grave, possibility of future penalization. What is at issue, then, is a right to a fair examination, not a right to a fair trial. [] In this connection, I find myself in agreement with Justice Ackermann that the answer to the problem before us is to be found in a recognition of the existence of a residuary and unenumerated right protected by section (). At the same time, I am far from convinced that the concept of freedom contained in section () should be given as expansive a treatment as Justice Ackermann suggests, or that the residual space is as large as he indicates. I accordingly offer the following tentative observations to indicate where I differ. [] To equate freedom simply with autonomy or the right to be left alone does not accord with the reality of life in a modern, industrialized society. Far from violating freedom, the normal rules regulating human interaction and securing the peace are preconditions for its enjoyment. Without traffic regulation, it would be impossible to exercise freedom of movement in a meaningful sense; absent government compulsion to pay taxes, the expenditure necessary for elections to be held, for Parliament to pass legislation, or for this court itself to uphold fundamental rights, would not be guaranteed. The Rechtsstaat, as I understand it, is not simply a state in which government is regulated by law and forbidden to encroach on a constitutionally protected private realm. . . . [] For the purposes of the present case, I accordingly regard Justice Ackermann’s valuable analysis as providing a broad framework within which to approach the question of freedom, rather than as establishing a focused and operational definition of the concept. I find his approach particularly useful as a guide to what is meant by the values of freedom and equality which the Constitution requires us to promote. Freedom and equality are at one and the same time in tension with each other, and mutually supportive; in the context in which the Constitution has to be interpreted, the quest for equality should not be used as a justification for suppressing freedom, just as the need to protect freedom should not become a means for denying equality. [] In relation to the definition of what is meant by the words freedom and personal security in section (), I therefore believe that something more is required than a broad philosophical framework allied to a concept of residual, constitutionally protected liberty. My view is that it is not necessary for the purposes of this case to go beyond treating freedom and personal security as two elements of a single basic right which encompasses protection from interferences, of a substantial rather than a trivial kind, with the basic freedoms known to our legal culture, of which freedom from physical restraint is the most pungent example, but not the only one. [] The text of section , which includes a prohibition against detention without trial, as well as the exclusion of torture and other forms of physical and emotional ill-treatment, indicates a narrow concern with the theme of bodily restraint or abuse, rather than a sweeping repudiation of any impediment whatsoever to the

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Legal Cases (–)

orderly pursuit of happiness. On the other hand, the express acknowledgement of the rights to dignity and privacy in sections  and  respectively, read together with the preamble and the afterword, establish a setting that allows for a more expansive role for the word freedom. Similarly, the general injunction to interpret chapter  in such a way as to promote the values that underlie an open and democratic society based on freedom and equality, also encourages a broad rather than a narrow interpretation of the concept of freedom. Where the text permits, the different provisions should be read together in such a way as to maintain rather than reduce hardwon freedoms. The antiquity of an institution is, of course, no guarantee in itself of its constitutional virtue. Yet tried and tested principles generally associated with fundamental fairness and manifestly in harmony with the Constitution should, if the text so allows, be subsumed into rather than blotted out from the Constitution. [] The question arises whether or not a violation of the privilege against selfincrimination could enter into this penumbra of protected liberties. I think it would be incorrect to regard the express inclusion of protections against self-incrimination in section () and () in favor of detained or accused persons, as representing an intention by the framers to restrict the right purely to the pre-trial and trial situations. I feel it is more appropriate to regard these provisions as constituting evidence in a particularly pungent and impermeable form of a wider underlying and unifying principle, that which in Canada has been summed up as the “case to meet.” One’s right to freedom and personal security is jeopardized when any part of this interrelated structure is touched. In the celebrated words of Mr. Justice Frankfurter, “the history of liberty has largely been the history of procedural observance of safeguards” [McNabb v. United States  US  () at ]. Freedom and procedural safeguards are closely interrelated, and the principal focus of this court’s activity should accordingly not “lie in the realm of general public policy but in the inherent domain of the judiciary as guardian of the justice system.” [] Adopting this approach, which I do, allows for an amplified interpretation of the concept of freedom and personal security, one capable of giving shelter under its wing to protections that have evolved over the ages against abusive state power while recognizing that such protections will be primarily, but by no means exclusively, related to freedom from physical restraint. The words of section  should then be construed in such a manner as to provide constitutionally defensible space against invasions of freedom of a kind analogous in character and intensity to the imposition of physical restraint. Legal traditions, both positive and negative, would help to define what this analogous or penumbral area would include: legal institutions developed and applied in the past with a view to curtailing abusive state action would readily fit; similarly, negative memories of past oppressive state behavior in our country and elsewhere would help define whether or not a freedom issue is being raised. The first step is to establish the existence of what is a real or substantial invasion of freedom, and not a normal regulatory act; only when this is done should the need to justify the infringement arise. Once a substantial breach of this kind has

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been shown to exist, however, the scrutiny for justification required by section () can be truly stringent. [] In my view, a breach of the long-standing right not to be compelled to incriminate oneself out of one’s own mouth would, in any context, raise a question of fundamental freedom. At the same time, the absence of an explicitly stated generalized right against self-incrimination in the Constitution, indicates that the operation of the principle outside of a trial situation is weaker than within. The privilege against self-incrimination should therefore neither be reduced to a restricted immunity confined to the trial situation, nor be enlarged so as to become an absolute right to be used on all occasions. Its application depends on time, place and context. The closer to a trial situation, the more powerful the principle; the more remote from a trial, the weaker it will be. Thus there would be little scope, if any at all, for possible weakening of the right of a detained or accused person (so firmly protected by sections () and ()) not to be compelled to testify. The interests of shareholders and creditors, however aggrieved they may feel, would not even be put into the balance in this context, let alone weighed. Their very real concerns are subsumed into the general interest of the community in ensuring that crime does not pay and criminals are duly punished. The further away from the trial situation one gets, however, and the more residual rather than primary the application of the privilege, the more does it submit itself to countervailing interests. Accordingly, the claims of shareholders and creditors would firmly enter the scales at a section  enquiry, to be balanced against the principle that people should not be compelled to condemn themselves out of their own mouths.

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Bernstein

Bernstein and Others v. Bester and Others NNO  () SA  (CC) CASE SUMMARY

Facts Following one of the largest financial collapses in South African history, the Cape Provincial Division of the High Court ordered, in terms of sections  and  of the Companies Act, a commission of enquiry into the affairs of certain companies in the Tollgate Group. Mr. Bernstein and other partners and employees of a partnership of chartered accountants that audited the Tollgate Group (“the applicants”) were summoned to the commission of enquiry. The applicants’ attorneys were furnished with a number of issues the commission wished to engage during the questioning of the auditor’s witnesses. However, it became evident to all concerned that the respondent liquidators were considering the civil liability of the auditors and intended to gather evidence to support such a suit during the  and  examinations. In terms of the extant legislation, answers the applicants gave in the sections  and  inquiries could be used against them in any subsequent civil claim. Moreover, the refusal to answer questions during the inquiries could result in imprisonment. On the third day of the examination, the applicants challenged the constitutionality of the proceedings in terms of sections  and  and the examination was deferred.

Legal History The applicants had approached the High Court for an order to rescind the previous order of that court to hold a commission of enquiry to the extent that it authorized

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the applicants to be summoned to the commission pursuant to sections  and . They also sought an interdict to prevent the respondents from investigating the auditors’ firm and from using or disclosing evidence given or documents obtained from the applicants. The High Court referred the question of the constitutionality of sections  and  to the Constitutional Court.

Issues Does the power to require, on pain of imprisonment, individual people to provide answers in an inquiry into the affairs of a company in receivership, who might, in so answering, leave themselves open to subsequent civil litigation, violate their constitutional rights? Decision of the Constitutional Court The impugned provisions were challenged on the grounds that they were wholly or in part inconsistent with the constitutional rights to freedom and security of the person, privacy, equality, and a fair trial. Justice Ackermann, writing for the majority of the court, rejected these challenges. The court held that the process was necessary to serve an important public interest: enabling the liquidator to determine the assets and the liabilities of the company and distribute them correctly. In addition the High Courts and the Supreme Court of Appeal had already developed, and will continue to develop, a thorough body of case law to regulate the proceedings in terms of sections  and  in order to ensure that they are not “oppressive, vexatious and unfair” (paragraph ). Accordingly, the court concluded that none of the applicants’ rights were violated. The court reasoned as follows: the threat of imprisonment, following a fair procedure and the opportunity for exceptions in justifiable cases, did not violate the protection of the right to freedom and security of the person. Concerning the right to privacy, Justice Ackermann held that merely requiring a person to be present at an inquiry could not interfere with their right to privacy. While requiring answers to specific questions or the production of specific materials might infringe the right to privacy, the legislation should be interpreted so that personal information irrelevant to the inquiry need not be disclosed. Turning to the right to fair administrative action, Justice Ackermann found that even if the procedure was administrative action—which he doubted—the procedure was entirely fair. He also dismissed the claim under Interim Constitution section  as being the same as the issue under the right to equality, namely that sections  and  permitted a party in civil litigation to gain an unfair advantage. As he could find no comparable holding in any other open and democratic society, Justice Ackermann dismissed this claim as well. Order The court held that apart from those sections of the Companies Act that had been declared invalid in Ferreira v. Levin NO (see previous case)—and which prevented

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answers from the inquiry from being used in criminal prosecutions—the provisions of sections  and  of the act were not inconsistent with the provisions of the Interim Constitution.

Comment The court reaches different conclusions in Ferreira and Bernstein. In Ferreira the court upholds the challenge based on the possibility of criminal liability; in Bernstein the court turns down a challenge to the same provision based on the threat of civil liability. While clear differences in the constitutional text (the right to silence in criminal trials) provide a solid explanation, what is the principled difference? Is a person’s dignity less affected if his answers to questions given on pain of imprisonment are used to force him to pay civil damages rather than suffer criminal punishment? In some cases a civil penalty—including not only damages but also loss of employment and reputation—may be as, if not more, severe than a criminal sanction. JUSTICE ACKERMANN [] The parties then agreed that the Cape Provincial Division of the Supreme Court should refer the issue whether sections  and  of the Companies Act are consistent with the Constitution to the Constitutional Court in terms of section () of the Constitution. This agreement resulted in the order of Deputy Judge President Fagan referred to above. [] The applicants have attacked the constitutionality of sections  and  of the act on four different bases, contending that they are wholly or in part inconsistent with various rights in chapter  of the Constitution and that such violations cannot be justified in terms of section () of the Constitution or cured by interpretation in terms of section () or (). The attack is advanced on the following grounds: . The whole mechanism created under sections  and  violates a cluster of inter-related and overlapping constitutional rights, namely, (a) the right to freedom and security of the person (section ()); (b) the general right to personal privacy (section ); (c) the particular aspect of the right to personal privacy not to be subject to seizure of private possessions or the violation of private communications. . The mechanism violates section  in that it permits an administrative interrogation in violation of the provisions of that section. . Insofar as section ()(b) deprives witnesses of their privilege against self-incrimination and renders their self-incriminating evidence admissible against them in subsequent criminal proceedings, it violates both the general as well as particular rights to a fair trial in terms of section ().

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. Insofar as the mechanism permits the liquidator and the creditors of the company in liquidation to gain an unfair advantage over their adversaries in civil litigation that they would not have enjoyed but for the liquidation of the company, it violates: (a) an implied constitutional right to fairness in civil litigation, and, (b) the guarantee of equality in terms of section . [] The third basis of unconstitutionality has, in effect, already been decided in the applicants’ favor (at least partially) in Ferreira v. Levin where this court declared section ()(b) to be inconsistent with the Constitution to the extent indicated in paragraph  above. Two of the judges found that the provision was unconstitutional because of its inconsistency with section () of the Constitution and eight of the judges found it unconstitutional because of its inconsistency with section () of the Constitution. [] Inasmuch as the subject matter of the enquiry is the affairs of the company taken in the very widest sense, the examinee may be interrogated on a very wide range of matters and may be compelled to disclose any of his books or papers, however confidential or incriminating they might be. The mechanism is available, not only against the directors, officers, employees, or agents of the failed company and against those suspected of being responsible for its failure, but also against innocent third parties whose “misfortune” it is to know something about the trade, dealings, affairs, or property of the company. [] In regard to the particular circumstances of the present case (as embodied in the agreed statement of facts) Mr. Marcus highlighted a number of features. Since December  the applicants have cooperated fully with and rendered assistance to the liquidators and their attorneys and the investigating accountants. The applicants have furnished them with all their working papers and such explanations and further information as they required. At no stage prior to the commencement of Mr. Bernstein’s examination on August , , (the first of the applicants to be examined) did the respondents inform the applicants that they considered Kessel Feinstein to be civilly liable in consequence of the manner in which the firm had performed its professional duties as auditors of the companies in the Tollgate Group or that the examination would be aimed, inter alia, at gathering evidence to support a possible claim against Kessel Feinstein. The liquidators addressed a memorandum to the applicants of issues that would be canvassed in their interrogation. Although they were warned that the list was not exhaustive, there was no intimation from the liquidators that the civil liability of Kessel Feinstein would in any way be canvassed. Yet the liquidators had, prior to Mr. Bernstein’s examination, instructed their investigative accountants to conduct an investigation into the potential liability of Kessel Feinstein and had decided that one of the objects of the interrogation was to explore their potential liability and to obtain concessions and admissions concerning their alleged negligence in the performance of their duties. When Mr. Bernstein came to

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be questioned, his interrogation was indeed designed to elicit concessions and admissions regarding his and the firm’s civil liability. The liquidators were assisted in the interrogation by the very attorneys and investigative accountants with whom the applicants had so closely co-operated since . As a result of the rulings by the commissioner which deny Mr. Bernstein access to his legal representatives during his interrogation and to documentation relevant to his interrogation, it is contended that the applicants could not meaningfully prepare or have the benefit of legal advice on the surprise attack on themselves. [] The mechanism of sections  and  and its employment in the present case was accordingly characterized by the applicants as one whereby innocent outsiders, who played no part in the management of the company or its demise, are forced to go to a place where they do not want to be; are forced to give evidence by their own oral testimony and by the production of documents by which they incriminate themselves and which can then be used to vest them with civil or criminal liability; are forced to reveal confidential information that they want to keep private; are forced to produce their private books and documents, that they want to keep confidential; are forced to do so without being heard on the decision to subject them to the mechanism; are forced to do so in circumstances that render meaningful and effective legal representation all but impossible; and are exposed to criminal conviction or civil liability on their own evidence extracted under legal compulsion in a process devoid of the normal checks and balances built into criminal or civil litigation. [] It was against this general background that Mr. Marcus submitted that the whole mechanism of sections  and  violates the cluster of rights comprising the right to freedom and security of the person in terms of section (); the right to personal privacy in terms of section ; and the right not to be subject to the seizure of private possessions or the violation of private communications, as a component of the right to personal privacy in terms of section .

The Attack Based on Section () [] It is to be borne in mind that the applicants’ third basis of attack is focused on section ()(b) of the act and its inconsistency with the fair criminal trial rights embodied in section () of the Constitution. The present attack based on section () is accordingly a much narrower attack than the section () attack in Ferreira v. Levin, for in that case the section () attack was also directed at section ()(b) and in particular the ouster of the privilege against self-incrimination. Moreover, the present attack must be considered in light of the effect that the judgment and order in Ferreira v. Levin has on the mechanism of sections  and , namely that answers that tend to incriminate the examinee may not be used against the examinee in subsequent criminal proceedings (except in those special cases exempted in the order and which are not relevant to the present proceedings). [] Mr. Marcus’s attack based on section () (and indeed his attack based on the other provisions of the Constitution) ignores the fact that the provisions of

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sections  and  are not, in their application, completely open-ended. As already indicated, the courts in this country have (as have the courts in other countries) developed a considerable body of case law the design of which is to prevent the mechanism of sections  and  (and the mechanisms of comparable statutory provisions in foreign jurisdictions) being used oppressively, vexatiously, or unfairly towards the examinee. I have no doubt that our Supreme courts will continue to develop that body of law having due regard to the spirit, purport and objects of the Constitution’s chapter of fundamental rights [section ()]. It is accordingly not open to argue that, because the provisions of sections  and  are general in terms and contain no express limitations as to their application, the constitutionality of these sections is to be adjudicated on the basis that they permit anything which is not expressly excluded. It is trite law that a statutory power may only be used for a valid statutory purpose. The constitutionality of sections  and  must therefore be assessed in the light of the control that the Supreme Court exercises over their implementation. [] A large number of Mr. Marcus’s complaints (particularly in regard to Mr. Bernstein’s actual examination and the circumstances surrounding it, the alleged trap that was laid for him, his inability to prepare and the various other limitations to which he was subjected) relate to the manner in which the examination was conducted by the commissioner and not to any provision in the sections of the act under attack. There is nothing in the sections that mandates that the examination be conducted in this way. In respect of all these complaints the applicants’ correct remedy was to approach the Supreme Court for relief on the basis that the examination was being conducted in an oppressive, vexatious, or unfair manner. I deliberately refrain from expressing any view as to the validity of any of the complaints on this score. The only point I make is that the Supreme Court has jurisdiction to deal with complaints of this nature. It is a jurisdiction that (on the facts and circumstances of this case and in relation to these specific complaints) should first have been exhausted before any approach was made to this court. It is unnecessary for purposes of this case to express any view as to how this court would deal with an ultimate complaint that the Supreme Court’s interpretation of a statute or its enunciation or development of the common law is unconstitutional. [] There is accordingly little left of the attack based on section () of the Constitution to deal with. In Ferreira v. Levin, it was only myself and Justice Sachs who based our judgments on an infringement of section (). The President and five members of the court decided the case on the basis of an infringement of section () but also disagreed with my broad construction of the section () residual right to freedom. They expressed the view that the “primary, though not necessarily the only, purpose of section () of the Constitution is to ensure that the physical integrity of every person is protected,” but added that they could see no objection to accepting provisionally that section () is not confined to the protection of physical integrity and that in a proper case it may be relied upon to support a fundamental freedom that is not otherwise protected adequately under chapter .

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[] [. . .] The obligation to respond to a subpoena and to be present at the appointed time and place would not, on the majority view, compromise the physical integrity of the subpoenaed witness. In all democratic societies the state has the duty to establish independent tribunals for the resolution of civil disputes and the prosecution of persons charged with having committed crimes. In a constitutional state that obligation is of fundamental importance and it is clearly recognized as such in our Constitution. Our Constitution is the supreme law of the land and makes provision in chapter  for the judicial authority to vest in the courts. The use of subpoenas to require witnesses to attend courts, to produce documents, and, where necessary, to give evidence, is essential to the functioning of the court system. It is no doubt possible for the rule governing the issuing of subpoenas to be misused. The courts have the power to set aside subpoenas that have been issued for an improper purpose, or which are vexatious in other respects, but in its practical application that power is limited, and the possibility of the process of the court being abused in particular cases cannot be excluded. [] The fact that the power of subpoena may possibly be abused in a particular case to the prejudice of the person subjected to such abuse does not mean that the power should, for this reason, be characterized as infringing section () of the Constitution. The law does not sanction such abuse; it merely recognizes that it is difficult to control it and that a clear case of abuse must be established in order to secure a discharge from a subpoena. Absent such proof it is the duty of persons who are subpoenaed to cooperate with the courts, and to attend court for the purpose of giving evidence or producing documents when required to do so. The fact that the present case is concerned with enquiries under sections  and  of the Companies Act, and not with a trial, does not affect the characterization of the obligation to honor a subpoena to attend the enquiry. It is a civic obligation recognized in all open and democratic societies and not an invasion of freedom. [] As part of their attack on the constitutionality of sections  and  of the act the applicants submit that “a witness’s privacy is clearly invaded when he is forced to disclose his books and documents that he wants to keep confidential and to reveal information that he wants to keep to himself.” In addition, the applicants contend that the “compulsory production of documents under section () constitutes a ‘seizure’ within the meaning of the right not to be subject to the ‘seizure of private possessions’ in terms of section  of the Constitution.” These are different attacks and will be dealt with separately. [] Section  of the Constitution entrenches the right to privacy as follows: “Every person shall have the right to his or her personal privacy, which shall include the right not to be subject to searches of his or her person, home or property, the seizure of private possessions or the violation of private communications.” [] The present attack is in the vaguest terms, namely an assertion that the privacy of witnesses is invaded when they are forced to disclose their books and documents that they want to keep confidential and to reveal information that they want

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to keep to themselves. No real information is furnished as to the nature or content of the documents or information in respect whereof the claim to privacy is being made. In the present context a claim to privacy can surely only be founded on the content of the information that the examinee is being forced to disclose, not on his desire not to disclose it. It is simply not possible to pronounce on the issue of privacy unless the content of the document or information in respect whereof privacy is claimed is disclosed. Under these circumstances it would be most inadvisable, if not in fact impossible, to give a detailed exposition on the constitutional right to privacy at section  proceedings, quite apart from the fact that I am of the view that this is, in the first instance, an exercise that the Supreme Courts ought to work out on a case-by-case basis. It is sufficient for the disposition of this part of the case to repeat that there is no provision in section  or section  which, when properly construed in the light of section () and () of the Constitution, is inconsistent with such right. [] The aforementioned conclusion renders it unnecessary, strictly speaking, to consider whether the compulsion to answer the questions that the applicants complain of do infringe their constitutional right to privacy. It would nonetheless be appropriate, I believe, to venture some preliminary observations on the scope of this right. The concept of privacy is an amorphous and elusive one which has been the subject of much scholarly debate. 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 necessary to have one’s own autonomous identity.” [] In expanding upon this notion Forst acknowledges that communal bonds are not to be substituted with abstract relations, but argues beyond this for a multi-leveled recognition of identity. Besides the concrete and abstract realms, this thirdly also pertains to societal membership and fourthly to the community of humanity itself. [] The relevance of such an integrated approach to the interpretation of the right to privacy is that this process of creating context cannot be confined to any one sphere, and specifically not to an abstract individualistic approach. The truism that no right is to be considered absolute implies that from the outset of interpretation each right is always already limited by every other right accruing to another citizen. In the context of privacy this would mean that it is only the inner sanctum of a person, such as his/her family life, sexual preference, and home environment, which is shielded from erosion by conflicting rights of the community. This implies that community rights and the rights of fellow members place a corresponding obligation on a citizen, thereby shaping the abstract notion of individualism towards identifying a concrete member of civil society. Privacy is acknowledged in the truly personal realm, but as a person moves into communal relations and activities such as business and social interaction, the scope of personal space shrinks accordingly. [] The German Basic Law does not in express terms entrench a general right to privacy although isolated aspects of privacy are protected in, for example, article

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 (freedom of belief ), article  (protection of postal communications), and article  (inviolability of the home). The protection of a general right to privacy has been developed by the Federal Constitutional Court (FCC) on a case-by-case basis. It has held that the constitutional obligation to respect the sphere of intimacy of individuals is based on the right to the unfettered development of personality embodied in article () of the Basic Law and in determining the content and ambit of this fundamental right, regard must be had to the inviolability of dignity in terms of article (), which must be respected and protected by the judicial system. Privacy is also protected out of respect for dignity and this linking up of article () and article  results in the limitation provisions of article () being applied more strictly in the case of infringement of the right to privacy. A very high level of protection is given to the individual’s intimate personal sphere of life and the maintenance of its basic preconditions and there is a final untouchable sphere of human freedom that is beyond interference from any public authority. So much so that, in regard to this most intimate core of privacy, no justifiable limitation thereof can take place. But this most intimate core is narrowly construed. This inviolable core is left behind once an individual enters into relationships with persons outside this closest intimate sphere; the individual’s activities then acquire a social dimension and the right of privacy in this context becomes subject to limitation. [] In  BVerfGE  the FCC was concerned with the objection to the admissibility of secretly made tape recordings indicating that the complainant was guilty of fraud and tax evasion. While upholding the objection, the FCC pointed out that there were circumstances in which a tape recording made without the knowledge of the speaker would fall outside the area of protection afforded by article () read with article ()— [b]ecause in these cases it is the general consensus that the right to one’s own words no longer enters the question. For example, insofar as it has become common practice in commercial dealings to keep a record of telephone messages, orders or stock-exchange reports by means of a tape recording, the right of the speaker to the unfettered development of the personality will, generally speaking, not be affected. In communications of this sort the objective content of the statement is so much in the foreground that the personality of the speaker is almost completely obscured by it and the spoken word thereby loses its private character.

In principle this approach resembles the “reasonable expectation of privacy” test, referred to above. In German law when insolvents are examined on the causes of their insolvency, they are obliged to answer all questions put, even though the questions might tend to incriminate them; but the FCC has, in its judgments, crafted a use immunity in respect to such answers if they are sought to be used against insolvents in subsequent criminal proceedings against them. The justification for the

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compulsion is instructive. The nature and extent of the article () right “also depends on whether and to what extent other people depend on the information provided by the person in question; in particular whether the information belongs to a sphere of duties which the person in question has taken up voluntarily.” The insolvent is regarded as having specific duties toward the creditors, who have been harmed by his actions; there are not only state or public interests at stake but those of third parties, who have suffered damage and demand information. [] The German, European, and American approach seems to accord with the analysis attempted above, namely that the nature of privacy implicated by the “right to privacy” relates only to the most personal aspects of a person’s existence, and not to every aspect within his/her personal knowledge and experience. The two-stage approach requires, as the first step, a definition of the scope of the relevant right. At this stage already, in defining the right to privacy, it is necessary to recognize that the content of the right is crystallized by mutual limitation. Its scope is already delimited by the rights of the community as a whole (including its members). [] The facts operative in the present case concerns neither the invasion of private living space, nor any specific protected relationship. Against the background of the approach alluded to above, the relevant core to be considered appears to be the one defining privacy as inhering in the person, suggested above. [] Even if it could be established that, in certain circumstances, and despite a proper construction of sections  and  of the act and proper control of their implementation by the Supreme Court, the production of private possessions or private communications could be compelled under section () or section () of the Act, and in particular that they were relevant to the enquiry and the achievement of its objects, in the sense that I have outlined in this judgment, such production would clearly be justifiable in terms of section  of the Constitution. In South Africa, the right not to be subjected to seizure of private possessions forms part of every person’s right to personal privacy. The right against seizure must therefore be interpreted in the light of the general right to personal privacy. So much is also clear from the qualification of the right, i.e. the right against seizure of private possessions. I have repeatedly emphasized that privacy concerns are only remotely implicated through the use of the enquiry. The public’s interest in ascertaining the truth surrounding the collapse of the company, the liquidator’s interest in a speedy and effective liquidation of the company, and the creditors’ and contributors’ financial interests in the recovery of company assets must be weighed against this peripheral infringement of the right not to be subjected to seizure of private possessions. Seen in this light, I have no doubt that sections () and () constitute a legitimate limitation of the right to personal privacy in terms of section  of the Constitution. [] [. . .] Consequently, because civil litigation is almost invariably directed at intrusion upon the parties’ constitutionally protected rights, they are entitled to demand that the process by which it is done be procedurally fair. If not, the deprivation of the entrenched right is unconstitutional. The need for civil judicial process

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to be fair is emphasized by the Constitution’s insistence that the Judiciary be independent and impartial, the prescribed oath of office, and the endorsement by the General Assembly of the United Nations of the principle that the Judiciary should be independent and impartial. [] The applicants’ attack in this regard fails to address the really crucial issue, namely whether the Constitution has constitutionalized civil procedure, wholly or in part. No one would dispute that civil procedure ought to aim at fairness between contending parties. That is, however, not the issue. The question is whether the Constitution enacts such a norm as an entrenched right. Over the years our courts “have consistently adopted the view that words cannot be read into a statute by implication unless the implication is a necessary one in the sense that without it effect cannot be given to the statute as it stands.” It must be necessary in order “to realize the ostensible legislative intention or to make the act workable.” It is also necessary to bear in mind that we are not construing a Constitution that was framed centuries ago, but one that came into force on April , . The Constitution as a whole and section  in particular, appears to be workable and to realize the ostensible legislative intention, without the implication the appellants seek to rely upon. When section  is read with section (), which provides that “[t]he Judiciary shall be independent, impartial and subject only to this Constitution and the law,” the purpose of section  seems to be clear. It is to emphasize and protect generally, but also specifically for the protection of the individual, the separation of powers, particularly the separation of the Judiciary from the other arms of the state. Section  achieves this by ensuring that the courts and other fora that settle justiciable disputes are independent and impartial. It is a provision fundamental to the upholding of the rule of law, the constitutional state, the “regstaatidee,” for it prevents legislatures, at whatever level, from turning themselves by acts of legerdemain into “courts.” One recent notorious example of this was the High Court of Parliament Act. By constitutionalizing the requirements of independence and impartiality the section places the nature of the courts or other adjudicating fora beyond debate and avoids the dangers alluded to by Acting Justice Van den Heever in the Harris case. [] The applicants submit that the mechanism under section  of the Act, and, in particular, that part of section ()(b) that provides that any answer given to any question at an enquiry may thereafter be used against the examinee, violates the Constitution to the extent that it enables the liquidator and creditors of a company in liquidation to gain an unfair advantage over their adversaries in civil litigation in violation of the right to equality in terms of section . [] Turning then to principle and the application of section () of the Constitution, I fail to see how the applicants’ submission can be sustained. As I have endeavored to show in this judgment, the very purpose of the proceedings under sections  and  of the act is in order to provide the company with information about itself, its own affairs, its own claims, and its own liabilities, which it cannot

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get from its erstwhile “brain” and other “sensory organs” or other persons who have a public duty to furnish such information but are unwilling or reluctant to do so fully and frankly. I remain alive to the thrust of the applicants’ argument that, as erstwhile auditors of the company, they co-operated fully and were at all times prepared to co-operate fully with the liquidators and their legal and other advisers to supply all relevant information required. If in light hereof it was oppressive, or vexatious or unfair to summon or interrogate the applicants in the way they were summoned or interrogated, their remedy was, as I have repeatedly stated, to approach the Supreme Court. Their alleged harassment and unfair treatment would not be in consequence of the substantive content of the provisions of sections  and  of the Act, but the result of their improper application. JUSTICE O’REGAN [] The applicants argued that the obligation placed upon witnesses to go to an enquiry and give evidence and produce documents at that enquiry against their will, which may result in exposing those witnesses to civil liability, was in breach of section () of the Constitution. Section () of the Constitution provides that “[e]very person shall have the right to freedom and security of the person, which shall include the right not to be detained without trial.” [] In Ferreira v. Levin NO and Others  () SA  (CC) ( () BCLR ) two judges of this court held that the portion of section ()(b), which provided that incriminating evidence given by a witness at a section  enquiry would be admissible in a subsequent prosecution of such witness was in breach of section (). Justice Ackermann held that freedom as entrenched in section () should be interpreted as follows: Although freedom is indispensable for the protection of dignity, it has an intrinsic constitutional value of its own. It is likewise the foundation of many of the other rights that are specifically entrenched. Viewed from this perspective, the starting point must be that an individual’s right to freedom must be defined as widely as possible, consonant with a similar breadth of freedom for others. (At paragraph )

Later in the judgment he states that: Even though the freedom rights in section () are residual freedom rights, there is no justification for not giving these residual freedom rights the broad and generous interpretation I have suggested. They constitute the residual rights of individuals (where such or similar rights are not protected elsewhere in chapter ) not to have “obstacles to possible choices and activities” placed

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in their way by (for present purposes we need not, as already indicated, go any further) the state. (At paragraph )

Justice Ackermann held that the challenged portion of section ()(b) restricted the choices available to witnesses at a section  enquiry in breach of section (). Such limitation he found not to be justifiable in terms of section . [] Justice Sachs agreed that the challenged portion of section ()(b) offended against section () of the Constitution although he approached section () somewhat differently to Justice Ackermann: The words of section  should then be construed in such a manner as to provide constitutionally defensible space against invasions of freedom of a kind analogous in character and intensity to the imposition of physical restraint. Legal traditions, both positive and negative, would help to define what this analogous or penumbral area would include: legal institutions developed and applied in the past with a view to curtailing abusive state action would readily fit; similarly, negative memories of past oppressive state behavior in our country and elsewhere would help define whether or not a freedom issue is being raised. The first step is to establish the existence of what is a real or substantial invasion of freedom, and not a normal regulatory act; only when this is done should the need to justify the infringement arise. Once a substantial breach of this kind has been shown to exist, however, the scrutiny for justification required by section () can be truly stringent. (At paragraph )

Like Justice Ackermann, Justice Sachs held that the challenged portion of section ()(b) constituted an unjustifiable infringement of section . [] Eight members of the court, however, held that the challenged portion of section ()(b) was in breach of section (), the right to a fair trial, in that it permitted the admission of self-incriminating evidence given by a witness at a section  enquiry at a subsequent criminal trial. Seven members of the court held that the provision was not in breach of section (). President Chaskalson, speaking for the majority, took a narrower view of section () than that adopted by Justices Ackermann and Sachs. This narrow view was premised upon the level of justification stipulated for section () by section  of the Constitution. President Chaskalson stated: In terms of our Constitution we are enjoined to protect the freedom guaranteed by section () against all governmental action that cannot be justified as being necessary. If we define freedom in the context of section () in sweeping terms we will be called upon to scrutinize every infringement of freedom in this broad sense as being “necessary.” We cannot regulate this

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power by mechanisms of different levels of scrutiny as the courts of the United States do, nor can we control it through the application of the principle that freedom is subject to laws that are consistent with the principles of “fundamental justice”, as the Canadian courts do. (At paragraph )

Later in his judgment he held: This does not mean that we must necessarily confine the application of section () to the protection of physical integrity. Freedom involves much more than that, and we should not hesitate to say so if the occasion demands it. But, because of the detailed provisions of chapter , such occasions are likely to be rare. If despite the detailed provisions of chapter  a freedom of a fundamental nature which calls for protection is identified, and if it cannot find adequate protection under any of the other provisions in chapter , there may be a reason to look to section () to protect such a right. But to secure such protection, the otherwise unprotected freedom should at least be fundamental and of a character appropriate to the strict scrutiny to which all limitations of section  are subjected. (At paragraph )

[] Justice Mokgoro also did not accept the approach adopted by Justice Ackermann. She stated: Attributing so broad a meaning to “freedom” in this section, has the effect of extending it too far beyond the perimeters of physical integrity. That “freedom” in section () means freedom in the sense of physical integrity emerges from the plain meaning of the text and not from the narrowing of an all-embracing freedom right. This, however, does not mean that section () cannot be given a broad meaning sufficient to provide protection to an unenumerated right akin to freedom of the person, within the context of the rest of chap . (At paragraph )

She supported the approach taken by President Chaskalson, subject to the reservations that, in her view, section () should be restricted to physical integrity (at paragraph ) and that the section could not generally be interpreted to give protection to unenumerated freedom rights (at paragraph ). Like the majority of the court, I considered section ()(b) to be in breach of section (). I expressed no view as to whether section ()(b) was in breach of section () (at paragraph ). [] In this case, it is necessary to determine whether sections  and  are in breach of section (). Justice Ackermann, writing for the majority, has for the

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purposes of this case, based his reasoning to a large extent on the approach approved by the majority in the Ferreira case. My approach to section () is different to that adopted by the majority in the Ferreira case. [] Section () protects the freedom and security of the person and specifically provides that no person may be detained without trial. The specific prohibition of detention without trial reminds us of the government’s frequent violation of individual freedom in the years of apartheid. There were many statutes passed by the former government that authorized detention without trial. Those statutes were extensively used and substantial numbers of people were detained without trial. Fundamental to the new Constitution, then, is a rejection of such deprivation of freedom. However, section () cannot be confined to the terms of the specific prohibition of detention without trial. The section has a greater ambit. [] In my view, freedom has two interrelated constitutional aspects: the first is a procedural aspect, which requires that no one be deprived of physical freedom unless fair and lawful procedures have been followed. Requiring deprivation of freedom to be in accordance with procedural fairness is a substantive commitment in the Constitution. The other constitutional aspect of freedom lies in recognition that, in certain circumstances, even when fair and lawful procedures have been followed, the deprivation of freedom will not be constitutional, because the grounds upon which freedom has been curtailed are unacceptable. [] Both of these aspects of freedom find recognition in clauses of the Constitution other than section (). To that extent, section () is a residual clause. Section  is the principal provision in chapter  that requires procedural fairness when a person is deprived of physical freedom. It contains detailed rules, which must be followed to protect the rights of persons who have been detained, arrested, or charged. Section (), which contains no detailed procedures or rules other than the prohibition of detention without trial, is supplementary to section . In cases where people are deprived of physical freedom in circumstances not directly governed by section , section () will require that fair procedures be followed, as was held in Coetzee v. Government of the Republic of South Africa; Matiso and Others v. Commanding Officer, Port Elizabeth Prison, and Others  () SA  (CC) ( () BCLR ). Of course, the nature of the fair process required in each case will depend on a variety of factors, including the ground upon which the deprivation of freedom is based. [] Similarly, the other aspect of freedom finds express recognition in specific rights clauses such as expression (section ), assembly (section ), association (section ), religion (section ) and others. Section (), however, will protect a residual arena of freedom. I do not believe that this residual scope of the right should be interpreted as broadly and generously as possible. To this extent I disagree, respectfully, with Justice Ackermann. I also disagree, respectfully, with Justice Mokgoro that the right to freedom in section () should be limited to physical freedom. It is likely, given the clear entrenchment of freedoms such as expression, belief, and

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association, that the residual scope of section () will largely concern physical freedom, but I am unconvinced that it should be limited to physical freedom. [] In my view, a purposive interpretation of this right would focus on the general interpretation provision in chapter  section (). Section () states: “In interpreting the provisions of this chapter a court of law shall promote the values which underlie an open and democratic society based on freedom and equality.” In interpreting the scope of section (), it will be necessary to identify the values that underpin an open and democratic society based on freedom and equality. In undertaking that exercise, I agree with Justices Ackermann and Sachs that section () needs to be understood in the context of the fundamental commitment to dignity expressed in our Constitution in section . Our Constitution represents an emphatic rejection of a past in which human dignity was denied repeatedly by an authoritarian and racist government. The Constitution commits our society to a transition to a new society based on principles of democracy, freedom, and equality. The recognition of the value of human beings is a cardinal principle of the Constitution and one that will inform the interpretation of many of the specific rights in the Constitution. [] However, the rights in chapter  need to be interpreted in the understanding too that a democratic society based on freedom and equality remains an aspiration. The freedom and equality that the Constitution values have not yet been realized for all South Africans. An enduring legacy of the past is profound inequality. The poverty in which many of our citizens live materially compromises their enjoyment of rights of freedom and equality. There is much to be done, by the state and citizens, to ensure that the entrenched rights have meaning in the lives of all South Africans. [] In my view, the democratic society contemplated by the Constitution is not one in which freedom would be interpreted as license, in the sense that any invasion of the capacity of an individual to act is necessarily and inevitably a breach of that person’s constitutionally entrenched freedom. Such a conception of freedom fails to recognize that human beings live within a society and are dependent upon one another. The conception of freedom underlying the Constitution must embrace that interdependence without denying the value of individual autonomy. It must recognize the important role that the state, and others, will play in seeking to enhance individual autonomy and dignity and the enjoyment of rights and freedoms. The preamble to the Constitution states: Whereas there is a need to create a new order in which all South Africans will be entitled to a common South African citizenship in a sovereign and democratic constitutional state in which there is equality between men and women and people of all races so that all citizens shall be able to enjoy and exercise their fundamental rights and freedoms.

[] It acknowledges the need to develop a new society in which all citizens can exercise their fundamental rights and freedoms. We know that this will not be an

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easy task. The interpretation of the rights in chapter  must be in sympathy with that undertaking. Accordingly, I agree with the following statement of Justice Sachs in the Ferreira case: The reality is that meaningful personal interventions and abstinences in modern society depend not only on the state refraining from interfering with individual choice, but on the state helping to create conditions within which individuals can effectively make such choices. Freedom and personal security are thus achieved both by protecting human autonomy on the one hand, and by acknowledging human interdependence on the other. (At paragraph )

It does not seem to me that this approach will render all regulatory laws or criminal prohibitions subject to constitutional challenge in terms of section (). A purposive approach to section () recognizes that it is aimed not at rendering constitutionally suspect all criminal prohibitions or governmental regulation. Our society, as all others in the late twentieth century, clearly requires government regulation in many areas of social life. It requires a criminal justice system based on the prohibition of criminal conduct. The need for effective government that can facilitate the achievement of autonomy and equality is implicit within the constitutional framework. Only when it can be shown that freedom has been limited in a manner hostile to the values of our Constitution will a breach of section () be established. [] The approach to the interpretation of section () that I have proposed may not necessarily produce a different result to the construction proposed by Justice Ackermann in the Ferreira case, although it seems clear that Justice Ackermann takes a broader view of the scope of section () than I do. Nor will my approach necessarily produce a different result to that proposed by President Chaskalson and adopted by the majority in the Ferreira case and this case. In this case, it does not.

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Soobramoney

Soobramoney v. Minister of Health, Kwazulu-Natal  () SA  (CC) CASE SUMMARY

Facts Mr. Soobramoney was a forty-one-year-old diabetic suffering from ischaemic heart disease, cerebro-vascular disease, and irreversible chronic renal failure. While no cure existed for his illnesses, his life could be prolonged by means of regular renal dialysis. This treatment was readily available in private hospitals. However, it was expensive and beyond the reach of an unemployed person such as Mr. Soobramoney. The local state hospital in Durban had a dialysis program. However, the hospital did not have sufficient resources to provide dialysis treatment for all patients suffering from chronic renal failure. In order to spread its scarce resources as effectively as possible, the hospital had adopted a policy to admit automatically to the renal dialysis program only those patients suffering from acute renal failure whose ailments could be treated and remedied by renal dialysis. Those persons suffering from irreversible chronic renal failure were only admitted if they met a strict set of guidelines. The primary requirement for admission was that a patient be eligible for a kidney transplant. In order to qualify for a kidney transplant, a patient had to be free of significant vascular or cardiac disease. As Mr. Soobramoney suffered from ischaemic heart disease and cerebro-vascular disease he was not eligible for a kidney transplant and therefore could not be admitted to the hospital’s renal dialysis program.

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Legal History Mr. Soobramoney, in the final stages of chronic renal failure, lodged an urgent application to the Durban and Coastal Local Division of the High Court for an order directing the Addington Hospital to provide him with ongoing dialysis treatment and interdicting the respondent from refusing him admission to the renal unit of the hospital. This application was dismissed. Mr. Soobramoney then appealed against this decision to the Constitutional Court. Issues Did the state’s refusal to admit Mr. Soobramoney to the renal dialysis program infringe his right, in terms of section () of the Constitution, not to be denied emergency medical treatment? Decision of the Constitutional Court President Chaskalson noted at the outset that the socio-economic rights in sections  and  of the Bill of Rights—namely the rights to housing, water, food, social security, and health care—are constrained by the state’s ability to draw on available resources. Given that these rights are contingent on available resources, the court was obliged to narrow the scope of section ()’s promise to provide “emergency medical treatment.” The ordinary meaning of this phrase could not—given existing budgetary constraints—encompass the ongoing treatment of chronic illnesses for the purpose of prolonging life (paragraph ). To place such a gloss on section () would undermine the states ability to meet its primary obligation in terms of section () and ()—namely, to provide everyone with access to health care within its available state resources. The purpose of section () was to ensure that a person who suffers a sudden catastrophe, and requires immediate emergency medical attention, is prevented from receiving it. Thus the court concluded Mr. Soobramoney’s condition, which required renal dialysis two to three times a week, did not fall within the meaning of emergency medical treatment. It noted, with great sorrow, the consequence of its decision. However, where the state had reached a rational decision, taken in good faith, regarding the distribution of money from the state purse to realize progressively a socio-economic right, the court would be reluctant to displace that “political” conclusion with an alternative conclusion of its own (paragraph ). Order The appeal was dismissed. Comment Is the decision in Soobramoney, which denied potentially life-prolonging treatment to Mr. Soobramoney, best understood as conservative or progressive? Can a court denying a person the basic necessities for life ever be said to give sufficient weight to

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the dignity of the deprived person? Is it consistent with the individual right to dignity to “ration” health-care resources? PRESIDENT CHASKALSON [] Counsel for the appellant argued that section () should be construed consistently with the right to life entrenched in section  of the Constitution and that everyone requiring life-saving treatment who is unable to pay for such treatment herself or himself is entitled to have the treatment provided at a state hospital without charge. [] This court has dealt with the right to life in the context of capital punishment but it has not yet been called upon to decide upon the parameters of the right to life or its relevance to the positive obligations imposed on the state under various provisions of the bill of rights. In India the Supreme Court has developed jurisprudence around the right to life so as to impose positive obligations on the state in respect of the basic needs of its inhabitants. While the Indian jurisprudence on this subject contains valuable insights, it is important to bear in mind that our Constitution is structured differently to the Indian Constitution. Unlike the Indian Constitution ours deals specifically in the bill of rights with certain positive obligations imposed on the state and, where it does so, it is our duty to apply the obligations as formulated in the Constitution and not to draw inferences that would be inconsistent therewith. [] This should be done in accordance with the purposive approach to the interpretation of the Constitution which has been adopted by this court. Consistently with this approach the rights that are at issue in the present case must not be construed in isolation “but in (their) context, which includes the history and background to the adoption of the Constitution, other provisions of the Constitution itself and, in particular, the provisions of (the bill of rights) of which (they are) part.” [] The purposive approach will often be one that calls for a generous interpretation to be given to a right to ensure that individuals secure the full protection of the bill of rights, but this is not always the case, and the context may indicate that in order to give effect to the purpose of a particular provision “a narrower or specific meaning” should be given to it. [] In our Constitution the right to medical treatment does not have to be inferred from the nature of the state established by the Constitution or from the right to life which it guarantees. It is dealt with directly in section . If section () were to be construed in accordance with the appellant’s contention it would make it substantially more difficult for the state to fulfill its primary obligations under sections () and () to provide health care services to “everyone” within its available resources. It would also have the consequence of prioritizing the treatment of terminal illnesses over other forms of medical care and would reduce the resources available to the state for purposes such as preventative health care and medical treatment for persons suffering from illnesses or bodily infirmities that are not life threatening. In my

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view, much clearer language than that used in section () would be required to justify such a conclusion. [] Section () itself is couched in negative terms—it is a right not to be refused emergency treatment. The purpose of the right seems to be to ensure that treatment be given in an emergency, and is not frustrated by reason of bureaucratic requirements or other formalities. A person who suffers a sudden catastrophe that calls for immediate medical attention, such as the injured person in Paschim Banga Khet Mazdoor Samity v. State of West Bengal (supra), should not be refused ambulance or other emergency services which are available and should not be turned away from a hospital that is able to provide the necessary treatment. What the section requires is that remedial treatment that is necessary and available be given immediately to avert that harm. [] The appellant’s demand to receive dialysis treatment at a state hospital must be determined in accordance with the provisions of section () and () and not section (). These sections entitle everyone to have access to health care services provided by the state “within its available resources.” [] The appellant’s case must be seen in the context of the needs which the health services have to meet, for if treatment has to be provided to the appellant it would also have to be provided to all other persons similarly placed. Although the renal clinic could be kept open for longer hours, it would involve additional expense in having to pay the clinic personnel at overtime rates, or in having to employ additional personnel working on a shift basis. It would also put a great strain on the existing dialysis machines, which are already showing signs of wear. It is estimated that the cost to the state of treating one chronically ill patient by means of renal dialysis provided twice a week at a state hospital is approximately R, per annum. If all the persons in South Africa who suffer from chronic renal failure were to be provided with dialysis treatment—and many of them, as the appellant does, would require treatment three times a week—the cost of doing so would make substantial inroads into the health budget. And if this principle were to be applied to all patients claiming access to expensive medical treatment or expensive drugs, the health budget would have to be dramatically increased to the prejudice of other needs that the state has to meet. [] One cannot but have sympathy for the appellant and his family, who face the cruel dilemma of having to impoverish themselves in order to secure the treatment that the appellant seeks in order to prolong his life. The hard and unpalatable fact is that if the appellant were a wealthy man he would be able to procure such treatment from private sources; he is not and has to look to the state to provide him with the treatment. But the state’s resources are limited and the appellant does not meet the criteria for admission to the renal dialysis program. Unfortunately, this is true not only of the appellant but also of many others who need access to renal dialysis units or to other health services. There are also those who need access to housing, food and water, employment opportunities, and social security. These too are aspects

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of the right to “human life: the right to live as a human being, to be part of a broader community, to share in the experience of humanity.” The state has to manage its limited resources in order to address all these claims. There will be times when this requires it to adopt a holistic approach to the larger needs of society rather than to focus on the specific needs of particular individuals within society. JUSTICE MADALA [] I have had the benefit of reading the judgment prepared by President Chaskalson and the concurring judgment of Justice Sachs in this matter. I am in agreement with President Chaskalson’s very incisive analysis of the provisions of section  and in particular his conclusion that section () envisages a dramatic, sudden situation or event which is of a passing nature in terms of time. There is some suddenness and at times even an element of unexpectedness in the concept “emergency medical treatment.” I accordingly also agree that on that score the appellant’s case must fail since he has not persuaded us that section () applies. I, however, seek to make my own further observations about this case and now do so briefly. It is not necessary for me to restate the facts of the case as they have been set out succinctly in the judgment of President Chaskalson. Nor do I see the need to repeat in any detail the arguments that were advanced in the appeal. [] In the oral submissions addressed to us, Mr. Jacobs, who appeared on behalf of the appellant, placed reliance, among others, on the provisions of section  of the Constitution—the right to life. In this case life is indeed potentially at stake and this court is enjoined therefore not only to find a humane and morally justified solution to the problem at hand but also to examine assiduously the process by which the solution is reached and the legal foundation on which it rests. The state undoubtedly has a strong interest in protecting and preserving the life and health of its citizens and to that end must do all in its power to protect and preserve life. [] In another sense the appeal before us brings into sharp focus the dichotomy in which a changing society finds itself and in particular the problems attendant upon trying to distribute scarce resources on the one hand, and satisfying the designs of the Constitution with regard to the provision of health services on the other. It puts us in the very painful situation in which medical practitioners must find themselves daily when the question arises: “Should a doctor ever allow a patient to die when that patient has treatable condition?” In the context of this case, the question to be answered is whether everybody has the right of access to kidney dialysis machines even where resources are scarce or limited. [] Chapter  of the Constitution sets out the fundamental rights to which every person is entitled and also contains provisions dealing with the manner in which the chapter is to be interpreted by the courts. Acting Justice Kentridge, who delivered the judgment of the court in S v. Zuma and Others [ () SA  (CC) ( () SACR ;  () BCLR )], referred with approval to the judgment

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of Justice Dickson [later Supreme Court Chief Justice] in R v. Big M Drug Mart Ltd. [()  DLR (th) ] and to the following passage in particular: The meaning of a right or freedom guaranteed by the Charter was to be ascertained by an analysis of the purpose of such a guarantee; it was to be understood, in other words, in the light of the interests it was meant to protect. In my view, this analysis is to be undertaken, and the purpose of the right or freedom in question is to be sought by reference to the character and the larger objects of the Charter itself, to the language chosen to articulate the specific right or freedom, to the historical origins of the concept enshrined, and where applicable, to the meaning and purpose of the other specific rights and freedoms with which it is associated within the text of the Charter. The interpretation should be . . . a generous rather than a legalistic one, aimed at fulfilling the purpose of the guarantee and securing for individuals the full benefit of the Charter’s protection.

[] The Constitution is forward-looking and guarantees to every citizen fundamental rights in such a manner that the ordinary person-in-the-street, who is aware of these guarantees, immediately claims them without further ado—and assumes that every right so guaranteed is available to him or her on demand. Some rights in the Constitution are the ideal and something to be strived for. They amount to a promise, in some cases, and an indication of what a democratic society aiming to salvage lost dignity, freedom, and equality should embark upon. They are values that the Constitution seeks to provide, nurture, and protect for a future South Africa. [] However, the guarantees of the Constitution are not absolute but may be limited in one way or another. In some instances, the Constitution states in so many words that the state must take reasonable legislative and other measures, within its available resources “to achieve the progressive realization of each of these rights.” In its language, the Constitution accepts that it cannot solve all of our society’s woes overnight, but must go on trying to resolve these problems. One of the limiting factors to the attainment of the Constitution’s guarantees is that of limited or scarce resources. In the present case the limited hemodialysis facilities, inclusive of hemodialysis machines, beds, and trained staff constitute the limited or scarce facilities. JUSTICE SACHS [] I am in full agreement with the eloquent, forceful, and well-focused judgment of President Chaskalson and wish merely to add certain considerations that I regard as relevant. [] The special attention given by section () to nonrefusal of emergency medical treatment relates to the particular sense of shock to our notions of human

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solidarity occasioned by the turning away from hospital of people battered and bleeding or of those who fall victim to sudden and unexpected collapse. It provides reassurance to all members of society that accident and emergency departments will be available to deal with the unforeseeable catastrophes that could befall any person, anywhere, and at any time. The values protected by section () would, accordingly, be undermined rather than reinforced by any unwarranted conflation of emergency and nonemergency treatment such as that argued for by the appellant. [] In a case such as the present, which engages our compassion to the full, I feel it necessary to underline the fact that President Chaskalson’s judgment, as I understand it, does not merely “toll the bell of lack of resources.” In all the open and democratic societies based upon dignity, freedom, and equality with which I am familiar, the rationing of access to life-prolonging resources is regarded as integral to, rather than incompatible with, a human rights approach to health care. [] Health care rights by their very nature have to be considered not only in a traditional legal context structured around the ideas of human autonomy but also in a new analytical framework based on the notion of human interdependence. A healthy life depends upon social interdependence: the quality of air, water, and sanitation which the state maintains for the public good; the quality of one’s caring relationships, which are highly correlated to health; as well as the quality of health care and support furnished officially by medical institutions and provided informally by family, friends, and the community. As Minow put it, “Interdependence is not a social ideal, but an inescapable fact; the scarcity of resources forces it on us. Who gets to use dialysis equipment? Who goes to the front of the line for the kidney transplant?” Traditional rights analyses accordingly have to be adapted so as to take account of the special problems created by the need to provide a broad framework of constitutional principles governing the right of access to scarce resources and to adjudicate between competing rights bearers. When rights by their very nature are shared and interdependent, striking appropriate balances between the equally valid entitlements or expectations of a multitude of claimants should not be seen as imposing limits on those rights (which would then have to be justified in terms of section ), but as defining the circumstances in which the rights may most fairly and effectively be enjoyed. [] I conclude with some observations on the questions raised relating to section  of the Constitution which states that “[e]veryone has the right to life.” The present case does not necessitate any attempt to give a definitive answer to all these questions. Yet it does point to the need to establish what Dworkin has in his book Life’s Dominion, called the “relative importance of the natural and human contributions to the sanctity of life.” He concludes his study with the eloquent reminder that if people are to retain the self consciousness and self respect that is the greatest achievement of our species, they will let neither science nor nature simply take its course, but

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will struggle to express, in the laws they make as citizens and the choices they make as people, the best understanding they can reach of why human life is sacred, and of the proper place of freedom in its dominion.

[] “[T]he timing of death—once solely a matter of fate—is now increasingly becoming a matter of human choice.” In the United States,  percent of the two million people who die each year die in hospitals and long-term care institutions, and approximately  percent of those after a decision to forego life sustaining treatment has been made. The words of Justice Brennan of the US Supreme Court, writing in a different context, have resonance: Nearly every death involves a decision whether to undertake some medical procedure that could prolong the process of dying. Such decisions are difficult and personal. They must be made on the basis of individual values, informed by medical realities, yet within a framework governed by law. The role of the courts is confined to defining that framework, delineating the ways in which government may and may not participate in such decisions. (My emphasis.)

[] However the right to life may come to be defined in South Africa, there is in reality no meaningful way in which it can constitutionally be extended to encompass the right indefinitely to evade death. As Justice Stevens put it: dying is part of life, its completion rather than its opposite. We can, however, influence the manner in which we come to terms with our mortality. It is precisely here, where scarce artificial life-prolonging resources have to be called upon, that tragic medical choices have to be made. [] The applicant in this case presented his claim in a most dignified manner and showed manifest appreciation for the situation of the many other persons in the same harsh circumstances as himself. If resources were coextensive with compassion, I have no doubt as to what my decision would have been. Unfortunately, the resources are limited, and I can find no reason to interfere with the allocation undertaken by those better equipped than I to deal with the agonizing choices that had to be made.

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Walker

Pretoria City Council v. Walker  () SA  (CC) CASE SUMMARY

Facts Mr. Walker, a resident of Constantia Park, a formerly white suburb of Pretoria, challenged the constitutionality of certain actions of the Pretoria City Council. The council was established after the amalgamation of a number of former black townships (Atteridgeville and Mamelodi) and Pretoria. For at the time of the litigation, the population of Atteridgeville and Mamelodi was virtually all black, while the denizens of old Pretoria were almost exclusively white. The council had sued Mr. Walker for overdue charges in respect of municipal services rendered to him. The issue arose from the levying by the council of charges for water and electricity on a differential basis. Charges were levied against Mr. Walker and other residents of old Pretoria on the basis of a consumption-based tariff measured by means of meters installed on each property. The residents of Mamelodi and Atteridgeville, however, due to absence of meters, were levied on the basis of a flat rate per household. In addition to the differential rates charged to residents, the council adopted a policy of instituting legal action for the recovery of arrears only against the nonpaying residents of old Pretoria, but not in respect of defaulters in Atteridgeville and Mamelodi. Mr. Walker refused to pay a metered rate and was prepared to pay only an amount equivalent to the flat rate.

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Legal History When sued in the Magistrate’s Court for nonpayment of his rates charges, Mr. Walker contended, as a defense, that the differential treatment of the people of old Pretoria on the one hand and those of Atteridgeville and Mamelodi on the other constituted unfair discrimination under section () of the Interim Constitution. The magistrate held that the differentiation amounted to discrimination on geographical grounds, and not on the basis of race. He went on to hold that this geographical discrimination had not been shown to be unfair. Walker appealed to the High Court. The High Court held that the council had, in fact, infringed Walker’s right to equality. The High Court set aside the magistrate’s order. It substituted the magistrate’s order with an order of absolution plus costs. The council then sought leave to appeal to the Constitutional Court. Issues The Constitutional Court was obliged to decide whether (a) the council’s policy of charging differential rates in old Pretoria and Atteridgeville and Mamelodi; and (b) its policy of litigating to recover unpaid rates only in respect of old Pretoria, constituted unfair discrimination in terms of section  of the Interim Constitution. Decision of the Constitutional Court Deputy President Langa, writing for the majority, held that the council differentiated between Mr. Walker and other residents of old Pretoria and those of Atteridgeville and Mamelodi by levying charges on a differential basis and by selectively suing nonpaying residents of old Pretoria alone. He held that this differentiation amounted to indirect discrimination on the basis of race. Deputy President Langa explained that the fairness of this discrimination involved an examination of the impact of the discrimination on Mr. Walker (paragraph ). With regard to cross-subsidization and the council’s failure to apply metered rates uniformly, he concluded that the discrimination was not unfair. In relation to selective recovery of debts, however, the majority held that the impact of the policy affected Mr. Walker in a manner that impaired his dignity. The selective enforcement policy was, therefore, unfair (paragraph ). Justice Sachs agreed in general with Deputy President Langa’s judgment. He dissented from the majority’s view that selective enforcement of debt recovery by the council amounted to unfair discrimination. He noted that, in what appeared to have been an effort to rise above the politics of race and articulate the spirit of civic responsibility and compassion that animated the Constitution, the council had embarked upon a negotiated, step-by-step process to fulfill its obligations to those residents whom previous local governments had at best ignored and at worst oppressed. Such a process, however ineptly carried out at times, was aimed at overcoming the practical difficulties and psychological factors that kept this urban community divided and systemic disadvantage deeply entrenched.

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Order Despite partially finding in Walker’s favor, the court upheld the city’s appeal. While the selective enforcement amounted to unfair discrimination, Walker should not have withheld payment. He should have applied to a court for a declaration of rights which would have forced the city to take the appropriate steps. Comment Walker, the seminal case on “indirect” discrimination, explicitly draws the link between dignity and the impact of discrimination. This link is drawn through a conception of equality that requires that people be shown “equal concern and respect,” as appears in paragraph  of the majority judgment: No members of a racial group should be made to feel that they are not deserving of equal ‘concern, respect and consideration’ and that the law is likely to be used against them more harshly than others who belong to other race groups. That is the grievance that the respondent has and it is a grievance that the council officials foresaw when they adopted their policy. The conduct of the council officials seen as a whole over the period from June  to the time of the trial in May  was on the face of it discriminatory. The impact of such a policy on the respondent and other persons similarly placed, viewed objectively in the light of the evidence on record, and would in my view have affected them in a manner which is at least comparably serious to an invasion of their dignity. This was exacerbated by the fact that they had been misled and misinformed by the council. In the circumstances it must be held that the presumption has not been rebutted and that the course of conduct of which the respondent complains in this respect, amounted to unfair discrimination within the meaning of section () of the Interim Constitution.

As demonstrated by Walker, however, a tension adheres to a conception of equality that draws on the value of dignity and emphasizes “equal concern and respect” and the broader, often redistributive, goals of a substantive understanding of equality. DEPUTY PRESIDENT LANGA [] The dispute should be seen in the light of changes that have come about as a result of the adoption of a new constitutional order. It would be surprising if the process of bringing together, in a constitutional sense, people and communities who were kept apart for many years did not occasion its own difficulties and tensions. The difficulties are compounded by the disparities and imbalances inherent in our society that are the result of policies of the past. [] Atteridgeville was established in  and Mamelodi in , both as black townships. The two townships were administered under a different legislative and

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regulatory regime to that which applied in old Pretoria, which was part of “white South Africa.” The amalgamation of Atteridgeville and Mamelodi with old Pretoria was regulated by the Local Government Transition Act  of , which became operational on  February . That act provides for the restructuring of local government through the establishment of elected transitional councils. After the three separate local councils were amalgamated with effect from  December , the council of old Pretoria effectively exercised control over the relevant area until a democratically elected council was established consequent on the elections held in November  in accordance with the Local Government Transition Act. [] Atteridgeville and Mamelodi are no different from other poverty-stricken black townships in South Africa; there are glaring disparities between the two townships on the one hand, and old Pretoria on the other, in property values, delivery of services, and infrastructure. At the time of the amalgamation electrical installations in the townships were generally broken or damaged and there was no regulation that obliged the residents of Atteridgeville and Mamelodi to pay for services. The inferiority of the infrastructure in the black townships included there being no meters for water and electricity. The residents were levied a flat rate for such services as they received. The amalgamation was no magic wand; the disparities did not suddenly disappear on  December , but continued into the new era of local government. [] This then was the situation with which the council had to contend after  December . It had to exercise control over Atteridgeville and Mamelodi in addition to old Pretoria and other areas. The challenge facing the council from the beginning was to provide services and to treat all the residents within its jurisdiction equally. Those pre-existing disparities and the limited resources that the council had at its disposal meant that the task would be fraught with difficulties. [] On  December , the council decided, as a temporary measure, not to apply the consumption-based tariff in Mamelodi and Atteridgeville but to operate on the basis of a flat rate. The consumption-based tariff was in operation elsewhere in the council area, including Constantia Park. The decision of the council in relation to Mamelodi and Atteridgeville was actually forced on it because there were no meters to record the individual consumption of water and electricity in these areas. Rather optimistically as it turned out, the council set itself a program to install the , meters needed by June . The idea was that once the meters had been installed, the residents in the two townships would also be subject to the same metered rates as was the case in old Pretoria. The actual installation of meters, however, only commenced in June  and was completed in April . On  July , the council announced a consumption-based tariff for its whole area. At that time, meters had already been installed on some of the properties in the townships. The consumption-based tariff was not, however, applied to those properties; they continued instead to be charged according to the flat rate. Mr. Eicker, a senior official of the council who was responsible for credit control, said in evidence that

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this was the result of a decision taken by council officials to continue charging the flat rate to domestic premises in Atteridgeville and Mamelodi until all the meters that were required in the two townships had been installed. According to Mr. Eicker to do otherwise might have been counter-productive and might have resulted in violent resistance and vandalism. The delay in imposing a consumption-based tariff throughout the council area and the manner in which the council dealt with the transition to a unitary council attracted criticism from some residents of old Pretoria. [] Respondent belonged to a group that called itself “Besorgde Belastingbetalersgroep” (the BBG). Before the commencement of litigation in this matter, the BBG complained to the council about the matters referred to in paragraph  as well as other issues and held meetings with council officials to voice their complaints. In June  it submitted a memorandum to the council in which it demanded, among other things, that Atteridgeville and Mamelodi be separated from old Pretoria and that money paid by the council to subsidize “other communities” be recovered. It also demanded that the residents of old Pretoria be charged for water and electricity at the same flat rate as the residents of Atteridgeville and Mamelodi and that no steps be taken against residents who objected to paying the metered rates until the dispute over the matters that had been raised had been resolved. The BBG threatened to take legal action against the council. Its members, including the respondent, however, took no legal steps to challenge the council to end the alleged unfair discrimination and the contravention of section () of the Interim Constitution. They refused to pay the full amount, paying instead a lower amount, which was equivalent to the flat rate that was in operation in Mamelodi and Atteridgeville. The amount claimed by the council from the respondent represented the difference between what the respondent would have paid on the metered rate and what he actually paid on the basis of the flat rate. [] It is clear that the council treated the respondent together with the other residents of old Pretoria in a manner that was different to the treatment accorded to the residents of Mamelodi and Atteridgeville by (a) operating a flat rate in Mamelodi and Atteridgeville while a consumption-based tariff, which was higher, was used in old Pretoria; (b) differentiating between old Pretoria and those parts of Atteridgeville and Mamelodi where meters had already been installed; and (c) taking legal steps to recover arrears from residents of old Pretoria only and failing to take similar action against defaulters in Mamelodi and Atteridgeville. [] The differentiation in this case was, at least partly, an inherited one. The amalgamation that occurred resulted in a new relationship between areas that had been administered differently. It was, however, a meeting of contrasts. The present case concerns two areas that were black and one that was white. The former were poorly developed in terms of infrastructure for municipal services; they had no meters to record consumption of electricity and water. The white area had adequate facilities and the necessary infrastructure; it was equipped with meters that were relied on for the calculation of service charges for water and electricity. The flat rate

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in the two townships was a convenient practical expedient because of the poor infrastructure. This differentiation was not initiated by the new council; it became the council’s responsibility, however, to end it. While it lasted, it applied geographically and its effect was that the higher consumption-based tariffs operated in old Pretoria and not in the two townships. The enforcement of payment for services in old Pretoria was, as it had been through the years, by way of court action, while a more benevolent approach was followed in the other two areas. I turn now to deal firstly with the alleged breaches of section  and thereafter with the alleged breach of section () of the Interim Constitution. [] In Harksen we held that the enquiry as to whether differentiation amounts to unfair discrimination is a two-stage one. Firstly, does the differentiation amount to “discrimination”? If it is on a specified ground, then discrimination will have been established. If it is not on a specified ground, then whether or not there is discrimination will depend upon whether, objectively, the ground is based on attributes and characteristics which have the potential to impair the fundamental human dignity of persons as human beings or to affect them adversely in a comparably serious manner. (b)(ii) If the differentiation amounts to “discrimination,” does it amount to “unfair discrimination”? If it has been found to have been on a specified ground, then unfairness will be presumed. If on an unspecified ground, unfairness will have to be established by the complainant. The test of unfairness focuses primarily on the impact of the discrimination on the complainant and others in his or her situation.

[] Section () prohibits unfair discrimination which takes place “directly or indirectly.” This is the first occasion on which this court has had to consider the difference between direct and indirect discrimination and whether such difference has any bearing on the section  analysis as developed in the four judgments to which I have referred. [] The inclusion of both direct and indirect discrimination within the ambit of the prohibition imposed by section () evinces a concern for the consequences rather than the form of conduct. It recognizes that conduct which may appear to be neutral and nondiscriminatory may nonetheless result in discrimination, and if it does, that it falls within the purview of section (). [] The emphasis which this court has placed on the impact of discrimination in deciding whether or not section () has been infringed is consistent with this concern. It is not necessary in the present case to formulate a precise definition of indirect discrimination. The conduct of which the respondent complains is summarized in paragraph  of this judgment. It is sufficient for the purposes of this judgment to say that this conduct, which differentiated between the treatment of residents of

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townships that were historically black areas and whose residents are still overwhelmingly black, and residents in municipalities that were historically white areas and whose residents are still overwhelmingly white, constituted indirect discrimination on the grounds of race. The fact that the differential treatment was made applicable to geographical areas rather than to persons of a particular race may mean that the discrimination was not direct, but it does not in my view alter the fact that in the circumstances of the present case it constituted discrimination, albeit indirect, on the grounds of race. It would be artificial to make a comparison between an area known to be overwhelmingly a “black area” and another known to be overwhelmingly a “white area,” on the grounds of geography alone. The effect of apartheid laws was that race and geography were inextricably linked and the application of a geographical standard, although seemingly neutral, may in fact be racially discriminatory. In this case, its impact was clearly one that differentiated in substance between black residents and white residents. The fact that there may have been a few black residents in old Pretoria does not detract from this. [] I have had the opportunity of reading the judgment of Justice Sachs in which the view is expressed that the differentiation in the present case was based on “objectively determinable characteristics of different geographical areas, and not on race.” I cannot subscribe to this view or to the proposition that this is a case in which, because of our history, a nondiscriminatory policy has impacted fortuitously on one section of our community rather than another. There may be such cases, but in my view this is not one of them. The impact of the policy that was adopted by the council officials was to require the (white) residents of old Pretoria to comply with the legal tariff and to pay the charges made in terms of that tariff on pain of having their services suspended or legal action taken against them, whilst the (black) residents of Atteridgeville and Mamelodi were not held to the tariff, were called upon to pay only a flat rate which was lower than the tariff, and were not subjected to having their services suspended or legal action taken against them. To ignore the racial impact of the differentiation is to place form above substance. [] This court has consistently held that differentiation on one of the specified grounds referred to in section () gives rise to a presumption of unfair discrimination. The presumption, which flows from section (), applies to all differentiation on such grounds. There may possibly be cases where the differentiation cannot conceivably result in discrimination and for that reason does not cross the threshold of section (). According to Justice Sachs, however, section () is triggered only by differentiation which imposes “identifiable disabilities” or threatens “to touch on or reinforce patterns of disadvantage” or “in some proximate and concrete manner threaten(s) the dignity or equal concern or worth of the persons affected” and in the absence of such consequences, the presumption under section () does not arise. This, in my view, is contrary to the decisions of this court in the four cases to which I have referred, in which it was held that differentiation on one of the specified grounds set out in section () gives rise to a presumption of “unfair discrimination.”

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I can see no reason for distinguishing in this regard between discrimination that is direct and [discrimination] that is indirect. Both are covered by section () and both are subject to the same presumption. Whilst the matters mentioned by Justice Sachs are no doubt relevant to the question of unfairness and to cases on which reliance is placed on section () of the Interim Constitution or section () of the final Constitution, they do not, in my view, enter into the first stage of the enquiry which is to determine whether there has been differentiation, direct or indirect, on the grounds of race. The principle established by section () is an important part of the equality guarantee of our Constitution. It clearly applies to all cases of discrimination, whether direct or indirect. The point here is that there was no basis on the evidence given in the trial court on which a case based on section () could reasonably have been advanced.

Has the Presumption of Unfair Discrimination Been Rebutted? [] The enquiry into whether the presumption of unfair discrimination has been rebutted involves an examination of the impact of the discrimination on the respondent. The concept of unfairness was considered in the majority judgment in Hugo where the following was stated: The prohibition on unfair discrimination in the Interim Constitution seeks not only to avoid discrimination against people who are members of disadvantaged groups. It seeks more than that. At the heart of the prohibition of unfair discrimination lies recognition that the purpose of our new constitutional and democratic order is the establishment of a society in which all human beings will be accorded equal dignity and respect regardless of their membership of particular groups. The achievement of such a society in the context of our deeply inegalitarian past will not be easy, but that that is the goal of the Constitution should not be forgotten or overlooked. To determine whether that impact was unfair it is necessary to look not only at the group who has been disadvantaged but at the nature of the power in terms of which the discrimination was effected and, also at the nature of the interests which have been affected by the discrimination.

[] In Harksen, Justice Goldstone, in discussing factors relevant to the determination of unfairness, stated: The prohibition of unfair discrimination in the Constitution provides a bulwark against invasions which impair human dignity or which affect people adversely in a comparably serious manner . . . In the final analysis it is the impact of the discrimination on the complainant that is the determining factor regarding the unfairness of the discrimination.

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He went on to list some of the factors that have to be considered in order to determine whether the discriminatory provisions have impacted unfairly on the complainant as follows: (a) the position of the complainants in society and whether they have suffered in the past from patterns of disadvantage, whether the discrimination in the case under consideration is on a specified ground or not; (b) the nature of the provision or power and the purpose sought to be achieved by it. If its purpose is manifestly not directed, in the first instance, at impairing the complainants in the manner indicated above, but is aimed at achieving a worthy and important societal goal, such as, for example, the furthering of equality for all, this purpose may, depending on the facts of the particular case, have a significant bearing on the question whether complainants have in fact suffered the impairment in question; (c) with due regard to (a) and (b) above, and any other relevant factors, the extent to which the discrimination has affected the rights or interests of complainants and whether it has led to an impairment of their fundamental human dignity or constitutes an impairment of a comparably serious nature. These factors, assessed objectively, will assist in giving “precision and elaboration” to the constitutional test of unfairness. They do not constitute a closed list. In any event it is the cumulative effect of these factors that must be examined and in respect of which a determination must be made as to whether the discrimination is unfair.

[] In interpreting section  of the Interim Constitution it seems to me to be of importance to have regard to the fact that it contains both an equal protection clause and an antidiscrimination clause. The purpose of the antidiscrimination clause, section (), is to protect persons against treatment that amounts to unfair discrimination; it is not to punish those responsible for such treatment. In many cases, particularly those in which indirect discrimination is alleged, the protective purpose would be defeated if the persons complaining of discrimination had to prove not only that they were unfairly discriminated against but also that the unfair discrimination was intentional. This problem would be particularly acute in cases of indirect discrimination where there is almost always some purpose other than a discriminatory purpose involved in the conduct or action to which objection is taken. There is nothing in the language of section () that necessarily calls for the section to be interpreted as requiring proof of intention to discriminate as a threshold requirement for either direct or indirect discrimination. Consistent with the purposive approach that this court has adopted to the interpretation of provisions of the Bill of Rights, I would hold that proof of such intention is not required in order to

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establish that the conduct complained of infringes section (). Both elements, discrimination and unfairness, must be determined objectively in the light of the facts of each particular case. This seems to me to be consistent not only with the language of the section, but also with the equality jurisprudence as it has been developed by this court. It is also consistent with the presumption in section () which would be deprived of much of its force if proof of intention was required as a threshold requirement for the proof of discrimination. [] What is of importance at this stage of the enquiry is the interplay between the discriminatory measure and the person or group affected by it. As pointed out by Justice O’Regan in Hugo: The more vulnerable the group adversely affected by the discrimination, the more likely the discrimination will be held to be unfair. Similarly, the more invasive the nature of the discrimination upon the interests of the individuals affected by the discrimination, the more likely it will be held to be unfair.

[] The postscript to the Interim Constitution refers to our “past of a deeply divided society.” Differentiation made on the basis of race was a central feature of those divisions and this was a source of grave assaults on the dignity of black people in particular. It was, however, not human dignity alone that suffered. White areas in general were affluent and black ones were in the main impoverished. Many privileges were dispensed by the government on the basis of race, with white people being the primary beneficiaries. The legacy of this is all too obvious in many spheres, including the disparities that exist in the provision of services and the infrastructure for them in residential areas. Section  is premised on a recognition that the ideal of equality will not be achieved if the consequences of those inequalities and disparities caused by discriminatory laws and practices in the past are not recognized and dealt with. In Hugo it was said: We need, therefore, to develop a concept of unfair discrimination which recognizes that although a society which affords each human being equal treatment on the basis of equal worth and freedom is our goal, we cannot achieve that goal by insisting upon identical treatment in all circumstances before that goal is achieved. Each case, therefore, will require a careful and thorough understanding of the impact of the discriminatory action upon the particular people concerned to determine whether its overall impact is one which furthers the constitutional goal of equality or not. A classification that is unfair in one context may not necessarily be unfair in a different context.

[] The respondent belongs to a group that has not been disadvantaged by the racial policies and practices of the past. In an economic sense, his group is neither disadvantaged nor vulnerable, having been benefited rather than adversely affected

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by discrimination in the past. In this case for instance, the respondent did not plead poverty as his reason for not paying the amount owing by him calculated on a consumption-based rate; indeed there is evidence that those ratepayers who found themselves in financial difficulties could approach the council for extensions and more lenient treatment. What the respondent has done, together with other residents who share his view on this, was to signify in a dramatic way their objection to the fact that the residents of Mamelodi and Atteridgeville were given the benefit of paying for services at different and lower rates. I am acutely aware that generalizations are invidious and that there are undoubtedly some members of the white community who are poor and some from the black community who are wealthy. The fact of the matter is that the discriminatory practices of the past were designed to and did benefit the white community while inflicting disadvantage on the black community. [] The respondent does, however, belong to a racial minority that could, in a political sense, be regarded as vulnerable. It is precisely individuals who are members of such minorities who are vulnerable to discriminatory treatment and who, in a very special sense, must look to the Bill of Rights for protection. When that happens a court has a clear duty to come to the assistance of the person affected. Courts should, however, always be astute to distinguish between genuine attempts to promote and protect equality on the one hand and actions calculated to protect pockets of privilege at a price that amounts to the perpetuation of inequality and disadvantage to others on the other.

The Nature and Purpose of the Power [] It is the council’s responsibility to deliver services to all residents in its area. This task has to be performed in a manner that does not unfairly discriminate against any one of the residents. The other side of the coin is the council’s entitlement to be paid for the delivery of services. To that end, the council is required to put in place effective measures for the collection of municipal charges. In a time of transition though, the council’s responsibility to the residents has an added and equally important dimension. Since the consolidation of various areas may involve a complex mixture of advantage and disadvantage, the measures that the council resorts to must be directed at eliminating the disparities and disadvantages that are a consequence of the policies of the past, to engender equality in as short a time as the council’s resources permit. It follows therefore that while the council’s efforts had to be directed at the elimination of the flat rate in the townships and the institution of a consumption-based tariff for all, the rapid upgrading of services and the development of a proper infrastructure in the previously disadvantaged areas also had to be high on its list of priorities. The Flat Rate [] The council maintained bulk meters to determine the quantity of electricity and water supplied to Atteridgeville and Mamelodi. According to Mr. Eicker the

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flat rate was calculated by measuring the bulk supplies to Atteridgeville and Mamelodi, deducting the business use (which was metered) and dividing the balance between the numbers of houses in the two townships. For the purposes of this calculation the bulk supplies were averaged over a period of time. In the result, the total charges levied through the flat rate and the metering of business premises were apparently intended to be more or less equivalent to the tariff rate for the electricity and water consumed in the townships. [] This was a crude method of recovering charges. It meant that those residents who consumed less water and electricity than the “average” resident of Atteridgeville and Mamelodi paid the same as those whose consumption was above the average. It also meant that if consumption in the two townships increased, the flat rate would be inadequate to recover the tariff charges for the actual consumption. [] There was, however, no reasonable alternative to a flat charge. Meters had not been installed in residential premises in Atteridgeville and Mamelodi and without them there was no way of measuring the consumption of individual users. In the circumstances that existed the charging of a flat rate calculated in the manner described by Mr. Eicker was the council’s solution to the problem. The respondent did not suggest that there was a better method of levying the charges nor did he challenge the validity or the amount of the flat rate in the tariff. His attitude was that the flat rate was less than the metered rate and if a flat rate was charged in Atteridgeville and Mamelodi, it should be charged throughout the whole municipality of Pretoria. It was on that basis that he made payment of his monthly accounts. [] The council’s decision to confine the flat rate to Atteridgeville and Mamelodi and to continue charging the metered rate in old Pretoria and in businesses in Atteridgeville and Mamelodi that were equipped with meters was dictated by the circumstances with which it was confronted. It was in effect a continuation of the practice that had been followed prior to the consolidation of the various areas which now make up the council area. There are four times as many stands in “old Pretoria” as in Mamelodi and Atteridgeville put together. Since it is a wealthier and more developed area than Atteridgeville and Mamelodi, it is a fair assumption that old Pretoria would have accounted for a major proportion of the total consumption of water and electricity in the municipality. To have applied a flat rate throughout the entire municipality would have been unscientific, and would have resulted in far greater prejudice to individual users than the application of the flat rate in Atteridgeville and Mamelodi alone. In the circumstances the adoption of a flat rate as an interim arrangement while meters were being installed in the residential areas of the two townships was the only practical solution to the problem. [] The amicus curiae, the National Electricity Regulator (NER), provided the court with a detailed and helpful analysis of cross-subsidization in the pricing of electricity. What emerged from the NER’s contribution was that cross-subsidization is integral to the pricing of electricity and that:

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(a) there are numerous factors that influence the pricing of electricity and as a result it would be difficult to determine the true cost of supply to every consumer; (b) cross-subsidization will occur even where uniform tariffs exist; (c) the tariffs levied against domestic users are often lower than the actual cost of supplying electricity to them; and (d) cross-subsidization between different categories of consumers and within the same category is unavoidable. [] Cross-subsidization does not only find expression in the distribution of electricity but in other situations as well, for example, in income tax, in public administration, in the use of a variety of public amenities, and so on. In its judgment on the merits of the dispute the High Court seems to have taken the view that crosssubsidization is discriminatory and that the levying of different rates for the same services is always unfair. I am unable to agree with this view which looks to formal rather than substantive equality. There may well be cases where it is not unfair to charge according to different rates for the same services; it seems to me to be inconsistent with the equality jurisprudence developed by this court to hold that all crosssubsidization is precluded by section (). [] In an area where a flat rate is in operation, for instance, cross-subsidization within that area is inevitable. If rich and poor in that area pay for services on the basis of a flat rate, it may well be that the poor and lowest consumers of electricity subsidize the rich and largest consumers; the poorest might be paying more than they would be in the absence of a flat rate, and the rich might be paying less. The respondent himself could very well be a beneficiary of cross-subsidization if businesses in old Pretoria, as in other places, pay for the same services on a higher rate than residents. I am satisfied that in the instant case, cross-subsidization, which in any event cannot be regarded as having been the creation of the council, is an accepted, inevitable, and unobjectionable aspect of modern life. I deal later with the crosssubsidization that was a result of the delay in installing the meters and of the failure to apply the tariff to users of metered premises in Atteridgeville and Mamelodi.

Selective Enforcement [] At the time of the trial in the Magistrate’s Court in May  approximately , summonses had been served on defaulting residents in old Pretoria. Although figures do not always tell the whole story, statistics referred to in the evidence reveal that in old Pretoria about  percent of the rate-paying residents were in default and the arrears in that part amounted to R million. In old Pretoria steps were taken to enforce payment by suspending services and by the issuing of summons. For reasons of hygiene though, there was no interruption of water supplies. In Atteridgeville, less than one third of the , ratepayers were in default and in Mamelodi the figure was just under  percent of the , ratepayers. Atteridgeville and Mamelodi

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owed R million and R. million, respectively. Electricity services to individual stands could not be suspended in these townships because there were no means for doing so. Despite the number of residents in arrears no legal action was instituted against them, though summonses were issued against defaulting businesses in those townships. [] Of particular importance to an understanding of the differential treatment in the present case are historical factors such as the existence of a culture of nonpayment in Atteridgeville and Mamelodi. Its origins are part of the history of resistance to apartheid structures in the past, fortified as it was by protests against poor or nonexistent service delivery by local authorities. On the other hand, in old Pretoria where services had been of a high standard and there had been no protest against government policy, there had been a culture of payment. Those who did not pay were dealt with by conventional credit control measures, including suspension of services and taking of legal action where necessary. [] The large sum owing in respect of arrear charges in old Pretoria appears to have been the result, in part, of concerted action by the group of ratepayers who objected to the fact that they were being charged a metered rate whilst residents of Atteridgeville and Mamelodi were being charged a flat rate. The problem confronting the council at this time was how to prevent a culture of nonpayment for services taking root in old Pretoria, and how to convert the culture of nonpayment for services which had existed in Atteridgeville and Mamelodi into one of payment for services. [] Section  of the Constitution is a guarantee that at least at the level of lawmaking and executive action, hurtful discrimination such as that which forms part of our painful history will no longer be a feature of South African life. Equality is one of the core values of the Constitution. While the section clearly calls for more than “formal equality” and recognizes the need to address past disadvantages, the guarantee that it gives extends to all sections of the community, not only those who have been disadvantaged in the past. Whilst there can be no objection to a council taking into account the financial position of debtors in deciding whether to allow them extended credit, or whether to sue them or not, such differentiation must be based on a policy that is rational and coherent. It goes without saying that a local authority is not obliged to sue every debtor. The Constitution requires only that its debt-collection policy be rational and not constitute unfair discrimination. [] Section () permits the adoption of special measures that may be required to address past discrimination. In the present case, however, although there was mention of it in argument, it was not part of the council’s case that the policy of selective enforcement of arrear charges was a measure adopted for the purpose of addressing the disadvantage experienced in the past by the residents of Atteridgeville and Mamelodi. The reasons given for the policy were pragmatic. Apparently the town engineer had indicated that he was anxious to avoid anything that might pro-

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voke a hostile reaction from the residents of Mamelodi and Atteridgeville at a time when the contractors were engaged in the installation of meters in the two townships. It was to accommodate this concern that the council officials adopted a policy of enforcing claims against (white) residents of old Pretoria and of not enforcing claims against (black) residents of Atteridgeville and Mamelodi. This was in fact contrary to a council decision that arrear charges should be collected and if necessary enforced by way of legal action against all consumers. [] The case advanced by the council was that in the circumstances that existed at that time the selective enforcement, though discriminatory, was not unfair. It was argued on behalf of the council that the policy had the legitimate purpose of facilitating the transition from a system under which municipal services were provided on a separate and unequal basis to one in which equal services would be provided on an equal basis. Counsel stressed that the arrear charges were not written off, and that the policy was for the short term only, and was to come to an end when all the meters had been installed. [] This argument, however, failed to take into account that the policy of selective enforcement of debts owed to the council was not one that was initiated by the council itself. It was one adopted and implemented by its officials apparently without its authority and in conflict with its own express resolution, which required action to be taken against all defaulters. Furthermore, as already mentioned, the policy was implemented not only without public notice but in secrecy and after untrue and misleading public statements had been made by such officials with regard to that policy. The mere fact that council officials acted without authority and in contravention of council policy does not have as a necessary consequence that the policy implemented by them constituted unfair discrimination. That question must be answered objectively with regard only to what they did or omitted to do. In other words, if the policy would not have been unfair if implemented in terms of council policy, the fact that it was implemented without the council’s authority would not make it unfair. At the same time where a policy is deemed by section () to constitute unfair discrimination on a ground specified under section (), the fact that the policy is contrary to a fair and rational council resolution and is implemented in secrecy and in contradiction of public statements issued by the council officials, makes the burden of proving the policy not to be unfair more difficult to discharge than it might otherwise have been. [] The respondent and other residents of old Pretoria were not victims of past discrimination. A properly formulated policy to promote a culture of payment in areas in which there had been a culture of boycott would not have been aimed at impairing the respondent’s interests in any way. If carefully formulated and implemented it could have been directed to the achievement of the “important societal goal” of transforming both the living conditions and culture of nonpayment in Atteridgeville and Mamelodi, and that might well have been consistent with the goal

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of furthering equality for all. If such a policy had been formulated a court would have been in a position to evaluate it, to determine whether it met the requirements of fairness, and also to monitor its implementation. The ratepayers of Pretoria would also have been aware of and able to monitor the implementation of the policy. [] The burden of rebutting the presumption of unfairness was on the council. The effect of what was done was to take action against defaulters in old Pretoria but not in Mamelodi and Atteridgeville; to single out white defaulters for legal action while at the same time consciously adopting a benevolent approach that exempted black defaulters from being sued. [] No members of a racial group should be made to feel that they are not deserving of equal “concern, respect and consideration” and that the law is likely to be used against them more harshly than others who belong to other race groups. That is the grievance that the respondent has and it is a grievance that the council officials foresaw when they adopted their policy. The conduct of the council officials seen as a whole over the period from June  to the time of the trial in May  was on the face of it discriminatory. The impact of such a policy on the respondent and other persons similarly placed, viewed objectively in the light of the evidence on record, would in my view have affected them in a manner that is at least comparably serious to an invasion of their dignity. This was exacerbated by the fact that they had been misled and misinformed by the council. In the circumstances it must be held that the presumption has not been rebutted and that the course of conduct of which the respondent complains in this respect, amounted to unfair discrimination within the meaning of section () of the Interim Constitution.

Limitation of Right [] The rights guaranteed in chapter  of the Interim Constitution may be limited in terms of section () of the Interim Constitution. A requirement of section () is that a right may only be limited by a law of general application. Since the respondent’s challenge is directed at the conduct of the council, which was clearly not authorized, either expressly or by necessary implication by a law of general application, section () is not applicable to the present case. [] To summarize I find that— (a) the conduct of the council officials during the period July  to April  in relation to the selective recovery of charges for water and electricity consumed in Atteridgeville and Mamelodi amounted to unfair discrimination in breach of section  of the Interim Constitution. (b) The tariff promulgated in the Provincial Gazette of  August  must be assumed to be valid. (c) It is not necessary to decide whether the provisions of section  of the Interim Constitution were infringed by the manner in which the tariff was applied and enforced.

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Appropriate Relief [] I turn now to consider appropriate relief. The High Court upheld the respondent’s defense, as it were, and set aside the magistrate’s order, substituting it with an order for absolution from the instance with costs. Argument was addressed to us about the appropriateness or otherwise of the High Court’s order. [] The respondent invoked the provisions of section  of the Interim Constitution as a defense to the council’s claim based on respondent’s failure to fulfill a contractual obligation. Simply put, the respondent’s attitude is that he is entitled to withhold payment for services rendered for as long as the council continues with a policy of selective enforcement of payment for services. [] Section ()(a) of the Interim Constitution provides: “When an infringement of or threat to any right entrenched in this Chapter is alleged, any person referred to in paragraph (b) shall be entitled to apply to a competent court of law for appropriate relief, which may include a declaration of rights.” The question is what the appropriate relief is in this case. More specifically, is an order of absolution from the instance in this case appropriate relief, where the council sues for recovery of a debt that is due? [] Local government is as important a tier of public administration as any. It has to continue functioning for the common good; it, however, cannot do so efficiently and effectively if every person who has a grievance about the conduct of a public official or a governmental structure were to take the law into his or her own hands or resort to self-help by withholding payment for services rendered. That conduct carries with it the potential for chaos and anarchy and can therefore not be appropriate. The kind of society envisaged in the Constitution implies also the exercise of responsibility towards the systems and structures of society. A culture of self-help in which people refuse to pay for services they have received is not acceptable. It is preeminently for the courts to grant appropriate relief against any public official, institution or government when there are grievances. It is not for the disgruntled individual to decide what the appropriate relief should be and to combine with others or take it upon himself or herself to punish the government structure by withholding payment that is due. [] The debt that is owed by respondent remains and the only question is whether its payment should be enforced. He does not contend that he is paying more than he should be paying, rather that others are paying less than they should. The finding that the conduct of the council officials amounted to unfair discrimination is intimation that the council has acted incorrectly and that it should put its house in order. It is not a vindication of respondent’s refusal to pay for services rendered. [] A person who suffers the infringement of a right entrenched in chapter  of the Interim Constitution is entitled under section ()(a) to “appropriate relief.” For the reasons mentioned above, I do not consider an order for absolution from the instance to be appropriate relief for the purposes of section ()(a) in the instant case, where the council’s claim against the respondent is in all other respects unassailable. The conduct of the council officials cannot be equated with the type

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described in the cases referred to in the judgment of the High Court where courts have refused to come to the relief of litigants because “their hands are not clean.” I am of the view that appropriate relief should be relief that is tailored to the needs of the particular case. In Fose, Justice Ackermann, speaking for the court, stated: Appropriate relief will in essence be relief that is required to protect and enforce the Constitution. Depending on the circumstances of each particular case the relief may be a declaration of rights, an interdict, a mandamus or such other relief as may be required to ensure that the rights enshrined in the Constitution are protected and enforced. If it is necessary to do so, the courts may even have to fashion new remedies to secure the protection and enforcement of these all-important rights.

[] I have found that the selective institution of legal proceedings by the council amounts to a breach of respondent’s constitutional right not to be unfairly discriminated against. It has not been shown that [the] respondent could not have availed himself of other, more practical remedies which would have been effective in getting the council to cease its objectionable conduct, thus eradicating the reason for the complaint. Instead of withholding amounts lawfully [owed] by him to the council, the respondent could, for instance, have applied to an appropriate court for a declaration of rights or a mandamus in order to vindicate the breach of his section  right. By means of such an order the council could have been compelled to take appropriate steps as soon as possible to eliminate the unfair differentiation and to report back to the court in question. The court would then have been in a position to give such further ancillary orders or directions as might have been necessary to ensure the proper execution of its order. It cannot simply be assumed, particularly in our new constitutional dispensation, that the council would not have taken all diligent steps to ensure scrupulous compliance with any such order. The court would in any event be in a position to deal appropriately with any deliberate failure or refusal to comply. [] In the result I find that the course followed by the respondent in this case was inappropriate, to the extent that his reliance on the breach of the section  right is not a defense to the council’s claim. I accordingly find that the order of the High Court of absolution from the instance with costs is not appropriate relief in this matter. The council must therefore succeed in the appeal to the extent that the order of absolution from the instance cannot stand.

The Order [] The following order is made: (a) the application for leave to appeal to this court is granted; (b) the appeal is upheld; the order of the Transvaal High Court is set aside and for it the following is substituted:

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i) the appeal is dismissed; ii) no order is made as to costs. (c) no order as to costs in respect of the application for leave to appeal or the appeal in this court is made.

JUSTICE SACHS [] There are no easy solutions to the problems raised by this matter. As was pointed out in Prinsloo v. Van Der Linde and Another, “[w]hile our country, unfortunately, has great experience in constitutionalizing inequality, it is a newcomer when it comes to ensuring constitutional respect for equality.” Just as the transformation of our harsh social reality is by its very nature difficult to accomplish, so is it hard to develop a corresponding and appropriate jurisprudence of transition. [] I will summaries my basic argument in the paragraphs that follow and then set out my reasoning more fully later. The findings made by Deputy President Langa indicate that the council attempted to upgrade the deplorable quality of services in neighborhoods that were poor and grossly under-serviced as a result of generations of avowedly racist and discriminatory state policies. Such policies were expressed in laws implemented by previous local authorities leading to the untold hardships of which the Constitution speaks. In what appears to have been an effort to rise above the politics of race and articulate the spirit of civic responsibility and compassion that animates the Constitution, the council, in which voters of the affluent parts of Pretoria were well represented, embarked on a negotiated, step-bystep process to fulfill its obligations to those whom previous local governments had at best ignored and at worst oppressed. Such a process, however ineptly carried out at times, was aimed at overcoming the practical difficulties and psychological factors that kept the urban community divided and entrenched disadvantage. [] I find it jurisprudentially incongruous to regard the complainant as a victim of unfair discrimination as a result of such a process. He was disturbed in no way in his enjoyment of residence in a neighborhood that had been made affluent by stateenforced advantage in the past. The group with which he identified himself continued to get the benefit of regular municipal services at all material times. He was not called upon to do any more than to pay what he owed for services he had always received. He was not being singled out or targeted in any way, neither because of his race nor even because he lived in a comfortable neighborhood. In my view, although treated differently, he was not discriminated against in any manner whatsoever; alternatively, if the council’s conduct can correctly be classed as discriminatory against him, it was by no means unfair. [] To say this is not to contend that the council may act in any way it pleases provided that its motive is to redress inequalities. Section  provides at least two major principles that must guide programs aimed at achieving substantive equality

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through the application of differential treatment to those who start off in unequal situations. The first is that, once duly adopted, laws must be administered in an impartial and even-handed way. As section () says: “Every person shall have the right to equality before the law and to equal protection of the law.” The second broad guiding principle is that such programs must be “designed to achieve the adequate protection and advancement of persons or groups or categories of persons disadvantaged by unfair discrimination, in order to enable their full and equal enjoyment of all rights and freedoms.”

Discrimination [] I am far from persuaded that the issue was one of discrimination at all, direct or indirect. I tend to agree with the magistrate that the policy of selective enforcement was based on the identification of objectively determinable characteristics of different geographical areas, and not on race. There was no direct discrimination on the grounds of race. Nor, in my view, was there indirect discrimination on the grounds of race simply because whites lived in one area and blacks in another. In Harksen v. Lane NO and Others [ () SA  (CC);  () BCLR  (CC)] it was accepted that, even though the great majority of solvent spouses targeted by the insolvency law might well have been women, this did not raise questions of indirect discrimination against women. In the present case, there is overwhelming evidence to show that the complainant has in fact benefited from accumulated discrimination and that he continues to enjoy structured advantage of a massive kind. I find nothing in the papers, on the other hand, to prove that he has been prejudiced by discrimination, whether direct or indirect, or whether in the past or at present. The mere coincidence in practice of differentiation and race, without some actual negative impact associated with race, is not, in my view, enough to constitute indirect discrimination on the grounds of race. [] The core of my argument at this stage is that the complainant has not made out a case of having suffered prima facie discrimination at all. In order to invoke the presumption of unfairness contained in section (), some element of actual or potential prejudice must be immanent in the differentiation, otherwise there is no “discrimination” to be evaluated, and the need to establish fairness or unfairness has no subject matter. [] In the light of our history of institutionalized racism and sexism, there might be sound reasons for treating direct differentiation on the grounds specified in section () as prima facie proof of discrimination on such grounds without further evidence of prejudice being required, thereby triggering the presumption of unfairness contained in section (). In other words, any form of express classification on the grounds of race, sex, etc. could immediately per se raise questions of potential prejudice. That is the most I understand this court to have done in the four equality cases cited in Deputy President Langa’s judgment. However that might be, in the case of differential impact of an indirect nature I feel that there is

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no scope for any such per se assumption of discrimination, and that some element of prejudice, whether of a material kind or to self-esteem, has to be established. Only then can it be said that “prima facie proof of discrimination” on one of the specified grounds exists, as required by section (). Absent discrimination, then, the question of fairness or otherwise is not reached, because it is not the presumption that gives rise to the discrimination, but proof of the discrimination that invokes the presumption. [] The concept of indirect discrimination cannot be an open-ended one to be applied in a decontextualized and formulaic manner so as automatically to trigger the presumption of unfairness in section () independently of real impact. Rather, it must be given sensible and practical limits consistent with the objectives and overall scheme of section . A focused approach to indirect discrimination is demanded by the text of section  read as a whole and construed in the light of the preamble and postscript to the Constitution. [] Looked at in its historical setting, the text makes it clear that equality is not to be regarded as being based on a neutral and given state of affairs from which all departures must be justified. Rather, equality is envisaged as something to be achieved through the dismantling of structures and practices that unfairly obstruct or unduly attenuate its enjoyment. In this framework, the presumption of unfairness as provided for by section () makes perfectly good sense when there is either overt or direct differentiation on one of the specified grounds such as race or sex, or where patterns of disadvantage based on such grounds are being reinforced without express reference but as a matter of reality. On the other hand, the presumption makes no sense at all when invoked to shield continuing advantage gained as a result of past discrimination from the side-winds of remedial social programs designed to reduce the effect of such structured advantage. [] A presumption of unfairness becomes particularly incongruous when applied to a situation such as the present. Firstly, the complainant identifies himself not on the grounds of residence in a neglected neighborhood, but on the basis of belonging to a racial group that, as is commonly known, benefited directly in the past from programs that were systematically law-enforced and overtly racist. Indeed, he continues to enjoy manifest de facto advantage as a result of such programs. Secondly, the complainant is being deprived of nothing by the measure, which he attacks. His objection is simply that he is being left out of a program that relieves from certain obligations other persons whose objective circumstances are markedly different from and inferior to his. The question at this juncture is not one of unfairness, but of whether or not there is prima facie proof of discrimination against him in the first place. [] I find that Justice Cameron followed the correct approach (in a case with a different legal context but which posed basically similar dilemmas) when he cited with approval an unreported judgment by Justice Wunsh in Greater Johannesburg City Council v Europa Hotel (Case No. /, November , ):

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Even if one were to accept that some ratepayers and consumers have been released from their obligations, what does this establish? On the one hand, the Respondent argues that the Applicant is acting irregularly in foregoing these amounts. On the other hand, the Respondent says that some users have been released and that it has been discriminated against by reason of the fact that it has not had the same treatment. If an organization, a concern, a local authority or a business releases a person from liability for amounts owing for reasons which it considers sound, and does not release others where the same reasons do not prevail, you are not dealing with discrimination. (My emphasis.)

[] The concept of indirect discrimination, as I understand it, was developed precisely to deal with situations where discrimination lay disguised behind apparently neutral criteria or where persons already adversely hit by patterns of historic subordination had their disadvantage entrenched or intensified by the impact of measures not overtly intended to prejudice them. I am unaware of the concept being expanded so as to favor the beneficiaries of overt and systematic advantage. [] In our still fragmented and divided country, with its legacy of racial discrimination and its deeply entrenched culture of patriarchy, and with it practices and institutions based on homophobia or on a lack of attention to the most elementary rights of disabled people, almost every piece of legislation, and virtually every kind of governmental action, will impact differentially on the groups specified in section () of the Constitution. There is strong policy and practical reasons for holding that something more than differential impact is required before indirect discrimination under section  can be inferred. [] An undue enlargement of the concept of indirect discrimination would mean that every tax burden, every licensing or town planning regulation, every statutory qualification for the exercise of a profession, would be challengeable simply because it impacted disproportionately on blacks or whites or men or women or gays or straights or able-bodied or disabled people. If the state in each such case were to be put to the burden of showing that differentiation was not unfair, the courts would be tied up interminably with issues that had nothing to do with the real achievement of equality and protection of fundamental rights as contemplated by section . Judicial review would lose its sharp cutting edge and become a blunt instrument invocable by all and sundry in a manner that would frustrate rather than promote the achievement of real equality. [] It would, accordingly, be spreading section  far too thin to achieve its purpose if each and every measure of such kind were to be regarded as effecting indirect discrimination which was presumptively suspect. In particular I am far from convinced that differential treatment that happens to coincide with race in the way that poverty and civic marginalization coincide with race, should be regarded as presumptively unfair discrimination when it relates to measures taken to overcome such poverty and marginalization. A well-focused construction of section () which

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is directed at laws and practices that perpetuate historically-created forms of disadvantage, or which is focused on preventing new forms of subordination or marginalization would be far more consonant with the Constitution than a crude reduction of every measure designed to deal with intrinsically difficult social issues to the dimensions of race.

Unfair [] Even if I am wrong in my view that the policy pursued by the council did not result in discrimination against persons identified by their pigmentation, I am satisfied that any discrimination that may have been practiced would not have amounted to unfair discrimination as contemplated by section () of the Constitution. Deputy President Langa has distilled the essential facts of the case and I merely repeat certain findings taken from his judgment. Over the period concerned, the standard of the supply of water for Atteridgeville and Mamelodi was drastically improved. Meters were installed in , homes for the monitoring of electricity and water usage. Existing municipal services generally were upgraded or replaced. The council officials opted for a “soft” approach based on negotiations rather than a “hard” one based on straightforward application of the law, and the level of payments showed a marked improvement so that by the end of the period in question well over half the people billed were paying, and the first summonses for arrears were being issued. There was no question of deliberately targeting the inhabitants of old Pretoria, but there was a policy of conscious benevolence to residents in Atteridgeville and Mamelodi, which took the form of delayed enforcement of debt recovery rather than cancellation of debt. On the negative side, there were many temporary set-backs and delays in the program: what appear to have been ad hoc decisions were taken by council officials; the material on negotiations is sparse, and there was a clear failure to provide the broad public of Pretoria with honest and accurate information as the process unfolded. [] I will apply the approach and criteria on unfairness as developed in Harksen to these basic facts. Applying Harksen The position of the complainant in society; whether he belongs to a socially vulnerable group that has been the victim of disadvantage in the past. [] The context in which the issue of unfairness must be determined was brought out in Prinsloo where the majority of the court stated: Our country has diverse communities with different historical experiences and living conditions. Until recently, very many areas of public and private life were invaded by systematic legal separateness coupled with legally enforced advantage and disadvantage. The impact of structured and vast inequality is still with us despite the arrival of the new constitutional order.

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[] The residents of old Pretoria have historically been advantaged both by the standard of municipal services provided to them as well as by their involvement as recognized participants in the system of local government. Previous laws and policies operated systematically and intentionally to enhance their advantages. [] The doors of the courts must, of course, be equally open to all South Africans, independently of whether historically they have been privileged or oppressed. Indeed, minorities of any kind are always potentially vulnerable. Processes of differential treatment which have the legitimate purpose of bringing about real equality should not be undertaken in a manner that gratuitously and insensitively offends and marginalizes persons identified as belonging to groups who previously enjoyed advantage. Thus persons who have benefited from systematic advantage in the past and who continue to enjoy such benefits today, are by no means excluded from the protection offered by section . Yet as Justice O’Regan put it in Hugo: “The more vulnerable the group adversely affected by the discrimination, the more likely the discrimination will be held to be unfair.” Conversely, the less vulnerable the group, the less the likelihood of unfairness. It follows that the place of a complainant in the structures of advantage and disadvantage will always be one of the central elements in the determination of how fair or unfair the challenged discrimination is. In the present case there is nothing to indicate that the action of the council tracked any existing, or precipitated any new, pattern of disadvantage related to membership of a group specified in or contemplated by section (). Nor does the evidence suggest that the group that did not get the benefit of differential enforcement was, as a group, under-represented on the council, and hence possibly vulnerable to marginalization and disadvantage. [] We should remember, too, that it is not the court’s function to decide whether the council’s conduct was prudent or whether all its choices were appropriate. The court’s task, as I understand it, is limited to deciding whether the impugned conduct was fair, given the value of promoting equality that underlies section . The coherence and openness of its conduct would then merely be factors to be taken into account when deciding on the question of fairness and not per se definitively constitutive of unfairness in themselves.

The Nature, Purpose, and Duration of the Power Being Exercised [] The summonsing of the complainant for nonpayment in respect of services rendered represented the continuation of the normal practice of debt recovery. The complainant was not being singled out for disadvantage but called upon to meet his ordinary obligations. The fact that inhabitants of Atteridgeville and Mamelodi were treated with special benevolence in respect of law enforcement in no way added to his burdens. He was being required to pay money because he had enjoyed the services, not because of any benevolence that the council had shown to others. In Hugo, prisoners who were fathers of young children, were not afforded early release, unlike mothers of young children, who were. Nevertheless, this court found that although

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constituting a disadvantage, the presidential pardon did not restrict or limit their rights or obligations as fathers in any permanent way. Justice Goldstone stated: It cannot be said, for example, that the effect of the discrimination was to deny or limit their freedom, for their freedom was curtailed as a result of their conviction, not as a result of the Presidential Act. That act merely deprived them of an early release to which they had no legal entitlement.

The societal objective being pursued by means of the issuing of the summonses was the totally unproblematic one of recovering a debt, thereby enabling the council to meet its obligations towards the inhabitants within its area. [] If the “soft” approach applied to debt recovery in Atteridgeville and Mamelodi can be seen as in any way impinging adversely on the complainant (which I do not think it did, except possibly in a symbolical sense as will be discussed below), then the evidence suggests and the results confirm that it was adopted as a “best efforts” attempt of relatively short duration to incorporate progressively the inhabitants of two marginalized, under-serviced and largely impoverished communities into a unified structure of local government. The objective was to transform a culture of nonpayment deeply rooted in a history of painful struggle for political rights and equal treatment, into one of payment in the new circumstances of democratic entitlement and responsibility. In short, it was to overcome rather than to perpetuate inequality. As pointed out by Dworkin: “There is nothing paradoxical . . . in the idea that an individual’s right to equal protection may sometimes conflict with an otherwise desirable social policy, including the policy of making the community more equal overall” (my emphasis).

The Extent to Which Discrimination Affected the Rights of the Complainant and Impaired His Dignity [] I simply cannot see how the complainant’s rights were affected or his fundamental human dignity impaired by his receiving a summons to pay for something that was due. Nor do I discern any other injury of comparable gravity that he may have suffered. [] Paraphrasing Dworkin, whose thinking on the subject was incorporated into the majority judgment in Prinsloo and bears repeating here because of its centrality to the issues, the right to equality means the right to be treated as equals, which does not always mean the right to receive equal treatment. The matter was trenchantly put by Justice Goldstone in Hugo when he said: We need . . . to develop a concept of unfair discrimination which recognizes that although a society which affords each human being equal treatment on the basis of equal worth and freedom is our goal, we cannot achieve that goal by insisting upon identical treatment in all circumstances before that goal is

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achieved. Each case, therefore, will require a careful and thorough understanding of the impact of the discriminatory action upon the particular people concerned to determine whether its overall impact is one which furthers the constitutional goal of equality or not. A classification which is unfair in one context may not necessarily be unfair in a different context.

The same point is made by Justice O’Regan when she says that “although the longterm goal of our constitutional order is equal treatment, insisting upon equal treatment in circumstances of established inequality may well result in the entrenchment of that inequality.” [] It might well be that even in the absence of concrete disadvantage; the symbolic effect of a measure (or the absence of a measure that should have been taken) could impair dignity in a way that constitutes unfair discrimination. This could arise if the selective enforcement involved deliberate targeting whether direct or disguised, or was so related in impact to patterns of disadvantage as to leave the persons concerned with the understandable feeling that once more they were being given the short end of the stick. An understandable sense of unfairness however, cannot be separated from the purpose for which the measure was taken and the means used for its achievement; the more manifestly justifiable the public purpose in light of the objectives of the Constitution, the less scope for a legitimate feeling of having been badly done by. [] What is fair or unfair cannot be looked at exclusively through the eyes either of the inhabitants of old Pretoria or of those of Atteridgeville and Mamelodi, but must be viewed simultaneously from the diverse points of view of all the inhabitants of the whole of Pretoria, bearing in mind the values enshrined in the Constitution. All were entitled to equal respect, and all had the right to have their concerns and sensitivities taken account of in an equal manner. This did not require the same treatment for all. Any blanket application of identical measures in all of Pretoria irrespective of particular circumstances and the vast structural inequalities that existed, would not have represented equal concern but rather, have manifested equal unconcern.

Conclusion on Unfair Discrimination [] It is clear from the papers that the strategic objective of the council, however clumsily realized at times, was in fact to integrate Atteridgeville and Mamelodi rather than to isolate old Pretoria. Its evident purpose, substantially successful in respect of debt recovery, was to achieve equal, across-the-board enjoyment of rights and assumption of responsibilities. It sought to establish the practices and habits of municipal citizenship rather than to entrench the former patterns of division and alienation, and to eliminate double standards, not to perpetuate them. [] The less directly invasive the discrimination, the more substantial its legitimate social function, and the less it reinforces or creates patterns of systematic dis-

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advantage, the less likely is it to be unfair. The differential debt recovery measures were not taken because the inhabitants of old Pretoria were white. Nor did they in fact impose new burdens or disadvantages on the white inhabitants of Pretoria, who, as it happened in the circumstances were not a politically vulnerable minority, if that were relevant. Furthermore, looked at objectively, these measures could not be said to have impacted unfairly on them by reinforcing negative stereotypes or patterns of disadvantage associated with their skin color, nor did they affect their dignity or sense of self-worth. The fact that a complainant chooses to wear the cap of a victim of race discrimination does not mean that the cap fits. [] At the end of the day, the case was not really about money but about the rights and responsibilities of citizenship. The people of Atteridgeville and Mamelodi had in an earlier period used nonpayment for services as a weapon to secure full citizenship rights for themselves both at the national and local level. The coming into force of the Constitution after the elections of April , , might have ushered in for them a period of palpable enjoyment of citizenship rights at the national level. Yet, at the local level where their day-to-day lives had to be lived, such a sense of inclusion had still to be constructed. The meaningful reconstruction of Pretoria could not be done without the effective deconstruction of at least the most flagrant elements of difference that kept the city fragmented. This could not be achieved without acknowledging the reality of the lives that the people of Atteridgeville and Mamelodi led, the grossly inferior services they received, the lack of decent infrastructure and the sense of historically grounded distance from and hostility towards City Hall. [] A pristine council, functioning in a fresh way with daunting new responsibilities, limited resources, and an old bureaucracy, was faced with the need to reestablish the rule of law at the municipal level or, one should say, to establish the rule of law in a meaningful sense for the first time for all the inhabitants of Pretoria. In seeking to achieve acceptance by all inhabitants of the city of the entitlements and responsibilities that went with municipal citizenship, the council could have opted either for sending in the bailiffs accompanied by an appropriate number of police, or for negotiations. The first solution was not proceeded with, but instead the path of negotiations, so much part of our contemporary culture, was followed. The detailed decisions on law enforcement were all consequential upon that decision. To my mind, in considering the fairness of the process as a whole, it is formalistic and unreal to examine in detached isolation every single step that was taken along the way. The path of achieving a negotiated integration of the community into a new, united Pretoria was inevitably tortuous, and to scrutinize each decontextualized action with hindsight from an armchair point of view would be to set an unrealistically high standard. There is not an institution in the country, I venture to say, that has not encountered organizational problems in the period of transition. [] The council was faced with the heavy responsibility of converting an area that had long existed outside of the sphere of effective municipal government into

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one functioning as an integral part of our new constitutional state at the local level. I find it quite forced to say that the inherently difficult process of equalizing the basic conditions and setting in which municipal services were rendered and charged for, in any way impacted adversely on the white inhabitants of the city. On the contrary, it was manifestly in the interests of all the residents of Pretoria, black and white, to see a single civic community being established, and the council was entitled to take reasonable steps to achieve this result. [] Accordingly, and only to the extent that the judgment of Deputy President Langa finds that selective enforcement by the council of payment for services constituted unfair discrimination against the complainant, I respectfully record my dissent.

A Possible Remedy under Section () [] My rejection of the complainant’s argument that he was a victim of unfair discrimination in terms of section () does not, however, mean that I conclude that he could not have found any remedy at all under other provisions of section . Differential substantive treatment by the council of people living in such disparate circumstances might be eminently fair, whereas at the same time differential enforcement of laws once so adopted might be constitutionally offensive. This could be because even without becoming entangled in the patterns of advantage and disadvantage that lie at the heart of unfair discrimination as prohibited by section (), such differential enforcement could violate the element of impartiality that underlies the rule of law as protected by section (). In this connection I would like fully to endorse the sentiments implicit in the judgment of Deputy President Langa on the centrality of respect for the rule of law to the whole constitutional endeavor. [] Had the complainant’s objective been to seek the aid of the court in achieving equal and impartial enforcement of the law, and not, as it was in this case, to get its approval for equal and impartial nonenforcement of the law, different considerations could well have come into play. Put another way, if the complainant had sought to secure enforcement of the responsibilities of others rather than to achieve absolution from his own, the trial court would not have been obliged to focus on the artificial question of whether or not the complainant had ended up suffering unfair disadvantage because of his being white. Rather, it would have examined whether or not as a resident of Pretoria he was entitled to call upon the council to enforce its laws in an equal and impartial manner against all residents whatever their living circumstances or color. Stated more technically, had his contention been that selective enforcement of debt recovery was based on nonacceptable criteria of an arbitrary character which infringed his rights to equal protection and equality before the law, he could have sought a remedy based on a violation of section () of the Constitution. This subsection reads: “Every person shall have the right to equality before the law and to equal protection of the law.” In Prinsloo the majority judgment held that it appeared that “the right to ‘equality before the law’ [was] concerned more particularly with entitling ‘everybody, at the very least, to equal treatment by our courts of law.’” It stated that section ()

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made it “clear that no one [was] above or beneath the law and that all persons [were] subject to law impartially applied and administered.” The question then would have been the correct one of whether the law was being impartially applied and administered, not the inappropriate one of whether the complainant’s dignity had been attacked. [] It could well be that such a court, after having considered fuller and more appropriately focused evidence on the subject, might have come to the conclusion that the measures of differential enforcement were indeed consistent with the objectives of section (), or alternatively, that they were expressly authorized by section (), or alternatively, that they represented a breach of section () that could only be permitted if sanctioned in terms of section () of the Constitution by a law of general application that passed the tests of reasonableness and justifiability. If it should have ended up adopting conclusions adverse to the council, the court could have been given a chance to fashion appropriate remedies to ensure that any strategy pursued by the council would comply with its order in relation to method and timing. Thus, while not relieving the complainant of the need to meet his own obligations, such remedies could have ensured court supervision of the process compelling all other inhabitants to fulfill theirs. [] The result of my analysis is that if, in order to overcome patterns of disadvantage and create a united city, a council feels it necessary to apply the law differentially to residents in its area, it may do so, and may even be required to do so. Yet, in such a situation, it might well be obliged to develop a coherent and serious strategy which, looked at rationally and objectively, would be capable of advancing substantive equality and truly promoting the idea of a city of civic equals. Furthermore, it might be required to function in a manner that is open and above board in relation to all the persons likely to be affected, whether directly or indirectly, by any such a program. Law enforcement always permits a degree of discretion, which operates on a case by case basis. Yet, any form of systematic deviation from the principle of equal and impartial application of the law (as was the practice in the present case for a certain period), might well have to be expressed in a law of general application which would be justiciable according to the criteria of reasonableness and justifiability as set out in section . Since these are enquiries that belong to the case that should have been brought, and not to the one actually before us, I do not think it appropriate to pursue them to any definitive conclusion. [] Accordingly, although in one important respect I follow a different route to his, I arrive at the same conclusions as Deputy President Langa in terms of the behavior required by the Constitution of a local authority in a period of transition.

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

National Coalition for Gay and Lesbian Equality and Another v. Minister of Justice and Others  () SA  (CC) CASE SUMMARY

Facts The National Coalition for Gay and Lesbian Equality, a voluntary association of South African gay, lesbian, bisexual, and transgendered people and organizations, brought an application to the High Court challenging both common law and statutory proscriptions that criminalized private, consensual, anal sex between men. The Coalition argued that the law unfairly discriminated against gay men on the ground of sexual orientation.

Legal History The High Court declared the criminalization of consensual sodomy unconstitutional. Justice Heher concluded that the law discriminated on the basis of sexual orientation and was therefore presumptively unfair. The state could offer no compelling argument to justify the discrimination and thereby rebut the presumption of unconstitutionality. Issues Is the criminalization of consensual, anal sex between men constitutional?

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Decision of the Constitutional Court Justice Ackermann, for a unanimous court, held that the common law offence of sodomy unfairly discriminated against gay men on the ground of sexual orientation. He emphasized the serious impact that the law had on the dignity of homosexuals. It criminalized not only the act of anal sex but also the very status of being gay. The real and symbolic force of the law perpetuates the social marginalization and the economic disadvantage of gay people within South African society (paragraph ). The state could offer no other reason for the various offences remaining on the books than that they reinforce the moral views of a particular segment of society. That view of moral turpitude was insufficient to overcome section ()’s rebuttable presumption of unfairness (paragraph ). Justice Ackermann further held that punishing consensual anal sex also limited the rights to dignity and privacy. The infringement of the right to dignity flowed from the same reasons that rendered the discrimination unfair. As to privacy, Justice Ackermann held that sexual intimacy lay at the very core of the right to privacy and that consensual, nonharmful sexual activity was always protected. He also held that the limitations of dignity and privacy strengthened the conclusion that the discrimination was unfair. The court then discussed whether the serious limitations of equality, dignity, and privacy were justifiable under section . The primary reasons for the legal limitations were that various religions found homosexuality an abomination against God. While the court acknowledged that the Constitution respected the right of people to hold those views, Justice Ackermann held that those views did not and could not determine the meaning of other sections of the Constitution (paragraph ). Justice Sachs wrote a concurring judgment discussing the relationship between equality, dignity, and privacy. For Justice Sachs, dignity was the “leitmotif ” of the Bill of Rights and thereby linked rights to equality and privacy. He also stressed that dignity—as a right, value or ideal—could not be understood in the abstract. It secured its content from the lived realities of various denizens of this country. Finally, and perhaps most intriguingly, Justice Sachs developed the concept of equality as a “right to be different.” Order The court upheld the High Court’s declarations of invalidity, but ensured that the declaration did not apply to nonconsensual anal sex. The order also allowed people who had been convicted of sodomy to approach the courts to have their sentence overturned. Comment Given the conservative cast of some of the court’s sexuality related judgments, for example, Jordan, isn’t the decriminalization of consensual, anal sex between men

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surprising? How do you explain the outcome? How does the court use dignity to draw a line between homosexuality and prostitution? JUSTICE ACKERMANN

The Constitutional Validity of the Common-law Offence of Sodomy [] I shall for the moment deal only with sodomy that takes place in private between consenting males. The long history relating to the ways in which the South African criminal common law differentiated in its treatment of gays as opposed to its treatment of heterosexuals and lesbians, prior to the passing of the Interim Constitution, has already been dealt with in at least three judgments of the High Court. The conclusions can be briefly stated. The offence of sodomy, prior to the coming into force of the Interim Constitution, was defined as “unlawful and intentional sexual intercourse per anum between human males,” consent not depriving the act of unlawfulness, “and thus both parties commit the crime.” Neither anal nor oral sex in private between a consenting adult male and a consenting adult female was punishable by the criminal law. Nor was any sexual act, in private, between consenting adult females so punishable.

The Infringement of the Equality Guarantee [] In what follows I will proceed on the assumption that the equality jurisprudence and analysis developed by this court in relation to section  of the Interim Constitution is applicable equally to section  of the  Constitution, notwithstanding certain differences in the wording of these provisions. [] Neither section  of the Interim Constitution nor section  of the  Constitution envisages a passive or purely negative concept of equality; quite the contrary. In Brink v. Kitshoff NO [ () SA  (CC) ( () BCLR )], Justice O’Regan, with the concurrence of all the members of the court, stated: Section  was adopted then in the recognition that discrimination against people who are members of disfavored groups can lead to patterns of group disadvantage and harm. Such discrimination is unfair: it builds and entrenches inequality amongst different groups in our society. The drafters realized that it was necessary both to proscribe such forms of discrimination and to permit positive steps to redress the effects of such discrimination. The need to prohibit such patterns of discrimination and to remedy their results are the primary purposes of section  and, in particular, sections (), () and ().

[] In Prinsloo [v. Van der Linde and Another  () SA  (CC) ( () BCLR )] and in Harksen [v. Lane NO and Others  () SA  (CC) ( () BCLR )], a multistage enquiry was postulated as being necessary when an

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

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attack of constitutional invalidity was based on section  of the Interim Constitution. In Harksen the approach was summarized as follows: At the cost of repetition, it may be as well to tabulate the stages of enquiry which become necessary where an attack is made on a provision in reliance on section  of the Interim Constitution. They are: (a) Does the provision differentiate between people or categories of people? If so, does the differentiation bear a rational connection to a legitimate government purpose? If it does not then there is a violation of section (). Even if it does bear a rational connection, it might nevertheless amount to discrimination. (b) Does the differentiation amount to unfair discrimination? This requires a two-stage analysis: i) Firstly, does the differentiation amount to “discrimination”? If it is on a specified ground, then discrimination will have been established. If it is not on a specified ground, then whether or not there is discrimination will depend upon whether, objectively, the ground is based on attributes and characteristics which have the potential to impair the fundamental human dignity of persons as human beings or to affect them adversely in a comparably serious manner. ii) If the differentiation amounts to “discrimination,” does it amount to “unfair discrimination”? If it has been found to have been on a specified ground, then unfairness will be presumed. If on an unspecified ground, unfairness will have to be established by the complainant. The test of unfairness focuses primarily on the impact of the discrimination on the complainant and others in his or her situation. If, at the end of this stage of the enquiry, the differentiation is found not to be unfair, then there will be no violation of section (). (c) If the discrimination is found to be unfair then a determination will have to be made as to whether the provision can be justified under the limitations clause (section  of the Interim Constitution).

[] This does not mean, however, that in all cases the rational connection inquiry of stage (a) must inevitably precede stage (b). The stage (a) rational connection inquiry would be clearly unnecessary in a case in which a court holds that the discrimination is unfair and unjustifiable. I proceed with the enquiry as to whether the differentiation on the ground of sexual orientation constitutes unfair discrimination. Being a ground listed in section () it is presumed, in terms of section (), that the differentiation constitutes unfair discrimination “unless it is established that the discrimination is fair.” Although nobody in this case contended that the discrimination was fair, the court must still be satisfied, on a consideration of all the circumstances, that fairness has not been established.

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[] Although, in the final analysis, it is the impact of the discrimination on the complainant or the members of the affected group that is the determining factor regarding the unfairness of the discrimination, the approach to be adopted, as appears from the decision of this court in Harksen, is comprehensive and nuanced. In Harksen, after referring to the emphasis placed on the impact of the discrimination in his judgment in [President of the Republic of South Africa and Another v.] Hugo [ () SA  (CC) ( () BCLR )], Justice Goldstone went on to say: The nature of the unfairness contemplated by the provisions of section  was considered in paragraphs  and  of the majority judgment in the Hugo case. In paragraph  dignity was referred to as an underlying consideration in the determination of unfairness. The prohibition of unfair discrimination in the Constitution provides a bulwark against invasions which impair human dignity or which affect people adversely in a comparably serious manner. In order to determine whether the discriminatory provision has impacted on complainants unfairly, various factors must be considered. These would include: (a) the position of the complainants in society and whether they have suffered in the past from patterns of disadvantage, whether the discrimination in the case under consideration is on a specified ground or not; (b) the nature of the provision or power and the purpose sought to be achieved by it. If its purpose is manifestly not directed, in the first instance, at impairing the complainants in the manner indicated above, but is aimed at achieving a worthy and important societal goal, such as, for example, the furthering of equality for all, this purpose may, depending on the facts of the particular case, have a significant bearing on the question whether complainants have in fact suffered the impairment in question. In Hugo, for example, the purpose of the Presidential Act was to benefit three groups of prisoners, namely disabled prisoners, young people and mothers of young children, as an act of mercy. The fact that all these groups were regarded as being particularly vulnerable in our society, and that in the case of the disabled and the young mothers, they belonged to groups who had been victims of discrimination in the past, weighed with the Court in concluding that the discrimination was not unfair; (c) with due regard to (a) and (b) above, and any other relevant factors, the extent to which the discrimination has affected the rights or interests of complainants and whether it has led to an impairment of their fundamental human dignity or constitutes an impairment of a comparably serious nature. These factors, assessed objectively, will assist in giving “precision and elaboration” to the constitutional test of unfairness. They do not constitute a closed list. Others may emerge as our equality jurisprudence continues to develop. In any event, it is the cumulative effect of these factors that must

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be examined and in respect of which a determination must be made as to whether the discrimination is unfair.

The Impact of the Discrimination Resulting from the Criminalization of Sodomy on the Members of the Group(s) Affected [] In what follows I rely heavily on an influential article written by Prof. Edwin Cameron. According to The Shorter Oxford English Dictionary “orientation” means “(a) person’s (esp. political or psychological) attitude or adjustment in relation to circumstances, ideas, etc.; determination of one’s mental or emotional position.” As to “sexual orientation,” I adopt the following definition put forward by Cameron: [S]exual orientation is defined by reference to erotic attraction: in the case of heterosexuals, to members of the opposite sex; in the case of gays and lesbians, to members of the same sex. Potentially a homosexual or gay or lesbian person can therefore be anyone who is erotically attracted to members of his or her own sex.

[] The concept “sexual orientation” as used in section () of the  Constitution must be given a generous interpretation of which it is linguistically and textually fully capable of bearing. It applies equally to the orientation of persons who are bisexual or transsexual and it also applies to the orientation of persons who might on a single occasion only be erotically attracted to a member of their own sex. [] The desire for equality is not a hope for the elimination of all differences. “The experience of subordination—of personal subordination, above all—lies behind the vision of equality.” To understand “the other” one must try, as far as is humanly possible, to place oneself in the position of “the other.” It is easy to say that everyone who is just like “us” is entitled to equality. Everyone finds it more difficult to say that those who are “different” from us in some way should have the same equality rights that we enjoy. Yet so soon as we say any . . . group is less deserving and unworthy of equal protection and benefit of the law all minorities and all of . . . society are demeaned. It is so deceptively simple and so devastatingly injurious to say that those who are handicapped or of a different race, or religion, or color or sexual orientation are less worthy.

[] The discriminatory prohibitions on sex between men reinforces already existing societal prejudices and severely increases the negative effects of such prejudices on their lives. Even when these provisions are not enforced, they reduce gay men . . . to what one author has referred to as “unapprehended felons,” thus entrenching

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stigma and encouraging discrimination in employment and insurance and in judicial decisions about custody and other matters bearing on orientation.

The European Court of Human Rights has correctly, in my view, recognized the often serious psychological harm for gays which results from such discriminatory provisions [in Norris v. Republic of Ireland ()  EHRR ]: “[O]ne of the effects of criminal sanctions against homosexual acts is to reinforce the misapprehension and general prejudice of the public and increase the anxiety and guilt feelings of homosexuals leading, on occasions, to depression and the serious consequences which can follow.” So has the Supreme Court of Canada in Vriend v. Alberta: Perhaps most important is the psychological harm that may ensue from this state of affairs. Fear of discrimination will logically lead to concealment of true identity and this must be harmful to personal confidence and self-esteem. Compounding that effect is the implicit message conveyed by the exclusion, that gays and lesbians, unlike other individuals, are not worthy of protection. This is clearly an example of a distinction that demeans the individual and strengthens and perpetrates the view that gays and lesbians are less worthy of protection as individuals in Canada’s society. The potential harm to the dignity and perceived worth of gay and lesbian individuals constitutes a particularly cruel form of discrimination.

These observations were made in the context of discrimination on grounds of sexual orientation in the employment field and would apply with even greater force to the criminalization of consensual sodomy in private between adult males. [] But such provisions also impinge peripherally in other harmful ways on gay men who go beyond the immediate impact on their dignity and self-esteem. Their consequences “legitimate or encourage blackmail, police entrapment, violence (‘queerbashing’) and peripheral discrimination, such as refusal of facilities, accommodation and opportunities.” [] The impact of discrimination on gays and lesbians is rendered more serious and their vulnerability increased by the fact that they are a political minority not able on their own to use political power to secure favorable legislation for themselves. They are accordingly almost exclusively reliant on the Bill of Rights for their protection. [] I turn now to consider the impact that the common-law offence of sodomy has on gay men in the light of the approach developed by this court and referred to in paragraph  above: (a) The discrimination is on a specified ground. Gay men are a permanent minority in society and have suffered in the past from patterns of disadvantage. The impact is severe, affecting the dignity, personhood and

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identity of gay men at a deep level. It occurs at many levels and in many ways and is often difficult to eradicate. (b) The nature of the power and its purpose is to criminalize private conduct of consenting adults which causes no harm to anyone else. It has no other purpose than to criminalize conduct which fails to conform to the moral or religious views of a section of society. (c) The discrimination has, for the reasons already mentioned, gravely affected the rights and interests of gay men and deeply impaired their fundamental dignity. [] The above analysis confirms that the discrimination is unfair. There is nothing that can be placed in the other balance of the scale. The inevitable conclusion is that the discrimination in question is unfair and therefore in breach of section  of the  Constitution.

The Common-law Offence of Sodomy as an Infringement of the Rights to Dignity and Privacy [] Thus far I have considered only the common-law crime of sodomy on the basis of its inconsistency with the right to equality. This was the primary basis on which the case was argued. In my view, however, the common-law crime of sodomy also constitutes an infringement of the right to dignity, which is enshrined in section  of our Constitution. As we have emphasized on several occasions, the right to dignity is a cornerstone of our Constitution. Its importance is further emphasized by the role accorded to it in section  of the Constitution which provides that: “The rights in the Bill of Rights 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.” Dignity is a difficult concept to capture in precise terms. At its least, it is clear that the constitutional protection of dignity requires us to acknowledge the value and worth of all individuals as members of our society. The common-law prohibition on sodomy criminalizes all sexual intercourse per anum 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 that 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. The stigma thus attached to a significant proportion of our population is manifest. But the harm imposed by the criminal law is far more than symbolic. 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. Just as apartheid legislation rendered the lives of couples of different racial groups perpetually at risk, the sodomy offence builds insecurity and vulnerability into the daily lives of gay men. There can be no

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doubt that the existence of a law that punishes a form of sexual expression for gay men degrades and devalues gay men in our broader society. As such it is a palpable invasion of their dignity and a breach of section  of the Constitution. [] Counsel for the applicant argued, in the alternative, that the provisions were in breach of section  of the Constitution, the right to privacy. In so doing, however, the applicant adopted the reasoning of Cameron: [T]he privacy argument has detrimental effects on the search for a society which is truly nonstigmatizing as far as sexual orientation is concerned. On the one hand, the privacy argument suggests that discrimination against gays and lesbians is confined to prohibiting conduct between adults in the privacy of the bedroom. This is manifestly not so. On the other hand, the privacy argument may subtly reinforce the idea that homosexual intimacy is shameful or improper: that it is tolerable so long as it is confined to the bedroom—but that its implications cannot be countenanced outside. Privacy as a rationale for constitutional protection therefore goes insufficiently far, and has appreciable drawbacks even on its own terms.

[] It seems to me that these remarks should be understood in the context in which they were made. They were made during an inaugural lecture given on  October , at the time that negotiations concerning the new Constitution were imminent. At the time, there was considerable discussion as to what rights should or should not be included in a Bill of Rights, and the subject of the lecture was the question of how sexual orientation ought to be protected in the new Constitution. The author was asserting that sexual orientation should be treated as a ground for nondiscrimination in the new Constitution and that reliance on privacy alone would be inadequate. Cameron’s concern that discrimination against gay men ought not to be proscribed on the ground of the right to privacy only is understandable. I would emphasize that in this judgment I find the offence of sodomy to be unconstitutional because it breaches the rights of equality, dignity, and privacy. The present case illustrates how, in particular circumstances, the rights of equality and dignity are closely related, as are the rights of dignity and privacy. [] It does not seem to me that we should conclude from these remarks that, where our law places a blanket criminal ban on certain forms of sexual conduct, it does not result in a breach of privacy. That cannot, in my view, be the correct interpretation of those remarks. This court has considered the right to privacy entrenched in our Constitution on several occasions. In Bernstein and Others v. Bester and Others NNO [ () SA  (CC) ( () BCLR )], it was said that rights should not be construed absolutely or individualistically in ways that denied that all individuals are members of a broader community and are defined in significant ways by that membership:

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In the context of privacy this would mean that it is only the inner sanctum of a person, such as his/her family life, sexual preference and home environment, which is shielded from erosion by conflicting rights of the community. . . . Privacy is acknowledged in the truly personal realm, but as a person moves into communal relations and activities such as business and social interaction, the scope of personal space shrinks accordingly.

[] Privacy recognizes that we all have a right to a sphere of private intimacy and autonomy that allows us to establish and nurture human relationships without interference from the outside community. The way in which we give expression to our sexuality is at the core of this area of private intimacy. If, in expressing our sexuality, we act consensually and without harming one another, invasion of that precinct will be a breach of our privacy. Our society has a poor record of seeking to regulate the sexual expression of South Africans. In some cases, as in this one, the reason for the regulation was discriminatory; our law, for example, outlawed sexual relationships among people of different races. The fact that a law prohibiting forms of sexual conduct is discriminatory does not, however, prevent it at the same time being an improper invasion of the intimate sphere of human life to which protection is given by the Constitution in section . We should not deny the importance of a right to privacy in our new constitutional order, even while we acknowledge the importance of equality. In fact, emphasizing the breach of both these rights in the present case highlights just how egregious the invasion of the constitutional rights of gay persons has been. The offence that lies at the heart of the discrimination in this case constitutes at the same time and independently a breach of the rights of privacy and dignity which, without doubt, strengthens the conclusion that the discrimination is unfair. J USTIFICATION [] Although section () of the  Constitution differs in various respects from section  of the Interim Constitution its application still involves a process, described in S v. Makwanyane and Another as the “weighing up of competing values, and ultimately an assessment based on proportionality . . . which calls for the balancing of different interests.” [] In Makwanyane the relevant considerations in the balancing process were stated to include: [T]he nature of the right that is limited and its importance to an open and democratic society based on freedom and equality; the purpose for which the right is limited and the importance of that purpose to such a society; the extent of the limitation, its efficacy and, particularly where the limitation has to be necessary, whether the desired ends could reasonably be achieved through other means less damaging to the right in question.

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The relevant considerations in the balancing process are now expressly stated in section () of the  Constitution to include those itemized in paragraphs (a)–(e) thereof. In my view, this does not in any material respect alter the approach expounded in Makwanyane, save that paragraph (e) requires that account be taken in each limitation evaluation of “less restrictive means to achieve the purpose (of the limitation).” Although section () does not expressly mention the importance of the right, this is a factor that must of necessity be taken into account in any proportionality evaluation. [] The balancing of different interests must still take place. On the one hand there is the right infringed; its nature; its importance in an open and democratic society based on human dignity, equality, and freedom; and the nature and extent of the limitation. On the other hand there is the importance of the purpose of the limitation. In the balancing process and in the evaluation of proportionality one is enjoined to consider the relation between the limitation and its purpose as well as the existence of less restrictive means to achieve this purpose. [] The criminalization of sodomy in private between consenting males is a severe limitation of a gay man’s right to equality in relation to sexual orientation, because it hits at one of the ways in which gays give expression to their sexual orientation. It is at the same time a severe limitation of the gay man’s rights to privacy, dignity, and freedom. The harm caused by the provision can, and often does, affect his ability to achieve self-identification and self-fulfillment. The harm also radiates out into society generally and gives rise to a wide variety of other discriminations, which collectively unfairly prevent a fair distribution of social goods and services and the award of social opportunities for gays. [] Against this must be considered whether the limitation has any purpose and, if so, its importance. No valid purpose has been suggested. The enforcement of the private moral views of a section of the community, which are based to a large extent on nothing more than prejudice, cannot qualify as such a legitimate purpose. There is accordingly nothing, in the proportionality enquiry, to weigh against the extent of the limitation and its harmful impact on gays. It would therefore seem that there is no justification for the limitation. [] Before dealing with Mr. Davis’s remaining submissions, it is necessary to comment on the nature of substantive equality, a contested expression that is not found in either of our Constitutions. Particularly in a country such as South Africa, persons belonging to certain categories have suffered considerable unfair discrimination in the past. It is insufficient for the Constitution merely to ensure, through its Bill of Rights, that statutory provisions that have caused such unfair discrimination in the past are eliminated. Past unfair discrimination frequently has ongoing negative consequences, the continuation of which is not halted immediately when the initial causes thereof are eliminated, and unless remedied, may continue for a substantial time and even indefinitely. Like justice, equality delayed is equality denied.

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[] The need for such remedial or restitutionary measures has therefore been recognized in sections () and () of the Interim and  Constitutions respectively. One could refer to such equality as remedial or restitutionary equality. In addition, as was recognized in Hugo, treating people identically can sometimes result in inequality: We need, therefore, to develop a concept of unfair discrimination which recognizes that although a society which affords each human being equal treatment on the basis of equal worth and freedom is our goal, we cannot achieve that goal by insisting upon identical treatment in all circumstances before that goal is achieved. Each case, therefore, will require a careful and thorough understanding of the impact of the discriminatory action upon the particular people concerned to determine whether its overall impact is one which furthers the constitutional goal of equality or not. A classification which is unfair in one context may not necessarily be unfair in a different context.

It is in this latter way that we have encapsulated the notion of substantive as opposed to formal equality. [] Section  of the  Constitution, like its predecessor, clearly contemplates both substantive and remedial equality. Substantive equality is envisaged when section () unequivocally asserts that equality includes “the full and equal enjoyment of all rights and freedoms.” The state is further obliged “to promote the achievement of such equality” by “legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination,” which envisages remedial equality. This is not to suggest that principles underlying remedial equality do not operate elsewhere. This was clearly recognized in Harksen when, in dealing with the purpose of the provision or power as a factor to be considered in deciding whether the discriminatory provision has impacted unfairly on complainants, Justice Goldstone held: If its purpose is manifestly not directed, in the first instance, at impairing the complainants in the manner indicated above, but is aimed at achieving a worthy and important societal goal, such as, for example, the furthering of equality for all, this purpose may, depending on the facts of the particular case, have a significant bearing on the question whether complainants have in fact suffered the impairment in question. In Hugo, for example, the purpose of the Presidential Act was to benefit three groups of prisoners, namely disabled prisoners, young people and mothers of young children, as an act of mercy. The fact that all these groups were regarded as being particularly vulnerable in our society, and that in the case of the disabled and the young mothers, they belonged to groups who had been victims of discrimination in the past, weighed with the Court in concluding that the discrimination was not unfair.

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[] It is clear, moreover, that under section () of the Interim Constitution the inquiry would encompass both direct and indirect differentiation. This must necessarily follow from the reference in section () to “direct and indirect discrimination.” That was implicitly held in Harksen (where the court did not have to deal with indirect discrimination) and explicitly in Walker the latter being a case where indirect discrimination was present and where Deputy President Langa, on behalf of the court, held that the section () test was satisfied. [] The question that arises is whether, in declaring the common-law offence of sodomy to be constitutionally invalid, this court should do so only to the extent that the offence is inconsistent with the Constitution or whether this court has the power to declare the offence invalid in its entirety. The latter was the course adopted by Justice Heher, notwithstanding the fact that the applicants had in argument limited their claim to relief in relation to consensual acts committed in private. Section ()(a) of the  Constitution only permits a court having the competence to do so to declare a law that is inconsistent with the Constitution invalid “to the extent of its inconsistency.” Beyond that the court is not empowered to go. It is notionally possible to declare the offence of sodomy invalid to the extent that it relates to sexual relations per anum in private between consenting males who are over the age of consent and capable of giving such consent. That is, however, not necessarily the end of the inquiry. [] We have on occasion declared statutory provisions to be constitutionally invalid, despite the fact that this has involved a complicated formulation of the extent to which a provision was inconsistent with the Constitution. Yet notional partial inconsistency is not on its own sufficient to justify such a limited order of constitutional invalidity; the issue of severability has also to be addressed. In this regard Justice Kriegler, in Coetzee v. Government of the Republic of South Africa; Matiso and Others v. Commanding Officer, Port Elizabeth Prison, and Others [ () SA  (CC) ( () BCLR )], formulated the following test for the court: Although severability in the context of constitutional law may often require special treatment, in the present case the trite test can properly be applied: if the good is not dependent on the bad and can be separated from it, one gives effect to the good that remains after the separation if it still gives effect to the main objective of the statute. The test has two parts: first, is it possible to sever the invalid provisions and, second, if so, is what remains, giving effect to the purpose of the legislative scheme?

[] In the present case we are of course dealing with the constitutional inconsistency and invalidity of a common-law offence, but I can see no valid reason why the constitutional principles underlying the above approach should not, suitably adapted, also apply to the instant case where, on a direct application of the Bill of Rights, we have found the very core of the offence to be constitutionally invalid.

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There can be no doubt that the existence of the common-law offence was not dictated by the objective of punishing “male rape.” The sole reason for its existence was the perceived need to criminalize a particular form of gay sexual expression; motives and objectives which we have found to be flagrantly inconsistent with the Constitution. The fact that the ambit of the offence was extensive enough to include “male rape” was really coincidental. The core of the offence was to outlaw gay sexual expression of a particular kind.

The Constitutional Validity of Section A of the Sexual Offences Act,  [] For the sake of convenience, the provisions of section A of the Sexual Offences Act are again quoted: . A male person who commits with another male person at a party any act which is calculated to stimulate sexual passion or to give sexual gratification, shall be guilty of an offence. . For the purposes of sections () “a party” means any occasion where more than two persons are present. . The provisions of sections () do not derogate from the common law, any other provision of this act or a provision of any other law. [] The absurdly discriminatory purpose and impact of the provision can be demonstrated by numerous examples. One will suffice. A gay couple attends a social gathering attended by gay, lesbian, and heterosexual couples. The gay man, in the presence of the other guests, kisses his gay partner on the mouth in a way “calculated to stimulate” both his and his partner’s “sexual passion” and to give both “sexual gratification.” They do no more. A lesbian and a heterosexual couple do exactly the same. The gay couple is guilty of an offence. The lesbian and heterosexual couples not. Cameron has rightly commented on the absurdity and tragic-comic consequences of this enactment. [] There being no similar provision in relation to acts by women with women, or acts by men with women or by women with men, the discrimination is based on sexual orientation and therefore presumed to be unfair. The impact intended and caused by the provision is flagrant, intense, demeaning, and destructive of self-realization, sexual expression, and sexual orientation. Because of the infinite variety of acts it encompasses in its prohibition, the impact is broad and far-reaching. In relation to this provision, there is even less that can be said to counter the presumption of unfairness than in the case of sodomy. The section amounts to unfair discrimination and, for fundamentally the same reasons that were expressed above in relation to sodomy, the section cannot be justified under section () of the  Constitution. There is nothing before us to show that the provision was motivated by anything other than rank prejudice and had as its purpose the stamping out of these

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forms of gay erotic self-expression. In my view Justice Heher correctly held that the provisions of section A of the Sexual Offences Act are inconsistent with section  of the Constitution and invalid.

The Constitutional Validity of Including the Offence of Sodomy in Schedule  of the CPA and in the Schedule to the Security Officers Act [] Once it is found that the offence of sodomy is inconsistent with the Constitution, its inclusion in the above Schedules must necessarily also be constitutionally inconsistent. I would accordingly confirm paragraphs  and  of the High Court’s order declaring that the inclusion of sodomy is inconsistent with the Constitution of the Republic of South Africa Act  of  and invalid. [] In this judgment the conclusion has already been reached that this offence should be declared constitutionally invalid in its entirety. This conclusion has been reached by a direct application of the Bill of Rights to a common-law criminal offence, not by a process of developing the common law. [] We reached this conclusion, despite the fact that the constitutional invalidity of the common-law offence of sodomy was not itself directly before us, because it was an indispensable and unavoidable step in concluding that the inclusion of this offence in the various statutory schedules was constitutionally invalid. It was therefore a constitutional matter that the court was compelled to decide in terms of section () of the  Constitution. The court is obliged by section ()(a) in the light of this finding to make an order of invalidity. Section ()(b) then empowers the court to make any order that is “just and equitable.” It is in any event impossible to make an order under section ()(b) of the Constitution which is just and equitable in relation to the invalidity of the inclusion of the offence in the statutory schedules, without at the same time making such an order in relation to the constitutional invalidity of the offence itself. In order for this court to discharge its duty properly under section ()(b) in the former case, it is obliged to do so in the latter case as well. There are public interest concerns involved in this regard that go beyond the interests of the parties in the present case. The parties can in any event suffer no prejudice. It is clear that, at the time, they were under a misapprehension as to what their concessions in relation to the order meant and also as to the effect of the order made by Justice Heher. All the parties requested the court, in relation to the constitutional invalidity of the offence itself, to exercise its powers under section ()(b). In my view, we are constitutionally obliged to do so in the present case. [] The criterion for the order which a court is competent to make under section ()(b) of the  Constitution pursuant to a declaration of constitutional invalidity is that it must be “just and equitable.” The criterion under section () of the Interim Constitution was “the interests of justice and good government.” There has as yet been no comprehensive judgment of this Court on the meaning of “just and equitable” in section ()(b) of the  Constitution, although it has been

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alluded to in S v. Ntsele and De Lange v. Smuts NO and Others. Nor is it necessary to attempt such a comprehensive task in the present case. [] In the Ntsele case, Justice Kriegler, dealing with the  Constitution, stated that the principal features that have to be considered when contemplating the possibility of a retrospective order had been crisply summarized in the following passage from Justice O’Regan’s judgment in S v. Bhulwana; S v. Gwadiso: Central to a consideration of the interests of justice in a particular case is that successful litigants should obtain the relief they seek. It is only when the interests of good government outweigh the interests of the individual litigants that the court will not grant relief to successful litigants. In principle, too, the litigants before the court should not be singled out for the grant of relief, but relief should be afforded to all people who are in the same situation as the litigants (see US v. Johnson  US  (); Teague v. Lane  US  ()). On the other hand, as we stated in S v. Zuma (at para []), we should be circumspect in exercising our powers under section ()(a) so as to avoid unnecessary dislocation and uncertainty in the criminal justice process. As Justice Harlan stated in Mackey v. US  US  () at : “No one, not criminal defendants, not the judicial system, not society as a whole is benefited by a judgment providing a man shall tentatively go to jail today, but tomorrow and every day thereafter his continued incarceration shall be subject to fresh litigation on issues already resolved.” As a general principle, therefore, an order of invalidity should have no effect on cases which have been finalized prior to the date of the order of invalidity.

[] The interests of good government will always be an important consideration in deciding whether a proposed order under the  Constitution is “just and equitable,” for justice and equity must also be evaluated from the perspective of the State and the broad interests of society generally. As in the Ntsele case, it might ultimately be decisive as to what is just and equitable. At the same time the test under the  Constitution is a broader and more flexible one, where the concept of the interests of good government is but one of many possible factors to consider. [] The present is the first case in which this court has had to consider the retrospectivity of an order declaring a statutory or common-law criminal offence to be constitutionally invalid. The issues involved differ materially from those in cases where reverse onus provisions have suffered this fate. In the latter cases an unqualified retrospective operation of the invalidating provisions could cause severe dislocation to the administration of justice and also be unfair to the prosecution who had relied in good faith on such evidentiary provisions. In addition, the likely result of such an unqualified order would be numerous appeals with the possibility of proceedings having to be brought afresh. In each case the issue would arise as to whether the accused in question would have been convicted, or could be convicted in the absence

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of reliance on the particular reverse onus provision. In hearings afresh, the necessary evidence to secure a conviction in the absence of the evidentiary provision in question might no longer be available. [] In the present case the situation is different. From the perspective of adult gay men who have been convicted of sodomy where this occurred consensually and in private (to which I shall for convenience refer as “consensual sodomy”), it seems manifestly and grossly unjust and inequitable that such convictions should not be capable of being set aside. People have been convicted of an offence that ceased to exist when the  Constitution came into effect. In fact, because of the principle of objective constitutional invalidity, the offence ceased to exist when the Interim Constitution came into force on April , , because there is no doubt that this court, for all the reasons set forth in this judgment, would have declared the common-law offence of sodomy to be inconsistent with at least the provisions of section  of the Interim Constitution, had a constitutional challenge been brought under it. Competent courts have wide powers under section ()(b) to make orders that are “just and equitable.” The chance fact that a constitutional challenge against the offence of sodomy was not brought under the Interim Constitution should not deter us, in the particular circumstances of this case, from giving full retrospective effect, to April , , to an order that justice and equity clearly require. [] An unqualified retrospective order could easily have undesirable consequences. Persons might act directly under the order to have convictions set aside without adequate judicial supervision or institute claims for damages. The least disruptive way of giving relief to persons in respect of past convictions for consensual sodomy is through the established court structures. On the strength of the order of constitutional invalidity such persons could note an appeal against their convictions for consensual sodomy, where the period for noting such appeal has not yet expired or, where it has, could bring an application for condonation of the late noting of an appeal or the late application for leave to appeal to a court of competent jurisdiction. In this way effective judicial control can be exercised. Although this might result in cases having to be reopened, it will in all probability not cause dislocation of the administration of justice of any moment. [] We should, however, limit the retrospective effect of the order declaring the offence of sodomy to be constitutionally invalid to cases of consensual sodomy. In respect of all other cases of sodomy, the order should be limited to one that takes effect from the date of this judgment. This is essential, in my view, to prevent persons convicted of sodomy which amount to “male rape” from having their past convictions set aside. To permit this would be neither just nor equitable. In the absence of such a limitation confusion might arise, upon a conviction being set aside in such cases, as to whether a conviction of indecent assault or assault with intent to do grievous bodily harm, could validly be substituted. [] The effect of section () and () and section ()(c) of the Special Pensions Act  of  has been summarized in paragraph (ix) and (x) above. They relate

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to monetary claims against the state arising directly from the operation of the statute in question and there are no grounds of justice or equity justifying any limitation on the retrospective operation of the order. No reason has been suggested why the state should not discharge its full obligations under the Special Pensions Act on the basis that the provisions relating to the offence of sodomy became constitutionally invalid as from the date on which the Interim Constitution came into operation, at least in respect of consensual sodomy in private between adult males. It is not just or equitable, however, if such retrospectivity were to give rise to any cause of action against any individual who applied the provisions relating to sodomy in these sections of the act in good faith before the date of this order. Consequently it would also be prudent to confer discretion on a court of competent jurisdiction.

The Order Declaring the Inclusion of Sodomy as an Item in the Schedule to the Security Officers Act to Be Constitutionally Invalid [] The effect of including the offence of sodomy in this schedule has been considered in paragraph  above. It prohibits a person convicted of sodomy from registering as a security officer, or exposes him to having such registration withdrawn, and such conviction may lead to a finding of improper conduct for purposes of the Act. Justice and equity would seem to require an order having full retrospective effect, at least in respect of consensual sodomy in private between adult males. There is little or any likelihood of disruption. Its consequence would merely be to correct the registration of persons convicted and the setting aside of any findings of improper conduct based on the conviction for such offence. At the same time, however, it would not be just or equitable if such retrospective operation gave rise to any cause of action against any individual who applied the provisions relating to sodomy in these sections of the act in good faith before the date of this order and here, too, it would be prudent to confer a discretion on a court of competent jurisdiction. JUSTICE SACHS [] [. . .] I will present my remarks—in a preliminary manner as befits their sweep and complexity in the context of responding to three issues that emerged in the course of argument. The first concerns the relationship between equality and privacy, the second the connection between equality and dignity, and the third the question of the meaning of the right to be different in the open and democratic society contemplated by the Constitution.

Equality and Privacy [] It is important to start the analysis by asking what is really being punished by the antisodomy laws. Is it an act, or is it a person? Outside of regulatory control, conduct that deviates from some publicly established norm is usually only punishable when it is violent, dishonest, treacherous, or in some other way disturbing of the

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public peace or provocative of injury. In the case of male homosexuality, however, the perceived deviance is punished simply because it is deviant. It is repressed for its perceived symbolism rather than because of its proven harm. If proof were necessary, it is established by the fact that consensual anal penetration of a female is not criminalized. Thus, it is not the act of sodomy that is denounced by the law, but the socalled sodomite who performs it; not any proven social damage, but the threat that same-sex passion in itself is seen as representing to heterosexual hegemony. [] The effect is that all homosexual desire is tainted, and the whole gay and lesbian community is marked with deviance and perversity. When everything associated with homosexuality is treated as bent, queer, repugnant or comical, the equality interest is directly engaged. People are subject to extensive prejudice because of what they are or what they are perceived to be, not because of what they do. The result is that a significant group of the population is, because of its sexual nonconformity, persecuted, marginalized and turned in on itself. I have no doubt that when the drafters of the Bill of Rights decided expressly to include sexual orientation in their list of grounds of discrimination that were presumptively unfair, they had precisely these considerations in mind. There could be few stronger cases than the present for invoking the protective concern and regard offered by the Constitution. [] Against this background it is understandable that the applicants should urge this court to base its invalidation of the antisodomy laws on the ground that they violated the equality provisions in the Bill of Rights. Less acceptable, however, is the manner in which applicants treated the right to privacy, presenting it in their written argument as a poor second prize to be offered and received only in the event of the court declining to invalidate the laws because of a breach of equality. Their argument may be summarized as follows: privacy analysis is inadequate because it suggests that homosexuality is shameful and therefore should only be protected if it is limited to the private bedroom; it tends to limit the promotion of gay rights to the decriminalization of consensual adult sex, instead of contemplating a more comprehensive normative framework that addresses discrimination generally against gays; and it assumes a dual structure—public and private—that does not capture the complexity of lived life, in which public and private lives determine each other, with the mobile lines between them being constantly amenable to repressive definition. [] These concerns are undoubtedly valid. Yet, I consider that they arise from a set of assumptions that are flawed as to how equality and privacy rights interrelate and about the manner in which privacy rights should truly be understood; in the first place, the approach adopted by the applicants subjects equality and privacy rights to inappropriate sequential ordering, while, secondly, it undervalues the scope and significance of privacy rights. The cumulative result is both to weaken rather than strengthen applicants’ quest for human rights, and to put the general development of human rights jurisprudence on a false track. [] There is no good reason why the concept of privacy should, as was suggested, be restricted simply to sealing off from State control what happens in the

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bedroom, with the doleful subtext that you may behave as bizarrely or shamefully as you like, on the understanding that you do so in private. It has become a judicial cliché to say that privacy protects people, not places. Justice Blackmun in Bowers, Attorney General of Georgia v. Hardwick et al. [ US  ()] made it clear that the much-quoted “right to be left alone” should be seen not simply as a negative right to occupy a private space free from government intrusion, but as a right to get on with your life, express your personality and make fundamental decisions about your intimate relationships without penalization. Just as “liberty must be viewed not merely ‘negatively or selfishly as a mere absence of restraint, but positively and socially as an adjustment of restraints to the end of freedom of opportunity’”, so must privacy be regarded as suggesting at least some responsibility on the State to promote conditions in which personal self-realization can take place. [] The emerging jurisprudence of this court is fully consistent with such an affirmative approach. In Bernstein and Others v. Bester and Others NNO [ () SA  (CC) ( () BCLR )] Justice Ackermann pointed out that the scope of privacy had been closely related to the concept of identity and that rights, like the right to privacy, are not based on a notion of the unencumbered self, but on the notion of what is necessary to have one’s autonomous identity. . . . In the context of privacy this would mean that it is . . . the inner sanctum of a person, such as his/her family life, sexual preference and home environment, which is shielded from erosion by conflicting rights of the community.

Viewed this way autonomy must mean far more than the right to occupy an envelope of space in which a socially detached individual can act freely from interference by the State. What is crucial is the nature of the activity, not its site. While recognizing 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. The expression of sexuality requires a partner, real or imagined. It is not for the state to choose or to arrange the choice of partner, but for the partners to choose themselves. [] At the same time, there is no reason why the concept of privacy should be extended to give blanket libertarian permission for people to do anything they like provided that what they do is sexual and done in private. In this respect, the assumptions about privacy rights are too broad. There are very few democratic societies, if any, which do not penalize persons for engaging in inter-generational, intra-familial, and cross-species sex, whether in public or in private. Similarly, in democratic societies sex involving violence, deception, voyeurism, intrusion or harassment is punishable (if not always punished), or else actionable, wherever it takes place (there is controversy about prostitution and sado-masochistic and dangerous fetishistic sex). The privacy interest is overcome because of the perceived harm.

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[] The choice is accordingly not an all-or-nothing one between maintaining a Spartan normality, at the one extreme, or entering what has been called the postmodern supermarket of satisfactions, at the other. Respect for personal privacy does not require disrespect for social standards. The law may continue to proscribe what is acceptable and what is unacceptable even in relation to sexual expression and even in the sanctum of the home, and may, within justifiable limits, penalize what is harmful and regulate what is offensive. What is crucial for present purposes is that whatever limits are established they do not offend the Constitution.

Equality and Dignity [] It will be noted that the motif which links and unites equality and privacy, and which, indeed, runs right through the protections offered by the Bill of Rights, is dignity. This court has on a number of occasions emphasized the centrality of the concept of dignity and self-worth to the idea of equality. In an interesting argument, the Centre for Applied Legal Studies (the Centre) has mounted a frontal challenge to this approach, arguing that the equality clause is intended to advance equality, not dignity, and that the dignity provisions in the Bill of Rights should take care of protecting dignity. This was part of an invitation to the court to revisit its whole approach to equality jurisprudence, shifting from what the Centre called the defensive posture of reliance on unlawful discrimination under section () to what it claimed to be an affirmative position of promoting equality under the broad provisions of section (). The constitutional vocation of section (), it argued, had been reduced from that of the guarantor of substantive equality to that of a gatekeeper for claims of violation of dignity. [] Justice Ackermann has, I believe, dealt convincingly with the assertion that the court has failed to promote substantive as opposed to formal equality. Indeed, his judgment is itself a good example of a refusal to follow a formal equality test, which could have based invalidity simply on the different treatment accorded by the law to anal intercourse according to whether the partner was male or female. Instead, the judgment has with appropriate sensitivity for the way anti-gay prejudice has impinged on the dignity of members of the gay community, focused on the manner in which the anti-sodomy laws have reinforced systemic disadvantage both of a practical and a spiritual nature. Furthermore, it has done so not by adopting the viewpoint of the so-called reasonable lawmaker who accepts as objective all the prejudices of heterosexual society as incorporated into the laws in question, but by responding to the request of the applicants to look at the matter from the perspective of those whose lives and sense of self-worth are affected by the measures. 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 section (), (), and (), which contain respect for human dignity at their core. [] The textual pointers against the Centre’s argument to the effect that section

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() should be interpreted so as to carry virtually the whole burden of securing equality, have been crisply identified in Justice Ackermann’s judgment. There are, I believe, additional considerations supporting a structured focus on nondiscrimination as the heart of implementable equality guarantees: institutional aptness, functional effectiveness, technical discipline, historical congruency, compatibility with international practice, and conceptual sensitivity. [] By developing its equality jurisprudence around the concept of unfair discrimination this Court engages in a structured discourse centered on respect for human rights and nondiscrimination. It reduces the danger of over-intrusive judicial intervention in matters of broad social policy, while emphasizing the court’s special responsibility for protecting fundamental rights in an affirmative manner. It also diminishes the possibility of the court being inundated by unmeritorious claims, and best enables the court to focus on its special vocation, to use the techniques for which it has a special aptitude, and to defend the interests for which it has a particular responsibility. Finally, it places the court’s jurisprudence in the context of evolving human rights concepts throughout the world, and of our country’s own special history. [] Contrary to the Centre’s argument, the violation of dignity and self-worth under the equality provisions can be distinguished from a violation of dignity under section  of the Bill of Rights. The former is based on the impact that the measure has on a person because of membership of a historically vulnerable group that is identified and subjected to disadvantage by virtue of certain closely held personal characteristics of its members; it is the inequality of treatment that leads to and is proved by the indignity. The violation of dignity under section , on the other hand, contemplates a much wider range of situations. It offers protection to persons in their multiple identities and capacities. This could be to individuals being disrespectfully treated, such as somebody being stopped at a roadblock. It also could be to members of groups subject to systemic disadvantage, such as farm workers in certain areas, or prisoners in certain prisons, such groups not being identified because of closely held characteristics, but because of the situation they find themselves in. These would be cases of indignity of treatment leading to inequality, rather than of inequality relating to closely held group characteristics producing indignity. [] Once again, it is my view that the equality principle and the dignity principle should not be seen as competitive but rather as complementary. Inequality is established not simply through group-based differentia treatment, but through differentiation that perpetuates disadvantage and leads to the scarring of the sense of dignity and self-worth associated with membership of the group. Conversely, an invasion of dignity is more easily established when there is an inequality of power and status between the violator and the victim. [] One of the great gains achieved by following a situation-sensitive human rights approach is that analysis focuses not on abstract categories, but on the lives as lived and the injuries as experienced by different groups in our society. The manner in which discrimination is experienced on grounds of race or sex or religion or

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disability varies considerably—there is difference in difference. The commonality that unites them all is the injury to dignity imposed upon people as a consequence of their belonging to certain groups. Dignity in the context of equality has to be understood in this light. The focus on dignity results in emphasis being placed simultaneously on context, impact and the point of view of the affected persons. Such focus is in fact the guarantor of substantive as opposed to formal equality. [] As Justice Marshall reminds us [in City of Cleburn Text. v. Cleburn Living Center  US  ()]: [T]he lessons of history and experience are surely the best guide as to when, and with respect to what interests, society is likely to stigmatize individuals as members of an inferior caste or view them as not belonging to the community. Because prejudice spawns prejudice, and stereotypes produce limitations that confirm the stereotype on which they are based, a history of unequal treatment requires sensitivity to the prospect that its vestiges endure . . . as in many important legal distinctions, “a page of history is worth a volume of logic.”

In the case of gays, history and experience teach us that the scarring comes not from poverty or powerlessness, but from invisibility. It is the tainting of desire, it is the attribution of perversity and shame to spontaneous bodily affection, it is the prohibition of the expression of love, it is the denial of full moral citizenship in society because you are what you are, that impinges on the dignity and self-worth of a group. [] This special vulnerability of gays and lesbians as a minority group whose behavior deviates from the official norm is well brought out by Cameron in the germinal article to which my learned colleague refers. Gays constitute a distinct though invisible section of the community that has been treated not only with disrespect or condescension but with disapproval and revulsion; they are not generally obvious as a group, pressurized by society and the law to remain invisible; their identifying characteristic combines all the anxieties produced by sexuality with all the alienating effects resulting from difference; and they are seen as especially contagious or prone to corrupting others. None of these factors applies to other groups traditionally subject to discrimination, such as people of color or women, each of whom, of course, have had to suffer their own specific forms of oppression. In my view, the learned author is quite correct when he concludes that precisely because neither power nor specific resource allocation are at issue, sexual orientation becomes a moral focus in our constitutional order. For this same reason, the question of dignity is in this context central to the question of equality. [] At the heart of equality jurisprudence is the rescuing of people from a caste-like status and putting an end to their being treated as lesser human beings because they belong to a particular group. The indignity and subordinate status may flow from institutionally imposed exclusion from the mainstream of society or else from powerlessness within the mainstream; they may also be derived from the

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location of difference as a problematic form of deviance in the disadvantaged group itself, as happens in the case of the disabled. In the case of gays it comes from compulsion to deny a closely held personal characteristic. To penalize people for being what they are is profoundly disrespectful of the human personality and violatory of equality. This aspect would not be well captured, if at all, by the Centre’s approach, which falls to be rejected. [] Yet, in my view the implications of this judgment extend well beyond the gay and lesbian community. It is no exaggeration to say that the success of the whole constitutional endeavor in South Africa will depend in large measure on how successfully sameness and difference are reconciled, an issue central to the present matter. [] The present case shows well that equality should not be confused with uniformity; in fact, uniformity can be the enemy of equality. Equality means equal concern and respect across difference. It does not presuppose the elimination or suppression of difference. Respect for human rights requires the affirmation of self, not the denial of self. Equality therefore does not imply a leveling or homogenization of behavior but an acknowledgment and acceptance of difference. At the very least, it affirms that difference should not be the basis for exclusion, marginalization, stigma, and punishment. At best, it celebrates the vitality that difference brings to any society. [] The invalidation of antisodomy laws will mark an important moment in the maturing of an open democracy based on dignity, freedom and equality. As I have said, our future as a nation depends in large measure on how we manage difference. In the past difference has been experienced as a curse, today it can be seen as a source of interactive vitality. The Constitution acknowledges the variability of human beings (genetic and socio-cultural), affirms the right to be different, and celebrates the diversity of the nation. [] A state that recognizes difference does not mean a state without morality or one without a point of view. It does not banish concepts of right and wrong, nor envisage a world without good and evil. It is impartial in its dealings with people and groups, but is not neutral in its value system. The Constitution certainly does not debar the state from enforcing morality. Indeed, the Bill of Rights is nothing if not a document founded on deep political morality. What is central to the character and functioning of the state, however, is that the dictates of the morality which it enforces, and the limits to which it may go, are to be found in the text and spirit of the Constitution itself. [] The fact that the state may not impose orthodoxies of belief systems on the whole of society has two consequences. The first is that gays and lesbians cannot be forced to conform to heterosexual norms; they can now break out of their invisibility and live as full and free citizens of South Africa. The second is that those persons who for reasons of religious or other belief disagree with or condemn homosexual conduct are free to hold and articulate such beliefs. Yet, while the Constitution protects the right of people to continue with such beliefs, it does not allow the state to

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turn these beliefs—even in moderate or gentle versions—into dogma imposed on the whole of society. [] In my view, the decision of this court should be seen as part of a growing acceptance of difference in an increasingly open and pluralistic South Africa. It leads me to hope that the emancipatory effects of the elimination of institutionalized prejudice against gays and lesbians will encourage amongst the heterosexual population a greater sensitivity to the variability of the human kind. Having made these observations, I express my full concurrence in Justice Ackermann’s judgment and order.

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August

August and Another v. Electoral Commission and Others  () SA  (CC) CASE SUMMARY

Facts Neither the Final Constitution nor the  Electoral Act disenfranchised prisoners. However, the  Electoral Act disqualified persons from voting on four grounds. In particular, it denied the exercise of the franchise to persons who were “detained in a prison after being convicted and sentenced without the option of a fine in respect of . . . [m]urder, robbery with aggravating circumstances and rape; or (ii) any attempt to commit [such an] offence.” Given that universal adult suffrage is a fundamental value in terms of section  of the Constitution and that section  guarantees every adult citizen the right to vote in elections for a legislative body, the applicants approached the Electoral Commission to ensure that they would be able to register and to vote while in prison. The commission promised that it enables prisoners to vote—but only if a court ordered them to do so. The applicants were, therefore, obliged to take the matter to the High Court.

Legal History The applicants applied to the Transvaal Provincial Division of the High Court for an order that would require the Electoral Commission to create a system that would enable prisoners to register and to vote. The High Court dismissed the application

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on the grounds that the significant financial, logistical, and administrative difficulties associated with the management of such a process could not be overcome by the Electoral Commission. The Constitutional Court granted leave to appeal.

Issues Given the legislative silence on this matter, read against the constitutional commitment to a universal franchise, the crisp issue before the Constitutional Court was whether the Electoral Commission’s failure to ensure that sentenced and awaiting trial prisoners could register and vote was an infringement of their rights to dignity, to equality, and to vote. Decision of the Constitutional Court The Constitutional Court held that the Electoral Commission’s failure to make arrangements so that sentenced and awaiting trial prisoners could register and vote was a breach of the commission’s obligation to take reasonable steps to enable prisoners to vote. Justice Sachs, writing for the court, connected the franchise and the right to dignity in the following manner: “The vote of each and every citizen is a badge of dignity and of personhood. Quite literally, it says that everybody counts. In a country of great disparities of wealth and power, it declares that whoever we are, whether rich or poor, exalted or disgraced, we all belong to the same democratic South African nation; that our destinies are intertwined in a single . . . polity” (paragraph ). The Constitutional Court was not satisfied that the alleged logistical, administrative, and financial difficulties faced by the Electoral Commission were insurmountable. Moreover, since the Electoral Commission could not rely upon any extant law of general application that sought to limit the right of prisoners to vote, the Electoral Commission could not attempt to justify its omission in terms of section  of the Constitution—the limitations clause. Order The court ordered that all persons, who were imprisoned during the registration period for the  general elections and who were not otherwise excluded from voting in terms of the Electoral Act, were entitled to register on the national common voter’s roll. Furthermore the court found that all registered prisoners imprisoned on the date of the  general elections must be allowed to vote. Of particular interest in this matter is the structural injunction that forms part of the court’s order: “[The] commission is required to furnish an affidavit [to the Constitutional Court] setting out the manner in which the order will be complied with . . . In the light of the urgency of the matter, and the timetable for the election set out by the commission, a period of two weeks has been afforded to the commission for the preparation of this affidavit” (paragraph ; emphasis added).

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Comment Why shouldn’t prisoners be disenfranchised? If dignity lies at the core of our constitutional state, then why should a member of our community be granted the privileges of membership—the dignity—he so readily denied to others? What does the court’s refusal to take that “eye for an eye” approach tell you about their understanding of dignity? JUSTICE SACHS [] Universal adult suffrage on a common voters’ roll is one of the foundational values of our entire constitutional order. The achievement of the franchise has historically been important both for the acquisition of the rights of full and effective citizenship by all South Africans regardless of race, and for the accomplishment of an all-embracing nationhood. The universality of the franchise is important not only for nationhood and democracy. The vote of each and every citizen is a badge of dignity and of personhood. Quite literally, it says that everybody counts. In a country of great disparities of wealth and power it declares that whoever we are, whether rich or poor, exalted or disgraced, we all belong to the same democratic South African nation; that our destinies are intertwined in a single interactive polity. Rights may not be limited without justification and legislation dealing with the franchise must be interpreted in favor of enfranchisement rather than disenfranchisement. [] It is a well-established principle of our common law, predating the era of constitutionalism, that prisoners are entitled to all their personal rights and personal dignity not temporarily taken away by law, or necessarily inconsistent with the circumstances in which they have been placed. Of course, the inroads that incarceration necessarily makes upon prisoners’ personal rights and liberties are very considerable. They no longer have freedom of movement and have no choice regarding the place of their imprisonment. Their contact with the outside world is limited and regulated. They must submit to the discipline of prison life and to the rules and regulations that prescribe how they must conduct themselves and how they are to be treated while in prison. Nevertheless, there is a substantial residue of basic rights, which they may not be denied; and, if they are denied them, then they are entitled to legal redress. In Minister of Justice v. Hofmeyr [ () SA  (A)] Acting Justice Hoexter emphasized the need to negate the parsimonious and misconceived notion that upon his admission to gaol a prisoner is stripped, as it were, of all his personal rights; and that thereafter, and for so long as his detention lasts, he is able to assert only those rights for which specific provision may be found in the legislation relating to prisons, whether in the form of statutes or regulations. . . . [T]he extent and

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content of a prisoner’s rights are to be determined by reference not only to the relevant legislation but also by reference to his inviolable common-law rights.

[] These words were written before South Africa became a constitutional democracy. Now the common-law rights have been reinforced and entrenched by the Constitution. It is in this context that the powers and responsibilities of the commission under the  Electoral Act and the Commission Act must be interpreted, and the question should be answered as to whether prisoners’ constitutional rights to vote will be infringed if no appropriate arrangements are made to enable them to register and vote. [] The suggestion that prisoners otherwise eligible should be disqualified from enjoying their rights not by statute, but by the mere fact of their incarceration, was considered and firmly rejected by the US Supreme Court in the case of O’Brien v. Skinner [ US  ()]. Speaking for the court, Chief Justice Burger stated that the appellant prisoners were “not disabled from voting except by reason of not being able physically—in the very literal sense—to go to the polls on election day or to make the appropriate registration in advance by mail.” He held that their voting rights were being infringed, although “under no legal disability impeding their legal right to register or to vote; they are simply not allowed to use the absentee ballot and are denied any alternative means of casting their vote although they are legally qualified to vote.” [] Justice Marshall was even more emphatic in his concurring judgment. He said: [N]or can it be contended that denial of absentee ballots to [prisoners] does not deprive them of their right to vote any more than it deprives others who may “similarly” find it “impracticable” to get to the polls on election day . . .; here, it is the State which is both physically preventing [the prisoners] from going to the polls and denying them alternative means of casting their ballots. Denial of absentee registration and absentee ballots is effectively an absolute denial of the franchise to these [prisoners]. (My emphasis.)

These views are directly applicable in the present case. In reality no provision has been made either in the  Electoral Act or in the Commission Act or in the regulations of the commission to enable the prisoners to exercise their constitutional right to register and vote. Nor has the commission made any arrangements to enable them to register and vote. The commission accordingly has not complied with its obligation to take reasonable steps to create the opportunity to enable eligible prisoners to register and vote. The consequence has been a system of registration and voting which would effectively disenfranchise all prisoners without constitutional or statutory authority unless some action is taken to prevent that. The applicants have accordingly established a threatened breach of section  of the Constitution.

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[] In the absence of a disqualifying legislative provision, it was not possible for respondents to seek to justify the threatened infringement of prisoners’ rights in terms of section  of the Constitution as there was no law of general application upon which they could rely to do so.

Ordinarily Resident [] It is necessary now to turn to the proper interpretation of the phrase “ordinarily resident,” which occupied so much attention during the proceedings. As noted above, the second respondent in his answering affidavit identified the difficulties the commission had faced in applying this phrase. In his judgment Justice Els held that: “ordinary residence” means a commonplace abode where a person, under normal circumstances of life, lives or conducts his or her affairs. It is argued on behalf of the applicant that ordinary residence should be interpreted as the prison, where the prisoners are incarcerated. With this argument I cannot agree.

The phrase “ordinarily resident” is not, however, a term of art. It is well established in our law that the word “residence” must be interpreted in its context. Its meaning depends on the context in which it is used and the purpose it is intended to serve. [] Section () of the  Electoral Act provides: “A person applying for registration as a voter must do so— (a) in the prescribed manner; and (b) only for the voting district in which that person is ordinarily resident.”

The purpose of the phrase “ordinarily resident” is to facilitate the electoral process. It will, for example, enable the allocation of voters to voting districts, each with their own polling stations, so that an identified and relatively small number of voters resident in that district during the period of registration and voting will vote in it. The voters’ roll for each district will be prepared on the basis of those that have registered for each district. This will facilitate easy and accurate identification on voting day and prevent long queues. [] In addition, section (a) of the  Electoral Act requires that the act be interpreted “in a manner that gives effect to the constitutional declarations, guarantees and responsibilities contained in the Constitution.” The act must therefore be interpreted in a way that enhances enfranchisement and underlines the positive responsibilities of the commission in facilitating registration and voting. The phrase “ordinarily resident” must therefore be interpreted in a way that facilitates both the constitutional and legislative objectives. [] There are a variety of ways in which enfranchisement of prisoners could be achieved in practice. Polling stations could be set up in the prisons or special votes could be provided to prisoners. Prisoners are literally a captive population, living in

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a disciplined and closely monitored environment, regularly being counted and recounted. The commission should have little difficulty in ensuring that those who are eligible to vote are registered and given the opportunity to vote, and that the objective of achieving an easily managed poll on Election Day is accomplished. [] We recognize that, in a country like ours, racked by criminal violence, the idea that murderers, rapists, and armed robbers should be entitled to vote will offend many people. Many open and democratic societies impose voting disabilities on some categories of prisoners. Certain classes of prisoners were in fact disqualified by legislation from voting in the  elections, but that was specifically sanctioned by the Interim Constitution. Although there is no comparable provision in the  Constitution, it recognizes that limitations may be imposed upon the exercise of fundamental rights, provided they are reasonable and justifiable and otherwise meet the requirements of section . The question whether legislation disqualifying prisoners or categories of prisoners, from voting could be justified under section  was not raised in these proceedings and need not be dealt with. This judgment should not be read, however, as suggesting that Parliament is prevented from disenfranchising certain categories of prisoners. But, absent such legislation, prisoners have a constitutional right to vote and neither the commission nor this court has the power to disenfranchise them. [] Parliament cannot by its silence deprive any prisoner of the right to vote. Nor can its silence be interpreted to empower or require either the commission or this court to decide which categories of prisoners, if any, should be deprived of the vote, and which should not. The commission’s duty is to manage the elections, not to determine the electorate; it must decide the how of voting, not the who. Similarly the task of this court is to ensure that fundamental rights and democratic processes are protected. [] It is instructive to look at the situations in which the two applicants find themselves. The first applicant voted in the  elections when he was already a prisoner. The  Constitution guaranteed his right to vote in unqualified terms. Parliament has not sought to limit that right at all. He is informed that his right to vote remains intact and that the registration centers are as open to him as to anybody else. The only problem is that he is locked up. That a right requires an appropriate remedy was trenchantly affirmed by Chief Justice Centlivres in Minister of the Interior and Another v. Harris and Others [ () SA  (A)]: As I understand Mr. Beyers’s argument the substantive right would, in the event of such an act having been passed, remain intact but there would be no adjective or procedural law whereby it could be enforced: in other words the individual concerned whose right was guaranteed by the Constitution would be left in the position of possessing a right which would be of no value whatsoever. To call the rights entrenched in the Constitution constitutional guarantees and at the same time to deny to the holders of those rights any remedy

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in law would be to reduce the safeguards enshrined in section  to nothing. There can to my mind be no doubt that the authors of the Constitution intended that those rights should be enforceable by the courts of law. They could never have intended to confer a right without a remedy. The remedy is, indeed, part and parcel of the right. Ubi jus, ibi remedium.

In this case, the first applicant has been effectively deprived of his right to vote. [] Similarly, the second applicant might be acquitted of the charges against her or else be released on bail before June , . She could then go to the polling station but would not be able to vote because her name would not be on the voters’ roll. Like the first applicant she too will have been disenfranchised, not by legislation but by logistics. [] It also follows that prisoners, other than those expressly excluded by the  Electoral Act, who have registered, either previously or in consequence of the order that follows, are entitled to vote in the coming general election. The commission must therefore make the necessary arrangements to enable them to vote. [] This court does not have the information or expertise to enable it to decide what those arrangements should be or how they should be effected. During the hearing of this matter, counsel for the commission was invited to indicate what arrangements for registration and voting would best suit the commission in order to assist the court in making a precise order. The commission did not provide the information. The determination of what arrangements should be made remains a matter preeminently for the commission. It is important that there should be certainty as to what these arrangements will be. In the light of the fact that this court is not in a position in the circumstances of the present case to give specific direction as to what is to be done, it is appropriate that the commission be required to indicate how it will comply with the order that has been made. To that end the commission is required to furnish an affidavit setting out the manner in which the order will be complied with, and to serve a copy of that affidavit on the attorneys for the applicants and the third and fourth respondents. A copy should be lodged with the registrar of this court which will then form part of the public record of this case. Any member of the public may inspect the affidavit once it has been lodged with the registrar. In the light of the urgency of the matter, and the timetable for the election set out by the commission, a period of two weeks has been afforded to the commission for the preparation of this affidavit.

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

National Coalition for Gay and Lesbian Equality and Others v. Minister of Home Affairs and Others  () SA  (CC)

CASE SUMMARY

Facts Section () of the Aliens Control Act  of  allowed for the spouse of a permanent resident of South Africa to be issued an immigration permit. It did not provide the same benefit for same-sex life partners of permanent residents. The applicants claimed that this differentiation amounted to unfair discrimination against same-sex life partners of permanent residents.

Legal History The applicants approached the Cape Provincial Division of the High Court for an order declaring section () inconsistent with the Constitution and therefore invalid. A full bench found that the challenged provision was indeed inconsistent with the Constitution as it amounted to unfair discrimination on the grounds of sexual orientation in terms of section () of the Constitution. The applicants then appealed to the Constitutional Court to have certain aspects of the High Court’s order varied and the remainder of the order confirmed. The respondents appealed against the entire order of the High Court.

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Issues Is it unconstitutional for immigration laws to facilitate the immigration into South Africa of the heterosexual spouses of permanent South African residents, but not to afford the same benefits to gays and lesbians in permanent same-sex life partnerships with permanent South African residents? Decision of the Constitutional Court The court found that the ordinary meaning of the word spouse in section () could not be interpreted in a manner that would embrace unmarried same-sex life partners. Since section () could not be read down, the failure of () to recognize same-sex life partners constituted unfair discrimination on the grounds of marital status and sexual orientation and could not be saved by the limitation clause. Order The court was obliged to construct an appropriate remedy for statutory provisions where words—that would otherwise cure the statute—were left out. Neither notional severance nor declaring section () invalid in its entirety would provide same-sex life partners and heterosexual spouses with the desired benefit. The court chose instead to “read in” necessary words to cure the defect in the statute. In the instant matter, reading in required that the words “or partner in a permanent same-sex life partnership” appear after the word “spouse.” Comment Two questions: First, do you think the court would have found in favor of the applicants if “sexual orientation” was not expressly protected by section ()? Second, what dangers, if any, obtain with respect to the court’s use of reading in as the remedy? JUSTICE ACKERMANN [] This matter raises two important questions. The first is whether it is unconstitutional for immigration law to facilitate the immigration into South Africa of the spouses of permanent South African residents but not to afford the same benefits to gays and lesbians in permanent same-sex life partnerships with permanent South African residents. The second is whether, when it concludes that provisions in a statute are unconstitutional, the court may read words into the statute to remedy the unconstitutionality. These questions arise from the provisions of section () of the Aliens Control Act  of  (the Act) and the application of the provisions of section ()(b) of the Constitution of the Republic of South Africa Act  of  (the Constitution) should section () be found to be inconsistent with the Constitution. Section () reads:

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Notwithstanding the provisions of section (), but subject to the provisions of sections () and (), a regional committee may, upon application by the spouse or the dependent child of a person permanently and lawfully resident in the Republic, authorize the issue of an immigration permit.

[] According to the respondents’ argument, it was reasonably possible that a regional committee might, under section () of the Constitution, interpret “spouse” in section () of the act as including a same-sex life partner, thus making it unnecessary to consider the constitutional validity of the subsection. In my view the word “spouse” cannot, in its context, be so construed. There is, it is true, a principle of constitutional interpretation that where it is reasonably possible to construe a statute in such a way that it does not give rise to constitutional inconsistency, such a construction should be preferred to another construction which, although also reasonable, would give rise to such inconsistency. Such a construction is not a reasonable one, however, when it can be reached only by distorting the meaning of the expression being considered. [] There is a clear distinction between interpreting legislation in a way that “promote[s] the spirit, purport and objects of the Bill of Rights” as required by section () of the Constitution and the process of reading words into or severing them from a statutory provision which is a remedial measure under section ()(b), following upon a declaration of constitutional invalidity under section ()(a). I deal later with the constitutional permissibility of reading words into a statutory provision. What is now being emphasized is the fundamentally different nature of the two processes. The first process, being an interpretative one, is limited to what the text is reasonably capable of meaning. The latter can only take place after the statutory provision in question, notwithstanding the application of all legitimate interpretative aids, is found to be constitutionally invalid. [] The High Court correctly concluded that ‘spouse’ as used in section () was not reasonably capable of the construction contended for by the respondents. The word “spouse” is not defined in the Act, but its ordinary meaning connotes “[a] married person; a wife, a husband.” The context in which “spouse” is used in section () does not suggest a wider meaning. The use of the expression “marriage” in section () and the special provisions relating to a person applying for an immigration permit and “who has entered into a marriage with a person who is permanently and lawfully resident in the Republic less than two years prior to the date of his or her application” is a further indication that “spouse,” as used in section (), is used for a partner in a marriage. There is also no indication that the word “marriage” as used in the act extends any further than those marriages that are ordinarily recognized by our law. In this regard reference may be made to the recent House of Lords decision in Fitzpatrick (AP) v. Sterling Housing Association Ltd where “spouse” likewise could not be given such an extensive meaning and Quilter v. AttorneyGeneral [[]  NZLR  (CA)] where the statute at issue did not define “mar-

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riage” but the New Zealand Court of Appeal unanimously held that textual indications prevented the term from being construed to include same-sex unions. [] Had the word “spouse” been used in a more extensive sense in section () of the Act, it would have been unnecessary to provide specifically in section () that marriage “includes a customary union.” It is significant that the definition of “customary union”—namely “the association of a man and a woman in a conjugal relationship according to indigenous law and custom, where neither the man nor the woman is party to a subsisting marriage, which is recognized by the Minister in terms of section ()”—is based on an opposite-sex relationship. Under all these circumstances it is not possible to construe the word “spouse” in section () as including the foreign same-sex partner of a permanent and lawful resident of the Republic. The applicants were accordingly not able in law to pursue successfully a nonconstitutional remedy based on such a construction of “spouse.” Accordingly the respondents’ contention that the constitutional issue was not ripe for hearing was rightly dismissed by the High Court.

The Constitutional Validity of Section () [] It is convenient to deal at the outset with a submission advanced on the respondents’ behalf which is central to their approach to the case and their categorization of the issues concerning the constitutionality of section (). Mr. Patel, who together with Ms. Moroka and Mr. Dhlamini appeared for the respondents, submitted that the Republic, as a sovereign independent state, was lawfully entitled to exclude any foreign nationals from the Republic; that it had an absolute discretion to do so that was beyond the reach of the Constitution and the courts; and that, to the extent that Parliament legislated to permit foreign nationals to reside in South Africa, it did so in the exercise of such discretion and that the provisions of such legislation were equally beyond the reach of the Constitution and the courts. He submitted that this was recognized by the Constitution in that certain provisions of the Bill of Rights conferred significant rights only on citizens of the Republic. Thus only a citizen has the right to “enter, to remain in and to reside anywhere in the Republic”; to “a passport”; to certain political rights; and to choose a “trade, occupation or profession freely.” [] Such an argument, even if correct, would not assist the respondents because in the present case we are not dealing with such a category of foreign nationals, but with persons who are in intimate life partnerships with persons who are permanently and lawfully resident in the Republic (to whom I shall refer as “South Africans”). This is a significant and determinative difference. The failure of the act to grant any recognition at all to same-sex life partnerships impacts in the same way on the South African partners as it does on the foreign-national partners. In my view this case can and ought properly to be decided on the basis of whether section () unconstitutionally limits the rights of the South African partners, namely the eighth to the thirteenth respondents. In an important line of decisions the Zimbabwean Supreme

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Court has held that the constitutional right of citizens to freedom of movement is contravened when the foreign national spouses of such citizens are denied permission to reside in Zimbabwe. We do not reach the question of freedom of movement in the present case but it is important to note that the issue of the contravention in the Zimbabwean cases was considered in relation to the rights of the citizen spouse residing in Zimbabwe. [] Section  of the Constitution provides: Equality () 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, color, 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 section (). National legislation must be enacted to prevent or prohibit unfair discrimination. () Discrimination on one or more of the grounds listed in section () is unfair unless it is established that the discrimination is fair.

Section  provides: Human dignity Everyone has inherent dignity and the right to have their dignity respected and protected.

[] Justice Davis found that section () constituted a clear limitation of the section  guarantee against unfair discrimination because it differentiated on the grounds of sexual orientation; under section () such differentiation, being a ground specified in section (), is presumed to be unfair unless the contrary is established; and that the contrary had not been established. The High Court considered it unnecessary to deal with the other grounds on which section () had been attacked. In National Coalition for Gay and Lesbian Equality and Another v. Minister of Justice and Others [ () SA  (CC) ( () BCLR )] (the sodomy case) this court pointed out that in particular circumstances the rights of equality and dignity are closely related and found the criminal offence of sodomy to be unconstitutional because it breached both rights. In the present case the rights of

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

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equality and dignity are also closely related and it would be convenient to deal with them in a related manner. [] In dealing with the equality challenge I shall follow the approach laid down by this court in various of its judgments as collated and summarized in Harksen v. Lane NO and Others [ () SA  (CC) ( () BCLR )] and as applied to section  of the Constitution in the sodomy case. The differentiation brought about by section () is of a negative kind. It does not proscribe conduct of same-sex life partners or enact provisions that in themselves prescribe negative consequences for them. The differentiation lies in its failure to extend to them the same advantages or benefits that it extends to spouses. The applicants’ complaint, as upheld by the High Court, is in effect that section () is “under-inclusive [because] it confers a benefit on a class that is defined too narrowly in that the class fails to include all members that have an equality-based right to be included.” This is, for purposes of establishing a breach of the right to equality, constitutionally irrelevant. Section () “makes clear what was already manifestly implicit in section () of the Interim Constitution, namely that both in conferring benefits on persons and by imposing restraints on State and other action, the State had to do so in a way which results in the equal treatment of all persons.” [] Before this court the respondents challenged the conclusion reached by the High Court that the omission in section () of spousal benefits to same-sex life partners was a differentiation based on the ground of sexual orientation. It was submitted on their behalf that the differentiation was based on the ground that they were nonspouses, which had nothing to do with their sexual orientation, and that accordingly, because the differentiation was on “nonspousal” grounds, rather than on marital status, it did not constitute unfair discrimination. There is no merit in this submission because as indicated above in paragraph , spouse is defined with regard to marriage and is but the name given to the partners to a marriage. [] In the alternative it was argued that, even if the differentiation was on grounds of marital status, there was nothing that prevented gays and lesbians from contracting marriages with persons of the opposite sex, thus becoming and acquiring spouses and accordingly being entitled to the spousal benefits under section (). Therefore, so the submission proceeded, the fact that they did not enjoy the advantages of a spousal relationship was of their own choosing. What the submission implies is that samesex life partners should ignore their sexual orientation and, contrary thereto, enter into marriage with someone of the opposite sex. [] I am unable to accede to this line of argument. It confuses form with substance and does not have proper regard for the operation, experience or impact of discrimination in society. Discrimination does not take place in discrete areas of the law, hermetically sealed from one another, where each aspect of discrimination is to be examined and its impact evaluated in isolation. Discrimination must be understood in the context of the experience of those on whom it impacts. As recognized

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

Legal Cases (–)

in the sodomy case: “The experience of subordination—of personal subordination, above all—lies behind the vision of equality.” [] Moreover, the submission fails to recognize that marriage represents but one form of life partnership. The law currently only recognizes marriages that are conjugal relationships between people of the opposite sex. It is not necessary, for purposes of this judgment, to investigate other forms of life partnership. Suffice it to say that there is another form of life partnership that is different from marriage as recognized by law. This form of life partnership is represented by a conjugal relationship between two people of the same sex. The law currently does not recognize permanent samesex life partnerships as marriages. It follows that section () affords protection only to conjugal relationships between heterosexuals and excludes any protection to a life partnership that entails a conjugal same-sex relationship, which is the only form of conjugal relationship open to gays and lesbians in harmony with their sexual orientation. [] A notable and significant development in our statute law in recent years has been the extent of express and implied recognition the legislature has accorded samesex partnerships. A range of statutory provisions have included such unions within their ambit. While this legislative trend is significant in evincing Parliament’s commitment to equality on the ground of sexual orientation, there is still no appropriate recognition in our law of the same-sex life partnership, as a relationship, to meet the legal and other needs of its partners. [] It follows that same-sex partners are in a different position from heterosexual partners who have not contracted a marriage and have not become spouses. As will be emphasized later in this judgment, it is unnecessary in this case to deal at all with the position of such unmarried heterosexual partners. The respondents’ submission that gays and lesbians are free to marry in the sense that nothing prohibits them from marrying persons of the opposite sex, is true only as a meaningless abstraction. This submission ignores the constitutional injunction that gays and lesbians cannot be discriminated against on the grounds of their own sexual orientation and the constitutional right to express that orientation in a relationship of their own choosing. [] There is much to be said for the view that the discrimination in section () is on the ground of sexual orientation. As previously pointed out, the section () protection is not extended to the only form of conjugal relationship in which gays and lesbians are able to participate in harmony with their sexual orientation, namely, same-sex life partnerships. A similar conclusion was reached by the Canadian Supreme Court in Canada (Attorney-General) v. Mossop [()  DLR (th) ], Egan v. Canada [()  CRR (d) ], and M v. H [()  DLR (th) ]. [] The better view, however, in my judgment, is that the discrimination in section () constitutes overlapping or intersecting discrimination on the grounds of sexual orientation and marital status, both being specified in section () and presumed to constitute unfair discrimination by reason of section () of the Constitution. As Justice Sachs correctly pointed out in the sodomy case:

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



One consequence of an approach based on context and impact would be the acknowledgement that grounds of unfair discrimination can intersect, so that the evaluation of discriminatory impact is done not according to one ground of discrimination or another, but on a combination of both, that is globally and contextually, not separately and abstractly.

The prerequisite of marriage before the benefit is available points to that element of the discrimination concerned with marital status, while the fact that no such benefit is available to gays and lesbians engaged in the only form of conjugal relationship open to them in harmony with their sexual orientation represents discrimination on the grounds of sexual orientation. I propose dealing with the present case on this basis.

The Impact of the Discrimination on the Affected Applicants [] As affirmed in the sodomy case, the determining factor regarding the unfairness of discrimination is, in the final analysis, the impact of the discrimination on the complainant or the members of the affected group. The approach to this determination is a nuanced and comprehensive one in which various factors come into play which, when assessed cumulatively and objectively, will assist in elaborating and giving precision to the constitutional test of unfairness. Important factors to be assessed in this regard (which do not, however, constitute a closed list) are: (a) the position of complainants in society and whether they have suffered in the past from patterns of disadvantage; (b) the nature of the provision or power and the purpose sought to be achieved by it. If its purpose is manifestly not directed, in the first instance, at impairing the complainants in their fundamental human dignity or in a comparably serious respect, but is aimed at achieving a worthy and important societal goal, such as, for example, the furthering of equality for all, this purpose may, depending on the facts of the particular case, have a significant bearing on the question whether the complainants have in fact suffered the impairment in question; (c) with due regard to (a) and (b) above, and any other relevant factors, the extent to which the discrimination has affected the rights or interests of complainants and whether it has led to an impairment of their fundamental human dignity or constitutes an impairment of a comparably serious nature. It is noteworthy how the Canadian Supreme Court has, in the development of its equality jurisprudence under section () of the Canadian Charter, come to see the central purpose of its equality guarantee as the protection and promotion of human dignity.

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

Legal Cases (–)

[] In the sodomy case this court dealt with the seriously negative impact that societal discrimination on the ground of sexual orientation has had, and continues to have, on gays and their same-sex partnerships, concluding that gay men are a permanent minority in society and have suffered in the past from patterns of disadvantage. Although the main focus of that judgment was on the criminalization of sodomy and on other proscriptions of erotic expression between men, the conclusions regarding the minority status of gays and the patterns of discrimination to which they have been and continue to be subject are also applicable to lesbians. Society at large has, generally, accorded far less respect to lesbians and their intimate relationships with one another than to heterosexuals and their relationships. The sting of past and continuing discrimination against both gays and lesbians is the clear message that it conveys, namely, that they, whether viewed as individuals or in their samesex relationships, do not have the inherent dignity and are not worthy of the human respect possessed by and accorded to heterosexuals and their relationships. This discrimination occurs at a deeply intimate level of human existence and relationality. It denies to gays and lesbians that which is foundational to our Constitution and the concepts of equality and dignity, which at this point are closely intertwined, namely that all persons have the same inherent worth and dignity as human beings, whatever their other differences may be. The denial of equal dignity and worth all too quickly and insidiously degenerates into a denial of humanity and leads to inhuman treatment by the rest of society in many other ways. This is deeply demeaning and frequently has the cruel effect of undermining the confidence and sense of selfworth and self-respect of lesbians and gays. [] Similar views, with which I agree, were expressed in Vriend v. Alberta [()  DLR (th) ], where Justice Cory expressed himself thus: It is easy to say that everyone who is just like “us” is entitled to equality. Everyone finds it more difficult to say that those who are “different” from us in some way should have the same equality rights that we enjoy. Yet so soon as we say any . . . group is less deserving and unworthy of equal protection and benefit of the law all minorities and all of . . . society are demeaned. It is so deceptively simple and so devastatingly injurious to say that those who are handicapped or of a different race, or religion, or color or sexual orientation are less worthy.

[] This court has recognized that “[t]he more vulnerable the group adversely affected by the discrimination, the more likely the discrimination will be held to be unfair.” Vulnerability in turn depends to a very significant extent on past patterns of disadvantage, stereotyping and the like. This is why an enquiry into past disadvantage is so important. In a passage endorsed in M v. H, Justice Iacobucci in the Law case expressed this tellingly as follows:

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



[P]robably the most compelling factor favoring a conclusion that differential treatment imposed by legislation is truly discriminatory will be, where it exists, pre-existing disadvantage, vulnerability, stereotyping or prejudice experienced by the individual or group [citations omitted]. These factors are relevant because, to the extent that the claimant is already subject to unfair circumstances or treatment in society by virtue of personal characteristics or circumstances, persons like him or her have often not been given equal concern, respect, and consideration. It is logical to conclude that, in most cases, further differential treatment will contribute to the perpetuation or promotion of their unfair social characterization, and will have a more severe impact on them, since they are already vulnerable.

In the present case, like in M v. H, there is significant pre-existing disadvantage and vulnerability. [] I turn now to deal with the discriminatory impact of section () on samesex life partners. I agree with the submission advanced on respondents’ behalf that section () is manifestly aimed at achieving the societal goal of protecting the family life of “lawful marriages” (which I understand to mean marriages which are formally valid and contracted in good faith and not sham marriages for the purposes of circumventing the Act) and certain recognized customary unions, by making provision for family reunification and in particular by entitling spouses of persons permanently and lawfully resident in the Republic to receive permanent residence permits. The pertinent question that immediately arises is what the impact of being excluded from these protective provisions is on same-sex life partners. [] It is important to emphasize that over the past decades an accelerating process of transformation has taken place in family relationships, as well as in societal and legal concepts regarding the family and what it comprises. Sinclair and Heaton, after alluding to the profound transformations of the legal relationships between family members that have taken place in the past, comment as follows on the present: But the current period of rapid change seems to “strike at the most basic assumptions” underlying marriage and the family. ... Itself a country where considerable political and socio-economic movement has been and is taking place, South Africa occupies a distinctive position in the context of developments in the legal relationship between family members and between the State and the family. Its heterogeneous society is “fissured by differences of language, religion, race, cultural habit, historical experience and self-definition” and, consequently, reflects widely varying expectations about marriage, family life and the position of women in society.

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

Legal Cases (–)

[] The impact of section () is to reinforce harmful and hurtful stereotypes of gays and lesbians. At the heart of these stereotypes whether expressly articulated or not, lie misconceptions based on the fact that the sexual orientation of lesbians and gays is such that they have an erotic and emotional affinity for persons of the same sex and may give physical sexual expression thereto with same-sex partners: There are two predominant narratives that circulate within American society that help to explain the difficulty that lesbians and gays face in adopting children and establishing families. First, there is the story of lesbians and gays that centers on their sexuality. Whether because of disgust, confusion, or ignorance about homosexuality, lesbian and gay sexuality dominates the discourse of not only same-sex adoption, but all lesbian and gay issues. The classification of lesbians and gays as “exclusively sexual beings” stands in stark contrast to the perception of heterosexual parents as “people who, along with many other activities in their lives, occasionally engage in sex.” Through this narrative, lesbians and gays are reduced to one-dimensional creatures, defined by their sex and sexuality.”

Such false classifications must be rejected. Our law has never proscribed consensual sexual acts between women in private and the laws criminalizing certain consensual sexual acts between males in private and certain acts in public have been declared constitutionally invalid. [] A second stereotype, often used to bolster the prejudice against gay and lesbian sexuality, is constructed on the fact that a same-sex couple cannot procreate in the same way as a heterosexual couple. Gays and lesbians are certainly individually permitted to adopt children under the provisions of section (b) of the Child Care Act  of  and nothing prevents a gay couple or a lesbian couple, one of whom has so adopted a child, from treating such child in all ways, other than strictly legally, as their child. They can certainly love, care, and provide for the child as though it was their joint child. [] From a legal and constitutional point of view procreative potential is not a defining characteristic of conjugal relationships. Such a view would be deeply demeaning to couples (whether married or not) who, for whatever reason, are incapable of procreating when they commence such relationship or become so at any time thereafter. It is likewise demeaning to couples who commence such a relationship at an age when they no longer have the desire for sexual relations. It is demeaning to adoptive parents to suggest that their family is any less a family and any less entitled to respect and concern than a family with procreated children. I would even hold it to be demeaning of a couple who voluntarily decide not to have children or sexual relations with one another; this being a decision entirely within their protected sphere of freedom and privacy.

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



[] The message that the total exclusion of gays and lesbians from the provisions of the subsection conveys to gays and lesbians and the consequent impact on them can, in my view, be conveniently expressed by comparing (a) the facts concerning gays and lesbians and their same-sex partnerships which must be accepted, with (b) what the subsection in effect states: (a) (i)

Gays and lesbians have a constitutionally entrenched right to dignity and equality; (ii) sexual orientation is a ground expressly listed in section () of the Constitution and under section () discrimination on it is unfair unless the contrary is established; (iii) prior criminal proscription of private and consensual sexual expression between gays, arising from their sexual orientation and which had been directed at gay men, has been struck down as unconstitutional; (iv) gays and lesbians in same-sex life partnerships are as capable as heterosexual spouses of expressing and sharing love in its manifold forms, including affection, friendship, eros, and charity; (v) they are likewise as capable of forming intimate, permanent, committed, monogamous, loyal and enduring relationships; of furnishing emotional and spiritual support; and of providing physical care, financial support and assistance in running the common household; (vi) they are individually able to adopt children and in the case of lesbians to bear them; (vii) in short, they have the same ability to establish a consortium omnis vitae; (viii) finally, and of particular importance for purposes of this case, they are capable of constituting a family, whether nuclear or extended, and of establishing, enjoying and benefiting from family life which is not distinguishable in any significant respect from that of heterosexual spouses. (b) The subsection, in this context, in effect states that all gay and lesbian permanent residents of the Republic who are in same-sex relationships with foreign nationals are not entitled to the benefit extended by the subsection to spouses married to foreign nationals in order to protect their family and family life. This is so stated, notwithstanding that the family and family life which gays and lesbians are capable of establishing with their foreign national same-sex partners are in all significant respects indistinguishable from those of spouses and in human terms as important to gay and lesbian same-sex partners as they are to spouses.

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

Legal Cases (–)

[] The message and impact are clear. Section  of the Constitution recognizes and guarantees that everyone has inherent dignity and the right to have their dignity respected and protected. The message is that gays and lesbians lack the inherent humanity to have their families and family lives in such same-sex relationships respected or protected. It serves in addition to perpetuate and reinforce existing prejudices and stereotypes. The impact constitutes a crass, blunt, cruel, and serious invasion of their dignity. The discrimination, based on sexual orientation, is severe because no concern, let alone anything approaching equal concern, is shown for the particular sexual orientation of gays and lesbians. [] We were pressed with an argument, on behalf of the minister, that it was of considerable public importance to protect the traditional and conventional institution of marriage and that the government accordingly has a strong and legitimate interest to protect the family life of such marriages and was entitled to do so by means of section (). Even if this proposition were to be accepted it would be subject to two major reservations. In the first place, protecting the traditional institution of marriage as recognized by law may not be done in a way that unjustifiably limits the constitutional rights of partners in a permanent same-sex life partnership. [] In the second place there is no rational connection between the exclusion of same-sex life partners from the benefits under section () and the government interest sought to be achieved thereby, namely the protection of families and the family life of heterosexual spouses. No conceivable way was suggested, nor can I think of any, whereby the appropriate extension of the section () benefits to same-sex life partners has been roundly rejected by the Canadian Supreme Court, which court has also stressed, correctly in my view, that concern for the protection of same-sex partnerships in no way implies a disparagement of the traditional institution of marriage. [] There is nothing in the scales to counteract such conclusion. I accordingly hold that section () constitutes unfair discrimination and a serious limitation of the section () equality right of gays and lesbians who are permanent residents in the Republic and who are in permanent same-sex life partnerships with foreign nationals. I also hold, for the reasons appearing throughout this judgment and culminating in the conclusion reached at the beginning of this paragraph, that section () simultaneously constitutes a severe limitation of the section  Right to Dignity enjoyed by such gays and lesbians. Having come to this conclusion it is unnecessary to consider whether any of the freedom of movement rights of the eighth to the thirteenth applicants, guaranteed under section  of the Constitution, have been limited in any way by section ().

Justification [] I now apply the section () justification analysis, incorporating that of proportionality applied to the balancing of different interests, as enunciated in S v.

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



Makwanyane and Another [ () SA  (CC) ( () SACR ;  () BCLR )] and as adapted for the  Constitution in the sodomy case. The rights limited, namely equality and dignity, are important rights going to the core of our constitutional democratic values of human dignity, equality and freedom. The intimate personal relationships of the nature here in issue are for many individuals essential for their own self-understanding and for the full development and expression of their human personalities. Although expressed in a different context and when marital status was not a ground specified in section () of the Interim Constitution, the following remarks of Justice O’Regan in Harksen are apposite: “I agree that marital status is a matter of significant importance to all individuals, closely related to human dignity and liberty. For most people, the decision to enter into a permanent personal relationship with another is a momentous and defining one.” The effect of omitting same-sex life partnerships from section () limits the above rights at a deep and serious level. [] There is no interest on the other side that enters the balancing process. It is true, as previously stated, that the protection of family and family life in conventional spousal relationships is an important governmental objective, but the extent to which this could be done would in no way be limited or affected if same-sex life partners were appropriately included under the protection of section (). There is, in my view, no justification for the limitation in the present case and it therefore follows that the provisions of section () are inconsistent with the Constitution and invalid.

The Appropriate Remedy [] The High Court was faced with the difficult task of devising an appropriate remedy consequent upon its finding section () to be constitutionally invalid because of what it omitted. [] As far as the declaration of invalidity is concerned the High Court considered that three options were open to it. The first was to remedy the constitutional invalidity of section () by introducing (reading in) words into the section in such a way that its provisions also applied to persons in same-sex life partnerships. The High Court decided against such remedy as an appropriate one, principally because it was of the view that it was not possible to define with a sufficient degree of precision the words that had to be inserted in section () in order for it to comply with the Constitution. The second was postulated as follows: Were a declaration of invalidity to provide that the section is inconsistent with the Constitution to the extent that it confers an exclusive benefit on spouses and hence discriminates on the grounds of sexual orientation, the rest of the section could remain valid. Thus spouses as defined in terms of the act at present would continue to enjoy a benefit.

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

Legal Cases (–)

The third was to “declare the section in its entirety to be invalid.” The High Court purported to adopt the second option because it appeared preferable to frame the declaration of invalidity so as to save a legitimate purpose (that is, acknowledging the importance of some forms of permanent relationships) rather than to deny a benefit to all who deserve it. But this perpetrates discrimination in respect of certain forms of permanent relationships. Thus legislative action is required to remedy the position and ensure that no unjustified discrimination is permitted by the Act”

and accordingly drafted paragraph  of its order to read: Section () of the Aliens Control Act  of  is declared invalid to the extent that the benefit conferred exclusively on spouses is inconsistent with section () in that on grounds of sexual orientation it discriminates against same sex-life partners.

The High Court suspended this order for a period of twelve months “from the date of confirmation of this order to enable Parliament to correct the inconsistency” and made the further orders quoted in paragraph  of this judgment. [] While appreciating the novelty and difficulty of framing an appropriate order in the circumstances of the present case, one is driven to conclude that the High Court did not, in effect, through paragraph  of its order, bring about the invalidity of any portion of section (). This is so for two reasons. It appears clearly from its motivation for the second option (which it adopted) that it aimed, through its order, to preserve the benefits of the section for spouses and was intent on giving an order to achieve this object. This was in fact also the effect of the order, the interpretation of which is complicated by the fact that it conflates reasons for the order with its operative terms. The device of notional severance can effectively be used to render inoperative portions of a statutory provision, where it is the presence of particular provisions which is constitutionally offensive and where the scope of the provision is too extensive and hence constitutionally offensive, but the unconstitutionality cannot be cured by the severance of actual words from the provision. An order giving effect to and embodying such notional severance in the case of constitutional invalidity was made for the first time in Ferreira v. Levin NO and Others; Vryenhoek and Others v. Powell NO and Others. [] Where, however, the invalidity of a statutory provision results from an omission, it is not possible, in my view, to achieve notional severance by using words such as “invalid to the extent that” or other expressions indicating notional severance. An omission cannot, notionally, be cured by severance. This is implicit in the constitutional jurisprudence of Canada and the United States dealt with later in this judgment and has been expressly so held in Germany. The only logical equivalent

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



to severance, in the case of invalidity caused by omission, is the device of reading in. In the present case there are only two options; declaring the whole of section () to be invalid or reading in provisions to cure such invalidity. [] In fashioning a declaration of invalidity, a court has to keep in balance two important considerations. One is the obligation to provide the “appropriate relief ” under section  of the Constitution, to which claimants are entitled when “a right in the Bill of Rights has been infringed or threatened.” Although the remedial provision considered by this court in Fose [v. Minister of Safety and Security  () SA  (CC) ( () BCLR )] was that of the Interim Constitution, the two provisions are in all material respects identical and the following observations in that case are equally applicable to section  of the Constitution: Given the historical context in which the Interim Constitution was adopted and the extensive violation of fundamental rights which had preceded it, I have no doubt that this court has a particular duty to ensure that, within the bounds of the Constitution, effective relief be granted for the infringement of any of the rights entrenched in it. In our context an appropriate remedy must mean an effect remedy, for without effective remedies for breach, the values underlying and the rights entrenched in the Constitution cannot properly be upheld or enhanced. Particularly in a country where so few have the means to enforce their rights through the courts, it is essential that on those occasions when the legal process does establish that an infringement of an entrenched right has occurred, it be effectively vindicated. The courts have a particular responsibility in this regard and are obliged to “forge new tools” and shape innovative remedies, if needs be, to achieve this goal.

The court’s obligation to provide appropriate relief must be read together with section ()(b) which requires the court to make an order which is just and equitable. [] The other consideration a court must keep in mind is the principle of the separation of powers and, flowing therefrom, the deference it owes to the Legislature in devising a remedy for a breach of the Constitution in any particular case. It is not possible to formulate in general terms what such deference must embrace, for this depends on the facts and circumstances of each case. In essence, however, it involves restraint by the courts in not trespassing onto that part of the legislative field that has been reserved by the Constitution, and for good reason, to the legislature. Whether, and to what extent, a court may interfere with the language of a statute will depend ultimately on the correct construction to be placed on the Constitution as applied to the legislation and facts involved in each case. [] There is nothing in the Constitution to suggest that form must be placed above substance in a way that would result in so glaring an anomaly. The supremacy clause, section , does not enact that “words” inconsistent with the Constitution are invalid but rather that inconsistent “law” is. Similarly section ()(a) obliges a

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

Legal Cases (–)

competent court to declare that “any law . . . that is inconsistent with the Constitution is invalid to the extent of its inconsistency” and not “any words” or “any words in any law.” The same conclusion regarding the nature and permissibility of reading in as a constitutional remedy was reached by the Canadian Supreme Court in the leading case of Schachter v. Canada [()  DLR (th) ]. [] I accordingly conclude that reading in is, depending on all the circumstances, an appropriate form of relief under section  of the Constitution and that “whether a court ‘reads in’ or ‘strikes out’ words from a challenged law, the focus of the court should be on the appropriate remedy in the circumstances and not on the label used to arrive at the result.” The real question is whether, in the circumstances of the present matter, reading in would be just and equitable and an appropriate remedy. [] Having concluded that it is permissible in terms of our Constitution for this court to read words into a statute to remedy unconstitutionality, it is necessary to summarize the principles that should guide the court in deciding when such an order is appropriate. In developing such principles, it is important that the particular needs of our Constitution and its remedial requirements be constantly borne in mind. [] The severance of words from a statutory provision and reading words into the provision are closely related remedial powers of the court. In deciding whether words should be severed from a provision or whether words should be read into one, a court pays careful attention first, to the need to ensure that the provision which results from severance or reading words into a statute is consistent with the Constitution and its fundamental values and, secondly, that the result achieved would interfere with the laws adopted by the legislature as little as possible. In our society where the statute books still contain many provisions enacted by a Parliament not concerned with the protection of human rights, the first consideration will in those cases often weigh more heavily than the second. [] In deciding to read words into a statute, a court should also bear in mind that it will not be appropriate to read words in, unless in so doing a court can define with sufficient precision how the statute ought to be extended in order to comply with the Constitution. Moreover, when reading in (as when severing) a court should endeavor to be as faithful as possible to the legislative scheme within the constraints of the Constitution. Even where the remedy of reading in is otherwise justified, it ought not to be granted where it would result in an unsupportable budgetary intrusion. In determining the scope of the budgetary intrusion, it will be necessary to consider the relative size of the group that the reading in would add to the group already enjoying the benefits. Where reading in would, by expanding the group of persons protected, sustain a policy of long standing or one that is constitutionally encouraged, it should be preferred to one removing the protection completely. [] It should also be borne in mind that whether the remedy a court grants is one striking down, wholly or in part; or reading into or extending the text, its choice is not final. Legislatures are able, within constitutional limits, to amend the remedy, whether by reenacting equal benefits, further extending benefits, reducing them, amend-

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ing them, “fine-tuning” them or abolishing them. Thus they can exercise final control over the nature and extent of the benefits. [] Against the background of what has been said above I am satisfied that the constitutional defect in section () can be cured with sufficient precision by reading in after the word “spouse” the following words: “or partner, in a permanent same-sex life partnership” and that it should indeed be cured in this manner. Permanent in this context means an established intention of the parties to cohabit with one another permanently. In my view, such a reading in, seen in the light of what has been said above concerning the legislature’s right to fine-tune the section as so extended and other provisions that may be relevant thereto, does not intrude impermissibly upon the domain of the Legislature. [] Whoever in the administration of the act is called upon to decide whether a same-sex life partnership is permanent, in the sense indicated above, will have to do so, on the totality of the facts presented. Without purporting to provide an exhaustive list, such facts would include the following: the respective ages of the partners; the duration of the partnership; whether the partners took part in a ceremony manifesting their intention to enter into a permanent partnership, what the nature of that ceremony was and who attended it; how the partnership is viewed by the relations and friends of the partners; whether the partners share a common abode; whether the partners own or lease the common abode jointly; whether and to what extent the partners share responsibility for living expenses and the upkeep of the joint home; whether and to what extent one partner provides financial support for the other; whether and to what extent the partners have made provision for one another in relation to medical, pension and related benefits; whether there is a partnership agreement and what its contents are; and whether and to what extent the partners have made provision in their wills for one another. None of these considerations is indispensable for establishing a permanent partnership. In order to apply the above criteria, those administering the act are entitled, within the ambit of the Constitution and bearing in mind what has been said in this judgment, to take all reasonable steps, by way of regulations or otherwise, to ensure that full information concerning the permanent nature of any samesex life partnership is disclosed.

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Dawood

Dawood and Another v. Minister of Home Affairs and Others; Shalabi and Another v. Minister of Home Affairs and Others; Thomas and Another v. Minister of Home Affairs and Others  () SA  (CC) CASE SUMMARY

Facts In terms of section ()(b) of the Aliens Control Act  of , a foreign spouse of a South African citizen or permanent resident, who was in South Africa and wished to secure an immigration permit, had to possess, already, a valid temporary residence permit. If the foreign spouse did not possess such a permit, then two consequences followed (should she or he wish to secure an immigration permit). The foreign spouse would have to wait outside South Africa and the couple would be forced to separate. Or the South African spouse would have to leave South Africa in order to avoid separation. The applicants in this case were all married: one spouse permanently and lawfully resident in South Africa and the other, a foreign national seeking an immigration permit. The applicants challenged this provision on the ground that it infringed their right to dignity.

Legal History The applicants approached the Cape Provincial Division of the High Court for an order declaring section ()(b) inconsistent with the Constitution and invalid. The High Court upheld the application and declared section ()(b) inconsistent with

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the Constitution. It then ordered that the declaration of invalidity be suspended for twelve months. The applicants sought to have the declaration of invalidity confirmed by the Constitutional Court, but appealed against the suspension of invalidity.

Issues Whether it was constitutional to require that an immigration permit is granted to the spouse of a South African citizen (currently within South Africa at the time) only if that spouse (currently within South Africa at the time) is in possession of a valid temporary residence permit. Decision of the Constitutional Court Several features of the judgment stand out. The court first emphasized the centrality of dignity as a Grundnorm in South Africa’s basic law. However, it then noted— with precedent to support this proposition—that dignity is also a discrete, rule-generating right entrenched in section  of the Constitution. So while a constitutional challenge based upon dignity can often be grounded in another right (generally the right to equality), and that route is to be preferred, some cases require that the challenged rule of law be impugned in terms of section . According to the court, given the absence of an enforceable right to family life, the rule in question had to be challenged in terms of section . As Justice O’Regan writes: “It cannot be said that there is a more specific right that protects individuals who wish to enter into and sustain permanent intimate relationship than the right to dignity in section . There is no specific provision protecting family life as there is in other constitutions and in many international human rights instruments” (paragraphs –). The court then noted that the legislation under scrutiny offered no guidance as to how the discretion to refuse or to grant a temporary residence permit should be exercised (under the circumstances described above). Read against the background of apartheid-era legislation that destroyed the family life of innumerable black South Africans, the court held that the provision was an unjustifiable infringement of the right to dignity of the foreign spouses. The Dawood court hints at the historical basis for deploying dignity as a first order rule in “family unit” cases when it writes: “The Constitution asserts dignity to contradict [a] past in which human dignity for black South Africans was routinely and cruelly denied” (paragraph ). Order Because this unjustifiable infringement resulted from a legislative omission, the court could not cure the defect by notional or actual severance. At the same time, given the complexity of immigration legislation, the court did not feel that this matter was susceptible to the remedy of “reading in.” Instead, it ordered that the declaration of invalidity be suspended for two years to give the legislature a chance to remedy the offending provision. In the mean time, the court ordered relief in the form of a mandamus. The order required immigration officials to take cognizance of

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Legal Cases (–)

the constitutional rights of applicants for temporary residence permits, and to refuse to grant such permits only with “good cause.”

Comment Considering the finding that the right to dignity should only be relied on directly where no more specific right is applicable, one might ask whether section , freedom of association, is not perhaps a more specific provision upon which the applicants could have relied. First, it possesses a much more circumscribed ambit than dignity. Second, other jurisdictions do rely upon freedom of association to protect intimate associations. JUSTICE O’REGAN

Constitutional Challenge to Section ()(b) [] The applicants argued that the effect of section ()(b) is to deny spouses the right to cohabit and therefore infringes several rights in the Constitution: the right to dignity [section ]; the right of citizens to remain and reside in South Africa [section ()]; the right of children to family or parental care [section ()(b)]; and the right not to be subjected to unfair discrimination [section ()]. Acting Justice Van Heerden held that section ()(b) indeed violates the right to respect for and protection of dignity which she held included the right of spouses to live together. [] Our Constitution contains no express provision protecting the right to family life or the right of spouses to cohabit. The omission of such a right from the Constitution was challenged during the first certification proceedings on the basis that such a right constituted a “universally accepted fundamental right” that in terms of Constitutional Principle II had to be entrenched in the Constitution. The court observed from its survey of international instruments that states are obliged in terms of international human rights law to protect the rights of persons freely to marry and raise a family. However, it also observed that these obligations are achieved in a great variety of ways in different human rights instruments. It continued: International experience accordingly suggests that a wide range of options on the subject would have been compatible with CP II. On the one hand, the provisions of the NT [new constitutional text] would clearly prohibit any arbitrary State interference with the right to marry or to establish and raise a family. NT () enshrines the values of human dignity, equality and freedom, while NT  states that everyone has the right to have their dignity respected and protected. However these words may come to be interpreted in future, it is evident that laws or executive action resulting in enforced marriages, or oppressive prohibitions on marriage or the choice of spouses, would not survive constitutional challenge. Furthermore, there can be no doubt that the

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NT prohibits the kinds of violations of family life produced by the pass laws or the institutionalized migrant labor system, just as it would not permit the prohibitions on free choice of marriage partners imposed by laws such as the Prohibition on Mixed Marriages Act  of .

The court therefore concluded that the new constitutional text, although it contained no express clause protecting the right to family life, nevertheless met the obligations imposed by international human rights law to protect the rights of persons freely to marry and to raise a family. [] International human rights law imposes obligations upon states to respect and protect marriage and family life. Article  of the Universal Declaration of Human Rights provides: () Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution. () Marriage shall be entered into only with the free and full consent of the intending spouses. () The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.

Similarly, article  of the International Covenant on Civil and Political Rights, which South Africa has ratified, provides: () The family is the natural and fundamental group unit of society and is entitled to protection by society and the State. () The right of men and women of marriageable age to marry and to found a family shall be recognized. () No marriage shall be entered into without the free and full consent of the intending spouses. () States Parties to the present Covenant shall take appropriate steps to ensure equality of rights and responsibilities of spouses as to marriage, during marriage and at its dissolution. In the case of dissolution, provision shall be made for the necessary protection of any children.

The African Charter on Human and Peoples’ Rights, also ratified by South Africa, provides in article : () The family shall be the natural unit and basis of society. It shall be protected by the State. . . . () The State shall have the duty to assist the family which is the custodian of morals and traditional values recognized by the community.

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International human rights law therefore clearly recognizes the importance of marriage and a state obligation to protect the family. [] Marriage and the family are social institutions of vital importance. Entering into and sustaining a marriage is a matter of intense private significance to the parties to that marriage for they make a promise to one another to establish and maintain an intimate relationship for the rest of their lives which they acknowledge obliges them to support one another, to live together and to be faithful to one another. Such relationships are of profound significance to the individuals concerned. But such relationships have more than personal significance, at least in part because human beings are social beings whose humanity is expressed through their relationships with others. Entering into marriage therefore is to enter into a relationship that has public significance as well. [] The institutions of marriage and the family are important social institutions that provide for the security, support, and companionship of members of our society and bear an important role in the rearing of children. The celebration of a marriage gives rise to moral and legal obligations, particularly the reciprocal duty of support placed upon spouses and their joint responsibility for supporting and raising children born of the marriage. These legal obligations perform an important social function. This importance is symbolically acknowledged in part by the fact that marriage is celebrated generally in a public ceremony, often before family and close friends. The importance of the family unit for society is recognized in the international human rights instruments referred to above when they state that the family is the “natural” and “fundamental” unit of our society. However, families come in many shapes and sizes. The definition of the family also changes as social practices and traditions change. In recognizing the importance of the family, we must take care not to entrench particular forms of family at the expense of other forms. [] South African families are diverse in character and marriages can be contracted under several different legal regimes, including African customary law, Islamic personal law and the civil or common law. However, full legal recognition has historically been afforded only to civil or common-law marriages. Even if the legal implications of the marriage differ depending on the legal regime that governs it, the personal significance of the relationship for those entering it and the public character of the institution remain profound. In addition, many of the core elements of the marriage relationship are common between the different legal regimes. [] In terms of common law, marriage creates a physical, moral, and spiritual community of life. This community of life includes reciprocal obligations of cohabitation, fidelity, and sexual intercourse, though these obligations are for the most part not enforceable between the spouses. Importantly, the community of life establishes a reciprocal and enforceable duty of financial support between the spouses and a joint responsibility for the guardianship and custody of children born of the marriage. An obligation of support flows from marriage under African customary

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law as well. In terms of Muslim personal law, the husband bears an enforceable duty of support of the wife during the subsistence of the marriage.

The Constitutional Protection of Marriage and Family Life [] Section  of the Constitution provides as follows: “Everyone has inherent dignity and the right to have their dignity respected and protected.” This court has on several occasions emphasized the importance of human dignity to our constitutional scheme. It is clear from the text of the Constitution itself that human dignity is a fundamental value of our Constitution. Section  of the Constitution provides: 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;

Similarly, section () of the Constitution states: This Bill of Rights 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.

And section () [states]: The rights in the Bill of Rights 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.

Finally, section () states: When interpreting the Bill of Rights, a court, tribunal or forum— (a) must promote the values that underlie an open and democratic society based on human dignity, equality and freedom;

[] 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

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Legal Cases (–)

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 labor. [] In this case, however, it cannot be said that there is a more specific right that protects individuals who wish to enter into and sustain permanent intimate relationships than the right to dignity in section . There is no specific provision protecting family life as there is in other constitutions and in many international human rights instruments. The applicants argued that legislation interfering with the right to enter into such relationships infringed the rights to freedom of movement and the rights of citizens to reside in South Africa. It may well be that such legislation will have an incidental and limiting effect on these rights, but the primary right implicated is, in my view, the right to dignity. As it is the primary right concerned, it is the right upon which we should focus. [] The decision to enter into a marriage relationship and to sustain such a relationship is a matter of defining significance for many, if not most, people and to prohibit the establishment of such a relationship impairs the ability of the individual to achieve personal fulfillment in an aspect of life that is of central significance. In my view, such legislation would clearly constitute an infringement of the right to dignity. It is not only legislation that prohibits the right to form a marriage relationship that will constitute an infringement of the right to dignity, but any legislation that significantly impairs the ability of spouses to honor their obligations to one another would also limit that right. A central aspect of marriage is cohabitation, the right (and duty) to live together, and legislation that significantly impairs the ability of spouses to honor that obligation would also constitute a limitation of the right to dignity. Like all rights, however, the question of whether such a limitation is unconstitutional or not will depend upon whether it is reasonable and justifiable in an open and democratic society in terms of section () of the Constitution. I now turn to the question of the effect of section ()(b).

The Effect of Section () [] It is implicit in section (), read against the background of section , that applicants for immigration permits may not be in South Africa at the time their applications are granted. In the context of this general prohibition, the overall purpose of section ()(b) is to afford to spouses, dependent children and destitute, aged or infirm family members of people lawfully and permanently resident in South Africa a benefit that is not afforded to other applicants for immigration permits. It allows them to remain in South Africa pending the outcome of their application for an immigration permit while other applicants have to leave the country. The effect of

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section () read with sections () and () of the act is that foreign spouses may continue to reside in South Africa while their applications for immigration permits are being considered only if they are in possession of valid temporary residence permits. Given the fact that such applications are not automatically granted but have to be considered on their merits, these provisions necessarily authorize immigration officials and the DG to refuse to issue or extend such temporary permits. [] The effect of such a refusal is that a South African married to a foreigner is forced to choose between going abroad with his or her partner while the application is considered, or remaining in South Africa alone. Many South African spouses will not even face this dilemma on account of their poverty or other circumstances and will have to remain in South Africa without their spouses. The right (and duty) to cohabit, a key aspect of the marriage relationship, is restricted in this way. Accordingly the right to dignity of spouses is limited by the statutory provisions that empower immigration officers and the DG to refuse to grant or extend a temporary permit. Having regard to the general prohibition against remaining in South Africa pending the outcome of an application for an immigration permit, the power to refuse the temporary permit is a power, in effect, to limit the right of cohabitation of spouses. It is necessary now to consider whether that limitation is justifiable or not.

Limitations Analysis [] Section () of the Constitution that a limitation of a constitutional right may be justified. It will be justified only if the court concludes that the limitation of the right, considering the nature and importance of the right and extent of its limitation on the one hand, is justified in relation to the purpose, importance, and effect of the provision causing the limitation, taking into account the availability of less restrictive means to achieve the purpose of the provision, on the other. The Scope of the Limitation of the Right [] In order to grasp fully the scope of the limitation of the right, therefore, it is necessary to consider the manner in which temporary permits may be issued and extended and, in particular, the circumstances in which they may be refused. The denial of the constitutional right only occurs when a temporary permit has been refused. [] One might have thought that section ()(a) suggests the factors that could appropriately be considered in deciding to refuse to grant or extend a temporary permit. That provision states that a regional committee of the Immigrants Selection Board may issue an immigration permit if the applicant (i) is of a good character; and (ii) will be a desirable inhabitant of the Republic; and (iii) is not likely to harm the welfare of the Republic; and (iv) does not and is not likely to pursue an occupation in which, in the opinion of the regional committee, a sufficient number of persons are

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available in the Republic to meet the requirements of the inhabitants of the Republic . . .

However, section () of the act states that a regional committee, notwithstanding the provisions of section (), may issue an immigration permit to a spouse of a permanent and lawful resident of South Africa. Section () does not substitute any other criteria for those provided by section ()(a). There is therefore no guidance to be found in either of these provisions as to the circumstances in which immigration officials or the DG may refuse to issue or extend a temporary residence permit. [] Can it nevertheless be said that the statute is reasonably capable of bearing a meaning that identifies factors relevant to the refusal to grant or extend permits that should be taken into consideration in addition to the marital or family status of the parties? In determining whether a legislative provision is reasonably capable of a particular meaning, the court must, as the Constitution requires, “promote the spirit, purport and objects of the Bill of Rights” [section ()]. [] The Constitution also makes it plain that all government officials when exercising their powers are bound by the provisions of the Constitution. So section () of the Constitution provides that “[t]he Bill of Rights applies to all law, and binds the Legislature, the Executive, the Judiciary and all organs of State.” There is, however, a difference between requiring a court or tribunal in exercising a discretion to interpret legislation in a manner that is consistent with the Constitution and conferring a broad discretion upon an official, who may be quite untrained in law and constitutional interpretation, and expecting that official, in the absence of direct guidance, to exercise the discretion in a manner consistent with the provisions of the Bill of Rights. Officials are often extremely busy and have to respond quickly and efficiently to many requests or applications. The nature of their work does not permit considered reflection on the scope of constitutional rights or the circumstances in which a imitation of such rights is justifiable. It is true that as employees of the state they bear a constitutional obligation to seek to promote the Bill of Rights as well. But it is important to interpret that obligation within the context of the role that administrative officials play in the framework of government, which is different from that played by judicial officers. [] The foregoing discussion assists in determining the interpretation of the relevant provisions that would best “promote the spirit, purport and objects of the Bill of Rights.” In the case of the statutory discretion at hand, there is no provision in the text providing guidance as to the circumstances relevant to a refusal to grant or extend a temporary permit. I am satisfied that, in the absence of such provisions, it would not promote the spirit, purport and objects of the Bill of Rights for this court to try to identify the circumstances in which the refusal of a temporary permit to a foreign spouse would be justifiable. Nor can we hold in the present case that it is enough to leave it to an official to determine when it will be justifiable to limit the right in the democratic society contemplated by section . Such an interpretation,

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of which there is no suggestion in the Act, would place an improperly onerous burden on officials, which in the constitutional scheme should properly be borne by a competent legislative authority. Its effect is almost inevitably that constitutional rights (as in the case of two of the respondents before this court) will be unjustifiably limited in some cases. Of even greater concern is the fact that those infringements may often go unchallenged and unremedied. The effect, therefore, of section ()(b) read with section () and () is that foreign spouses may be refused temporary permits in circumstances that constitute an infringement of their constitutional rights. [] The exact nature and effect of the deprivation of rights will depend on the circumstances of each case in which the grant or extension of a temporary residence permit is refused. The result of such a refusal will be that the foreign spouse will be required to leave South Africa pending the decision of the Regional Board on his or her application for an immigration permit. Even if the South African spouse is able to accompany his or her spouse to the foreign State, the limitation of the rights of the South African spouse is significant. It is aggravated by the fact that applicants do not know when their applications for immigration permits will be considered by the relevant regional committee. The limitation is even more substantial where the refusal of the permit results in the spouses being separated. Enforced separation places strain on any relationship. That strain may be particularly grave where spouses are indigent and not in a position to afford international travel, or where there are children born of the marriage. Indeed, it may well be that the enforced separation of the couple could destroy the marriage relationship altogether. Although these provisions do not deprive spouses entirely of the rights to marry and form a family, they nevertheless constitute a significant limitation of the right.

The Purpose, Importance, and Effect of Section ()(b) [] It is necessary now to turn to the second leg of the limitations analysis and consider the purpose, importance, and effect of section ()(b), taking into account whether there are means whereby that purpose could be achieved that would be less restrictive of the constitutional right at issue. As I have already said, the overall purpose of the act is clearly to control immigration into South Africa. The importance of this purpose cannot be disputed. The purpose of section ()(b) read with section () and () within this framework, however, is somewhat different. It affords a limited privilege to spouses and dependent children of people lawfully and permanently resident in South Africa by permitting them to remain in South Africa while their applications for immigration permits are considered as long as they are in possession of a valid temporary residence permit. This purpose is an important and legitimate one that recognizes the importance of family life. It is, however, dependent upon the exercise of the discretion conferred upon officials by section () and (). The exercise of the discretion to grant or extend temporary permits therefore determines in any particular case whether the privilege section ()(b) attempts to afford to spouses and other family members is in fact afforded to those

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intended beneficiaries. The absence of any guidance as to the factors relevant to the refusal of the grant or extension of such permits therefore considerably undermines the effect of the limited privilege afforded by section ()(b). [] We must not lose sight of the fact that rights enshrined in the Bill of Rights must be protected and may not be unjustifiably infringed. It is for the legislature to ensure that, when necessary, guidance is provided as to when limitation of rights will be justifiable. It is therefore not ordinarily sufficient for the legislature merely to say that discretionary powers that may be exercised in a manner that could limit rights should be read in a manner consistent with the Constitution in the light of the constitutional obligations placed on such officials to respect the Constitution. Such an approach would often not promote the spirit, purport and objects of the Bill of Rights. Guidance will often be required to ensure that the Constitution takes root in the daily practice of governance. Where necessary, such guidance must be given. Guidance could be provided either in the legislation itself or, where appropriate, by a legislative requirement that delegated legislation be properly enacted by a competent authority. [] Such guidance is demonstrably absent in this case. It is important that discretion be conferred upon immigration officials to make decisions concerning temporary permits. Discretion of this kind, though subject to review, is an important part of the statutory framework under consideration. However, no attempt has been made by the legislature to give guidance to decision-makers in relation to their power to refuse to extend or grant temporary permits in a manner that would protect the constitutional rights of spouses and family members.

Proportionality Analysis [] There is a clear limitation of the right to dignity caused by section ()(b) read with section () and (). Like all constitutional rights, that right is not absolute and may be limited in appropriate cases in terms of section () of the Constitution. As stated above, there can be no doubt that there will be circumstances when the constitutional right to dignity that protects the rights of spouses to cohabit may justifiably be limited by refusing the spouses the right to cohabit in South Africa even pending a decision upon an application for an immigration permit. As also stated earlier, it is for the legislature, in the first instance, to determine what those circumstances will be and to provide guidance to administrative officials to exercise their discretion accordingly. [] In this case, the legislature has sought to give a limited privilege to spouses and certain other family members through enacting section ()(b). However, when that subsection is read with section () and (), it is plain that the privilege afforded by section ()(b) may not in fact be of assistance to the groups section ()(b) seeks to assist (as indeed it was not for Mr. Shalabi or Mr. Thomas). The privilege is dependent upon the grant of a valid temporary permit. However, the statutory provisions contemplate the refusal of such a permit, but contain no indication of the

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considerations that would be relevant to such refusal. Whatever the language and purpose of section ()(b), its effect is uncertain in any specific case because of the discretionary powers contained in section () and (). The failure to identify the criteria relevant to the exercise of these powers in this case introduces an element of arbitrariness to their exercise that is inconsistent with the constitutional protection of the right to marry and establish a family. In my view, the effect of section ()(b) read with section () and () results in an unjustifiable infringement of the constitutional right of dignity of applicant spouses who are married to people lawfully and permanently resident in South Africa. There is no government purpose that I can discern that is achieved by the complete absence of guidance as to the countervailing factors relevant to the refusal of a temporary permit. In my view, therefore, section ()(b), as read with section () and (), of the act is unconstitutional.

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Christian Education South Africa

Christian Education South Africa v. Minister of Education  () SA  (CC) CASE SUMMARY

Facts Section  of the South African Schools Act  of  (SASA) prohibits the use of corporal punishment in schools. The appellant, a voluntary association, was an umbrella body of  independent Christian schools in South Africa that catered to some , pupils. The appellant contended that the blanket ban on administering corporal punishment in schools violated the religious freedom of parents of the children in those schools to consent to the school administering corporal punishment. The parents, and the voluntary association representing them, regard corporal punishment as integral to their conception of a Christian education. The appellant sought an exemption from section  of the act for its schools.

Legal History The appellants had mounted a long campaign to be exempted from the prohibition. They had made numerous, but ultimately unsuccessful, submissions to Parliament when the act was still a bill. After SASA was promulgated, the appellant sought direct access to the Constitutional Court for an order finding the act unconstitutional. The application was refused on procedural grounds. The appellant then applied to the South-Eastern Cape Local Division of the High Court for a similar order. The High Court found that the prohibition did not constitute a substantial

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infringement of the parents’ right to religious freedom. On the contrary, the High Court held that corporal punishment in schools infringed both the children’s right to dignity and freedom and security of the person and was not protected by any substantive provision of the Bill of Rights. The appellant then appealed to the Constitutional Court.

Issues Does SASA’s prohibition of corporal punishment in all schools unjustifiably limit the section  and section  religious rights of parents and learners? Decision of the Constitutional Court The court, assumed without any argument or discussion of the rights asserted, that SASA’s prohibition constituted a prima facie violation of the religious rights of parents and learners in terms of sections  (freedom of religion) and  (community rights) of the Constitution. In deciding that SASA’s limitation of sections  and  was justified, the court noted that parents were not precluded from bringing up their children in accordance with their religious beliefs, but simply that they could no longer authorize third parties (schools) to employ corporal punishment. The prohibition was part of a broader policy to transform the school system, reduce the amount of public and private violence in the country, and protect a very vulnerable class of denizens: children. Order The court dismissed the appeal. Comment The Constitutional Court’s decision in Christian Education South Africa contains valuable language about how our dignity jurisprudence tolerates legal asymmetries. The essence of dignity and equality under the South African Constitution, so says the judgment, is that it does not require that we treat everyone the same way, but that we treat everyone with equal concern and equal respect. The court then explains why the state is justified in barring corporal punishment in all schools and why it need not consider an exemption for such punishment when religious doctrine so dictates. The problem with the judgment is not its result. It is perfectly reasonable to override religious dictates and to bar corporal punishment that impairs the dignity of children. The problem is with the distinction between the practice of religion in schools and the practice of religion elsewhere, i.e., the home. If children lack the capacity to decide for themselves whether religious practices will prove deleterious to their health—and it therefore becomes incumbent upon the state to intervene on their behalf to protect their dignity—then it would seem reasonable to conclude that barring religiously sanctioned corporal punishment at home should be no different than barring religion sanctioned corporal punishment at school. But that is

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not what the court concludes. Rather, it contends that the parents “were not being obliged to make an absolute and strenuous choice between obeying a law of the land or of following their conscience. They could do both simultaneously” (paragraph ). That is, parents could follow their conscience at home—and use corporal punishment to discipline their children—but still obey the law of the land by having their children attend school free from corporal punishment. Can the court have it both ways? Either a child’s right to dignity is of such paramount importance that it precludes corporal punishment at home and at school, or the dignity interests of a religious community in practicing its faith justify corporal punishment in school and at home. To say, as the court does, that the crux of the matter is the use of a teacher as the instrument of religious discipline borders on sophistry. If the teacher is the parent or the school is at home, then the court’s basis for enabling the parents “to do both simultaneously” would evaporate. JUSTICE SACHS [] The appellant cited the following verses in the Bible as requiring its community members to use “corporal correction”: Proverbs : Train up a child in the way it should go and when he is old he will not depart from it. Proverbs : Foolishness is bound in the heart of a child, but the rod of correction shall drive it far from him. Proverbs : Chasten thy son while there is hope and let not thy soul spare for his crying. Proverbs : and  Do not withhold discipline from a child, if you punish with a rod he will not die. Punish him with a rod and save his soul from death.

In support of its contention that parents have a divinely imposed responsibility for the training and upbringing of their children, the appellant cites Deuteronomy :–: Hear, O-Israel! The Lord is our God, the Lord is one! And you shall love the Lord your God with all your heart and with all your soul and with all your might. And these words which I am commanding you today, shall be on your heart; and you shall teach them diligently to your sons and shall talk of them when you sit in your house and when you walk by the way and when you lie down and when you rise up.

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It contends that corporal punishment is a vital aspect of Christian religion and that it is applied in the light of its biblical context using biblical guidelines, which impose a responsibility on parents for the training of their children. [] It has further claimed that according to the Christian faith, parents continue to comply with their biblical responsibility by delegating their authority to punish their children to the teachers. By signing a document entitled “consent to corporal punishment,” they indicate that they understand corporal punishment to be inseparable from their understanding of their Christian faith and an expression of their religion. They further acknowledge that, if they do not wish a child of theirs to be subjected to corporal punishment, they are at liberty to remove such child from the school; otherwise they authorize the school to apply corporal correction. The correctional procedure to be followed includes giving the parents themselves the option to apply corporal punishment should they so wish. Should such option not be exercised, the correction is to be applied in the form of five strokes given by the principal, or a person delegated by him, with a cane, ruler, strap or paddle. [] While not doubting the sincerity of the appellant’s beliefs, Justice Liebenberg in the High Court found that the scriptures relied on provided “guidelines” to parents on the use of the rod, but did not sanction the delegation of that authority to teachers. He held that the authority to delegate to teachers was derived from the common law and the approach adopted by the appellant was merely “to clothe rules of the common law in religious attire.” He held that in the circumstances it had not been established that administering corporal punishment at schools formed part of religious belief. The judge, however, decided that as it was a test case he should consider the other arguments raised by the appellants. He assumed for the purposes of those arguments that administering corporal punishment at schools concerned a serious religious belief. He concluded that section  of the Schools Act did not constitute a substantial burden on religious freedom. He also held that corporal punishment in schools infringed the children’s right to dignity and security of the person and was accordingly not protected by section  of the Constitution. He therefore dismissed the application. [] The appellant applied for and was granted leave to appeal to this court on the grounds that the blanket prohibition in section  of the Schools Act infringes the following provisions of the Constitution: . Privacy Everyone has the right to privacy . . . . Freedom of religion, belief and opinion () Everyone has the right to freedom of conscience, religion, thought, belief and opinion. ... . Education ...

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() Everyone has the right to establish and maintain, at their own expense, independent educational institutions. . . . . Language and culture Everyone has the right to use the language and to participate in the cultural life of their choice, but no one exercising these rights may do so in a manner inconsistent with any provision of the Bill of Rights. . Cultural, religious and linguistic communities () Persons belonging to a cultural, religious or linguistic community may not be denied the right, with other members of that community (a) to enjoy their culture, practice their religion and use their language; and (b) to form, join and maintain cultural, religious and linguistic associations and other organs of civil society. () The rights in section () may not be exercised in a manner inconsistent with any provision of the Bill of Rights.

[] The respondent is the Minister of Education. He contends that it is the infliction of corporal punishment, not its prohibition, which infringes constitutional rights. More particularly, he contends that the claim of the appellant to be entitled to a special exemption to administer corporal punishment is inconsistent with the following provisions in the Bill of Rights: . Equality () Everyone is equal before the law and has the right to equal protection and benefit of the law. . Human dignity Everyone has inherent dignity and the right to have their dignity respected and protected. ... . Freedom and security of the person () Everyone has the right to freedom and security of the person, which includes the right— ... (c) to be free from all forms of violence from either public or private sources; (d) not to be tortured in any way; and (e) not to be treated or punished in a cruel, inhuman or degrading way. ... . Children () Every child has the right— ... (d) to be protected from maltreatment, neglect, abuse or degradation.

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He furthermore places reliance on section (), which states that section () rights “may not be exercised in a manner inconsistent with any provision of the Bill of Rights.” [] The affidavit states that the Schools Act passed later that year provided a single framework for public and independent schools and learners, based upon the rights, freedoms, and responsibilities inherent in the Constitution, including the dignity and equality of all persons. During the drafting process of the Schools Act, the respondent received support for the abolition of corporal punishment at schools from all the national student representative bodies and the two largest national teacher unions. Although not accepted, the appellant’s submissions on the Bill of Rights were indeed taken note of and seriously considered when Parliament consulted with interested parties during  and . [] The affidavit avers further that the advent of the new Constitution requires persons and groups to desist from practices that, according to their beliefs and traditions, may previously have been regarded as generally acceptable. In the past, public institutions had inflicted physical assaults upon citizens and other forms of abuse of their physical, emotional and psychological integrity. State policy and public practice had formerly permitted corporal punishment to be administered to children in schools, and also to juvenile and other offenders in prisons and other correctional institutions. In the light of the new constitutional order, state policy is now different. [] According to the affidavit, corporal punishment is inherently violent, and involves a degrading assault upon the physical, emotional, and psychological integrity of the person to whom it is administered. South Africans have suffered, and continue to suffer, a surfeit of violence. The state has an obligation to ensure that the learner’s constitutional rights are protected. It has an interest in ensuring that education in all schools is conducted in accordance with the spirit, content, and values of the Constitution. The affidavit avers that corporal punishment is incompatible with human dignity. Such punishment is degrading, unacceptable, and in violation of both the teacher’s and the learner’s human dignity. Even though it is significant that parents at the appellant’s schools do not object to corporal punishment, this factor cannot override the general concerns of the state and the Department of Education. [] Finally, the respondent states that the trend in democratic countries is to ban corporal punishment in schools. South Africa’s international obligations under the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, and the United Nations Convention on the Rights of the Child, require the abolition of corporal punishment in schools, since it involves subjecting children to violence and degrading punishment. Inasmuch as the outlawing of corporal punishment may limit other rights, such limitation is a reasonable and justifiable one in an open and democratic society based on human dignity, equality, and freedom.

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[] The respondent indicates that he does not doubt the sincerity of the beliefs of the parents, nor does he dispute their right to practice their religion in association with each other. Furthermore he does not challenge the right of these parents to administer corporal punishment at home, even if he does not necessarily approve of it. He asserts, however, that such conduct is not appropriate in schools or the education system. [] It is clear from the above that a multiplicity of intersecting constitutional values and interests are involved in the present matter—some overlapping, some competing. The parents have a general interest in living their lives in a community setting according to their religious beliefs, and a more specific interest in directing the education of their children. The child, who is at the center of the enquiry, is probably a believer and a member of a family and a participant in a religious community that seeks to enjoy such freedom. Yet the same child is also an individual person who may find himself “at the other end of the stick,” and as such be entitled to the protections of sections , , and . Then, the broad community has an interest in reducing violence wherever possible and protecting children from harm. The overlap and tension between the different clusters of rights reflect themselves in contradictory assessments of how the central constitutional value of dignity is implicated. On the one hand, the dignity of the parents may be negatively affected when the state tells them how to bring up and discipline their children and limits the manner in which they may express their religious beliefs. The child who has grown up in the particular faith may regard the punishment, although hurtful, as designed to strengthen his character. On the other hand, the child is being subjected to what an outsider might regard as the indignity of suffering a painful and humiliating hiding deliberately inflicted on him in an institutional setting. Indeed, it would be unusual if the child did not have ambivalent emotions. It is in this complex factual and psychological setting that the matter must be decided.

Sections  and  of the Constitution [] The appellant’s basic argument was that its rights of religious freedom as guaranteed by sections  and  had been infringed, and that those rights should be viewed cumulatively. It contended that the corporal correction applied in its schools with the authorization of the parent was not inconsistent with any provision of the Bill of Rights. Accordingly, the qualification contained in section () did not apply. It went on to argue that once it succeeded in establishing that the Schools Act substantially impacted upon its sincerely held religious beliefs, the failure of the Schools Act to provide an appropriate exemption could only pass constitutional muster if it were justified by a compelling state interest. [] The respondent contended, however, that the governing provision was section  and not section . The corporal punishment was delivered in the context of community activity in a school and accordingly it could only attract constitutional protection if in terms of section () it was not inconsistent with any other provision

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of the Bill of Rights; since corporal punishment at school violates the right to equality and the right to dignity, it forfeits any claim to constitutional regard. Alternatively, if corporal punishment in the appellant’s schools did not violate the Bill of Rights, its prohibition by the Schools Act was reasonable and justifiable in an open and democratic society. [] I will start with section , which deals with freedom of religion, belief, and opinion. The meaning of a similar provision in the Interim Constitution was considered by President Chaskalson in S v. Lawrence; S v. Negal; S v. Solberg [ () SA  (CC) ( () SACR ;  () BCLR )] where he made the following observation: In the [R v. Big M Drug Mart Ltd] case Chief Justice Dickson said: “The essence of the concept of freedom of religion is the right to entertain such religious beliefs as a person chooses the right to declare religious beliefs openly and without fear of hindrance or reprisal, and the right to manifest religious belief by worship and practice or by teaching and dissemination.” I cannot offer a better definition than this of the main attributes of freedom of religion. But, as Chief Justice Dickson went on to say, freedom of religion means more than this. In particular he stressed that freedom implies an absence of coercion or constraint and that freedom of religion may be impaired by measures that force people to act or refrain from acting in a manner contrary to their religious beliefs. This is what the Lord’s Day Act did; it compelled believers and non-believers to observe the Christian Sabbath.

[] This broad approach highlights that freedom of religion includes both the right to have a belief and the right to express such belief in practice. It also brings out the fact that freedom of religion may be impaired by measures that coerce persons into acting or refraining from acting in a manner contrary to their beliefs. Just as it is difficult to postulate a firm divide between religious thought and action based on religious belief, so it is not easy to separate the individual religious conscience from the collective setting in which it is frequently expressed. Religious practice often involves interaction with fellow believers. It usually has both an individual and a collective dimension and is often articulated through activities that are traditional and structured, and frequently ritualistic and ceremonial. This aspect is underlined by article () of the International Covenant on Civil and Political Rights (ICCPR) which states: Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching. (My emphasis.)

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[] The Interim Constitution, like the ICCPR, did not distinguish between personal and communal religious observances and practices. The final Constitution, however, makes specific provision in section  for the practice of religion in community with others. For this reason, much of the argument in this court and in the High Court was directed at the interpretation and application of this section. [] The respondent contended that the relief sought by the appellant in the present proceedings, confined as it was to a declaration that section  of the Schools Act was unconstitutional “to the extent that it is applicable to learners at . . . independent schools . . . whose parents or guardian have given consent to such corporal punishment,” depended upon section  of the Constitution, and should be dismissed because it failed to meet the requirement for the exercise of section  rights set by section (). This, the respondent contended, flowed from the fact that the administration of corporal punishment to scholars infringed their right to dignity under section  of the Constitution, their rights as children under section ()(d) of the Constitution “to be protected from maltreatment, neglect, abuse or degradation” and their right under section  of the Constitution to freedom and security of the person, which includes the right “to be free from all forms of violence from either public or private sources.” The respondent also contended that if corporal punishment is not prohibited by the Constitution, section  of the Schools Act, insofar as it may constitute a limitation of other fundamental rights, is a limitation that “is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom.” [] There are a number of other provisions designed to protect the rights of members of communities. They underline the constitutional value of acknowledging diversity and pluralism in our society and give a particular texture to the broadly phrased right to freedom of association contained in section . Taken together, they affirm the right of people to be who they are without being forced to subordinate themselves to the cultural and religious norms of others, and highlight the importance of individuals and communities being able to enjoy what has been called the “right to be different.” In each case, space has been found for members of communities to depart from a general norm. These provisions collectively and separately acknowledge the rich tapestry constituted by civil society, indicating in particular that language, culture, and religion constitute a strong weave in the overall pattern. [] It might well be that in the envisaged pluralistic society members of large groups can more easily rely on the legislative process than can those belonging to smaller ones, so that the latter might be specially reliant on constitutional protection, particularly if they express their beliefs in a way that the majority regard as unusual, bizarre or even threatening. Nevertheless, the interest protected by section  is not a statistical one dependent on a counter-balancing of numbers, but a qualitative one based on respect for diversity. [] It should be observed, further, that special care has been taken in the text expressly to acknowledge the supremacy of the Constitution and the Bill of Rights.

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Section () ensures that the concept of rights of members of communities that associate on the basis of language, culture, and religion, cannot be used to shield practices that offend the Bill of Rights. These explicit qualifications may be seen as serving a double purpose. The first is to prevent protected associational rights of members of communities from being used to “privatize” constitutionally offensive group practices and thereby immunize them from external legislative regulation or judicial control. This would be particularly important in relation to practices previously associated with the abuse of the notion of pluralism to achieve exclusivity, privilege, and domination. The second relates to oppressive features of internal relationships primarily within the communities concerned, where section , which regulates the horizontal application of the Bill of Rights, might be especially relevant. [] This is clearly an area where interpretation should be prudently undertaken so that appropriate constitutional analysis can be developed over time in the light of the multitude of different situations that will arise. If it is possible to decide the present matter without attempting to give definitive answers on a complex range of questions in a new field, many of which were not fully canvassed in argument, then such a course should be followed. In the present matter I think that it is possible to do so. For the purposes of this judgment, I shall adopt the approach most favorable to the appellant and assume without deciding that appellant’s religious rights under sections  and () are both at issue. I shall also assume, again without deciding, that corporal punishment as practiced by the appellant’s members is not “inconsistent with any provision of the Bill of Rights” as contemplated by section (). I assume therefore that section  of the Schools Act limits the parents’ religious rights both under section  and section . I shall consider, on these assumptions, whether section  of the Schools Act constitutes a reasonable and justifiable limitation of the parents’ practice of their rights under section  and section . [] On the basis of these assumptions made for the purposes of argument, I proceed to examine whether, under section , the negative impact which the Schools Act has on the practice of corporal correction in the schools of the appellant’s religious community, is to be regarded as reasonable and justifiable in an open and democratic society based on human dignity, freedom and equality. If, even applying the approach most favorable to the appellant, the answer is yes, then it will not be necessary to consider alternative interpretations which would be less supportive of the appellant’s position. [] Our Bill of Rights, through its limitations clause, expressly contemplates the use of a nuanced and context-sensitive form of balancing. Section  provides that: () The rights in the Bill of Rights may be limited only in terms of a 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, taking into account all relevant factors, including

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(a) the nature of the right; (b) the importance of the purpose of the limitation; (c) the nature and extent of the limitation; (d) the relation between the limitation and its purpose; and (e) less restrictive means to achieve the purpose.

[] [. . .] To sum up: limitations on constitutional rights can pass constitutional muster only if the court concludes that, considering the nature and importance of the right and the extent to which it is limited, such limitation is justified in relation to the purpose, importance and effect of the provision which results in this limitation, taking into account the availability of less restrictive means to achieve this purpose. Though there might be special problems attendant on undertaking the limitations analysis in respect of religious practices, the standard to be applied is the nuanced and contextual one required by section  and not the rigid one of strict scrutiny. [] Before setting out to apply the above approach to the facts of this case, I feel it necessary to comment generally on difficulties of proportionality analysis in the area of religious rights. The most complex problem is that the competing interests to be balanced belong to completely different conceptual and existential orders. Religious conviction and practice are generally based on faith. Countervailing public or private concerns are usually not and are evaluated mainly according to their reasonableness. To the extent that the two orders can be separated, with the religious being sovereign in its domain and the state sovereign in its domain, the need to balance one interest against the other is avoided. However religion is not always merely a matter of private individual conscience or communal sectarian practice. Certain religious sects do turn their back on the world, but many major religions regard it as part of their spiritual vocation to be active in the broader society. Not only do they proselytize through the media and in the public square, religious bodies play a large part in public life, through schools, hospitals and poverty relief. They command ethical behavior from their members and bear witness to the exercise of power by State and private agencies; they promote music, art and theatre; they provide halls for community activities, and conduct a great variety of social activities for their members and the general public. They are part of the fabric of public life, and constitute active elements of the diverse and pluralistic nation contemplated by the Constitution. Religion is not just a question of belief or doctrine. It is part of a way of life, of a people’s temper and culture.

The Nature of the Rights and the Scope of Their Limitation [] There can be no doubt that the right to freedom of religion, belief, and opinion in the open and democratic society contemplated by the Constitution is important. The right to believe or not to believe, and to act or not to act according to his or her beliefs or nonbeliefs, is one of the key ingredients of any person’s dignity. Yet freedom of religion goes beyond protecting the inviolability of the individual conscience. For

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many believers, their relationship with God or creation is central to all their activities. It concerns their capacity to relate in an intensely meaningful fashion to their sense of themselves, their community, and their universe. For millions in all walks of life, religion provides support and nurture and a framework for individual and social stability and growth. Religious belief has the capacity to awake concepts of selfworth and human dignity, which form the cornerstone of human rights. It affects the believer’s view of society and founds the distinction between right and wrong. It expresses itself in the affirmation and continuity of powerful traditions that frequently have an ancient character transcending historical epochs and national boundaries. [] As far as the members of the appellant are concerned, what is at stake is not merely a question of convenience or comfort, but an intensely held sense about what constitutes the good and proper life and their place in creation. No one in this matter contested that the appellant’s members sincerely believe that parents are obliged by scriptural injunction to use corporal correction as an integral part of the upbringing of their children. Furthermore, it has set up independent schools with the specific purpose of enabling parents to have their children educated in what they regard as a true Christian ethos. The impact of section  of the Schools Act on their religious and parental practices is, in their view, far from trivial. [] Yet, while they may no longer authorize teachers to apply corporal punishment in their name pursuant to their beliefs, parents are not being deprived by the Schools Act of their general right and capacity to bring up their children according to their Christian beliefs. The effect of the Schools Act is limited merely to preventing them from empowering the schools to administer corporal punishment. [] The state is further under a constitutional duty to take steps to help diminish the amount of public and private violence in society generally and to protect all people and especially children from maltreatment, abuse, or degradation. More specifically, by ratifying the United Nations Convention on the Rights of the Child, it undertook to take all appropriate measures to protect the child from violence, injury, or abuse. The Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief declares in article () that “[p]ractices of a religion or belief in which a child is brought up must not be injurious to his physical or mental health or to his full development.” [] The respondent contended that, in line with the above considerations, the state had two powerful interests in the matter. The first was to uphold the principle of equality. It contended that to affirm the existence of a special exemption in favor of religious practices of certain children only, would be to violate the equality provisions contained in section  of the Bill of Rights. More particularly, it would involve treating some children differently from others on grounds of their religion or the type of school they attended. I think this approach misinterprets the equality provisions. It is true that to single out a member of a religious community for disadvantageous treatment would, on the face of it, constitute unfair discrimination against that community. The contrary, however, does not hold. To grant respect to

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sincerely held religious views of a community and make an exception from a general law to accommodate them would not be unfair to anyone else who did not hold those views. As the court said in Prinsloo v. Van der Linde and Another [ () SA  (CC) ( () BCLR )], the essence of equality lies not in treating everyone in the same way but in treating everyone with equal concern and respect. Permission to allow the practice to continue would, in these circumstances, not be inconsistent with the equality provisions of the Bill of Rights. [] The second and more persuasive argument is to the effect that the State has an interest in protecting pupils from degradation and indignity. The respondent contended that the trend in Europe and neighboring African countries was firmly in the direction of abolition of corporal punishment, and that the core value of human dignity in our Bill of Rights did not countenance the use of physical force to achieve scholarly correction. Accordingly, respondent was under an obligation to prohibit such punishment, and to do so without exception and for the benefit of all children. The appellant replied that for believers, including the children involved, the indignity and degradation lay not in the punishment, but in the defiance of the scriptures represented by leaving the misdeeds unpunished; subjectively, for those who shared the religious outlook of the community, no indignity at all was involved. It argued further that internationally there was widespread judicial support for the view that physical punishment only became degrading when it passed a certain degree of severity. Appellant would be bound by limits set by the common law, and these limits would establish the standards to be applied. It did not contend that corporal punishment should be permitted in all schools, but asserted that its use should be allowed within reasonable limits in independent schools where parents, out of their religious convictions, had authorized it. The state interest, accordingly, did not extend to protecting the children in the appellant’s schools. [] The issue of whether corporal punishment in schools is in itself degrading was touched upon but not decided by this court in S v. Williams and Others [ () SA  (CC) ( () SACR ;  () BCLR )]. Holding that judicially ordered corporal punishment of juveniles was in conflict with the Bill of Rights, Justice Langa stated that “the issue of corporal punishment [in] schools [was] by no means free of controversy” and that “the practice [had] inevitably come in for strong criticism.” In his view, the “culture of authority which legitimate[d] the use of violence [was] inconsistent with the values for which the Constitution stands.” Speaking generally, he stated that: The deliberate infliction of pain with a cane on a tender part of the body as well as the institutionalized nature of the procedure, involves an element of cruelty in the system that sanction[ed] it. The activity is planned beforehand, it is deliberate. Whether the person administering the strokes has a cruel streak or not is beside the point. It could hardly be claimed, in a physical sense at least, that the act pains him more than his victim. The act is

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impersonal, executed by a stranger, in alien surroundings. The juvenile is, indeed, treated as an object and not as a human being.

[] Similarly, although not called upon to decide the constitutionality of corporal punishment meted out to school children, Chief Justice Dumbutshena in S v. A Juvenile [ () SA  (ZS)] nonetheless indicated that he would agree with the dissenting opinion of Mr. Klecker in the European Commission of Human Rights decision in Campbell and Cosans v. United Kingdom [()  EHRR ]: Corporal punishment amounts to a total lack of respect for the human being; it therefore cannot depend on the age of the human being . . . The sum total of adverse effects, whether actual or potential, produced by corporal punishment on the mental and moral development of a child is enough, as I see it, to describe it as degrading within the meaning of article  of the Convention.

[] The same sentiment was expressed by Acting Justice Mahomed in Ex parte Attorney-General, Namibia: In re Corporal Punishment by Organs of State [ () SA  (NmS)]. The issue here was whether the infliction of corporal punishment in government schools was contrary to article  of the Namibian Constitution. He noted that although punishment upon male students at government schools was regulated by a code issued by the Ministry of Education, Culture, and Sport, such punishment inflicted as some kind of sentence for acts of indiscipline remains an invasion on the dignity of the students sought to be punished. It is equally clearly open to abuse. It is often retributive. It is equally alienating. It is also equally degrading to the student sought to be punished, notwithstanding the fact that the head of the school who would ordinarily impose the punishment might be less of a stranger to the student concerned than a prison official who administers strokes upon a juvenile offender pursuant to a sentence imposed by a court.

The judgment, however, expressly left open the question of what the position might be in cases where a parent had actually delegated his or her powers of chastisement to a schoolmaster. In a concurring judgment Chief Justice Berker noted that although little agreement existed in respect of the desirability or otherwise of corporal punishment in schools, it seemed to him that once one has arrived at the conclusion that corporal punishment per se is impairing the dignity of the recipient or subjects him to degrading treatment or even to cruel or inhuman treatment or punishment, it does not on principle matter to what extent such corporal punishment is made subject to restrictions and limiting parameters, even of a substantial kind—even if very moderately

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applied and subject to very strict controls, the fact remains that any type of corporal punishment results in some impairment of dignity and degrading treatment.

[] The above cases support the argument of the respondent that the trend in Southern Africa has been strongly in favor of regarding corporal punishment in schools as in itself violatory of the dignity of the child. At the same time, they do indicate that the issue is subject to controversy and in particular, that the express delegation of consent by the parents might have a bearing on the extent of the State interest. Section  of the Constitution now adds to the rights protected by the Interim Constitution the following provisions: () Everyone has the right to freedom and security of the person, which includes the right ... (c) to be free from all forms of violence whether from public or private sources ... () Everyone has the right to bodily and psychological integrity, which includes the right ... (b) to security in and control over their body . . .

It should be noted that these rights to be violence-free are additional to and not substitutes for the right not to be punished in a cruel, inhuman or degrading way. Under section () the state is obliged to “respect, protect, promote, and fulfill” these rights. It must accordingly take appropriate steps to reduce violence in public and private life. Coupled with its special duty towards children, this obligation represents a powerful requirement on the State to act. [] The present matter does not oblige us to decide whether corporal correction by parents in the home, if moderately applied, would amount to a form of violence from a private source. Whether or not the common law has to be developed so as further to regulate or even prohibit caning in the home, is not an issue before us. The Schools Act does not purport to reach the home or practices in the home. [] We cannot, however, forget that, on the facts as supplied by the appellant, corporal punishment administered by a teacher in the institutional environment of a school is quite different from corporal punishment in the home environment. Section  grants protection to schoolchildren by prohibiting teachers from administering corporal punishment. Such conduct happens not in the intimate and spontaneous atmosphere of the home, but in the detached and institutional environment of the school. Equally, it is not possible to ignore either our painful past history when the claims of protesting youth were met with force rather than reason, or the

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extent of traumatic child abuse practiced in our society today. These latter factors in no way touch on the sincerity of appellant’s beliefs, or on the spiritual integrity with which their activities are pursued. Nor has it been suggested that the corporal punishment applied in the appellant’s schools constitutes violence of like dimension. Yet such broad considerations taken from past and present are highly relevant to the degree of legitimate concern that the state may have in an area loaded with social pain. They also indicate the real difficulties the state may have when asked to make exemptions even for the most honorable of persons.

Proportionality Analysis [] The measure was part and parcel of a legislative scheme designed to establish uniform educational standards for the country. Educational systems of a racist and grossly unequal character, and operating according to a multiplicity of norms in a variety of fragmented institutions, had to be integrated into one broad educational dispensation. Parliament wished to make a radical break with an authoritarian past. As part of its pedagogical mission, the Department of Education sought to introduce new principles of learning in terms of which problems were solved through reason rather than force. In order to put the child at the center of the school and to protect the learner from physical and emotional abuse, the legislature prescribed a blanket ban on corporal punishment. In its judgment, which was directly influenced by its constitutional obligations, general prohibition rather than supervised regulation of the practice was required. The ban was part of a comprehensive process of eliminating state-sanctioned use of physical force as a method of punishment. The outlawing of physical punishment in the school accordingly represented more than a pragmatic attempt to deal with disciplinary problems in a new way. It had a principled and symbolic function, manifestly intended to promote respect for the dignity and physical and emotional integrity of all children. It might in appropriate cases be easier to carve out exemptions from general measures that are purely administrative, regulatory or commercial in character than from those that have principled foundations and are deliberately designed to transform national civic consciousness in a major way. Even a few examples of authorized corporal punishment in an institution functioning in the public sphere would do more than simply inconvenience the state or put it to extra expense. The whole symbolic, moral and pedagogical purpose of the measure would be disturbed, and the state’s compliance with its duty to protect people from violence would be undermined.

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Hoffmann

Hoffmann v. South African Airways  () SA  (CC) CASE SUMMARY

Facts Mr. Hoffmann applied for a position as a cabin attendant with South African Airways (SAA). After successfully making it through the four-stage selection process, he was considered a suitable candidate. His employment, however, was subject to a medical examination. That battery of tests encompassed an HIV test. The medical examination showed that he was clinically fit and suitable to be a cabin attendant; the blood test showed that he was HIV-positive. Based upon the positive test for HIV alone, SAA decided that Hoffmann could not be employed as a cabin attendant. Hoffmann approached the High Court for an order directing SAA to employ him as a cabin attendant: their refusal to do so, on his account, constituted a violation of his rights to equality, dignity, and fair labor practices. SAA attempted to justify its decision on the grounds that all its cabin crew had to be fit for worldwide duty. As Mr. Hoffmann was HIV-positive, he could not receive a number of vaccinations necessary to enter some countries (for example, yellow fever). SAA also contended that Hoffmann’s condition raised the specter of contracting opportunistic diseases and transmitting them to fellow employees and passengers.

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Legal History The Witwatersrand Local Division of the High Court was persuaded by the arguments of SAA and dismissed Mr. Hoffmann’s application. The Constitutional Court then granted Mr. Hoffmann leave to appeal directly. Issues Two questions had to be answered: Was the SAA’s employment practice inconsistent with any provision of the Bill of Rights? And if so, what right had been violated and what remedy would constitute appropriate relief? Decision of the Constitutional Court On appeal, extensive medical evidence of the nature and the effect of HIV was presented by the Aids Law Project (acting as amicus curiae.) The evidence demonstrated that an asymptomatic HIV-positive person can perform the work of a cabin attendant competently and that the risks to passengers and other third parties arising from an asymptomatic HIV-positive cabin crew member are inconsequential. If necessary, then well-established precautions could be utilized. The evidence also showed that HIV-positive persons may be vaccinated against yellow fever as long as their CD+ count remains above a certain level. Justice Ngcobo, for a unanimous court, held that it was clear that Mr. Hoffmann had been subject to unfair discrimination (paragraph ). He held that while the commercial interests of SAA were important, employment practices based upon prejudice and ignorance could not justify discrimination (paragraph ), and that the refusal to employ Mr. Hoffmann impaired his dignity and unfairly discriminated against him. As there was no law of general application, the discriminatory policy could not be justified in terms of section  of the Constitution. Order Justice Ngcobo held that the appropriate remedy was Mr. Hoffmann’s instatement as an SAA cabin crew member. Comment Is the court correct in finding that only SAA’s conduct—and no law—is responsible for the unfair discrimination and the impairment of dignity? Is it not true that on the Hohfeldian account a rule of law would always have allowed a court to dispose of a matter one way or another? That is, isn’t there always a rule of law upon which a party in a dispute seeks to rely? Why are the dignity-as-freedom interests relied on in Barkhuizen not mentioned in the contractual setting of Hoffmann?

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JUSTICE NGCOBO [] This appeal concerns the constitutionality of South African Airways’ (SAA) practice of refusing to employ as cabin attendants people who are living with the Human Immunodeficiency Virus (HIV). Two questions fall to be answered: first, is such a practice inconsistent with any provision of the Bill of Rights; and second, if so, what is the appropriate relief in this case? [] Mr. Hoffmann, the appellant, is living with HIV. He was refused employment as a cabin attendant by SAA because of his HIV-positive status. He unsuccessfully challenged the constitutionality of the refusal to employ him in the Witwatersrand High Court (the High Court) various constitutional grounds. The High Court issued a positive certificate and this court granted him leave to appeal directly to it. [] The appellant challenged the constitutionality of the refusal to employ him in the High Court, alleging that the refusal constituted unfair discrimination and violated his constitutional right to equality, human dignity and fair labor practices. He sought an order in motion proceedings, amongst other things, directing SAA to employ him as a cabin attendant. [] On the medical evidence, an asymptomatic HIV positive person can perform the work of a cabin attendant competently. Any hazards to which an immunocompetent cabin attendant may be exposed can be managed by counseling, monitoring, vaccination, and the administration of the appropriate antibiotic prophylaxis if necessary. Similarly, the risks to passengers and other third parties arising from an asymptomatic HIV-positive cabin crew member are therefore inconsequential and, if necessary, well-established universal precautions can be utilized. In terms of Professor Schoub’s affidavit, even immunosuppressed persons are not prone to opportunistic infections and may be vaccinated against yellow fever as long as their CD+ count remains above a certain level.

The Issues on Appeal [] Confronted by the consensus among medical experts, including its own expert, on the nature of the HIV disease, its transmission, progression, tracking its progression and treatment, as well as the ability of HIV-positive persons to be vaccinated against yellow fever, SAA now concedes that (a) its employment practice of refusing to employ people as cabin attendants because they are living with HIV cannot be justified on medical grounds; and (b) therefore, its refusal to consider employing the appellant because he was living with HIV was unfair. [] Despite these concessions, it is the duty of this court to determine whether any constitutional rights of the appellant were violated by SAA and, if so, the appropriate relief to which the appellant is entitled.

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[] I now turn to consider whether any constitutional rights have been violated by the refusal to employ the appellant as a cabin attendant. The appellant alleges that his rights to equality, human dignity, and fair labor practices have been violated.

The Right to Equality [] The relevant provisions of the equality clause, contained in section  of the Constitution, provide: () Everyone is equal before the law and has the right to equal protection and benefit of the law. () 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. ... () Discrimination on one or more of the grounds listed in subsection () is unfair unless it is established that the discrimination is fair.’

[] Transnet is a statutory body, under the control of the state, which has public powers and performs public functions in the public interest. It was common cause that SAA is a business unit of Transnet. As such, it is an organ of state and is bound by the provisions of the Bill of Rights in terms of section (), read with section , of the Constitution. It is, therefore, expressly prohibited from discriminating unfairly. [] This court has previously dealt with challenges to statutory provisions and government conduct alleged to infringe the right to equality. Its approach to such matters involves three basic enquiries: first, whether the provision under attack makes a differentiation that bears a rational connection to a legitimate government purpose. If the differentiation bears no such rational connection, there is a violation of section (). If it bears such a rational connection, the second enquiry arises. That enquiry is whether the differentiation amounts to unfair discrimination. If the differentiation does not amount to unfair discrimination, the enquiry ends there and there is no violation of section (). If the discrimination is found to be unfair, this will trigger the third enquiry, namely whether it can be justified under the limitations provision. Whether the third stage, however, arises will further be dependent on whether the measure complained of is contained in a law of general application. [] Mr. Trengove sought to apply this analysis to SAA’s employment practice in the present case. He contended that the practice was irrational because, first, it disqualified from employment as cabin attendants all people who are HIV positive, yet objective medical evidence shows that not all such people are unsuitable for employment as cabin attendants; second, the policy excludes prospective cabin attendants who are HIV positive but does not exclude existing cabin attendants who are likewise

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HIV positive, yet the existing cabin attendants who are HIV positive would pose the same health, safety, and operational hazards asserted by SAA as the basis on which it was justifiable to discriminate against applicants for employment who are HIV positive. [] In the view I take of the unfairness of the discrimination involved here, it is not necessary to embark upon the rationality enquiry or to reach any firm conclusion on whether it applies to the conduct of all organs of state or whether the practice in issue in this case was irrational. [] At the heart of the prohibition of unfair discrimination is the recognition that under our Constitution all human beings, regardless of their position in society, must be accorded equal dignity. That dignity is impaired when a person is unfairly discriminated against. The determining factor regarding the unfairness of the discrimination is its impact on the person discriminated against. Relevant considerations in this regard include the position of the victim of the discrimination in society, the purpose sought to be achieved by the discrimination, the extent to which the rights or interests of the victim of the discrimination have been affected and whether the discrimination has impaired the human dignity of the victim. [] The appellant is living with HIV. People who are living with HIV constitute a minority. Society has responded to their plight with intense prejudice. They have been subjected to systemic disadvantage and discrimination. They have been stigmatized and marginalized. As the present case demonstrates, they have been denied employment because of their HIV positive status without regard to their ability to perform the duties of the position from which they have been excluded. Society’s response to them has forced many of them not to reveal their HIV status for fear of prejudice. This in turn has deprived them of the help they would otherwise have received. People who are living with HIV/AIDS are one of the most vulnerable groups in our society. Notwithstanding the availability of compelling medical evidence as to how this disease is transmitted, the prejudices and stereotypes against HIV positive people still persist. In view of the prevailing prejudice against HIV positive people, any discrimination against them can, to my mind, be interpreted as a fresh instance of stigmatization and I consider this to be an assault on their dignity. The impact of discrimination on HIV positive people is devastating. It is even more so when it occurs in the context of employment. It denies them the right to earn a living. For this reason they enjoy special protection in our law. [] Legitimate commercial requirements are, of course, an important consideration in determining whether to employ an individual. However, we must guard against allowing stereotyping and prejudice to creep in under the guise of commercial interests. The greater interests of society require the recognition of the inherent dignity of every human being and the elimination of all forms of discrimination. Our Constitution protects the weak, the marginalized, the socially outcast, and the victims of prejudice and stereotyping. It is only when these groups are protected that we can be secured that our own rights are protected.

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[] The need to promote the health and safety of passengers and crew is important. So is the fact that if SAA is not perceived to be promoting the health and safety of its passengers and crew this may undermine the public perception of it. Yet the devastating effects of HIV infection and the widespread lack of knowledge about it have produced a deep anxiety and considerable hysteria. Fear and ignorance can never justify the denial to all people who are HIV positive of the fundamental right to be judged on their merits. Our treatment of people who are HIV positive must be based on reasoned and medically sound judgments. They must be protected against prejudice and stereotyping. We must combat erroneous, but nevertheless prevalent, perceptions about HIV. The fact that some people who are HIV positive may, under certain circumstances, be unsuitable for employment as cabin attendants does not justify a blanket exclusion from the position of cabin attendant of all people who are HIV positive. [] The constitutional right of the appellant not to be unfairly discriminated against cannot be determined by ill-informed public perception of persons with HIV. Nor can it be dictated by the policies of other airlines not subject to our Constitution. [] Prejudice can never justify unfair discrimination. This country has recently emerged from institutionalized prejudice. Our law reports are replete with cases in which prejudice was taken into consideration in denying the rights that we now take for granted. Our constitutional democracy has ushered in a new era—it is an era characterized by respect for human dignity for all human beings. In this era, prejudice and stereotyping have no place. Indeed, if as a nation we are to achieve the goal of equality that we have fashioned in our Constitution we must never tolerate prejudice, either directly or indirectly. SAA, as a state organ that has a constitutional duty to uphold the Constitution, may not avoid its constitutional duty by bowing to prejudice and stereotyping. [] People who are living with HIV must be treated with compassion and understanding. We must show uBuntu towards them. They must not be condemned to “economic death” by the denial of equal opportunity in employment. This is particularly true in our country, where the incidence of HIV infection is said to be disturbingly high. The remarks made by Justice Tipnis in MX of Bombay, Indian Inhabitant v. M/s ZY and Another [ AIR (Bombay) ] are apposite in this context: In our opinion, the state and public corporations like respondent No  cannot take a ruthless and inhuman stand that they will not employ a person unless they are satisfied that the person will serve during the entire span of service from the employment till superannuation. As is evident from the material to which we have made a detailed reference in the earlier part of this judgment, the most important thing in respect of persons infected with HIV is the requirement of community support, economic support and nondiscrimination of such person. This is also necessary for prevention and con-

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trol of this terrible disease. Taking into consideration the widespread and present threat of this disease in the world in general and this country in particular, the state cannot be permitted to condemn the victims of HIV infection, many of whom may be truly unfortunate, to certain economic death. It is not in the general public interest and is impermissible under the Constitution. The interests of the HIV positive persons, the interests of the employer and the interests of the society will have to be balanced in such a case.

[] Having regard to all these considerations, the denial of employment to the appellant because he was living with HIV impaired his dignity and constituted unfair discrimination. This conclusion makes it unnecessary to consider whether the appellant was discriminated against on a listed ground of disability as set out in section () of the Constitution, as Mr. Trengove contended, or whether people who are living with HIV ought not to be regarded as having a disability, as contended by the amicus. [] I conclude, therefore, that the refusal by SAA to employ the appellant as a cabin attendant because he was HIV positive violated his right to equality guaranteed by section  of the Constitution. The third enquiry, namely whether this violation was justified, does not arise. We are not dealing here with a law of general application. This conclusion makes it unnecessary to consider the other constitutional attacks based on human dignity and fair labor practices. It now remains to consider the remedy to which the appellant is entitled.

Remedy [] Section  of the Constitution provides that where a right contained in the Bill of Rights has been infringed, “the Court may grant appropriate relief.” In the context of our Constitution “appropriate relief ” must be construed purposively, and in the light of section ()(b), which empowers the court, in constitutional matters, to make “any order that is just and equitable.” Thus construed, appropriate relief must be fair and just in the circumstances of the particular case. Indeed, it can hardly be said that relief that is unfair or unjust is appropriate. As Justice Ackermann remarked in the context of a comparable provision in the Interim Constitution, “[i]t can hardly be argued, in my view, that relief which was unjust to others could, where other available relief meeting the complainant’s needs did not suffer from this defect, be classified as appropriate.” Appropriateness, therefore, in the context of our Constitution, imports the elements of justice and fairness. [] Fairness requires a consideration of the interests of all those who might be affected by the order. In the context of employment, this will require a consideration not only of the interests of the prospective employee but also the interests of the employer. In other cases, the interests of the community may have to be taken into consideration. In the context of unfair discrimination, the interests of the community lie in the recognition of the inherent dignity of every human being and the elimination

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of all forms of discrimination. This aspect of the interests of the community can be gathered from the preamble to the Constitution in which the people of this country declared: We, the people of South Africa, Recognize the injustices of our past; . . . We therefore, through our freely elected representatives, adopt this Constitution as the supreme law of the Republic so as to— Heal the divisions of the past and establish a society based on democratic values, social justice and fundamental human rights . . .

[] This proclamation finds expression in the founding provisions of the Constitution, which include “human dignity, the achievement of equality and the advancement of human rights and freedoms.” [] The determination of appropriate relief, therefore, calls for the balancing of the various interests that might be affected by the remedy. The balancing process must at least be guided by the objective, first, to address the wrong occasioned by the infringement of the constitutional right; second, to deter future violations; third, to make an order that can be complied with; and fourth, of fairness to all those who might be affected by the relief. Invariably, the nature of the right infringed and the nature of the infringement will provide guidance as to the appropriate relief in the particular case. Therefore, in determining appropriate relief, “we must carefully analyze the nature of [the] constitutional infringement, and strike effectively at its source.”

Is Instatement the Appropriate Relief? [] An order of instatement, which requires an employer to employ an employee, is a basic element of the appropriate relief in the case of a prospective employee who is denied employment for reasons declared impermissible by the Constitution. It strikes effectively at the source of unfair discrimination. It is an expression of the general rule that, where a wrong has been committed, the aggrieved person should, as a general matter and as far as is possible, be placed in the same position the person would have been but for the wrong suffered. In proscribing unfair discrimination, the Constitution not only seeks to prevent unfair discrimination but also to eliminate the effects thereof. In the context of employment the attainment of that objective rests not only upon the elimination of the discriminatory employment practice but also requires that the person who has suffered a wrong as a result of unlawful discrimination be, as far as possible, restored to the position in which he or she would have been but for the unfair discrimination. [] Where a person has been wrongfully denied employment, the fullest redress obtainable is instatement. Instatement serves an important constitutional objective. It redresses the wrong suffered and thus eliminates the effect of the unfair discrimination. It sends a message that under our Constitution discrimination will not be tolerated

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and thus ensures future compliance. In the end, it vindicates the Constitution and enhances our faith in it. It restores the human dignity of the person who has been discriminated against, achieves equality of employment opportunities and removes the barriers that have operated in the past in favor of certain groups, and in the process advances human rights and freedoms for all. All these are founding values in our Constitution.

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Grootboom

Government of the Republic of South Africa and Others v. Grootboom and Others  () SA  (CC) CASE SUMMARY

Facts This case emanates from the tragic housing shortage created by and inherited from apartheid South Africa. Mrs. Grootboom and most of the other respondents had previously lived in squalid conditions in an informal settlement known as Wallacedene. Wallacedene residents had no water, sewerage, or refuse removal services. Only  percent of the shacks had electricity. Almost half of the people living in Wallacedene were children, more than  percent were unemployed, and the majority earned less than R a month. Many residents had applied for low-cost housing. After seven years they were no closer to being allocated a house. In the late s, the respondents began moving out of Wallacedene and putting up their shacks and shelters on a vacant piece of privately owned land that had been ear-marked for low-cost housing. The owner of the land instituted eviction proceedings. Although a settlement was reached, the respondents were forcibly evicted at the municipality’s expense. With nowhere else to go, the respondents set up temporary shelter on the Wallacedene sports field. However these shelters provided little comfort when the first Cape winter rains arrived. The respondents applied to the Cape Provincial Division of the High Court for an order requiring government to provide them with adequate basic shelter or housing until they obtained permanent accommodation.

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Legal History In the High Court, the respondents relied both on the right to access to housing located in section () and the right of children to adequate shelter enshrined in section ()(c). The High Court rejected the claim under section (). It held that the government had acted reasonably in trying to provide housing to the many people who were homeless. However, the High Court upheld the section ()(c) claim and required the government to provide housing for all the children and their families. Issues Did the state’s failure to provide rudimentary shelter to the respondents violate its obligations under section  (the right to housing) and section  (the rights of the child) of the Constitution? Decision of the Court Justice Yacoob, for a unanimous court, began by noting that this “case brings home the harsh reality that the Constitution’s promise of dignity and equality for all remains for many a distant dream” (paragraph ). The pervasive and ongoing denial of basic socio-economic entitlements to a large portion of South Africans—the absence of those goods necessary to choose a life worth living—served as the unifying theme for the entire judgment. Justice Yacoob wrote: “There can be no doubt that human dignity, freedom and equality, the foundational values of our society, are denied those who have no food, clothing or shelter” (paragraph ). As to the substance of the matter, the court rejected an argument that the ambit of right to housing—“progressively realizable” by the state—encompassed a “minimum core” of entitlements that had to be delivered to individuals or communities immediately (paragraphs –). Instead, the court adopted the now accepted standard for most socio-economic rights analysis: reasonableness. In order to be deemed to have acted reasonably, the state would have to adopt and to implement a program that would be reasonably capable of progressively realizing the right to adequate housing. The plan would have to set out clear criteria for meeting long-term, medium-term, and short-terms goals, ensure both the financial and administrative capacity required to meet those goals and be able to respond to those persons in a crisis situation (paragraphs –). The court found that the current government housing plan failed to meet virtually all of those criteria. That said, the court’s finding did not entitle the applicants to any immediate relief. It only required that the state create a plan that meets the “reasonable” constitutional standards it had just laid down. It followed, therefore, that the court would have to reject the claim based on section ()(c). The state was only obliged to create the administrative and legal infrastructure to allow parents to provide for their children and fulfill their existing socio-economic duties to the parents.

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Comment Grootboom firmly establishes the link between dignity and socio-economic rights: when a person is deprived of housing, food, healthcare, water or social security, their dignity is also impaired. But what does this connection tell us about dignity? Most obviously, it makes clear that dignity is linked to an individual’s physical condition—they cannot be treated as mere physical objects to be whipped or to be entirely ignored. More interestingly, however, the connection between dignity and socio-economic rights illuminates the social element of dignity. Dignity is more than an individual entitlement to a certain level of treatment from some abstract state: “Dignity is that which binds us together as a community.”1 As the Constitutional Court put it in a later case: “It is not only the dignity of the poor that is assailed when homeless people are driven from pillar to post in a desperate quest for where they and their families can rest their heads. Our society as a whole is demeaned when state action intensifies rather than mitigates their marginalization.”2 JUSTICE YACOOB [] The people of South Africa are committed to the attainment of social justice and the improvement of the quality of life for everyone. The preamble to our Constitution records this commitment. The Constitution declares the founding values of our society to be “[h]uman dignity, the achievement of equality and the advancement of human rights and freedoms.” This case grapples with the realization of these aspirations for it concerns the state’s constitutional obligations in relation to housing: a constitutional issue of fundamental importance to the development of South Africa’s new constitutional order. [] The issues here remind us of the intolerable conditions under which many of our people are still living. The respondents are but a fraction of them. It is also a reminder that, unless the plight of these communities is alleviated, people may be tempted to take the law into their own hands in order to escape these conditions. The case brings home the harsh reality that the Constitution’s promise of dignity and equality for all remains for many a distant dream. People should not be impelled by intolerable living conditions to resort to land invasions. Self-help of this kind cannot be tolerated, for the unavailability of land suitable for housing development is a key factor in the fight against the country’s housing shortage. [] Like all the other rights in chapter  of the Constitution (which contains the Bill of Rights), section  must be construed in its context. The section has been carefully crafted. It contains three subsections. The first confers a general right of access to adequate housing. The second establishes and delimits the scope of the positive obligation imposed upon the state to promote access to adequate housing and has three key elements. The state is obliged:

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(a) to take reasonable legislative and other measures; (b) within its available resources; (c) to achieve the progressive realization of this right. These elements are discussed later. The third subsection provides protection against arbitrary evictions. [] Interpreting a right in its context requires the consideration of two types of context. On the one hand, rights must be understood in their textual setting. This will require a consideration of chapter  and the Constitution as a whole. On the other hand, rights must also be understood in their social and historical context. [] Our Constitution entrenches both civil and political rights and social and economic rights. All the rights in our Bill of Rights are interrelated and mutually supporting. There can be no doubt that human dignity, freedom, and equality, the foundational values of our society, are denied those who have no food, clothing, or shelter. Affording socio-economic rights to all people therefore enables them to enjoy the other rights enshrined in chapter . The realization of these rights is also key to the advancement of race and gender equality and the evolution of a society in which men and women are equally able to achieve their full potential. [] The right of access to adequate housing cannot be seen in isolation. There is a close relationship between it and the other socio-economic rights. Socio-economic rights must all be read together in the setting of the Constitution as a whole. The state is obliged to take positive action to meet the needs of those living in extreme conditions of poverty, homelessness, or intolerable housing. Their interconnectedness needs to be taken into account in interpreting the socio-economic rights, and, in particular, in determining whether the state has met its obligations in terms of them. [] Rights also need to be interpreted and understood in their social and historical context. The right to be free from unfair discrimination, for example, must be understood against our legacy of deep social inequality. The context in which the Bill of Rights is to be interpreted was described by President Chaskalson in Soobramoney [v. Minister of Health, KwaZulu-Natal  () SA  (CC) ( () BCLR )]: We live in a society in which there are great disparities in wealth. Millions of people are living in deplorable conditions and in great poverty. There is a high level of unemployment, inadequate social security, and many do not have access to clean water or to adequate health services. These conditions already existed when the Constitution was adopted and a commitment to address them, and to transform our society into one in which there will be human dignity, freedom and equality, lies at the heart of our new constitutional order. For as long as these conditions continue to exist that aspiration will have a hollow ring. ( () SA )

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The Relevant International Law and Its Impact [] During argument, considerable weight was attached to the value of international law in interpreting section  of our Constitution. Section  of the Constitution obliges a court to consider international law as a tool to interpretation of the Bill of Rights. In Makwanyane President Chaskalson, in the context of section () of the Interim Constitution, said: [P]ublic international law would include nonbinding as well as binding law. They may both be used under the section as tools of interpretation. International agreements and customary international law accordingly provide a framework within which [the Bill of Rights] can be evaluated and understood, and for that purpose, decisions of tribunals dealing with comparable instruments, such as the United Nations Committee on Human Rights, the Inter-American Commission on Human Rights, the Inter-American Court of Human Rights, the European Commission on Human Rights, and the European Court of Human Rights, and, in appropriate cases, reports of specialized agencies such as the International Labour Organisation, may provide guidance as to the correct interpretation of particular provisions of [the Bill of Rights].

The relevant international law can be a guide to interpretation but the weight to be attached to any particular principle or rule of international law will vary. However, where the relevant principle of international law binds South Africa, it may be directly applicable. [] The amici submitted that the International Covenant on Economic, Social and Cultural Rights (the Covenant) is of significance in understanding the positive obligations created by the socio-economic rights in the Constitution. Article . of the Covenant provides: The state’s parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions. The States Parties will take appropriate steps to ensure the realization of this right, recognizing to this effect the essential importance of international co-operation based on free consent.

This article must be read with article . which provides: Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in

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the present Covenant by all appropriate means, including particularly the adoption of legislative measures.

[] The differences between the relevant provisions of the Covenant and our Constitution are significant in determining the extent to which the provisions of the Covenant may be a guide to an interpretation of section . These differences, insofar as they relate to housing, are: (a) The Covenant provides for a right to adequate housing while section  provides for the right of access to adequate housing. (b) The Covenant obliges state parties to take appropriate steps which must include legislation while the Constitution obliges the South African state to take reasonable legislative and other measures. [] The obligations undertaken by states parties to the Covenant are monitored by the United Nations Committee on Economic, Social and Cultural Rights (the committee). The amici relied on the relevant general comments issued by the committee concerning the interpretation and application of the Covenant, and argued that these general comments constitute a significant guide to the interpretation of section . In particular they argued that in interpreting this section, we should adopt an approach similar to that taken by the committee in paragraph  of general comment  issued in , in which the committee found that socio-economic rights contain a minimum core: . On the basis of the extensive experience gained by the Committee, as well as by the body that preceded it, over a period of more than a decade of examining state parties’ reports the Committee is of the view that minimum core obligation to ensure the satisfaction of, at the very least, minimum essential levels of each of the rights is incumbent upon every state party. Thus, for example, a state party in which any significant number of individuals is deprived of essential foodstuffs, of essential primary health care, of basic shelter and housing, or of the most basic forms of education, is prima facie, failing to discharge its obligations under the Covenant. If the Covenant were to be read in such a way as not to establish such a minimum core obligation, it would be largely deprived of its raison d’être. By the same token, it must be noted that any assessment as to whether a state has discharged its minimum core obligation must also take account of resource constraints applying within the country concerned. Article () obligates each state party to take the necessary steps “to the maximum of its available resources.” In order for a state party to be able to attribute its failure to meet at least its minimum core obligations to a lack of available resources it must demonstrate that every effort

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has been made to use all resources that are at its disposition in an effort to satisfy, as a matter of priority, those minimum obligations.

[] It is clear from this extract that the committee considers that every state party is bound to fulfill a minimum core obligation by ensuring the satisfaction of a minimum essential level of the socio-economic rights, including the right to adequate housing. Accordingly, a state in which a significant number of individuals are deprived of basic shelter and housing is regarded as prima facie in breach of its obligations under the Covenant. A state party must demonstrate that every effort has been made to use all the resources at its disposal to satisfy the minimum core of the right. However, it is to be noted that the general comment does not specify precisely what that minimum core is. [] The concept of minimum core obligation was developed by the committee to describe the minimum expected of a state in order to comply with its obligation under the Covenant. It is the floor beneath which the conduct of the state must not drop if there is to be compliance with the obligation. Each right has a “minimum essential level” that must be satisfied by the state parties. The committee developed this concept based on “extensive experience gained by [it] . . . over a period of more than a decade of examining State parties’ reports.” The general comment is based on reports furnished by the reporting states and the general comment is therefore largely descriptive of how the states have complied with their obligations under the Covenant. The committee has also used the general comment “as a means of developing a common understanding of the norms by establishing a prescriptive definition.” Minimum core obligation is determined generally by having regard to the needs of the most vulnerable group that is entitled to the protection of the right in question. It is in this context that the concept of minimum core obligation must be understood in international law. [] It is not possible to determine the minimum threshold for the progressive realization of the right of access to adequate housing without first identifying the needs and opportunities for the enjoyment of such a right. These will vary according to factors such as income, unemployment, availability of land and poverty. The differences between city and rural communities will also determine the needs and opportunities for the enjoyment of this right. Variations ultimately depend on the economic and social history and circumstances of a country. All this illustrates the complexity of the task of determining a minimum core obligation for the progressive realization of the right of access to adequate housing without having the requisite information on the needs and the opportunities for the enjoyment of this right. The committee developed the concept of minimum core over many years of examining reports by reporting states. This court does not have comparable information. [] The determination of a minimum core in the context of “the right to have access to adequate housing” presents difficult questions. This is so because the needs

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in the context of access to adequate housing are diverse: there are those who need land; others need both land and houses; yet others need financial assistance. There are difficult questions relating to the definition of minimum core in the context of a right to have access to adequate housing, in particular whether the minimum core obligation should be defined generally or with regard to specific groups of people. As will appear from the discussion below, the real question in terms of our Constitution is whether the measures taken by the state to realize the right afforded by section  are reasonable. There may be cases where it may be possible and appropriate to have regard to the content of a minimum core obligation to determine whether the measures taken by the state are reasonable. However, even if it were appropriate to do so, it could not be done unless sufficient information is placed before a court to enable it to determine the minimum core in any given context. In this case, we do not have sufficient information to determine what would comprise the minimum core obligation in the context of our Constitution. It is not in any event necessary to decide whether it is appropriate for a court to determine in the first instance the minimum core content of a right.

Analysis of Section  [] I consider the meaning and scope of section  in its context. Its provisions are repeated for convenience: () Everyone has the right to have access to adequate housing. () The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realization of this right. () No one may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances. No legislation may permit arbitrary evictions.

Subsections () and () are related and must be read together. Subsection () aims at delineating the scope of the right. It is a right of everyone including children. Although the subsection does not expressly say so, there is, at the very least, a negative obligation placed upon the state and all other entities and persons to desist from preventing or impairing the right of access to adequate housing. The negative right is further spelt out in subsection (), which prohibits arbitrary evictions. Access to housing could also be promoted if steps are taken to make the rural areas of our country more viable so as to limit the inexorable migration of people from rural to urban areas in search of jobs. [] The right delineated in section () is a right to “access to adequate housing” as distinct from the right to adequate housing encapsulated in the Covenant. This difference is significant. It recognizes that housing entails more than bricks and

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mortar. It requires available land, appropriate services such as the provision of water and the removal of sewage and the financing of all of these, including the building of the house itself. For a person to have access to adequate housing all of these conditions need to be met: there must be land, there must be services, there must be a dwelling. Access to land for the purpose of housing is therefore included in the right of access to adequate housing in section . A right of access to adequate housing also suggests that it is not only the state who is responsible for the provision of houses, but that other agents within our society, including individuals themselves, must be enabled by legislative and other measures to provide housing. The state must create the conditions for access to adequate housing for people at all economic levels of our society. State policy dealing with housing must therefore take account of different economic levels in our society. [] In this regard, there is a difference between the position of those who can afford to pay for housing, even if it is only basic though adequate housing, and those who cannot. For those who can afford to pay for adequate housing, the state’s primary obligation lies in unlocking the system, providing access to housing stock and a legislative framework to facilitate self-built houses through planning laws and access to finance. Issues of development and social welfare are raised in respect of those who cannot afford to provide themselves with housing. State policy needs to address both these groups. The poor are particularly vulnerable and their needs require special attention. It is in this context that the relationship between sections  and  and the other socio-economic rights is most apparent. If under section  the state has in place programs to provide adequate social assistance to those who are otherwise unable to support themselves and their dependents, which would be relevant to the state’s obligations in respect of other socio-economic rights. [] The state is required to take reasonable legislative and other measures. Legislative measures by themselves are not likely to constitute constitutional compliance. Mere legislation is not enough. The state is obliged to act to achieve the intended result, and the legislative measures will invariably have to be supported by appropriate, well-directed policies and programs implemented by the executive. These policies and programs must be reasonable both in their conception and their implementation. The formulation of a program is only the first stage in meeting the state’s obligations. The program must also be reasonably implemented. An otherwise reasonable program that is not implemented reasonably will not constitute compliance with the State’s obligations. [] In determining whether a set of measures is reasonable, it will be necessary to consider housing problems in their social, economic, and historical context and to consider the capacity of institutions responsible for implementing the program. The program must be balanced and flexible and make appropriate provision for attention to housing crises and to short, medium and long term needs. A program that excludes a significant segment of society cannot be said to be reasonable. Conditions do not remain static and therefore the program will require continuous review.

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[] Reasonableness must also be understood in the context of the Bill of Rights as a whole. The right of access to adequate housing is entrenched because we value human beings and want to ensure that they are afforded their basic human needs. A society must seek to ensure that the basic necessities of life are provided to all if it is to be a society based on human dignity, freedom and equality. To be reasonable, measures cannot leave out of account the degree and extent of the denial of the right they endeavor to realize. Those, whose needs are the most urgent and whose ability to enjoy all rights therefore is most in peril, must not be ignored by the measures aimed at achieving realization of the right. It may not be sufficient to meet the test of reasonableness to show that the measures are capable of achieving a statistical advance in the realization of the right. Furthermore, the Constitution requires that everyone must be treated with care and concern. If the measures, though statistically successful, fail to respond to the needs of those most desperate, they may not pass the test.

Progressive Realization of the Right [] The extent and content of the obligation consist in what must be achieved, that is, “the progressive realization of this right.” It links sections () and () by making it quite clear that the right referred to is the right of access to adequate housing. The term “progressive realization” shows that it was contemplated that the right could not be realized immediately. But the goal of the Constitution is that the basic needs of all in our society be effectively met and the requirement of progressive realization means that the state must take steps to achieve this goal. It means that accessibility should be progressively facilitated: legal, administrative, operational, and financial hurdles should be examined and, where possible, lowered over time. Housing must be made more accessible not only to a larger number of people but to a wider range of people as time progresses. [] The third defining aspect of the obligation to take the requisite measures is that the obligation does not require the state to do more than its available resources permit. This means that both the content of the obligation in relation to the rate at which it is achieved as well as the reasonableness of the measures employed to achieve the result are governed by the availability of resources. Section  does not expect more of the state than is achievable within its available resources. As President Chaskalson said in Soobramoney: What is apparent from these provisions is that the obligations imposed on the state by sections  and  in regard to access to housing, health care, food, water, and social security are dependent upon the resources available for such purposes, and that the corresponding rights themselves are limited by reason of the lack of resources. Given this lack of resources and the significant demands on them that have already been referred to, an unqualified obligation to meet these needs would not presently be capable of being fulfilled.

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There is a balance between goal and means. The measures must be calculated to attain the goal expeditiously and effectively but the availability of resources is an important factor in determining what is reasonable. [] This court must decide whether the nationwide housing program is sufficiently flexible to respond to those in desperate need in our society and to cater appropriately for immediate and short-term requirements. This must be done in the context of the scope of the housing problem that must be addressed. This case is concerned with the situation in the Cape Metro and the municipality and the circumstances that prevailed there are therefore presented. [] The housing shortage in the Cape Metro is acute. About , housing units are required and up to , housing opportunities are required in Oostenberg itself. Shack counts in the Cape Metro in general and in the area of the municipality in particular reveal an inordinate problem. , shacks were counted in the Cape Metro in January . This number had grown to , in  and to , by . Shacks in this area increased by  percent during the period  to  and by  percent from then until . There were , shacks in the area of the municipality in , , (an increase of  percent) in  and , (an increase of  percent) in . These are the results of a study commissioned by the Cape Metro. [] The study concludes that the municipality “is the most critical local authority in terms of informal settlement shack growth at this point in time,” this despite the fact that, according to an affidavit by a representative of the municipality, , houses had been completed by . The scope of the problem is perhaps most sharply illustrated by this: about , houses are built in the Western Cape each year while demand grows at a rate of , family units per year. The backlog is therefore likely to be reduced, resources permitting and, on the basis of the figures in this study, only by , houses a year. [] The housing situation is desperate. The problem is compounded by rampant unemployment and poverty. As was pointed out earlier in this judgment, a quarter of the households in Wallacedene had no income at all, and more than two-thirds earned less than R per month during . As stated above, many of the families living in Wallacedene are living in intolerable conditions. In some cases, their shacks are permanently flooded during the winter rains, others are severely overcrowded and some are perilously close to busy roads. There is no suggestion that Wallacedene is unusual in this respect. It is these conditions that ultimately forced the respondents to leave their homes there. [] Section  requires that the legislative and other measures adopted by the state are reasonable. To determine whether the nationwide housing program as applied in the Cape Metro is reasonable within the meaning of the section, one must consider whether the absence of a component catering for those in desperate need is reasonable in the circumstances. It is common cause that, except for the Cape Metro land program, there is no provision in the nationwide housing program as applied within the Cape Metro for people in desperate need.

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[] The national government bears the overall responsibility for ensuring that the state complies with the obligations imposed upon it by section . The nationwide housing program falls short of obligations imposed upon national government to the extent that it fails to recognize that the state must provide for relief for those in desperate need. They are not to be ignored in the interests of an overall program focused on medium and long-term objectives. It is essential that a reasonable part of the national housing budget be devoted to this, but the precise allocation is for national government to decide in the first instance. [] Effective implementation requires at least adequate budgetary support by national government. This, in turn, requires recognition of the obligation to meet immediate needs in the nationwide housing program. Recognition of such needs in the nationwide housing program requires it to plan, budget, and monitor the fulfillment of immediate needs and the management of crises. This must ensure that a significant number of desperate people in need are afforded relief, though not all of them need receive it immediately. Such planning too will require proper cooperation between the different spheres of government. [] In conclusion it has been established in this case that as of the date of the launch of this application, the state was not meeting the obligation imposed upon it by section () of the Constitution in the area of the Cape Metro. In particular, the programs adopted by the State fell short of the requirements of section () in that no provision was made for relief to the categories of people in desperate need identified earlier. I come later to the order that should flow from this conclusion.

Section ()(c) and the Right to Shelter [] The judgment of the High Court amounts to this: (a) section ()(c) obliges the state to provide rudimentary shelter to children and their parents on demand if parents are unable to shelter their children; (b) this obligation exists independently of and in addition to the obligation to take reasonable legislative and other measures in terms of section ; and (c) the state is bound to provide this rudimentary shelter irrespective of the availability of resources. On this reasoning, parents with their children have two distinct rights: the right of access to adequate housing in terms of section  as well as a right to claim shelter on demand in terms of section ()(c). [] I cannot accept that the Constitution draws any real distinction between housing on the one hand and shelter on the other, and that shelter is a rudimentary form of housing. Housing and shelter are related concepts and one of the aims of housing is to provide physical shelter. But shelter is not a commodity separate from housing. There is no doubt that all shelter represents protection from the elements

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and possibly even from danger. There are many ways in which shelter may be constituted: shelter may be ineffective or rudimentary at the one extreme and very effective and even ideal at the other. The concept of shelter in section ()(c) is not qualified by any requirement that it should be “basic” shelter. It follows that the Constitution does not limit the concept of shelter to basic shelter alone. The concept of shelter in section ()(c) embraces shelter in all its manifestations. However, it does not follow that the Constitution obliges the state to provide shelter at the most effective or the most rudimentary level to children in the company of their parents. [] The obligation created by section ()(c) can properly be ascertained only in the context of the rights and, in particular, the obligations created by sections (), , and  of the Constitution. [] Section ()(c) must be read in this context. Subsections ()(b) and (c) provide: Every child has the right— ... (b) to family care or parental care, or to appropriate alternative care when removed from the family environment; (c) to basic nutrition, shelter, basic health care services and social services.

They must be read together. They ensure that children are properly cared for by their parents or families, and that they receive appropriate alternative care in the absence of parental or family care. The section encapsulates the conception of the scope of care that children should receive in our society. Subsection ()(b) defines those responsible for giving care while subsection ()(c) lists various aspects of the care entitlement. [] The final section of this judgment is concerned with whether the respondents are entitled to some relief in the form of temporary housing because of their special circumstances and because of the appellants’ conduct towards them. This matter was raised in argument and, although not fully aired on the papers, it is appropriate to consider it. At first blush, the respondents’ position was so acute and untenable when the High Court heard the case that simple humanity called for some form of immediate and urgent relief. They had left Wallacedene because of their intolerable circumstances, had been evicted in a way that left a great deal to be desired and, as a result, lived in desperate subhuman conditions on the Wallacedene soccer field or in the Wallacedene community hall. But we must also remember that the respondents are not alone in their desperation; hundreds of thousands (possibly millions) of South Africans live in appalling conditions throughout our country. [] Although the conditions in which the respondents lived in Wallacedene were admittedly intolerable and although it is difficult to level any criticism against them for leaving the Wallacedene shack settlement, it is a painful reality that their circumstances were no worse than those of thousands of other people, including

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young children, who remained at Wallacedene. It cannot be said, on the evidence before us, that the respondents moved out of the Wallacedene settlement and occupied the land earmarked for low-cost housing development as a deliberate strategy to gain preference in the allocation of housing resources over thousands of other people who remained in intolerable conditions and who were also in urgent need of housing relief. It must be borne in mind, however, that the effect of any order that constitutes a special dispensation for the respondents on account of their extraordinary circumstances is to accord that preference. [] All levels of government must ensure that the housing program is reasonably and appropriately implemented in the light of all the provisions in the Constitution. All implementation mechanisms and all state action in relation to housing falls to be assessed against the requirements of section  of the Constitution. Every step at every level of government must be consistent with the constitutional obligation to take reasonable measures to provide adequate housing. [] But section  is not the only provision relevant to a decision as to whether state action at any particular level of government is reasonable and consistent with the Constitution. The proposition that rights are interrelated and are all equally important is not merely a theoretical postulate. The concept has immense human and practical significance in a society founded on human dignity, equality, and freedom. It is fundamental to an evaluation of the reasonableness of State action that account is taken of the inherent dignity of human beings. The Constitution will be worth infinitely less than its paper if the reasonableness of state action concerned with housing is determined without regard to the fundamental constitutional value of human dignity. Section , read in the context of the Bill of Rights as a whole, must mean that the respondents have a right to reasonable action by the state in all circumstances and with particular regard to human dignity. In short, I emphasize that human beings are required to be treated as human beings. This is the backdrop against which the conduct of the respondents towards the appellants must be seen. [] The National Legislature recognizes this. In the course of stating the general principles binding on all levels of government, the Housing Act provides that in the administration of any matter relating to housing development, all levels of government must respect, protect, promote, and fulfill the rights in chapter  of the Constitution. In addition, section ()(b) obliges all levels of government to consult meaningfully with individuals and communities affected by housing development. Moreover, section ()(e) obliges municipalities to promote the resolution of conflict arising in the housing development process. [] The respondents began to move onto the New Rust land during September  and the number of people on this land continued to grow relentlessly. I would have expected officials of the municipality responsible for housing to engage with these people as soon as they became aware of the occupation. I would also have thought that some effort would have been made by the municipality to resolve the difficulty on a case-by-case basis after an investigation of their circumstances before

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the matter got out of hand. The municipality did nothing and the settlement grew by leaps and bounds. [] There is, however, no dispute that the municipality funded the eviction of the respondents. The magistrate who ordered the ejectment of the respondents directed a process of mediation in which the municipality was to be involved to identify some alternative land for the occupation for the New Rust residents. Although the reason for this is unclear from the papers, it is evident that no effective mediation took place. The state had an obligation to ensure, at the very least, that the eviction was humanely executed. However, the eviction was reminiscent of the past and inconsistent with the values of the Constitution. The respondents were evicted a day early and to make matters worse, their possessions and building materials were not merely removed, but destroyed and burnt. I have already said that the provisions of section () of the Constitution burdens the state with at least a negative obligation in relation to housing. The manner in which the eviction was carried out resulted in a breach of this obligation.

Summary and Conclusion [] This case shows the desperation of hundreds of thousands of people living in deplorable conditions throughout the country. The Constitution obliges the state to act positively to ameliorate these conditions. The obligation is to provide access to housing, health-care, sufficient food and water, and social security to those unable to support themselves and their dependants. The state must also foster conditions to enable citizens to gain access to land on an equitable basis. Those in need have a corresponding right to demand that this be done. [] I am conscious that it is an extremely difficult task for the state to meet these obligations in the conditions that prevail in our country. This is recognized by the Constitution, which expressly provides that the state is not obliged to go beyond available resources or to realize these rights immediately. I stress, however, that despite all these qualifications, these are rights, and the Constitution obliges the state to give effect to them. This is an obligation that Courts can, and in appropriate circumstances, must enforce. [] Neither section  nor section  entitles the respondents to claim shelter or housing immediately upon demand. The High Court order ought therefore not to have been made. However, section  does oblige the state to devise and implement a coherent, coordinated program designed to meet its section  obligations. The program that has been adopted and was in force in the Cape Metro at the time that this application was brought fell short of the obligations imposed upon the state by section () in that it failed to provide for any form of relief to those desperately in need of access to housing. [] In light of the conclusions I have reached, it is necessary and appropriate to make a declaratory order. The order requires the state to act to meet the obligation imposed upon it by section () of the Constitution. This includes the obligation

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to devise, fund, implement and supervise measures to provide relief to those in desperate need. [] The Human Rights Commission is an amicus in this case. Section ()(c) of the Constitution places a duty on the Commission to “monitor and assess the observance of human rights in the Republic.” Subsections ()(a) and (b) give the Commission the power (a) to investigate and to report on the observance of human rights; (b) to take steps to secure appropriate redress where human rights have been violated.

Counsel for the Commission indicated during argument that the Commission had the duty and was prepared to monitor and report on the compliance by the State of its section  obligations. In the circumstances, Commission will monitor and, if necessary, report in terms of these powers on the efforts made by the state to comply with its section  obligations in accordance with this judgment. NOTES . S. Woolman, Dignity in Constitutional Law of South Africa – (nd ed., S. Woolman et al., ed., OS, . . Port Elizabeth Municipality v. Various Occupiers  () SA  (CC) at para .

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Moseneke and Others v. The Master and Another  () SA  (CC) CASE SUMMARY

Facts Intestate estates are ordinarily administered by the master of the High Court. However, section ()(a) of the Black Administration Act  of  prohibited the master from administering the intestate estates of black people. That task was assigned, by regulation () to the act, to the local magistrate. The applicants in this case were the family of a deceased black man who had died intestate. Aggrieved by this differentiation, they sought an order directing the master of the High Court, instead of a magistrate, to register and to administer the estate of the deceased and to declare regulation () constitutionally infirm.

Legal History The application was unopposed and the High Court granted the order. However, the applicants did not raise the constitutional validity of section ()(a). The result was that the intestate estates of black people could not be administered by the master or by a magistrate. Issues Does the establishment of a different administration system for the deceased estates of black people violate the constitutional rights to equality and dignity?

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Decision of the Constitutional Court Although section ()(a) had not been considered by the High Court, the Constitutional Court granted the applicants direct access to challenge its validity. Justice Sachs first noted that the continued existence of the Black Administration Act was antithetical to the values of the Constitution (paragraph ). The differentiation on the basis of race or color was unfairly discriminatory and constituted a serious affront to the dignity of people of color. The unfairness of the system could not be undone by any practical benefits the dual system might have (paragraph ). The section therefore limited both the right to equality in terms of section () and the right to dignity in terms of section . Those limitations were further deemed unjustifiable in an open and democratic society based on freedom, dignity, and equality. Order The court declared section ()(a) and regulation () invalid. However, it recognized the practical problems in altering the existing system and ordered the declaration of invalidity of regulation () to be suspended for two years. During that period, the estates of black people could be administered either by the master or a magistrate. Comment Once the current regime of dealing with the estates of persons of color was found constitutionally infirm could the court not simply hold that black estates must be treated in exactly the same manner as estates of persons in other racial groups? Does the court’s pragmatic compromise fully address the symbolic infringement of dignity? JUSTICE SACHS [] This case, which concerns the administration of deceased estates, reminds us that transition is a process. According to laws enacted during our racist past, when a white person dies without leaving a will his or her estate must be administered by the master of the High Court. When a black person dies intestate, however, his or her estate must be administered by a magistrate. This difference, rooted as it clearly is in racist attitudes and practices of the past, must change. Yet, as this case illustrates, such change cannot be achieved with a simple stroke of a pen. [] The law governing the administration of the estates of black people who die intestate is as follows. Section ()(a) of the Black Administration Act (section ()) provides: Letters of administration from the master of the Supreme Court shall not be necessary in, nor shall the master or any executor appointed by the master have any powers in connection with, the administration and distribution of— (a) the estate of any black who has died leaving no valid will.

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Regulation () was promulgated under the Black Administration Act and deals with the administration of “the estates of deceased blacks.” It reads: All the [designated] property in any estate [of a black person who dies leaving no valid will] . . . shall be administered under the supervision of the magistrate in whose area of jurisdiction the deceased ordinarily resided and such magistrate shall give such directions in regard to the distribution thereof as shall seem to him fit and shall take all steps necessary to ensure that the provisions of the act and of these regulations are complied with.

The effect of these provisions is that the master of the High Court has no power to deal with intestate black estates, although he administers black estates where a will has been left, and all estates of white, colored and Indian people. [] The family’s attorneys wrote to the master expressing great concern at being subjected to differential treatment on the grounds of race. They stated that they had been instructed to record that there was nothing in the Black Administration Act that prohibited the master from proceeding with the administration and distribution of the estate. This latter statement was incorrect. Following on their letter to the master, the family commenced proceedings in the Transvaal High Court (the High Court) in which they failed to identify properly the source of the discrimination. Without challenging the provisions of the act, an order was sought that the master be directed to register and administer the estate, and that a declaration be made that his refusal to do so was unlawful and unconstitutional. The master lodged a report with the court stating that, in terms of the act and its regulations, his office did not have jurisdiction to register or administer black intestate estates. The report indicated that the Department of Justice was in the process of rationalizing its legislation and bringing it into line with constitutional values, but that this raised complex issues which were still the subject of discussion within the department. [] [. . .] The terms of section () of the Black Administration Act were not brought to the attention of the judge in the High Court who made an order in terms of the draft. The registrar of the High Court referred that order to this court for confirmation. [] It is not clear, however, that this is an order which necessarily requires confirmation in terms of section ()(a) of the Constitution of the Republic of South Africa Act  of  (the Constitution), which provides as follows: The Supreme Court of Appeal, a High Court or a court of similar status may make an order concerning the constitutional validity of an Act of Parliament, a provincial act or any conduct of the President, but an order of constitutional invalidity has no force unless it is confirmed by the Constitutional Court.

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Although regulation  was made by the state president during the apartheid era, it may constitute “conduct of the President” as contemplated by section ()(a). As will appear, however, it is not necessary to decide this issue in this case. [] The High Court’s order has in fact had an unanticipated and drastic effect. The declaration that regulation () was invalid deprived magistrates of any competence to deal with what the Black Administration Act called “the estate of any black who has died leaving no valid will.” At the same time, section () of the Black Administration Act prohibits the master from administering and distributing the estate of any black person who has died leaving no valid will. The result is that such estates cannot be administered at all. As the master reported to this court, an impasse has resulted with no official procedures in place to ensure the proper administration of the intestate estates of blacks. No registration processes will be in place, no authorities/directions to administer these estates can be issued, financial institutions will not release moneys for funerals, payments of debts, maintenance of dependants, etc. Transfer of properties will not take place. . . . Chaos in the administration of intestate estates of blacks will ensue. (In fact that [has] already happened.) [] Upon receipt of the referral from the High Court, the president of this court issued directions which required the parties to consider whether an invalidation of section () by the High Court could be inferred, and whether this court could confirm such invalidation; alternatively, whether there was some other procedure under which this court could declare section () to be invalid; if so, whether it should do so; what order it should make; and whether or not any order should be suspended. [] It is convenient to summarize the practical considerations referred to in the papers. The master says that his office is not in a position at this stage to manage the estates of black people who have died intestate because of lack of human resources, infrastructure, training, and finance. He states that magistrates attended to the administration of some , intestate black estates during . Furthermore, he notes that the offices of the masters of the High Courts are already under substantial pressure and barely manage to cope with their current workload. He considers that, if all intestate estates handled by the magistrates were to be transferred to these offices, the result would most probably be chaos. [] The minister urges that the administration and distribution of the estates of black people remain in the hands of magistrates for the moment. He states that magistrates are to be found in every small town and are therefore conveniently located close to the people; their methods of administration of deceased estates are informal and relatively swift; they have a better understanding of customary law; and master’s fees do not have to be paid. [] The minister indicated that the laws regulating succession and the administration of estates were already receiving attention from Parliament and the South African Law Commission. He observed that a draft bill, the Amendment of Customary Law of Succession Bill, was discussed in both parliamentary justice commit-

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tees in September or October of . This bill proposed the repeal of section  of the Black Administration Act and provides that all estates are to be administered in terms of the provisions of the Administration of Estates Act. In terms of section () of this bill, it is proposed that the master could delegate his powers to administer estates to a magistrate in cases where the estate is valued at less than an amount set by the minister in regulations published in the Gazette. The minister would also be able to make regulations to govern the reporting of such estates. In addition, the bill seeks to amend the Intestate Succession Act in order to make provision for claims of spouses married under customary law. The minister did not say what had happened to the bill since its introduction in Parliament over a year ago. [] A further dimension to the debate was added by the Women’s Legal Centre Trust who applied for and were granted the right to make written and oral submissions as an amicus curiae. They contended that in the case of intestate estates of deceased Africans, race, gender, and culture interacted in a way that discriminated directly and indirectly against African widows. The amicus supported the invalidation of both section () and regulation () on the basis that the procedures adopted under the Administration of Estates Act functioned in practice in a manner that was far more protective of the rights of African women than those employed in terms of the regulations under the Black Administration Act.

The Application for Direct Access [] Counsel argued that it could be inferred from the High Court order that section () of the act had been declared invalid even if the order did not say so expressly. It is not necessary to decide whether or not in principle this court may ever confirm an order not actually and explicitly made but existing only by inference. It must be doubted whether this can be done. The family applied in the alternative for direct access to this court in terms of rule . In the light of this application, nothing further need be said on the question whether it is possible to infer an order of invalidity in circumstances where an express order has not been made. Exceptional circumstances exist which warrant the grant of direct access to the applicants. [] It is clearly in the interests of justice that the crisis affecting the administration of intestate estates be resolved as quickly as possible. This court has frequently stated that direct access should only be granted in exceptional circumstances. In my view, there are three special factors in the present matter, which, in combination, provide strong support for granting the family direct access. The first is that the interests of justice require a speedy unblocking of the administrative impasse, which probably affects thousands of families, many of whom may be in desperate need of access to resources presently tied up in deceased estates that cannot be administered. The second is that the section and the regulation are so manifestly discriminatory that there can be no doubt as to their unconstitutionality. It is not necessary therefore for extensive evidence to be led and evaluated in order for a decision on the constitutional issue to be reached. The third factor is that both the minister and the master ultimately

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supported the matter being dealt with on the basis of direct access. Taken together, these factors constitute exceptional circumstances, which dictate that direct access be granted. In the result, I proceed on the basis that, despite the flawed character of the proceedings launched in the High Court, the public interest requires that the family nevertheless be granted direct access to challenge the constitutionality of the section and the regulation. I turn now to consider the merits of that application as well as the merits of the appeal noted by the minister.

The Constitutionality of Section ()(a) and Regulation () [] The Black Administration Act has been described by this court as “an egregious apartheid law that anachronistically has survived our transition to a non-racial democracy.” Subordinate legislation made under it has been referred to as part of a demeaning and racist system, as obnoxious and as not befitting a democratic society based on human dignity, equality and freedom. The act systematized and enforced a colonial form of relationship between a dominant white minority who were to have rights of citizenship and a subordinate black majority who were to be administered. As Justice Ngcobo pointed out in DVB Behuising: The Native Administration Act  of  appointed the Governor-General (later referred to as the State President) as “supreme chief ” of all Africans. It gave him power to govern Africans by proclamation. The powers given to him were virtually absolute. He could order the removal of an entire African community from one place to another. The Native Administration Act became the most powerful tool in the implementation of forced removals of Africans from the so-called “white areas” into the areas reserved for them. These removals resulted in untold suffering. This geographical plan of segregation was described as forming part of “a colossal social experiment and a long term policy.”

[] It is painful that the act still survives at all. The concepts on which it was based, the memories it evokes, the language it continues to employ and the division it still enforces are antithetical to the society envisaged by the Constitution. It is an affront to all of us that people are still treated as “blacks” rather than as ordinary persons seeking to wind up a deceased estate, and it is in conflict with the establishment of a nonracial society where rights and duties are no longer determined by origin or skin color. [] There can be no doubt that the section and the regulation both impose differentiation on the grounds of race, ethnic origin, and color, and as such constitute discrimination which is presumptively unfair in terms of section () of the Bill of Rights. The minister and the master suggested that the administration of deceased estates by magistrates was often convenient and inexpensive. However, even if there are practical advantages for many people in the system, it is rooted in racial discrimination, which severely assails the dignity of those concerned and undermines

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attempts to establish a fair and equitable system of public administration. Any benefits need not be linked to this form of racial discrimination but could be made equally available to all people of limited means or to all those who live far from the urban centers where the offices of the master are located. Given our history of racial discrimination, I find that the indignity occasioned by treating people differently as “blacks,” as both section () and the regulations do, is not rendered fair by the factors identified by the minister and the master. I conclude therefore that both provisions create unfair discrimination within the meaning of section () of the Constitution. They also constitute a limitation of the right to dignity entrenched in section . [] I cannot accept that the provisions are reasonable and justifiable in an open and democratic society based on equality, freedom, and dignity. No such society would tolerate differential treatment based solely on skin color, particularly where the legislative provisions under consideration formed part of a larger package of racially discriminatory legislation which disadvantaged black people systematically and effectively. It is not necessary to decide whether or not a temporary continuation of such unfair measures could have been justified in terms of section  in the earliest period of transition. The fact is that six years have passed since the installation of constitutional democracy and the provisions have been challenged by persons whose dignity has been wounded. Such convenience as the provisions might achieve can be accomplished equally well by a nondiscriminatory provision. There can be no justification whatsoever for their continuation on the statute book in a democratic society based on freedom, dignity and equality. [] I accordingly hold that the section and the regulation are inconsistent with the Constitution and invalid.

A Just and Equitable Order [] The real problem in this case is to devise an order that is just and equitable in all the circumstances. To keep a manifestly racist law on the statute books is to maintain discrimination; to abolish it with immediate effect without making practical alternative arrangements is to provoke confusion and risk injustice. Such a dilemma is inherent in transition. The Black Administration Act, as its very name indicates, both reminds us of South Africa’s shameful and “disgraceful” past and continues to make invidious and wounding distinctions on grounds of race. It survives, however, because it has become encrusted with processes of great practical, day-to-day importance to a large number of people. [] Complete rationalization of such anachronistic laws as the Black Administration Act will take time, as it involves both practical problems of administration and difficult policy questions relating to the achievement of equality in our culturally diverse and pluralistic society. In the present matter, however, the launching of inadequately focused legal proceedings converted what was an inevitable tension between the old and the new into an avoidable crisis requiring a rapid remedy from this court.

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How, then, may we cleanse our statute book of all traces of a law which was a pillar of “the past of a deeply divided society characterized by strife, conflict, untold suffering and injustice,” while at the same time preventing undue dislocation and hardship? During the hearing of this matter, the court canvassed a possible solution to the difficulty, which the parties accepted, although the amicus did not.

The Order The following order is made: . The application in terms of Rule  for direct access to this court by the applicants is granted. . Section ()(a) of the Black Administration Act  of  is declared to be inconsistent with the Constitution and invalid with effect from the date of this order. . The Minister of Justice and Constitutional Development is joined as a second respondent in the proceedings initiated in the High Court and is granted leave to appeal in this court against the order made by the High Court. . The appeal by the minister is upheld in part. The order of the High Court is set aside and replaced with the following order: . Regulation () of the regulations published in Government Notice  of February , , is declared to be inconsistent with the Constitution and invalid. . The order of invalidity in . above is suspended for a period of two years. . During the period of suspension referred to in paragraph ., the word “shall” in regulation () is to be read as meaning “may.” . Any interested person may approach this Court for a variation of this order in the event of serious administrative or practical problems being experienced. . The master of the High Court, Pretoria, shall administer the estate of the late Sedise Samuel John Moseneke in accordance with the provisions of the Administration of Estates Act  of . . The Minister of Justice and Constitutional Development is requested to ensure that this order is brought to the attention of all masters of the High Courts and all magistrates dealing with the administration of estates under the Black Administration Act  of  and the regulations promulgated thereunder.

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S v. Dodo  () SA  (CC) CASE SUMMARY

Facts Mr. Dodo was convicted of murder in the Eastern Cape High Court. Section () of the Criminal Law Amendment Act  of  obliges the High Court to sentence an accused convicted of offences specified in the act to life imprisonment. However, under section ()(a), if the court is satisfied that “substantial and compelling circumstances” exist that justify the imposition of a lesser sentence, it may impose such a sentence. This mandatory sentencing scheme was challenged in the High Court on the grounds that it infringed the fair trial rights of an accused in section ()(c) of the Constitution to a public trial before an ordinary court. The applicants also contended that the provisions were inconsistent with the separation of powers doctrine.

Legal History The High Court held that if it were not bound by section (), then it would have imposed a lesser sentence than life imprisonment on the accused. On the court’s interpretation of the phrase “substantial and compelling circumstances,” it was, unfortunately, bound to impose a sentence of life imprisonment. However, in terms of section (), an accused convicted of a specified crime faces a sentence of life imprisonment before he or she goes to trial. The elimination of judicial discretion

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meant that an accused did not receive a trial before “an ordinary court.” Section () was, on that ground, deemed to be constitutionally infirm. The case was then referred to the Constitutional Court for confirmation of the order of invalidity.

Issues The issue before the Constitutional Court was whether section (), read with section ()(a), of the act was inconsistent with the right of an accused to a fair trial before an “ordinary court” in terms of section ()(c) of the Constitution, the right under section ()(e) of the Constitution not to be “punished in a cruel, inhuman or degrading way,” and the doctrine of the separation of powers. Decision of the Constitutional Court Justice Ackermann delivered the decision of the unanimous court. The court held that the discretion of the trial court in sentencing was limited but not eliminated. Whenever a court imposes a sentence on a convicted person, the principle of legality demands that the nature and the range of punishment has to be founded in the common law or in statutory law. Statutes invariably limit the powers of a court. The court held that the doctrine of separation of powers does not confer on courts the sole authority to determine the nature and the severity of sentences to be imposed on convicted persons (paragraphs –). Justice Ackermann then considered whether the impugned provisions of the act compelled a court to impose a sentence that was inconsistent with section ()(e) of the Constitution—the right not to be subjected to punishment that is cruel, inhuman or degrading. He pointed out that the concept of proportionality between the crime and the punishment was central to whether the exercise of section ()(e) is impaired. The court held that the provision did not force a court to impose a sentence that was inconsistent with section ()(e) because the “substantial and compelling” exception could be read to allow judges to avoid grossly disproportionate sentences (paragraphs –). Justice Ackermann then concluded that section (), read with section ()(a), does not alter the character of the High Court. It remains an “ordinary court” as contemplated by section ()(c) of the Constitution. The applicant’s right to a fair trial was therefore not infringed. The court declined to confirm the declaration of invalidity made by the High Court (paragraphs –). Comment Doesn’t the court seem to want to have its cake and eat it too? On the one hand, it denies that harsh mandatory sentences violate the separation of powers doctrine. On the other hand, the court grants judges the right to employ discretion when mandatory sentences seem “grossly disproportionate”? Isn’t that degree of discretion large enough to drive a truck though? Why does the court prefer individualized— and therefore inconsistent—treatment of offenders to automatic—and therefore

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consistent—sentences? What does that preference tell you about the court’s understanding of dignity? JUSTICE ACKERMANN

The High Court Judgment [] Acting Justice Smuts, in the course of his careful judgment in the High Court, came to the conclusion that he was obliged to consider the constitutionality of section () because: . the offence of murder, being one of the offences of which he had convicted the applicant, had been committed under circumstances which brought it within the provisions of Part I of Schedule , namely murder committed * under the circumstances detailed in para. (c)(i) thereof; . if he were not bound by the provisions of section () he would have imposed a sentence other than life imprisonment; . on his construction of the phrase “substantial and compelling circumstances” (at g–h) the discretion to depart from the imposition of a mandatory life sentence arises when such sentence would occasion a shocking injustice . . . would be ‘grossly disproportionate’ to the crime committed or ‘startlingly inappropriate’ or the Court forms the view that such sentence is ‘offensive to its sense of justice’ . . . or when such sentence is ‘disturbingly inappropriate’: if he were bound by the provisions he “would be obliged to impose a sentence of life imprisonment,” it being implicit in the phrase quoted, and expressly stated elsewhere in the judgment that he did not consider the circumstances relating to the murder count on which the applicant had been convicted to be “substantial and compelling” so as, on his construction of section ()(a), to warrant the imposition of a lesser punishment.

[] The finding referred to in paragraph . above was not challenged or questioned in this court and for purposes of the present judgment it must be accepted as correct. There is a close link between the judge a quo’s reasons for finding that the section is inconsistent with the constitutional separation of powers and his finding that it constitutes an unjustifiable limitation of section ()(c) of the Constitution. [] Dealing with the latter provision of the Constitution he observed, in the course of his judgment, that “[s]entencing is pre-eminently the prerogative of the courts,” that the section of the act in question “constitutes an invasion of the domain of the judiciary not by the executive, but by the legislature,” and that a criminal trial before an ordinary court requires, among other things, “an independent court which

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is empowered . . . in the event of a conviction, to weigh and balance all factors relevant to the crime, the accused and the interests of society before the imposition of sentence.” What was new about the “trial envisaged by section () of the act,” Acting Judge Smuts held, is that: an accused convicted of a serious charge before the High Court, unless the court is satisfied that substantial and compelling circumstances exist that justify the imposition of a lesser sentence, faces a life sentence which was decided upon before the commencement of the trial, not by the Court itself, but by the Legislature.

This, the learned judge further found, in truth directs the High Court “to consider principles more relevant to the functions of a court of appeal when dealing with the issue of sentence.” He concluded that this “is not a trial before an ordinary court . . . [but] . . . a trial before a court in which, at the imposition of the prescribed sentence, the robes are the robes of the Judge, but the voice is the voice of the Legislature.” The judge consequently found that “[s]uch a trial . . . constitutes a limitation of . . . [t]he fair trial envisaged in section ()(c) of the Constitution” which could not be justified under section  thereof. [] The High Court’s reasons for coming to the conclusion that the provisions of section () of the act “undermine the doctrine of separation of powers and the independence of the Judiciary” and are inconsistent therewith are summarized in the judgment, borrowing the terminology used in De Lange v. Smuts, as follows (at g–i): A sentence of imprisonment for life, irrespective of the policies and procedures to which such sentence may be subjected by the Department of Correctional Services, must be regarded by the court imposing it as having the potential consequence, at the very least, that the accused so sentenced will indeed be incarcerated until his death. It is an extreme sentence. It is the most severe sentence that may lawfully be imposed on an accused such as the one now before court. It is a sentence that, in the ordinary course, requires a meticulous weighing of all relevant factors before a decision to impose it can be justified . . . [W]hatever the boundaries of separation of powers are eventually determined to be, the imposition of the most severe penalty open to the High Court must fall within the exclusive prerogative and discretion of that court. It falls within the heartland of the judicial power, and is not to be usurped by the Legislature.

[] Although expressly limiting the grounds for the High Court’s declaration of invalidity to the two referred to in paragraph  above, the learned judge made certain comments concerning the inconsistency of the section with the right to dignity, guaranteed by section  of the Constitution, to the effect that the operation of the section was “inimical to a society in which human dignity is cherished” and “con-

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stitutes an affront to the human dignity not only of those who may suffer because of its application . . . [but also] . . . to the dignity of those in whose name this procedure is sanctioned.” I will revert to the matter of dignity later in this judgment. [] I deal with the separation of powers issue first. Closely linked to this issue, as I hope presently to demonstrate, is the right of an accused under section ()(e) of the Constitution “not to be . . . punished in a cruel, inhuman, or degrading way.” This right did not form the basis of attack in the High Court. Although alluded to in passing, it was not further dealt with in the High Court judgment. It is impossible to address the separation of powers issue meaningfully without dealing with this right. [] The statement in the High Court judgment quoted in paragraph  above that the imposition of the most severe punishment falls within the “exclusive prerogative and discretion” of a High Court does not, I believe, correctly reflect the law, either as it exists now or as it existed prior to the Interim Constitution. The history, for example, of the death penalty for murder up to , makes this plain. Prior to its amendment by section  of the General Law Amendment Act  of , section  of the Criminal Procedure and Evidence Act  of  prescribed the mandatory imposition of the death penalty for the crime of murder, save in the case where the accused was under sixteen years of age or where the accused had murdered her newly born child. Even after the amendment, which permitted the trial court to impose a sentence other than death if there were extenuating circumstances, the trial court did not enjoy an unfettered discretion. On an even more fundamental basis, the nature and range of any punishment, whether determinate or indeterminate, has to be founded in the common or statute law; the principle of legality nulla poena sine lege requires this. This principle was in fact endorsed in Malgas. Even the exercise of the court’s “normative judgment” in determining the nature and severity of the sentence within the options permitted by law has to be judicially exercised; it is not unfettered. This was and is true of all sentencing, not merely in the case of the most severe sentences. Statutes abound which limit court powers, even those of a High Court, to impose sentences relating to, for example, the extent of the punishment, the circumstances under which it may be imposed or when execution thereof may be suspended. [] Constitutional Principle VI, contained in Schedule  of the Interim Constitution (the Constitution of the Republic of South Africa Act  of ), provides that “[t]here shall be a separation of powers between the Legislature, Executive and Judiciary, with appropriate checks and balances to ensure accountability, responsiveness and openness.” In the First Certification Judgment this court, in dismissing a challenge that the new text of the Constitution (NT) did not comply with this Constitutional Principle (CP), said the following: The principle of separation of powers, on the one hand, recognizes the functional independence of branches of government. On the other hand, the principle of checks and balances focuses on the desirability of ensuring that the

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constitutional order, as a totality, prevents the branches of government from usurping power from one another. In this sense it anticipates the necessary or unavoidable intrusion of one branch on the terrain of another. No constitutional scheme can reflect a complete separation of powers: the scheme is always one of partial separation. In Justice Frankfurter’s words, “[t]he areas are partly interacting, not wholly disjointed.” ... The model adopted reflects the historical circumstances of our constitutional development. We find in the NT checks and balances that evidence a concern for both the over-concentration of power and the requirement of an energetic and effective, yet answerable, Executive. A strict separation of powers has not always been maintained; but there is nothing to suggest that the CPs imposed upon the [Constitutional Assembly] an obligation to adopt a particular form of strict separation, such as that found in the United States of America, France or the Netherlands.”

[] In De Lange v. Smuts, in a passage subsequently endorsed by a unanimous court in Heath, it was stated that the distinctly South African model of separation of powers to be developed over time by our courts would reflect: a delicate balancing, informed both by South Africa’s history and its new dispensation, between the need, on the one hand, to control government by separating powers and enforcing checks and balances and, on the other, to avoid diffusing power so completely that the government is unable to take timely measures in the public interest.

[] This court has therefore clearly enunciated that the separation of powers under our Constitution . although intended as a means of controlling government by separating or diffusing power, is not strict; . embodies a system of checks and balances designed to prevent an over-concentration of power in any one arm of government; it anticipates the necessary or unavoidable intrusion of one branch on the terrain of another; this engenders interaction, but does so in a way which avoids diffusing power so completely that government is unable to take timely measures in the public interest. [] There is under our Constitution no absolute separation of powers between the judicial function, on the one hand, and the legislative and executive on the other. When the nature and process of punishment is considered in its totality, it is apparent that all three branches of the state play a functional role and must necessarily

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do so. No judicial punishment can take place unless the person to be punished has been convicted of an offence that either under the common law or statute carries with it a punishment. It is pre-eminently the function .of the Legislature to determine what conduct should be criminalized and punished. Even here the separation is not complete, because this function of the legislature is checked by the Constitution in general and by the Bill of Rights in particular, and such checks are enforced through the courts. [] Both the legislature and executive share an interest in the punishment to be imposed by courts, both in regard to its nature and its severity. They have a general interest in sentencing policy, penology, and the extent to which correctional institutions are used to further the various objectives of punishment. The availability and cost of prisons, as well as the views of these arms of government on custodial sentences, legitimately inform policy on alternative forms of noncustodial sentences and the legislative implementation thereof. Examples that come to mind are the conditions on, and maximum periods for which sentences may be postponed or suspended. [] The executive and legislative branches of state have a very real interest in the severity of sentences. The executive has a general obligation to ensure that law-abiding persons are protected, if needs be through the criminal laws, from persons who are bent on breaking the law. This obligation weighs particularly heavily in regard to crimes of violence against bodily integrity and increases with the severity of the crime. [] In order to discharge this obligation, which is an integral part of constitutionalism, the executive and legislative branches must have the power under the Constitution to carry out these obligations. They must have the power, through legislative means, of ensuring that sufficiently severe penalties are imposed on dangerous criminals in order to protect society. The legislature’s objective of ensuring greater consistency in sentencing is also a legitimate aim and the legislature must have the power to legislate in this area. The legislature’s interest in penal sentences is implicitly recognized by the Constitution. Section ()(n) thereof provides: Every accused person has . . . the right— (n) to the benefit of the least severe of the prescribed punishments if the prescribed punishment for the offence has been changed between the time that the offence was committed and the time of sentencing.

[] The legislature’s powers are decidedly not unlimited. Legislation is by its nature general. It cannot provide for each individually determined case. Accordingly such power ought not, on general constitutional principles, wholly to exclude the important function and power of a court to apply and adapt a general principle to the individual case. This power must be appropriately balanced with that of the Judiciary. What an appropriate balance ought to be is incapable of comprehensive abstract formulation, but must be decided as specific challenges

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arise. In the field of sentencing, however, it can be stated as a matter of principle that the Legislature ought not to oblige the judiciary to impose a punishment that is wholly lacking in proportionality to the crime. This would be inimical to the rule of law and the constitutional state. It would a fortiori be so if the legislature obliged the judiciary to pass a sentence that was inconsistent with the Constitution and in particular with the Bill of Rights. The clearest example of this would be a statutory provision that obliged a court to impose a sentence that was inconsistent with an accused’s right not to be sentenced to a punishment that was cruel, inhuman, or degrading as envisaged by section ()(e) of the Constitution, or to a fair trial under section (). [] On this part of the case I accordingly conclude as follows: . While our Constitution recognizes a separation of powers between the different branches of the State and a system of appropriate checks and balances on the exercise of the respective functions and powers of these branches, such separation does not confer on the courts the sole authority to determine the nature and severity of sentences to be imposed on convicted persons. . Both the legislature and the executive have a legitimate interest, role and duty, in regard to the imposition and subsequent administration of penal sentences. . The concomitant authority of the other branches in the field of sentencing must not, however, infringe the authority of the courts in this regard. . It is neither possible nor, in any event, desirable to attempt a comprehensive delineation of the legitimate authority of the courts in this regard. . For purposes of this case it is sufficient to hold that the legislature is not empowered to compel any court to pass a sentence that is inconsistent with the Constitution. [] Accordingly the only relevant inquiry in this regard is whether section () read with section ()(a) of the act compels the High Court to pass a sentence which is inconsistent with the accused’s right under section ()(e) of the Constitution “not to be . . . punished in a cruel, inhuman or degrading way.” I deal later with the High Court’s finding in regard to section ()(c) of the Constitution.

The Construction of Section ()(e) of the Constitution [] Section ()(e) provides: () Everyone has the right to freedom and security of the person, which includes the right—

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... (e) not to be treated or punished in a cruel, inhuman or degrading way.

I propose saying no more on the ambit of this right than is required for the resolution of the issue in the present case. In the phrase “cruel, inhuman or degrading” the three adjectival concepts are employed disjunctively and it follows that a limitation of the right occurs if a punishment has any one of these three characteristics. This imports notions of human dignity as was correctly recognized, although in another context, by the High Court in this case. The human dignity of all persons is independently recognized as both an attribute and a right in section  of the Constitution, which proclaims that “[e]veryone has inherent dignity and the right to have their dignity respected and protected.” It is also one of the foundational values of the Constitution and is woven, in a variety of other ways, into the fabric of our Bill of Rights. While it is not easy to distinguish between the three concepts “cruel,” “inhuman,” and “degrading,” the impairment of human dignity, in some form and to some degree, must be involved in all three. One should not lose sight of the fact that the right relates, in part at least, to freedom. [] It should also be emphasized, as was pointed out by the Canadian Supreme Court in Smith, that the effect of a sentence imposed must be measured and that such effect is often a composite of many factors; it is not limited to the length of the sentence but includes its nature and the conditions under which it is served. In the instant case, however, one is concerned chiefly with the effect of the duration of a sentence of life imprisonment. Consequently the freedom aspect of the right in question and its relation to human dignity looms large. [] The concept of proportionality goes to the heart of the inquiry as to whether punishment is cruel, inhuman or degrading, particularly where, as here, it is almost exclusively the length of time for which an offender is sentenced that is in issue. This was recognized in S v. Makwanyane [and Another  () SA  (CC) ( () SACR ;  () BCLR )]. Section ()(a) guarantees, amongst others, the right “not to be deprived of freedom . . . without just cause.” The “cause” justifying penal incarceration and thus the deprivation of the offender’s freedom is the offence committed. “Offence,” as used throughout in the present context, consists of all factors relevant to the nature and seriousness of the criminal act itself, as well as all relevant personal and other circumstances relating to the offender which could have a bearing on the seriousness of the offence and the culpability of the offender. In order to justify the deprivation of an offender’s freedom it must be shown that it is reasonably necessary to curb the offence and punish the offender. Thus the length of punishment must be proportionate to the offence. [] To attempt to justify any period of penal incarceration, let alone imprisonment for life as in the present case, without inquiring into the proportionality between the offence and the period of imprisonment, is to ignore, if not to deny, that which lies at the very heart of human dignity. Human beings are not commodi-

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ties to which a price can be attached; they are creatures with inherent and infinite worth; they ought to be treated as ends in themselves, never merely as means to an end. Where the length of a sentence, which has been imposed because of its general deterrent effect on others, bears no relation to the gravity of the offence (in the sense defined in paragraph  above), the offender is being used essentially as a means to another end and the offender’s dignity assailed. So too where the reformative effect of the punishment is predominant and the offender sentenced to lengthy imprisonment, principally because he cannot be reformed in a shorter period, but the length of imprisonment bears no relationship to what the committed offence merits. Even in the absence of such features, mere disproportionality between the offence and the period of imprisonment would also tend to treat the offender as a means to an end, thereby denying the offender’s humanity. [] In my view, the gross proportionality approach adopted by the US and Canadian Supreme Courts is compatible with and supportive of the above analysis, can properly be employed and should be employed under our Constitution. For the reasons advanced in the Canadian cases, it would not be mere disproportionality between the sentence legislated and the sentence merited by the offence which would lead to a limitation of the section ()(e) right, but only gross disproportionality. I wish pertinently to stress however, that it is not to be inferred from the reference in this judgment to any foreign decision that agreement is being expressed with the application of the gross disproportionality test to the legislation or facts in such decision. [] On the construction that Malgas places on the concept “substantial and compelling circumstances” in section ()(a), which is undoubtedly correct, section () does not require the High Court to impose a sentence of life imprisonment in circumstances where it would be inconsistent with the offender’s right guaranteed by section ()(e) of the Constitution. The whole approach enunciated in Malgas, and in particular the determinative test articulated in the summary paragraph— namely: If the sentencing court on consideration of the circumstances of the particular case is satisfied that they render the prescribed sentence unjust in that it would be disproportionate to the crime, the criminal and the needs of society, so that an injustice would be done by imposing that sentence, it is entitled to impose a lesser sentence

—makes plain that the power of the court to impose a lesser sentence than that prescribed can be exercised well before the disproportionality between the mandated sentence and the nature of the offence becomes so great that it can be typified as gross. Thus the sentencing court is not obliged to impose a sentence that would limit the offender’s section ()(e) right. Accordingly section () does not compel the court to act inconsistently with the Constitution. It is necessary to emphasize

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the difference between the two tests, because they serve different purposes. The test in Malgas must be employed in order to determine when section ()(a) can legitimately be invoked by a sentencing court to pass a lesser sentence than that prescribed by section () or (). The test of gross disproportionality, on the other hand, must be applied in order to determine whether a sentence mandated by law is inconsistent with the offender’s section ()(e) right. It has not been suggested that section () compels the sentencing court to act inconsistently with the Constitution in any other way. [] Checks and balances constitute an integral part of the separation of powers principle; they prevent one separate arm of the state from becoming too powerful in the exercise of the powers allocated to it. In modern constitutionalism a most important check on the legislature in this regard is an entrenched bill of rights enforceable through an independent Judiciary. A bill of rights protects individual rights by limiting the power of the legislature. Once it has been held, as this judgment does, that legislation in the field of penal sentencing does not, per se, infringe the separation of powers principle as between the legislature and the Judiciary, section () read with section ()(a) does not, on its proper construction, transgress the Bill of Rights check on the legislature and therefore does not infringe the separation of powers principle either.

Section ()(c) of the Constitution [] It is now convenient to deal with the argument that section (), read with section ()(a) of the act, is inconsistent with section ()(c) of the Constitution, which guarantees to every accused person the right “to a public trial before an ordinary court,” because a court, bound by section (), is no longer an “ordinary” court. Mr. Eksteen correctly appreciated that a consequence of the construction which the judgment in Malgas had placed on section () read with section ()(a) of the act, namely that it did not oblige a High Court to impose a penal sentence on a convicted person that was inconsistent with the Constitution, destroyed the basis of the argument founded on the infringement of the separation of powers principle. He accordingly limited, very properly, his oral argument before us to the attack based on section ()(c) of the Constitution. [] The argument is, however, that the provisions of section () of the act have the effect of depriving the High Courts of their sentencing powers in such a manner and to such a degree that they can no longer rightly be classified as “ordinary” courts. This could only be so if section () has some material effect on their independence or if it deprives them of some judicial function of such a nature that they could no longer properly be classified as ordinary courts. [] I have great difficulty in conceiving how this could be so. We were, however, pressed in argument on this score with the judgment of the House of Lords in R v. Secretary of State for the Home Department, Ex parte Venables [[] AC  (HL)] and the judgment of the European Court of Human Rights in T v. United Kingdom

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[()  BHRC ], which followed on the Venables judgment. Both cases are concerned with clearly distinguishable issues. In Venables it was decided that, in fixing a detention tariff, the Secretary of State was carrying out, contrary to the constitutional principle of separation of powers, a classic judicial function and that, in doing so, he ought, like a sentencing Judge, not to act contrary to the fundamental principles governing the administration of justice. On the facts it was held that the Secretary of State had acted contrary to such principles and his determination was accordingly set aside. [] Both the impartiality of the Judiciary and its independence are fully and properly recognized and protected in the Constitution by section (), (), and () of the Constitution. Principle  relates to the impartiality of the judiciary and enumerates conduct that might impinge on such impartiality. Principle  deals with inappropriate or unwarranted interference with the judicial process. It has not been suggested that the Constitution in any way permits any conduct that would be inconsistent with principles  or . Section () has in this judgment been found to be consistent with the separation of powers principle and an offender’s fair trial rights. Nothing in its provisions detracts in any way from judicial impartiality or constitutes inappropriate or unwarranted interference with the judicial process under our Constitution, in a way that could, on any reasonable construction of their provisions, be incompatible with principles  or . Nor does section  in any way deprive any court contemplated by the Constitution of its exclusive authority (as against the legislature or the executive) to decide whether an issue submitted for its decision is within “its competence as defined by law.” [] No other authority is invoked for the submission that section () “impinge(s) upon international standards of judicial independence.” None has been cited to this court and I know of none. On the contrary, the conclusion reached above that section () does not trespass on the separation of powers principle, nor in any way limits an offender’s fair trial right, is in accord with the jurisprudence of leading democracies in the world. There is no other basis for finding that the application of section () in any way alters the character of the High Court or in any way detracts from it being an “ordinary” court as contemplated by section ()(c) of the Constitution. [] I accordingly hold that section () of the act is not inconsistent with . the right of an offender under section ()(e) of the Constitution not to be “punished in a cruel, inhuman or degrading way,” or, . the separation of powers principle under the Constitution, or, . the right of an accused under section ()(c) “to a public trial before an ordinary court.”

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Mamabolo

S v. Mamabolo (E TV and Others Intervening)  () SA  (CC) CASE SUMMARY

Facts In August  Eugene Terreblanche—the well-known leader of the Afrikaner Nationalist organization, the Afrikaner Weerstandbeweging—was granted bail pending an appeal of his conviction for attempted murder by Justice Els in the Transvaal High Court. An official in the Department of Correctional Services—Mr. Russell Mamabolo—issued a statement in which he disagreed with the order. He noted that since Terreblanche was only appealing the nature of the offence, not the sentence, bail should not have been granted. Beeld, a daily newspaper, reported Mamabolo’s statement. Justice Els read the Beeld’s report and summoned Mamabolo to explain whether he made the statement, and if he did, why he believed the judgment wrong and “what right [he] had to cause to be published in the newspapers that a judge had erred if [he] had no grounds for such a statement.”

Legal History At the hearing, it emerged that Justice Els intended to use the enquiry to determine whether Mamabolo was guilty of contempt of court. In his defense, Mamabolo argued that his constitutional right to freedom of expression altered the existing law of contempt of court and gave him the right to publicly criticize courts. He also

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contended that the summary procedure violated his right to a fair trial. While he agreed that the right to freedom of expression naturally embraced a right to criticize courts, Justice Els held that the statement brought “the dignity, honor, and authority of [the] court” into disrepute. He found no defense for a statement indicating intent not to obey his original judgment. He convicted Mamabolo of contempt of court. Mamabolo appealed this conviction directly in the Constitutional Court.

Issues Does a law criminalizing criticism of courts violate the right to freedom of expression? If some form of the crime of scandalizing the court is constitutional, does the summary procedure employed by Justice Els and other judges violate the right to a fair trial? Decision of the Constitutional Court The court overturned Mamabolo’s conviction. However, Justice Kriegler made it clear that the Constitutional Court was not abolishing the crime of “scandalizing the court.” The crime, Justice Kriegler held, serves the important purpose of maintaining respect for the judiciary: that purpose received specific constitutional recognition in section (). Section () requires all organs of state to “assist and protect the courts to ensure the independence, impartiality, dignity, accessibility, and effectiveness of the courts” (paragraphs –). That said, the crime was meant to protect the dignity of the judiciary as an institution, not the dignity or reputation of any individual judge. While in a constitutional democracy founded on openness and accountability, only a “narrow category of egregious cases” could reasonably be read to undermine the administration of justice and thus warrant a finding of contempt (paragraph ). Any limitation of the right to freedom of expression caused by such a narrow prohibition could easily be justified under section (). Mamabolo’s statement, under this new understanding, could not be said to scandalize the court. Justice Kriegler went on to hold that the summary procedure employed by Justice Els violated the right to a fair trial. It dispensed with a number of important protections for criminal defendants: the right to remain silent and the right to lead evidence. Order The court accordingly upheld the appeal and overturned Mamabolo’s conviction. Comment When the court talks about the “dignity” of courts, what is it really talking about? Is there any relationship to the notion of “human dignity” in section ? Or is the dignity of courts solely about traditions of institutional respect? Is dignity the best word to use in this context?

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JUSTICE KRIEGLER [] How far can one go in criticizing a Judge? Our law, while saying that “[j]ustice is not a cloistered virtue” and that “it is right and proper that . . . [judges] should be publicly accountable,” does place limits on the criticism of judicial officers and the administration of justice for which they are responsible. This appeal concerns the constitutional validity of some of these limits. More specifically it relates to a conviction for contempt of court resulting from the publication of criticism of a judicial order. Leave was granted to appeal directly to this court because the case raised constitutional issues of substance on which a ruling by this court was desirable in the interests of justice. The first issue was whether the law relating to the particular form of contempt of court, more colorfully than definitively referred to as scandalizing the court, unjustifiably limited the right to freedom of expression vouchsafed by the Constitution. The second is whether the procedure recognized and sanctioned by our law whereby a judge could deal summarily with cases of this kind fell foul of the fair trial rights guaranteed by the Constitution. An ancillary constitutional issue relates to the binding force of judicial orders and the related obligation imposed by the Constitution on all organs of state to assist and protect the courts. In respect of each of the first two issues, a finding that the law does indeed limit the fundamental rights in the respects contended for, will in turn require an enquiry whether such limitation is nevertheless constitutionally justified.

The Nature and Purpose of the Offence of Scandalizing the Court [] Evaluation of the argument presented on behalf of the parties and the amici respectively regarding this question must logically start by establishing what limits the law places on the right to criticize a judge, or a judicial ruling, in these circumstances. Put differently, what are the elements of the crime of scandalizing the court? That question must be addressed in its context: scandalizing is a form of contempt of court which, in turn, is a broad variety of offences that have little in common with one another save that they all relate, in one way or another, to the administration of justice. Contempt of court has indeed been called “the Proteus of the legal world, assuming an almost infinite diversity of forms.” The breadth of the genus is apparent from the definitions of contempt of court in standard textbooks on South African criminal law. For example Burchell and Milton’s definition reads: “Contempt of court consists in unlawfully and intentionally violating the dignity, repute or authority of a judicial body, or interfering in the administration of justice in a matter pending before it.” Milton repeats the Burchell and Milton definition and Snyman, referring to the two authorities mentioned, gives a more detailed but equally sweeping definition: Minagting van die hof is die wederregtelike en opsetlike (a) aantasting van die waardigheid, aansien of gesag van ‘n regterlike amptenaar in sy regterlike hoedanigheid, of van ‘n regsprekende liggaam, of

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(b) publikasie van inligting of kommentaar aangaande ‘n aanhangige regsgeding wat die strekking het om die uitslag van die regsgeding te beïnvloed of om in te meng met die regsadministrasie in daardie regsgeding.

[] The fundamental question that has to be addressed at the outset here, is why there is such an offence as scandalizing the court at all in this day and age of constitutional democracy. Why should judges be sacrosanct? Is this not a relic of a bygone era when Judges were a power unto themselves? Are judges not hanging on to this legal weapon because it gives them a status and untouchability that is not given to anyone else? Is it not rather a constitutional imperative that public officebearers, such as judges, who wield great power, as judges undoubtedly do, should be accountable to the public who appoint them and pay them? Indeed, if one takes into account that the judiciary, unlike the other two pillars of the state, are not elected and are not subject to dismissal if the voters are unhappy with them, should not judges preeminently be subjected to continuous and searching public scrutiny and criticism? [] The answer is both simple and subtle. It is, simply, because the constitutional position of the judiciary is different, really fundamentally different. In our constitutional order the judiciary is an independent pillar of state, constitutionally mandated to exercise the judicial authority of the state fearlessly and impartially. Under the doctrine of separation of powers it stands on an equal footing with the executive and the legislative pillars of state; but in terms of political, financial, or military power it cannot hope to compete. It is in these terms by far the weakest of the three pillars; yet its manifest independence and authority are essential. Having no constituency, no purse and no sword, the judiciary must rely on moral authority. Without such authority it cannot perform its vital function as the interpreter of the Constitution, the arbiter in disputes between organs of state and, ultimately, as the watchdog over the Constitution and its Bill of Rights—even against the state. [] No one familiar with our history can be unaware of the very special need to preserve the integrity of the rule of law against governmental erosion. The emphatic protection afforded the Judiciary under the Constitution therefore has a particular resonance. Recognizing the vulnerability of the judiciary and the importance of enhancing and protecting its moral authority, chapter  of the Constitution, which marks off the terrain of the judiciary, significantly commences with the following two statements of principle: () The judicial authority of the Republic is vested in the courts. () The courts are independent and subject only to the Constitution and the law, which they must apply impartially and without fear, favor or prejudice.

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These two general propositions are then fleshed out and reinforced in the succeeding three subsections of section  of the Constitution: () No person or organ of state may interfere with the functioning of the courts. () Organs of state, through legislative and other measures, must assist and protect the courts to ensure the independence, impartiality, dignity, accessibility and effectiveness of the courts. () An order or decision issued by a court binds all persons to whom and organs of State to which it applies.

The breadth of the injunction is emphasized if one has regard to the compendious meaning that the Constitution gives to the term “organ of state” so as to include all executive and legislative bodies in all spheres of government. [] The judiciary cannot function properly without the support and trust of the public. Therefore courts have over the centuries developed a method of functioning, a self-discipline and a restraint that, although it differs from jurisdiction to jurisdiction, has a number of essential characteristics. The most important is that judges speak in court and only in court. They are not at liberty to defend or even debate their decisions in public. It requires little imagination to appreciate that the alternative would be chaotic. Moreover, as a matter of general policy judicial proceedings of any significance are conducted in open court, to which everybody has free access and can assess the merits of the dispute and can witness the process of its resolution. This process of resolution ought as a matter of principle to be analytical, rational, and reasoned. The rules to be applied in resolving the dispute should either be known beforehand or be debated and determined openly. All decisions of judicial bodies are as a matter of course announced in public; and, as a matter of virtually invariable practice, reasons are automatically and publicly given for judicial decisions in contested matters. All courts of any consequence are obliged to maintain records of their proceedings and to retain them for subsequent scrutiny. Ordinarily the decisions of courts are subject to correction by other, higher tribunals, once again for reasons that are debated and made known publicly. [] This manner of conducting the business of the courts is intended to enhance public confidence. In the final analysis it is the people who have to believe in the integrity of their judges. Without such trust, the judiciary cannot function properly; and where the judiciary cannot function properly the rule of law must die. Because of the importance of preserving public trust in the judiciary and because of the reticence required for it to perform its arbitral role, special safeguards have been in existence for many centuries to protect the judiciary against vilification. One of the protective devices is to deter disparaging remarks calculated to bring the judicial process into disrepute.

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[] That is where the crime of scandalizing the court fits into the overall scheme of the administration of justice. It is one of the devices that protect the authority of the courts. It is therefore hardly surprising that it is recognized as a crime in many common-law jurisdictions. In a recent judgment of the Zimbabwean Supreme Court, reported as In re Chinamasa [ () SA  (ZS) ( () BCLR )], Chief Justice Gubbay conducts a review and analysis of comparative sources and provides a lucid and exhaustive exposition of the law on this topic—so much so that anything more than adoption would be supererogatory. Suffice it to say that in present-day practice scandalizing the court is to be found in the jurisdictions of England and Wales, Canada, India, Australia, New Zealand, Mauritius, Hong Kong, Zimbabwe, Namibia and our own country.

The Limits of the Offence of Scandalizing the Court [] Having established the general nature and purpose of the crime, it is necessary to delineate its scope. First, the interest that is served by punishing scandalizing is not the private interest of the member or members of the court concerned. The offence was created and has been kept extant in the interest of the public at large: “[T]he real offence is the wrong done to the public by weakening the authority and influence of a tribunal which exists for their good alone.” In the second place it is important to keep in mind that it is not the self-esteem, feelings, or dignity of any judicial officer, or even the reputation, status or standing of a particular court that is sought to be protected, but the moral authority of the judicial process as such: The purpose which the law seeks to achieve by making contempt a criminal offence is to protect “the fount of justice” by preventing unlawful attacks upon individual judicial officers or the administration of justice in general which are calculated to undermine public confidence in the courts. The criminal remedy of contempt of court is not intended for the benefit of the judicial officer concerned or to enable him to vindicate his reputation or to assuage his wounded feelings.

To this one could usefully add with endorsement the following statement of principle by Chief Justice Gubbay in Chinamasa: The recognition given to this form of contempt is not to protect the tender and hurt feelings of the judge or to grant him any additional protection against defamation other than that available to any person by way of a civil action for damages. Rather it is to protect public confidence in the administration of justice, without which the standard of conduct of all those who may have business before the courts is likely to be weakened, if not destroyed.

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[] The crucial point is that the crime of scandalizing is a public injury. The reason behind it being a crime is not to protect the dignity of the individual judicial officer, but to protect the integrity of the administration of justice. Unless that is assailed, there can be no valid charge of scandalizing the court. [] But this clarity of principle should not seduce one into believing that applying the principle is simple. On the contrary, if one lesson is to be learnt from the numerous reported judgments, here and abroad, where courts have grappled and continue to grapple with the problem of applying the broad principles to individual sets of facts, it is that there is no simple and universally appropriate measure that can be applied to determine whether the mark of acceptable comment has been overstepped. There is no litmus test. [] Indeed, the ostensible tension between freedom of expression and protection of the reputation of the judicial process ought not to be exaggerated. Since time immemorial and in many divergent cultures it has been accepted that the business of adjudication concerns not only the immediate litigants but is a matter of public concern that, for its credibility, is done in the open where all can see. Of course this openness seeks to ensure that the citizenry know what is happening, such knowledge in turn being a means towards the next objective: so that the people can discuss, endorse, criticize, applaud, or castigate the conduct of their courts. And, ultimately, such free and frank debate about judicial proceedings serves more than one vital public purpose. Self-evidently such informed and vocal public scrutiny promotes impartiality, accessibility and effectiveness, three of the important aspirational attributes prescribed for the judiciary by the Constitution. [] However, such vocal public scrutiny performs another important constitutional function. It constitutes a democratic check on the judiciary. The judiciary exercises public power and it is right that there be an appropriate check on such power. The impeachment and removal from office of a judge under section  of the Constitution is a check available in extreme cases only, namely incapacity, gross incompetence or gross misconduct on the part of the judge. The nature of the separation of powers between the judiciary on the one hand and the legislature and executive on the other is, however, such that any other check on the judiciary by the legislature or the executive runs the risk of endangering the independence of the judiciary and undermining the separation of powers principle. Members of the public are not so constrained. [] Ideally, also, robust and informed public debate about judicial affairs promotes peace and stability by convincing those who have been wronged that the legal process is preferable to vengeance; by assuring the meek and humble that might is not right; by satisfying business people that commercial undertakings can be efficiently enforced; and, ultimately, as far as they all are concerned, that there exists a set of just norms and a trustworthy mechanism for their enforcement. [] But the freedom to debate the conduct of public affairs by the judiciary does not mean that attacks, however scurrilous, can with impunity be made on the

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judiciary as an institution or on individual judicial officers. A clear line cannot be drawn between acceptable criticism of the judiciary as an institution and of its individual members, on the one side, and, on the other side, statements that are downright harmful to the public interest by undermining the legitimacy of the judicial process as such. But the ultimate objective remains: courts must be able to attend to the proper administration of justice and—in South Africa possibly more importantly— they must be seen and accepted by the public to be doing so. Without the confidence of the people, courts cannot perform their adjudicative role, nor fulfill their therapeutic and prophylactic purpose. [] Therefore statements of and concerning judicial officers in the performance of their judicial duties have, or can have, a much wider impact than merely hurting their feelings or impugning their reputations. An important distinction has in the past been drawn between reflecting on the integrity of courts, as opposed to mere reflections on their competence or the correctness of their decisions. Because of the grave implications of a loss of public confidence in the integrity of its judges, public comment calculated to bring that about has always been regarded with considerable disfavor. No one expects the courts to be infallible. They are after all human institutions. But what is expected is honesty. Therefore the crime of scandalizing is particularly concerned with the publication of comments reflecting adversely on the integrity of the judicial process or its officers.

The Constitutional Challenge to the Crime of Scandalizing the Court [] In this court Mr. Fabricius took a bold line on behalf of the appellant and primarily adhered to that stance: in the light of the constitutional rights and freedoms now contained in the Bill of Rights; there is no room for the continued recognition of this crime. It could not and did not survive the advent of the fundamental freedom of expression afforded to everyone by the Constitution. At most it could be accepted, so he argued, that a limited form of contempt of court remained extant. This he defined as being where an intentional expression in pending proceedings is proven to have subverted the supremacy of the Constitution and the rule of law. In the course of argument in this court, he somewhat tempered his contention but substantially adhered to the basic proposition that criticism of judicial proceedings after the event could never constitute a crime in the constitutional atmosphere that now prevails. [] There are more important features to be considered when deciding on the suitability in our jurisprudence of the proposed North American model for drawing the line between permissible comment on judicial affairs and scandalizing. The most important of these is to be found in the plain wording of section () of the Constitution: “Organs of State, through legislative and other measures, must assist and protect the courts to ensure the independence, impartiality, dignity, accessibility and effectiveness of the courts.” In the new era of constitutional supremacy and the rule of law the judiciary is invested with materially enhanced powers, including that

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Mamabolo

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of invalidating any law or governmental conduct to the extent that it is found to be inconsistent with the Constitution. Self-evidently the exercise of these powers could involve the judiciary in public contention and it is therefore significant that the Constitution, having reposed such trust in the Judiciary, then directs this command to all organs of state. The Constitution thus recognizes the importance—and commands reinforcement, if necessary by “legislative and other measures”—of the dignity of the courts. This is the very feature the crime of scandalizing aims to protect. [] It follows that there is little room for any argument that adherence to the Constitution requires abandonment of a measure such as the crime in question, or for attenuating materially the circumstances in which it could be applied, as would the test advocated by counsel for the amici. On the contrary, where the Constitution itself contemplates legislative protection of these judicial qualities, it would be difficult to uphold an argument that any measure to that end which, even minimally, limits one or other of the fundamental rights contained in the Bill of Rights, is an unjustifiable infringement. It follows that a test that proceeds from such hypothesis would be inappropriate. [] A detailed analysis of the difference between the two constitutional regimes is unnecessary. Here we are concerned with one crucial difference. The fundamental reason why the test evolved under the First Amendment cannot lock on to our crime of scandalizing the court is because our Constitution ranks the right to freedom of expression differently. With us it is not a preeminent freedom ranking above all others. It is not even an unqualified right. The First Amendment declaims an unequivocal and sweeping commandment; section (), the corresponding provision in our Constitution, is wholly different in style and significantly different in content. It is carefully worded, enumerating specific instances of the freedom and is immediately followed by a number of material limitations in the succeeding subsection. Moreover, the Constitution, in its opening statement and repeatedly thereafter, proclaims three conjoined, reciprocal and covalent values to be foundational to the Republic: human dignity, equality and freedom. With us the right to freedom of expression cannot be said automatically to trump the right to human dignity. The right to dignity is at least as worthy of protection as the right to freedom of expression. How these two rights are to be balanced, in principle and in any particular set of circumstances, is not a question that can or should be addressed here. What is clear though and must be stated is that freedom of expression does not enjoy superior status in our law. [] It is not wise therefore, in my view, to choose to embrace a re-tooled version of a minimalist test, that was originally crafted for the American system where minimal interference with a predominant constitutional right under the First Amendment was called for, and was then adapted by a Canadian provincial court for its society under its equivalent of our Bill of Rights. It does not fit and is more likely to confuse than to clarify. [] In any event and moreover, now that we do have the benefit of a constitutional environment in which all law is to be interpreted and applied, there can be

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Legal Cases (–)

little doubt that the test for scandalizing, namely that one has to ask what the likely consequence of the utterance was, will not lightly result in a finding that the crime of scandalizing the court has been committed. Having regard to the founding constitutional values of human dignity, freedom and equality, and more pertinently the emphasis on accountability, responsiveness and openness in government, the scope for a conviction on this particular charge must be narrow indeed if the right to freedom of expression is afforded its appropriate protection. The threshold for a conviction on a charge of scandalizing the court is now even higher than before the superimposition of constitutional values on common-law principles; and prosecutions are likely to be instituted only in clear cases of impeachment of judicial integrity. It is a public injury, not a private delict; and its sole aim is to preserve the capacity of the judiciary to fulfill its role under the Constitution. Scandalizing the court is not concerned with the self-esteem, or even the reputation, of judges as individuals, although that does not mean that conduct or language targeting specific individual judicial officers is immune. Ultimately the test is whether the offending conduct, viewed contextually, really was likely to damage the administration of justice. [] [. . .] There is a certain stark appeal in such an absolutist stance, yet it is unrealistic and inappropriate—unrealistic in an imperfect world with massive concentration of power of communication in relatively few hands and inappropriate where the Constitution requires a balancing exercise. Where section ()(e) speaks of less restrictive means it does not postulate an unattainable norm of perfection. The standard is reasonableness. And, in any event, in theory less restrictive means can almost invariably be imagined without necessarily precluding a finding of justification under the section. It is but one of the enumerated considerations that have to be weighed in conjunction with one another, and with any others that may be relevant. On balance, while recognizing the fundamental importance of freedom of expression in the open and democratic society envisaged by the Constitution, there is a superior countervailing public interest in retaining the tightly circumscribed offence of scandalizing the court. [] Having determined the substantive question, the next line of enquiry is to ascertain whether the procedural question, namely whether the option allowed to a Judge to summon a suspected scandalizer to appear before her or him to answer to a summary charge of contempt of court, constitutes a limitation of any of the fundamental rights protected by the Bill of Rights. Before commencing that enquiry it should be observed that we are concerned only with an evaluation of the summary procedure that exists at common-law. There are a number of analogous statutory provisions providing for some form of summary intervention by a judicial officer relating to conduct of a kind broadly similar to contempt of court. But none of them deals with allegedly contemptuous conduct of the kind in issue here, i.e. outside court and after the event. The enquiry is also limited to proceedings in superior courts. Lower courts have no extraordinary jurisdiction to deal with instances of scandalizing the court. I use the word “extraordinary” to distinguish between prosecutions in the ordinary course at the instance of the prosecutorial

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authorities, which may be tried before a lower court, and the special proceedings initiated by the presiding judicial officer. [] It should also be noted that we are not concerned here with the kind of case where the orderly progress of judicial proceedings is disrupted, possibly requiring quick and effective judicial intervention in order to permit the administration of justice to continue unhindered. Here we are not looking at measures to nip disruptive conduct in the bud, but at occurrences that by definition occur only after the conclusion of a particular case—or possibly unrelated to any particular case. Swift intervention is not necessary. [] A person so summoned is an accused person as contemplated by section () of the Constitution. The primary enquiry is therefore whether the procedure infringes one or more of the elements of the composite set of provisions that go to make up the fair trial protection afforded to an accused person under the provisions of that subsection. The answer, on that assumption, is really quite simple. It is now settled law that the right under section () “embraces a concept of substantive fairness” and that it is “a comprehensive and integrated right” composed of a number of elements, some of which are specified in the subsection. Here one need look no further than paragraphs (a), (b), (c), (h), (i), and (j) of section (), which provide as follows: () Every accused person has a right to a fair trial, which includes the right (a) to be informed of the charge with sufficient detail to answer it; (b) to have adequate time and facilities to prepare a defense; (c) to a public trial before an ordinary court; ... (h) to be presumed innocent, to remain silent, and not to testify during the proceedings (i) to adduce and challenge evidence; (j) not to be compelled to give self-incriminating evidence.

[] Manifestly the summary procedure is unsatisfactory in a number of material respects. There is no adversary process with a formal charge-sheet formulated and issued by the prosecutorial authority in the exercise of its judgment as to the justice of the prosecution; there is no right to particulars of the charge and no formal plea procedure with the right to remain silent, thereby putting the prosecution to the proof of its case. Witnesses are not called to lay the factual basis for a conviction, nor is there a right to challenge or controvert their evidence. Here the presiding judge takes the initiative to commence proceedings by means of a summons which he or she formulates and issues; at the hearing there need be no prosecutor, the issue being between the judge and the accused. There is no formal plea procedure, no right to remain silent and no opportunity to challenge evidence. Moreover, the very purpose of the procedure is for the accused to be questioned as to the alleged contempt of court.

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Legal Cases (–)

[] There can be no doubt that a procedure by which an individual can be haled before a judge for the sole purpose of enquiring into the possible commission of a crime, there to be questioned and, depending on the judge’s view of the responses to the questioning, possibly to be punished by a fine or imprisonment, constitutes a major inroad into his fair trial rights. Nor can it be denied that such an individual enjoys little protection or benefit of the law and its processes. [] The next question to be asked is whether the summary procedure is saved by section () of the Constitution. Accepting that the rules of the common law that sanction the procedure qualify as “law of general application” within the meaning of the subsection, the question is whether the limitation they pose is reasonable and justifiable in an open and democratic society. If one keeps in mind that the enquiry is limited to the use of the summary procedure in cases of alleged scandalizing of the court, there can be only one answer. In such cases there is no pressing need for firm or swift measures to preserve the integrity of the judicial process. If punitive steps are indeed warranted by criticism so egregious as to demand them, there is no reason why the ordinary mechanisms of the criminal justice system cannot be employed. [] The alternative is constitutionally unacceptable: it is inherently inappropriate for a court of law, the constitutionally designated primary protector of personal rights and freedoms, to pursue such a course of conduct. The summary contempt procedure employed in the present case is, save in exceptional circumstances such as those in the Chinamasa case, where ordinary prosecution at the instance of the prosecuting authority is impossible or highly undesirable, a wholly unjustifiable limitation of individual rights and must not be employed. Indeed, what transpired in the court below in this case demonstrates the pitfalls of the procedure and underscores why it should be reserved for the most exceptional cases only. [] The conclusion that the summary procedure adopted in the court below was an unjustifiable infringement of constitutionally protected rights must of course result in a finding that the conviction and sentence cannot stand. But even if the case had not been fatally defective on this procedural ground, it could not be sustained on its substantive merits. The learned judge, probably because of his proximity to the case caused by the inappropriate procedure he elected to adopt, did not do justice to the case. With the perspective of hindsight it is clear that he really missed the fundamental point. The issue was not, as the judge appeared to believe, whether the appellant’s statement that the judge had made a mistake or that he had by such mistake contributed to confusion was a statement of fact or an expression of opinion. The appellant neither purported nor was reported in Beeld to have expressed anything other than an opinion. Criticism of a judgment can, because of the very nature of that which is criticized, never be anything else but a judgment that is itself an opinion. [] But fact or opinion, it matters not. What was published did not in any way impair the dignity, integrity, or standing of the Judiciary or of the particular judge. Whatever the appellant’s intention might have been, and there is no reason to doubt

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his word when he says he intended no disrespect, the statements he made do not bear a meaning such as could possibly found a charge of scandalizing the court. Therefore, on the substantive merits also, the conviction cannot be supported. [] The question that then arises is whether this judgment should be confined to a declaration to the effect that on constitutional grounds the conviction and sentence were, both procedurally and substantively bad and refer the matter back to the trial court for reversal of the conviction and sentence. Fortunately such pointless prolixity is unnecessary. Section  of the Constitution provides for a court to grant “appropriate relief ” where a right in the Bill of Rights is found to have been infringed. Moreover, section () of the Constitution, which delineates the jurisdiction of this court, expressly empowers it to “decide . . . issues connected with decisions on constitutional matters,” which clearly encompasses the setting aside of a verdict and/or sentence found to be insupportable on constitutional grounds.

Separation of Powers [] However, I suspect that what really motivated the learned Judge to take the course that he did, and to handle the proceedings in court as he did, was an unarticulated suspicion that the appellant, Commissioner Mbete and the department were minded to defy the bail order and were proclaiming such defiance to the world at large. Had that indeed been the case, there can be little doubt that they would have been acting contrary to their duties under the Constitution. Theirs was not to challenge a judicial order by means of a press release and media interviews. They, as servants of the state, were obliged to be exemplary in their obedience to court orders, subject of course to the right that existed to take the order on appeal. Moreover, the Constitution recognizes and expressly commands not only exemplary conduct by the executive and legislative branches of the state, but the active support of all organs of state in section (), (), and (). [] However, analysis of the judgment shows that the learned judge concluded that he could not convict the Commissioner of contempt, which then makes the conviction of the appellant on this basis all the more problematic. The appellant was in no position either to execute the order for Terre Blanche’s release on bail, or to frustrate the order. He is a media spokesman of the department, and no more. If anyone had the power to order obedience or defiance, it was Commissioner Mbete. [] It would have been a very serious matter indeed, calling for speedy and decisive action, if the order had actually been defied. The specter of executive officers refusing to obey orders of court because they think they were wrongly granted is ominous. It strikes at the very foundations of the rule of law when government servants presume to disregard orders of court. What the most appropriate form of action would have been is a matter for speculation and need not be pursued. Suffice it to say that the appellant was wrongly convicted of having scandalized the court. In addition his conviction and sentence followed on a procedure that unjustifiably limits his rights under the Constitution.

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Legal Cases (–)

JUSTICE SACHS [] It is easy to guarantee freedom of speech when it is relatively innocuous. The time when it requires constitutional protection is precisely when it hurts. The justification for punishing mere speech, however unfair, inaccurate, or offensive it may be, when it does not directly threaten to disrupt, pressurize, or prejudice ongoing litigation, must be compelling indeed. [] My semantic concern lies not with the words “tendency,” “likelihood,” or “calculated to,” which were the subject of vigorous debate at the hearing. I agree that they are variants of a common theme that requires an objective evaluation of probable outcomes, and that it might not in all cases be necessary for the prosecution to prove actual impact upon or direct prejudice to the administration of justice. My unease relates rather to the emphasis given to the words “scandalizing” and “disrepute.” Taken in conjunction, they belong to an archaic vocabulary that fits most uncomfortably into contemporary constitutional analysis. They evoke another age with other values, when a strong measure of awe and respect for the status of the sovereign and his or her judges was considered essential to the maintenance of the public peace. Constitutionalism arose in combat with mystique, and does not easily become its bride. The problem is not simply that the nomenclature is quaint— something not uncommon in legal discourse—but that it can be misleading. As the judgment points out, the heart of the offence lies not in the outrage to the sensibilities of the judicial officers concerned, but in the impact the utterance is likely to have on the administration of justice. The purpose of invoking the criminal law is not essentially to provide a prophylaxis for the good name of the Judiciary, as the term scandalizing suggests. It is to ensure that the rule of law in an open and democratic society envisaged by the Constitution is not imperiled. There might be a link between the repute of the judiciary and the maintenance of the rule of law. But it would be a mistake to regard them as synonymous. Indeed, bruising criticism could in many circumstances lead to improvement in the administration of justice. Conversely, the chilling effect of fear of prosecution for criticizing the courts might be conducive to its deterioration. [] My second and more substantive qualification flows from the first. In an open and democratic society, freedom of speech, and the right to expose all public institutions to criticism of the most robust and inconvenient kind, are vital. At the same time, the existence of a vigorous and independent Bench capable of protecting all rights, including freedom of speech, is essential. The problem arises when speech is used in a manner calculated to undermine the very institution designed to protect all fundamental rights, including the right to free expression. What further complicates the matter in South Africa is that the very context of a newly developing democracy that requires the greatest openness of debate necessitates the existence of a judiciary with the strongest capacity to defend that openness. It is in this complex situation that any possible tension between the right to free expression and the

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capacity of the courts to defend free expression must be resolved. The interaction between these dual needs is eloquently dealt with in the judgment and requires no further comment from me. I do, however, feel it necessary to clarify my position on the question of justification for the retention of the crime described—unfortunately, in my view—as scandalizing the court. [] I would accordingly suggest that to meet the constitutional standards of reasonableness and justifiability, prosecutions should be based not simply on the expression of words likely to bring the administration of justice into disrepute, but on the additional ingredient of provoking real prejudice. In its context such expression must be likely to have an impact of a sufficiently serious and substantial nature as to pose a real and direct threat to the administration of justice. Thus, it could be part of a wider campaign to promote defiance of the law or to challenge the legitimacy of the constitutional State. Or, more specifically, it could be connected to attempts by persons such as warlords or drug lords to achieve de facto immunity for themselves. Alternatively, there might be less dramatically confrontational examples where the speech in its context is likely in a direct and significant way to sap the capacity of the courts to function properly. If the speech targets a particular judicial officer, it should be of such an unwarranted and substantial a character as seriously and unjustifiably to impede that judicial officer in being able to carry on with his or her judicial functions with appropriate dignity and respect. Thus, to call a judge a crook in circumstances where the public is likely to give credence to such allegation is effectively to challenge and undermine the capacity of that judge to continue with the function of impartial adjudication. It seems appropriate that unwarranted allegations of that kind, if sufficiently serious in the circumstances, could give rise to prosecution, even if the administration of justice in general was not threatened. I agree with the judgment that in matters of this sort, context and impact are decisive. The test that I would propose would be more specific than that indicated in the judgment, though in practice the difference might be slight. [] I make the above observations not simply to manifest enthusiasm for the abstract virtues of freedom of speech. Experience in this country indicates that it is precisely when the judiciary lacks prestige that some of its members are most likely to be tempted to shore up its position by means of contempt of court proceedings against its critics. [] It is particularly important that, as the ultimate guardian of free speech, the judiciary show the greatest tolerance to criticism of its own functioning. Its standing in the community can be undermined only if the public are led to draw the inference that, in pursuance of the principle that an injury to one is an injury to all, the judicial establishment is closing ranks. In this respect I can do no better than quote and adopt the observations of Chief Justice Gajendragadkar of the Indian Supreme Court: We ought never to forget that the power to punish for contempt, large as it is, must always be exercised cautiously, wisely and with circumspection. Frequent

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Legal Cases (–)

or indiscriminate use of this power in anger or irritation would not help to sustain the dignity or status of the court, but may sometimes affect it adversely. Wise Judges never forget that the best way to sustain the dignity and status of their office is to deserve respect from the public at large by the quality of their judgments, the fearlessness, fairness and objectivity of their approach, and by the restraint, dignity and decorum which they observe in their judicial conduct.

If respect for the Judiciary is to be regarded as integral to the maintenance of the rule of law, as I believe it should be, such respect will be spontaneous, enduring and real to the degree that it is earned, rather than to the extent that it is commanded.

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Mohamed

Mohamed and Another v. President of the Republic of South Africa and Others (Society for the Abolition of the Death Penalty in South Africa and Another Intervening)  () SA  (CC) CASE SUMMARY

Facts At the time the Constitutional Court heard the matter, the appellant had already been deported from South Africa and was on trial in a US federal district court on capital charges related to the bombings of US embassies in Nairobi, Kenya and Dar es Salaam, Tanzania in August . Prior to his deportation, Mr. Mohamed had entered South Africa illegally and had applied for asylum under a false name. He was granted temporary residence while his application was processed. He was later identified by a US agent and then arrested, detained, and interrogated by South African officials before finally being turned over to US government agents.

Legal History The appellants had approached the Cape Provincial Division of the High Court for declaratory and mandatory relief arising out of the arrest of Mohamed and his subsequent handing over to US agents. The appellants alleged that the behavior of South African official constituted a disguised form of extradition in terms of Aliens Control Act  of  and that the officials had not complied with the regulations promulgated under the act. The High Court held that Mohamed was an illegal

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Legal Cases (–)

alien in South Africa and that the government was therefore entitled to deport him in terms of the Aliens Control Act. The High Court held that neither a departure from the exact processes of the act nor the collusion of the US agents altered this position. The High Court also held that Mohamed had, in any event, consented to be deported to the United States. They therefore dismissed the application. The appellants then applied, as a matter of urgency, to the Constitutional Court against the decision of the High Court.

Issues Although the applicant was now beyond the Constitutional Court’s jurisdiction, his representatives asked the court to find: (a) that the interrogation and the handing over of Mr. Mohamed by South African officials to US agents was unlawful, and (b) that the government had breached Mr. Mohamed’s constitutional rights by handing him over to the US government without first obtaining an assurance that the death penalty would not be imposed in the event of Mr. Mohamed’s conviction. Furthermore, the appellants sought an order “directing the government of the Republic of South Africa to submit a written request . . . to the government of the United States of America that the death penalty not be sought, imposed nor carried out” in the event of conviction.

Decision of the Constitutional Court By and large, the Constitutional Court granted the relief sought by the applicant. In rejecting claims made by the government that a court order in this matter was “futile,” beyond the Constitutional Court’s powers, and a breach of the separation of powers, the Mohamed court wrote: To stigmatize such an order as a breach of the separation of state power as between the executive and the judiciary is to negate a foundational value of the Republic of South Africa, namely supremacy of the Constitution and the rule of law. The Bill of Rights, which we find to have been infringed, is binding on all organs of state and it is our constitutional duty to ensure that appropriate relief is afforded to those who have suffered infringement of their constitutional rights. (Paragraph )

The court found the government’s actions unlawful under the Aliens Control Act and unconstitutional in terms of the rights to section  (dignity), section  (life), and section  (freedom and security of the person) of the Constitution.

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Order The court issued a declaration of invalidity. Of course, that declaration alone would be of no assistance to Mohamed in US federal court. The court therefore did the only thing it could: it ordered that a copy of its judgment be sent, as a matter of urgency, to the trial court in the United States. Comment On the more general issue of the final Constitution’s reach, the Mohamed court’s judgment stands for the proposition that the final Constitution applies to aliens both within and without South Africa’s borders and that the government cannot undo our basic law’s fetters simply by claiming that a case concerns sensitive political issues or foreign affairs. Moreover, even if a court has a limited capacity to affect directly the manner in which the government carries out its foreign affairs, a finding that the government violated the constitutional rights of a person within South Africa’s borders might support an action in delict and thereby influence the government’s behavior in the future. THE COURT [] [. . .] The argument advanced on behalf of the respective parties will be analyzed in detail later. Suffice it to say by way of introduction that the main contention on behalf of the applicants (supported by the amici curiae) was that Mohamed’s arrest, detention, and handing over by the South African authorities to the FBI agents and his removal by them to the United States were part and parcel of a disguised extradition in breach of the law. More particularly the South African authorities were said to have breached the provisions of the Aliens Control Act (the Act) and the regulations published thereunder. Even more pertinently, Mohamed’s constitutional right to life, to dignity and not to be subjected to cruel, inhuman, or degrading punishment had allegedly been infringed.

The Validity of the Deportation in the Present Case [] In principle there is a clear distinction between extradition and deportation. Extradition involves basically three elements: acts of sovereignty on the part of two states; a request by one state to another state for the delivery to it of an alleged criminal; and the delivery of the person requested for the purposes of trial or sentence in the territory of the requesting state. Deportation is essentially a unilateral act of the deporting state in order to get rid of an undesired alien. The purpose of deportation is achieved when such alien leaves the deporting state’s territory; the destination of the deportee is irrelevant to the purpose of deportation. One of the important distinguishing features between extradition and deportation is therefore the purpose of the state delivery act in question. Where deportation and extradition coincide in

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Legal Cases (–)

effect, difficulties can arise in practice in determining the true purpose and nature of the act of delivery. This will, to the extent relevant to the present case, be dealt with later in this judgment. [] The position in this country must be considered in light of the Constitution and the relevant legislation. In President of the Republic of South Africa and Another v. Hugo [ () SA  (CC) ( () BCLR )] this court came to two important conclusions regarding prerogative powers under the Interim Constitution. First, the powers of the president which are contained in section () of the Interim Constitution have their origin in the prerogative powers exercised under former Constitutions by South African heads of state; second, there are no powers derived from the Royal Prerogative which are conferred upon the president other than those enumerated in section (). This is equally so under the present Constitution and its equivalent provisions and was expressly so held in Hugo. The powers of the president under the present Constitution originating from the Royal Prerogative are those in section (). This subsection does not provide for any power to deport an alien. [] Accordingly, the state’s power to deport, relevant to the present case, can be derived only from the provisions of the Act. Chapter VI, in sections –, deals extensively with the state’s power to deport prohibited persons and noncitizens. None of these provisions empowers the state to determine the destination of such deportation, but regulation , promulgated under the provisions of section , does. [] Regulation , dealing with the destination of such removal, reads as follows: Any person to be removed from the Republic under the Act, shall— (a) if he or she is the holder of a passport issued by any other country or territory, be removed to that country or territory; or (b) if he or she is not the holder of such a passport (i) be removed to the country or territory of which he or she is a citizen or national; or (ii) and if he or she is Stateless, be removed to the country or territory where he or she has a right of domicile.

[] Counsel devoted much time in argument to the question whether the provisions of this regulation are peremptory or not. In our view such an approach is too narrow. The additional question is whether the destinations enumerated in regulation  constitute a closed category. The word “shall,” which introduces the provisions of paragraphs (a) and (b) dealing with what is to be done with a person who “is to be removed from the Republic under the Act,” is clearly mandatory in form and there is nothing in the context to indicate the contrary. Once it has been decided to remove such person and such decision persists, whether the decision to remove is obligatory or permissive, the state has no discretion but to remove the person to the destination as prescribed in paragraphs (a) and (b). The further question, however, is whether the state has any power regarding the determination of the destination to

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which the person is to be removed under this regulation over and above that provided for in the regulation. [] In our view it clearly has not. The state has no remaining prerogative power to deport, for such power is not included in section () of the Constitution. Its power to deport and determine the destination of such deportation can only be found within the four corners of the Act and the regulations. In terms of regulation  such power is limited, regarding destination, to the places mentioned in paragraphs (a) and (b) thereof and determined in the manner therein prescribed. In any event it is clear that regulation  comprehensively covers all possibilities; the person with a passport, the person who is a citizen or national of a country and the stateless person. It covers the field of any common-law power the state might have had. [] It is common cause on the facts of this case that if the destination of deportation is to be determined exclusively by the provisions of regulation , the United States is not a destination permitted by the regulation. It follows that in the present case the South African authorities were not empowered to deport Mohamed to the United States. The argument on behalf of the government that Mohamed allegedly consented to his deportation to the United States and that such consent validated such deportation will be considered later.

Deportation or Extradition and the Death Penalty [] The lawfulness of the conduct of the South African immigration officers in handing over Mohamed to the FBI for them to take him to the United States was challenged on a further, even more fundamental and entirely different basis. The argument is derived from the obligation imposed on the South African state by the Constitution to protect the fundamental rights contained in the Bill of Rights. The rights in issue here are the right to human dignity, the right to life and the right not to be treated or punished in a cruel, inhuman or degrading way. According to the argument the Constitution not only enjoins the South African government to promote and protect these rights but precludes it from imposing cruel, inhuman, or degrading punishment. The Constitution also forbids it knowingly to participate, directly or indirectly, in any way in imposing or facilitating the imposition of such punishment. In particular, so the argument runs, this strikes at the imposition of a sentence of death. Therefore, even if it were permissible to deport Mohamed to a destination to which he had consented and even if he had given his informed consent to such removal, the government would have been under a duty to secure an undertaking from the United States authorities that a sentence of death would not be imposed on him, before permitting his removal to that country. [] The cornerstone of this argument is the finding of this court in S v. Makwanyane and Another [ () SA  (CC) ( () SACR ;  () BCLR )] that capital punishment is inconsistent with the values and provisions of the Interim Constitution. When, subsequent to this decision, the Constitutional Assembly came to deal with a Bill of Rights for the “final” Constitution, capital punishment

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Legal Cases (–)

was raised as an issue and the question whether there should be an exception to the right to life permitting such punishment was debated. No such exception was, however, made; nor is there anything in the  Constitution to suggest that the decision in Makwanyane has ceased to be applicable. On the contrary, the values and provisions of the Interim Constitution relied upon by this court in holding that the death sentence was unconstitutional are repeated in the  Constitution. The importance of human dignity to which great weight was given in Makwanyane is emphasized in the  Constitution by including it not only as a right, but also as one of the values on which the state is founded. [] In the various judgments given in Makwanyane the history of capital punishment, its application in South Africa under apartheid, the attitude of other countries to such punishment and the international trend against capital punishment in recent times were dealt with at length. This court, after a full and detailed consideration of the relevant provisions of the Interim Constitution and the arguments for and against capital punishment, concluded unanimously that the death sentence was inconsistent with the values and provisions of the Interim Constitution. There is no need to cover that ground again. It should be added, however, that the international community shares this court’s view of the death sentence, even in the context of international tribunals with jurisdiction over the most egregious offences, including genocide. Counsel for the government correctly accepted that capital punishment is also inconsistent with the values and provisions of the  Constitution and that the issues in this appeal must be dealt with on the basis of the decision in Makwanyane. [] Deportation and extradition serve different purposes. Deportation is directed to the removal from a state of an alien who has no permission to be there. Extradition is the handing over by one state to another state of a person convicted or accused there of a crime, with the purpose of enabling the receiving state to deal with such person in accordance with the provisions of its law. The purposes may, however, coincide where an illegal alien is “deported” to another country that wants to put him on trial for having committed a criminal offence the prosecution of which falls within the jurisdiction of its courts. [] Deportation is usually a unilateral act while extradition is consensual. Different procedures are prescribed for deportation and extradition, and those differences may be material in specific cases, particularly where the legality of the expulsion is challenged. In the circumstances of the present case, however, the distinction is not relevant. The procedure followed in removing Mohamed to the United States of America was unlawful whether it is characterized as a deportation or an extradition. Moreover, an obligation on the South African government to secure an assurance that the death penalty will not be imposed on a person whom it causes to be removed from South Africa to another country cannot depend on whether the removal is by extradition or deportation. That obligation depends on the facts of the particular case and the provisions of the Constitution, not on the provisions of the empowering

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Mohamed

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legislation or extradition treaty under which the “deportation” or “extradition” is carried out. [] Mohamed entered South Africa under an assumed name using a false passport. He applied for asylum giving false information in support of his application and was issued with a temporary visa to enable him to remain in South Africa while his application was being considered. Those facts justified the South African government in deporting him. That, however, is only part of the story, for the crucial events are those that happened after Mohamed had secured his temporary visa. Having been identified by the FBI as a suspect for whom an international arrest warrant had been issued in connection with the bombing of the United States embassy in Tanzania, he was apprehended by the South African immigration authorities in a joint operation undertaken in co-operation with the FBI. Within two days of his arrest and contrary to the provisions of the Act he was handed over to the FBI by the South African authorities for the purpose of being taken to the United States to be put on trial there for the bombing of the embassy. On his arrival in the United States he was immediately charged with various offences relating to that bombing and was informed by the court that the death sentence could be imposed on him if he were convicted. That this was likely to happen must have been apparent to the South African authorities as well as to the FBI when the arrangements were made for Mohamed to be removed from South Africa to the United States. [] Another suspect, Mr. Mahmoud Mahmud Salim, alleged to be a party to the conspiracy to bomb the embassies, was extradited from Germany to the United States. Germany has abolished capital punishment and is also party to the European Convention on Human Rights. The German government sought and secured an assurance from the United States government as a condition of the extradition that if he is convicted, Salim will not be sentenced to death. This is consistent with the practice followed by countries that have abolished the death penalty. [] Our Constitution provides that “everyone has the right to life.” There are no exceptions to this right. However, like all other rights in the Bill of Rights, it is subject to limitation in terms of section  of the Constitution. The requirements prescribed by section  are that the limitation must be reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors including those mentioned in the section. These considerations were taken into account by this court in Makwanyane in holding that capital punishment was not justifiable under the Interim Constitution. In the light of these provisions of our Constitution we can revert to the argument mentioned above that a “deportation” or “extradition” of Mohamed without first securing an assurance that he would not be sentenced to death or, if so sentenced, would not be executed would be unconstitutional. [] In Makwanyane President Chaskalson said that by committing ourselves to a society founded on the recognition of human rights we are required to give particular value to the rights to life and dignity, and that “this must be demonstrated by the state

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

Legal Cases (–)

in everything that it does.” In handing Mohamed over to the United States without securing an assurance that he would not be sentenced to death, the immigration authorities failed to give any value to Mohamed’s right to life, his right to have his human dignity respected and protected and his right not to be subjected to cruel, inhuman, or degrading punishment. [] Counsel for the government contended that although this requirement might be applicable to extraditions, it is not applicable to deportations. In support of this contention he relied on a series of Canadian cases the last of which is Halm v. Canada (Minister of Employment and Immigration) (T D) and on the judgment of the Court of Appeal of England and Wales in Soblen. These cases dealt with the validity of deportation proceedings in circumstances where the deported person was likely to face a criminal charge in the country to which he or she was to be deported. In all the cases a challenge to the procedure adopted based on a contention that there should have been a resort to extradition and not deportation was rejected. [] But whatever the position may be under Canadian law where deprivation of the right to life, liberty, and human dignity is dependent upon the fundamental principles of justice, our Constitution sets different standards for protecting the right to life, to human dignity and the right not to be treated or punished in a cruel, inhuman, or degrading way. Under our Constitution these rights are not qualified by other principles of justice. There are no such exceptions to the protection of these rights. Where the removal of a person to another country is effected by the state in circumstances that threaten the life or human dignity of such person, sections  and  of the Bill of Rights are implicated. There can be no doubt that the removal of Mohamed to the United States of America posed such a threat. This is perhaps best demonstrated by reference to the case of Salim, who was extradited from Germany to the United States subject to an assurance that the death penalty would not be imposed on him. This assurance has been implemented by the United States and Salim is to be tried in proceedings in which the death sentence will not be sought. [] If the South African authorities had sought an assurance from the United States against the death sentence being imposed on Mohamed before handing him over to the FBI, there is no reason to believe that such an assurance would not have been given. Had that been the case, Mohamed would have been dealt with in the same way as his alleged coconspirator Salim. The fact that Mohamed is now facing the possibility of a death sentence is the direct result of the failure by the South African authorities to secure such an undertaking. The causal connection is clear between the handing over of Mohamed to the FBI for removal to the United States for trial without securing an assurance against the imposition of the death sentence and the threat of such a sentence now being imposed on Mohamed. [] It is not only sections  and  of the Constitution that are implicated in the present case. According to section ()(d) and (e) of our Constitution, everyone has the right to freedom and security of the person, which includes the right not to

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Mohamed

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be tortured in any way and not to be treated or punished in a cruel, inhuman or degrading way. For the reasons given in Makwanyane, South African law considers a sentence of death to be cruel, inhuman and degrading punishment. [] Article  of the European Convention on Human Rights provides that “no one shall be subjected to torture or to inhuman or degrading treatment or punishment.” In Soering v. United Kingdom [()  EHRR ] the European Court of Human Rights held that [i]t would hardly be compatible with the underlying values of the Convention . . . were a Contracting State knowingly to surrender a fugitive to another state where there were substantial grounds for believing that he would be in danger of being subjected to torture, however heinous the crime allegedly committed. Extradition in such circumstances, while not explicitly referred to in the brief and general wording of article , would plainly be contrary to the spirit and intendment of the article, and in the court’s view this inherent obligation not to extradite also extends to cases in which the fugitive would be faced in the receiving state by a real risk of exposure to inhuman or degrading treatment or punishment proscribed by that article.

[] The Soering case was concerned with extradition, but similar sentiments were expressed by the same court in Hilal v. United Kingdom [Application No /,  March ], a case dealing with the deportation of a Tanzanian citizen from the United Kingdom to Tanzania, which was held to breach article  of the Convention because the deportee would face a serious risk of being subjected to torture or inhuman and degrading treatment in Tanzania. [] These cases are consistent with the weight that our Constitution gives to the spirit, purport and objects of the Bill of Rights and the positive obligation that it imposes on the state to “protect, promote and fulfill the rights in the Bill of Rights.” For the South African government to co-operate with a foreign government to secure the removal of a fugitive from South Africa to a country of which the fugitive is not a national and with which he has no connection other than that he is to be put on trial for his life there, is contrary to the underlying values of our Constitution. It is inconsistent with the government’s obligation to protect the right to life of everyone in South Africa, and it ignores the commitment implicit in the Constitution that South Africa will not be party to the imposition of cruel, inhuman, or degrading punishment.

Consent to Deportation or Extradition [] A submission strenuously advanced on behalf of the government was that Mohamed had consented to his removal to the United States, whether the removal is properly to be characterized as a deportation or a disguised extradition. It is open to doubt whether a person in Mohamed’s position can validly consent to being

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Legal Cases (–)

removed to a country in order to face a criminal charge where his life is in jeopardy. The authorities ought not to be encouraged to obtain consent of such a nature. [] We did not have the benefit of full argument on this issue and it would accordingly be unwise to express a view on it. We will, without deciding, assume in favor of the respondents, that a proper consent of such a nature would be enforceable against Mohamed. To be enforceable, however, it would have to be a fully informed consent and one clearly showing that the applicant was aware of the exact nature and extent of the rights being waived in consequence of such consent. [] An indispensable component of such consent would be awareness on the part of Mohamed that he could not lawfully be delivered by the South African authorities to the United States without obtaining an undertaking as a condition to such delivery that if convicted the death sentence would not be imposed on him or, if imposed, would not be carried out. Clearly this duty on the part of the South African government was important to Mohamed; and, inevitably, any consent given by him in ignorance of that duty and of the literally vital protection it afforded him, was inchoate. And it must remain such unless and until it is shown that the unqualified consent by Mohamed to be taken to New York, there to be put on trial for his life, was given at a time when he knew and understood his right to demand of the South African authorities that they perform their duty to uphold the Constitution. [] We accordingly conclude that it has not been established that any agreement that Mohamed might have expressed to his being delivered to the United States constitutes a valid consent on which the government can place any reliance. Its contention in this regard is accordingly rejected. The handing over of Mohamed to the United States government agents for removal by them to the United States was unlawful. [] That is a serious finding. South Africa is a young democracy still finding its way to full compliance with the values and ideals enshrined in the Constitution. It is therefore important that the state lead by example. This principle cannot be put better than in the celebrated words of Justice Brandeis in Olmstead et al. v. United States [ US  ()]: In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously. . . . Government is the potent, omnipresent teacher. For good or for ill, it teaches the whole people by its example. . . . If the government becomes a lawbreaker, it breeds contempt for the law; it invites every man to become a law unto himself; it invites anarchy.

The warning was given in a distant era but remains as cogent as ever. Indeed, for us in this country, it has a particular relevance: we saw in the past what happens when the state bends the law to its own ends and now, in the new era of constitutionality, we may be tempted to use questionable measures in the war against crime. The lesson becomes particularly important when dealing with those who aim to destroy

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Mohamed

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the system of government through law by means of organized violence. The legitimacy of the constitutional order is undermined rather than reinforced when the State acts unlawfully. Here South African government agents acted inconsistently with the Constitution in handing over Mohamed without an assurance that he would not be executed and in relying on consent obtained from a person who was not fully aware of his rights and was moreover deprived of the benefit of legal advice. They also acted inconsistently with statute in unduly accelerating deportation and then dispatching Mohamed to a country to which they were not authorized to send him.

The Relief to Be Ordered [] One of the grounds of opposition advanced on behalf of the government—and one that found favor with the High Court—was that it would be wrong for a South African court to issue any declaratory order expressing disapproval of the arrest, detention, interrogation, and transfer of Mohamed to the FBI agents. He was an alien who had entered South Africa fraudulently and had left its jurisdiction. With regard to the prayer for mandatory relief in the form of an order on the government to seek to intercede with the United States authorities regarding the wrong done to Mohamed, the government’s opposition to any form of order was even more forceful. More specifically it was submitted that any such an order would infringe the separation of powers between the Judiciary and the Executive. In substance the stance was that Mohamed had been irreversibly surrendered to the power of the United States and, in any event, it was not for this court, or any other, to give instructions to the executive. [] We disagree. It would not necessarily be futile for this court to pronounce on the illegality of the governmental conduct in issue in this case. In the first instance, quite apart from the particular interest of the applicants in this case, there are important issues of legality and policy involved and it is necessary that we say plainly what our conclusions as to those issues are. And as far as the particular interests of Mohamed are concerned, we are satisfied that it is desirable that our views be appropriately conveyed to the trial court. Not only is the learned judge presiding aware of these proceedings, but the very reason why they were instituted by the applicants was said to be that our findings may have a bearing on the case over which he is presiding. On the papers there is a conflict of opinion as between one of the defense lawyers on the one hand and a member of the prosecution team on the other, both of whom have filed affidavits expressing their respective views as to the admissibility and/or cogency in the criminal proceedings of any finding we might make. It is for the presiding judge to determine such issues. For that purpose he may or may not wish to have regard to disputed material such as our findings. It is therefore incumbent on this court to ensure as best it can that the trial Judge is enabled to exercise his judicial powers in relation to the proceedings in this court; and an appropriate order to that end will be made.

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Legal Cases (–)

[] Nor would it necessarily be out of place for there to be an appropriate order on the relevant organs of state in South Africa to do whatever may be within their power to remedy the wrong here done to Mohamed by their actions, or to ameliorate at best the consequential prejudice caused to him. To stigmatize such an order as a breach of the separation of state power as between the executive and the judiciary is to negate a foundational value of the Republic of South Africa, namely supremacy of the Constitution and the rule of law. The Bill of Rights, which we find to have been infringed, is binding on all organs of state and it is our constitutional duty to ensure that appropriate relief is afforded to those who have suffered infringement of their constitutional rights. On the facts of the present case, however, and bearing in mind the advanced state of the proceedings in New York, we believe that the most appropriate and effective order is the one that follows below. [] The following order issues: . Noncompliance by the applicants with the requirements of the Constitutional Court Rules, , is condoned and leave is granted to appeal directly to this court. . The appeal is upheld. . The order in the court below is set aside and in its place the following order is made: . It is declared that the handing over of Mohamed at Cape Town on or about October , , by agents of the South African government to agents of the United States for removal by the latter to the United States for him to stand trial in the Federal Court for the Southern District of New York on criminal charges in respect of which he could, if convicted, be sentenced to death, was unlawful in that: .. It infringed Mohamed’s rights under sections , , and ()(d) of the Constitution to human dignity, to life and not to be treated or punished in a cruel, inhuman, or degrading way, inasmuch as a prior undertaking was not obtained from the United States government that the death sentence would not be imposed on Mohamed or, if imposed, would not be executed. .. In terms of the provisions of chapter VI of the Aliens Control Act  of  read with regulation  of the Aliens Control Regulations published under section  of the said Act, there existed at the time of Mohamed’s removal from the Republic of South Africa no authority in law to deport or purportedly to deport or otherwise to remove or cause the removal of Mohamed from the Republic to the United States. .. In terms of section  of the Aliens Control Act  of  the removal of Mohamed from the Republic could not validly be effected before the expiry of a period of three days after he had been declared a prohibited person.

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Mohamed

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. There is no order as to costs. . The director of this court is authorized and directed to cause the full text of this judgment to be drawn to the attention of and to be delivered to the director or equivalent administrative head of the Federal Court for the Southern District of New York as a matter of urgency.

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Booysen

Booysen and Others v. Minister of Home Affairs and Another  () SA  (CC) CASE SUMMARY

Facts Section ()(a) of the Aliens Control Act  of  requires an applicant for a work permit to submit the application from outside the country and then only to enter the country once the permit is issued. Section ()(b) provides that work permits are to be issued to spouses of South Africans only if they do not or are not likely to pursue an occupation in which a sufficient number of persons are available in South Africa to meet the requirements of the inhabitants of South Africa. The applicants in this case were the spouses of four marriages concluded in accordance with South African law. Each couple was comprised of a South African citizen and a foreign national spouse who was not in possession of a valid work permit. The applicants challenged these provisions because the provisions impair the ability of couples to remain effectively married. The applicants argued that the provisions therefore constituted an unjustifiable infringement of the right to dignity in section  of the Constitution.

Legal History The applicants approached the Cape Provincial Division of the High Court for an order declaring the provisions inconsistent with the Constitution and invalid. Initially the respondents opposed the order sought. However, in light of the decision

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Booysen

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of the Constitutional Court in Dawood and Another v. Minister of Home Affairs and Others; Shalabi and Another v. Minister of Home Affairs and Others; Thomas and Another v. Minister of Home Affairs and Others ( () SA  (CC)), they withdrew their opposition. The High Court found that the provisions were an unjustifiable limitation on the right to dignity and declared them invalid. The order of invalidity was suspended for twelve months so that the government would have an opportunity to rectify the inconsistencies. The matter came before the Constitutional Court for confirmation of the declaration of invalidity.

Issues Did sections ()(a) and ()(b) of the Aliens Control Act infringe the applicants’ right to dignity? Decision of the Constitutional Court In a brief judgment, Justice Sachs (for a unanimous court) agreed with the reasoning of the High Court that led it to find that the provisions unjustifiably infringed the fundamental right to dignity. Order The court confirmed the order of the High Court declaring the impugned provisions unconstitutional and suspending the declaration for twelve months to enable the legislature to correct the inconsistency. However, Justice Sachs also ordered that, pending the rectification of the inconsistencies by the legislature, the Director General of the Department of Home Affairs (DG) was directed to accept any application for a work permit in terms of section ()(b) of the Act, made within South Africa, by any I foreign non-resident spouse of a person who is permanently and lawfully resident in the Republic of South Africa. Justice Sachs also issued an order that the DG shall not refuse to issue work permits as contemplated by section ()(b) of the Act to foreign nonresident spouses of South African permanent residents unless the Department can establish good cause for refusal to issue such a permit. Comment As has been demonstrated in the court’s socio-economic rights jurisprudence, one component of the right to dignity relates to the material conditions for a dignified existence in which the exercise of individual agency is possible. The state must take steps to make such an existence a reality for all people living in South Africa. In order to achieve such conditions for all people already living in the country, surely it is reasonable to limit immigration to people who will not deplete the already scarce supply of jobs? Why does the right to dignity of (possibly affluent) spouses seeking to build a family life in South Africa outweigh the right to dignity of all South Africans who seek access, through employment, to the material conditions for individual agency?

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Legal Cases (–)

JUSTICE SACHS [] [. . .] In the High Court proceedings the applicants contended that the effect of section ()(a) of the act was seriously to disrupt their family life and to impede the possibilities of their living together and giving each other marital support. The Minister of Home Affairs (Minister) and the Director General, Department of Home Affairs (DG) at first opposed the applications. After delivery of the judgment of this court in Dawood and Another v. Minister of Home Affairs and Others; Shalabi and Another v. Minister of Home Affairs and Others; Thomas and Another v. Minister of Home Affairs and Others, however, they caused affidavits to be submitted acknowledging that the effect of the provision was unjustifiably to limit the applicants’ right to dignity as protected by section  of the Constitution, which states that “[e]veryone has inherent dignity and the right to have their dignity respected and protected.” [] Justice Van Heerden found that the legislation significantly impairs the ability of the spouses to honor their obligations to one another and constitutes an unjustifiable limitation of the right to human dignity of both South Africans and their foreign spouses. [] The applicants contended that the effect of subparagraph (iv) was to prevent the foreign spouses from working if they did not have scarce occupational skills. In many cases the foreign spouse was the sole or main provider for the family and this highly restrictive provision prevented them from fulfilling their duty to support, thereby violating the right to human dignity of both spouses. Here too, an affidavit was submitted on behalf of the minister withdrawing opposition to the application in the light of the decision in the Dawood case. [] In the High Court Justice Van Heerden held that this provision resulted in an unjustifiable limitation on the constitutionally entrenched right to human dignity of South African permanent residents who are married to foreign spouses, as well as of such foreign spouses. [] [. . .] Justice Van Heerden analyzed and applied to those facts the relevant principles laid down in the Dawood case and the other judgments of this court cited in her judgment. It is unnecessary to review afresh these principles or their application to the undisputed facts of this case. I am in substantial agreement with the reasons advanced by her for coming to the conclusion that sections ()(a) and ()(b) of the act unjustifiably limit the constitutionally entrenched right to human dignity of South Africans and their foreign spouses.

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Carmichele

Carmichele v. Minister of Safety and Security and Another (Centre for Applied Legal Studies Intervening)  () SA  (CC) CASE SUMMARY

Facts In April , Alix Carmichele (Carmichele) was assaulted by François Coetzee while staying at the house of a friend of hers in a secluded coastal village. Coetzee, who lived near Carmichele, already had convictions for housebreaking and indecent assault and, at the time of his attack on the applicant, was facing a charge of rape for which he had been released unconditionally. Both the investigating officer and the prosecutor in that case supported Coetzee’s release and did not inform the magistrate of Coetzee’s previous convictions. Carmichele’s friend, after finding out about Coetzee’s release from custody pleaded with the investigating officer to keep Coetzee in custody pending his trial. She was referred to the state prosecutor who told her there was nothing that could be done unless Coetzee committed another offence. Soon thereafter Carmichele saw Coetzee snooping around the house where she was staying. Her friend again requested the prosecutor to take him into custody, but to no avail. Shortly afterwards Coetzee broke into the house and attacked Carmichele, breaking her arm and stabbing her in the chest. She sued the state in delict for the injuries suffered during the attack on the ground that the police and prosecutors had negligently failed to discharge the legal duty she claimed they owed her to prevent Coetzee causing her harm.

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Legal History The Cape High Court granted the state absolution from the instance, finding that there was no chance a court could find in favor of the applicant. She appealed to the Supreme Court of Appeal but the appeal was dismissed for much the same reasons. She then appealed to the Constitutional Court. Originally, Carmichele had relied only on the law of delict, not the Constitution. However, when she appealed to the Constitutional Court, she argued that the law of delict should be developed in light of the spirit, purport and objects of the Bill of Rights—as required by section () of the Interim Constitution and section () of the Constitution—to found the legal duty on the state to protect her. Specifically, she argued that the police and the prosecutor had a duty to protect her rights to life, dignity, privacy, and freedom and security of the person. Issue Should the common law be developed in light of the Bill of Rights to impose a duty on the state to protect Carmichele’s constitutional rights? Decision of the Constitutional Court The court held that section () of the Constitution imposes a general, nondiscretionary obligation on courts to consider whether the common law is inconsistent with the Bill of Rights and, if it is, to develop that law to bring it in line with the Constitution (paragraphs –). In this case, the High Court and the SCA had failed to undertake this process and the Constitutional Court was disadvantaged by not having the views of the lower courts. The court emphasized that sexual violence was one of the worst assaults on a woman’s dignity (paragraph ). It held that the existing common-law test for determining whether there was a duty to act in delictual cases was inconsistent with the Constitution. The constitutional rights to life, human dignity, and freedom and security of the person impose a duty on the state to take positive steps to protect those rights. Exactly in what circumstances that duty would translate into private law liability was a different question. The judges held that they needed the input of the High Court and SCA to appropriately develop the common law in a way that took account of both the objective normative value system created by the Constitution and a thorough knowledge of the common law. Order The court upheld the appeal and referred the matter back to the High Court for determination. Resolution After further decisions by both the High Court (Carmichele v. Minister of Safety and Security and Another  () BCLR  (C);  () SA  (C)) and the SCA (Minister of Safety and Security v. Carmichele [] ZASCA ), Alix

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Carmichele eventually won her legal battle for compensation that had lasted more than a decade.

Comment The violation of Carmichele’s dignity is undeniable. But does that violation necessarily imply that the state should be liable? The state has limited resources to fulfill all its constitutional obligations, from providing housing, healthcare, and education to ensuring political participation and access to the courts. Are those scarce resources best spent compensating Ms. Carmichele for her suffering? Are resources relevant at all when we are concerned with violations of human dignity? Can you think of any alternative remedies that might acknowledge the violation of Carmichele’s dignity without threatening to bankrupt the state? JUSTICES ACKERMANN AND GOLDSTONE [] [. . .] Counsel for the applicant submitted that both the High Court and the SCA erred in not applying the relevant provisions of the Constitution in determining whether Klein or the prosecutors owed a legal duty to the applicant to protect her. In particular, counsel relied upon the constitutional obligation on all courts to “develop the common law” with due regard to the “spirit, purport, and objects” of the Bill of Rights. He submitted that, had the common law been so developed, the High Court and the SCA would have found that there existed a legal duty to act. [] It was further contended for the applicant that the common-law duty to act should be developed in light of the provisions of the Bill of Rights in the Interim Constitution (IC) which was in operation at all times relevant to the applicant’s cause of action. Counsel relied on the following provisions of the IC: . Equality () Every person shall have the right to equality before the law and to equal protection of the law. () No person shall be unfairly discriminated against, directly or indirectly, and without derogating from the generality of this provision, on one or more of the following grounds in particular: race, gender, sex, ethnic or social origin, color, sexual orientation, age, disability, religion, conscience, belief, culture or language. ()(a) This section shall not preclude measures designed to achieve the adequate protection and advancement of persons or groups or categories of persons disadvantaged by unfair discrimination, in order to enable their full and equal enjoyment of all rights and freedoms. (b) Every person or community dispossessed of rights in land before the commencement of this Constitution under any law which would have been inconsistent with sections () had that subsection been in operation at the

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time of the dispossession, shall be entitled to claim restitution of such rights subject to and in accordance with sections ,  and . () Prima facie proof of discrimination on any of the grounds specified in subsection () shall be presumed to be sufficient proof of unfair discrimination as contemplated in that subsection, until the contrary is established. . Life Every person shall have the right to life. . Human dignity Every person shall have the right to respect for and protection of his or her dignity. . Freedom and security of the person () Every person shall have the right to freedom and security of the person, which shall include the right not to be detained without trial. () No person shall be subject to torture of any kind, whether physical, mental or emotional, nor shall any person be subject to cruel, inhuman or degrading treatment or punishment. ... . Privacy Every person shall have the right to his or her personal privacy, which shall include the right not to be subject to searches of his or her person, home or property, the seizure of private possessions or the violation of private communications.

Counsel relied further on the provisions of section  of the IC, which read: The powers and functions of the service shall be— (a) the prevention of crime; (b) the investigation of any offence or alleged offence; (c) the maintenance of law and order; and (d) the preservation of the internal security of the Republic.

More specifically, so the submission ran, the IC imposed a particular duty on the state to protect women against violent crime in general and sexual abuse in particular. The court was referred to the following statement of the SCA in S v. Chapman [ () SA  (A)]: Rape is a very serious offence, constituting as it does a humiliating, degrading and brutal invasion of the privacy, the dignity and the person of the victim. The rights to dignity, to privacy and the integrity of every person are basic to the ethos of the Constitution [in a footnote there is reference, inter alia, to sections ,  and  of the IC] and to any defensible civilization. Women in this country are entitled to the protection of these rights.

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[] It was submitted further that the police and prosecution services are among the primary agencies of the state responsible for the discharge of its constitutional duty to protect the public in general and women in particular against violent crime. It was conceded by counsel for the applicant that it does not follow that any such failure in that duty entitles the victim to damages in delict. It was contended, however, that on the facts of this case, the applicant is entitled to such damages. [] Despite the failure by the applicant to rely directly upon the provisions of either section () of the IC or section () of the Constitution in the High Court and SCA, counsel for the respondent did not object to this issue being raised in this court. If covered by the pleadings, and in the absence of unfairness, parties are ordinarily not precluded from raising new legal arguments on appeal. In constitutional matters, however, courts have an interest in a constitutional issue being raised timeously. The relevance of this omission in the present case is dealt with later in this judgment. [] Neither the trial court nor the SCA had regard to these provisions of the Bill of Rights in the IC or the Constitution. They also did not have regard to section () of the Constitution, which requires all our courts to develop the common law with due regard to the “spirit, purport and objects” of the Bill of Rights.

The Obligation to Develop the Common Law [] The Constitution is the supreme law. The Bill of Rights, under the IC, applied to all law. Item  of schedule  to the Constitution provides that “all law” that was in force when the Constitution took effect, “continues in force subject to . . . consistency with the Constitution.” Section  of the Constitution gives to all higher courts, including this court, the inherent power to develop the common law, taking into account the interests of justice. In section  of the Constitution, the Bill of Rights enshrines the rights of all people in South Africa, and obliges the state to respect, promote, and fulfill these rights. Section () of the Constitution makes the Bill of Rights binding on the judiciary as well as on the legislature and executive. Section () of the Constitution provides that when developing the common law, every court must promote the spirit, purport, and objects of the Bill of Rights. It follows implicitly that where the common law deviates from the spirit, purport, and objects of the Bill of Rights the courts have an obligation to develop it by removing that deviation. [] Under the IC the circumstances in which the common law could be developed by this court was a complex issue. However, under the Constitution there can be no question that the obligation to develop the common law with due regard to the spirit, purport and objects of the Bill of Rights is an obligation that falls on all of our courts including this court. [] In this case the High Court and the SCA were requested to develop the common law, not on a constitutional basis, but in the light of the unusual nature of the applicant’s cause of action. The common law, especially in the field of delictual

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liability, has constantly required development. Where a court develops the common law, the provisions of section () of the Constitution oblige it to have regard to the spirit, purport and objects of the Bill of Rights. [] In exercising their powers to develop the common law, judges should be mindful of the fact that the major engine for law reform should be the legislature and not the judiciary. In this regard it is worth repeating the dictum of Justice Iacobucci in R v. Salituro [()  CRR (d)  ([]  SCR )], which was cited by Acting Justice Kentridge in Du Plessis v. De Klerk: Judges can and should adapt the common law to reflect the changing social, moral and economic fabric of the country. Judges should not be quick to perpetuate rules whose social foundation has long since disappeared. Nonetheless there are significant constraints on the power of the judiciary to change the law. . . . In a constitutional democracy such as ours it is the legislature and not the courts which has the major responsibility for law reform. . . . The judiciary should confine itself to those incremental changes which are necessary to keep the common law in step with the dynamic and evolving fabric of our society.

Under our Constitution the duty cast upon judges is different in degree to that which the Canadian Charter of Rights cast upon Canadian judges. In South Africa, the IC brought into operation, in one fell swoop, a completely new and different set of legal norms. In these circumstances the courts must remain vigilant and should not hesitate to ensure that the common law is developed to reflect the spirit, purport, and objects of the Bill of Rights. We would add, too, that this duty upon judges arises in respect both of the civil and criminal law, whether or not the parties in any particular case request the court to develop the common law under section (). [] The proceedings in the High Court and the SCA took place after  February , when the Constitution became operative. It follows that both the High Court and the SCA were obliged to have regard to the provisions of section () of the Constitution when developing the common law. However, both courts assumed that the preconstitutional test for determining the wrongfulness of omissions in delictual actions of this kind should be applied. In our respectful opinion, they overlooked the demands of section (). [] In the High Court and the SCA the applicant relied only on the commonlaw understanding of wrongfulness, which has been developed by our courts over many years. Save in one respect referred to in the applicant’s heads of argument in the SCA, no reliance was placed on the provisions of the IC or the Constitution as having in any way affected the common-law duty to act owed by police officers or prosecutors to members of the public. With regard to the “interests of the community” imposing a legal liability on the authorities, it was submitted by the applicant’s counsel that it would “encourage the police and prosecuting authorities to act pos-

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itively to prevent violent attacks on women.” In support of that submission counsel referred to authorities in this court and the SCA devoted to patterns of discrimination against women. It does not appear to have been suggested that there was any obligation on the High Court or the SCA to develop the common law of delict in terms of section () of the Constitution. [] It needs to be stressed that the obligation of courts to develop the common law, in the context of the section () objectives, is not purely discretionary. On the contrary, it is implicit in section () read with section  that where the common law as it stands is deficient in promoting the section () objectives, the courts are under a general obligation to develop it appropriately. We say a “general obligation” because we do not mean to suggest that a court must, in each and every case where the common law is involved, embark on an independent exercise as to whether the common law is in need of development and, if so, how it is to be developed under section (). At the same time there might be circumstances where a court is obliged to raise the matter on its own and require full argument from the parties. [] It was implicit in the applicant’s case that the common law had to be developed beyond existing precedent. In such a situation there are two stages to the inquiry a court is obliged to undertake. They cannot be hermetically separated from one another. The first stage is to consider whether the existing common law, having regard to the section () objectives, requires development in accordance with these objectives. This inquiry requires a reconsideration of the common law in the light of section (). If this inquiry leads to a positive answer, the second stage concerns itself with how such development is to take place in order to meet the section () objectives. Possibly because of the way the case was argued before them, neither the High Court nor the SCA embarked on either stage of the above inquiry. [] There is an obligation on litigants to raise constitutional arguments in litigation at the earliest reasonable opportunity in order to ensure that our jurisprudence under the Constitution develops as reliably and harmoniously as possible. In the result this court has not had the benefit of any assistance from either court on either stage of the inquiry referred to above. We consider later what this court should do in these circumstances. But first it is necessary to deal with the reasons of the SCA for dismissing the appeal. [] The SCA, as the High Court had done, had regard and referred to wrongfulness as it has been developed in our common law prior to the operation of the IC. Acting Justice Vivier stated the following in his judgment: The appropriate test for determining the wrongfulness of omissions in delictual actions for damages in our law has been settled in a number of decisions of this Court such as Minister van Polisie v. Ewels  () SA  (A) at A–C; Minister of Law and Order v. Kadir  () SA  (A) at C–I; Knop v. Johannesburg City Council  () SA  (A) at G and Government of the Republic of South Africa v. Basdeo and Another  () SA

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 (A) at E. The existence of the legal duty to avoid or prevent loss is a conclusion of law depending upon a consideration of all the circumstances of each particular case and on the interplay of many factors that have to be considered. The issue, in essence, is one of reasonableness, determined with reference to the legal perceptions of the community as assessed by the court.

In Minister of Law and Order v. Kadir (supra) Acting Justice Hefer stated the nature of the enquiry thus at E: As the judgments in the cases referred to earlier demonstrate, conclusions as to the existence of a legal duty in cases for which there is no precedent entail policy decisions and value judgments which “shape and, at times, refashion the common law [and] must reflect the wishes, often unspoken, and the perceptions, often dimly discerned, of the people” (per M. M. Corbett in a lecture reported sub nom Aspects of the Role of Policy in the Evolution of the Common Law in [] SALJ  at ). What is in effect required is that, not merely the interests of the parties inter se, but also the conflicting interests of the community, be carefully weighed and that a balance be struck in accordance with what the court conceives to be society’s notions of what justice demands.

Acting Justice Hefer also stressed the difference between morally reprehensible and legally actionable omissions and warned that a legal duty is not determined by the mere recognition of social attitudes and public and legal policy (at ). The question must always be whether the defendant ought reasonably and practically to have prevented harm to the plaintiff: in other words, is it reasonable to expect of the defendant to have taken positive measures to prevent the harm (Prof. J. C. van der Walt in Joubert, ed., The Law of South Africa vol. , st reissue part  paragraph ). [] As pointed out in the quotation above, in determining whether there was a legal duty on the police officers to act, Acting Justice Hefer in Minister of Law and Order v. Kadir [ () SA  (A)] referred to weighing and the striking of a balance between the interests of parties and the conflicting interests of the community. This is a proportionality exercise with liability depending upon the interplay of various factors. Proportionality is consistent with the Bill of Rights, but that exercise must now be carried out in accordance with the “spirit, purport and objects of the Bill of Rights” and the relevant factors must be weighed in the context of a constitutional state founded on dignity, equality, and freedom and in which government has positive duties to promote and uphold such values. [] Under both the IC and the Constitution, the Bill of Rights entrenches the rights to life, human dignity, and freedom and security of the person. The Bill of Rights binds the state and all of its organs. Section () of the IC provided: “This chapter shall bind all legislative and executive organs of state at all levels of government.” Section () of the Constitution provides: “The Bill of Rights applies to all

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law, and binds the legislature, the executive, the judiciary, and all organs of state.” It follows that there is a duty imposed on the state and all of its organs not to perform any act that infringes these rights. In some circumstances there would also be a positive component that obliges the state and its organs to provide appropriate protection to everyone through laws and structures designed to afford such protection. [] In the United States, a distinction is drawn between “action” and “inaction” in relation to the “due process” clause of their Constitution (the th Amendment). In De Shaney v. Winnebago County Department of Social Services [ US  ()], the majority declined to hold a government authority liable for a failure to take positive action to prevent harm. As stated in the dissent of Justice Brennan: “The court’s baseline is the absence of positive rights in the Constitution and a concomitant suspicion of any claim that seems to depend on such rights.” The provisions of our Constitution, however, point in the opposite direction. So, too, do the provisions of the European Convention on Human Rights (Convention). Article () of the Convention provides that [e]veryone’s right to life shall be protected by law. This corresponds with our Constitution’s entrenchment of the right to life. We would adopt the following statement in Osman v. United Kingdom [ EHHR ]: It is common ground that the state’s obligation in this respect extends beyond its primary duty to secure the right to life by putting in place effective criminal law provisions to deter the commission of offences against the person backed up by law-enforcement machinery for the prevention, suppression and sanctioning of breaches of such provisions. It is thus accepted by those appearing before the court that article  of the Convention may also imply in certain well-defined circumstances a positive obligation on the authorities to take preventive operational measures to protect an individual whose life is at risk from the criminal acts of another individual.

[] Counsel for the respondents referred us to decisions of the English courts in which public authorities such as the police and local authorities have been granted what amounts to an immunity against claims in delict by members of the public. However, in a recent decision of the House of Lords a more flexible approach to delictual claims against public authorities has emerged. In Barrett v. Enfield London Borough Council [[]  All ER  (HL)] the decision to strike out a claim against a local authority for the negligent failure to safeguard the welfare of a minor was reversed. The reasoning of Lord Browne-Wilkinson is as follows: () Although the word “immunity” is sometimes incorrectly used, a holding that it is not fair, just, and reasonable to hold liable a particular class of defendants whether generally or in relation to a particular type of activity is not to give immunity from a liability to which the rest of the world is subject. It is a

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prerequisite to there being any liability in negligence at all that as a matter of policy it is fair, just and reasonable in those circumstances to impose liability in negligence. () In a wide range of cases public policy has led to the decision that the imposition of liability would not be fair and reasonable in the circumstances, e.g. some activities of financial regulators, building inspectors, ship surveyors, social workers dealing with sex abuse cases. In all these cases and many others the view has been taken that the proper performance of the defendant’s primary functions for the benefit of society as a whole will be inhibited if they are required to look over their shoulder to avoid liability in negligence. In English law the decision as to whether it is fair, just, and reasonable to impose a liability in negligence on a particular class of would-be defendants depends on weighing in the balance the total detriment to the public interest in all cases from holding such class liable in negligence as against the total loss to all would-be plaintiffs if they are not to have a cause of action in respect of the loss they have individually suffered. () In English law, questions of public policy and the question whether it is fair and reasonable to impose liability in negligence are decided as questions of law. Once the decision is taken that, say, company auditors though liable to shareholders for negligent auditing are not liable to those proposing to invest in the company (see Caparo Industries plc v. Dickman []  All ER , []  AC ), that decision will apply to all future cases of the same kind. The decision does not depend on weighing the balance between the extent of the damage to the plaintiff and the damage to the public in each particular case.

[] Fears expressed about the chilling effect such delictual liability might have on the proper exercise of duties by public servants are sufficiently met by the proportionality exercise which must be carried out and also by the requirements of foreseeability and proximity. This exercise in appropriate cases will establish limits to the delictual liability of public officials. A public interest immunity excusing the respondents from liability that they might otherwise have in the circumstances of the present case, would be inconsistent with our Constitution and its values. Liability in this case must thus be determined on the basis of the law and its application to the facts of the case, and not because of an immunity against such claims granted to the respondents.

The Development of the Common Law under Section () [] This court has consistently, and in various contexts, confirmed the importance of judgments on constitutional issues by the High Courts and the Supreme Court of Appeal in cases to be considered by this court. This is a weighty consideration,

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for example, when considering whether to grant direct access or to allow an appeal directly to this court. In the Bequinot case the following was said on behalf of a unanimous court: [T]his court would have . . . to decide the issue without the benefit of the wisdom of the court below. It has been said before but needs to be restated that this court is placed at a grave disadvantage if it is required to deal with difficult questions of law, constitutional or otherwise, and has to perform the balancing exercise demanded by section () of the Constitution virtually as a court of first instance. (Emphasis added.)

[] There are other public and judicial policy considerations, such as fairness to the losing litigant, which underpin such an approach as was recognized in Bruce v. Fleecytex where the following was stated by this court: It is, moreover, not ordinarily in the interests of justice for a court to sit as a court of first and last instance, in which matters are decided without there being any possibility of appealing against the decision given. Experience shows that decisions are more likely to be correct if more than one court has been required to consider the issues raised. In such circumstances the losing party has an opportunity of challenging the reasoning on which the first judgment is based, and of reconsidering and refining arguments previously raised in the light of such judgment.

[] In Christian Education South Africa v. Minister of Education Deputy President Langa, writing for another unanimous court, dismissed as having “no merit” an argument that the aforementioned principle was less significant where the issue involved a value judgment and therefore assumed less importance for the interests of justice. He stated that “the exclusion of the other courts from the exercise of a jurisdiction given to them by the Constitution would clearly not be in the general interests of justice and the development of our jurisprudence.” [] The above principles become singularly compelling when the issue is whether or how the common law is to be developed under section () of the Constitution, particularly when this court has not previously been required to do so. As this court stated in the Amod case: When a constitutional matter is one which turns on the direct application of the Constitution and which does not involve the development of the common law, considerations of costs and time may make it desirable that the appeal be brought directly to this court. But when the constitutional matter involves the development of the common law, the position is different. The

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Supreme Court of Appeal has jurisdiction to develop the common law in all matters including constitutional matters. Because of the breadth of its jurisdiction and its expertise in the common law, its views as to whether the common law should or should not be developed in a “constitutional matter” are of particular importance.

This passage was quoted with approval in the De Freitas case. [] Our Constitution is not merely a formal document regulating public power. It also embodies, like the German Constitution, an objective, normative value system. As was stated by the German Federal Constitutional Court: The jurisprudence of the Federal Constitutional Court is consistently to the effect that the basic right norms contain not only defensive subjective rights for the individual but embody at the same time an objective value system which, as a fundamental constitutional value for all areas of the law, acts as a guiding principle and stimulus for the legislature, executive, and judiciary.

The same is true of our Constitution. 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. [] There are notionally different ways to develop the common law under section () of the Constitution, all of which might be consistent with its provisions. Not all would necessarily be equally beneficial for the common law. Before the advent of the IC, the refashioning of the common law in this area entailed “policy decisions and value judgments” which had to “reflect the wishes, often unspoken, and the perceptions, often but dimly discerned, of the people.” A balance had to be struck between the interests of the parties and the conflicting interests of the community according to what “the [c]ourt conceives to be society’s notions of what justice demands.” Under section () of the Constitution concepts such as “policy decisions and value judgments” reflecting “the wishes . . . and the perceptions . . . of the people” and “society’s notions of what justice demands” might well have to be

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replaced, or supplemented and enriched by the appropriate norms of the objective value system embodied in the Constitution. [] Following this route it might be easier to cast the net of unlawfulness wider because constitutional obligations are now placed on the state to respect, protect, promote, and fulfill the rights in the Bill of Rights and, in particular, the right of women to have their safety and security protected. However, it is by no means clear how these constitutional obligations on the state translate into private law duties towards individuals. A consequence of such an approach might be: (a) to accentuate the objective nature of unlawfulness as one of the elements of delictual liability, particularly in the context of a bail hearing where the roles and general duties of investigating officers and prosecutors are more clearly defined than would normally be the case; (b) to define it more broadly; and (c) to allow the elements of fault and remoteness of damage to play the greater role in limiting liability. [] As against this there must be other ways of applying section () in shaping the common law generally and in determining specifically the wrongfulness element of delictual liability for an omission. Our common law of delict spans many centuries and the debate regarding delictual liability, its elements and their relationship to one another, remains lively. Without the benefit of a fully considered judgment from either the SCA or the High Court as to whether, from the perspective of the common law, one solution would be better than any other, this court is at a “grave disadvantage” in the sense indicated in the Bequinot case. [] The litigants are also disadvantaged because they have not had the opportunity of reconsidering or refining their respective arguments in the light of a prior judgment of the SCA. This in itself impacts negatively on the court’s ability to make wise and prudent choices. Moreover, the issue in this case can hardly be described as an insignificant one, lying at an exotic periphery of the law of delict. On the contrary, the case raises issues of considerable importance to the development of the common law consistently with values of our Constitution. [] In our view the High Court, possibly because of the way the case was argued before it, misdirected itself in relation to the constitutional requirements of section (). In the ordinary course, a court on appeal would, where the trial court has so misdirected itself, make the order, which that court ought to have made. In the present case, for the reasons that follow, this can be done without preempting decisions of the High Court or the SCA as to whether the circumstances of the present case are such to call for the law of delict to be developed and, if so, how this should be done. To that end we proceed to consider the issues relevant to legal liability in the context of the evidence given at the trial and the provisions of the Constitution.

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Should Absolution from the Instance Have Been Granted in the Circumstances of the Present Case? [] Section  of the IC provides that: The powers and functions of the Service shall be— () the prevention of crime; () the investigation of any offence or alleged offence; () the maintenance of law and order; and () the preservation of the internal security of the Republic.

The detailed duties of the South African Police Service at the time relevant to this matter were to be found in the Police Act. Section  read as follows: The functions of the South African Police shall be, inter alia— () the preservation of the internal security of the Republic; () the maintenance of law and order; () the investigation of any offence or alleged offence; and () the prevention of crime.

[] Thus one finds positive obligations on members of the police force both in the IC and the Police Act. In addressing these obligations in relation to dignity and the freedom and security of the person, few things can be more important to women than freedom from the threat of sexual violence. As it was put by counsel on behalf of the amicus curiae: “Sexual violence and the threat of sexual violence go to the core of women’s subordination in society. It is the single greatest threat to the selfdetermination of South African women.” She referred in that context to the following statement by the SCA in the Chapman case: The courts are under a duty to send a clear message to the accused, to other potential rapists and to the community. We are determined to protect the equality, dignity and freedom of all women, and we shall show no mercy to those who seek to invade those rights.

South Africa also has a duty under international law to prohibit all gender-based discrimination that has the effect or purpose of impairing the enjoyment by women of fundamental rights and freedoms and to take reasonable and appropriate measures to prevent the violation of those rights. The police are one of the primary agencies of the state responsible for the protection of the public in general and women and children in particular against the invasion of their fundamental rights by perpetrators of violent crime. [] In the present case the complaint against Klein (the investigating officer in Eurona’s case) is not that he was guilty of a mere omission. Coetzee was in custody and

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Klein had a clear duty to bring to the attention of the prosecutor any factors known to him relevant to the exercise by the magistrate of his discretion to admit Coetzee to bail. He made a positive recommendation that Coetzee should be released on warning in the clear knowledge that the prosecutor would act on such recommendation. [] When Klein informed the prosecutor that Coetzee should be released on warning he had interviewed both Eurona and Coetzee. He was aware of the allegation (exaggerated as it may have been) that Coetzee had a previous conviction for rape. On the day after the attack on Eurona, Klein took a statement from Coetzee. It is not clear from the record of the proceedings in the High Court what information was given to him by Coetzee. It was submitted on behalf of the applicant that there was a probability that Coetzee would have given Klein the information he later gave to Louw. For the purpose of an application for absolution from the instance we consider that a reasonable court might be prepared to make that assumption in favor of the applicant. [] Klein was aware that, if released, Coetzee would return to his mother’s home in the secluded setting of Noetzie. If there was a risk of a repeat attack on a woman, those living in the vicinity of the Coetzee home would be most vulnerable if Coetzee was released. According to Gosling and the applicant they certainly perceived themselves to be in such a position. It was also known to Klein that the previous attacks by Coetzee had been committed against women who knew him. The issue here is whether, given these facts and the constitutional protection to which the applicant was entitled, Klein’s advice to the prosecutor that Coetzee be released on his own recognizances was unlawful.

The Case against the Prosecutors [] The IC did not contain any provisions dealing with prosecutors. Section () provided only that the authority to institute criminal prosecutions on behalf of the state vested in attorneys general. Under section () the powers, duties, and functions of attorneys general were to be prescribed by law. However, prosecutors have always owed a duty to carry out their public functions independently and in the interests of the public. Although the consideration of bail is preeminently a matter for the presiding judicial officer, the information available to the judicial officer can but come from the prosecutor. He or she has a duty to place before the court any information relevant to the exercise of the discretion with regard to the grant or refusal of bail and, if granted, any appropriate conditions attaching thereto. [] In considering the legal duty owed by a prosecutor either to the public generally or to a particular member thereof, a court should take into account the pressures under which prosecutors work, especially in the magistrates’ courts. Care should be taken not to use hindsight as a basis for unfair criticism. To err in this regard might well have a chilling effect on the exercise by prosecutors of their judgment in favor of the liberty of the individual. There are far too many persons awaiting trial in our prisons either because bail has been refused or because bail has been set in an amount

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that cannot be paid. We can do no better in this regard than refer to the following passage, which appears in the United Nations Guidelines on the Role of Prosecutors: In the performance of their duties, prosecutors shall: ... (b) Protect the public interest, act with objectivity, take proper account of the position of the suspect and the victim and pay attention to all relevant circumstances, irrespective of whether they are to the advantage or disadvantage of the suspect;

[] That said, each case must ultimately depend on its own facts. There seems to be no reason in principle why a prosecutor who has reliable information, for example, that an accused person is violent, has a grudge against the complainant and has threatened to do violence to her if released on bail should not be held liable for the consequences of a negligent failure to bring such information to the attention of the court. If such negligence results in the release of the accused on bail who then proceeds to implement the threat made, a strong case could be made out for holding the prosecutor liable for the damages suffered by the complainant.

Causation [] Counsel for the respondents submitted that at the relevant time in , magistrates interpreted the provisions of the IC as requiring them to grant bail unless the state could establish that the interests of justice required the accused to be kept in custody. He relied on the evidence of the magistrate, Mr. K. J. von Bratt, in support of the submission that, even if Klein’s information had been placed before him, he would in any event have released Coetzee. Mr. von Bratt was called as a witness by the applicant. He stated that, had he been informed of Coetzee’s previous conviction in the light of the charge involving Eurona, he would have held an inquiry into the question of bail. He was not asked to take that any further. Under crossexamination he stated that at that time in  “there was very much a renewed emphasis on personal freedom at that stage, which did play a role.” He added that in consequence people were allowed out on their own recognizances more readily than prior to the coming into operation of the IC and that this also related to persons accused of serious offences such as murder and rape and that the state would have had to have produced substantial grounds for keeping an accused in prison. In reexamination he said that bail would have been refused if he had been of the view that Coetzee’s previous conviction had been a serious one and that there was a risk of his committing a further offence. [] It may well be that in deciding whether a magistrate could or might have refused to release Coetzee on bail an objective test must be applied and that the evidence of the magistrate who happened to have been seized with the matter is neither relevant nor admissible. On this approach the court would have regard to the law as

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it should have been applied by a reasonable magistrate on the facts given to him by the prosecutor. The question of causation, in the event of the conduct of either the police or the prosecutors being unlawful, was not considered by the High Court or the SCA. This, too, is a complex issue that may ultimately depend on the facts as they emerge at the end of the case. [] Not having the benefit of the views of the High Court or the SCA, or argument from counsel in this court on the admissibility of Von Bratt’s evidence, it is not desirable that this court should express a firm view as to either the proper test to be applied in determining this issue or on the application of the correct test to the facts established on the applicant’s evidence. Nor, in the light of the decision to which we have come, is it necessary for us to do so. The evidence is, in our view, sufficient to justify a conclusion that, if bail had been opposed and if all relevant information pertaining to Coetzee’s background and sexual problems had been placed before the magistrate, bail might have been refused. That is sufficient to put the respondents on their defense in relation to this issue.

What Should This Court Do in These Circumstances? [] The issue confronting this court is whether, in the special circumstances of this case, it should itself decide if the law of delict should be developed to afford the applicant a right to claim damages if the police or the prosecutor were negligent, or whether this should be left to the High Court or the SCA to determine. [] An order for absolution from the instance is an appropriate order to make at the end of the plaintiff ’s case where a court, applying its mind reasonably to the evidence, could not or might not find for the plaintiff. The underlying reason is that it is ordinarily in the interests of justice to bring the litigation to an end in such circumstances. A determination of what is in the interests of justice necessarily involves the exercise of discretion. [] In Minister of Law and Order v. Kadir Acting Justice Hefer made the following comment, with which we are in respectful agreement, concerning the approach to be adopted by courts when they are asked to develop the common law: Decisions like these can seldom be taken on a mere handful of allegations in a pleading that only reflects the facts on which one of the contending parties relies. In the passage cited earlier Fleming rightly stressed the interplay of many factors that have to be considered. It is impossible to arrive at a conclusion except upon a consideration of all the circumstances of the case and every other relevant factor. This would seem to indicate that the present matter should rather go to trial and not be disposed of on exception. On the other hand, it must be assumed—since the plaintiff will be debarred from presenting a stronger case to the trial Court than the one pleaded—that the facts alleged in support of the alleged legal duty represent a high-water mark of the factual basis on which the court will be required to decide the question. Therefore, if

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those facts do not prima facie support the legal duty contended for, there is no reason why the exception should not succeed.

This is relevant to applications for absolution from the instance in trials where the court is asked to develop the common law in terms of section () of the Constitution. There may be cases where there is clearly no merit in the submission that the common law should be developed to provide relief to the plaintiff. In such circumstances absolution should be granted. But where the factual situation is complex and the legal position uncertain, the interests of justice will often better be served by the exercise of the discretion that the trial judge has to refuse absolution. If this is done, the facts on which the decision has to be made can be determined after hearing all the evidence, and the decision can be given in the light of all the circumstances of the case, with due regard to all relevant factors. This has the merit of avoiding the determination of issues on the basis of what might prove to be hypothetical facts. It also ensures that there is a full and complete record on which the dispute can be determined with finality not only by the trial court, but by an appeal court required to deal with the matter. This may curtail rather than prolong litigation. [] We are satisfied that the case for the appellant has sufficient merit to require careful consideration to be given to the complex legal issues that it raises. If this court were to decide these issues it would have to do so in circumstances where for all practical purposes it would be acting as a court of first instance in relation to issues of fundamental importance concerning the development of the common law of delict. For the reasons that have already been given that is not desirable. Moreover, even if the applicant were to be successful that would not put an end to the litigation. The facts would still have to be determined and they might prove to be materially different from those evaluated at the absolution stage. It is not desirable that a case as complex as this should be dealt with on the basis of what the facts might be rather than what they are. [] This matter has already passed through three courts and it is desirable that it be brought to a head without further unnecessary delay. The High Court will deal with the matter on the basis of the facts as determined by it. [] The appropriate order is to uphold the appeal, to set aside the orders of the High Court and the SCA and to refer the matter back to the High Court for it to continue with the trial. That is likely to lead to a final determination of the issues with the least delay. The application for leave to appeal must consequently be granted and the appeal must succeed.

The Order [] The following order is made: . The application for special leave to appeal is granted with costs. . The appeal is upheld with costs.

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. The order of the Supreme Court of Appeal is set aside and the following order is substituted for that of the High Court: “The application for absolution from the instance is dismissed with costs.” . The matter is referred back to the High Court so that the trial may continue. . The costs orders referred to in  and  above are to include those of two counsels. President Chaskalson, Justices Kriegler, Madala, Mokgoro, Ngcobo, Sachs, and Yacoob, and Acting Justices Madlanga and Somyalo concurred.

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Investigating Directorate of Serious Economic Offences

Investigating Directorate of Serious Economic Offences and Others v. Hyundai Motor Distributors (Pty) Ltd. and Others; In Re Hyundai Motor Distributors (Pty) Ltd. and Others v. Smit NO and Others  () SA  (CC) CASE SUMMARY

Facts The National Prosecuting Authority Act  of  provides for the search and seizure of property by an investigating director in the office of the National Director of Public Prosecutions, to facilitate the investigation of certain specified offences. Sections  and  deal with investigations and searches, respectively. Section  provides for an inquiry where there is reasonable suspicion that a specified offence has been committed and a preparatory investigation where the investigator is unsure whether there are reasonable grounds for an inquiry. Section  provides for the issuing of search warrants for purposes of inquiries and preparatory investigations in terms of section . A warrant gives an investigating officer wide-ranging powers to search and seize. Section () requires that a warrant be issued by a judicial officer. In this case search warrants were authorized by a judge of the High Court in Pretoria pursuant to an application by the Investigating Directorate for Serious Economic Offences and its investigating director. The warrants authorized the second and third respondents to conduct a search and seizure operation, for purposes of a preparatory investigation, at the premises of the “Wheels of Africa Group of Companies” and at the home of one of the applicants. The search yielded three truckloads

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of documents, records, and data. The applicants challenged the legal and constitutional validity of the seizure.

Legal History The applicants approached the High Court for an order declaring certain provisions of sections  and  of the act unconstitutional and invalid. The court granted this order to the extent that those sections authorized the search and seizure of property, and accordingly the invasion of privacy, where there were no reasonable grounds for suspecting that a specified offence had been committed. The applicants then applied to the Constitutional Court for confirmation of the order of invalidity and the respondents appealed against it. Issues Did sections  and  unjustifiably infringe the right to privacy in section  of the Constitution? Decision of the Constitutional Court Then–Deputy President Langa delivered the court’s unanimous decision. He pointed out that the right to privacy extends beyond the “intimate core” of an individual’s space and was not only enjoyed by natural persons. Juristic persons also have a right to privacy, although it may be less extensive (paragraphs –). The respondents conceded that if the provisions did authorize a search and seizure where there was no reasonable suspicion that a specified offence had been committed, they would be constitutionally impermissible. They argued, however, that this was not how the legislation should be read as a judicial officer would only issue a search warrant if there were reasonable grounds for suspicion. The court held that a preparatory investigation in terms of section  was a procedure available to an investigating director who had insufficient grounds or information to form a reasonable suspicion that a specified offence had been committed. He held further, however, that the legislation set up an objective standard that had to be met prior to the violation of the right, thus ensuring that search and seizure powers will only be exercised where there are sufficient reasons for doing so (paragraph ). These provisions thus strike a balance between the need for search and seizure powers and the right to privacy of individuals. A search warrant will be granted for purposes of a preparatory investigation only if there is a reasonable suspicion that a specified offence has been or is being committed or attempted. It follows from this that no warrant may be applied for or issued in the absence of a reasonable suspicion that an offence has been committed. Order The provisions were capable of an interpretation consistent with the Constitution and the court therefore declined to confirm the order of invalidity of the High Court.

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Comment The court concluded that the impugned provisions are capable of an interpretation that constitutes a reasonable and justifiable limitation of the right to privacy. Does the court’s interpretation fit the ordinary meaning of the language of the challenged provisions? What role does the value of human dignity play in leading the court to conclude that the limitation of the right to privacy is justifiable? DEPUTY PRESIDENT LANGA

The Right to Privacy [] The right to privacy has previously been discussed in judgments of this court. In Bernstein and Others v. Bester and Others NNO [ () SA  (CC) ( () BCLR )], Justice Ackermann characterizes the right to privacy as lying along a continuum, where the more a person interrelates with the world, the more the right to privacy becomes attenuated. He stated: A very high level of protection is given to the individual’s intimate personal sphere of life and the maintenance of its basic preconditions and there is a final untouchable sphere of human freedom that is beyond interference from any public authority. So much so that, in regard to this most intimate core of privacy, no justifiable limitation thereof can take place. But this most intimate core is narrowly construed. This inviolable core is left behind once an individual enters into relationships with persons outside this closest intimate sphere; the individual’s activities then acquire a social dimension and the right of privacy in this context becomes subject to limitation.

[] The right, however, does not relate solely to the individual within his or her intimate space. Justice Ackermann did not state in the above passage that when we move beyond this established “intimate core,” we no longer retain a right to privacy in the social capacities in which we act. Thus, when people are in their offices, in their cars, or on mobile telephones, they still retain a right to be left alone by the state unless certain conditions are satisfied. Wherever a person has the ability to decide what he or she wishes to disclose to the public and the expectation that such a decision will be respected is reasonable, the right to privacy will come into play. [] The protection of the right to privacy may be claimed by any person. The present matter is concerned with the right to privacy of Mr. Rautenbach, a natural person, and nine business entities, which are juristic persons. Neither counsel addressed argument on the question of whether there was any difference between the privacy rights of natural persons and juristic persons. But what is clear is that the right to privacy is applicable, where appropriate, to a juristic person. The applicability of the Bill of Rights to a juristic person is set out in section () of the Constitution

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which states: “A juristic person is entitled to the rights in the Bill of Rights to the extent required by the nature of the rights and the nature of that juristic person.” [] As we have seen, privacy is a right that becomes more intense the closer it moves to the intimate personal sphere of the life of human beings, and less intense as it moves away from that core. This understanding of the right flows, as was said in Bernstein, from the value placed on human dignity by the Constitution. Juristic persons are not the bearers of human dignity. Their privacy rights, therefore, can never be as intense as those of human beings. However, this does not mean that juristic persons are not protected by the right to privacy. Exclusion of juristic persons would lead to the possibility of grave violations of privacy in our society, with serious implications for the conduct of affairs. The state might, for instance, have free license to search and seize material from any nonprofit organization or corporate entity at will. This would obviously lead to grave disruptions and would undermine the very fabric of our democratic state. Juristic persons therefore do enjoy the right to privacy, although not to the same extent as natural persons. The level of justification for any particular limitation of the right will have to be judged in the light of the circumstances of each case. Relevant circumstances would include whether the subject of the limitation is a natural person or a juristic person as well as the nature and effect of the invasion of privacy. [] The act itself recognizes the serious implications which the search and seizure provisions have on the rights of those who are subjected to them. Section () provides: Any entry upon or search of any premises in terms of this section shall be conducted with strict regard to decency and order, including— (a) a person’s right to, respect for and the protection of his or her dignity; (b) the right of a person to freedom and security; and (c) the right of a person to his or her personal privacy.

[] As it is clear that the search and seizure provisions of section  constitute a limitation to the right of privacy, it must be determined whether the limitation is constitutionally justifiable in terms of the provisions of section () of the Constitution. It is necessary, for the purpose of this inquiry, to ascertain the proper meaning of the relevant provisions in the act, in particular that of section (). I start with a consideration of the principles that are applicable to such an interpretation.

Interpreting Statutory Provisions under the Constitution [] Section () of the Constitution provides a guide to statutory interpretation under this constitutional order. It states: “When interpreting any legislation, and when developing the common law or customary law, every court, tribunal, or forum must promote the spirit, purport and objects of the Bill of Rights.” This means that all statutes must be interpreted through the prism of the Bill of Rights. All law-mak-

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ing authority must be exercised in accordance with the Constitution. The Constitution is located in a history that involves a transition from a society based on division, injustice, and exclusion from the democratic process to one that respects the dignity of all citizens, and includes all in the process of governance. As such, the process of interpreting the Constitution must recognize the context in which we find ourselves and the Constitution’s goal of a society based on democratic values, social justice, and fundamental human rights. This spirit of transition and transformation characterizes the constitutional enterprise as a whole. [] The purport and objects of the Constitution find expression in section , which lays out the fundamental values that the Constitution is designed to achieve. The Constitution requires that judicial officers read legislation, where possible, in ways that give effect to its fundamental values. Consistently with this, when the constitutionality of legislation is in issue, they are under a duty to examine the objects and purport of an act and to read the provisions of the legislation, so far as is possible, in conformity with the Constitution. [] In De Lange v. Smuts NO and Others [ () SA  (CC) ( () BCLR )], Justice Ackermann stated that the principle of reading in conformity does no more than give expression to a sound principle of constitutional interpretation recognized by other open and democratic societies based on human dignity, equality and freedom such as, for example, the United States of America, Canada, and Germany, whose constitutions, like our  Constitution, contain no express provision to such effect. In my view, the same interpretative approach should be adopted under the  Constitution.

Accordingly, judicial officers must prefer interpretations of legislation that fall within constitutional bounds over those that do not, provided that such an interpretation can be reasonably ascribed to the section. [] Limits must, however, be placed on the application of this principle. On the one hand, it is the duty of a judicial officer to interpret legislation in conformity with the Constitution so far as this is reasonably possible. On the other hand, the legislature is under a duty to pass legislation that is reasonably clear and precise, enabling citizens and officials to understand what is expected of them. A balance will often have to be struck as to how this tension is to be resolved when considering the constitutionality of legislation. There will be occasions when a judicial officer will find that the legislation, though open to a meaning that would be unconstitutional, is reasonably capable of being read “in conformity with the Constitution.” Such an interpretation should not, however, be unduly strained. [] In National Coalition for Gay and Lesbian Equality and Others v. Minister of Home Affairs and Others, it was said that

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[t]here is a clear distinction between interpreting legislation in a way which “promote[s] the spirit, purport, and objects of the Bill of Rights” as required by section () of the Constitution and the process of reading words into or severing them from a statutory provision which is a remedial measure under section ()(b), following upon a declaration of constitutional invalidity under section ()(a). . . . The first process, being an interpretative one, is limited to what the text is reasonably capable of meaning. The latter can only take place after the statutory provision in question, notwithstanding the application of all legitimate interpretative aids, is found to be constitutionally invalid.

[] It follows that where a legislative provision is reasonably capable of a meaning that places it within constitutional bounds, it should be preserved. Only if this is not possible should one resort to the remedy of reading in or notional severance. I now turn to consider the proper interpretation to be given to section ().

The Meaning of Section () [] The real issue between the parties was whether all searches under section , in respect of preparatory investigations, are inconsistent with the Constitution. Mr. Marcus, relying on his interpretation of the impugned provisions, argued for unconstitutionality because, in the case of a preparatory investigation, there could never be a reasonable suspicion that a specified offence had been committed. In defending their constitutionality, Mr. Soggot maintained that properly interpreted, the provisions require the judicial officer to authorize a warrant only if such reasonable grounds exist. [] The submissions of both parties proceeded from the view, which was common cause, that a search and seizure under section , for purposes of a preparatory investigation, would not be constitutionally justifiable in the absence of a reasonable suspicion that an offence has been committed. For reasons that appear later, I agree with this conclusion. I should emphasize at this stage, however, that this judgment is concerned only with the constitutionality of search warrants issued for purposes of a preparatory investigation under section . It should not be understood as stating that all searches, in whatever circumstances, are subject to the requirement of a reasonable suspicion that an offence has been committed. [] In his judgment, Justice Southwood adopted the interpretation proposed by Mr. Marcus and held accordingly that the impugned provisions were an unjustifiable violation of the right to privacy. Having reached this conclusion he made an order of notional severance declaring the relevant provisions of the act to be inconsistent with the Constitution to the extent only that they permit searches where there are no reasonable grounds to suspect that a specified offence has been committed. The practical effect of this order was no different from that which would have

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followed had the interpretation which was advanced by the respondents in their argument in the High Court been adopted. [] The act is not explicit regarding the circumstances under which a search warrant may be authorized for purposes of a preparatory investigation. More specifically, it is not immediately obvious whether or not a warrant may be authorized by a judicial officer in the absence of a reasonable suspicion that an offence has been committed. The answer to this depends on a proper interpretation of section (). In this respect, it is necessary firstly to spell out the different functions of the two investigatory procedures. [] Section ()(a) relates to the institution of an inquiry. Its provisions are not applicable to a preparatory investigation. The section is concerned with the jurisdictional facts that must exist before the investigating director may conduct an inquiry. He or she must, among other things, have “reason to suspect that a specified offence has been or is being committed or that an attempt has been or is being made to commit such an offence.” Section (), on the other hand, is concerned only with a preparatory investigation. There is no corresponding requirement, as in the case of an inquiry, that the investigating director must have “reason to suspect” before a preparatory investigation may be held. This form of procedure is instituted in order to enable the investigating director to determine if there are reasonable grounds to conduct an inquiry. It is therefore a preliminary step and is not an end in itself. It is a procedure that is available to an investigating director who has insufficient grounds or information to form a reasonable suspicion that a specified offence has been committed. A mere suspicion may therefore trigger a preparatory investigation, provided the purpose is to enable the investigating director to decide whether or not there are in fact reasonable grounds for a suspicion that a specified offence has been or is being committed. [] Section () provides that the provisions of section ()–() inclusive, and of sections  and  shall, “with the necessary changes,” apply to a preparatory investigation. In the context of the act, the phrase “with the necessary changes” means that, where applicable, the words “preparatory investigation” should be substituted for the term “inquiry.” The construction of the relevant sections “with the necessary changes” must also be undertaken in the light of the provisions of section () of the Constitution. [] Section  makes provision for persons who suspect that a specified offence has been or is being committed or that an attempt has been or is being made to commit such an offence, to lay the matter before the investigating director who may then decide to conduct an inquiry or preparatory investigation. It should be noted that section  requires that such person should have reasonable grounds to suspect that a specified offence has been or is being committed. This does not mean that the investigating director should be satisfied on the basis of such evidence alone that an inquiry in terms of section ()(a) is warranted. Section ()(a) requires that the investigating director should have “reason to suspect” that a specified offence has

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been committed. Depending on the information received, he or she may proceed either in terms of section ()(a) or section (). The choice depends on whether there is reason to suspect that a specified offence has been committed. Section () caters for those instances where the investigating director does not have sufficient information to institute an inquiry in terms of section ()(a). [] Subsections ()–() of section  deal with the manner in which inquiries and preparatory investigations are to be conducted, and make provision for the taking of evidence and the summoning of witnesses to appear before the person designated to conduct the inquiry. Section  makes provision for the search and seizure of property in connection with inquiries. Applying section  “with the necessary changes” to a preparatory investigation, section () would have to be read as follows: A warrant . . . may only be issued if it appears to the [judicial officer] from information on oath or affirmation, stating— (a) the nature of the preparatory investigation . . .; (b) the suspicion which gave rise to the preparatory investigation; and (c) the need, in regard to the preparatory investigation, for a search and seizure in terms of this section, that there are reasonable grounds for believing that [anything connected with the preparatory investigation is . . . or is suspected to be on such premises].’

[] Subsections () and () of section  are concerned with authorization by a judicial officer before a search and seizure of property takes place. The section is an important mechanism designed to protect those whose privacy might be in danger of being assailed through searches and seizures of property by officials of the state. The provisions mean that an investigating director may not search and seize property, in the context of a preparatory investigation, without prior judicial authorization. [] Section () prescribes what information must be considered by the judicial officer before a warrant for search and seizure may be issued. It must appear to the judicial officer, from information on oath or affirmation, that there are reasonable grounds for believing that anything connected with the preparatory investigation is, or is suspected to be, on such premises. That information must relate to (a) the nature of the preparatory investigation; (b) the suspicion that gave rise to the preparatory investigation; and (c) the need for a warrant in regard to the preparatory investigation. On the face of it, the judicial officer is required, among other things, to be satisfied that there are grounds for a preparatory investigation; in other words that the investigating director is not acting arbitrarily. Further, the judicial officer must evaluate the suspicion that gave rise to the preparatory investigation as well as the need for a search for purposes of a preparatory investigation. [] It is implicit in the section that the judicial officer will apply his or her mind to the question whether the suspicion which led to the preparatory investigation,

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and the need for the search and seizure to be sanctioned, are sufficient to justify the invasion of privacy that is to take place. On the basis of that information, the judicial officer has to make an independent evaluation and determine whether or not there are reasonable grounds to suspect that an object that might have a bearing on a preparatory investigation is on the targeted premises. [] It is also implicit in the legislation that the judicial officer should have regard to the provisions of the Constitution in making the decision. The act quite clearly exhibits a concern for the constitutional rights of persons subjected to the search and seizure provisions. That is the apparent reason for the requirement in section () and () that a search and seizure may only be carried out if sanctioned by a warrant issued by a judicial officer. The act repeals and takes the place of the Investigation of Serious Economic Offences Act, which was the subject of the litigation in Park-Ross and Another v. Director: Office for Serious Economic Offences [ () SA  (C) ( () SACR ;  () BCLR )]. In that case, a provision authorizing searches to be carried out without the sanction of a judicial officer was declared to be unconstitutional by Justice Tebbutt, who, during the course of his judgment, stated: It would, I feel, accord with the spirit and purport of the Constitution if it was provided that, before any search or seizure pursuant to section  of the act, prior authorization be obtained from a magistrate or from a judge of the Supreme Court in Chambers for such search and seizure. Any application for such authorization should set out, at the very least, under oath or affirmed declaration, information as to the nature of the inquiry in terms of section , the suspicion having given rise to that inquiry, and the need, in regard to that inquiry, for a search and seizure in terms of section .

[] In enacting section () the Legislature clearly intended to give effect to the Park-Ross judgment and to ensure that the search and seizure of property will be carried out in accordance with the provisions of the Constitution. The act uses the very language which Justice Tebbutt suggested was necessary to give effect to the “spirit and purport” of the Constitution. [] The concern for the constitutional rights of those affected by the invasion of privacy as a result of the execution of a search warrant is also apparent, as stated earlier, from the provisions of section () which require the execution of a search warrant to be conducted with strict regard to decency and order, including respect for a person’s right to dignity, to personal freedom and security and to personal privacy. Persons carrying out searches are thus obliged by the legislation to comply with the requirements of the Constitution. Unless that intention is clear from the language of the statute, such legislation should not be construed as contemplating that judicial officers will authorize the search without regard to the constitutional rights of the persons likely to be affected.

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[] The Constitution also prescribes that all conduct of the state must accord with the provisions of the Bill of Rights. This is evident from section () of the Constitution which provides that “[t]he Bill of Rights applies to all law, and binds the Legislature, the Executive, the Judiciary and all organs of State.” In De Lange v. Smuts Justice Ackermann, in dealing with a provision authorizing a magistrate at an administrative inquiry to commit a witness to prison for failing to answer questions satisfactorily, said: Section () does not in express terms prescribe the procedures to be followed before an examinee may be committed to prison. More importantly, it contains no explicit provision that obliges a presiding officer to conduct the proceedings antecedent to committal in any manner inconsistent with any norm of procedural fairness required by the Constitution or the common law. The inescapable conclusion, in my view, is that, whosoever is constitutionally permitted to issue a committal warrant under section (), it is implicit in the provisions of the subsection that the relevant proceedings must be conducted by such presiding officer in a manner which is not inconsistent with any norms of procedural fairness required by the Constitution or the common law.

[] Sections  and  of the Criminal Procedure Act require that searches be undertaken in connection with criminal investigations only if there is reasonable suspicion that an offence has been committed, and that the search is designed to secure evidence of such an offence. [] In the light of our criminal procedure, the legislative history and the specific provisions of section () of the act, the legislature must be taken to have contemplated that a judicial officer would not exercise a discretion to issue a warrant if that would result in an impermissible violation of the right to privacy of the persons to be searched. [] There may well be circumstances in which investigations commence and reach the stage of a reasonable suspicion that an offence has been committed, but further investigation is necessary in order to determine whether the matter is one that should be investigated by the investigating directorate under section (), or which should be left to the police to deal with. That would be the case, for instance, where there is a reasonable suspicion that the offence of fraud has been committed, yet the information in the investigating director’s possession is insufficient to constitute a reasonable suspicion that the offence is one of a serious and complicated nature and is therefore one that falls within his or her jurisdiction. [] In the context of a preparatory investigation, the search and seizure of property can perform a number of functions. In view of the complexities of organized crime and the difficulty of identifying criminal conduct which may or may not constitute a specified offence; there is a clear need for the investigating directorate to

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have search and seizure powers in the context of preparatory investigations. It is therefore important that such investigating directors be able to obtain search warrants in appropriate circumstances, provided that, in the context of a preparatory investigation, the use of search warrants is limited to those instances where there is a reasonable suspicion that an offence, which might be a specified offence, has been committed. [] Under those circumstances, a search warrant may properly be obtained, on the basis of a reasonable suspicion that an offence has been committed, provided that it is considered that further evidence might establish that such an offence is a specified offence. Before authorizing the warrant, the judicial officer would have to apply his or her mind to the matters set out in section () in evaluating the information put before him or her. A warrant would be issued only if it appears to the judicial officer that there are reasonable grounds for the suspicion that an object connected with the commission of an offence, which might be a specified offence, is on the targeted premises. [] I am accordingly of the view that the meaning of section () suggested by Mr. Marcus and which was adopted by the High Court is not correct. It fails to appreciate that section () is capable of an interpretation that is consistent with the Constitution. I should mention that this interpretation was neither raised before Justice Southwood, nor considered in his judgment. [] For the reasons given in this judgment, I conclude that the impugned provisions are reasonably capable of a meaning that requires a reasonable suspicion of the commission of an offence, which might be a specified offence, as a precondition for the issue of a search warrant for purposes of a preparatory investigation. That is a proper interpretation of section (). In particular, as I have already mentioned, the legislature has expressly sought to draw the attention of officials to the requirements of the Constitution in section (), which obliges officials, in executing a warrant, to do so with strict regard to decency and order, respect for a person’s dignity, freedom and security and personal privacy. Furthermore, the comments of Justice Tebbutt in Park-Ross have clearly been taken to heart by the Legislature. Section () was enacted with these comments in mind and this reinforces the view that the legislature set out to regulate the search and seizure of property in accordance with the provisions of the Constitution as they were interpreted in the judgment of Justice Tebbutt. [] The proper interpretation of section () therefore permits a judicial officer to issue a search warrant in respect of a preparatory investigation only when he or she is satisfied that there exists a reasonable suspicion that an offence, which might be a specified offence, has been committed. The warrant may only be issued where the judicial officer has concluded that there is a reasonable suspicion that such an offence has been committed, that there are reasonable grounds to believe that objects connected with an investigation into that suspected offence may be found on the relevant premises and, in the exercise of his or her discretion, the judicial officer considers it appropriate to issue a search warrant. These are considerable safeguards protecting the right to privacy of individuals. In my view, the scope of the limitation

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of the right to privacy is therefore narrow. It is now necessary to consider briefly the purpose and importance of section ().

Purpose and Importance of the Search and Seizure Provisions [] It is a notorious fact that the rate of crime in South Africa is unacceptably high. There are frequent reports of violent crime and incessant disclosures of fraudulent activity. This has a seriously adverse effect not only on the security of citizens and the morale of the community but also on the country’s economy. This ultimately affects the government’s ability to address the pressing social welfare problems in South Africa. The need to fight crime is thus an important objective in our society, and the setting up of special investigating directorates should be seen in that light. The legislature has sought to prioritize the investigation of certain serious offences detrimentally affecting our communities and has set up a specialized structure, the investigating directorate, to deal with them. For purposes of conducting its investigatory functions, the investigating directorates have been granted the powers of search and seizure. The importance of these powers for the purposes of a preparatory investigation has been canvassed above. Proportionality Analysis [] I now turn to weigh the extent of the limitation of the right against the purpose for which the legislation was enacted. There is no doubt that search and seizure provisions, in the context of a preparatory investigation, serve an important purpose in the fight against crime. That the state has a pressing interest which involves the security and freedom of the community as a whole is beyond question. It is an objective that is sufficiently important to justify the limitation of the right to privacy of an individual in certain circumstances. The right is not meant to shield criminal activity or to conceal evidence of crime from the criminal justice process. On the other hand, state officials are not entitled without good cause to invade the premises of persons for purposes of searching and seizing property; there would otherwise be little content left to the right to privacy. A balance must therefore be struck between the interests of the individual and that of the state, a task that lies at the heart of the inquiry into the limitation of rights. [] On the proper interpretation of the sections concerned, the investigating directorate is required to place before a judicial officer an adequate and objective basis to justify the infringement of the important right to privacy. The legislation sets up an objective standard that must be met prior to the violation of the right, thus ensuring that search and seizure powers will only be exercised where there are sufficient reasons for doing so. These provisions thus strike a balance between the need for search and seizure powers and the right to privacy of individuals. Thus construed, section () provides sufficient safeguards against an unwarranted invasion of the right to privacy. It follows, in my view, that the limitation of the privacy right in these circumstances is reasonable and justifiable.

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Conclusion [] The conclusion I have reached is that the impugned provisions are reasonably capable of a meaning that is consistent with the requirements of the Constitution. In terms of that interpretation, a search warrant would be granted for purposes of a preparatory investigation only if there is a reasonable suspicion that an offence, which might be a specified offence, has been or is being committed, or that an attempt was or had been made to commit such an offence. It follows from this that no warrant may be applied for or issued in the absence of a reasonable suspicion that an offence has been committed.

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Prince

Prince v. President, Cape Law Society, and Others  () SA  (CC) CASE SUMMARY

Facts One of the admission requirements of the Attorney’s Act  of  is that a person be “fit and proper.” As part of the process for admission as an attorney, the appellant applied to the Cape Law Society to have his contract of community service registered. The appellant, who was a practicing Rastafarian, disclosed to the Law Society that not only did he have two previous convictions for possession of cannabis, but that he intended to continue its use for sacramental purposes. The Law Society declined to register his contract of community service. It took the view that a person who— already twice convicted for possession of cannabis—declares his intention to continue breaking the law, is not a fit and proper person to be admitted as an attorney.

Legal History The appellant applied to the Cape High Court to have the decision of the Law Society overturned on the grounds that the provisions of the Drugs and Drug Trafficking Act  of  and the Medicines and Related Substances Control Act  of  that prohibited the possession of cannabis constituted unconstitutional infringements of the appellant’s right to freedom of religion in terms of section () of the Constitution. At a minimum, the appellant argued, he ought to be granted an exemption, as a Rastafarian, to possess and to use cannabis for religious

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purposes. This application was unsuccessful. The Supreme Court of Appeal confirmed the High Court’s ruling. The appellant then appealed to the Constitutional Court.

Issues Did the criminalization of the possession of cannabis violate the applicant’s right to freedom of religion? If so, were Rastafarians entitled to an exemption from these acts in order to use cannabis for sacramental purposes? Decision of the Constitutional Court A sharply divided Constitutional Court held that although a Rastafarian’s right to freedom of religion permitted him or her to engage in Rastafarian rituals, the state was justified in proscribing the ritual use of cannabis. In reaching its conclusions about the requirements of general welfare and international obligation, the majority (Chief Justice Chaskalson and Justices Ackermann, Kriegler, Goldstone, and Yacoob) relied heavily on the state’s evidence that even limited dagga smoking could lead to greater drug use and increased narcotics trafficking. The majority found that, as a practical matter, no meaningful exemption to existing laws could be carved out for ritual dagga use without undermining the prohibition completely (paragraph ). Justice Ngcobo (joined by Justice Mokgoro and Sachs and Acting Justice Madlanga) dissented. He found the infringement of Prince’s religious beliefs to be unjustifiable. The minority came to the conclusion that an exemption could be crafted to allow Rastafarians to use cannabis, while the rest of society still enjoyed the benefits of the general prohibition. Justice Sachs wrote a separate dissent in which he emphasized that the Constitution required the state to “walk the extra mile” to protect minorities from tyranny of the majority (paragraph ). Order The appeal was dismissed. Prince then appealed to the African Commission on Human and Peoples’ Rights. His claim was again rejected. Comment When viewed through the lens of dignity, religion, community rights, or association analysis, the rationale for the majority’s conclusion can appear rather opaque. On the basis of little more than assertion by the state, the majority bars a member of a religious community from engaging in practices that the community’s members deem central to their way of being in the world. There is no issue of an exclusionary practice. There is no issue of discrimination. There is little question about the import of the ritual for the religion under scrutiny. Instead, the court’s discourse pits a vague sense of danger to the commonwealth against the very real dignity interests of a discrete and insular religious minority.

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The minority judgment offers some solace. As Justice Ncgobo writes: Apart from this, as a general matter, the court should not be concerned with questions whether, as a matter of religious doctrine, a particular practice is central to the religion. Religion is a matter of faith and belief. The beliefs that believers hold sacred and thus central to their religious faith may strike nonbelievers as bizarre, illogical, or irrational. Human beings may freely believe in what they cannot prove. Yet that their beliefs are bizarre, illogical, or irrational to others, or are incapable of scientific proof, does not detract from the fact that these are religious beliefs for the purposes of enjoying the protection guaranteed by the right to freedom of religion. The believers should not be put to the proof of their beliefs or faith. For this reason, it is undesirable for courts to enter into the debate whether a particular practice is central to a religion unless there is a genuine dispute as to the centrality of the practice (paragraph ).

For the purposes of dignity analysis, the above paragraph is important in several respects. While Justice Ncgobo uses the term “irrational” to describe how outsiders may perceive a religious belief or practice, he may just as well have used the word “arational.” He goes on to note that however irrational—or arational—a religious belief or practice might be, the centrality of that belief in the life of its holder is what secures the religious belief, practice, or association the requisite constitutional protection. Thus, the minority judgment recognizes: (a) how religious communities are constitutive of the beliefs and practices (and therefore the dignity) of individuals; and (b) that their constitutive character entitles them to constitutional protection. JUSTICE NGCOBO [] [. . .] The right to freedom of religion is contained in section () of the Constitution, which provides “[e]veryone has the right to freedom of conscience, religion, thought, belief and opinion” and in section ()(a), which provides: Persons belonging to a cultural, religious or linguistic community may not be denied the right, with other members of that community . . . to enjoy their culture, practice their religion and use their language.

[] This court has on two occasions considered the contents of the right to freedom of religion. On each occasion, it has accepted that the right to freedom of religion at least comprehends:

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(a) the right to entertain the religious beliefs that one chooses to entertain; (b) the right to announce one’s religious beliefs publicly and without fear of reprisal; and (c) the right to manifest such beliefs by worship and practice, teaching and dissemination. Implicit in the right to freedom of religion is the “absence of coercion or restraint.” Thus “freedom of religion may be impaired by measures that force people to act or refrain from acting in a manner contrary to their religious beliefs.” [] Seen in this context, sections () and ()(a) complement one another. Section ()(a) emphasizes and protects the associational nature of cultural, religious, and language rights. In the context of religion, it emphasizes the protection to be given to members of communities united by religion to practice their religion. It is not necessary to say anything more on the proper scope of section ()(a). For the moment, the question that must now be considered is whether the prohibition contained in the impugned provisions limits the appellant’s constitutional right to freedom of religion, a question that is considered next.

Does the Prohibition Limit the Appellant’s Constitutional Rights? [] That Rastafari is a religion is not in dispute. It is now widely acknowledged that Rastafari is a form of religion. Nor is it in dispute that the appellant is a genuine follower of that religion. Similarly, it is not in dispute that the use of cannabis is central to the Rastafari religion. Although it is also used for culinary and medicinal purposes, these uses are no less sacred in the context of the religion. The strict discipline and protocol that accompanies the use of cannabis at religious gatherings and ceremonies emphasize the importance of cannabis in the Rastafari religion. All this points to the centrality of cannabis in the practice of Rastafari religion. [] The prohibition contained in the impugned provisions requires the followers of the Rastafari religion to refrain from using cannabis. But this is contrary to their belief. They are forced to choose between following their religion or complying with the law. The prohibition on the use or possession of cannabis thus manifestly limits the rights of the Rastafari to practice their religion. What remains to be considered is whether this limitation is justifiable in terms of section . Is the Limitation on the Appellant’s Constitutional Rights Justifiable? [] To pass constitutional muster, the limitation on the constitutional rights must be justifiable in terms of section () of the Constitution. The limitation analysis requires an enquiry into whether the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality, and freedom. In that enquiry, the relevant considerations include the nature of the right and the scope of its limitation, the purpose, importance and the effect of the limitation, and the availability of less restrictive means to achieve that purpose. None of these factors

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is individually decisive. Nor are they exhaustive of the relevant factors to be considered. These factors, together with other relevant factors, are to be considered in the overall enquiry. The limitation analysis thus involves the weighing up of competing values and ultimately an assessment based on proportionality. [] Where, as here, the constitutional complaint is based on the failure of the statutory provisions to accommodate the religious use of cannabis by the Rastafari, the weighing-up and evaluation process must measure the three elements of the government interest, namely, the importance of the limitation; the relationship between the limitation and the underlying purpose of the limitation; and the impact that an exemption for religious reasons would have on the overall purpose of the limitation. The government interest must be balanced against the appellant’s claim to the right to freedom of religion, which also encompasses three elements: the nature and importance of that right in an open and democratic society based on human dignity, equality, and freedom; the importance of the use of cannabis in the Rastafari religion; and the impact of the limitation on the right to practice the religion. In particular, in this case, the proportionality exercise must relate to “whether the failure to accommodate the appellant’s religious belief and practice by means of the exemption . . . can be accepted as reasonable and justifiable in an open and democratic society based on human dignity, freedom and equality.” [] In weighing the competing interests in this case, it is necessary to identify accurately the interests that are at stake. The government interest involved here is not the broad interest in regulating the dependence-producing drugs and preventing their abuse as well as trafficking in those drugs. The government interest involved here is a narrow one—the failure to allow a religious exemption for the sacramental use of cannabis. What must be examined in this regard is the interest that the government seeks to promote and the impediment to the achievement of its objectives that would result from the granting of the exemption. Put differently, what must be determined is whether the granting of the religious exemption would undermine the objectives of the prohibition. T HE N ATURE OF THE R IGHT L IMITED AND THE S COPE OF L IMITATION [] The right to freedom of religion is probably one of the most important of all human rights. Religious issues are matters of the heart and faith. Religion forms the basis of a relationship between the believer and God or Creator and informs such relationship. It is a means of communicating with God or the Creator. Religious practices are therefore held sacred. In Christian Education and in Prince , we observed: There can be no doubt that the right to freedom of religion, belief and opinion in the open and democratic society contemplated by the Constitution is important. The right to believe or not to believe, and to act or not to act according to his or her beliefs or nonbeliefs, is one of the key ingredients of

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any person’s dignity. Yet freedom of religion goes beyond protecting the inviolability of the individual conscience. For many believers, their relationship with God or creation is central to all their activities. It concerns their capacity to relate in an intensely meaningful fashion to their sense of themselves, their community and their universe. For millions in all walks of life, religion provides support and nurture and a framework for individual and social stability and growth. Religious belief has the capacity to awake concepts of self-worth and human dignity which form the cornerstone of human rights. It affects the believer’s view of society and founds the distinction between right and wrong. It expresses itself in the affirmation and continuity of powerful traditions that frequently have an ancient character transcending historical epochs and national boundaries.

[] The right to freedom of religion is especially important for our constitutional democracy, which is based on human dignity, equality, and freedom. Our society is diverse. It is comprised of men and women of different cultural, social, religious, and linguistic backgrounds. Our Constitution recognizes this diversity. This is apparent in the recognition of the different languages; the prohibition of discrimination on the grounds of, among other things, religion, ethnic, and social origin; and the recognition of freedom of religion and worship. The protection of diversity is the hallmark of a free and open society. It is the recognition of the inherent dignity of all human beings. Freedom is an indispensable ingredient of human dignity. [] Human dignity is an important constitutional value that not only informs the interpretation of most, if not all, other constitutional rights but is also central in the limitations analysis. As we observed in Dawood: 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

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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 labor.

T HE I MPORTANCE OF THE L IMITATION [] The impugned provisions criminalize all use and possession of cannabis except when used for medicinal, analytical or research purposes. They criminalize the use of cannabis by the Rastafari regardless of where, how, and why it is used. It matters not that they use it for sacramental purposes as a central part of the practice of their religion. The impugned provisions do not distinguish between the Rastafari who use cannabis for religious purposes and drug abusers. The effect of the prohibition is to state that in the eyes of the legal system all Rastafari are criminals. The stigma thus attached is manifest. Rastafari are at risk of arrest, prosecution and conviction for the offence of possession or use of cannabis. For the appellant, the consequences have gone beyond the stigma of criminal conviction. He is now prevented from practicing the profession of his choice. There can be no doubt that the existence of the law that effectively punishes the practice of the Rastafari religion degrades and devalues the followers of the Rastafari religion in our society. It is a palpable invasion of their dignity. It strikes at the very core of their human dignity. It says that their religion is not worthy of protection. The impact of the limitation is profound indeed. [] Yet, there can be little doubt about the importance of the limitation in the war on drugs. That war serves an important pressing social purpose: the prevention of harm caused by the abuse of dependence-producing drugs and the suppression of trafficking in those drugs. The abuse of drugs is harmful to those who abuse them and therefore to society. The government thus has a clear interest in prohibiting the abuse of harmful drugs. Our international obligations too require us to fight that war subject to our Constitution. [] The government objective in prohibiting the use and possession of cannabis arises from the belief that its abuse may cause psychological and physical harm. On the evidence of the experts on both sides, it is common cause that cannabis is a harmful drug. However, such harm is cumulative and dose-related. Uncontrolled use of cannabis may lead to the very harm that the legislation seeks to prevent. Effective prevention of the abuse of cannabis and the suppression of trafficking in cannabis are therefore legitimate government goals. The conclusion reached by the courts below in this regard cannot be gainsaid. But does the achievement of these goals require a complete ban on even purely religious uses of cannabis by Rastafari, regardless of how and where it is used? [] Two points need to be made at the outset in this regard. First, it is significant to bear in mind that the Rastafari use cannabis in different circumstances: it may be consumed by smoking it as a cigarette or in a chalice, eating it as part of a meal or drinking it as a tonic, or it may be used in bathing or burnt as an incense at religious ceremonies and gatherings. While it is not obligatory to consume it, it is nevertheless required that it must be used in one form or another. Thus women and children do

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not partake in the smoking of cannabis. There are also male adherents who do not smoke it. Notwithstanding these different circumstances in which cannabis is used, the focal point of both the evidence as well as the debate in this court in opposition to the relief sought was the smoking of cannabis, which was said to pose a risk of harm when it is consumed regularly and in large doses. [] The second point is this: The prohibition proscribes all religious use or possession of cannabis regardless of the circumstances under which it is used or the amount used or how it is used. In this regard, it is significant to note that the evidence of the appellant is that he partakes in the use of cannabis at all religious ceremonies and also uses it in the privacy of his home by burning it as incense, smoking, drinking, and eating it. It is clear from his evidence that his use of cannabis is not confined to smoking it. Nor does he suggest that he considers smoking alone to be central to his religion. Thus the case that the state had to meet is how the different uses of cannabis undermine its interest. Indeed in terms of the order made by this court in Prince I the state was directed not only to respond to the evidence of the appellant setting out how cannabis is used in the religion but also indicate the practical difficulties it will encounter if an exemption allowing the sacramental use of cannabis was granted. The response required of the state was thus not confined to smoking cannabis but to all uses of cannabis. It was therefore incumbent upon the government to persuade the court that such a complete ban on all sacramental uses of cannabis is reasonable and justifiable by, amongst other things, presenting facts and argument in support of the justification of such a ban. [] We have recently held that where justification rests on factual and/or policy considerations, the party contending for justification must put such material before the court. The obligation of government in defending legislation includes not only the submission of legal argument but also placing before the court the requisite factual material and policy considerations. Failure to do this may in certain cases lead to a finding that the limitation is not justifiable. And this is such a case. Such facts had to demonstrate that all religious uses of cannabis by Rastafari and in any circumstance pose a risk of harm regardless of how it is used and that a religious exemption cannot be granted without undermining the objective of the statutes. Such facts were necessary in this case because of, first, the constitutional requirement that in limiting the constitutional rights regard must be had to less restrictive means that are available to achieve the purpose of the limitation; and secondly, the constitutional commitment to tolerance which calls for the accommodation of different religious faiths if this can be done without frustrating the objectives of the government. [] There was no evidence that the use of cannabis in bathing or burning it as incense poses a risk of harm to the user. Indeed there was no suggestion that the burning of cannabis as incense in a carefully circumscribed ritual context poses any risk of harm. As incense it is either burnt in the altar fire or an incense holder. This is done at religious ceremonies presided over by priests, of which there are seven in the whole country, or by assistant priests or elders. Cannabis is also burnt as incense

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in the privacy of one’s home as the appellant testified. Burning cannabis as an incense in a ceremonial context under the supervision of a priest is far removed from the irresponsible use of cannabis for recreational purposes or by drug abusers. The burning of incense is not a practice confined to Rastafari, it is performed by other religious faiths. For example, it is a practice deeply rooted in African traditional worship where the burning of impepho is essential to communicating with ancestors. Ceremonies at which Rastafari burn cannabis as an incense are very few. [] I am unable to agree with the suggestion that burning cannabis as an incense causes harm from inhalation. This is highly speculative and is not borne out by the medical evidence on record. Medical evidence suggests that “prolonged heavy use or less frequent use of more potent preparations” poses a risk of harm. If smoking “a few joints” of cannabis poses no risk of harm, it is difficult to see how burning cannabis at a few religious ceremonies and at the altar or in an incense holder can cause the harm suggested. In any event, even if inhalation poses a risk of harm, there is no suggestion that the burning of cannabis as incense cannot be done in a manner that poses no such risk. Nor is there any suggestion on the evidence that burning cannabis as incense in an incense holder is intended to induce the psychoactive effect of cannabis. [] [. . .] Without further information, it is not possible to say whether or not the religious use of cannabis can be allowed without undermining the prohibition. [] Cannabis is smoked in a chalice or burnt as incense at Nyahbinghis, which are religious ceremonies. There are very few of these ceremonies in the Rastafari ritual calendar. Because of the importance that Rastafari place on the “holy herb” they prefer to grow cannabis themselves. Growing, harvesting, and curing it is considered to be an art. Its preparation for smoking in a chalice follows a special procedure and there is an elaborate protocol that surrounds the use of the chalice. It is smoked at religious gatherings or ceremonies presided over either by a priest, an assistant priest, or an elderly. Whether smoking cannabis in a chalice on these few occasions can be described as a “prolonged heavy use or use of a more potent preparation” is not easy to say on the record. However, even if it is, there is no suggestion that its consumption at these few and isolated religious ceremonies cannot be controlled effectively and limited to the consumption of the amount that poses no risk of harm. [] Any exemption to accommodate the religious use of cannabis will of course have to be strictly controlled and regulated by the government. Such control and regulation may include restrictions on the individuals who may be authorized to possess cannabis; the source from which it may be obtained; the amount that can be kept in possession; and the purpose for which it may be used. In addition, conditions necessary to safeguard against using it for some purpose other than that for which the exemption is granted, as well as trafficking in cannabis, may be imposed and these may include the requirement of registration with the relevant authorities; recording the amount purchased and the date of such purchase; and where and how

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it may be used. Any permit to possess and use cannabis for the purposes of the exemption may have to be issued subject to revocation if the conditions of its issue are violated, such as using cannabis otherwise than for the purpose of burning it as incense or trafficking in cannabis or having in possession more in amount than the permit allows. [] It is true that the granting of a religious exemption for a limited use of cannabis in circumstances that do not pose a risk of harm has certain risks. Such risks involve the use of cannabis for purposes other than those allowed by the exemption and the illegal passing of cannabis lawfully acquired to third parties. However, these risks are inherent in any exemption. They did not preclude the government from allowing exemptions for medicinal, research, or analytical purposes. To minimize these risks the government subjected the use of drugs for these purposes to strict control, such as restricting persons who may acquire drugs; prescribing the source from which they may be obtained; requiring the recording of the date of sale and the quantity of drugs sold; and making possession or use of drugs outside the statutory provisions subject to criminal penalties. These restrictions minimize the risk of illegal use of or trafficking in drugs. [] There are two points that must be emphasized. First, the relief sought by the appellant is an order declaring that the impugned provisions are unconstitutional because they are overbroad. It is the duty of this court to say whether that is so. We must determine what the appellant and other Rastafari are entitled to, consistent with their constitutional rights. The appellant and the adherents of his religion are entitled not to have the practice of their religion proscribed if it can be practiced in a manner that does not undermine the government interest. We are not concerned with what would or would not meet the requirement of the Rastafari religion. Nor are we concerned with what would be effective practice of the religion. In my view, it is undesirable for the courts to be concerned with questions as to what, as a matter of religious doctrine, would be an effective practice of a particular religion. That enquiry is irrelevant here where the question is whether the impugned provisions are overbroad. [] Secondly, it is not demeaning to their religion if we find that the manner in which they practice their religion must be limited to conform to the law. Whether this is what they want matters not. Nor is it to underestimate in any way the very special meaning that the use of the “holy herb” has for the self-defining or ethos of the Rastafari religion. As we observed in Christian Education and also in Prince , the balancing exercise requires a degree of reasonable accommodation from all concerned. Rastafari are expected, like all of us, to make suitable adaptations to laws that are found to be constitutional that impact on the practice of their religion. A narrow and a closely defined exemption that is subject to manageable government supervision does not oblige them “to make an absolute and strenuous choice between obeying a law of the land or following their conscience. They can do both simultaneously.”

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The Evaluation of Proportionality [] In weighing the competing interests and in the evaluation of proportionality, it is necessary to examine closely the relation between the complete ban on the sacramental use or possession of cannabis by the Rastafari and the purpose of the limitation as well as the existence of the less restrictive means to achieve this purpose. The prohibition is ostensibly aimed at the abuse of harmful drugs and trafficking in those drugs. Hence the use for medicinal purposes under the care and supervision of a medical practitioner or for analytical or research purposes are not hit by the prohibition. Yet a sacramental use of cannabis that has not been demonstrated to be harmful, such as the burning of cannabis as an incense, is proscribed. The ban on religious use is so complete that a religious practice that requires followers to bow before a cannabis plant and pray is hit by the prohibition. That such use of cannabis is not harmful to the health of the followers matters not. [] I accept that the goal of the impugned provisions is to prevent the abuse of dependence-producing drugs and trafficking in those drugs. I also accept that it is a legitimate goal. The question is whether the means employed to achieve that goal are reasonable. In my view, they are not. The fundamental reason why they are not is because they are overbroad. They are ostensibly aimed at the use of dependenceproducing drugs that are inherently harmful and trafficking in those drugs. But they are unreasonable in that they also target uses that have not been shown to pose a risk of harm or to be incapable of being subjected to strict regulation and control. The net they cast is so wide that uses that pose no risk of harm and that can effectively be regulated and subjected to government control, like other dangerous drugs, are hit by the prohibition. On that score they are unreasonable and they fall at the first hurdle. This renders it unnecessary to consider whether they are justifiable. [] It follows, therefore, that the prohibition contained in the impugned provisions is constitutionally bad because it proscribes the religious use of cannabis even when such use does not threaten the government interest. But it is bad to that extent, and only that extent. In view of this conclusion, it is not necessary to consider other constitutional challenges. Appropriate Remedy [] The constitutional defect in the two statutes is that they are overbroad. They are not carefully tailored to constitute a minimal intrusion upon the right to freedom of religion and they are disproportionate to their purpose. They are constitutionally bad because they do not allow for the religious use of cannabis that is not necessarily harmful and that can be controlled effectively. Ordinarily, the appropriate remedy in these circumstances would be the “reading in” of the appropriate exemption. [] However, here the question of how the exemption can be formulated cannot be answered with a sufficient degree of precision on the basis of constitutional analysis. There are a number of questions that will have to be answered in relation to the control and regulation to which such an exemption is to be subjected and these

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include: Who may grant approval for the religious use and possession of cannabis? Who may be granted such exemption; the quantity of cannabis that may be possessed by authorized persons; and the legal source of cannabis? In addition, the dispensing of cannabis to authorized persons for religious purposes must be subjected to strict control. Standards must be developed that will govern the conduct of such authorized persons. There are a number of options in relation to these questions. It is the task of the legislature, which has the necessary resources to consider such options and make its choice. An attempt by this court to craft an exemption may well result in an undue intrusion into the legislative sphere. The crafting of the appropriate exemption must therefore be left to Parliament. [] However, a declaration of invalidity that takes immediate effect poses a real danger to society. It would result in an uncontrolled use of cannabis and this will undermine the admittedly legitimate governmental goal of preventing the harmful effects of dependence-producing drugs and trafficking in those drugs. Parliament must therefore be afforded the opportunity to remedy the defects in these two statutes. The declaration of invalidity should therefore be suspended for a period of twelve months for that purpose. The appellant did not contend otherwise. CHIEF JUSTICE CHASKALSON, JUSTICES ACKERMANN AND KRIEGLER

Legislation Prohibiting the Possession and Use of Cannabis [] [. . .] The possession and use of cannabis is prohibited by section (b) of the Drugs Act and section  A() of the Medicines Act referred to above. It is a hallucinogen that has an intoxicating effect that is cumulative and dose-related. There are only about , Rastafarians in South Africa and the legislation is not aimed at them. Its purpose is to protect the general public against the harm caused by the use of drugs. Cannabis is but one of several substances prohibited under this legislation and its prohibition is not peculiar to South Africa. The possession and use of cannabis is prohibited in many countries, and it is listed as a prohibited substance in the international instruments referred to by Justice Ngcobo in his judgment. [] Justice Sachs refers to the history of the prohibition of the use of cannabis in South Africa. Whatever that history might have been, it is not in our view relevant to the constitutionality of the present legislation. The constitutionality of this legislation is derived first from the provisions of the Interim Constitution and later of the  Constitution. These Constitutions continued in force all law that existed when they were adopted, subject only to consistency with their terms. Save for the argument on the religious exception, which we have dealt with fully in our judgment, it was never suggested that the laws as such were inconsistent with the Interim Constitution or the  Constitution. It is also abundantly clear from the attitude adopted by the government in this matter that it does not consider these laws to be

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an illegitimate inheritance from the past; it considers them legitimate and necessary provisions of our present criminal law legislation and international obligations. [] The then minister of justice stated in an affidavit lodged in the High Court proceedings: The provisions of the two Acts have been placed on our statute books for compelling reasons. The need to suppress the illicit use, possession and trafficking in drugs, such as cannabis, is an urgent and pressing one. There is no doubt that the effect of prohibition of the abuse of a legal drug, such as cannabis, which results in severe damage to its users, is a pressing social purpose. The government of the Republic of South Africa simply has to take active steps to suppress the use, possession and trafficking of illicit drugs.

He also stated that “[t]hroughout the jurisdictions of the world, the use, possession, acquisition, importation, and trafficking in cannabis is regarded as a criminal offence. In South Africa too, it is an offence that is applicable equally to all its citizens.” Although the appellant disputed the allegations made concerning the harm done by users of cannabis, he did not suggest that the prohibition of the use and possession of cannabis had any purpose other than that attested to by the Minister. [] The prohibition against the possession and use of cannabis is thus part of a worldwide attempt to curb its distribution, of which the present government is fully supportive. Whether decriminalization of the possession and use of small quantities of cannabis is a more appropriate response to the problem than criminalization, was at no stage suggested and is not an issue in this appeal. It is not an issue on which this court should comment in these proceedings. [] In a democratic society the legislature has the power and, where appropriate, the duty to enact legislation prohibiting conduct considered by it to be antisocial and, where necessary, to enforce that prohibition by criminal sanctions. In doing so it must act consistently with the Constitution, but if it does that, courts must enforce the laws whether they agree with them or not. [] We agree with Justice Ngcobo that the legislation criminalizing the use and possession of cannabis limits the religious rights of Rastafari under the Constitution, and that what has to be decided in this case is whether that limitation is justifiable under section  of the Constitution. It is in regard to this question that the respective views of Justice Ngcobo and ourselves diverge. For the reasons that follow, we do not believe that it is incumbent on the state to devise some form of exception to the general prohibition against the possession or use of cannabis in order to cater for the religious rights of Rastafarians. [] In the proportionality analysis required by section  of the Constitution, there can be no doubt that the right to freedom of religion and to practice religion are important rights in an open and democratic society based on human dignity, equality, and freedom, and that the disputed legislation places a substantial limitation

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on the religious practices of Rastafari. It must also be accepted that the legislation serves an important governmental purpose in the war against drugs. In substance, the appellant contends that the legislation, though legitimate in its purpose and application to the general public, is overbroad because it has been formulated in a way that brings within its purview the use of cannabis by Rastafari that is legitimate and ought not to be prohibited. A challenge to the constitutionality of legislation on the grounds that it is overbroad is in essence a challenge based on the contention that the legitimate government purpose served by the legislation could be achieved by less restrictive means. [] In Christian Education South Africa v. Minister of Education this court held: The underlying problem in any open and democratic society based on human dignity, equality, and freedom in which conscientious and religious freedom has to be regarded with appropriate seriousness, is how far such democracy can and must go in allowing members of religious communities to define for themselves which laws they will obey and which not. Such a society can cohere only if all its participants accept that certain basic norms and standards are binding. Accordingly, believers cannot claim an automatic right to be exempted by their beliefs from the laws of the land. At the same time, the state should, wherever reasonably possible, seek to avoid putting believers to extremely painful and intensely burdensome choices of either being true to their faith or else respectful of the law.

[] There is no objective way in which a law enforcement official could distinguish between the use of cannabis for religious purposes and the use of cannabis for recreation. It would be even more difficult, if not impossible, to distinguish objectively between the possession of cannabis for the one or the other of the above purposes. Nor is there any objective way in which a law enforcement official could determine whether a person found in possession of cannabis, who says that it is possessed for religious purposes, is genuine or not. Indeed, in the absence of a carefully controlled chain of permitted supply, it is difficult to imagine how the island of legitimate acquisition and use by Rastafari for the purpose of practicing their religion could be distinguished from the surrounding ocean of illicit trafficking and use. [] Cannabis is grown in South Africa and, according to the evidence; South Africa is one of the major sources from which the world trade in cannabis is supplied. South Africa has an international obligation to curtail that trade and, though its obligation is subject to its Constitution, the fact that it has this obligation and the importance of honoring it, cannot be ignored in the limitations analysis. Moreover, there is an extensive trade in cannabis within South Africa itself. According to the statistics produced by Superintendent Mason, over  percent of all drug convictions are cannabis-related and over  percent of those deal with its unlawful possession.

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[] The right to freedom of religion is a right enjoyed by all persons. The right embraces religions, big and small, new and old. If an exemption in general terms for the possession and use of harmful drugs by persons who do so for religious purposes were to be permitted, the state’s ability to enforce its drug legislation would be substantially impaired. [] The use made of cannabis by Rastafari cannot in the circumstances be sanctioned without impairing the state’s ability to enforce its legislation in the interests of the public at large and to honor its international obligation to do so. The failure to make provision for an exemption in respect of the possession and use of cannabis by Rastafari is thus reasonable and justifiable under our Constitution. [] In his judgment, Justice Ngcobo concludes that a limited exemption for the nonharmful use of cannabis could be crafted by the Legislature to accommodate the religious needs of Rastafari. Because the appellant’s case focused on the general use of cannabis in which smoking has a prominent role, little attention was given in the evidence to the other uses of cannabis. It was never suggested that permitting other uses, but prohibiting smoking, would enable the appellant to practice his religion. According to Professor Yawney, the importance of cannabis to the practice of the religion is that it “encourages inspiration and insight through the presence of sudden illumination.” It is the psycho-active effect of the drug that does this. Whilst smoking is the most potent form of use, it appears that eating and drinking have similar effects. The appellant stresses in his affidavit that children are not entitled to smoke cannabis, but that “[a] mature youth could be introduced to the holy herb in a noninvasive form such as tea [which does not have any psycho-active component in small quantities] or in food in the most minute of quantities on special occasions and under parental supervision.” Whether the inhalation of the smoke from the burning of cannabis as incense would have a similar effect is not mentioned in the evidence. But unless it does, it would not induce the state of mind necessary for meditation and communication. [] Moreover, the disputed legislation, consistent with the international protocol, is not formulated so as to penalize only the harmful use of cannabis, as is the case with legislation dealing with liquor. It seeks to prohibit the very possession of cannabis, for this is obviously the most effective way of policing the trade in and use of the drug. This method of control was not disputed save for the religious exemption sought. The question is therefore not whether the non-invasive use of cannabis for religious purposes will cause harm to the users, but whether permission given to Rastafari to possess cannabis will undermine the general prohibition against such possession. We hold that it will. JUSTICE SACHS [] [. . .] Intolerance may come in many forms. At its most spectacular and destructive it involves the use of power to crush beliefs and practices considered alien and

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threatening. At its more benign it may operate through a set of rigid mainstream norms that do not permit the possibility of alternative forms of conduct. The case before us by no means raises questions of aggressive targeting. The laws criminalizing the use of dagga were not directed at the Rastafari nor were they intended expressly to interfere with their religious observance. Although they appear to be neutral statutes of general application they impact severely, though incidentally, on Rastafari religious practices. Their effect is accordingly said to be the same as if central Rastafari practices were singled out for prohibition. The Rastafari claim that as a religious community they are subject to suppression by the implacable reach of the measures, and as individual believers they are driven to a constitutionally intolerable choice between their faith and the law. Through a test case brought by Mr. Prince, law graduate, aspirant attorney, and appellant in this matter, a number of them approach this court for relief. [] In my opinion, the judgment of Justice Ngcobo convincingly shows that appropriate balancing and application of the principle of reasonable accommodation would allow for protection to be given to core sacramental aspects of Rastafari belief and practice without unduly impacting upon the broader campaign against harmful drugs. The most useful approach would appear to involve developing an imaginary continuum, starting with easily controllable and manifestly religious use at the one end, and ending with difficult-to-police utilization that is barely distinguishable from ordinary recreational use, at the other. The example given by Justice Ngcobo of officially recognized Rastafari dignitaries receiving dagga from state officials for the burning of incense at tabernacles on sacramental occasions would be at the easily controllable and manifestly religious starting point. Such a narrow and closely defined exemption would be subject to manageable state supervision, and would be understood publicly as being intensely and directly related to religious use. One step further along would be to allow designated priests to receive dagga for sacramental use, including smoking of a handed-round chalice, at designated places on designated occasions. This too could be easily supervised and be readily appreciated by the public as being analogous to religion as widely practiced; indeed, I cannot imagine that any reasonable balancing of the respective interests of the Rastafari and of the state could provide for less. At the other end of the continuum would be the granting of everything that the appellant asks for, including the free use of dagga in the privacy of Rastafari homes. Such use would be extremely difficult to police and would completely blur the distinction in the public mind between smoking for purposes of religion and recreational smoking. It would be for Parliament to work out the best means of securing the operational exemption to which the Rastafari are constitutionally entitled. The result might fall far short of what the Rastafari initially claimed, but at least would cast a flicker of constitutional light into the murky moral catacombs in which they exist and secure to them a modest but meaningful measure of dignity and recognition. The fact that they cannot be given all that they ask for is not a reason for giving them nothing at all.

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[] As I see it, the real difference between the majority judgment and that of Justice Ngcobo relates to how much trouble each feels it is appropriate to expect the state to go to in order to accommodate the religious convictions and practices of what in this case is a rather small and not very popular religious community. I align myself with the position that where there are practices that might fall within a general legal prohibition, but that do not involve any violation of the Bill of Rights, the Constitution obliges the state to walk the extra mile. I accordingly agree with the general approach adopted by Justice Ngcobo and wish merely to add some observations of a general kind to his meticulous and sensitive analysis of the issues.

The South African Context in which the Balancing Exercise Must Be Undertaken [] In Christian Education and Prince  this court emphasized the importance of contextualizing the balancing exercise required by section  of the Constitution. Such contextualization reminds us that although notional and conceptual in character, the weighing of the respective interests at stake does not take place on weightless scales of pure logic pivoted on a friction-free fulcrum of abstract rationality. The balancing has always to be done in the context of a lived and experienced historical, sociological and imaginative reality. Even if for purposes of making its judgment the court is obliged to classify issues in conceptual terms and abstract itself from such reality, it functions with materials drawn from that reality and has to take account of the impact of its judgments on persons living within that reality. Moreover, the court itself is part of that reality and must engage in a complex process of simultaneously detaching itself from and engaging with it. I believe that in the present matter, history, imagination, and mind-set play a particularly significant role, especially with regard to the weight to be given to the various factors in the scales. To begin with, the very problem that is under consideration has to be located in the vast experiential dimensions of faith. As this court has stated: The right to believe or not to believe, and to act or not to act according to his or her beliefs or nonbeliefs, is one of the key ingredients of any person’s dignity. Yet freedom of religion goes beyond protecting the inviolability of the individual conscience. For many believers, their relationship with God or creation is central to all their activities. It concerns their capacity to relate in an intensely meaningful fashion to their sense of themselves, their community and their universe. For millions in all walks of life, religion provides support and nurture and a framework for individual and social stability and growth. Religious belief has the capacity to awake concepts of self-worth and human dignity, which form the cornerstone of human rights. It affects the believer’s view of society and founds the distinction between right and wrong. It expresses itself in the affirmation and continuity of powerful traditions that frequently have an ancient character transcending historical epochs and national boundaries.

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Legal Cases (–)

[] The Rastafari faith is of relatively recent origin, but it transcends national boundaries and is deeply rooted in the experience of a vast African diaspora. Dagga is an herb that grew wild in Africa and was freely imbibed in the precolonial period. Its use in the diaspora today is seen as reestablishing a ruptured Afro-centered mystical communion with the universe. The papers before us indicate that “[a]s the dominant culture tried to use the Bible to claim the black man was a ‘beast of burden’ so the Rasta expressed his place in Africa and that the use of the herb was grounded in biblical redemption and deliverance.” South African Rastafari find themselves in the peculiar position of being a diaspora of the diaspora, physically on African soil but as reliant as their brethren abroad on the use of dagga as the instrument for achieving an Afro-centered religious connection with creation. Prohibit the use of dagga, and the mystical connection is destroyed. The affidavit by Prof. Yawney highlights the centrality of dagga-use to the practice of the Rastafari religion. She states that: For Rastafari, cannabis or holy herbs, commonly known in Jamaica as ganja, is a sacred God-given plant to be used for healing of the nation. Its consumption is central to Rastafari spiritual practice . . . In keeping with the practice of knowing Jah! Rastafari as God directly for oneself, the ingestion of herbs encourages inspiration and insight through the process of sudden illumination. Sociologists would call this a visionary state characterized by the experience of oneness or interconnectedness.

The sense of African spiritual identity which pervades the whole Rastafari world view and is outwardly manifested by the growing of dreadlocks, and the associated sacramental communion achieved through the use of the “holy herb,” is accordingly crushed by the total prohibition of dagga-use. [] [. . .] A retreat on the tiny front of sacramental use by Rastafari of indigenous and long-used dagga might make little if any difference to prosecution of the major battles against cartels importing heroin, cocaine, and mandrax. Indeed the “war on drugs” might be better served if instead of seeking out and apprehending Rastafari whose otherworldly use of dagga renders them particularly harmless rather than harmful or harmed, such resources were dedicated to the prohibition of manifestly harmful drugs. [] The search for an appropriate accommodation in this frontier legal territory accordingly imposes a particularly heavy responsibility on the courts to be sensitive to considerations of institutional competence and the separation of powers. Undue judicial adventurism can be as damaging as excessive judicial timidity. On the one hand, there is the temptation to proffer an overvaliant lance in defense of an underprotected group without paying regard to the real difficulties facing law-enforcement agencies. On the other, there is the tendency somnambulistically to sustain the existing system of administration of justice and the mind-set that goes with it, simply

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Prince

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because, like Everest, it is there; in the words of Chief Justice Burger, it is necessary to be aware of “requirements of contemporary society exerting a hydraulic insistence on conformity to majoritarian standards” [Wisconsin v. Yoder  US  () at ]. Both extremes need to be avoided. [] The hydraulic insistence on conformity could have a particularly negative impact on the Rastafari, who are easily identifiable, subject to prejudice and politically powerless, indeed, precisely the kind of discrete and insular minority whose interests courts abroad and in this country have come jealously to protect. As Justice Ackermann said [in National Coalition for Gay and Lesbian Equality v. Minister of Justice  () SA  (CC) ( () BCLR )] in dealing with the analogous situation in which gays and lesbians found themselves: The impact of discrimination on [them] is rendered more serious and their vulnerability increased by the fact that they are a political minority not able on their own to use political power to secure favorable legislation for themselves. They are accordingly almost exclusively reliant on the Bill of Rights for their protection.

In equal measure, because they are politically powerless and unable to secure their position by means of a legislative exemption, the Rastafari are compelled to litigate to invoke their constitutional rights. They experience life as a marginalized group seen to dress and behave strangely, living on the outer reaches rather than in the mainstream of public life. This court has accepted that: “to understand the ‘other’ one must try, as far as is humanly possible, to place oneself in the position of the ‘other.’ ” The experience of “otherness” was expressed by one Rastafari in the following terms: A great deal of misinformation has been spread in order to turn the world against the blessed Rastas. The law criminalizes ganja, the preacher demonizes it, politicians depopularize it, doctors give serious warning against it and the whole world is made to believe that ganja smoking is far worse than cigarette smoking. Today we see numerous people dying from lung cancer because of cigarette smoking and the concomitant nicotine that is known to be deadly. Fights associated with drunkenness are so many they have become a normal way of living nowadays. However, we never see people fussing and fighting when they burn ganja.

[] The Rastafari are not unique as a religious group having had to fight against incomprehension and prejudice when seeking protected space for their religious practices in South Africa. Chidester points to the difficulties that all the major nonProtestant religions have encountered:

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Legal Cases (–)

Religious traditions with sacred centers outside of the geographical boundaries of [S]outhern Africa have struggled to establish a place in the region . . . [W]hether in Rome, Mecca, Benares ,or Jerusalem, these religious traditions recentered themselves in the South African context. However, their efforts to find a place in South Africa have often come into conflict with the laws of the land. An important part of the story of religious pluralism in South Africa, therefore, has been the history of legal conflicts in which religious pluralism has been suppressed by the force of law.

In some cases the new religions were deliberately combatted. In others, their implantation and development in South Africa were hindered by apparently neutral measures of general application said to be in the public interest. At times the conflict erupted into the streets. Chidester points out that religious conflict in Cape Town during the nineteenth century erupted over sanitation programs, medical care, and public health measures. Muslims refused to have their bodies punctured by vaccination or to be confined in an isolation hospital, cut off from family, visits by religious leaders, access to halaal foods, or permission to perform Muslim burial rites. The ideology of sanitation came to pervade the imaginations of Cape Town municipal authorities and the middle class in the nineteenth century, just as the vision of an orderly, dagga-free world in which the poorer sections of the community knew their place, began to dominate legislative thinking in the twentieth [century]. [] One cannot imagine in South Africa today any legislative authority passing or sustaining laws which suppressed central beliefs and practices of Christianity, Islam, Hinduism, and Judaism. These are well-organized religions, capable of mounting strong lobbies and in a position materially to affect the outcome of elections. They are not driven to seek constitutional protection from the courts. A threat to the freedom of one would be seen as a threat to the freedom of all. The Rastafari, on the other hand, are not only in conflict with the public authorities, they are isolated from mainstream religious groups. Inter-denominational solidarity in relation to what would be seen as the distinctly odd practices of the provocative and nonrecognized Rastafari religion would be more likely to express itself as a commonality of opposition than as a concentration of support. Indeed, the Rastafari might receive more tolerance from nonbelievers to whom all religions are equally strange, than from members of well-established confessions, who might have difficulty in taking the Rastafari belief system seriously as a religion at all. [] Part of the problem lies in the fact that, as has historically been the case with many nonconformist or dissident religions, Rastafari identify themselves by their withdrawal from and opposition to what they regard as the corrupt temporal and spiritual power of Babylon. If pressed to an extreme, no accommodation between the “allegedly corrupt” state and the “manifestly defiant” religious dissident would be possible. The balancing which our Constitution requires, however, avoids polarized positions and calls for a reasonable measure of give and take from all sides.

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Prince

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[] In the present matter certain Rastafari, through the agency of Mr. Prince, have approached the courts for relief. To that extent they have accommodated themselves to the institutions of the state. They have presented their arguments with dignity, if not always with consistency or precision. A feature of the relationship between themselves and the state is its arms-length and antagonistic character. The Rastafari have been disdainful of those whom they consider to be agents of Babylon. For its part, the state has adopted a position of generalized hostility towards a group who draw attention to themselves with their dreadlocks and dress, declare their intention to defy the law, and then complain when they are arrested. In answer to a question from the Bench, counsel for the Attorney General indicated that he was not aware of any attempt having been made to contact any Rastafari to see if a reasonable exemption could be worked out with them. I believe that the bringing of court proceedings to determine the constitutional rights of Rastafari represents an important step in the process of accommodation and mutual recognition. [] There would appear to be many ways in which decriminalization of the possession and use of dagga in small quantities by Rastafari for sacramental purposes could be achieved in South Africa. They could include a legislative amendment of the substantive offence to create an express religious exemption; use of the powers under the Medicines Act to grant permits to Rastafari priests to possess and use dagga for sacramental purposes; or a legislatively authorized direction to prosecuting authorities to use their discretion not to prosecute the possession and use of dagga for sacramental purposes. The particular choice would fall appropriately within the discretion of Parliament, which would have the opportunity of receiving input from all the interested parties, including the Rastafari, in working out the terms of an operational exemption which would cure the overbreadth in the legislation as established in the judgment of Justice Ngcobo.

Conclusion [] In conclusion I wish to say that this case illustrates why the principle of reasonable accommodation is so important. The appellant has shown himself to be a person of principle, willing to sacrifice his career and material interests in pursuance of his beliefs. An inflexible application of the law that compels him to choose between his conscience and his career threatens to impoverish not only himself but all of South Africa and to dilute its burgeoning vision of an open democracy. Given our dictatorial past in which those in power sought incessantly to command the behavior, beliefs, and taste of all in society, it is no accident that the right to be different has emerged as one of the most treasured aspects of our new constitutional order. Some problems might by their very nature contain intractable elements. Thus, no amount of formal constitutional analysis can in itself resolve the problem of balancing matters of faith against matters of public interest. Yet faith and public interest overlap and intertwine in the need to protect tolerance as a constitutional virtue and respect for diversity and openness as a constitutional principle. Religious tolerance

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Legal Cases (–)

is accordingly not only important to those individuals who are saved from having to make excruciating choices between their beliefs and the law. It is deeply meaningful to all of us because religion and belief matter, and because living in an open society matters. [] The central issue in this case has accordingly not been whether or not we approve or disapprove of the use of dagga, or whether we are believers or nonbelievers, or followers of this particular denomination or that. Indeed, in the present case the clarion call of tolerance could resonate with particular force for those of us who may in fact be quite puritan about the use of dagga and who, though respectful of all faiths, might not be adherents of any religion at all, let alone sympathetic to the tenets of Rastafari belief and practice. The call echoes for all who see reasonable accommodation of difference not simply as a matter of astute jurisprudential technique which facilitates settlement of disputes, but as a question of principle central to the whole constitutional enterprise. In Christian Education this court held that a number of provisions in the Constitution affirmed the right of people to be who they [were] without being forced to subordinate themselves to the cultural and religious norms of others, and highlight the importance of individuals and communities being able to enjoy what has been called the “right to be different.” In each case, space [had] been found for members of communities to depart from a general norm. These provisions collectively and separately acknowledged the rich tapestry constituted by civil society, indicating in particular that language, culture and religion constitute a strong weave in the overall pattern.

The court went on to say: It might well be that in the envisaged pluralistic society members of large groups can more easily rely on the legislative process than can those belonging to smaller ones, so that the latter might be specially reliant on constitutional protection, particularly if they express their beliefs in a way that the majority regard as unusual, bizarre or even threatening. Nevertheless, the interest protected by section  is not a statistical one dependent on a counter-balancing of numbers, but a qualitative one based on respect for diversity.

[] The above passage is directly relevant to the situation in which the Rastafari find themselves. The test of tolerance as envisaged by the Bill of Rights comes not in accepting what is familiar and easily accommodated, but in giving reasonable space to what is “unusual, bizarre, or even threatening.”

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Islamic Unity Convention

Islamic Unity Convention v. Independent Broadcasting Authority and Others  () SA  (CC) CASE SUMMARY

Facts Clause (a) of the Code of Conduct for Broadcasting Services (the Code) contained in Schedule  to the Independent Broadcasting Authority Act  of  provided that broadcasting licensees shall . . . not broadcast any material which is indecent or obscene or offensive to public morals or offensive to the religious convictions or feelings of any section of the population or likely to prejudice the safety of the state or the public order or relations between sections of the population.

The Islamic Unity Convention ran a community radio station that aired an interview with a historian and author who, during the interview, made statements denying that any Jews were gassed in concentration camps during World War II and suggested that the “myth of the Holocaust” was purely designed to legitimate the creation of the state of Israel. The South African Jewish Board of Deputies lodged a formal complaint in terms of clause (a) of the Code.

Legal History The relief sought in the High Court was twofold: an order declaring clause (a) invalid because it infringed the right to freedom of expression; and an order reviewing

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Legal Cases (–)

the decision to proceed with a formal hearing of the complaint. The High Court found that the procedure was fatally flawed and therefore set aside the decision to proceed with the complaint. Given this outcome the court found it unnecessary to decide the constitutionality of clause (a). The applicant then applied for leave to appeal directly to the Constitutional Court against the decision of the High Court not to deal with the constitutionality of clause (a).

Issues Does a prohibition on broadcasting material that is “indecent or obscene or offensive to public morals or offensive to the religious convictions or feelings of any section of the population or likely to prejudice the safety of the state or the public order or relations between sections of the population” unjustifiably limit the right to freedom of expression? Decision of the Constitutional Court Writing for a unanimous court, Deputy Chief Justice Langa reiterated the court’s earlier holdings that recognized both the freedom of expression and the right to dignity had to be account in such situations. The court went on to stress the bifurcated nature of section . All speech not left unprotected by section () remains protected by section (). Protected speech infringed by a law of general application and may only be proscribed if it satisfies the desiderata of the general limitations test in section . Again: speech that falls within the ambit of section () does not qualify for any constitutional protection. Outlawing hate speech and expression likely to violence is, the court noted, necessary to ensure the safety and the creation of a society based on dignity and equality (paragraph ). So while clause (a) prohibited hate speech, it also went far beyond the internal modifiers of section (). It prohibited all speech that might, for example, “prejudice relations between sections of the population.” Nothing in the language of section  ()(c) contemplated such broad restrictions. Clause (a) therefore had to be justified under section . The overbreadth of the clause was, ultimately, its downfall at the limitations stage. Deputy Chief Justice Langa held that much less restrictive means than clause (a) were available to protect the dignity of listeners. Order The court ordered that clause (a) should be read to prohibit only the speech left unprotected by section () of the Constitution. Comment Although the court invalidated the regulation, it did not decide whether Islamic Unity’s broadcast was in fact entitled to constitutional protection. Does denying the holocaust and questioning the legitimacy of the state of Israel impair the dignity of Jewish people? There is no doubt that the statement is offensive, but is offending

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someone the same as violating their dignity? Even if so, is that enough to justify banning speech? Also, are there not dignity interests on both sides of the equation: does the link between freedom and dignity imply that if I deny you the freedom to express your views, I impact on your dignity? If the broadcast does not impair anyone’s dignity, are there other reasons—perhaps the social disruption it will cause— to censor it? DEPUTY CHIEF JUSTICE LANGA

The Constitutional Issue [] [. . .] Although the matter has its origins in the complaint by the Board in respect of a specific broadcast, the function of this court in the present proceedings is to adjudicate on the question of the constitutionality of clause (a) of the Code in relation to that complaint as an abstract and objective one. The contents of the particular statement in respect of which the board complains are not relevant to the enquiry. What the court is concerned with is whether the provision on which the complaint was based is consistent with the right to freedom of expression in section  of the Constitution. [] Clause (a) provides that: Broadcasting licensees shall . . . not broadcast any material which is indecent or obscene or offensive to public morals or offensive to the religious convictions or feelings of any section of a population or likely to prejudice the safety of the state or the public order or relations between sections of the population.

[] In its written argument, the applicant’s attack was directed at the whole of clause (a) and criticized each prohibition, largely on the grounds of vagueness and overbreadth. It was contended that the whole clause was unconstitutional. The board’s approach to the constitutional challenge was that the clause is “internally severable” and that each of the individual prohibitions contained in it are severable from the other prohibitions in the clause. It argued that since its complaint was that the offending broadcast was “likely to prejudice relations between sections of the population,” only the last segment of the clause was implicated and should be subject to constitutional enquiry. When the matter was argued before this court, the applicant did not expressly abandon its position that clause (a) was unconstitutional in its entirety. However, faced with the board’s response, which confined itself to the defense of the one prohibition on which its complaint was based, applicant’s argument also concentrated on that issue. [] The complaint was based entirely on the portion of clause (a) that refers to material that is “likely to prejudice relations between sections of the population.” It is this part of the clause, therefore, that is the relevant portion for the purposes of

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Legal Cases (–)

this judgment. It is clear that the other prohibitions in clause (a) deal with complex and contentious issues which were not the focus of argument in this court. It would not be appropriate in the circumstances for the court to deal with the constitutionality of clause (a) on a broader basis than that required by the underlying dispute between the parties in this case. I proceed therefore to deal with the question whether the prohibition against the broadcasting of material that is “likely to prejudice relations between sections of the population” is a limitation of the right to freedom of expression.

Freedom of Expression [] Section  of the Constitution provides as follows: () Everyone has the right to freedom of expression, which includes— (a) freedom of the press and other media; (b) freedom to receive or impart information or ideas; (c) freedom of artistic creativity; and (d) academic freedom and freedom of scientific research. () The right in subsection () does not extend to— (a) propaganda for war; (b) incitement of imminent violence; or (c) advocacy of hatred that is based on race, ethnicity, gender, or religion, and that constitutes incitement to cause harm.

[] This court has held [in  () SA  (CC) ( () BCLR )] that freedom of expression is one of a “web of mutually supporting rights” in the Constitution. It is closely related to freedom of religion, belief and opinion (section ), the right to dignity (section ), as well as the right to freedom of association (section ), the right to vote and to stand for public office (section ), and the right to assembly (section ) . . . The rights implicitly recognize the importance, both for a democratic society and for individuals personally, of the ability to form and express opinions, whether individually or collectively, even where those views are controversial.

As to its relevance to a democratic state, the court has pointed out that freedom of expression lies at the heart of a democracy. It is valuable for many reasons, including its instrumental function as a guarantor of democracy, its implicit recognition and protection of the moral agency of individuals in our society and its facilitation of the search for truth by individuals and society generally. The Consti-

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tution recognizes that individuals in our society need to be able to hear, form, and express opinions and views freely on a wide range of matters.

and in S v. Mamabolo (E TV and Others Intervening) the following was said: Freedom of expression, especially when gauged in conjunction with its accompanying fundamental freedoms, is of the utmost importance in the kind of open and democratic society the Constitution has set as our aspirational norm. Having regard to our recent past of thought control, censorship and enforced conformity to governmental theories, freedom of expression—the free and open exchange of ideas—is no less important than it is in the United States of America. It could actually be contended with much force that the public interest in the open marketplace of ideas is all the more important to us in this country because our democracy is not yet firmly established and must feel its way. Therefore we should be particularly astute to outlaw any form of thought control, however respectably dressed.

[] Notwithstanding the fact that the right to freedom of expression and speech has always been recognized in the South African common law, we have recently emerged from a severely restrictive past where expression, especially political and artistic expression, was extensively circumscribed by various legislative enactments. The restrictions that were placed on expression were not only a denial of democracy itself, but also exacerbated the impact of the systemic violations of other fundamental human rights in South Africa. Those restrictions would be incompatible with South Africa’s present commitment to a society based on a “constitutionally protected culture of openness and democracy and universal human rights for South Africans of all ages, classes and colors.” As pointed out by Justice Kriegler in Mamabolo, freedom to speak one’s mind is now an inherent quality of the type of society contemplated by the Constitution as a whole and is specifically promoted by the freedoms of conscience, expression, assembly, association and political participation protected by sections – of the Bill of Rights.

[] South Africa is not alone in its recognition of the right to freedom of expression and its importance to a democratic society. The right has been described as “one of the essential foundations of a democratic society; one of the basic conditions for its progress and for the development of every one of its members.” As such it is protected in almost every international human rights instrument. In Handyside v. The United Kingdom [()  EHRR ] the European Court of Human Rights pointed out that this approach to the right to freedom of expression is

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Legal Cases (–)

applicable not only to “information” or “ideas” that are favorably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. . . . Such are the demands of that pluralism, tolerance and broadmindedness without which there is no “democratic society.”

[] The pluralism and broadmindedness that is central to an open and democratic society can, however, be undermined by speech which seriously threatens democratic pluralism itself. Section  of the Constitution declares that South Africa is founded on the values of “human dignity, the achievement of equality and the advancement of human rights and freedoms.” Thus, open and democratic societies permit reasonable proscription of activities and expressions that pose a real and substantial threat to such values and to the constitutional order itself. Many societies also accept limits on free speech in order to protect the fairness of trials. Speech of an inflammatory or unduly abusive kind may be restricted so as to guarantee free and fair elections in a tranquil atmosphere. [] There is thus recognition of the potential that expression has to impair the exercise and enjoyment of other important rights, such as the right to dignity, as well as other state interests, such as the pursuit of national unity and reconciliation. The right is accordingly not absolute; it is, like other rights, subject to limitation under section () of the Constitution. Determining its parameters in any given case is therefore important, particularly where its exercise might intersect with other interests. Thus in Mamabolo the following was said in the context of the hierarchical relationship between the rights to dignity and freedom of expression: With us the right to freedom of expression cannot be said automatically to trump the right to human dignity. The right to dignity is at least as worthy of protection as the right to freedom of expression. How these two rights are to be balanced, in principle and in any particular set of circumstances, is not a question that can or should be addressed here. What is clear though and must be stated, is that freedom of expression does not enjoy superior status in our law. [Footnote omitted.]

[] Section  is in two parts. Subsection () is concerned with expression that is protected under the Constitution. It is clear that any limitation of this category of expression must satisfy the requirements of the limitations clause to be constitutionally valid. Subsection () deals with expression that is specifically excluded from the protection of the right. [] How is section () to be interpreted? The words “[t]he right in subsection () does not extend to” imply that the categories of expression enumerated in section () are not to be regarded as constitutionally protected speech. Section () therefore defines the boundaries beyond which the right to freedom of expression does not extend. In that sense, the subsection is definitional. Implicit in its provisions

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is an acknowledgment that certain expression does not deserve constitutional protection because, among other things, it has the potential to impinge adversely on the dignity of others and cause harm. Our Constitution is founded on the principles of dignity, equal worth and freedom, and these objectives should be given effect to. [] Three categories of expression are enumerated in section (). They are expressed in specific and defined terms. Section ()(a) and (b) are respectively concerned with “propaganda for war” and “incitement of imminent violence.” Section ()(c) is directed at what is commonly referred to as hate speech. What is not protected by the Constitution is expression or speech that amounts to “advocacy of hatred” that is based on one or other of the listed grounds, namely race, ethnicity, gender or religion and which amounts to “incitement to cause harm.” There is no doubt that the state has a particular interest in regulating this type of expression because of the harm it may pose to the constitutionally mandated objective of building the nonracial and nonsexist society based on human dignity and the achievement of equality. There is accordingly no bar to the enactment of legislation that prohibits such expression. Any regulation of expression that falls within the categories enumerated in section () would not be a limitation of the right in section . [] Whilst, on the one hand, the categories of speech referred to in section ()(c), are carefully circumscribed, no such tailoring is evident in the relevant portion of clause (a). There is no doubt that each of the forms of expression listed in section () could produce the result envisaged in clause (a). Expression that makes propaganda for war (section ()(a)) may, depending on the circumstances, threaten relations between sections of the population, or produce a situation where these are likely to be prejudiced. The converse is not true, however. Not every expression or speech that is likely to prejudice relations between sections of the population would be “propaganda for war,” or “incitement of imminent violence” or “advocacy of hatred” that is not only based on race, ethnicity, gender or religion, but that also “constitutes incitement to cause harm.” There may well be instances where the prohibition in clause (a) coincides with what is excluded from the protection of the right. The real question though is whether the clause, in prohibiting that which is not excluded from the protection of section (), does so in a manner that is constitutionally impermissible. It is to that enquiry that I now turn.

The Justification Enquiry [] The responsibility for the regulation of broadcasting in South Africa stems from section  of the Constitution, which provides that “[n]ational legislation must establish an independent authority to regulate broadcasting in the public interest, and to ensure fairness and a diversity of views broadly representing South African society.” In fulfilling this regulatory function the broadcasting authority is bound to respect the provisions of the Bill of Rights while the legislation may limit the protected rights only as permitted by the Constitution. In the context of broadcasting, freedom of expression will have special relevance. It is in the public interest that

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people be free to speak their minds openly and robustly, and, in turn, to receive information, views, and ideas. It is also in the public interest that reasonable limitations be applied, provided that they are consistent with the Constitution. [] The relevant part of clause (a) prohibits licensees from broadcasting any material of the nature which it describes. Applicant has argued that the prohibition is unreasonable and unjustifiable and accordingly inconsistent with the Constitution. The board denies this and contends that, on a proper interpretation of the prohibition, the limitation is justifiable and therefore consistent with the Constitution. The board submitted that if the prohibition against the broadcasting of material “likely to prejudice relations between sections of the population” were given a narrow interpretation, it is reasonably capable of a meaning that renders it justifiable in terms of section (). [] In Investigating Directorate of Serious Economic Offences and Others v. Hyundai Motor Distributors (Pty) Ltd and Others: In Rre Hyundai Motor Distributors (Pty) Ltd and Others v. Smit NO and Others [ () SA  (CC) ( () BCLR )], this court held that, if there is an interpretation of the impugned provision that is reasonably capable of being read consistently with the Constitution, such interpretation should be adopted. The interpretation must, however, not be unduly strained. Furthermore, a balance must be struck between the duty of a judicial officer to interpret legislation in conformity with the Constitution insofar as it is reasonably possible, and the duty of the legislature to pass legislation that is reasonably clear and precise, enabling citizens to understand what is expected of them. The question in the present case is whether the relevant portion of clause (a) is capable of a meaning that is consistent with the Constitution, while at the same time being sufficiently clear and precise to enable the IBA (ICASA) and the BMCC to handle complaints in a consistent manner. [] The board’s suggestion is that the relevant part of the clause should be interpreted to mean that only broadcasts which will probably cause material damage to relations between readily identifiable sections of the population are hit by the proscription. In order to cause legally cognizable prejudice to relations between sections of society, so the argument goes, the broadcast must promote prejudice and stereotyping or the demonizing of a target victim group by violating their dignity in such a way that (a) other defined groups within society (as opposed to individuals) will be sufficiently moved by the stereotyping or demonizing to regard the target victim group with contempt or hatred or to inflict harm on that target victim group; and (b) the offensive content of the broadcast is viewed by the target victim group as being the collective responsibility of a different section of society (“the perpetrator group”) and not the work or responsibility merely of individuals, and is sufficiently offensive to a sufficient number of

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members of the target victim group that it moves them as a group, as opposed to individuals drawn from that group, to regard the perpetrator group with contempt or hatred or to want to inflict harm on that perpetrator group. [] Thus a breakdown of the phrase “likely to prejudice relations between sections of the population” would go something like this: “likely to prejudice” would be interpreted to refer to material that would “probably cause material damage” and “sections of the population” would be understood to refer to such sections as are identifiable on the basis of race, ethnicity, gender, and religion. According to the argument, “relations” would be used in the context of there being a target victim group on the one hand, and a defined perpetrator group on the other, whose expression moves other defined groups to demonize or stereotype the victim group, and the victim group must, in turn, blame the perpetrator group for this. [] It is obvious that the interpretation contended for would entail a complicated exercise of interpreting the very wide language of the relevant part of clause (a) in the light of the very concise and specific provisions of section ()(c). Whilst this process might assist in determining whether particular expression can be regarded as hate speech, I fail to see how its meaning can coincide with that of the impugned clause on any reasonable interpretation without being unduly strained. This segment of the clause is accordingly not reasonably capable of being read to give the meaning which is favored by the board. [] The next question to be considered is whether the provision is nevertheless justifiable despite its inability to be read in the way that the board suggests. The prohibition against the broadcasting of any material that is “likely to prejudice relations between sections of the population” is cast in absolute terms; no material that fits the description may be broadcast. The prohibition is so widely phrased and so farreaching that it would be difficult to know beforehand what is really prohibited or permitted. No intelligible standard has been provided to assist in the determination of the scope of the prohibition. It would deny both broadcasters and their audiences the right to hear, form, and freely express and disseminate their opinions and views on a wide range of subjects. The wide ambit of this prohibition may also impinge on other rights, such as the exercise and enjoyment of the right to freedom of religion, belief and opinion guaranteed in section  of the Constitution. [] The board has submitted that the limitation of the right to freedom of expression may be justifiable in the interests of human dignity and equality, which are founding values of the Constitution, and national unity, which is an important and legitimate state objective. It is indeed true that the appropriate regulation of broadcasting by the government and its organs, in the public interest, serves an important and legitimate purpose in a democratic society, particularly in view of the constitutional duty to put such regulation in place. This is because of the critical need for the South African community, to promote and protect human dignity,

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equality, freedom, the healing of the divisions of the past, and the building of a united society. South African society is diverse and has for many centuries been sorely divided, not least through laws and practices which encouraged hatred and fear. Expression that advocates hatred and stereotyping of people on the basis of immutable characteristics is particularly harmful to the achievement of these values as it reinforces and perpetuates patterns of discrimination and inequality. Left unregulated, such expression has the potential to perpetuate the negative aspects of our past and further divide our society. The Constitution accordingly demands that regulation should “ensure fairness and a diversity of views broadly representing South African society,” a mandate that is hardly surprising in a country still riddled with a legacy of inequalities, and in which not all have equal access to and control of resources, including the electronic media. [] The purpose behind the regulation of broadcasting in South Africa, as expressed in the preamble to the Code, is that “the freedom of all broadcasting licensees is indivisible from and subject to the same restraints as those relevant to the individual person, and is founded on the individual’s fundamental right to be informed and to freely receive and disseminate opinions.” That purpose is undermined by the prohibition insofar as it inhibits the right to “freedom to receive or impart information or ideas.” [] The effect of the limitation in this case is substantial, affecting as it does the right of broadcasters to communicate and that of the public to receive information, views and opinions. Could less restrictive means have been used to achieve the purpose of the regulation in this instance? Without prejudging the constitutionality of the IBA proposals in the position paper, it is clear that they are much less invasive of the right to freedom of expression and there is nothing to indicate that they would be any less effective in achieving the purpose of regulation.

Conclusion of Justification Enquiry [] There is no doubt that the inroads on the right to freedom of expression made by the prohibition on which the complaint is based are far too extensive and outweigh the factors considered by the board as ameliorating their impact. As already stated, no grounds of justification have been advanced by the IBA and the minister for such a serious infraction of the right guaranteed by section () of the Constitution. It has also not been shown that the very real need to protect dignity, equality, and the development of national unity could not be served adequately by the enactment of a provision that is appropriately tailored and more narrowly focused. I find therefore that the relevant portion of clause (a) impermissibly limits the right to freedom of expression and is accordingly unconstitutional. Relief [] Section () requires that when a court decides a constitutional matter within its power, it

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(a) must declare that any law or conduct that is inconsistent with the Constitution is invalid to the extent of its inconsistency; and (b) may make any order that is just and equitable, including— (i) an order limiting the retrospective effect of the declaration of invalidity; and (ii) an order suspending the declaration of invalidity for any period and on any conditions, to allow the competent authority to correct the defect.

[] Various considerations come into play in deciding on an appropriate order. On the one hand, there is recognition of the importance of regulation in the public interest. The implications of striking down the impugned provision for government and for the public interest must be assessed, as well as the time it will take for Parliament to come up with new legislation. On the other hand, there is the need for this court to fulfill a judicial and not a legislative role, while at the same time ensuring that as far as possible the relief protects freedom of expression as enshrined in the Constitution. [] Various forms of relief were suggested in the course of argument. These include severance, notional severance and the striking down of the relevant portion of clause (a) with nothing put in its place. Another suggestion by the board was the suspension of a declaration of invalidity for twelve months to enable Parliament to enact appropriate legislation. I have considered each submission in the light of what would be appropriate relief in the circumstances of this case. [] I consider that an order that is just and equitable would be a notional severance formulated so as to ensure that the relevant part of clause (a) is rendered ineffective in its application to protected expression, but that a prohibition is left in place to prevent the broadcasting of unprotected expression as referred to in section () of the Constitution. Such an approach would meet the concerns of the applicant, address the legitimate concerns raised by the board about protecting people’s dignity and the values of equality and national unity, while at the same time ensuring that the requirements of the Constitution are met. It will be open to the legislature to decide to keep regulation at this minimal level or to regulate further subject to the provisions of section ().

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Khumalo

Khumalo and Others v. Holomisa  () SA  (CC) CASE SUMMARY

Facts Bantu Holomisa, the leader of the United Democratic Movement, sued the Sunday World over an article that alleged that Mr. Holomisa was involved with a gang of bank robbers and under police investigation for his involvement.

Legal History In the High Court, the Sunday World averred, by way of exception, that because the contents of the article “were matters in the public interest” and that the respondent had failed “to allege in his particulars of claim that the article was” false, Mr. Holomisa had failed to satisfy the requirements for a cause of action in defamation. The High Court dismissed the applicant’s exception on the grounds that it was bound by the Supreme Court of Appeal’s decision in National Media Ltd. v. Bogoshi. Issues The issue that seized the Constitutional Court was whether the common law rule that a claimant in a defamation case did not have to plead the falsity of the defamatory statement unjustifiably infringed the right to freedom of expression.

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Decision of the Constitutional Court Given that there could be no appeal to the Supreme Court of Appeal in terms of a dismissal of an exception, the applicants had no choice but to seek leave to appeal to the Constitutional Court. To succeed the applicants had to show that the common-law rules of defamation as they stood post-Bogoshi violated the Constitution. The applicants relied primarily on section , the right to freedom of expression. In the alternative, the applicants relied upon section (), which requires the court to develop the common law in light of the “spirit, purport and objects of the Bill of Rights.” Either way, asserted the applicants, the role of the mass media in an open and democratic society vindicated their position that the current law of defamation had to be altered. The Constitutional Court rejected the applicants’ claims. While noting the value of a robust exchange of ideas in any democracy, the court found that the Constitution’s commitment to human dignity—and thus to self-worth and reputation—was of greater import. The Khumalo court held that the defense of reasonableness developed in Bogoshi, rather than a requirement that the plaintiffs prove an allegedly defamatory statement false, better struck the desired balance between these competing interests. JUSTICE O’REGAN [] [. . .] At common law, the elements of the delict of defamation are: (a) (b) (c) (d) (e)

the wrongful and intentional publication of a defamatory statement concerning the plaintiff.

It is not an element of the delict in common law that the statement be false. Once a plaintiff establishes that a defendant has published a defamatory statement concerning the plaintiff, it is presumed that the publication was both unlawful and intentional. A defendant wishing to avoid liability for defamation must then raise a defense that rebuts unlawfulness or intention. Although not a closed list, the most commonly raised defenses to rebut unlawfulness are that the publication was true and in the public benefit; that the publication constituted fair comment and that the publication was made on a privileged occasion. Most recently, a fourth defense rebutting unlawfulness was adopted by the Supreme Court of Appeal in National Media Ltd. and Others v. Bogoshi. In that case Acting Justice Hefer, after a careful analysis of the development of a similar defense in Australia, England, and the Netherlands, held that: the publication in the press of false defamatory allegations of fact will not be regarded as unlawful if, upon a consideration of all the circumstances of the

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case, it is found to have been reasonable to publish the particular facts in the particular way and at the particular time.

In considering the reasonableness of the publication account must obviously be taken of the nature, extent, and tone of the allegations. We know, for instance, that greater latitude is usually allowed in respect of political discussion (Pienaar and Another v. Argus Printing and Publishing Co. Ltd.  () SA  (W) at C–E), and that the tone in which a newspaper article is written, or the way in which it is presented, sometimes provides additional, and perhaps unnecessary, sting. What will also figure prominently is the nature of the information on which the allegations were based and the reliability of their source, as well as the steps taken to verify the information. Ultimately there can be no justification for the publication of untruths, and members of the press should not be left with the impression that they have a license to lower the standards of care, which must be observed before defamatory matter is published in a newspaper (at G–A). [] This fourth defense for rebutting unlawfulness, therefore, allows media defendants to establish that the publication of a defamatory statement, albeit false, was nevertheless reasonable in all the circumstances. [] In Bogoshi, too, the question of the rebuttal of intention was considered. One of the aspects of animus injuriandi (the intention to cause injury) is subjective intent, which, amongst other things, requires the person who made the defamatory statement to have been “conscious of the wrongful character of his act.” In  the Appellate Division held that the mass media could not avoid liability for the publication of a defamatory statement by relying on a defense that the publication was not intentionally injurious. The effect of this decision was to impose strict liability upon the media for the unlawful publication of defamatory material. In Bogoshi the Supreme Court of Appeal overruled this decision. Acting Justice Hefer held that the court in the Pakendorf case had failed to recognize the importance of freedom of expression and, in particular, the important role the mass media perform in a democratic society. He concluded that: If we recognize, as we must, the democratic imperative that the common good is best served by the free flow of information and the task of the media in the process, it must be clear that strict liability cannot be defended and should have been rejected in Pakendorf. (At .)

Acting Justice Hefer then considered whether media defendants should be permitted to rebut the presumption of intentional harm by establishing a lack of knowledge of wrongfulness, even where that lack of knowledge was as a result of the negligence of the defendant. He concluded that they should not, reasoning as follows: If media defendants were to be permitted to do so, it would obviously make nonsense of the approach, which I have indicated to the lawfulness of the

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publication of defamatory untruths. In practical terms (because intoxication, insanity, provocation and jest could hardly arise in the present context) the defense of the lack of animus injuriandi is concerned with ignorance or mistake on the part of the defendant regarding one or other element of the delict . . . The indicated approach is intended to cater for ignorance and mistake at the level of lawfulness; and in a given case negligence on the defendant’s part may well be determinative of the legality of the publication. In such a case a defense of absence of animus injuriandi can plainly not be available to the defendant. Defendants’ counsel, rightly in my view, accepted that there are compelling reasons for holding that the media should not be treated on the same footing as ordinary members of the public by permitting them to rely on the absence of animus injuriandi, and that it would be appropriate to hold media defendants liable unless they were not negligent in the circumstances of the case. (At C–F.)

Acting Justice Hefer therefore concluded that media defendants could not escape liability merely by establishing an absence of knowledge of unlawfulness. They would in addition have to establish that they were not negligent.

Freedom of Expression [] Having sketched the principles of the common law of defamation, it is now necessary to consider section  of the Constitution. It is this provision upon which the applicants rely to assert that the existing common-law rules are inconsistent with the Constitution. Section  provides that: () Everyone has the right to freedom of expression, which includes— (a) freedom of the press and other media; (b) freedom to receive or impart information or ideas; (c) freedom of artistic creativity; and (d) academic freedom and freedom of scientific research. () The right in subsection () does not extend to— (a) propaganda for war; (b) incitement of imminent violence; or (c) advocacy of hatred that is based on race, ethnicity, gender, or religion, and that constitutes incitement to cause harm.

The importance of the right of freedom of expression in a democracy has been acknowledged on many occasions by this court and other South African courts. Freedom of expression is integral to a democratic society for many reasons. It is con-

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stitutive of the dignity and autonomy of human beings. Moreover, without it, the ability of citizens to make responsible political decisions and to participate effectively in public life would be stifled. [] The print, broadcast, and electronic media have a particular role in the protection of freedom of expression in our society. Every citizen has the right to freedom of the press and the media and the right to receive information and ideas. The media are key agents in ensuring that these aspects of the right to freedom of information are respected. The ability of each citizen to be a responsible and effective member of our society depends upon the manner in which the media carry out their constitutional mandate. As Justice Deane stated in the High Court of Australia, “the freedom of the citizen to engage in significant political communication and discussion is largely dependent upon the freedom of the media.” The media thus rely on freedom of expression and must foster it. In this sense they are both bearers of rights and bearers of constitutional obligations in relation to freedom of expression. [] Furthermore, the media are important agents in ensuring that government is open, responsive, and accountable to the people as the founding values of our Constitution require. As Justice Joffe said in Government of the Republic of South Africa v. ‘Sunday Times’ Newspaper and Another  () SA  (T) at I–A: “It is the function of the press to ferret out corruption, dishonesty and graft wherever it may occur and to expose the perpetrators. The press must reveal dishonest maland inept administration . . . It must advance communication between the governed and those who govern.” [] In a democratic society, then, the mass media play a role of undeniable importance. They bear an obligation to provide citizens both with information and with a platform for the exchange of ideas which is crucial to the development of a democratic culture. As primary agents of the dissemination of information and ideas, they are, inevitably, extremely powerful institutions in a democracy and they have a constitutional duty to act with vigor, courage, integrity, and responsibility. The manner in which the media carry out their constitutional mandate will have a significant impact on the development of our democratic society. If the media are scrupulous and reliable in the performance of their constitutional obligations, they will invigorate and strengthen our fledgling democracy. If they vacillate in the performance of their duties, the constitutional goals will be imperiled. The Constitution thus asserts and protects the media in the performance of their obligations to the broader society, principally through the provisions of section . [] However, although freedom of expression is fundamental to our democratic society, it is not a paramount value. It must be construed in the context of the other values enshrined in our Constitution. In particular, the values of human dignity, freedom and equality.

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The Constitutional Value of Human Dignity [] It has long been recognized in democratic societies that the law of defamation lies at the intersection of the freedom of speech and the protection of reputation or good name. As Chief Justice Corbett said: I agree, and I firmly believe, that freedom of expression and of the press are potent and indispensable instruments for the creation and maintenance of a democratic society, but it is trite that such freedom is not, and cannot be permitted to be, totally unrestrained. The law does not allow the unjustified savaging of an individual’s reputation. The right of free expression enjoyed by all persons, including the press, must yield to the individual’s right, which is just as important, not to be unlawfully defamed. I emphasize the word “unlawfully” for, in striving to achieve an equitable balance between the right to speak your mind and the right not to be harmed by what another says about you, the law has devised a number of defenses, such as fair comment, justification (i.e. truth and public benefit) and privilege, which if successfully invoked render lawful the publication of matter which is prima facie defamatory.

Under our new constitutional order, the recognition and protection of human dignity is a foundational constitutional value. As this court held in Dawood and Another v. Minister of Home Affairs and Others; Shalabi and Another v. Minister of Home Affairs and Others; Thomas and Another v. Minister of Home Affairs and Others  () SA  (CC) ( () BCLR ) at paragraph : The value of dignity in our Constitutional framework cannot . . . 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.

[] In the context of the actio injuriarum, our common law has separated the causes of action for claims for injuries to reputation (fama) and dignitas. Dignitas concerns the individual’s own sense of self-worth, but included in the concept are a variety of personal rights including, for example, privacy. In our new constitutional order, no sharp line can be drawn between these injuries to personality rights. The value of human dignity in our Constitution is not only concerned with an individual’s sense of self-worth, but constitutes an affirmation of the worth of human beings in our society. It includes the intrinsic worth of human beings shared by all people as well as the individual reputation of each person built upon his or her own individual achievements. The value of human dignity in our Constitution therefore values both

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the personal sense of self-worth as well as the public’s estimation of the worth or value of an individual. It should also be noted that there is a close link between human dignity and privacy in our constitutional order. The right to privacy, entrenched in section  of the Constitution, recognizes that human beings have a right to a sphere of intimacy and autonomy that should be protected from invasion. This right serves to foster human dignity. No sharp lines then can be drawn between reputation, dignitas, and privacy in giving effect to the value of human dignity in our Constitution. No argument was addressed to this court on the relevance of the right to privacy to this case and I shall not consider it further. [] The law of defamation seeks to protect the legitimate interest individuals have in their reputation. To this end, therefore, it is one of the aspects of our law that supports the protection of the value of human dignity. When considering the constitutionality of the law of defamation, therefore, we need to ask whether an appropriate balance is struck between the protection of freedom of expression on the one hand, and the value of human dignity on the other.

“Horizontal Application” of Section  [] The applicants’ exception relies directly on section  of the Constitution, despite the fact that none of the parties to the defamation action is the state, or any organ of state. Section  of the Constitution provides that: () The Bill of Rights applies to all law, and binds the legislature, the executive, the judiciary, and all organs of state. () A provision of the Bill of Rights binds a natural or a juristic person if, and to the extent that, it is applicable, taking into account the nature of the right and the nature of any duty imposed by the right. () When applying a provision of the Bill of Rights to a natural or juristic person in terms of subsection (), a court— (a) in order to give effect to a right in the Bill, must apply, or if necessary develop, the common law to the extent that legislation does not give effect to that right; and (b) may develop rules of the common law to limit the right, provided that the limitation is in accordance with section ().

[] The applicants argued that because, in terms of section (), the Bill of Rights applies to all law and binds the judiciary, section  must be interpreted to have direct application to the common law of defamation. The applicants observed that in this regard the provisions of the  Constitution were distinguishable from the provisions of the Interim Constitution in which the provisions of the Bill of Rights were not directly binding on the judiciary. Accordingly, they argued that the conclusion of the majority of this court in Du Plessis and Others v. De Klerk and

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Another [ () SA  (CC) ( () BCLR )], that the right to freedom of expression in that Constitution could have no direct application in a defamation action to which the state was not a party, was no longer applicable. In that case, the court held that, although the Interim Constitution did not directly apply to the common law, the principles of common law would nevertheless have to be applied and developed by courts “with due regard to the spirit, purport and objects” of the Bill of Rights in that Constitution. [] The applicants’ argument cannot succeed. It is clear from section () and () of the Constitution that the Constitution distinguishes between two categories of persons and institutions bound by the Bill of Rights. Section () binds the legislature, executive, judiciary and all organs of state without qualification to the terms of the Bill of Rights. Section (), however, provides that natural and juristic persons shall be bound by provisions of the Bill of Rights “to the extent that, it is applicable, taking into account the nature of the right and the nature of any duty imposed by the right.” Once it has been determined that a natural person is bound by a particular provision of the Bill of Rights, section () then provides that a court must apply and, if necessary, develop the common law to the extent that legislation does not give effect to the right. Moreover, it provides that the rules of the common law may be developed so as to limit a right, as long as that limitation would be consistent with the provisions of s ()(b). [] Were the applicants’ argument to be correct, it would be hard to give a purpose to section () of the Constitution. For if the effect of section () and () read together were to be that the common law in all circumstances would fall within the direct application of the Constitution, section () would have no apparent purpose. We cannot adopt an interpretation that would render a provision of the Constitution to be without any apparent purpose. [] In this case, the applicants are members of the media who are expressly identified as bearers of constitutional rights to freedom of expression. There can be no doubt that the law of defamation does affect the right to freedom of expression. Given the intensity of the constitutional right in question, coupled with the potential invasion of that right which could be occasioned by persons other than the state or organs of state, it is clear that the right to freedom of expression is of direct horizontal application in this case as contemplated by section () of the Constitution. The first question we need then to determine is whether the common law of defamation unjustifiably limits that right. If it does, it will be necessary to develop the common law in the manner contemplated by section () of the Constitution. [] The next question is whether, to the extent that the common law does not require as an element of the delict of defamation in circumstances that a defamatory statement be false and leaves the question of truth to be raised only as an aspect of a defense, it is inconsistent with the Bill of Rights as directly applicable.

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Is the Common Law Inconsistent with the Constitution? [] The applicants argued that, to the extent that the common law of defamation does not require a plaintiff to allege and prove the falsity of a defamatory statement, it is inconsistent with the Constitution. There can be no doubt that the constitutional protection of freedom of expression has at best an attenuated interest in the publication of false statements. As Justice Cory observed in the Canadian case, Hill v. Church of Scientology of Toronto [()  DLR (th)  (SCC)]: False and injurious statements cannot enhance self-development. Nor can it ever be said that they lead to healthy participation in the affairs of the community. Indeed, they are detrimental to the advancement of these values and harmful to the interests of a free and democratic society.

Similarly, no person can argue a legitimate constitutional interest in maintaining a reputation based on a false foundation. [] To the extent, therefore, that the common law of defamation permits a plaintiff to recover damages for a defamatory statement without establishing the falsity of the defamatory statement, it does not directly protect a powerful constitutional freedom of expression interest for there is no powerful interest in falsehood. Nor does it provide necessary protection for the constitutional value of human dignity. For, in the main, a person’s interest in their reputation can only further constitutional values if that reputation is a true reflection of their character. [] However, the common-law delict of defamation does not disregard truth entirely. It remains relevant to the establishment of one of the defenses going to unlawfulness, that is, truth in the public benefit. The common law requires a defendant to establish, once a plaintiff has proved the publication of a defamatory statement affecting the plaintiff, that the publication was lawful because the contents of the statement were true and in the public benefit. The burden of proving truth thus falls on the defendant. [] The difficulty of proving the truth or otherwise of defamatory statements, and the common-law rule which lets the risk of the failure to establish truth lie on defendants, in the absence of a defense of reasonable publication, does cause “a chilling effect” on the publication of information. A publisher will think twice before publishing a defamatory statement where it may be difficult or impossible to prove the truth of that statement and where no other defense to defamation would be available. As Lord Keith said in Derbyshire County Council v. Times Newspapers [[]  All ER  (HL)]: What has been described as “the chilling effect” induced by the threat of civil actions for libel is very important. Quite often the facts that would justify a defamatory publication are known to be true, but admissible evidence capable of proving those facts is not available. This may prevent the publication of matters which it is very desirable to make public.

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Khumalo

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But this chilling effect is reduced considerably by the defense of reasonable publication established in the Bogoshi case. For it permits a publisher who is uncertain of proving the truth of a defamatory statement nevertheless to publish where he or she can establish that it is reasonable. [] In deciding whether the common law rule complained of by the applicants does indeed constitute an unjustifiable limitation of section  of the Constitution, sight must not be lost of other constitutional values and, in particular, the value of human dignity. To succeed, the applicants need to show that the balance struck by the common law, in excluding from the elements of the delict a requirement that the defamatory statement published be false, an appropriate balance has been struck between the freedom of expression, on the one hand, and the value of human dignity, on the other. [] Although the applicants are right when they contend that individuals can assert no strong constitutional interest in protecting their reputations against the publication of truthful but damaging statements, the applicants also cannot show that publishers have a strong constitutional speech interest in the publication of false material. At the heart of the constitutional dispute lies the difficulty of establishing the truth or falsehood of defamatory statements. Burdening either plaintiffs or defendants with the onus of proving a statement to be true or false, in circumstances where proof one way or the other is impossible, therefore results in a zerosum game. Either plaintiff will benefit from the difficulties of proof, as happened previously under common-law rules; or defendants will win, as the applicants propose. Such a zero-sum result, in whosoever’s favor, fits uneasily with the need to establish an appropriate constitutional balance between freedom of expression and human dignity. [] Were the Supreme Court of Appeal not to have developed the defense of reasonable publication in the Bogoshi case, a proper application of constitutional principle would have indeed required the development of our common law to avoid this result. However, the defense of reasonableness developed in that case does avoid a zero-sum result and strikes a balance between the constitutional interests of plaintiffs and defendants. It permits a publisher who can establish truth in the public benefit to do so and avoid liability. But if a publisher cannot establish the truth, or finds it disproportionately expensive or difficult to do so, the publisher may show that in all the circumstances the publication was reasonable. In determining whether publication was reasonable, a court will have regard to the individual’s interest in protecting his or her reputation in the context of the constitutional commitment to human dignity. It will also have regard to the individual’s interest in privacy. In that regard, there can be no doubt that persons in public office have a diminished right to privacy, though of course their right to dignity persists. It will also have regard to the crucial role played by the press in fostering a transparent and open democracy. The defense of reasonable publication avoids, therefore, a winner-takes-all result and establishes a proper balance between

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Legal Cases (–)

freedom of expression and the value of human dignity. Moreover, the defense of reasonable publication will encourage editors and journalists to act with due care and respect for the individual interest in human dignity prior to publishing defamatory material, without precluding them from publishing such material when it is reasonable to do so.

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Du Toit

Du Toit and Another v. Minister of Welfare and Population Development and Others (Lesbian and Gay Equality Project as Amicus Curiae)  () SA  (CC) CASE SUMMARY

Facts The applicants were a lesbian couple who had been in a life partnership since . They wished to adopt jointly two children. However, the relevant adoption legislation only allowed for heterosexual couples to adopt children jointly. The second applicant alone therefore became the adoptive parent of the children. Several years later the applicants brought an application in the Transvaal Provincial Division for an order declaring unconstitutional and invalid sections (a), (c), and () of the Child Care Act  of  and section () of the Guardianship Act  of  on the grounds that they prohibited homosexual couples from adopting children. The applicants argued that these provisions provided for the joint adoption and guardianship of children by married persons only, and therefore the rights to dignity and equality of members of a same-sex life partnership were infringed and the best interests of the child were not given paramount consideration as required by section () of the Constitution. This case came before the Constitutional Court some years prior to the extension of marriage to include same-sex couples.

Legal History The High Court found that the provisions of the two acts violated the Constitution and ordered the reading in of certain words into the impugned provisions so as to

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Legal Cases (–)

allow for joint adoption and guardianship of children by same-sex life partners. The applicants sought confirmation by the Constitutional Court of the High Court order. The respondents did not oppose confirmation.

Issues Do the statutes limiting joint adoption to heterosexual unjustifiably infringe the rights to dignity and equality of members of a same-sex life partnership and fail to give paramount consideration to the best interests of the child? Decision of the Constitutional Court In a unanimous judgment of Acting Justice Skweyiya (as he then was), the Court held that preventing children from being adopted jointly by same-sex couples who were otherwise eligible to be parents deprived those children of a loving and stable family life as required by section ()(b) of the Constitution. The provisions of the Child Care Act therefore failed to give paramount importance to the rights of the child and were inconsistent with the Constitution for that reason (paragraph ). These provisions also constituted unfair discrimination on the grounds of sexual orientation. The failure by section () of the Guardianship Act to allow same-sex couples to adopt children jointly infringed their right to dignity as it failed to recognize the equal worth of the applicants as parents (paragraph ). This provision was therefore also inconsistent with the Constitution. Acting Justice Skweyiya held that these limitations on the applicants’ rights and the best interests of the child were not justifiable. Order The court confirmed the order of the High Court permitting joint adoption. Comment The court held that the failure to permit same-sex couples to jointly adopt a child violated the rights to equality and dignity of the would-be adoptive parents and the principle that the best interests of a child are paramount. It was not argued, nor did the court consider, whether the legislation also violated the right to dignity of the child. Surely an adoptive child and adoptive parents share an interest, protected by the right to dignity, in having their relationship recognized by the law? Or is the right to dignity of a child already encapsulated in the principle of the paramountcy of the best interests of the child? ACTING JUSTICE SKWEYIYA

The Constitutional Context [] [. . .] Recognition of the fact that many children are not brought up by their biological parents is embodied in section ()(b) of our Constitution which guar-

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Du Toit

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antees a child’s right to “family care or parental care.” Family care includes care by the extended family of a child, which is an important feature of South African family life. It is clear from section ()(b) that the Constitution recognizes that family life is important to the well-being of all children. Adoption is a valuable way of affording children the benefits of family life that might not otherwise be available to them. [] The institutions of marriage and family are important social pillars that provide for security, support, and companionship between members of our society and play a pivotal role in the rearing of children. However, we must approach the issues in the present matter on the basis that family life as contemplated by the Constitution can be provided in different ways and that legal conceptions of the family and what constitutes family life should change as social practices and traditions change. I turn now to consider the constitutionality of the impugned provisions.

Paramountcy of the Child’s Best Interests [] The applicants submitted that the impugned provisions violate the “best interests” principle protected by section () of the Constitution. Section () of the Constitution states that “[a] child’s best interests are of paramount importance in every matter concerning the child.” In Minister of Welfare and Population Development v. Fitzpatrick and Others [ () SA  (CC) ( () BCLR )] Justice Goldstone observed that: Section () requires that a child’s best interests have paramount importance in every matter concerning the child. The plain meaning of the words clearly indicates that the reach of section () cannot be limited to the rights enumerated in section () and section () must be interpreted to extend beyond those provisions. It creates a right that is independent of those specified in section (). This interpretation is consistent with the manner in which section () was applied by this court in Fraser v. Naude and Others [ () SA  (CC) ( () BCLR )].

Both international law and the domestic law of many countries have affirmed the paramountcy of “the best interests of the child.” Similarly, section ()(c) of the Child Care Act, which sets the best interests standard for the adoption of a child, provides that: A children’s court to which application for an order of adoption is made . . . shall not grant the application unless it is satisfied— (a) that the proposed adoption will serve the interests and conduce to the welfare of the child.”

[] In their current form the impugned provisions exclude from their ambit potential joint adoptive parents who are unmarried, but who are partners in permanent

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same-sex life partnerships and who would otherwise meet the criteria set out in section  of the Child Care Act. Their exclusion surely defeats the very essence and social purpose of adoption which is to provide the stability, commitment, affection, and support important to a child’s development, which can be offered by suitably qualified persons. [] Excluding partners in same sex life partnerships from adopting children jointly where they would otherwise be suitable to do so in conflict with the principle enshrined in section () of the Constitution. It is clear from the evidence in this case that, even though persons such as the applicants are suitable to adopt children jointly and provide them with family care, they cannot do so. The impugned provisions of the Child Care Act thus deprive children of the possibility of a loving and stable family life as required by section ()(b) of the Constitution. This is a matter of particular concern given the social reality of the vast number of parentless children in our country. The provisions of the Child Care Act thus fail to accord paramountcy to the best interests of the children and I conclude that, in this regard, section (a) and (c) of the act are in conflict with section () of the Constitution.

Equality [] The argument advanced by the applicants in the High Court and in this court was that the impugned provisions, in effect, differentiate on the grounds of sexual orientation and marital status, both of which are listed grounds in section () of the Constitution. [] The High Court referred to the judgment of this court in Harksen v. Lane [NO and Others  () SA  (CC)], which comprehensively describes the three-stage test which is undertaken to determine whether a right has been infringed under the equality clause of the Constitution. [] In applying this test, the judge found that the impugned provisions unfairly differentiate between married persons and the applicants as same-sex life partners. He was satisfied that the omission of the words complained of in the Child Care Act was inconsistent with the Constitution and invalid to the extent of such inconsistency. [] I agree. The unfair effect of the discrimination is squarely founded on an intersection of the grounds upon which the applicants’ complaint is based: the applicants’ status as unmarried persons which currently precludes them from joint adoption of the siblings is inextricably linked to their sexual orientation. But for their sexual orientation, which precludes them from entering into a marriage, they fulfill the criteria that would otherwise make them eligible jointly to adopt children in terms of the impugned legislation. In this respect, then, the provisions of section (a) and (c) are in conflict with section () of the Constitution. Dignity [] The applicants further argued that their inability to adopt the siblings jointly amounts to a limitation of the first applicant’s right to human dignity in that the

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challenged provisions of the Child Care Act deny her due recognition and status as a parent of the siblings even though she has played a significant role in their upbringing. More significantly, the first applicant is said to be denied recognition as a parent even though she and the second applicant have lived together as a family and made a consensual and deliberate decision jointly to adopt the siblings and to support and rear them equally as co-parents. [] They submitted further that the nonrecognition of the first applicant as a parent, in the context of her relationship with the second applicant and their relationship with the siblings, perpetuates the fiction or myth of family homogeneity based on the one mother/one father model. It ignores developments that have taken place in the country, including the adoption of the Constitution. [] On the evidence presented in this case, the applicants constitute a stable, loving, and happy family. Yet the first applicant’s status as a parent of the siblings cannot be recognized. This failure by the law to recognize the value and worth of the first applicant as a parent to the siblings is demeaning. I accordingly hold that the impugned provisions limit the right of the first applicant to dignity.

The Guardianship Act [] As the applicants have succeeded in establishing that the provisions of the Child Care Act constitute an infringement of the rights protected by sections (), (), and  of the Constitution, so for the same reasons have they established that section () of the Guardianship Act constitutes an infringement of the Constitution. The provisions of the Guardianship Act are premised on the assumption that samesex life partners cannot be joint guardians of children. That assumption arises, in particular, from the provisions of section  of the Child Care Act. For the same reasons that section  is in conflict with the Constitution, then, section () of the Guardianship Act is. [] One of the considerations that could have been raised by the respondents to justify the constitutional limitations in issue relates to the procedures available for regulating and safeguarding the interests of children in the event of the termination or breakdown of the relationship between same-sex couples who may be joint adoptive parents. Same-sex couples are not immune to the breakdown of their relationships and at present the law does not make comprehensive or express provision either for the recognition or the dissolution of same-sex life partnerships, or the safeguarding of the interests of children in the event of such a breakdown. [] Important as a consideration like this is, I am satisfied that there are adequate mechanisms available for determining and protecting the best interests of minor children upon termination of a same-sex partnership in which the participants are joint adoptive parents. [] The curator ad litem, who supported the joint adoption by the applicants, argued in this court that the lacuna in the law regarding the protection of children upon termination of the same-sex partnerships could be cured by invoking some of

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the provisions meant for the protection of children upon divorce or separation of the child’s parents. In his report, the curator observed that an aggrieved parent could approach a High Court in terms of the provisions of section () of the Matrimonial Affairs Act  of , which allows applications for sole custody and/or guardianship in the event of a termination of the same-sex partnership. I am not persuaded that the Matrimonial Affairs Act can be read so as to achieve this result. It refers to an application by a “parent of a minor whose parents are divorced or are living apart,” and speaks of an order lapsing in circumstances where “the parents become reconciled and live together again as husband and wife.” [] There can be no doubt, however, that the aid of the High Courts could always be sought in their capacity as upper guardian of all minor children. Although it clearly would be preferable to have statutory guidelines and procedures governing the situation, there is no reason why existing procedures could not be used in appropriately adapted form. [] The absence of statutory regulation concerning the protection of children in cases where same-sex adoptive parents break up is not sufficient to render the limitations of the constitutional rights identified in this case justifiable. In the circumstances, then, I conclude that the limitations of the rights to equality, dignity and the paramountcy of the best interests of children in cases concerning them are not justifiable.

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Jordan

S v. Jordan and Others (Sex Workers Education and Advocacy Task Force and Others as Amici Curiae)  () SA  (CC) CASE SUMMARY

Facts The applicants—a brothel owner, a salaried employee of the brothel, and a prostitute—pleaded guilty in the Magistrates’ Court to contravening the Sexual Offences Act  of . Section ()(aA) of that act, made it an offence to have sex for reward. However, it only criminalized the act of prostitution and the maintaining of a brothel. It did not speak to the securing of a prostitute’s services by a customer. The appellants challenged the constitutionality of both these provisions on various grounds.

Legal History As the Magistrates’ Court had no power to declare the provisions of statutes invalid, the appellants accepted their conviction in the Magistrates’ Court and appealed to the High Court. The High Court found that section ()(aA) was inconsistent with the Constitution and declared it invalid. However it found that the provisions relating to the keeping of brothels were not unconstitutional. The declaration of invalidity was referred to the Constitutional Court for confirmation. Issues Two issues seized the court. Does the criminalization of prostitution—particularly where only the prostitute, but not the customer is targeted—violate the Interim

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Legal Cases (–)

Constitution? Does the criminalization of keeping a brothel violate the Interim Constitution? These two questions engaged a panoply of different rights: equality, dignity, freedom, and security of the person, privacy, and economic activity.

Decision of the Constitutional Court The court unanimously held that the criminalization of prostitution did not violate the rights to dignity, privacy, freedom, and security of the person or economic activity. Both the majority and minority judgments saw a qualitative difference between interference with sex for love and interference with sex for money. The first form of “interference” ostensibly impaired a person’s human dignity. The second form did not. Similarly, the court had little if any effect on the right to privacy. The court was also unanimous that the brothel-keeping provisions survived constitutional attack. However, the court split – on whether section ()(aA) violated the right to equality. Justice Ngcobo, writing for the majority, held that it did not. He said, firstly, that the prohibition in the Sexual Offences Act was gender-neutral and applied to both female and male prostitutes (paragraph ). Secondly, he found a qualitative difference between a person who sells sex and a person who buys sex. Moreover, the legislature had chosen to combat commercial sex by striking at the supplier rather than the customer (paragraph ). In any event, the customer in a transaction for the sale of sex was still guilty of a criminal offence: namely being an associate to the primary crime (paragraph ). The dissenting opinion of Justices O’Regan and Sachs concluded that section ()(aA) constituted indirect discrimination. An overwhelming number of prostitutes are women. The vast majority of patrons are men. The difference in stigma that accompanies the offence of prostitution—as opposed to mere “association”—perpetuates the kind of gender inequality that the Constitution seeks to eradicate. Order The appeal was dismissed. Comment The problem with both judgments is their rather blinkered understanding of the conditions of prostitution and an unreflective conservative view about sex. Justice Ngcobo writes: “The stigma that attaches to prostitutes attaches to them not by virtue of their gender, but by virtue of the conduct they engage in. . . . [B]y engaging in commercial sex work, prostitutes knowingly accept the risk of lowering their standing in the eyes of the community, thus undermining their status and becoming vulnerable” (paragraph ). In a similar vein, the dissenting judges held: Our Constitution values human dignity which inheres in various aspects of what it means to be a human being. One of these aspects is the fundamental dignity of the human body, which is not simply organic. Neither is it something to be commodified. Our Constitution requires that it be respected.

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Jordan

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. . . To the extent that the dignity of prostitutes is diminished, the diminution arises from the character of prostitution itself. The very nature of prostitution is the commodification of one’s body. . . . The very character of the work they undertake devalues the respect that the Constitution regards as inherent in the human body. (Paragraph )

But the reliance of both the majority and the minority on “commodification” does not work. Everybody who receives compensation for work—including Constitutional court judges—commodify their bodies.1 Moreover, both judgments rest upon views of individual autonomy—in the context of prostitution (and more generally)—that lack both philosophical and empirical purchase. JUSTICE NGCOBO

Introduction [] I have had the benefit of reading the joint judgment of Justices O’Regan and Sachs. I agree with the conclusion that the constitutional challenges based on human dignity, freedom of person, privacy, and economic activity must fail. But the reasons that persuade me to conclude that the challenge based on the right to economic activity and the right to privacy must fail differ in both their scope and emphasis from those advanced in the joint judgment. I also agree that the challenge to sections , (b), and (c) of the Sexual Offences Act  of  (the Act) must fail. However, I do not agree with the conclusion that section ()(aA) of the act discriminates unfairly against women and that it is thus inconsistent with the Interim Constitution (the Constitution of the Republic of South Africa Act  of ), as found by my colleagues.

Does Section ()(aA) Discriminate Unfairly Against Women? [] The central issue that was debated in this court is whether section ()(aA) discriminates unfairly against women. That debate turned largely upon the proper construction of section ()(aA). On behalf of the state it was contended that upon a proper construction the section strikes at both the prostitute and the customer and hence it is not discriminatory. The appellants and the amici contended that it strikes only at the prostitute and hence it is discriminatory. In my view, this matter can conveniently be approached on the footing that the section is directed at the prostitute only and not the customer. [] Penalizing the recipient of the reward only does not constitute unfair discrimination on the grounds of gender. The section penalizes “any person” who engages in sex for reward. The section clearly applies to male prostitutes as well as female prostitutes. The section is therefore gender-neutral. Penalizing the prostitute only therefore does not amount to direct discrimination.

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[] Nor does it amount to indirect discrimination. The section makes a distinction between the prostitute and the customer. There is a qualitative difference between the prostitute who conducts the business of prostitution and is therefore likely to be a repeat offender, on the one hand, and the customer who seeks the service of a prostitute only on occasion and thus may or may not be a repeat offender. As the joint judgment holds, the purpose of the prohibition is to outlaw commercial sex. The prostitute is engaged in the business of commercial sex. One of the ways of curbing commercial sex is to strike at the merchant by means of criminal sanctions. The differentiation between the dealer and customer is a common distinction that is made in a number of statutes. [] The differentiation made by the section must be viewed against the fact that a man or woman who pays for sex is guilty of criminal conduct and liable to the same punishment as the prostitute. At common law the customer is a socius criminis and also commits an offence under section  of the Riotous Assemblies Act. In terms of the Riotous Assemblies Act the customer is liable to the same punishment to which the prostitute is liable. [] It needs to be stressed here that the purpose of section ()(aA) is to prohibit commercial sex, not to protect the person who pays for sexual favors. The comments made by Chief Justice Steyn in S v. Kellner with regard to a statute that prohibited the receipt of a bribe seem to me to be apposite here. The purpose of that prohibition was not to protect persons offering a bribe against their own weaknesses or against any temptation into which the urgency of their own affairs may lead them; and if they should become the victims of circumstance and inclination, that does not place them in the category of complainants who have suffered injury and who should not be be [sic] deterred from disclosure by any apprehension of being implicated in an offence.

In the circumstances a provision that made it an offence to receive a bribe did “not exclude the person performing the supplementary act to the prohibited acceptance of a reward from criminal liability as an accessory.” [] The Sexual Offences Act was therefore enacted in the context of a system of law in which all who participate in a prohibited act are guilty of having participated in that act and liable to the same punishment as the principal offender. The Sexual Offences Act forms part of that system of law. So does section ()(aA). [] Thus, a man who pays for sex and the woman who receives the payment are equally guilty of criminal conduct and liable to the same penalties. Both at common law and in terms of the Riotous Assemblies Act the customer commits an offence, and in terms of the Riotous Assemblies Act the customer is liable to the same punishment to which the prostitute is liable. [] And if there is any discrimination, such discrimination can hardly be said to be unfair. The act pursues an important and legitimate constitutional purpose,

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namely to outlaw commercial sex. The only significant difference in the proscribed behavior is that the prostitute sells sex and the patron buys it. Gender is not a differentiating factor. Indeed, one of the effective ways of curbing prostitution is to strike at the supply. Two points to note here are the ones already stressed: first, the prohibition is gender-neutral, it punishes both female and male prostitutes; and, second, guilt and punishment are equal for both the prostitute and the customer. In the circumstances any “discrimination” resulting from the prostitute and the customer being dealt with under different provisions of the law cannot be said to be unfair. [] If the public sees the recipient of reward as being “more to blame” than the “client,” and a conviction carries a greater stigma on the “prostitute” for that reason that is a social attitude and not the result of the law. The stigma that attaches to prostitutes attaches to them, not by virtue of their gender, but by virtue of the conduct they engage in. That stigma attaches to female and male prostitutes alike. In this regard I agree with the joint judgment that, by engaging in commercial sex work, prostitutes knowingly accept the risk of lowering their standing in the eyes of the community, thus undermining their status and becoming vulnerable. [] It was not suggested that prostitutes have no choice but to engage in prostitution. It was accepted that they have a choice but it was contended that the choice is limited or “constrained.” Once it is accepted that section ()(aA) is genderneutral and that by engaging in commercial sex work prostitutes knowingly attract the stigma associated with prostitution, it can hardly be contended that female prostitutes are discriminated against on the basis of gender. I am not persuaded by the argument that gender discrimination exists simply because there are more female prostitutes than male prostitutes just as I would not be persuaded if the same argument were to be advanced by males accused of certain crimes, the great majority of which are committed by men. [] In my view, a gender-neutral provision that differentiates between the dealer and the customer, a distinction that is commonly made by statutes and which is justifiable, having regard to the qualitative difference between the conduct of the dealer and that of the customer, and which operates in the legal framework that punishes both the customer and the dealer and makes them liable to the same punishment, cannot be said to be discriminating on the basis of gender simply because the majority of those who violate such a statute happen to be women. [] In contending that section ()(aA) discriminates unfairly against women, reliance was also placed upon the practice of the police and the prosecutors. It was contended that in practice only prostitutes are prosecuted and that customers are not. As pointed out earlier, a customer who engages in sex for a reward commits an offence at common law and in terms of the provisions of the Riotous Assemblies Act. What happens in practice may therefore point to a flaw in the application of the law but it does not establish a constitutional defect in it. Even if the practice of the police and the prosecutors is to target the “merchants” and not the “customers,” that is not relevant to the issue before us in the present case concerning section

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()(aA) of the Act, which is whether the order of the High Court declaring the section to be inconsistent with the Constitution should be confirmed. [] For all these reasons I conclude that section ()(aA) is not inconsistent with section () of the Interim Constitution.

Challenge Based on the Right to Economic Activity [] At best for the appellants, section () and () of the Interim Constitution must be read together as meaning that all constraints upon economic activity and the earning of a livelihood that fall outside the purview of subsection () are in breach of section . All that subsection () requires is that there should be a rational connection between the legislation and the legislative purpose sanctioned by subsection (). Once it is established that the purpose of the prohibition is sanctioned by subsection (), the question whether the purpose is justifiable in an open and democratic society based on freedom and equality is essentially a question of law. [] The state contended that the legislation was “designed” to promote the protection or improvement of the quality of life and human development, and as such is sanctioned by section . Prostitution is associated with violence, drug abuse, and child trafficking. These are the legislative facts. [] The legislature has the responsibility to combat social ills and, where appropriate, to use criminal sanctions. In doing so, it must act consistently with the Constitution. Once the legislature has done so, courts must give effect to that legislative choice and may not enter into the debate as to whether the choice made is better or worse than others not chosen. It was accepted that the options available to the legislature in combating the social ills associated with commercialized sex include criminalization, regulation, and abstention. The Challenge Based on Privacy [] It was contended that the prohibition on prostitution infringes the right to privacy. I have grave doubts as to whether the prohibition contained in section ()(aA) implicates the right to privacy. This case is different from National Coalition for Gay and Lesbian Equality and Another v. Minister of Justice and Others [ () SA  (CC) ( () SACR ;  () BCLR )]. There the offence that was the subject of the constitutional challenge infringed the right of gay people not to be discriminated against unfairly and also their right to dignity. It intruded into “the sphere of private intimacy and autonomy which allows us to establish and nurture human relationships without interference from the outside community” and in doing so affected the sexuality of gay people “at the core of the area of private intimacy.” None of those considerations are present here. [] This case is concerned with the commercial exploitation of sex, which, as I have found, involves neither an infringement of dignity nor unfair discrimination. I do not accept that a person who commits a crime in private, the nature of which can only be committed in private, can necessarily claim the protection of the privacy

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clause. What compounds the difficulty is that the prostitute invites the public generally to come and engage in unlawful conduct in private. The law should be as concerned with crimes that are committed in private as it is with crimes that are committed in public. [] But even if the right to privacy is implicated, it lies at the periphery and not at its inner core. What lies at the heart of the prostitutes’ complaint is that they are prohibited from selling their sexual services. After all, they are in this industry solely for money. The prohibition is directed solely at the sale of sexual activity. Otherwise the prostitutes are entitled to engage in sex, to use their bodies in any manner whatsoever and to engage in any trade as long as this does not involve the sale of sex and breaking a law validly made. What is limited is the commercial interests of the prostitute. But that limitation is not absolute. They may pursue their commercial interests but not in a manner that involves the sale of sex. Having regard to the legitimate state interest in proscribing prostitution and brothel-keeping, viewed against the scope of the limitation on the right of the prostitute and brothel-keeper to earn a living, I conclude that if there be a limitation of the right to privacy, the limitation is justified. It follows that the challenge based on the right to privacy must also be dismissed.

Conclusion [] Much of the argument in this case, and of the evidence placed before this court, was directed to the question whether the interests of society would be better served by legalizing prostitution than by prohibiting it. In a democracy those are decisions that must be taken by the legislature and the government of the day, and not by courts. Courts are concerned with legality, and in dealing with this matter I have had regard only to the constitutionality of the legislation and not to its desirability. Nothing in this judgment should be understood as expressing any opinion on that issue. [] I agree with Justice O’Regan and Justice Sachs that the appeal against the finding made by the High Court concerning brothels should be dismissed. However, I conclude that section ()(aA) is not unconstitutional. In view of the fact that I also agree with the conclusion reached by my Colleagues that section ()(aA) does not violate the right to privacy, freedom, and security, and the right to economic activity, it follows that I not only dismiss the appeal, but also decline to confirm the order of invalidity made concerning section ()(aA). JUSTICES O’REGAN AND SACHS

The Proper Interpretation of Section ()(aA) [] [. . .] Before turning to an analysis of section ()(aA), it is necessary to consider its proper interpretation. The High Court held that to the extent that

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section ()(aA) criminalized only the prostitute or sex worker and not the client, it amounted to unfair discrimination. The High Court also held that, to the extent that the provision criminalized any sexual intercourse between consenting adults where some favor or consideration was given by one party to the other, it was in breach of the Constitution. [] It is worth noting, although not relevant to the proper interpretation of the section, that not only academic commentators have given it this meaning but law enforcement officers appear generally to have done so as well. Not a single case of a prosecution of a customer since  (when section ()(aA) was introduced into the statute) was brought to our attention, and the State did not seek to challenge the assertion that in practice only the prostitutes were charged in terms of the section. [] The natural reading of the section strikes at the prostitute who engages in sexual intercourse for reward, which is provided by the client. The customer does not engage in sexual intercourse for any reward, on the ordinary understanding of that term. He (rarely she) engages in it for sexual gratification and to receive that gratification he furnishes the reward to the prostitute. It is this ordinary meaning of the provision which has been taken for granted until argument was presented in this case. [] [. . .] One of the grounds given by the High Court for invalidating section ()(aA) was that its terms were too wide: In principle there is no difference between a prostitute who receives money for her favors and her sister who receives, for rendering a similar service, a benefit or reward of a different kind, such as a paid-for weekend, a free holiday, board and lodging for a shorter or longer period, a night at the opera, or any other form of quid pro quo.

In support of its contention, the court referred to the case of S v. C [ () SACR  (W)], where Justice Van Dijkhorst expressly rejected the contention that section ()(aA) ought to be limited to acts committed by professional prostitutes. Dealing with the argument that the section should be strictly construed so as to be confined to those who habitually and indiscriminately engage in sexual relations for reward, the learned judge said: “The wording of section ()(aA) does not limit its offenders to the category of professional prostitutes. It clearly includes all who for reward have unlawful carnal intercourse or commit acts of indecency, the novice as well as the hardened street-walker.” [] The question in the present matter, then, is whether the section is reasonably capable of a restrictive interpretation, which would narrow its ambit and bring it within constitutional limits, such interpretation being achieved without undue strain. The question is whether the phrase “unlawful sexual intercourse or indecent act for reward” is capable of being read to include only activity ordinarily understood as prostitution. In other words, is the phrase reasonably capable of being read so as to cover only commercial sex, which is sex where the body is made available for

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sexual stimulation on a paid basis? We think there are strong contextual pointers in favor of the more restrictive reading. [] The heading to the section includes the words “persons living on the earnings of prostitution.” In President of the Republic of South Africa v. Hugo [ () SA  (CC) ( () BCLR )], this court held that it was legitimate for a court interpreting a statute to have regard to the heading of a legislative provision. In this case, the heading of section  makes it clear that the section is dealing with persons living on the earnings of prostitution. This suggests that a narrow meaning related to the heading should be given to section . If one reads the criminal prohibition contained in section ()(aA) in the light of the heading, one would attribute a meaning to the section which renders criminal the conduct of those who earn their living from prostitution, or commercial sex. It may be difficult in some circumstances to apply this rule and to determine whether or not the conduct concerned is sufficiently commercialized and indiscriminate as to qualify as prostitution. This remains a matter of application, however, not one of definition and is best undertaken on a case-by-case basis by the courts. We, accordingly, hold that in this respect the section is reasonably capable of a restrictive interpretation. [] In our view, therefore, the proper interpretation of section ()(aA) is that the provision criminalizes the conduct of prostitutes but not that of customers. However, it does not criminalize sexual intercourse between consenting adults which does not constitute prostitution or commercial sex. It is on this basis that the constitutionality of the provision should be considered.

The Constitutionality of Section ()(aA) [] Counsel for the appellants and the amici contended that the criminalization of prostitution limits the following fundamental constitutional rights of those concerned: . Equality () Every person shall have the right to equality before the law and to equal protection of the law. () No person shall be unfairly discriminated against, directly or indirectly, and, without derogating from the generality of this provision, on one or more of the following grounds in particular: race, gender, sex, ethnic or social origin, color, sexual orientation, age, disability, religion, conscience, belief, culture or language. . Human dignity Every person shall have the right to respect for and protection of his or her dignity. . Freedom and security of the person () Every person shall have the right to freedom and security of person, which shall include the right not to be detained without trial. . Privacy

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Every person shall have the right to his or her personal privacy, which shall include the right not to be subject to searches of his or her person, home or property, the seizure of private possessions or the violation of private communications. . Economic activity () Every person shall have the right to freely engage in economic activity and to pursue a livelihood anywhere in the national territory. () Subsection () shall not preclude measures designed to promote the protection or the improvement of the quality of life, economic growth, human development, social justice, basic conditions of employment, fair labor practices or equal opportunity for all, provided such measures are justifiable in an open and democratic society based on freedom and equality.

[] There was considerable overlap in the challenges. Thus, counsel for the appellants argued that the structure of the Constitution makes it necessary to cluster the rights to dignity, privacy, and freedom of the person under the global concept of autonomy. In the first place, he argued, it is a matter of extreme significance for all persons to be able to determine how to live their lives. It is the experience of autonomy that matters, the right to make decisions, rather than the content of these decisions. Secondly, the state should not be empowered to make judgments concerning the good or bad life, provided that the conduct in question does not harm others. Such conduct might be unworthy or risky, but if it is not harmful to others then the state cannot interfere. [] While we accept that there is manifest overlap between the rights to dignity, freedom, and privacy, and each reinforces the other, we do not believe that it is useful for the purposes of constitutional analysis to posit an independent right to autonomy. There can be no doubt that the ambit of each of the protected rights is to be determined in part by the underlying purport and values of the Bill of Rights as a whole and that the rights intersect and overlap one another. It does not follow from this, however, that it is appropriate to base our constitutional analysis on a right not expressly included within the Constitution. Accordingly, we will deal in turn with each of the rights said to be infringed. [] The court thus expressly left open the question whether this right could be claimed only in respect of lawful economic activity. For the purposes of the present matter, we do not consider it necessary to resolve that question. On the first meaning, given that prostitution is clearly an unlawful economic activity, the appellants could not succeed. Once again, as in Lawrence, we are prepared to assume in favor of the appellants that the second meaning which confers a broader right is the proper meaning of section . On that approach, the state is not precluded from taking measures under section () of the Constitution “designed to promote the protection or the improvement of the quality of life.” The only proviso is that such measures

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be justifiable in an open and democratic society based on freedom and equality. In determining whether a particular measure is “designed to promote” one of the purposes of section (), leeway must be afforded the legislature to determine which measures will achieve the desired purposes. [] The state argued that section ()(aA) is aimed at improving the quality of life. In our view, whether one considers that prostitution should be tolerated, regulated or prohibited, there can be no doubt that it does have an impact on the quality of life. The legislature is therefore entitled to take the steps it considers appropriate to regulate prostitution in terms of section () so long as it does not limit other fundamental rights in a way that would not be justifiable in an open and democratic society. As we shall see later, open and democratic societies adopt a variety of different ways of responding to prostitution, including outright prohibition. The European Court recently underlined the wide discretion that states have in relation to prostitution as an economic activity. In the circumstances, therefore, we are satisfied that section ()(aA) constitutes a measure designed to promote or protect the quality of life as contemplated by section () and that it is a measure considered justifiable in open and democratic societies based on freedom and equality. It is therefore not inconsistent with the right in section  of the Interim Constitution. The challenge based on the right to freely engage in economic activity must therefore fail.

Discrimination [] The appellants argued that, to the extent that section ()(aA) criminalizes only the conduct of the prostitutes and not that of the client, it is in breach of section  of the Constitution. The proper approach to section  of the Interim Constitution was confirmed and summarized in Harksen v. Lane NO and Others [ () SA  (CC)]. There are two enquiries: the first is to consider whether the impugned provision differentiates between people or categories of people and, if it does, whether it does so rationally. The second is to consider whether a differentiation is made, directly or indirectly, on a ground that could be said to have the potential to impair human dignity or to affect people adversely in a comparably serious manner. If the differentiation is on such a ground, the question that then arises is whether it is unfair or not. [] The differentiation in this case is between prostitutes and patrons. The conduct of one group is rendered criminal by the section, that of the other not. It cannot be said that it is irrational for the legislature to criminalize the conduct of only one group and not the other. The legislative purpose may be to target the purveyors of sex for reward, rather than the purchasers. In each case the question at this stage is the narrow one of whether it is rational for the law to punish only one side of the bargain. In our view, in this case it cannot be said that rendering criminal the conduct of the prostitute and not that of the client is so lacking in any plausible foundation as to be irrational. [] The second question that arises then is whether the differentiation contained in section ()(aA) is nevertheless discriminatory as contemplated by section ()

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of the Interim Constitution. It is clear that the ground for differentiation, between those who provide sex for reward as opposed to those who purchase it, is not a ground specified in section (). However, the appellants and counsel for the Gender Commission argued that the differentiation discriminated indirectly on one such ground, namely gender or sex. In support of the High Court’s finding of unfair discrimination, counsel for the Gender Commission referred to the case of [Pretoria City Council v.] Walker [ () SA  (CC) ( () BCLR )], where Deputy President Langa held that: The inclusion of both direct and indirect discrimination within the ambit of the prohibition imposed by section () evinces a concern for the consequences rather than the form of conduct. It recognizes that conduct that may appear to be neutral and nondiscriminatory may nonetheless result in discrimination and, if it does, that it falls within the purview of section (). The emphasis that this court has placed on the impact of discrimination in deciding whether or not s () has been infringed is consistent with this concern.

Dealing with differential treatment of payment defaults by the Pretoria City Council, he went on to say: It is not necessary in the present case to formulate a precise definition of indirect discrimination. . . . It is sufficient for the purposes of this judgment to say that this conduct which differentiated between the treatment of residents of townships which were historically black areas and whose residents are still overwhelmingly black, and residents in municipalities which were historically white areas and whose residents are still overwhelmingly white constituted indirect discrimination on the grounds of race. The fact that the differential treatment was made applicable to geographical areas rather than to persons of a particular race may mean that the discrimination was not direct, but it does not in my view alter the fact that in the circumstances of the present case it constituted discrimination, albeit indirect, on the grounds of race. It would be artificial to make a comparison between an area known to be overwhelmingly a “black area” and another known to be overwhelmingly a “white area,” on the grounds of geography alone. The effect of apartheid laws was that race and geography were inextricably linked and the application of a geographical standard, although seemingly neutral, may in fact be racially discriminatory. In this case, its impact was clearly one that differentiated in substance between black residents and white residents. The fact that there may have been a few black residents in old Pretoria does not detract from this.

It was accordingly submitted that, because prostitutes are overwhelmingly (though not exclusively) female and patrons are overwhelmingly (though not exclusively)

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male, the effect of section ()(aA), to the extent that it criminalizes only the conduct of prostitutes and not that of patrons, is indirectly discriminatory on the grounds of sex. [] Counsel for the state did not deny that if only the prostitute were penalized by the section and not the customer, this would be a case of indirect discrimination because overwhelmingly prostitutes were women and customers men. There was thus no factual dispute between the parties as to whether the effect of the provision fell disproportionately on women. Prostitutes and their customers engage in sexual activity, which is one of the constitutive elements of the relationship between men and women in all societies. As partners in sexual intercourse, they both consent to and participate in the action that lies at the heart of the criminal prohibition. There are only three differences between them. The first is that the one pays and the other is paid. The second is that in general the one is female and the other is male. The third is that the one’s actions are rendered criminal by section ()(aA) but the other’s actions are not. Moreover, the effect of making the prostitute the primary offender directly reinforces a pattern of sexual stereotyping, which is itself in conflict with the principle of gender equality. The differential impact between prostitute and client is therefore directly linked to a pattern of gender disadvantage that our Constitution is committed to eradicating. In all these circumstances, we are satisfied that, as in the Walker case, this is a case where an apparently neutral differentiating criterion producing a markedly differential impact on a listed ground results in indirect discrimination on that ground. [] This distinction is, indeed, one which for years has been espoused both as a matter of law and social practice. The female prostitute has been the social outcast; the male patron has been accepted or ignored. She is visible and denounced, her existence tainted by her activity. He is faceless, a mere ingredient in her offence rather than a criminal in his own right, who returns to respectability after the encounter. In terms of the sexual double standards prevalent in our society, he has often been regarded either as having given in to temptation or as having done the sort of thing that men do. Thus, a man visiting a prostitute is not considered by many to have acted in a morally reprehensible fashion. A woman who is a prostitute is considered by most to be beyond the pale. The difference in social stigma tracks a pattern of applying different standards to the sexuality of men and women. [] In the present case, the stigma is prejudicial to women and runs along the fault lines of archetypal presuppositions about male and female behavior, thereby fostering gender inequality. To the extent therefore that prostitutes are directly criminally liable in terms of section ()(aA) while customers, if liable at all, are only indirectly criminally liable as accomplices or coconspirators, the harmful social prejudices against women are reflected and reinforced. Although the difference may on its face appear to be a difference of form, it is in our view a difference of substance that stems from and perpetuates gender stereotypes in a manner that causes discrimination. The inference

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is that the primary cause of the problem is not the man who creates the demand but the woman who responds to it: she is fallen; he is at best virile, at worst weak. Such discrimination, therefore, has the potential to impair the fundamental human dignity and personhood of women. [] The question that next arises is whether section ()(aA), to the extent that it constitutes indirect discrimination, is unfair or not. In determining whether a discriminatory provision or conduct is unfair, one must look at the nature of the group discriminated against, the nature of the discriminatory provision or conduct, as well as the impact of the discrimination on those who complain of it. It is women and, in particular, prostitutes who suffer the discrimination in this case. There can be no doubt that they are a marginalized group to whom significant social stigma is attached. Their status as social outcasts cannot be blamed on the law or society entirely. By engaging in commercial sex work, prostitutes knowingly accept the risk of lowering their standing in the eyes of the community. In using their bodies as commodities in the marketplace, they undermine their status and become vulnerable. On the other hand, we cannot ignore the fact that many female prostitutes become involved in prostitution because they have few or no alternatives. Accordingly, we cannot exclude from the constitutional enquiry into fairness the fact that, although prostitutes do constitute a vulnerable group, this is due in some part to their own conduct. [] It might well be that in many situations it will be easier to establish the fairness of indirect discrimination than that of direct discrimination. Thus, the injury to the dignity of members of a group on whom the measure happens to target differentially might be less severe than if they had been targeted by direct discrimination. The fact that in theory, if not in practice, the male customers are equally liable for prosecution as accomplices could also attenuate the differential impact and hence limit the extent of the unfairness. On the other hand, the salient feature of the differentiation in the present matter is that it tracks and reinforces in a profound way double standards regarding the expression of male and female sexuality. The differential impact is accordingly not accidental, just as the failure of the authorities to prosecute male customers as accomplices is entirely unsurprising. They both stem from the same defect in our justice system, which holds women to one standard of conduct and men to another. [] In determining what is fair, we cannot look at section ()(aA) in isolation, abstracted from its social setting. We see no reason why the plier of sex for money should be treated as more blameworthy than the client. If anything, the fact that the male customers will generally come from a class that is more economically powerful might suggest the reverse. To suggest, as the law (and Justice Ngcobo) do, that women may be targeted for prosecution because they are merchants of sex and not patrons is to turn the real-life sociological situation upside-down. The evidence suggests that many women turn to prostitution because of dire financial need and that they use their earnings to support their families and pay for their children’s food and

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education. As we have stated, we do not regard this as an excuse or a justification. However, to suggest that male patrons who are able to use their economic means to obtain sexual gratification are somehow the less blameworthy partners in the eyes of the criminal law appears to us to be markedly unfair. [] In the light of all these considerations, we conclude that section ()(aA), to the extent that it renders criminal the conduct of prostitutes but not that of customers, constitutes unfair discrimination. [] We do not agree with Justice Ngcobo that the stigma attaching to prostitutes arises not from the law but only from social attitudes. It is our view that, by criminalizing primarily the prostitute, the law reinforces and perpetuates sexual stereotypes which degrade the prostitute but does not equally stigmatize the client, if it does so at all. The law is thus partly constitutive of invidious social standards that are in conflict with our Constitution. The Constitution itself makes plain that the law must further the values of the Constitution. It is no answer then to a constitutional complaint to say that the constitutional problem lies not in the law but in social values when the law serves to foster those values. The law must be conscientiously developed to foster values consistent with our Constitution. Where, although neutral on its face, its substantive effect is to undermine the values of the Constitution, it will be susceptible to constitutional challenge.

The Right to Human Dignity [] Our Constitution values human dignity, which inheres in various aspects of what it means to be a human being. One of these aspects is the fundamental dignity of the human body, which is not simply organic. Neither is it something to be commodified. Our Constitution requires that it be respected. We do not believe that section ()(aA) can be said to be the cause of any limitation on the dignity of the prostitute. To the extent that the dignity of prostitutes is diminished, the diminution arises from the character of prostitution itself. The very nature of prostitution is the commodification of one’s body. Even though we accept that prostitutes may have few alternatives to prostitution, the dignity of prostitutes is diminished not by section ()(aA) but by their engaging in commercial sex work. The very character of the work they undertake devalues the respect that the Constitution regards as inherent in the human body. This is not to say that as prostitutes they are stripped of the right to be treated with respect by law enforcement officers. All arrested and accused persons must be treated with dignity by the police. But any invasion of dignity, going beyond that ordinarily implied by an arrest or charge that occurs in the course of arrest or incarceration, cannot be attributed to section ()(aA), but rather to the manner in which it is being enforced. The remedy is not to strike down the law but to require that it be applied in a constitutional manner. Neither are prostitutes stripped of the right to be treated with dignity by their customers. The fact that a client pays for sexual services does not afford the client unlimited license to infringe the dignity of the prostitute.

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Legal Cases (–)

The Right to Freedom of the Person [] Similarly, we do not feel that it has been established that section ()(aA) constitutes a limitation of the right to freedom as entrenched in section  of the Interim Constitution. Most of the argument addressed to us on this topic was based on the  Constitution, which includes the rights not to be deprived of freedom without just cause and the right to bodily integrity. The formulation of section  is, however, different to section () of the Interim Constitution, which simply protects the right to freedom and personal security. In this respect the prostitute makes herself liable for arrest and imprisonment by violating the law. Provided that the law passes the test of constitutionality, any invasion of her freedom and personal security follows from her breach of the law and not from any intrusion on her right by the State. In the light of the approach taken by the majority of this court to section () of the Interim Constitution, there can be no complaint in terms of that section by a person who has been convicted and sentenced in terms of a duly enacted criminal prohibition. The Right to Privacy [] In our view, the other area where the rights of the sex worker appear to have been limited by section ()(aA) is in respect of her right of personal privacy. The concept of privacy has been much debated in recent times. In Bernstein, Justice Ackermann held that the right to privacy in the Interim Constitution must be understood as recognizing a continuum of privacy rights that may be regarded as starting with a wholly inviolable inner self, moving to a relatively impervious sanctum of the home and personal life, and ending in a public realm where privacy would only remotely be implicated, if at all. The truism that no right is to be considered absolute implies that from the outset of interpretation each right is always already limited by every other right accruing to another citizen. In the context of privacy this would mean that it is only the inner sanctum of a person, such as his/her family life, sexual preference and home environment, which is shielded from erosion by conflicting rights of the community. This implies that community rights and the rights of fellow members place a corresponding obligation on a citizen, thereby shaping the abstract notion of individualism towards identifying a concrete member of civil society. Privacy is acknowledged in the truly personal realm, but as a person moves into communal relations and activities such as business and social interaction, the scope of personal space shrinks accordingly.

At the very least, as the Interim Constitution itself makes clear, it includes protection against search and seizure and the violation of private communications. There can be no doubt that autonomy to make decisions in relation to intensely significant

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aspects of one’s personal life are encompassed by the term. As Justice Ackermann held in the National Coalition for Gay and Lesbian Equality [] (Sodomy) case: Privacy recognizes that we all have a right to a sphere of private intimacy and autonomy which allows us to establish and nurture human relationships without interference from the outside community. The way in which we give expression to our sexuality is at the core of this area of private intimacy. If, in expressing our sexuality, we act consensually and without harming one another, invasion of that precinct will be a breach of our privacy.

[] The problem in the present matter is where to place commercial sex on the continuum described by Justice Ackermann in Bernstein. In doing so, it is necessary to realize that there are a range of factors relevant to distinguishing the core of privacy from its penumbra. One of the considerations is the nature of the relationship concerned: an invasion of the relationship between partners, or parent and child, or other intimate, meaningful and intensely personal relationships will be a strong indication of a violation close to the core of privacy. Another consideration is the extent to which the body of a person is invaded: physical searches or examinations are often invasive of privacy, as section  of the Interim Constitution suggests. [] As we observed before, the constitutional commitment to human dignity invests a significant value in the inviolability and worth of the human body. The right to privacy, therefore, serves to protect and foster that dignity. Commercial sex involves the most intimate of activity taking place in the most impersonal and public of realms, the market place; it is simultaneously all about sex and all about money. Selling sex represents an opportunity for women to earn money but within the framework of deeply structured sexist and patriarchal patterns of social life. A prohibition on commercial sex, therefore, will not ordinarily encroach upon intimate or meaningful human relationships. Yet it will intrude upon the intensely personal sphere of sexual intercourse, albeit intercourse for reward. [] In arguing that prostitution involves private consensual sexual activity and should be located at the most protected end of the continuum, counsel for the appellants relied heavily on this court’s decision in the Gay and Lesbian Coalition (Sodomy) case. To our mind, however, that case highlights points of contrast rather than of correspondence. In the first place, what was at stake in that matter was not just a privacy interest, but an equality one. Indeed, the principal complaint of the gay community was that they were being subjected by the law to unfair discrimination on the grounds of sexual orientation, in violation of the express protection offered by section () of the Constitution. It was in this context that Justice Ackermann stated: Privacy recognizes that we all have a right to a sphere of private intimacy and autonomy which allows us to establish and nurture human relationships without interference from the outside community. The way in which we give

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Legal Cases (–)

expression to our sexuality is at the core of this area of private intimacy. If, in expressing our sexuality, we act consensually and without harming one another, invasion of that precinct will be a breach of our privacy. Our society has a poor record of seeking to regulate the sexual expression of South Africans. In some cases, as in this one, the reason for the regulation was discriminatory; our law, for example, outlawed sexual relationships among people of different races. The fact that a law prohibiting forms of sexual conduct is discriminatory does not, however, prevent it at the same time being an improper invasion of the intimate sphere of human life to which protection is given by the Constitution in section . We should not deny the importance of a right to privacy in our new constitutional order, even while we acknowledge the importance of equality. In fact, emphasizing the breach of both these rights in the present case highlights just how egregious the invasion of the constitutional rights of gay persons has been. The offence which lies at the heart of the discrimination in this case constitutes at the same time and independently a breach of the rights of privacy and dignity which, without doubt, strengthens the conclusion that the discrimination is unfair.

The judgment accordingly emphasizes the interaction between equality, dignity, and privacy in relation to a community that had been discriminated against on the basis of closely held personal characteristics. Furthermore, it stresses that the protected sphere of private intimacy and autonomy relates to establishing and nurturing human relationships. [] Prostitution is quite different; the equality interest works the other way inasmuch as it is the very institution of commercial sex that serves to reinforce patterns of inequality. Moreover, central to the character of prostitution is that it is indiscriminate and loveless. It is, accordingly, not the form of intimate sexual expression that is penalized, nor the fact that the parties possess a certain identity. It is that the sex is both indiscriminate and for reward. The privacy element falls far short of “deep attachment and commitments to the necessarily few other individuals with whom one shares not only a special community of thoughts, experiences and beliefs but also distinctly personal aspects of one’s life.” By making her sexual services available for hire to strangers in the marketplace, the sex worker empties the sex act of much of its private and intimate character. She is not nurturing relationships or taking life-affirming decisions about birth, marriage, or family; she is making money. Although counsel for the appellants was undoubtedly correct in pointing out that this does not strip her of her right to be treated with dignity as a human being and to have respect shown to her as a person, it does place her far away from the inner sanctum of protected privacy rights. We accordingly conclude that her expectations of privacy are relatively attenuated. Although the commercial value of her trade does not eliminate her claims to privacy, it does reduce them in great degree.

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[] We conclude that section ()(aA) does amount to an infringement of privacy and we cannot agree with the proposition that prostitutes surrender all their rights to privacy in relation to the use of their bodies simply because they receive money for their sexual services. However, we conclude that the invasion of privacy thus caused is not extensive. The question to be asked is whether such intrusion is justifiable, a question to which we now turn. [] [. . .] We have concluded that section ()(aA) limits both section  and section  of the Interim Constitution. To determine whether either of these limitations are justifiable, we will look at each separately. In doing so, we shall consider, first, the nature and extent of the invasion of the right, second, the purpose of the limitation and, finally, whether the limitations pass the test of proportionality. For purposes of convenience, we deal first with the justification advanced in respect of the limitation on the right to privacy.

The Limitation of Section —The Right to Privacy [] It is clear from the earlier discussion in relation to the threshold question concerning privacy that, although section ()(aA) breaches the right to privacy, it does not reach into the core of privacy, but only touches its penumbra. In the circumstances, therefore, it is less difficult for the state to establish that the limitation is justifiable. Counsel for the state acknowledged that the suppression of commercial sex cannot be justified merely on the basis of enforcing a particular view of morality. He contended, however, that the prohibition seeks to curb the extent of prostitution in South Africa for eight reasons: (a) Prostitution in itself is degrading to women; (b) it is conducive to violent abuse of prostitutes both by customers and pimps; (c) it is associated with and encourages the international trafficking in women, which South Africa is obliged by its international law commitments to suppress; (d) it leads to child prostitution; (e) it carries an intensified risk of the spread of sexually transmitted diseases, especially HIV/AIDS; (f ) it goes hand in hand with high degrees of drug abuse; (g) it has close connections with other crimes such as assault, rape and even murder; and (h) it is a frequent and persistent cause of public nuisance. [] In approaching the question of proportionality, the court is obliged to apply the standards of an open and democratic society. Open and democratic societies vary enormously in the manner in which they characterize and respond to prostitution. Thus practice in such countries ranges from allowing prostitution but not brothel-

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Legal Cases (–)

keeping; to allowing both; suppressing both; to setting aside zones for prostitution; and to licensing brothels and collecting taxes from them. The issue is generally treated as one of governmental policy expressed through legislation rather than one of constitutional law to be determined by the courts. We are unaware of any successful constitutional challenge in domestic courts to laws prohibiting commercial sex. The matter appears to have been treated as one for legislative choice and not one for judicial determination. The issue is an inherently tangled one where autonomy, gender, commerce, social culture, and law enforcement capacity intersect. A multitude of differing responses and accommodations exist, and public opinion is fragmented and the women’s movement divided. In short, it is precisely the kind of issue that is invariably left to be resolved by the democratically accountable law-making bodies. [] We, therefore, conclude that, although nearly all open and democratic societies condemn commercialized sex, they differ vastly in the way in which they regulate it. These are matters appropriately left to deliberation by the democratically elected bodies of each country. Voices such as those of the Gender Commission, SWEAT, and the RHRU will help direct public and parliamentary attention to the constitutional goal of the achievement of equality between men and women. [] The state argued that it chose to criminalize prostitution for a series of purposes—all of which are legitimate and important. The appellants argue that the method chosen by the state is not the most appropriate to achieve those purposes. It is, however, clear that the manner in which the parliamentary purposes can best be achieved is a matter where Parliament may choose from a wide range of reasonable options. In our view, it is not for this court in such a case to decide which is the most effective manner in which Parliament can achieve its objectives. In circumstances where the limitation of a right is not severe, where Parliament has identified important purposes to be achieved by that limitation and where people may reasonably disagree as to the most effective means for the achievement of those purposes, it is our view that it would be inappropriate for this court to hold the limitation unjustifiable. We accordingly conclude that the limitation of privacy occasioned by section ()(aA) is justifiable.

The Limitation of Section () [] Section ()(aA), insofar as it renders criminal the conduct of the prostitute but not that of the client, constitutes a limitation of section () of the Constitution. In considering the justifiability of this limitation, we are not concerned with the justifiability of choosing to criminalize prostitution per se as we were when considering the section  limitation. We are here concerned with the justifiability of the decision to criminalize primarily the conduct of the prostitute. It is the difference between the treatment of patrons and prostitutes that causes the constitutional complaint; and it is that unfair, discriminatory treatment which must be justified. [] It is not clear why the state should criminalize primarily the conduct of the prostitute and not that of the client. It is clear the overall purpose of criminalizing

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prostitution is to curtail the extent of prostitution. However, that purpose may be far more effectively achieved were the client’s conduct to be rendered criminal in the same way and were customers to be prosecuted as a matter of course. The state did not seek to argue that there was a legitimate purpose for criminalizing primarily the conduct of the prostitute as a matter of law but exclusively as a matter of practice. For the reasons already advanced we do not share the view of Justice Ngcobo that, in this area, with its strongly gendered context, the state is justified in targeting the alleged supplier of the sexual service and not the consumer. [] In the light of the fact that the state did not seek to argue that there was an important purpose served by the discriminatory impact of the provision, and in the light of our conclusion that the provision furthers harmful sexual stereotypes, we are not persuaded that the discrimination is justifiable as contemplated by section . In our view, therefore, the provision is inconsistent with the Constitution in this respect. We shall return to the question of remedy later. [] Because unlawful carnal intercourse is defined as carnal intercourse other than between husband and wife, any house or residence where people who are not husband and wife may go to have sexual intercourse could, technically speaking, be considered to be a brothel. If the definition were to be read in this fashion for the purposes of sections , (b), and (c), the provisions would be overbroad and would constitute a clear infringement of rights of human dignity, freedom, and privacy. [] For the reasons given earlier in this judgment, however, it is our view that sections , (b), and (c) must be read to regulate only commercial sex. The provisions are, like section ()(aA), reasonably capable of being read to regulate commercial sex only. Subsections (b) and (c) in effect render criminally liable a person who “manages” a brothel or a person “who receives . . . moneys . . . taken in a brothel.” Both these provisions suggest that a brothel is a business or commercial enterprise whose business is concerned with sexual intercourse. In our view, because the subsections point to the business aspects of a brothel, they are capable of being read restrictively so as to criminalize only those engaged in managing or receiving money from brothels, being business premises for commercial sex. Section , however, is less clearly regulating the operation of a business when it speaks of “keeping a brothel.” However, once again, we think it is reasonably capable of being read to mean keeping a brothel for the purposes of commercial sex and should be construed in that narrow fashion to avoid the manifest unconstitutionality which would result should it be construed to prohibit any person who “keeps” a place where “unlawful carnal intercourse” as defined in the act takes place. [] It was the effect of these provisions read together which led the appellants to argue that the overall purpose of the act is constitutionally illegitimate, in that its purpose and effect are to impose legal sanctions on any form of sexual intercourse outside of a heterosexual marriage. This, it was argued, is constitutionally impermissible in that it is an attempt to legislate for a particular moral code, inconsistently with the Constitution. It was argued that the state has no business telling people

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Legal Cases (–)

what to do in private with their bodies or with their money. It should punish crime, not sin. In support of this contention reference was made to a frequently quoted observation in the Wolfenden Report into Homosexuality and Prostitution: Unless a deliberate attempt is to be made by society, acting through the agency of the law, to equate the sphere of crime with that of sin, there must remain a realm of private morality and immorality which is, in brief and crude terms, not the law’s business.

Reliance was also placed on the following words by Justice Ackermann in the Sodomy case: “The enforcement of the private moral views of a section of the community, which are based to a large extent on nothing more than prejudice, cannot qualify as such a legitimate purpose.” The argument was reinforced by reference to the observations made in Parliament in  and  when the act was subjected to substantial amendment and to the report of the Ad Hoc Committee of the President’s Council on the Immorality Act. [] The challenge accordingly was based on two propositions: the state has no business enforcing private morality and the purpose of the Act, as made manifest by its authors, is precisely to defend a particular concept of morality. We will consider each of these in turn. [] All open and democratic societies are confronted with the need to determine the scope for pluralist tolerance of unpopular forms of behavior. To posit a pluralist constitutional democracy that is tolerant of different forms of conduct is not, however, to presuppose one without morality or without a point of view. A pluralist constitutional democracy does not banish concepts of right and wrong, nor envisage a world without good and evil. It is impartial in its dealings with people and groups, but it is not neutral in its value system. Our Constitution certainly does not debar the state from enforcing morality. Indeed, the Bill of Rights is nothing if not a document founded on deep civic morality. As this court held in Carmichele v. Minister of Safety and Security and Another (Centre for Applied Legal Studies Intervening)  () SA  (CC) ( () SACR ;  () BCLR ): Our Constitution is not merely a formal document regulating public power. It also embodies, like the German Constitution, an objective, normative value system. As was stated by the German Federal Constitutional Court: “The jurisprudence of the Federal Constitutional Court is consistently to the effect that the basic right norms contain not only defensive subjective rights for the individual but embody at the same time an objective value system which, as a fundamental constitutional value for all areas of the law, acts as a guiding principle and stimulus for the Legislature, Executive and Judiciary.” The same is true of our Constitution.

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Yet, what is central to the character and functioning of the state is that the dictates of the morality which it enforces, and the limits to which it may go, are to be found in the text and spirit of the Constitution itself. [] The state has accordingly not only the right but the duty to promote the foundational values of the Interim Constitution. One of the most important of these is to “create a new order in which all South Africans will be entitled to citizenship in a democratic constitutional state in which there is equality between men and women.” The question of commercial sex must therefore be looked at, not through the lens of certain popular conceptions of morality, but through that of constitutionally articulated values, more particularly those that concern the entitlement of all citizens to live in a state in which gender equality is increasingly made a reality. In answering the first question then, it is clear that our constitutional framework not only permits, but requires, the legislature to enact laws which foster morality, but that morality must be one which is founded on our constitutional values. [] The question that next arises for consideration is whether the provisions of the Sexual Offences Act under review have as their purpose the engendering of constitutional values. Ordinarily the purpose of legislation is relevant at the second stage of constitutional analysis to determine whether a provision that limits constitutional rights is justifiable. There may be times when a statute is manifestly in breach of constitutional rights where the purpose of the statute is to foster a constitutionally invalid purpose. Such a case arose in Canada. In Big M Drug Mart [()  CRR ], the statute in question was referred to as the Lord’s Day Act. It declared its purpose in the most resolute and unambiguous of terms. As President Chaskalson said in Lawrence: The Big M Drug Mart case concerned the provisions of the Canadian Lord’s Day Act. Its name proclaimed its purpose as did its provisions. It appears from the judgment in that case that the act prohibited any work or commercial activity on the “Lord’s Day”—Sunday—as well as any games or performances where an admission was charged, any transportation for pleasure where a fee was charged, any advertisement of anything prohibited by the Act, the shooting of firearms and the sale or distribution of foreign newspapers. ... The Canadian Courts had previously held that the object of the act was to compel the observance of the Christian Sabbath.

It followed that, even if the Lord’s Day Act had come to have the secular effect of providing a common day of rest for all Canadians, its original purpose remained manifest in the continuing signals it sent out to the effect that the Christian Sabbath was entitled to receive special recognition from the state. As such the legislation had a clearly unconstitutional purpose and the statute could not avoid constitutional invalidity.

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Legal Cases (–)

[] The United States Supreme Court has accepted the doctrine of shifting purpose on the issue of Sunday closing laws. In McGowan v. Maryland [ US  ()], the court held that Sunday closing laws did not violate the Establishment Clause of the Constitution. While conceding that there was “no dispute that the original laws which dealt with Sunday labor were motivated by religious forces,” Chief Justice Warren concluded such laws were constitutional. In light of the evolution of our Sunday Closing Laws through the centuries, and of their more or less recent emphasis upon secular considerations, it is not difficult to discern that as presently written and administered, most of them, at least, are of a secular rather than of a religious character, and that presently they bear no relationship to establishment of religion as those words are used in the Constitution of the United States. ... The present purpose and effect of most of them is to provide a uniform day of rest for all citizens; the fact that this day is Sunday, a day of particular significance for the dominant Christian sects, does not bar the State from achieving its secular goals. To say that the States cannot prescribe Sunday as a day of rest for these purposes solely because centuries ago such laws had their genesis in religion would give a constitutional interpretation of hostility to the public welfare rather than one of mere separation of church and State.

The Supreme Court gave weight to the disruption likely to result from the striking of old laws having significant social value in the present and allowed them to survive despite their constitutionally questionable origins. [] If the racist and authoritarian intentions of past legislators were to be taken as paramount and invariable in determining the validity of legislation today, many statutes would not have survived the advent of constitutional democracy. In response to this problem, the Interim Constitution envisaged a principle of interpretation designed to promote principled legislative continuity rather than radical legislative rupture. Section  provides that: () No law which limits any of the rights entrenched in this chapter, shall be constitutionally invalid solely by reason of the fact that the wording used prima facie exceeds the limits imposed in this chapter, provided such a law is reasonably capable of a more restricted interpretation which does not exceed such limits, in which event such law shall be construed as having a meaning in accordance with the said more restricted interpretation. () In the interpretation of any law and the application and development of the common law and customary law, a court shall have due regard to the spirit, purport and objects of this chapter.

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This means that we must look at the wording of the act in its post- rather than its original  setting, and see if its language is reasonably capable of bearing a meaning which is compatible with the spirit, purport and objects of the Bill of Rights. The mere fact that the original legislative purpose of a statute might have been incompatible with current constitutional standards does not deprive it of the capacity to serve a legitimate governmental purpose today, unless its express language and intent is, as in the Big M Drug Mart case in Canada, manifestly inconsistent with constitutional values. [] The question that needs to be considered is whether the brothel provisions of the Sexual Offences Act are reasonably capable of an interpretation that manifests a purpose consistent with the spirit, purport, and objects of the Constitution. There are textual indications in the act that make it plain that the act was originally enacted to impose a particular view of morality—one which considered sexual intercourse other than between husband and wife to be “unlawful carnal intercourse.” There are many people in our society who would support such a view today, and they remain free to conduct their lives accordingly and to urge others to do the same. At the same time, it is quite clear that for the state to impose such views on everyone in our society would conflict with the values of the Constitution, were such to be enacted in the current era. [] Given the importance of legal continuity, however, the question is whether an overall purpose can be ascribed to the act, which is reasonably capable of bearing a meaning consistent with our current constitutional values. In our view, the act does overall continue to pursue an important and legitimate constitutional purpose, namely the control of commercial sex. It is true that some of its provisions are formulated in inappropriate language reminiscent of preconstitutional mores. However, we are not satisfied that the appellants have established that the overall purpose of the legislation is manifestly inconsistent with the values of our new order. [] In essence, the argument in favor of providing constitutional protection for the existence of brothels turns on the contention that the fundamental rights of prostitutes to freedom and security of the person can better be protected in brothels than out on the streets. All the reasons, however, for holding that it is open to the legislature in its judgment to seek to suppress prostitution as an economic activity so as to improve the quality of life in South Africa apply with equal if not stronger force to the prohibition of brothels. Similarly, if the rights to dignity and freedom of individual prostitutes are not limited by the Act, even less so are such rights challenged in the case of brothel-keepers. The same considerations apply to privacy. The reduced rights which prostitutes might have become even more attenuated as far as brothel-keepers are concerned. Here the legislature must have a wide discretion. The issues of controlling and regulating sexual activity are complex. Attitudes vary over time and from country to country. Competing policy considerations have to be attended to and the problems of law enforcement in this area are particularly acute.

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Legal Cases (–)

Attention has to be paid to the interest of neighbors. Many voices need to be heard. This is very much an area for legislative choice in which proposals made by the Law Commission could be particularly helpful. [] We conclude therefore that, in the light of the proper interpretation of the sections, the High Court was correct in concluding that sections , (b), and (c) do not infringe the Constitution. [] Counsel for the state asked us to suspend the order of invalidity for a period of between twenty-four and thirty-six months. His reasoning was the following: in determining whether to suspend an order of constitutional invalidity, the purpose which is served by the impugned legislation must be weighed against the constitutional violation which is effected by the legislation. An important consideration is whether an immediate striking-down would cause disorder or dislocation. If an immediate striking-down would be prejudicial to good governance, the order of constitutional invalidity should be suspended and Parliament should be afforded a period of time in which to correct the defects. It would lead to highly undesirable consequences if the impugned provisions of the Sexual Offences Act were to be declared unconstitutional with immediate effect. This would create a vacuum during which there would be no regulation of sex work whatsoever. Such a free-for-all would be the worst of all possible worlds. He argued that it is necessary to regulate sex work in pursuit of several important public interests. All of these considerations of public interest would be undermined if prostitutes were allowed to ply their trade in an unregulated environment whilst Parliament attempted to draft new legislation. It would take at least twenty-four months to draft appropriate legislation to regulate prostitution and brothel keeping. [] Counsel for the appellants, on the other hand, contended that such suspension would be neither just nor equitable nor practically necessary, whether viewed from the point of view of the interests of the sex worker or from the point of view of the interests of society generally. From the point of view of the sex worker, there is no reason why a delay is necessary to protect her interests or the interests of the group as a whole. Indeed, any delay in suspension simply denies the sex worker access to the protection of the laws already in place. An order striking down section ()(aA) with immediate effect would do much to ameliorate the adverse conditions presently affecting sex workers in the same industry. The longer the delay in lifting the criminal sanction, the longer sex workers suffer the harms associated with it. Only when the criminal sanction is removed can the associated stigma and violence be mitigated. Counsel for the amici took a similar position, arguing that there were no cogent reasons as to why a declaration of invalidity should be suspended. [] In our view, the above arguments do not give sufficient weight to the fact that the invalidity of the section stems not from unjustifiable limitation of a fundamental right to privacy, but from the discriminatory impact of a prohibition, which the legislature may validly impose. It would accordingly be premature for prostitutes to embark on a process of attempting to normalize their work in a decriminalized

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atmosphere. Although decriminalization is a valid option for Parliament, it is not one that is constitutionally required. All that is required of Parliament is that, if it chooses to criminalize prostitution, it may not do so in an unfairly discriminatory fashion. NOTE . S. Woolman, Freedom of Association in Constitutional Law of South Africa chapter  (nd Edition, S. Woolman et al. eds, OS, December ).

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Khosa

Khosa and Others v. Minister of Social Development and Others; Mahlaule and Others v. Minister of Social Development and Others  () SA  (CC) CASE SUMMARY

Facts Section (c) of the Social Assistance Act  of  reserved social grants solely for aged South African citizens. Sections (b)(ii) and B(b)(ii) of the act, as amended by the Welfare Laws Amendment Act  of , reserved child-support grants and care-dependency grants for South African citizens only. The applicants were Mozambican citizens and permanent residents of South Africa.

Legal History The applicants in the two matters approached the Transvaal Provincial Division of the High Court for an order declaring the impugned provisions invalid. The High Court found that the provisions were indeed inconsistent with the Constitution. The High Court held that section , the right to access to social security, read with section , the right to equality, required the state to provide the social grants to all indigent residents who met the criteria for assistance—irrespective of citizenship. The High Court referred the order of invalidity to the Constitutional Court for confirmation. Issues Does the limitation of social assistance grants to South Africans infringe the right of the applicants to access to social security in terms of section ()(c) of the Constitution?

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Decision of the Constitutional Court The High Court, in finding in favor of the applicants, and striking down the impugned provisions, failed to replace the offending sections with any criteria that might limit the state’s obligation to provide social assistance to indigent persons living within South Africa’s borders. The Constitutional Court’s holding was substantially more limited in scope. The court held that the right to social security vests in “everyone.” Everyone, for the purposes of section ()(c), embraces permanent residents. Part of the rationale for this finding was that permanent residents—like citizens—were legally entitled to be in South Africa and were required to accept and to discharge the responsibilities that fell on all legally present denizens of South Africa. The distinction the act made between citizens and permanent residents “sanctioned unequal treatment of [an accepted] part of the South African community,” had “a strong stigmatizing effect” on that part of the South African society and therefore violated the right to equality (paragraph ). For our purposes, it is important to note that the court reached this conclusion on the grounds that “the exclusion of permanent residents in need . . . [from] social-security programs” has “a serious impact on [their] dignity” (paragraph ,; emphasis added. Order As a remedy, the court read the phrase “permanent resident” into each of the impugned and invalid provisions. Despite the unusual step of granting specific relief to a class of persons denied access to a section  socio-economic right—as opposed to finding that state’s current policy did not meet the criteria for reasonableness— the court’s remedy is restricted to a quantifiable and rather limited group of persons who would benefit from such access. JUSTICE MOKGORO

The Approach to Claims for Socio-Economic Rights [] [. . .] The socio-economic rights in our Constitution are closely related to the founding values of human dignity, equality and freedom. Justice Yacoob observed in Government of the Republic of South Africa and Others v. Grootboom and Others [ () SA  (CC) ( () BCLR )] that the proposition that rights are interrelated and are all equally important, has immense human and practical significance in a society founded on these values. [] In this case we are concerned with these intersecting rights, which reinforce one another at the point of intersection. The rights to life and dignity, which are intertwined in our Constitution, are implicated in the claims made by the applicants. This court in Dawood said: Human dignity . . . informs constitutional adjudication and interpretation at a range of levels. It is a value that informs the interpretation of many, possibly

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all, other rights. . . . 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 labor.

[] Equality is also a foundational value of the Constitution and informs constitutional adjudication in the same way as life and dignity do. Equality in respect of access to socio-economic rights is implicit in the reference to “everyone” being entitled to have access to such rights in section . Those who are unable to survive without social assistance are equally desperate and equally in need of such assistance. [] This court has dealt with socio-economic rights on four previous occasions. What is clear from these cases is that section () and section () cannot be viewed as separate or discrete rights creating entitlements and obligations independently of one another. Section () exists as an internal limitation on the content of section () and the ambit of the section () right can therefore not be determined without reference to the reasonableness of the measures adopted to fulfill the obligation towards those entitled to the right in section (). [] When the rights to life, dignity and equality are implicated in cases dealing with socio-economic rights, they have to be taken into account along with the availability of human and financial resources in determining whether the state has complied with the constitutional standard of reasonableness. This is, however, not a closed list and all relevant factors have to be taken into account in this exercise. What is relevant may vary from case to case depending on the particular facts and circumstances. What makes this case different to other cases that have previously been considered by this court is that, in addition to the rights to life and dignity, the social-security scheme put in place by the state to meet its obligations under section  of the Constitution raises the question of the prohibition of unfair discrimination. [] It is also important to realize that even where the state may be able to justify not paying benefits to everyone who is entitled to those benefits under section  on the grounds that to do so would be unaffordable, the criteria upon which they choose to limit the payment of those benefits (in this case citizenship) must be consistent with the Bill of Rights as a whole. Thus if the means chosen by the legislature to give effect to the state’s positive obligation under section  unreasonably limits other constitutional rights, that too must be taken into account.

The Ambit of the Right of Access to Social Security in Terms of Section ()(c) [] The socio-economic rights in sections  and  of the Constitution are conferred on “everyone” by subsection () in each of those sections. In contrast, the

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state’s obligations in respect of access to land apply only to citizens. Whether the right in section  is confined to citizens only or extends to a broader class of persons therefore depends on the interpretation of the word “everyone” in that section. The applicants relied on section  of the Constitution, as well as various other rights in the Bill of Rights, to argue that “everyone” in section  included noncitizens and therefore also (for the purposes of this case) permanent residents. [] This court has adopted a purposive approach to the interpretation of rights. Given that the Constitution expressly provides that the Bill of Rights enshrines the rights of “all people in our country,” and in the absence of any indication that the section () right is to be restricted to citizens as in other provisions in the Bill of Rights, the word “everyone” in this section cannot be construed as referring only to “citizens.”

The Reasonableness of the Legislative Scheme [] A court considering the reasonableness of legislative or other measures taken by the state will not enquire into whether other more desirable or favorable measures could have been adopted, or whether public resources could have been better spent. A wide range of possible measures could be adopted by the state to meet its obligations and many of these may meet the requirement of reasonableness. Once it is shown that the measures do so, this requirement would be met. [] In dealing with the issue of reasonableness, context is all-important. We are concerned here with the right to social security and the exclusion from the scheme of permanent residents who, but for their lack of citizenship, would qualify for the benefits provided under the scheme. In considering whether that exclusion is reasonable, it is relevant to have regard to the purpose served by social security, the impact of the exclusion on permanent residents and the relevance of the citizenship requirement to that purpose. It is also necessary to have regard to the impact that this has on other intersecting rights. In the present case, where the right to social assistance is conferred by the Constitution on “everyone” and permanent residents are denied access to this right, the equality rights entrenched in section  are directly implicated. Financial Considerations [] I accept that the concern that noncitizens may become a financial burden on the country is a legitimate one and I accept that there are compelling reasons why social benefits should not be made available to all who are in South Africa irrespective of their immigration status. The exclusion of all noncitizens who are destitute, however, irrespective of their immigration status, fails to distinguish between those who have become part of our society and have made their homes in South Africa, and those who have not. It also fails to distinguish between those who are being supported by sponsors who arranged their immigration and those who acquired permanent residence status without having sponsors to whom they could turn in case of need.

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[] It may be reasonable to exclude from the legislative scheme workers who are citizens of other countries, visitors and illegal residents, who have only a tenuous link with this country. The position of permanent residents is, however, quite different to that of temporary or illegal residents. They reside legally in the country and may have done so for a considerable length of time. Like citizens, they have made South Africa their home. While citizens may leave the country indefinitely without forfeiting their citizenship, permanent residents are compelled to return to the country (except in certain circumstances) at least once every three years. While they do not have the rights tied to citizenship, such as political rights and the right to a South African passport, they are, for all other purposes mentioned above, in much the same position as citizens. Once admitted as permanent residents they can enter and leave the country. Their homes and no doubt in most cases their families too, are in South Africa. Some will have children born in South Africa. They have the right to work in South Africa, and even owe a duty of allegiance to the state. For these reasons, exclude temporary residents and it would have been appropriate for the High Court to have done so. [] The respondents also sought to deny the benefit to permanent residents on the grounds that this would impose an impermissibly high financial burden on the state. The respondents relied for this point on an affidavit deposed to by Mr. Kruger, the chief director of social services in the National Treasury. According to him, the development of a system of social grants has been a key pillar of the government’s strategy to fight poverty and promote human development. This has led to a substantial and rapid increase in expenditure on social grants. In the last three years alone the expenditure, excluding costs of administration, has increased from R. billion to R. billion. It is contemplated that over the next three years grants will increase from R. billion to R. billion. In addition, provision has to be made for expenditure on other socio-economic programs. Mr. Kruger says that if provision has to be made for the expenditure necessary to give effect to the High Court order, the costs will be large and will result in shortfalls in provincial budgets, particularly in the poorer provinces. [] Mr. Kruger indicates that there is a paucity of information concerning the number of persons who might qualify for grants if they are extended to permanent residents. He refers to various classes of persons who have been exempted from the normal immigration requirements and have been accorded permanent residence status. They include Mozambican refugees and various persons from members of the Southern African Development Community and other African countries. He estimates that there are at least , such persons currently in South Africa. Most of these permanent residents have been living in South Africa for a considerable period of time. In the case of the applicants, they have all been in South Africa since  or longer. The respondents were unable, however, to furnish this court with information relating to the numbers who hold permanent resident status, or who would qualify for social assistance if the citizenship barrier were to be removed.

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[] Respondents relied in their argument on the decision of a United States Appellate Court in City of Chicago v. Shalala [ F d  (th Cir )]. In that case it was held that the relevant legislative provisions that disqualified noncitizens, who were legal permanent residents from participation in the scheme, were not inconsistent with the equal protection clause of the US Constitution. In reaching its decision the court applied a rational basis standard of review, holding that there was a rational connection between the federal government’s immigration policy and its welfare policy of encouraging the self-sufficiency of immigrants. [] The test for rationality is a relatively low one. As long as the government purpose is legitimate and the connection between the law and the government purpose is rational and not arbitrary, the test will have been met. Despite the failure of many of the respondents’ arguments with respect to the purpose of the exclusion of permanent residents from the social-assistance scheme, I am prepared to assume that there is a rational connection between the citizenship provisions of the act and the immigration policy it is said to support. But that is not the test for determining constitutionality under our Constitution. Section () of the Constitution sets the standard of reasonableness, which is a higher standard than rationality.

Is There Unfair Discrimination? [] The fact that the differentiation between citizens and noncitizens may have a rational basis does not mean that it is not an unfairly discriminatory criterion to use in the allocation of benefits. If the differentiation is based on a ground listed in section () of the Constitution a rebuttable presumption that the discrimination is unfair is created by section (). However, where, as in this case, the ground for the differentiation is not itself listed but is analogous to such listed grounds, there is no presumption in favor of unfairness and the unfairness first has to be established. [] In President of the Republic of South Africa and Another v. Hugo [ () SA  (CC) ( () BCLR )] Justice Goldstone stated that: At the heart of the prohibition of unfair discrimination lies a recognition that the purpose of our new constitutional and democratic order is the establishment of a society in which all human beings will be accorded equal dignity and respect regardless of their membership of particular groups. The achievement of such a society in the context of our deeply inegalitarian past will not be easy, but that that is the goal of the Constitution should not be forgotten or overlooked. To determine whether that impact was unfair it is necessary to look not only at the group who has been disadvantaged but at the nature of the power in terms of which the discrimination was effected and, also at the nature of the interests which have been affected by the discrimination.

[] Citizenship is not a ground of differentiation that is specified in section () of the Constitution. In Hoffmann v. South African Airways [ () SA  (CC)

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( () BCLR )] this court held that “at the heart of the prohibition of unfair discrimination is the recognition that under our Constitution all human beings, regardless of their position in society, must be accorded equal dignity.” To be considered an analogous ground of differentiation to those listed in section () the classification must, therefore, have an adverse effect on the dignity of the individual, or some other comparable effect. [] In Larbi-Odam the court found that discrimination on the basis of citizenship in the context of permanent employment amounted to unfair discrimination. With respect to permanent residents the court had the following to say: [Permanent residents] have been selected for residence in this country by the Immigrants Selection Board, some of them on the basis of recruitment to specific posts. Permanent residents are generally entitled to citizenship within a few years of gaining permanent residency, and can be said to have made a conscious commitment to South Africa. Moreover, permanent residents are entitled to compete with South Africans in the employment market. As emphasized by the appellants, it makes little sense to permit people to stay permanently in a country, but then to exclude them from a job they are qualified to perform.

With regard to the vulnerability of permanent residents, the court in Larbi-Odam found that first, foreign citizens are a minority in all countries, and have little political muscle. Secondly, the court felt that citizenship is a personal attribute that is difficult to change. The respondents argued in this court that citizenship is not a matter within the discretion of the minister of home affairs, and that the state would be compelled to grant citizenship to persons who have resided in South Africa for five years and who satisfy the other criteria required for citizenship by naturalization. Even if that were true (and it is not necessary to decide the point) it remains so that citizenship is typically not within the control of the individual and is, at least temporarily, a characteristic of personhood not alterable by conscious action and in some cases not alterable except on the basis of unacceptable costs. It is also true, as was noted in Larbi-Odam, that in the South African context individuals were deprived of rights or benefits ostensibly on the basis of citizenship, but in reality in circumstances where citizenship was governed by race. Differentiation on the grounds of citizenship is clearly on a ground analogous to those listed in section () and therefore amounts to discrimination. [] With this said, one must now determine whether that discrimination is unfair. The determining factor regarding the unfairness of the discrimination is its impact on the person discriminated against.

The Impact of the Exclusion [] The exclusion of permanent residents in need of social security programs forces them into relationships of dependency upon families, friends and the community in which they live, none of whom may have agreed to sponsor the immigration of

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such persons to South Africa. These families or dependants, who may be in need of social assistance themselves, are asked to shoulder burdens not asked of other citizens. The denial of the welfare benefits therefore impacts not only on permanent residents without other means of support, but also on the families, friends, and communities with whom they have contact. Apart from the undue burden that this places on those who take on this responsibility, it is likely to have a serious impact on the dignity of the permanent residents concerned who are cast in the role of supplicants. [] As far as the applicants are concerned, the denial of the right is total and the consequences of the denial are grave. They are relegated to the margins of society and are deprived of what may be essential to enable them to enjoy other rights vested in them under the Constitution. Denying them their right under section () therefore affects them in a most fundamental way. In my view this denial is unfair. [] I have already indicated that the exclusion of permanent residents from the scheme is discriminatory and unfair and I am satisfied that this unfairness would not be justifiable under section  of the Constitution. The relevant considerations have been traversed above and need not be repeated. What is of particular importance in my view, however, and can be stressed again, is that the exclusion of permanent residents from the scheme is likely to have a severe impact on the dignity of the persons concerned, who, unable to sustain themselves, have to turn to others to enable them to meet the necessities of life and are thus cast in the role of supplicants. [] The denial of access to social assistance is total, and for as long as it endures, permanent residents unable to sustain themselves or to secure meaningful support from other sources will be relegated to the margins of society and deprived of what may be essential to enable them to enjoy other rights vested in them under the Constitution. Denying permanent residents access to social security therefore affects them in a most fundamental way. [] In my view, the importance of providing access to social assistance to all who live permanently in South Africa and the impact upon life and dignity that a denial of such access has far outweighs the financial and immigration considerations on which the State relies. For the same reasons, I am satisfied that the denial of access to social grants to permanent residents who, but for their citizenship, would qualify for such assistance, does not constitute a reasonable legislative measure as contemplated by section () of the Constitution. [] The Constitution vests the right to social security in “everyone.” By excluding permanent residents from the scheme for social security, the legislation limits their rights in a manner that affects their dignity and equality in material respects. Dignity and equality are founding values of the Constitution and lie at the heart of the Bill of Rights. Sufficient reason for such invasive treatment of the rights of permanent residents has not been established. The exclusion of permanent residents is therefore inconsistent with section  of the Constitution. [] Once the court has found constitutional inconsistency, it must declare invalidity to the extent of the inconsistency. The court may then make an order that is

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“just and equitable.” In this case, the impugned provisions are inconsistent with the Constitution in that they exclude permanent residents from access to social security on the basis that they are noncitizens. The declaration of invalidity therefore does not affect the full extent of the impugned provisions. In such circumstances, the approach of this court has been to declare only the relevant part of the impugned legislation inconsistent with the Constitution. [] When courts consider a remedy following a declaration of invalidity of a statute, the question of remedial precision, which relates directly to respect for the role of the legislature, is an important consideration. As permanent residents are not included in the allocation of social grants in section (b)(ii) of the act, remedying the defect with the necessary precision would require the reading in of the curing words, rather than striking down the impugned provisions and suspending the declaration of invalidity, as submitted by the respondents. Suspending the declaration of invalidity would, in my view, not constitute a “just and equitable order” as contemplated by section ()(b) of the Constitution. There is every reason not to delay payment of social grants any further to the applicants and those similarly situated. Even if this court were to grant interim relief to the applicants during the period of suspension, other permanent residents would be barred from applying until the end of the period of suspension. Striking down without an order of suspension is not appropriate either, as it would make the grants instantly available to all residents including visitors within South Africa who satisfy the other criteria. [] Reading in the words “or permanent resident” after “South African citizen” in section (c) and “or permanent residents” after “South African citizens” in section (b)(ii) offers the most appropriate remedy as it retains the right of access to social security for South African citizens while making it instantly available to permanent residents. JUSTICE NGCOBO [] This case presents a novel question in the context of socio-economic rights. In the past this court has been called upon to evaluate programs that the state has put in place in order to determine whether they comply with the Constitution. In this case, the state has put in place a scheme for social welfare assistance to meet its obligations under the Constitution. The contents of the scheme are not in issue. The only complaint is that access to the benefits system is limited to citizens only. We are therefore not concerned with what should be made available to those in need but with who among the needy should receive the social welfare benefits.

The Problem of the Governing Constitutional Provisions [] Two interesting and difficult questions arise. The first is conceptual: Which provisions of the Constitution should govern the constitutional challenge involved in this case? The right of access to social security is no doubt implicated because this

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case is concerned with access to social security. But the impugned provisions exclude noncitizens from benefiting from the scheme. The exclusion of noncitizens from the scheme manifestly implicates the right not to be discriminated against. This question was not addressed in argument. It need not be considered on this occasion. The outcome would be the same under either constitutional provision. [] My colleague, Justice Mokgoro, has approached the matter on the footing that the right of access to social security governs the question presented in this case. There is much to be said for this view. The parties themselves have framed the legal issue as involving the right of permanent residents not to be excluded from the benefits system. On this logic, the primary right implicated is guaranteed by section  of the Constitution. The constitutional validity of the exclusion must therefore be examined by reference to the right to have access to social security. But, as the main judgment acknowledges in this case, the result under either of these constitutional provisions would be the same. [] That is not to say that the other rights asserted by the applicants do not enter the picture. The Bill of Rights is the cornerstone of our constitutional democracy and it “affirms the democratic values of human dignity, equality and freedom.” The founding values will inform most, if not all, of the rights in the Bill of Rights. Socio-economic rights must be understood in the context of the founding values of our Constitution. Access to socio-economic rights is crucial to the enjoyment of the other rights mentioned in the Bill of Rights, in particular the enjoyment of human dignity, equality, and freedom. A denial of access to a social welfare scheme may, as demonstrated by this case, therefore have an impact on more than one constitutional right. We are therefore concerned with a statute implicating multiple constitutional rights that reinforce one another at their point of intersection. [] Section () vests a right of access to social security in “everyone.” The constitutional reference to “everyone” implies that all in need must have access to the social welfare scheme that the state has put in place. Where some who are in need are excluded, everyone does not have access to the scheme. The word “everyone” is a term of general import and unrestricted meaning. It means what it conveys. Once the state puts in place a social welfare system, everyone has a right to have access to that system. [] However, that does not mean that there can be no limitation imposed on those who may have access to that system. The Constitution contemplates that the rights in the Bill of Rights “are subject to limitations contained or referred to in section , or elsewhere in the Bill.” The right to have access to social security, which is a right contained in the Bill of Rights, is therefore subject to limitation in terms of section . [] Confining social security to citizens in the act does constitute a limitation on the right of access to social security of those applicants who are not citizens. What has to be determined therefore is whether that limitation is reasonable and justifiable in terms of section . And this question involves a proportionality analysis that

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takes into account the nature of the right, the nature and extent of the limitation, the importance of the purpose of the limitation, the relationship between the limitation and purpose and the existence of less restrictive means to achieve that purpose.

Is the Limitation Justifiable? [] The importance of the right in issue cannot be gainsaid. It is a right that goes to one of the core values of our Constitution—human dignity. The state has an obligation to ensure that its citizens have access to basic needs such as food, clean water, and shelter. Social security is a vital component of the social system that is available for those who cannot provide these basic needs for themselves or their families. [] However, the limitation imposed by the impugned statutory provisions on permanent residents is neither absolute nor permanent. It is true that only citizens can qualify for social security under the act. But a permanent resident becomes eligible for citizenship after a fixed period of time. Under section () of the South African Citizenship Act  of , a permanent resident need only have resided continuously in the Republic for a period of five years in order to qualify for citizenship by naturalization. [] It is also true that the five-year waiting period could prove harmful to permanent residents who are unable to provide for themselves, just as it might prove harmful to a South African citizen who has to wait for five years to reach the qualifying age for a social grant. But recognizing this possibility, the law also includes a provision for such individuals to obtain benefits during this interim period. Under section ()(a) of the South African Citizenship Act, the minister “may under exceptional circumstances grant a certificate of naturalization as a South African citizen to an applicant who does not comply with the requirements of the said subsection () relating to residence or ordinary residence in the Republic.” [] It is therefore plain from these provisions that a permanent resident can get social benefits after five years, but that the state can waive the residential waiting period for permanent residents in exceptional cases. From this, it must follow that permanent residents need not always wait for five years to become citizens and thus become eligible for social security. [] The state is justifiably concerned about the impact of providing social security benefits to noncitizens on the state finance and its ability to provide expenditure on other socio-economic rights. Mr. Kruger, the Chief Director of Social Services in the National Treasury, tells us that the war on poverty has led to a substantial and rapid increase in expenditure. Expenditure on social grants has increased from R. billion to R. billion and this is expected to increase to R. billion over the next three years. These figures show an increasing demand for social grants. [] The fact that the increase is not huge is not relevant. The fact of the matter is that there will be an increase; how huge that increase will be, will be determined by an increase in the number of permanent residents. What makes it difficult to pre-

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dict the number of persons who might qualify, is that there is no clear information about the number of people who might qualify under a more generous immigration regime. And if there is merit in the possibility that the state could become a magnet for new immigrants seeking permanent resident status, estimating the likely size of the pool of grant applicants and an accurate estimate of the financial burden would be even more arduous a task. [] There is a further reason, which is implicit in the reasons advanced by the state. The state’s policy encourages the naturalization process. As pointed out earlier, temporary and permanent resident statuses are both precursors to the full commitment of citizenship. By crafting the benefits rule so that only citizens qualify, the statute provides a legitimate incentive for an alien to become a citizen. The unequivocal declaration of loyalty and commitment that an alien can give to a country is through naturalization and taking the oath of allegiance. After this a permanent resident becomes a citizen and thus qualifies for social security benefits. [] I accept that the applicants were entitled to test the validity of the impugned provisions. However, one should not lose sight of the fact that the applicants have lived in this country since the s. They, therefore, qualify for naturalization and acquisition of citizenship in South Africa. None have applied, nor have any advanced reasons why they have not applied. Had they applied for citizenship or even sought an exception, they would have qualified for social security benefits under the statutes. I draw attention to this fact to illustrate the limited nature and impermanence of the limitation involved in this case. Unlike the case of minors, these adult noncitizens are quite capable of obtaining citizenship but have chosen not to exercise their option. [] The state’s management and control of the immigration process is a legitimate purpose. No careful immigration policy can foresee that an immigrant once admitted will fall upon hard times and thus become unable to provide for him or herself. The policy of the act is to admit only those who are self-sufficient and will not be a burden on the state. This is in any event a temporary phase, for after they have been permanent residents for five years, they may qualify for citizenship. However, the immigrants who become destitute are not abandoned to destitution. As pointed out earlier, they can seek designation as “citizens” for the purpose of qualifying for benefits under the act or request that the five-year residence requirement be waived and thus expedite their naturalization under the South African Citizenship Act and ultimately, entitlement to social welfare benefits. [] Weighing up the competing considerations, in particular having regard to the fact that the limitation in issue here is neither absolute nor permanent, I am satisfied that the limitation imposed by section  of the act is reasonable and justifiable under section () of the Constitution.

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Daniels v. Campbell NO and Others  () SA  (CC) CASE SUMMARY

Facts Section  of the Intestate Succession Act  of  confers certain rights of inheritance on a surviving spouse whose wife or husband died intestate. Section () of the Maintenance of Surviving Spouses Act  of  similarly confers on a surviving spouse the right to a claim against the estate of the deceased spouse for his or her reasonable maintenance until remarriage or death, insofar as the surviving spouse does not have the means to provide for him- or herself. Neither statute defines the word “spouse.” The applicant was married to her deceased husband according to Muslim rites. And although the marriage was at all times monogamous, it had never been solemnized by a duly authorized marriage officer in terms of the Marriage Act  of . The Master of the High Court therefore did not recognize their marriage of just less than twenty years as a valid marriage in terms of South African law. The master informed the applicant that she was not eligible to inherit from or have a claim for maintenance against the intestate estate of her deceased husband as she was not a “surviving spouse” in terms of Intestate Succession Act and the Maintenance of Surviving Spouses Act. The major asset in his estate was a modestly valued house in which the applicant had lived in for almost thirty years. She had also contributed to renting and eventually purchasing the house. She therefore sought a declaration from the High Court that she was a spouse in terms of the relevant acts; and

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alternatively a declaration that the acts were inconsistent with the Constitution because they discriminated unfairly against Muslim marriages.

Legal History The matter came before the Cape Provincial Division of the High Court. Justice Van Heerden held that the word “spouse” in the Intestate Succession Act and the Maintenance of Surviving Spouses Act had to be given its traditional limited meaning. This reading, the judge held, followed the decisions of the Constitutional Court in National Coalition for Gay and Lesbian Equality and Others v. Minister of Home Affairs and Others  () SA  (CC) and Satchwell v. President of the Republic of South Africa and Another  () SA  (CC). In both cases, the Constitutional Court had held that “spouse” as used in the relevant legislation was not reasonably capable of so broad a construction as to include partners in permanent same-sex life partnerships. Accordingly, as the applicant’s marriage to the deceased was not recognized by South African law, she did not qualify as a surviving spouse in terms of the two statutes. Justice Van Heerden held that the two statutes constituted a violation of the applicant’s right to equality and that the provisions were inconsistent with the Constitution. In order to remedy this inconsistency, she read in words to the effect that “spouse” included a husband or wife married in accordance with Muslim rites in a de facto monogamous union. The applicant then applied to the Constitutional Court for confirmation of the High Court’s order. Issues The sole issue before the Constitutional Court was whether the denial of benefits by the two statutes to a surviving spouse in a Muslim marriage was constitutionally infirm. If—as all the parties save for the executors accepted—the denial of benefits was unconstitutional, the issue arose as to whether the word “spouse” in the Intestate Succession Act and the Maintenance of Surviving Spouses Act was capable of including people married in accordance with Islamic rites. Decision of the Constitutional Court The majority held that linguistically the meaning of the word “spouse” can rather easily be interpreted to include parties to a Muslim marriage. In fact, the act’s meaning the word’s plain meaning by excluding people married in accordance with Islamic rights. The act’s limited construction was a function of prejudice and discrimination (paragraphs –). Justice Sachs held that such a discriminatory interpretation could no longer be sustained and the equitable principles underlying the two statutory provisions should apply equally to Muslim widows. The court also pointed out that such an inclusive interpretation would not imply the general recognition of Islamic marriages for other purposes. Its holding is limited to the discriminatory application of a particular statute.

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Order The acts, interpreted properly to include Muslim marriages, were not unconstitutional. The order of the High Court declaring the provision invalid could not be confirmed. The acts, interpreted properly, did entitle the applicant to benefit from her late husband’s estate. Comment The majority in Daniels held that it does not strain the ordinary meaning of the word “spouse” to interpret it to include a partner to a monogamous Muslim marriage, drawing such people into the ambit of the Intestate Succession Act and the Maintenance of Surviving Spouses Act. In the majority decision in Fourie, a later judgment also penned by Justice Sachs, the exclusion of same-sex couples from the common law and statutory definitions of marriage was similarly found to be unconstitutional. However, Justice Sachs in Fourie suspended the order of invalidity, leaving open the legislative option of creating a parallel regime for same-sex marriage. Assuming that both confer the same rights and obligations on spouses, which approach to the recognition of marriage—the unitary, inclusive (Daniels) or the parallel (Fourie)— is more consonant with the right to human dignity? Can “separate but equal” ever result in equal respect and concern? Would some religious or cultural communities prefer to be regulated by a separate statutory framework? JUSTICE SACHS [] [. . .] The word “spouse” in its ordinary meaning includes parties to a Muslim marriage. Such a reading is not linguistically strained. On the contrary, it corresponds to the way the word is generally understood and used. It is far more awkward from a linguistic point of view to exclude parties to a Muslim marriage from the word “spouse” than to include them. Such exclusion as was effected in the past did not flow from courts giving the word “spouse” its ordinary meaning. Rather, it emanated from a linguistically strained use of the word flowing from a culturally and racially hegemonic appropriation of it. Such interpretation owed more to the artifice of prejudice than to the dictates of the English language. Both in intent and impact the restricted interpretation was discriminatory, expressly exalting a particular concept of marriage, flowing initially from a particular worldview, as the ideal against which Muslim marriages were measured and found to be wanting. [] Discriminatory interpretations deeply injurious to those negatively affected were in the conditions of the time widely accepted in the courts. They are no longer sustainable in the light of our Constitution. In Investigating Directorate: Serious Economic Offences and Others v. Hyundai Motor Distributors (Pty) Ltd and Others: In re Hyundai Motor Distributors (Pty) Ltd and Others v. Smit NO and Others [ () SA  (CC)] Deputy President Langa stated that:

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The Constitution is located in a history which involves a transition from a society based on division, injustice and exclusion from the democratic process to one which respects the dignity of all citizens, and includes all in the process of governance. As such, the process of interpreting the Constitution must recognize the context in which we find ourselves and the Constitution’s goal of a society based on democratic values, social justice and fundamental human rights. This spirit of transition and transformation characterizes the constitutional enterprise as a whole. . . . The Constitution requires that judicial officers read legislation, where possible, in ways which give effect to its fundamental values. Consistently with this, when the constitutionality of legislation is in issue, they are under a duty to examine the objects and purport of an act and to read the provisions of the legislation, so far as is possible, in conformity with the Constitution.

[] In the present matter the constitutional values of equality, tolerance and respect for diversity point strongly in favor of giving the word “spouse” a broad and inclusive construction, the more so when it corresponds with the ordinary meaning of the word. The issue is not whether to impose some degree of strain on the language in order to achieve a constitutionally acceptable result. It is whether to remove the strain imposed by past discriminatory interpretations in favor of its ordinary meaning. [] A contextual analysis of the manner in which the word “spouse” is used in the two acts reinforces the justification for this approach. An important purpose of the statutes is to provide relief to a particularly vulnerable section of the population, namely, widows. Although the acts are linguistically gender-neutral, it is clear that in substantive terms they benefit mainly widows rather than widowers. The value of nonsexism is foundational to our Constitution and requires a hard look at the reality of the lives that women have been compelled to lead by law and legally backed social practices. This, in turn, necessitates acknowledging the constitutional goal of achieving substantive equality between men and women. The reality has been and still in large measure continues to be that in our patriarchal culture men find it easier than women to receive income and acquire property. Moreover, social, and institutional practice has been to register homes in the name of the male “heads of households,” as was done by the council in the present matter. Widows for whom no provision had been made by will or other settlement were not protected by the common law. The result was that their bereavement was compounded by dependence and potential homelessness—hence the statutes. [] The present case illustrates well why statutory protection was deemed necessary. A long-standing dispute between the applicant and some of the descendants of the deceased has resulted in her facing eviction from the home that was originally hers, and in which she has lived for three decades. The applicant signed her affidavit with a cross. She does not belong to that section of society that has lawyers at hand

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to draft wills and arrange property settlements. In any event, it did not lie in her hands to compel the deceased to make provision for her. The acts were introduced to guarantee what was in effect a widow’s portion on intestacy as well as a claim against the estate for maintenance. The objective of the acts was to ensure that widows would receive at least a child’s share instead of their being precariously dependent on family benevolence. There seems to be no reason why the equitable principles underlying the statutes should not apply as tellingly in the case of Muslim widows as they do to widows whose marriages have been formally solemnized under the Marriage Act. The manifest purpose of the acts would be frustrated rather than furthered if widows were to be excluded from the protection the acts offer, just because the legal form of their marriage happened to accord with Muslim tradition and not the Marriage Act. [] This was the reasoning underlying the decision in Amod, which concerned the rights of a Muslim widow to claim relief from the Multilateral Motor Vehicle Accidents Fund. Chief Justice Mahomed held that the insistence that the duty of support which a serious de facto monogamous marriage imposed on the husband was not worthy of protection, could only be justified on the basis that the only duty of support which the law will protect in such circumstances was a duty flowing from a marriage solemnized and recognized by one faith or philosophy to the exclusion of others. This was inconsistent with the new ethos of tolerance, pluralism, and religious freedom which had consolidated itself even before the adoption of the Interim Constitution. Dealing with the argument that Muslim couples suffered no special discrimination because they were free to solemnize their marriages in terms of the Marriage Act and thus acquire for their relationship the status of a civil marriage, he held that for purposes of the dependant’s action the decisive issue was not whether the dependant concerned was or was not lawfully married to the deceased but whether the deceased was under a legal duty to support the dependant in a relationship which deserved recognition and protection at common law. [] [. . .] Put another way, it is not whether it had been open to the applicant to solemnize her marriage under the Marriage Act, but whether, in terms of “common sense and justice” and the values of our Constitution, the objectives of the acts would best be furthered by including or excluding her from the protection provided. The answer, as in Amod, must be in favor of the interpretation which is consistent with the ordinary meaning of the word “spouse,” aligns itself with the spirit of the Constitution and furthers the objectives of the acts. [] It is important to underline the limited effect of such an inclusive interpretation. As in Amod, it eliminates a discriminatory application of particular statutes without implying a general recognition of the consequences of Muslim marriages for other purposes. Accordingly, the recognition which it accords to the dignity and status of Muslim marriages for a particular statutory purpose, does not have any implications for the wider question of what legislative processes must be followed before aspects of the shariah may be recognized as an enforceable source under South African law.

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[] The fact that many statutes adopted in recent times dealing with married persons expressly include parties to Muslim unions under their provisions is indicative of a new approach consistent with constitutional values. The existence of such provisions in other statutes does not imply that their absence in the acts before us has special significance. The Intestate Succession Act and the Maintenance of Surviving Spouses Act were both last amended before the era of constitutional democracy arrived. The fact that the new democratic Parliament has not as yet included Muslim marriages expressly within the purview of the protection granted by the acts, accordingly, cannot be interpreted so as to exclude them contrary to the spirit, purport, and objects of the Constitution. [] In my view, a proper reading of National Coalition and Satchwell does not lead to the conclusion that partners to a Muslim marriage do not fall under the term “spouse.” [] In the first place, there is no express statement in either judgment referring to solemnization under the Marriage Act as a precondition for parties to be considered to be spouses. For the purposes of the statutes being construed in those cases, it was in fact not necessary to go beyond holding that permanent same-sex life partners could not reasonably be included in the term “spouse;” as Justice Ackermann pointed out, the ordinary meaning of the word “spouse” connoted a “married person; a wife, a husband.” The difficulty confronting permanent same-sex life partners on this score, then, was that they could not ordinarily be considered to be married persons, husbands, and wives. The position of people married by Muslim rites in this respect is different. They fall within the ordinary meaning of the word spouse. They are married to each other, wife, and husband. As Chief Justice Mahomed pointed out in Amod: [T]he Islamic marriage between the appellant and the deceased was a de facto monogamous marriage; . . . it was contracted according to the tenets of a major religion; and . . . it involved “a very public ceremony, special formalities, and onerous obligations for both parents in terms of the relevant rules of Islamic law applicable.”

[] Secondly, the judgments in both cases were careful to underline that the word “spouse” had to be interpreted in the context of the particular statutes under consideration. In both cases the judgments indicated that there was nothing in the context in which the word “spouse” was used to suggest a wider meaning than married persons. In National Coalition it was indicated that there was a significant textual pointer against the more extensive use of the word spouse. Justice Ackermann stated that: Had the word “spouse” been used in a more extensive sense in s () of the Act, it would have been unnecessary to provide specifically in s () that mar-

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riage “includes a customary union.” It is significant that the definition of “customary union” namely: “the association of a man and a woman in a conjugal relationship according to indigenous law and custom, where neither the man nor the woman is party to a subsisting marriage, which is recognized by the Minister in terms of subsection ();” is based on an opposite-sex relationship.

In the present matter, however, no such textual pointers in favor of a limited construction exist. On the contrary, both the clear wording of the acts and their purpose point strongly in favor of an extensive interpretation of the word “spouse.” [] Thirdly, it cannot be said that Muslim marriages lack legal recognition in the way that permanent same-sex unions have done. Statutes dealing with a great variety of social and economic questions have given express recognition to Muslim unions, treating parties to them as married persons. [] Judgments should not be read as though they are statutes where every word is presumed to have a precise and special meaning. What matters is the reasoning that lies at the heart of the decision and that, as a matter of legal logic, leads to the order made. Central to the determinations in National Coalition and Satchwell, was a legal finding that it would place an unacceptable degree of strain on the word “spouse” to include within its ambit parties to a permanent same-sex life partnership. Thus, in Satchwell, Justice Madala pointed to members of such same-sex partnerships as well as to heterosexual couples who chose not to marry, as belonging to a class of persons who could not be considered to be “spouses.” The crucial distinction underlying the two judgments is the one made between married and unmarried persons not that between persons married under the Marriage Act and those not. There is nothing to indicate that the attention of the court in either case was directed to marriages such as those contracted by the applicant. I accordingly do not agree that the two cases serve as authority for denying to parties to Muslim marriages the protection offered by the acts. Justice Ngcobo has come to the same conclusion. I would like to express my agreement with the supplementary reasons he has advanced. [] The fact that permanent same-sex life partnerships could not be included in the term “spouse” affected the manner in which the resulting discriminatory impact of the statutes under consideration was remedied in National Coalition and Satchwell. Once it was established that members of permanent same-sex life partnerships, although not classifiable as married people, merited the same recognition as is accorded by the law to married persons, the indicated remedy was to declare the unconstitutionality and read-in a provision to cure the defect. Thus, recognition of the right to equality and dignity of permanent same-sex life partners was achieved not by means of imposing undue strain on the word “spouse,” but by pointing to the constitutionally unacceptable manner in which the statutes fail to treat them on a par with married people. Such partners were accordingly equated with, rather

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than subsumed into the concept of spouses. The underinclusiveness in their regard was cured by adding to the category of entitlement so as to avoid unconstitutionality. In the present matter the potential under-inclusiveness and consequent discriminatory impact is avoided simply by correcting the interpretation. It is not necessary to follow the process the High Court felt compelled to do, that is, of making a declaration of invalidity coupled with a curative remedial reading-in. [] Acceptance of the fact that the word “spouse” covers people married by Muslim rites makes it unnecessary to deal with the submission advanced by the executors that the law did not discriminate against the applicant because in terms of the Marriage Act she could have solemnized her marriage before an Imam recognized as a marriage officer. The question of discrimination no longer arises once Muslim husbands and wives are able to enjoy the benefits provided by the acts. [] In the result, the acts fall to be interpreted so as to include a party to a monogamous Muslim marriage as a spouse. So interpreted, they are not invalid and unconstitutional. The order of the High Court should accordingly not be confirmed. Instead, the appeal must be upheld and a declaration made indicating to the executors and all interested parties that the applicant is a “spouse” and a “survivor” under the acts. JUSTICE NGCOBO [] [. . .] I propose to deal with two questions. First, what is the proper approach to the interpretation of legislation under our constitutional democracy; and second, do our decisions in the National Coalition for Gay and Lesbian Equality [] and Satchwell [v. President of the Republic of South Africa and Another  () SA  (CC)] cases preclude us from upholding the appeal?

Proper Approach to Legislative Interpretation [] Section () of the Constitution contains an injunction on the interpretation of legislation. It requires courts when interpreting any legislation to “promote the spirit, purport and objects of the Bill of Rights.” Consistent with this interpretive injunction, where possible, legislation must be read in a manner that gives effect to the values of our constitutional democracy. These values include human dignity, equality, and freedom. Thus where legislation is capable of more than one plausible construction, the one which brings the legislation within constitutional bounds must be preferred. [] In Investigating Directorate: Serious Economic Offences and Others v. Hyundai Motor Distributors (Pty) Ltd. and Others: In re Hyundai Motor Distributors (Pty) Ltd. and Others v. Smit NO and Others [ () SA  (CC)], this court explained the meaning of this interpretive injunction as follows: This means that all statutes must be interpreted through the prism of the Bill of Rights. All law-making authority must be exercised in accordance with the

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Constitution. The Constitution is located in a history that involves a transition from a society based on division, injustice, and exclusion from the democratic process to one which respects the dignity of all citizens, and includes all in the process of governance. As such, the process of interpreting the Constitution must recognize the context in which we find ourselves and the Constitution’s goal of a society based on democratic values, social justice, and fundamental human rights. This spirit of transition and transformation characterizes the constitutional enterprise as a whole. The purport and objects of the Constitution find expression in section , which lays out the fundamental values that the Constitution is designed to achieve. The Constitution requires that judicial officers read legislation, where possible, in ways that give effect to its fundamental values. Consistently with this, when the constitutionality of legislation is in issue, they are under a duty to examine the objects and purport of an act and to read the provisions of the legislation, so far as is possible, in conformity with the Constitution.

[] Courts are therefore under an obligation, where possible, to construe legislation in a manner that promotes the spirit, purport, and objects of the Bill of Rights. The Bill of Rights is a cornerstone of our constitutional democracy. It “enshrines the rights of all people in our country” and affirms the foundational values of human dignity, equality, and freedom. Courts must give expression to these foundational values when construing any legislation. They must interpret legislation so as to give effect to these fundamental values and to the specific provisions of the Bill of Rights that encompass them. Legislation must now be seen through the prism of the Constitution. The Constitution provides the context within which all legislation must be understood and construed. [] However, as this court noted in the Hyundai case, there are limits to the application of this interpretive injunction. While there will be occasions when legislation, though open to a meaning that will be unconstitutional, is reasonably capable of being read in conformity with the Constitution “[such] an interpretation should not, however be unduly strained.” It follows therefore that courts “must prefer interpretations of legislation that fall within constitutional bounds over those that do not, provided that such an interpretation can be reasonably ascribed to the section.” [] Obviously, when dealing with old order legislation, this interpretive injunction may require courts to depart from a construction previously placed on the legislation. This departure is required because the context in which legislation must now be construed is different to that which prevailed when these cases were decided. These cases must be understood in the context in which they were decided, and in particular, the values that were prevailing at the time. [] The context in which old order legislation was construed during the preconstitutional era was very different from the present era. Old order legislation was

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previously construed in the context of a legal order that did not respect human dignity, equality and freedom for all people. Discrimination fuelled by prejudice was the norm. Black people were denied respect and dignity. They were regarded as inferior to other races. The decision of the Appellate Division in the case of Moller v. Keimoes School Committee [and Another  AD ] is most revealing in this regard. [] In that case the central question was whether a child born of a white and a black was a child of “European parentage or extraction” within the meaning of the Cape School Board Act of . The phrase “European parentage or extraction” was not defined in the relevant statute. And as one member of the court in that case accepted, it was “possible to read it in two ways, either as meaning wholly European extraction, or partly of European extraction.” The court construed the phrase to mean “of pure European descent” or “unmixed European parentage or extraction.” In so doing the court denied black children born of mixed marriages the right to attend ordinary public schools in the Cape Province, which had superior education compared to other schools. [] Chief Justice Lord De Villiers who wrote the main judgment explained the rationale for the decision as follows: Now, in construing a vague expression in a statute, like that of “European parentage or extraction or descent,” the court should endeavor to ascertain its popular sense and place itself as far as possible in the position of the authors of the enactment. As a matter of public history we know that the first civilized legislators in South Africa came from Holland and regarded the aboriginal natives of the country as belonging to an inferior race, whom the Dutch, as Europeans, were entitled to rule over, and whom they refused to admit to social or political equality. We know also that, while slavery existed, the slaves were blacks and that their descendants, who form a large proportion of the colored races of South Africa, were never admitted to social equality with the so-called whites.

And then continued: These prepossessions, or, as many might term them, these prejudices, never have died out, and are not less deeply rooted at the present day among the Europeans in South Africa, whether of Dutch or English or French descent. We may not from a philosophical or humanitarian point of view be able to approve this prevalent sentiment, but we cannot, as Judges, who are called upon to construe an Act of Parliament, ignore the reasons which must have induced the legislature to adopt the policy of separate education for European and non-European children. In consenting to the passing of a bill requiring separate schools for children of European extraction, the average legislator would not understand the expression “children of European extraction” to

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include children of mixed European and non-European extraction. His objection to his child being educated in the same school with a child whose mother was colored and whose maternal grandmother was a native would be almost as great as to his child associating at school with black children. It is certainly inconceivable that he would be a consenting party to an act by which European parents could be compelled to send their children to a school which children of mixed origin can also be compelled to attend. It is regrettable that there should be this social chasm between the races, but it undoubtedly exists, and it has had its effects on legislation throughout South Africa.

[] On the basis of this assumption blacks were denied most, if not all, basic human rights that we now take for granted. They were discriminated against. Their cultures and laws were not recognized except when they conformed to “the boni mores” of the “civilized peoples.” Their marriages were not recognized. The law reflected the values of one section of society that constituted the minority. It is within this context that the old order legislation was construed in the preconstitutional era. [] It is within this context that cases such as Seedat’s Executors [v. The Master (Natal)  AD ] and Ismail [v. Ismail  () SA  (A)] must be understood. These cases reflect the values of one section of our society. In Seedat’s Executors case, the court declined to recognize a widow of a Muslim marriage as a “surviving spouse” because a Muslim marriage was “repugnant to the policy and the legal institution both of Holland and England” and “reprobated by the majority of the civilized peoples, on grounds of morality and religion.” On the basis of views of the “civilized peoples” the court refused to recognize a widow of a Muslim marriage as a surviving spouse for the purposes of the statute in question. The rights of the Muslim community to marry according to Muslim law were ignored. [] Similarly, in the Ismail case, and relying on the Seedat’s Executors case, the court refused to recognize a marriage by Muslim rites. The central issue in that case was whether the proprietary consequences of such a marriage and its termination according to Muslim law were enforceable in law. The marriage in that case was de facto monogamous. The court reasoned, however, that a Muslim marriage is potentially polygamous. The court held that such marriages are “contrary to the accepted customs and usages which are regarded as morally binding upon all members of our society.” It found that there were no reasons for it to depart “from the long line of decisions, in which our [courts] have consistently refused, on grounds of public policy, to recognize, or to give effect to the consequences of, polygamous unions.” [] The new constitutional order rejects the values upon which these decisions were based and affirms the equal worth and equality of all South Africans. The recognition and protection of human dignity is the touchstone of this new constitutional order. The new constitutional order is based on the recognition of our diversity and tolerance for other religious faiths. It is founded on human dignity, equality, and freedom. These founding values have introduced new values in our

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society. The process of interpreting legislation must recognize the context in which we find ourselves and the constitutional goal of establishing a society based on democratic values, social justice, and fundamental human rights. [] And these values are given expression in the relevant provisions of the Bill of Rights, which contains the fundamental human rights. Thus our Bill of Rights guarantees, among other things, freedom of religion. In particular, it prohibits discrimination based on religion, conscience, belief, or culture. Section ()(a) of the Constitution permits the recognition of “marriages concluded under any tradition or a system of religion, personal or family law.” The founding values as given expression in the Bill of Rights now provide the context within which legislation must be construed. The interpretive injunction contained in section (), namely, that when interpreting any legislation courts must promote the spirit, purport and objects of the Bill of Rights must be understood in this context. [] Our Constitution contemplates that there will be a coherent system of law built on the foundations of the Bill of Rights, in which common law and indigenous law should be developed and legislation should be interpreted so as to be consistent with the Bill of Rights and with our obligations under international law. In this sense the Constitution demands a change in the legal norms and the values of our society. This change is indeed reflected in a number of statutes that now expressly recognize Muslim marriages for the purposes of the rights that they vest in spouses. In my view the word “spouse” in the statutes under consideration must be construed to reflect this change. It follows therefore that the word “spouse” must now be construed in a manner that is consistent with the foundational values of human dignity, equality and freedom. [] Thus the word “spouse” in the Intestate Succession Act and the Maintenance of Surviving Spouses Act, is not defined. It must therefore now be given its ordinary meaning unless the context suggests otherwise. I agree with Justice Sachs that the ordinary meaning of the word “spouse” includes parties to a Muslim marriage. I can find nothing in the word “spouse” to suggest that it excludes spouses of a marriage by Muslim rites. Nor is there anything in the object or the purpose of these statutes to suggest that. Both these statutes were intended to provide the surviving spouse with a claim for maintenance against or claim for a share in the estate of the deceased spouse. A construction of the word “spouse” to include parties to a Muslim marriage is consistent with this object. [] This construction of the word “spouse” recognizes “marriages concluded under any tradition or a system of religion, personal or family law.” In so doing, it “promotes the spirit, purport and objects of the Bill of Rights.” It follows therefore that the word “spouse” in the two statutes must be construed to include parties to a Muslim marriage, unless the decisions in National Gay and Lesbian Coalition and Satchwell preclude us from adopting such a construction. [] In my view these two cases are distinguishable from the present case. They concerned couples who did not claim to be married under any law. They were

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concerned with people who asserted rights to have their partners recognized in law. They did not assert such rights based on any marriage but it was based on living together in a permanent same-sex relationship. They did not therefore claim that their “partners” are “spouses.” The question in each of these cases was therefore whether the parties in a same-sex relationship should be accorded the same rights as spouses in a marriage. It was in this context that the Court held that partners in same-sex relationships are not spouses within the meaning of the statutes in question. [] Here we are concerned with a claim that the applicant is married by Muslim rites and that she is therefore a “spouse” within the meaning of that word as used in the statutes in question. The question therefore is whether the word “spouse” as used in the two statutes includes parties to a Muslim marriage. The question is not whether the word “spouse” should be construed to include same-sex couples who are not married. This, in my view, distinguishes this case from the two cases relied upon by the High Court. [] In my view therefore our decisions in the National Gay and Lesbian Coalition and Satchwell do not preclude the adoption of a construction of the word “spouse” to include parties to a Muslim marriage. It follows that the word “spouse” in the statutes in issue in this case must be construed to include parties to a Muslim marriage. It is not necessary in this case to consider whether spouses to polygamous marriages would fall within the meaning of the word “spouse” as used in the statutes under consideration. That question must be deferred until the occasion arises for this court to do so. I agree with the judgment and the order proposed by Justice Sachs. Chief Justice Chaskalson, Deputy Chief Justice Langa, and Justices Ackermann, Mokgoro, O’Regan, Sachs, and Yacoob concurred. JUSTICE MOSENEKE [] [. . .] I take the view that the order of constitutional invalidity should be confirmed and the appeal dismissed. Like the High Court, I am of the opinion that the word “spouse” must be given a meaning limited to a party to a marriage valid in our law and solemnized in accordance with the requirements of the Marriage Act. So construed, the acts impermissibly encroach upon the equality and dignity commitment of the Constitution and the applicant is accordingly entitled to effective remedy. It is therefore just and equitable to cure the omission of Muslim spouses from the respective definitions of the Acts by “reading-in” appropriate words. [] The main judgment favors an inclusive construction of the word “spouse” because it avoids constitutional invalidity. I see the matter differently. Such a reading of the impugned legislation would be impermissible, as it is unduly strained, not reasonably available, and distorts the text. This is so because, first, I do not accept that the word “spouse” bears an “ordinary meaning” other than a partner in a legally enforceable marriage. Second, thus far, for all the reasons embedded in the racial, cultural, and religious bigotry of our unequal and bruising past, preconstitutional courts

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have not recognized Islamic marriages as valid marriages. Third, in its previous decisions, this court has ascribed to the words “marriage” and “spouse,” as used in statutes, a meaning at odds with the one now advanced in the main judgment. Fourth, a significant body of postconstitutional legislation ascribes to “marriage” and “spouse” the narrow and exclusionary meaning and overcomes the omission of Muslim wives and husbands through interpretative aids. Lastly, important considerations of separation of powers favor legislative rather than interpretive intervention. [] In Ryland, the Cape High Court did not find that a Muslim marriage is valid in law. It held that the contractual obligations arising from a Muslim marriage, including the duty of a husband to maintain his wife, were enforceable. Chief Justice Mahomed in Amod v. Multilateral Motor Vehicle Accident Fund (Commission for Gender Equality Intervening) [ () SA  (SCA)], emphasized that the question to be decided was not whether the marriage was lawful at common law, but whether the deceased was under a legal duty to support the appellant during the subsistence of the marriage and, if so, whether her right was one which “deserved protection for purposes of a dependant’s claim.” [] This “persisting invalidity of Muslim marriages” is, of course, a constitutional anachronism. It belongs to our dim past. It originates from deep-rooted prejudice on matters of race, religion, and culture. True to their worldview, judges of the past displayed remarkable ethnocentric bias and arrogance at the expense of those they perceived different. They exalted their own and demeaned and excluded everything else. Inherent in this disposition, says Chief Justice Mahomed, is “inequality, arbitrariness, intolerance, and inequity.” [] These stereotypical and stunted notions of marriage and family must now succumb to the newfound and restored values of our society, its institutions and diverse people. They must yield to societal and constitutional recognition of expanding frontiers of family life and intimate relationships. Our Constitution guarantees not only dignity and equality but also freedom of religion and belief. What is more, section () of the Constitution foreshadows and authorizes legislation that recognizes marriages concluded under any tradition or a system of religious, personal, or family law. Such legislation is yet to be passed in regard to Islamic marriages. [] As matters stand, the underlying restrictive common-law conception of marriage and the intertwined constitutive formalities of the Marriage Act are not the target of the present constitutional claim. This court was not urged, nor is it appropriate, to develop the applicable common law or to scrutinize the Marriage Act for constitutional compliance in this case. In any event that was not the basis of the applicant’s case.

Statutory Recognition of Muslim Marriages [] Before us and in the High Court, the applicant drew attention to recent and amended statutes that expressly recognize Muslim marriages for purposes of the rights they vest in spouses. The applicant submitted that these statutes reflect the

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change in norms and legal conceptions of our society towards family and marriage in general and Muslim marriages in particular. With that submission I agree. It is underscored by several judgments of this Court. One such is Du Toit and Another v. Minister of Welfare and Population Development and Others (Lesbian and Gay Equality Project as Amicus Curiae) in which Acting Justice Skweyiya observed that: The institutions of marriage and family are important social pillars that provide for security, support, and companionship between members of our society and play a pivotal role in the rearing of children. However, we must approach the issues in the present matter on the basis that family life as contemplated by the Constitution can be provided in different ways and that legal conceptions of the family and what constitutes family life should change as social practices and traditions change.

[] In further argument, the applicant submitted that these recent and amended statutes indicate that the word “spouse” in the acts is capable of a meaning inclusive of Muslim husbands and wives. I do not agree. In all of the statutes we were referred to, Muslim spouses are included through deeming or interpretive aids. The compelling inference is that the deeming provisions or definitional extensions in the statutes restrict the meaning of “spouse” and “marriage” to common-law spousal relationships. I am fortified in this conclusion by the reasoning of this court in National Coalition for Gay and Lesbian Equality and Others v. Minister of Home Affairs and Others in which an identical submission was met with the finding that “[h]ad the word ‘spouse’ been used in a more extensive sense in section () of the act, it would have been unnecessary to provide specifically in s () that marriage ‘includes a customary union.’” [] I agree with the High Court that the increasing number of statutes that recognize wider conceptions of marriage and family, point away from widening the interpretation of the word “spouse.” Normal canons of statutory construction dictate that where the Legislature recognizes that a definition needs to be explicitly widened for a statute to apply to Muslim spouses, the opposite would also be true. The narrower common-law definition would apply whenever there is no expanded definition.

Applicable Principles of Interpretation [] The husband of the applicant died on  November . Her claim against the deceased estate vested on that day. The High Court held that it is the Interim Constitution that is applicable when determining whether the relevant statutory provisions may be properly interpreted in conformity with its Bill of Rights. However, the proceedings in the High Court were initiated on  March , well after the commencement of the final Constitution. Thus, the proper construction to be placed on the acts must be determined, not in accordance with section () and () of the Interim Constitution but in the light of the provisions of section () of

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the Constitution. However, nothing significant turns on that distinction. The method of construction authorized in section () and () of the Interim Constitution is now to be found in section () of the  Constitution. [] Section () obliges a court construing legislation to promote the spirit, purport, and objects of the Bill of Rights. Where possible, a statute must be read in a manner that makes it comport with the dictates of the Constitution. In De Beer NO v. North-Central Local Council and South-Central Local Council and Others (Umhlatuzana Civic Association Intervening) [ () SA  (CC)], Justice Yacoob articulates this duty as follows: [W]here a statutory provision is capable of more than one reasonable construction, one of which would lead to constitutional invalidity and the other not, a court ought to favor the construction which avoids constitutional invalidity, provided such interpretation is not unduly strained.

[] Implicit in this interpretive injunction found in section () is that previously binding preconstitutional reading of legislation may now be open to reconsideration in the light of the statement of fundamental rights and freedoms in chapter  of our Constitution. [] However, this affirmative duty to “read” legislation in order to bring it within constitutional confines is not without bounds. An impugned statute may be read to survive constitutional invalidity only if it is reasonably capable of such compliant meaning. To be permissible, the interpretation must not be fanciful or far-fetched but one that reasonably arises from the challenged text without unwarranted strain, distortion or violence to the language. This is so because statutes are “products of conscious and planned law-making by demonstrable and authorized law making authors and are therefore meant to be of effect. By replacing them as final authority, the Constitution has not deprived statutes of their worth or force, but has given them new direction.” As our courts, duty bound as they are, give articulation to the fundamental values of the Constitution in reading statutes, the language of the text is not “infinitely malleable” but sets limits for generous reading. Acting Justice Kentridge, writing for the court, warned that “if the language used by the lawgiver is ignored in favor of a general resort to ‘values’ the result is not interpretation but divination.” [] In De Lange v. Smuts NO and Others Justice Ackermann cautions that limits must be placed on reading of statutes to avoid constitutional invalidity. This is so also because the Legislature is under a duty to pass legislation that is reasonably clear and precise, enabling citizens and officials to understand what is expected of them. A balance will often have to be struck as to how this tension is to be resolved when considering the constitutionality of legislation. There will be occasions when a judicial officer will find the legislation, though open to a meaning that

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would be unconstitutional, is reasonably capable of being read “in conformity with the Constitution.” Such an interpretation should not, however, be unduly strained.

The Ordinary Meaning of “Spouse” [] The main judgment finds that the ordinary meaning of the word “spouse” extends to a party to a monogamous Muslim marriage because such a meaning is not linguistically strained. It accords with the way the word is generally understood and used. The main judgment holds that by excluding others, courts in our past attributed a “discriminatory” and “strained” rather than ordinary meaning to the word “spouse.” [] I cannot support that approach to the construction of the acts. First, it fails to make the necessary distinction between the interpretation of legislation under section () and remedial measures under section ()(b) of the Constitution. Of this distinction, the following is said in Gay and Lesbian Equality: What is now being emphasized is the fundamentally different nature of the two processes. The first process, being an interpretative one, is limited to what the text is reasonably capable of meaning. The latter can only take place after the statutory provision in question, notwithstanding the application of all legitimate interpretative aids, is found to be constitutionally invalid.

The meaning of “spouse” preferred in the main judgment is said to be compelled by the need to redress “past discriminatory interpretations.” The main judgment explains that “the potential under-inclusiveness and consequent discriminatory impact is avoided simply by correcting the interpretation.” In this way, the main judgment conflates the meaning that the acts can reasonably bear with the constitutional remedy the applicant and others similarly situated may be entitled to. These processes ought to be two separate enquiries; the first goes to interpretation, and the second to remedy. Otherwise the meaning of the text becomes subservient to a preferred outcome or relief. [] Second, much is made of the “ordinary meaning” of “spouse.” I am unable to agree that in its ordinary sense the word “spouse” also signifies a man or a woman whose conjugal relationship or union is not recognized as a marriage by law. “Spouse” and “marriage” are not words of general import. When used in ordinary language, they are reserved for an intimate relationship with known and defined personal, family, social, and importantly, legal obligations. In addition to love, fidelity, companionship, and support, these words connote a conjugal relationship with certain and secure legal effect as between parties to it and as against all others. However, which of these societal notions of family and marriage would survive constitutional scrutiny is another matter. [] The “ordinary meaning” rule of interpretation is premised on the approach that “the language of the legislature should be read in its ordinary sense.” The ordi-

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nary sense is often glibly equated with what is believed to be the plain and literal or grammatical meaning of the language. However, clarity of language does not rest on any “objective quality” of language itself, but on the reader and the context. In this regard, Acting Justice Schreiner in Savage v. Commissioner for Inland Revenue [ () SA  (A)] had occasion to observe that “what seems a clear meaning to one man may not seem clear to another. . . . The ‘literal’ meaning is not something revealed to judges by a sort of authentic dictionary; it is only what individual Judges think is the literal meaning.” [] Even if the word “spouse” may bear the ordinary meaning advanced in the main judgment, there can be, and often is, a distinction between the common or colloquial understanding of a word used in a statute and its legal counterpart. It is the legal meaning of the text that should preoccupy statutory interpretation. Ultimately, it is courts that must ascertain the meaning of words and expressions in statutes. That explains why the determination of the meaning and effect of the language of a legislative text is, in the end, a question of law. [] In my view there is no proper basis for departing from the mode of analysis deployed by this court in Gay and Lesbian Equality and Satchwell. Both decided cases posit a very specific and narrow understanding of marriage, which is compelled by the lacuna in alternative marriage regimes. What is more, the substantive consequences of such marriage are not consistent with Islamic law. That volubly explains the dearth of Muslim marriage officers registered under the Marriage Act. [] These exclusionary conceptions of marriage are integral to the definition laid down at common law read with the Marriage Act. It is irrelevant whether the marriage was celebrated in a ceremony or whether all the elements of the consortium omnis vitae were present. The marriage is valid in law only if the formalities were complied with. Under this established interpretation, the case of the applicant cannot be distinguished without doing violence to the doctrine of stare decisis. [] There are also reasons of principle why the judgments should not be distinguished. Both Satchwell and Gay and Lesbian Equality state that they intend to break down the stigma attached to gay and lesbian relationships and afford legal recognition to same-sex life partnerships. By creating a dichotomy between those cases and the present one, the main judgment essentially makes a claim that some legally invalid partnerships are closer to being acceptable than others, and gay couples are again differentiated from the norm. This is to undo strides made by this court in equality jurisprudence. [] Another important consideration relates to the rule of law. The problem of readily importing interpretations piecemeal into legislation is the precedent it sets. Courts below will follow the lead and readily interpret rather than declare invalid statutes inconsistent with the Constitution. However, constitutional reinterpretation does not come to this court for confirmation. The result may be that High Courts develop interpretations at varying paces and inconsistently. This makes for an even more fragmented jurisprudence and would have deleterious effects on how people

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regulate their affairs. It is highly undesirable to have an institution as important as marriage recognized for some people in some provinces and not in others. The rule of law requires legal certainty.

Equality [] It is common cause that this equality claim falls to be decided in terms of section  of the Interim Constitution. This court, in several judgments, has laid down the centrality and importance of the equality protection in our Constitution. I am in agreement with the High Court that the acts differentiate between different types of spouses on listed grounds of religion, culture, and marital status and that this discrimination is unfair. [] Apart from the presumption of unfairness, the discrimination displays naked preference. It has created real disadvantage and violated dignity and freedom. Its impact on the applicant and on other surviving spouses in her position is most adverse and demeaning. It treats her as undeserving of the legal recognition enjoyed by other religious and civil marriages. The acts withhold from Muslim widows economic protection they extend to socially vulnerable widows of Christian, Jewish, and secular civil marriages and, recently, customary unions. Because of the Muslim character of her marriage, the applicant stands to lose a home, which, but for her marriage to the deceased, would have been her property. Moreover, the applicant has no legal means of giving effect to her inheritance rights in terms of Muslim personal law. [] The under-inclusiveness of the acts constitutes an obvious breach of the applicant’s right to equality on several specified grounds, namely marital status, religion and culture, and also implicates the right to dignity. Apart from the submissions by the first and second respondents that the applicant had the choice to legalize her marriage, none of the parties contended that this breach is justifiable. Before this court, the minister, charged with the administration of the acts, submitted that no such justification exists. He drew attention to the deliberations of the South African Law Commission on Islamic Marriages and to the draft Muslim Marriages Act, which envisages the inclusion of Muslim spouses by expanding the definitions in the challenged acts. There is no legitimate governmental purpose served by excluding Muslim surviving spouses from the protection of the acts. The legislation infringes the substantive equality and dignity commitments of our Constitution and must be declared unconstitutional and invalid. [] I am acutely alive to the scorn and palpable injustice the Muslim community has had to endure in the past on account of the legal non-recognition of marriages celebrated in accordance with Islamic law. The tenets of our Constitution promise religious voluntarism, diversity and independence within the context of the supremacy of the Constitution. The legislature has still not redressed, as foreshadowed by the Constitution, issues of inequality in relation to Islamic marriages and succession. The report of the Commission suggests that there is considerable diver-

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gence of views on the envisaged legislation within the Muslim community. A matter so complex and replete with contending policy, personal law and pluralistic considerations is better suited for legislative rather than judicial intervention. Thus, in my view, a precise and tailored “reading-in” remedy, pending appropriate and timeous legislative intervention, is more appropriate than a reinterpretation of the challenged statutes.

Appropriate Relief [] I am in agreement with the High Court that the acts must be declared inconsistent with the Constitution and invalid because they omit from their reach a husband or a wife married in accordance with Muslim rites in a de facto monogamous union. Pending the legislative recognition of Islamic law of succession in a way that conforms to foundational values of the Constitution, the applicant is entitled to appropriate relief dictated by section  of the Constitution. An order reading in appropriate words to that effect, precise, and faithful to the legislative scheme of the acts, would best vindicate the applicant’s equality claim.

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Kaunda

Kaunda and Others v. President of the Republic of South Africa and Others  () SA  (CC) CASE SUMMARY

Facts Sixty-nine South African citizens—very likely mercenaries—were detained in Zimbabwe on various charges. Two days after the applicants were arrested in March , fifteen men, the majority of whom were South African, were detained in Equatorial Guinea. They too were accused of being mercenaries and plotting a coup to overthrow the president of Equatorial Guinea. The applicants feared that they would be extradited from Zimbabwe to Equatorial Guinea and put on trial for a variety of capital offenses. The applicants contended that they would not receive a fair trial in Equatorial Guinea and would risk being sentenced to death. The applicants therefore sought a mandamus compelling the South African government to intervene on their behalf. The mandamus would ensure that their rights to dignity, freedom and security of the person, fair conditions of detention, and the right to a fair trial would at all times be respected and be protected in Zimbabwe and Equatorial Guinea.

Legal History The applicants approached the Transvaal Provincial Division of the High Court for relief. The High Court dismissed their application. The applicants approached the

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Constitutional Court for leave to appeal directly, as a matter of urgency, against the decision of the High Court. The Constitutional Court held that the disposal of the complex questions of law raised in the matter would have an important effect, not only on the applicants but on the South African polity writ large. It therefore granted the direct appeal.

Issues Does the Constitution require the South African government to take diplomatic steps to protect the constitutional rights while South African citizens are engaged in activities abroad? Does the complicity of the South African government in the detention of the alleged mercenaries in Zimbabwe invariably engage the fundamental rights asserted by the applicants vis-à-vis the South African government? Decision of the Constitutional Court The court held that no obligation could be imposed on the South African government to ensure that the rights that the applicants have in terms of the South African Bill of Rights are at all times respected and protected in Zimbabwe or Equatorial Guinea. However, South African nationals facing adverse legal action in a foreign state are entitled to request that the South African government to provide protection against acts that violate accepted norms of international law. The government is obliged to consider such requests and deal with them appropriately. Any decision taken by the executive is subject to constitutional control. That said, the courts must be mindful of the fact that decisions, which engage foreign affairs—such as the instant matter—fall within the expertise of the executive. The current position of the South African government was that it will only make diplomatic representations concerning the imposition of the death penalty only when a South African citizen is so sentenced. The court held that the applicants had not shown that the South African government’s policy (or its response in the instant matter) was contrary to the norms of international law. Comment The manner in which the Constitutional Court arrived at this conclusion and denied all seven forms of requested relief is worth further analysis. The textual basis for the Kaunda Court’s rejection of the claim that the Bill of Rights applies to extraterritorial legal proceedings begins with a curiously cursory appraisal of FC section () and ends with what ultimately amounts to a very narrow construction of the holding in Mohamed. The Kaunda court writes: The starting point of the enquiry into extraterritoriality is to determine the ambit of the rights that are the subject matter of section (). . . . [T]he rights in the Bill of Rights on which reliance is placed for this part of the argument are rights that vest in everyone. Foreigners are entitled to require the South

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African state to respect, protect and promote their rights to life and dignity and not to be treated or punished in a cruel, inhuman or degrading way while they are in South Africa (paragraph ). Foreigners are entitled to all but a few of the rights enshrined in Chapter —including the right to dignity—when they are in South Africa. That is what Mohamed told us. The Kaunda Court continues: “Clearly, [foreigners] lose the benefit of that protection when they move beyond our borders” (paragraph ). There is nothing clear about the basis for this assertion. The text says nothing about what foreigners do and do not possess with respect to extraterritorial application. Nor does it make any distinction between citizens and non-citizens. The Kaunda court then turns to the extraterritorial entitlements of citizens. It asks: “Does section () contemplate that the state’s obligation to South Africans under that section is more extensive than its obligation to foreigners, and attaches to them when they are in foreign countries?” (Paragraph ).

This rhetorical use of FC section ()’s ostensible treatment of foreigners primes the court’s intuition pump with respect to its subsequent analysis of the appropriate constitutional contours of the state’s obligations to South African nationals. Unfortunately, FC section () has nothing to say about the treatment of foreigners or nationals. The Kaunda court looks to FC section () for an answer. FC section () reads: “This Bill of Rights 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.” It is difficult to discern in FC section () the basis for denying the extraterritoriality of the Bill. The Kaunda court writes: “The bearers of the rights are people in South Africa. Nothing suggests that it is to have general application, beyond our borders” (paragraph ). The Kaunda court’s entire textual argument on the lack of extraterritoriality turns on the presence of a word—the preposition “in”—that could never have been intended to carry such weight. As Justices O’Regan and Mokgoro note in their dissent: There is nothing in our Constitution that suggests that, in so far as it relates to the powers afforded and the obligations imposed by the Constitution upon the executive, the supremacy of the Constitution stops at the borders of South Africa. Indeed, the contrary is the case. The executive is bound by the four corners of the Constitution. It has no power other than those that are acknowledged by or flow from the Constitution. It is accordingly obliged to act consistently with the obligations imposed upon it by the Bill of Rights wherever it may act. (Paragraph )

In sum, the dignity rights of “all” South Africans should not turn on the preposition “in” found in section ()—no matter where they might be.

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CHIEF JUSTICE CHASKALSON [] [. . .] A theme that runs through all the claims is a demand that the government should seek assurances from foreign governments concerning prosecutions or contemplated prosecutions in those countries. The applicants assert that they have rights under the Constitution entitling them to make such demands, that the government has failed to comply with their demands and that in failing to do so it has breached their constitutional rights. The relief they claim is in effect a mandamus ordering the government to take action at a diplomatic level to ensure that the rights they claim to have under the South African Constitution are respected by the two foreign governments. [] The issues raised by the applicants and the amicus curiae involve, on the one hand, the relationship at an international level between South Africa and foreign states, in this case Zimbabwe and Equatorial Guinea, and on the other, the nature and extent of its obligations to citizens beyond its borders. To answer the questions raised it is necessary to deal both with international law and domestic law. As the setting is international, I begin with international law.

International Law [] Section  of the Constitution provides that “Customary international law is law in the Republic unless it is inconsistent with the Constitution or an Act of Parliament.” Traditionally, international law has acknowledged that states have the right to protect their nationals beyond their borders but are under no obligation to do so. Counsel for the government, citing the Barcelona Traction case, relied on this principle to support the government’s contention that the applicants’ claims are misconceived. [] Their argument comes down to this. The applicants’ remedy is to approach the government for assistance and not the courts. If this is done the government will consider their requests. It is, however, the sole judge of what should be done in any given case and when and in what manner assistance that is given should be provided. South African Law [] Against this background of international law and practice I turn to consider the question whether according to our municipal law the applicants have a right to diplomatic protection from the state, and can require it to come to their assistance in Zimbabwe or Equatorial Guinea if they are extradited to that country. [] Counsel for the applicants contended that the applicants’ rights to dignity, life, freedom, and security of the person, including the right not to be treated or punished in a cruel, inhuman, or degrading way, and also the right to a fair trial entrenched in sections , , , and  of the Constitution, are being infringed in Zimbabwe and are likely to be infringed if they are extradited to Equatorial Guinea. Relying on section () of the Constitution, which requires the state to

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“respect, protect, promote, and fulfill the rights in the Bill of Rights,” he contended that the state is obliged to protect these rights of the applicants, and the only way it can do so in the circumstances of this case is to provide them with diplomatic protection. Counsel for the amicus adopted a similar but more nuanced approach, directing himself to the issue of capital punishment and the state’s duties to its citizens if that risk arises in a foreign country. [] The argument based on section () is built on the proposition that the state has a positive obligation to comply with its provisions. I accept that this is so. But that does not mean that the rights nationals have under our Constitution attach to them when they are outside of South Africa, or that the state has an obligation under section () to “respect, protect, promote, and fulfill” the rights in the Bill of Rights which extends beyond its borders. Those are different issues, which depend, in the first instance, on whether the Constitution can be construed as having extraterritorial effect. [] Section  of the Constitution provides: “When interpreting any legislation, every court must prefer any reasonable interpretation of the legislation that is consistent with international law over any alternative interpretation that is inconsistent with international law.” This must apply equally to the provisions of the Bill of Rights and the Constitution as a whole. Consistently with this, section ()(b) of the Constitution requires courts, when interpreting the Bill of Rights, to consider international law. [] A right to diplomatic protection is not referred to in the Universal Declaration of Human Rights, nor is it a right contained in any international agreement of which I am aware, including the international human rights treaties to which South Africa is a party, such as the African Charter on Human and Peoples’ Rights or the International Covenant on Civil and Political Rights. Our Constitution shows respect for international law, and although it includes rights that go beyond those recognized by international law and major human rights instruments, when it does so, it spells out the rights expressly. [] As Justice Ackermann pointed out in Bernstein and Others v. Bester and Others NNO [ () SA  (CC)], “[t]he internal evidence of the Constitution itself suggests that the drafters were well informed regarding provisions in international, regional and domestic human and fundamental rights.” The Bill of Rights is extensive and covers conventional and less conventional rights in detail. A right to diplomatic protection is a most unusual right, which one would expect to be spelt out expressly rather than being left to implication.

Extraterritoriality: The Constitutional Text [] The starting point of the enquiry into extraterritoriality is to determine the ambit of the rights that are the subject-matter of section (). To begin with two observations are called for. First, the Constitution provides the framework for the governance of South Africa. In that respect it is territorially bound and has no appli-

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cation beyond our borders. Secondly, the rights in the Bill of Rights on which reliance is placed for this part of the argument are rights that vest in everyone. Foreigners are entitled to require the South African state to respect, protect and promote their rights to life and dignity and not to be treated or punished in a cruel, inhuman, or degrading way while they are in South Africa. Clearly, they lose the benefit of that protection when they move beyond our borders. Does section () contemplate that the state’s obligation to South Africans under that section is more extensive than its obligation to foreigners, and attaches to them when they are in foreign countries? [] Section () refers to the Bill of Rights as the “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.” The bearers of the rights are people in South Africa. Nothing suggests that it is to have general application, beyond our borders. [] There may be special circumstances where the laws of a state are applicable to nationals beyond the state’s borders, but only if the application of the law does not interfere with the sovereignty of other states. For South Africa to assume an obligation that entitles its nationals to demand, and obliges it to take action to ensure, that laws and conduct of a foreign state and its officials meet not only the requirements of the foreign state’s own laws, but also the rights that our nationals have under our Constitution, would be inconsistent with the principle of state sovereignty. Section () should not be construed as imposing a positive obligation on government to do this. [] During argument hypothetical questions were raised relating to South African officials abroad, to South African companies doing business beyond our borders, to the government itself engaging in commercial ventures through state-owned companies with bases in foreign countries, and to what the state’s obligations might be in such circumstances. There is a difference between an extraterritorial infringement of a constitutional right by an organ of state bound under section () of the Constitution, or by persons bound under section () of the Constitution, in circumstances that do not infringe the sovereignty of a foreign state, and an obligation on our government to take action in a foreign state that interferes directly or indirectly with the sovereignty of that state. Claims that fall in the former category raise problems with which it is not necessary to deal now. They may, however, be justiciable in our courts, and nothing in this judgment should be construed as excluding that possibility.

The Decision in Mohamed and Another v. President of the Republic of South Africa and Others [] The applicants contend that because the state provided intelligence to Zimbabwe and Equatorial Guinea which was the cause of their being arrested in Zimbabwe, where they face the possibility of being extradited to Equatorial Guinea, the state has a particular duty to protect them in the situation in which they now find themselves. In support of this submission they placed considerable reliance on the decision of this court in Mohamed and Another v. President of the Republic of South Africa and Others.

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[] The Mohamed case dealt with an entirely different situation to that which exists in the present case. In that case certain state functionaries had colluded with the FBI to secure the removal of Mohamed from South Africa to the United States. In doing so they had acted illegally and in breach of Mohamed’s rights under the Constitution. The court held that in doing so “they infringed Mohamed’s rights under the Constitution and acted contrary to their obligations to uphold and promote the rights entrenched in the Bill of Rights.” [] It was this that led this court to say: “It would not necessarily be futile for this Court to pronounce on the illegality of the governmental conduct in issue in this case” and that it would not be out of place for there to be an appropriate order on the relevant organs of State in South Africa to do whatever may be within their power to remedy the wrong here done to Mohamed by their actions, or to ameliorate at best the consequential prejudice caused to him.

On the facts of the case, however, and despite the fact that it made a declaration that the government had acted unlawfully in handing Mohamed over to the FBI, it declined to make an order requiring the government to take positive action to ameliorate the prejudice resulting from the unlawful act. [] Justice O’Regan refers to the fact that Mohamed was in the USA at the time. But the relevant events in that case all took place in South Africa. His rights were infringed in South Africa by government officials and not in the USA, where he found himself as a result of their having violated his rights. This court therefore had no difficulty in finding that his constitutional rights had been breached. The state argued that Mohamed had consented to being taken to the USA and had accordingly waived his rights under the Bill of Rights. That was denied by Mohamed. In dealing with the question of waiver this court held: We did not have the benefit of full argument on this issue and it would accordingly be unwise to express a view on it. We will, without deciding, assume in favor of the respondents, that a proper consent of such a nature would be enforceable against Mohamed. To be enforceable, however, it would have to be a fully informed consent and one clearly showing that the applicant was aware of the exact nature and extent of the rights being waived in consequence of such consent.

It then examined the evidence and concluded: [I]t has not been established that any agreement which Mohamed might have expressed to his being delivered to the United States constitutes a valid

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consent on which the government can place any reliance. Its contention in this regard is accordingly rejected. The handing over of Mohamed to the United States government agents for removal by them to the United States was unlawful.

[] The facts of the present case are entirely different. The applicants were not removed from South Africa by the government, or with the government’s assistance. They left South Africa voluntarily and now find themselves in difficulty in Zimbabwe and at risk of being extradited to Equatorial Guinea. [] Even if the intelligence passed on by South Africa to Zimbabwe and Equatorial Guinea led to the arrests in Zimbabwe, the passing on of the intelligence was not a wrongful act. In the times in which we live it is essential that this be done, and comity between nations would be harmed by a failure to do so. No wrong has been done to the applicants by the South African government that has to be remedied, nor is there a consequence of unlawful conduct that has to be ameliorated. [] The Bill of Rights binds the South African government, but does not bind other governments. As the Canadian Supreme Court has said, with regard to the application of its own Constitution in respect of appeals by Canadian nationals to be protected against the application of inconsistent foreign law, “individuals who choose to leave Canada leave behind Canadian law and procedures and must generally accept the local law, procedure and punishments which the foreign state applies to its own residents.” [] In the present case the actors responsible for the action against which the applicants demand protection from the South African government are all actors in the employ of sovereign states over whom our government has no control. The laws to which objection is taken are the laws of foreign states who are entitled to demand that they be respected by everyone within their territorial jurisdiction, and also by other states. The applicants have no right to demand that the government take action to prevent those laws being applied to them. The Mohamed case is not authority for the contrary submission advanced by the applicants.

Section  of the Constitution [] This does not mean that our Constitution is silent on this issue. Section  of the Constitution provides: () There is a common South African citizenship. () All citizens are— (a) equally entitled to the rights, privileges and benefits of citizenship; and (b) equally subject to the duties and responsibilities of citizenship. () National legislation must provide for the acquisition, loss and restoration of citizenship.

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[] As a nation we have committed ourselves to uphold and protect fundamental rights, which are the cornerstone of our democracy. We recognize a common citizenship and that all citizens are equally entitled to the rights, privileges, and benefits of citizenship. Whilst I have held that there is no enforceable right to diplomatic protection, South African citizens are entitled to request South Africa for protection under international law against wrongful acts of a foreign state. [] They are not in a position to invoke international law themselves and are obliged to seek protection through the state of which they are nationals. Whilst the state is entitled but not obliged under international law to take such action, it invariably acts only if requested by the national to do so. [] South African citizenship requirements are such that citizens invariably, if not always, will be nationals of South Africa. They are entitled, as such, to request the protection of South Africa in a foreign country in case of need. [] Nationality is an incident of their citizenship, which entitles them to the privilege or benefit of making such a request. Should there ever be an exceptional case where the citizen’s connection with South Africa is too remote to justify a claim of nationality, it would be a legitimate response to such a request to say that South Africa is not entitled to demand diplomatic protection for that person. But apart from that, the citizen is entitled to have the request considered and responded to appropriately. [] When the request is directed to a material infringement of a human right that forms part of customary international law, one would not expect our government to be passive. Whatever theoretical disputes may still exist about the basis for diplomatic protection, it cannot be doubted that in substance the true beneficiary of the right that is asserted is the individual. [] The founding values of our Constitution include human dignity, equality and the advancement of human rights and freedoms. Equality is reflected in the principle of equal citizenship demanded by section . [] The advancement of human rights and freedoms is central to the Constitution itself. It is a thread that runs throughout the Constitution and informs the manner in which government is required to exercise its powers. To this extent, the provisions of section () are relevant; not as giving our Constitution extraterritorial effect, but as showing that our Constitution contemplates that government will act positively to protect its citizens against human rights abuses. [] The entitlement to request diplomatic protection, which is part of the constitutional guarantee given by section , has certain consequences. If, as I have held, citizens have a right to request government to provide them with diplomatic protection, then government must have a corresponding obligation to consider the request and deal with it consistently with the Constitution. [] A decision as to whether protection should be given, and if so, what, is an aspect of foreign policy which is essentially the function of the executive. The timing of representations if they are to be made, the language in which they should be couched, and the sanctions (if any) that should follow if such representations are

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rejected are matters with which courts are ill-equipped to deal. The best way to secure relief for the national in whose interest the action is taken may be to engage in delicate and sensitive negotiations in which diplomats are better placed to make decisions than judges, and which could be harmed by court proceedings and the attendant publicity. [] This does not mean that South African courts have no jurisdiction to deal with issues concerned with diplomatic protection. The exercise of all public power is subject to constitutional control. Thus even decisions by the President to grant a pardon or to appoint a commission of inquiry are justiciable. This also applies to an allegation that government has failed to respond appropriately to a request for diplomatic protection. [] For instance, if the decision were to be irrational, a court could intervene. This does not mean that courts would substitute their opinion for that of the government or order the government to provide a particular form of diplomatic protection. Rationality . . . is a minimum threshold requirement applicable to the exercise of all public power by members of the executive and other functionaries. Action that fails to pass this threshold is inconsistent with the requirements of our Constitution and therefore unlawful. The setting of this standard does not mean that the courts can or should substitute their opinions as to what is appropriate for the opinions of those in whom the power has been vested. As long as the purpose sought to be achieved by the exercise of public power is within the authority of the functionary, and as long as the functionary’s decision, viewed objectively, is rational, a court cannot interfere with the decision simply because it disagrees with it or considers that the power was exercised inappropriately.

[] If government refuses to consider a legitimate request, or deals with it in bad faith or irrationally, a court could require government to deal with the matter properly. Rationality and bad faith are illustrations of grounds on which a court may be persuaded to review a decision. There may possibly be other grounds as well and these illustrations should not be understood as a closed list. [] What needs to be stressed, however, in the light of some of the submissions made to us in this case, is that government has a broad discretion in such matters which must be respected by our courts. With this in mind, I proceed now to deal with the specific claims made by the applicants. I will deal with each of the claims in turn, though not in the same order as they appear in the notice of motion.

The Claim to Be Extradited from Zimbabwe to South Africa [] The relief claimed by the applicants in this regard is as follows: Directing and ordering the government . . . to take all reasonable and necessary steps as a matter of extreme urgency, to seek the release and/or

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extradition of the applicants from the governments of Zimbabwe and/or Equatorial Guinea, as the case may be, to South Africa.

[] In terms of the Constitution the prosecuting authority, headed by the National Director of Public Prosecutions, has the power to institute criminal proceedings on behalf of the state and to carry out any necessary functions incidental to the instituting of criminal proceedings. This would include applying for extradition where this is necessary. The powers of the prosecuting authority, for which the Minister of Justice and Constitutional Affairs assumes final responsibility, must be exercised by the prosecuting authority without fear, favor, or prejudice. Decisions to institute prosecutions may raise policy issues that are far from easy to determine where, as in the present case, the events are already the subject matter of criminal proceedings in another country. [] In terms of the Promotion of Administrative Justice Act a decision to institute a prosecution is not subject to review. The act does not, however, deal specifically with a decision not to prosecute. I am prepared to assume in favor of the applicants that different considerations apply to such decisions, and that there may possibly be circumstances in which a decision not to prosecute could be reviewed by a court. But even if this assumption is made in favor of the applicants, they have failed to establish that this is a case in which such a power should be exercised.

The Claim That Steps Be Taken to Secure the Release of the Applicants from Custody in Zimbabwe [] There is no evidence to suggest that the charges that the applicants face in Zimbabwe are not offences according to Zimbabwean law, or that there is no evidence to justify the bringing of such charges against them. That being so, there is no basis on which South Africa would be entitled to exert diplomatic pressure on Zimbabwe for them to be released, let alone for a court to order that this be done. The Risk of Capital Punishment [] The claim is formulated as follows: “Directing and ordering the government to seek assurance as a matter of extreme urgency from the Zimbabwean and Equatorial Guinean governments not to impose the death penalty on the applicants.” [] There is nothing to suggest that the applicants are at risk of being charged with an offence in Zimbabwe for which capital punishment would be a competent sentence. That possibility need not, therefore, be considered. There is, however, evidence to suggest that the applicants may possibly be charged with capital offences in Equatorial Guinea. [] There can be no doubt that capital punishment is inconsistent with the provisions of our Bill of Rights. But the question whether South African citizens can require our government to take action to protect them against conduct in a foreign country, which would be lawful there, but would infringe their rights if committed

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in South Africa, raises entirely different issues. Although the abolitionist movement is growing stronger at an international level, capital punishment is not prohibited by the African Charter on Human and Peoples’ Rights or the International Covenant on Civil and Political Rights, and is still not impermissible under international law. The execution of the sentence, if imposed, would be by the state of Equatorial Guinea, which means that attempts to mitigate the sentence would necessarily engage the foreign relations between the two countries. [] The government’s policy on this issue is that it makes representations concerning the imposition of such punishment only if and when such punishment is imposed on a South African citizen. The government’s answering affidavit goes on to say: It is a concern of the South African government that there are South Africans who are indicted or incarcerated in foreign countries where the death sentence is a competent sentence. It is a continuing effort where appropriate to make representations regarding the death sentence as a form of punishment.

The applicants are entitled to the benefit of this policy, and if capital punishment were to be imposed on them, then consistently with its policy, government would have to make representations on their behalf. There is no evidence to suggest that this would not happen. [] The situation that exists in the present case is one which calls for delicate negotiations to ensure that if reasonably possible the fears that the applicants entertain can be put to rest, and that the trial, if one takes place, is conducted in a way that meets internationally accepted standards. The assessment of the risk, the best way of avoiding it and the timing of action are essentially matters within the domain of government. [] The situation that presently exists calls for skilled diplomacy the outcome of which could be harmed by any order that this court might make. In such circumstances the government is better placed than a court to determine the most expedient course to follow. If the situation on the ground changes, the government may have to adapt its approach to address the developments that take place. In the circumstances, it must be left to government, aware of its responsibilities, to decide what can best be done. [] We were told by counsel for the applicants that there have been ongoing sensitive discussions between the legal representatives of the applicants and representatives of government. If those discussions are continued they will no doubt be conducted in the light of what is said in this judgment. The applicants have not established that the government breached or threatened to breach any duty it has under the Constitution or international law. In the circumstances the applicants are not entitled to relief in this regard.

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Conclusion [] To sum up, therefore, the findings I make in the light of the evidence on record, the provisions of the Constitution and South Africa’s obligations under international law, are: . The application raises complex questions of law, of vital importance not only to the applicants but to our society as a whole. In the circumstances the application for leave to appeal directly to the Constitutional Court should be granted. . South Africa had an obligation to co-operate with Zimbabwe and Equatorial Guinea in the prevention and combating of crime, including, in particular, the duty to share information on suspected coup attempts or mercenary activity. . South Africa is under no obligation to apply for the extradition of the applicants from Zimbabwe. . The applicants’ claims as formulated in the notice of motion that the court direct and order the government to ensure that the rights that the applicants have in terms of the South African Bill of Rights are at all times respected and protected in Zimbabwe, and if extradited to Equatorial Guinea, that they be respected and protected there have no basis in law and cannot be granted. . South African nationals facing adverse state action in a foreign country are, however, entitled to request the South African government to provide protection against acts which violate accepted norms of international law. The government is obliged to consider such requests and deal with them appropriately. . Decisions made by the government in these matters are subject to constitutional control. Courts required to deal with such matters will, however, give particular weight to the government’s special responsibility for and particular expertise in foreign affairs, and the wide discretion that it must have in determining how best to deal with such matters. . Stated government policy concerning nationals in foreign countries, who are required to stand trial there on charges for which capital punishment is competent, is to make representations concerning the imposition of such punishment only if and when such punishment is imposed on a South African citizen. This policy adopted by South African its relations with foreign states is not inconsistent with international law or any obligation that the government has under the Constitution. . Stated government policy concerning the conditions of detention and the conduct of trials of nationals in foreign countries is to ensure that all South African citizens are detained in accordance with international law standards, have access to their lawyers and receive a fair trial. This policy

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.

.

.

.

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adopted by South Africa in its relations with foreign states is not inconsistent with international law or any obligation that the government has under the Constitution. The applicants’ uncontradicted evidence is that whilst in detention in Zimbabwe some of them have been assaulted, all of them have been held in deplorable conditions, and at times humiliated, abused, and denied proper access to their lawyers. Criminal charges have been brought against the warders alleged to have committed the assaults. It is not disputed that all requests for assistance by the applicants to the South African High Commission have been taken up, and that the South African High Commission made representations to the Zimbabwean authorities about these matters. How to respond to the events that have taken place requires great sensitivity, calling for government evaluation and expertise. It would not be appropriate in the circumstances of this case for a court to require or propose any approach with regard to timing or modalities different to that adopted by government. The applicants have failed to establish that the government’s response to requests for assistance is inconsistent with international law or the South African Constitution. In the circumstances the appeal must be dismissed. Because of the importance of the case and the complexity of the issues raised this is not a case in which a costs order should be made in respect of the application for leave to appeal, or the appeal.

JUSTICE NGCOBO

Introduction [] [. . .] I have read the judgment prepared by the chief justice. I am in substantial agreement with the broad theme of the judgment and therefore concur in the order he proposes. However, my approach to the issues confronting us differs to that of the chief justice. In particular, my approach to and treatment of section (), including the emphasis I place on its proper approach, differ to that adopted by the chief justice. [] The central question presented in this case is whether, under international law or our Constitution, the government has a legal duty to provide diplomatic protection to South African nationals who are arrested and imprisoned in a foreign country. [] It is true that customary international law is part of our law, but it can be altered by our law and, in particular, by our Constitution. Section  of the Constitution says that customary international law is the law in South Africa, “unless it

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is inconsistent with the Constitution or an Act of Parliament.” It follows therefore that the next inquiry is whether a duty exists under our Constitution.

Is There a Duty under Our Constitution? [] Both the applicants and the amicus contended that such a duty exists and that it derives from the Constitution. In support of this contention, reliance was placed upon section () of the Constitution. In addition the amicus also relied on section (). [] For its part, the government contended that no such duty exists under our Constitution. [] The question whether there is a constitutional duty contended for is essentially one of a proper construction of the relevant provisions of the Constitution, in particular, sections (), (), and (). These provisions must be construed in the light of, amongst other things, the Constitution as a whole and international and regional human rights instruments to which the government is a party. Before construing these constitutional provisions, it is necessary to discuss some of the considerations that are relevant in determining whether there is a constitutional duty to provide diplomatic protection to nationals abroad. These considerations provide the context in which the applicable constitutional provisions must be construed and understood. Relevant Considerations: the Constitutional Context [] The question whether the government has a constitutional duty to provide diplomatic protection in this case must be determined in the light of our Constitution, and, in particular, the provisions of the Bill of Rights. To paraphrase Justice Mohamed in S v. Makwanyane [and Another  () SA  (CC)], our Constitution articulates our shared aspirations; the values that bind us, and that discipline our government and its national institutions; the basic premises upon which all arms of government, and at all levels, are to exercise power; the national ethos that defines and regulates the exercise of that power; and the moral and ethical direction which our nation has identified for itself. The founding values upon which our constitutional democracy is founded are especially relevant in this context. [] As a nation, we have committed ourselves to establishing “a society based on democratic values, social justice and fundamental human rights.” The very first provision of the Constitution sets out the founding values upon which our constitutional democracy is founded. These values include human dignity, the achievement of equality, and the advancement of human rights and freedoms. Our democratic state is therefore committed to the advancement and protection of fundamental human rights. This commitment is immediately apparent in the Bill of Rights, which is the cornerstone of our constitutional democracy and which affirms democratic values of human dignity, equality, and freedom. [] In this sense our Constitution must be seen as a promissory note. Indeed,

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in peremptory terms, section () provides that “[t]he state must respect, protect, promote, and fulfill the rights in the Bill of Rights.” [] The commitment to the advancement and protection of fundamental human rights is also apparent in the ratification of the African Charter on Human and Peoples’ Rights (African Charter) and the International Convention on Civil and Political Rights (ICCPR). These international instruments enshrine the fundamental human rights that are generally to be found in our Constitution. [] It is this commitment to the promotion and protection of fundamental human rights that binds us and defines us as a nation and which must discipline our government and inform the duty which it owes to its nationals. This commitment “must be demonstrated by the state in everything that it does.” It must inform its foreign relations policy. Indeed the principles that underpin the government’s foreign policy include a commitment to the promotion of human rights, democracy, justice, and international law in the conduct of relations between nations.

The Conduct of Foreign Relations [] The conduct of foreign relations is a matter that is within the domain of the executive. The exercise of diplomatic protection has an impact on foreign relations. Comity compels states to respect the sovereignty of one another; no state wants to interfere in the domestic affairs of another. The exercise of diplomatic protection is therefore a sensitive area where both the timing and the manner in which the intervention is made are crucial. The state must be left to assess foreign policy considerations and it is a better judge of whether, when, and how to intervene. It is therefore generally accepted that this is a province of the executive, the state should generally be afforded a wide discretion in deciding whether and in what manner to grant protection in each case and the judiciary must generally keep away from this area. That is not to say the judiciary has no role in the matter. [] It is within this context that sections () and () of our Constitution must be construed and understood. The Construction of Sections () and () [] The relevant provisions of section  provide: () There is a common South African citizenship. () All citizens are— (a) equally entitled to the rights, privileges, and benefits of citizenship; and (b) equally subject to the duties and responsibilities of citizenship.

While the relevant provisions of section  provide: () This Bill of Rights is a cornerstone of democracy in South Africa. It enshrines the rights of all people in our country and affirms the democratic

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values of human dignity, equality, and freedom. () The state must respect, protect, promote, and fulfill the rights in the Bill of Rights.

[] The starting point in the determination of the question whether there is a duty to provide diplomatic protection is section ()(a). This section provides that all South African citizens are “equally entitled to the rights, privileges and benefits of citizenship.” This provision is the source of the rights, privileges, and benefits of citizenship to which South African citizens are entitled under our Constitution. [] What section () does, on the other hand, is to bind the state to respect, protect, promote, and fulfill the rights in the Bill of Rights. Here it must be borne in mind that the right to citizenship is constitutionally entrenched in the Bill of Rights. It is clear from section ()(a) that, in addition to certain rights, there are benefits and privileges to which South African citizens are entitled. In this sense, sections () and () must be read together as defining the obligations of the government in relation to its citizens. [] Section ()(a) therefore confers a right upon every citizen to be accorded the rights, privileges, and benefits of citizenship. This provision also makes it clear that citizens should be treated equally in the provision of rights, privileges, and benefits. This, of course, does not mean that citizens may not be treated differently where there are compelling reasons to do so. For present purposes, it is not necessary to determine the circumstances under which the government may treat citizens differently. Suffice it to say that any difference in the treatment will have to conform to the Constitution. [] Flowing from this, a citizen has the right under section ()(a) to require the government to provide him or her with rights, privileges, and benefits of citizenship. The obligation of the government is to consider rationally such request and decide whether to grant such request in relation to that citizen. If the government decides not to grant such request its decision may be subject to judicial review. This is so because such a decision is taken in the exercise of public power and the exercise of public power must conform to the Constitution. The question whether the exercise of public power conforms to the Constitution must be determined by the courts. [] The question that must be considered next is whether the rights, privileges, and benefits comprehended in section ()(a) include the right, privilege, and benefit to request diplomatic protection.

What Are the “Rights, Privileges, and Benefits” to Which Citizens Are Entitled? [] Some of the rights to which citizens are entitled are spelt out in the Bill of Rights. These include “the right to enter, to remain in, and to reside anywhere in, the Republic,” and the “right to a passport.” [] An important consideration in determining the content of the rights, privileges, and benefits of citizens is that, in international law, individuals who are abroad

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generally have no right to protect themselves against foreign states. Any protection that they enjoy must be found in the municipal law of the foreign state concerned. In the absence of such protection it is only the state of which they are a national that can protect them against violations of fundamental international human rights. Therefore, unless the South African government grants South African nationals abroad diplomatic protection, they are likely to remain without a remedy for violations of their internationally recognized human rights. And if the government cannot protect South African nationals abroad against violations or threatened violations of their international human rights, it may well be asked, what then are the benefits of being a South African citizen? Or to put it differently, what are the obligations of the South African government towards its citizens? [] In De Lange v. Smuts NO and Others [ () SA  (CC)], this court made the following observations concerning the positive obligation on the government: In a constitutional democratic state, which ours now certainly is, and under the rule of law (to the extent that this principle is not entirely subsumed under the concept of the constitutional state) citizens as well as noncitizens are entitled to rely upon the state for the protection and enforcement of their rights. The state therefore assumes the obligation of assisting such persons to enforce their rights, including the enforcement of their civil claims against debtors.

[] Although these remarks were made in a different context, in my view, they underscore the positive obligation of the state to protect the rights of South African citizens. The question that arises is, does this obligation cease once a South African citizen leaves our borders? I think not. [] Having regard to the absence of an obligation in international law to grant diplomatic protection; the commitment of our government to promote and protect fundamental human rights; the obligation of the government, in general, to protect South African citizens here and abroad; the fact that citizenship is a constitutionally entrenched right; the fact that diplomatic protection is one of the tools available to protect human rights; and the fact that there is a growing trend within international law to grant diplomatic protection to nationals abroad, I am satisfied that diplomatic protection is one of the benefits, if not the right, of citizenship. For the purposes of this judgment it is not necessary to decide whether this is a right or a benefit. The effect is the same because whether it is a right or a benefit both are constitutionally guaranteed in section ()(a). This benefit accrues to South African nationals by virtue of their citizenship. [] This benefit is constitutionally entrenched in section ()(a). If South Africa is required to ensure that everyone within its borders enjoys the fundamental human rights contained in the African Charter and the ICCPR and has adequate

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means of redress, there is no reason why South Africa should not be obliged under our Constitution to protect its own nationals when their most basic human rights are violated or threatened with violation abroad. [] I conclude therefore that diplomatic protection is a benefit within the meaning of section ()(a). It follows therefore that sections ()(a) and () must be read together as imposing a constitutional duty on the government to ensure that all South African nationals abroad enjoy the benefits of diplomatic protection. The proposition that the government has no constitutional duty in this regard must be rejected. Such a proposition is inconsistent with the government’s own declared policy and acknowledged constitutional duty. [] But what is the scope of this constitutional duty? In determining the scope of this duty it is necessary to bear in mind that the exercise of diplomatic protection has an impact on the conduct of foreign relations. As I have pointed out earlier, the conduct of foreign relations is a matter that is within the domain of the executive. When and how to intervene may be crucial to the outcome of the intervention. States are better judges of whether to intervene and if so, the timing and the manner of such intervention. At times there may be compelling reason why there should be no intervention at all or only at a later stage. It is for this reason that states are generally allowed a wide discretion in deciding whether and in what manner to grant diplomatic protection. [] The decision whether to extend diplomatic protection in a given case is the exercise of a public power and as such it must conform to the Constitution, in particular section  of the Constitution. Thus where the government were, contrary to its constitutional duty, to refuse to consider whether to exercise diplomatic protection, it would be appropriate for a court to make a mandatory order directing the government to give due consideration to the request. If this amounts to an intrusion into the conduct of foreign policy, it is an intrusion mandated by the Constitution itself. [] It now remains to be considered whether on the facts of this case, the applicants are entitled to any relief in relation to the question of a fair trial and the death penalty. [] [. . .] A South African national who is facing a criminal trial in a foreign country is entitled to this most basic human right. When this right is threatened, the South African national affected has a constitutional right to seek protection from the government against such a threat. This right flows from section ()(a) which confers a right on South African citizens to request diplomatic protection against violations of fundamental human rights. The government has a constitutional duty to grant such protection unless there are compelling reasons for not granting it. [] The government has a policy regarding nationals facing criminal trials abroad. Its policy is to ensure that such nationals get a fair trial within the framework of the Geneva Convention and international law. This policy emerges from a statement by the Deputy Minister of Foreign Affairs in an interview, a transcript of which was attached to the papers submitted to this court. In response to the question whether

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the deputy minister was confident that the applicants would get a fair trial in Zimbabwe and Equatorial Guinea, the deputy minister responded as follows: Well, as their government, we have to ensure that all South African citizens, whatever offence they have carried out or are charged with, must receive a fair trial, they must have access to their lawyers, they must be tried within the framework of the Geneva Convention, they must be held in prison within the framework of the Geneva Convention and international law and we will always, it is our constitutional duty to ensure that this is getting out within the framework of the Geneva Convention and international law and that there is a fair trial.

[] I should add that in the answering affidavit on behalf of the government, the response is the following: Without admitting the correctness of the transcript referred to in this paragraph, I wish to state that what the honorable deputy foreign affairs minister is alleged to have stated in the said transcript reflects the policy of the Republic in the conduct of foreign relations with foreign states and confirms what has been stated in the affidavit of Ntsaluba.

[] Dr. Ntsaluba in turn states that: On April , , the South African embassy requested permission from the Zimbabwean ministry of foreign affairs to allow its staff to attend the criminal proceedings of the applicants. Permission was given to staff members to attend the court proceedings.

According to him, “all the requests by the South African embassy to attend court proceedings were granted and the accredited diplomats from the South African embassy attended each and every court proceeding” in Zimbabwe. The applicants do not seriously dispute these allegations by Dr. Ntsaluba. Mr. Griebenow, who deposed to a replying affidavit on behalf of the applicants, stated that it was not necessary for anyone to request permission to attend the trial and that the South African diplomats did not attend all the trials. What Mr. Griebenow seems to ignore is that a formal request from one government addressed to another government to attend a criminal trial of a national of the requesting government is one form of diplomatic intervention. It puts the requested government on notice that the requesting state is observing the trial. [] Different considerations apply to the claims relating to the death penalty. As the chief justice holds, the death penalty does not violate international law. This is so notwithstanding a growing number of states that have outlawed the death

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penalty. However, that does not mean that a South African national who is facing the death penalty abroad cannot request diplomatic protection under section ()(a). [] The death penalty is unconstitutional under our Constitution. It infringes the right to life. Our country is committed to a society founded on the recognition of human rights. We must give particular value to the right to life and this must be demonstrated in everything we do. This commitment requires the state to take steps to protect its nationals against the death penalty. A South African who faces the death penalty has a right to request the government for protection against it. This is one of the benefits of being a South African citizen. The government is obliged to consider such a request properly and to decide whether, how, and when to intervene on behalf of such national. [] The government has a policy in respect of nationals who face the death penalty. Its policy is to intervene and make representations once the death penalty is imposed. Dr. Ntsaluba states in his affidavit that: [T]he Republic would make representations to the executive authorities in the country concerned not to implement the sentence of death. The executive authorities in that country would then consider the representations made and decide either to implement the sentence of death or commute it to some other form of punishment.

[] This policy is consistent with the government’s constitutional duty. It was contended on behalf of the applicants and the amicus that to wait until the death penalty is imposed before making representations not to implement the death penalty will be too late. There is nothing on the record to support this contention. Similarly, the heavy reliance on the Mohamed case is misplaced. That case is distinguishable from the present. It follows that the claims relating to the death penalty must also be dismissed. [] The fundamental flaw in the applicants’ case is that it was premised on the proposition that the government has a constitutional duty to require Zimbabwe and Equatorial Guinea to comply with the rights contained in our Bill of Rights. The rights in the Bill of Rights bind this government and not foreign governments. Our government cannot require foreign governments to act in accordance with our Constitution. The applicants misconceived the nature of their rights and their remedies. I agree that none of the orders sought by the applicants can be granted. JUSTICE O’REGAN [] [. . .] There can be no doubt then that at international law, the state is entitled to take diplomatic steps to protect its nationals against the violation of internationally recognized human rights standards. This entitlement in turn gives rise to two more difficult questions: Does the state, under our Constitution, bear an obligation to

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exercise its international law rights in respect of its nationals? And if it does bear such an obligation, in what circumstances is that obligation justiciable in our courts? I shall consider these two questions separately.

Is There a Constitutional Duty Upon the State? [] Before considering this question, some preliminary remarks must be made. First, it must be emphasized that South Africa is a constitutional democracy. This has two clear implications: As the preamble to our Constitution asserts, government should be based on the “will of the people”; and, secondly, the powers of government are delineated by the terms of the Constitution. So, the powers of all three arms of government arise from and are limited by the Constitution. All law and conduct inconsistent with the Constitution is invalid. Moreover, our Constitution embodies “an objective, normative value system” as is asserted in the opening clause of the Constitution which states that: 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. (b) Nonracialism and nonsexism. (c) Supremacy of the Constitution and the rule of law. (d) Universal adult suffrage, a national common voter’s roll, regular elections and a multiparty system of democratic government, to ensure accountability, responsiveness, and openness.

The conduct of all three arms of government, the legislature, executive, and judiciary must thus be consistent with the Constitution. [] Secondly, the Constitution not only sets a boundary within which the three arms of government must operate, but it also requires that the state must “promote and fulfill the rights in the Bill of Rights.” This constitutional injunction is not surprising in the light of the history of our country and the purpose of our Constitution. As Justice Ngcobo stated in Bato Star Fishing (Pty) Ltd. v. Minister of Environmental Affairs and Tourism and Others [ () SA  (CC)]: South Africa is a country in transition. It is a transition from a society based on inequality to one based on equality. This transition was introduced by the Interim Constitution, which was designed “to create a new order . . . [based on equality] in which there is equality between men and women and people of all races so that all citizens should be able to enjoy and exercise their fundamental rights and freedoms.” This commitment to the transformation of our society was affirmed and reinforced in , when the Constitution came into force. The preamble to

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the Constitution “recognizes the injustices of our past” and makes a commitment to establishing “a society based on democratic values, social justice and fundamental rights.” This society is to be built on the foundation of the values entrenched in the very first provision of the Constitution. These values include human dignity, the achievement of equality and the advancement of human rights and freedoms.

[] The leitmotif of our Constitution is thus the promotion and protection of fundamental human rights. Again and again, our Constitution restates the foundational importance of human rights to our constitutional vision. In the preamble, it speaks of the need to “heal the divisions of the past and establish a society based on democratic values, social justice and fundamental human rights”; in section , the founding values clause quoted above, the Constitution commits us to the “advancement of human rights and freedoms”; and in section (), the Constitution asserts that the Bill of Rights is a “cornerstone of democracy in South Africa.” [] Our Constitution thus asserts as a foundational value the need to protect and promote human rights. This value informs all the obligations and powers conferred by the Constitution upon the state. The importance of that foundational value is to be understood in the context of a growing international consensus that the promotion and protection of human rights is part of the responsibility of both the global community and individual states, and that there is a need to take steps to ensure that those fundamental human rights recognized in international law are not infringed or impaired. [] Thirdly, our Constitution recognizes and asserts that, after decades of isolation, South Africa is now a member of the community of nations, and a bearer of obligations and responsibilities in terms of international law. The preamble of our Constitution states that the Constitution is adopted as the supreme law of the Republic so as to, amongst other things, “build a united and democratic South Africa able to take its rightful place as a sovereign state in the family of nations.” Customary international law is law in the Republic unless it is inconsistent with the Constitution or an act of Parliament. Courts, when interpreting the Bill of Rights, “must consider international law,” and, when interpreting legislation, must prefer any reasonable interpretation consistent with international law over alternative interpretations that are not. [] In line with this constitutional acknowledgment of the importance of both international law and international human rights, South Africa has, since , signed and ratified a range of international human rights conventions including the International Covenant on Civil and Political Rights (ICCPR), the International Convention on the Elimination of All Forms of Racial Discrimination, the Convention on the Elimination of All Forms of Discrimination Against Women, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the Convention on the Rights of the Child, and the African Charter

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on Human and Peoples’ Rights. In ratifying these international agreements and conventions, our government is promoting the protection of human rights in the international arena. [] I turn now to consider the obligations imposed upon government by the Constitution. Counsel for the respondent argued that there could be no duty imposed upon the government to provide diplomatic protection to its nationals against the grave infringement of international human rights norms because this would constitute the extraterritorial application of our Bill of Rights. It is correct that the relief formulated by the applicants in prayers , , and  does suggest that they were seeking the extraterritorial application of the Bill of Rights. However, in argument, counsel for both the applicants and the amicus submitted that the government was under an obligation to provide diplomatic protection to its nationals under the Constitution. Counsel for the applicants conceded that the formulation of the relief in the notice of motion may not have accurately reflected this submission. [] The ordinary principle of international law is that jurisdiction of States is territorial. In R v. Cook [[]  SCR ], the Canadian Supreme Court had to consider the question whether an accused could rely on the provisions of the Canadian Charter of Rights and Freedoms in respect of her interrogation by Canadian law enforcement officials in the United States. The majority of the court concluded (as the chief justice notes in his judgment) as follows: In our view, the reasoning adopted in both Harrer and Terry can accommodate a finding that on the jurisdictional basis of nationality, the Charter applies to the actions of Canadian law enforcement authorities on foreign territory (which satisfies section ()), provided that the application of Charter standards would not interfere with the sovereign authority of the foreign State.

[] It is obvious that the Bill of Rights in our Constitution binds the executive and that the state is under an obligation to “respect, protect, promote, and fulfill the rights in the Bill of Rights.” It is also clear that the provisions of our Bill of Rights are not binding on the governments or courts of other countries. So, a South African may not rely on the provisions of our Bill of Rights before other courts in other jurisdictions. To this extent, then, our Bill of Rights has no direct extraterritorial effect. [] It does not follow, however, that when our government acts outside of South Africa it does so untrammelled by the provisions of our Bill of Rights. There is nothing in our Constitution that suggests that, insofar as it relates to the powers afforded and the obligations imposed by the Constitution upon the Executive, the supremacy of the Constitution stops at the borders of South Africa. Indeed, the contrary is the case. The executive is bound by the four corners of the Constitution. It has no powers other than those that are acknowledged by or flow from the Constitution. It is accordingly obliged to act consistently with the obligations imposed upon it by the Bill of Rights wherever it may act. It is not necessary to consider in

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this case whether the provisions of the Bill of Rights bind the government in its relationships outside of South Africa with people who have no connection with South Africa. [] Were the enforcement of the Bill of Rights against the government in any particular case to constitute an infringement of international law, our Constitution would not countenance it. So, the extraterritorial application of the provisions of the Bill of Rights will be limited by the international law principle that the provisions will only be enforceable against the government in circumstances that will not diminish or impede the sovereignty of another State. The enquiry as to whether the enforcement will have this effect will be determined on the facts of each case. As a general principle, however, our Bill of Rights binds the government even when it acts outside South Africa, subject to the consideration that such application must not constitute an infringement of the sovereignty of another state. [] This case, however, does not concern a situation where a South African government official has acted outside of South Africa in a manner inconsistent with the provisions of the Bill of Rights. It concerns the question whether the South African government, to the extent that it has the right in international law to make diplomatic representations to another state on behalf of one of its nationals, is under an obligation under our Constitution to make such representations. [] It is quite clear that the right to provide diplomatic protection in this way does not involve the extraterritorial application of our Constitution. International law affords South Africa the right to provide diplomatic protection to its nationals in respect of the breach of the provisions of international law, not our Constitution. There will of course be some overlap between the provisions of our Bill of Rights and the principles of customary international human rights law and conventional human rights law. The international law right to take steps to protect nationals relates only to breaches of international law. The question whether a duty exists under our Constitution to take such steps does not raise the question of the extraterritorial effect of our Bill of Rights at all. I turn now to consider the question whether such a duty exists under our Constitution. [] As the chief justice points out, our Constitution contains no express provision conferring a right to diplomatic protection from the state, unlike some other recently adopted constitutions. Nor is there a right to diplomatic protection asserted in the Universal Declaration of Human Rights, nor in the ICCPR or the African Charter. [] However, our Constitution does contain an express recognition of the rights of citizenship. Section  of the Constitution provides that: () There is a common South African citizenship. () All citizens are— (a) equally entitled to the rights, privileges and benefits of citizenship; and (b) equally subject to the duties and responsibilities of citizenship.

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() National legislation must provide for the acquisition, loss and restoration of citizenship.

Section  thus confers an entitlement to the “rights, privileges and benefits of citizenship” upon South African citizens. What are the rights, privileges, and benefits of citizenship? This question needs to be answered in the context of the other provisions of the Constitution. [] As to the “rights of citizens,” certain provisions of the Bill of Rights expressly confer rights upon citizens. So citizens are given the right to make political choices (which includes the right to form political parties, to participate in the activities of political parties, to free, fair, and regular elections and the right to vote and stand for public office); the right not to be deprived of citizenship; the right to enter, remain in, and reside anywhere in South Africa; the right to a passport; and the right to choose their trade, occupation, or profession freely. These fall within the concept of the rights of citizenship as contemplated in section . [] There are no explicit provisions in the Constitution that give content to the “privileges and benefits” of citizenship. We must start from an assumption that citizens do enjoy some privileges and benefits in addition to the rights conferred by the Constitution, for otherwise the reference to “privileges and benefits” in section  would be meaningless. Moreover, in giving meaning to the words, it is important to bear in mind both the constitutional recognition of the importance of the international sphere and international law, as well as the priority given to the promotion and protection of human rights in our Constitution. We should also bear in mind the importance of the role of the state, under our constitutional democracy, in the protection of human rights. As Justice Ackermann stated in De Lange v. Smuts NO and Others [ () SA  (CC)]: In a constitutional democratic State, which ours now certainly is, and under the rule of law (to the extent that this principle is not entirely subsumed under the concept of the constitutional state) citizens as well as noncitizens are entitled to rely upon the state for the protection and enforcement of their rights.

[] The state is entitled to make diplomatic representations on behalf of its nationals under international law, even though at international law it is not obliged to do so. When it does so, the state clearly confers a privilege or benefit upon the person concerned. In my view, when section  speaks of the “privileges and benefits” of citizenship it includes within it the right of the state to make diplomatic representations on their behalf to protect them against a breach of international law. It is true that historically international law has taken the view that in making such diplomatic representations, the state acts in defense of its own interests, not in the interests of its nationals, who are not “subjects” of international law. However, it is increasingly being recognized that this is a fiction in the sense that the primary beneficiaries of

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diplomatic representations made by the state are those nationals in respect of whom the State makes representations. This has recently been acknowledged by the South African government in its representations to the International Court of Justice. Given that it is widely accepted that the right to diplomatic protection does serve the interests of individuals, it seems appropriate to consider the provision of diplomatic protection by the state to fall within the “privileges and benefits” of citizenship as contemplated by section . [] What then does section  mean when it states that a citizen is “equally entitled to the . . . privileges and benefits of citizenship”? It is quite clear that it means in the first place that the state may not act in respect of some citizens and not others, the state must treat citizens equally. However, the question that arises is whether the subsection imposes an obligation upon government to provide diplomatic protection to its citizens when it would be entitled to do so in terms of international law in the light of my conclusion that the provision of diplomatic protection constitutes a privilege or benefit of citizenship. In other words, are citizens entitled to diplomatic protection, in itself, or merely entitled to equal protection of it, which otherwise may be refused by the state, as long as it refuses it equally? The latter interpretation of course may add little to the protection of the equality clause in section  of the Constitution, but that does not seem to me to be the most powerful interpretative concern. The question has to be answered in the light of the normative commitment to human rights emphasized in our Constitution, the importance accorded to international law and human rights in our Constitution and the conception of democratic government that underlies our Constitution. Most importantly, our Constitution must be interpreted in a way that will promote rather than hinder the achievement of the protection of human rights. [] In the light of these constitutional imperatives, government would not be constitutionally permitted simply to ignore a citizen who is threatened with or has experienced an egregious violation of human rights norms at the hands of another state. Were government to be entitled to do so, the achievement of human rights would be obstructed and international human rights norms undermined. Accordingly, and in the light of my understanding of the values of our Constitution, I would conclude that it is proper to understand section  as imposing upon government an obligation to provide diplomatic protection to its citizens to prevent or repair egregious breaches of international human rights norms. Where a citizen faces or has experienced a breach of international human rights norms that falls short of the standard of egregiousness, the situation may well be different. Thus, I conclude that to the extent that section () states then that “citizens are equally entitled to the . . . privileges and benefits” of citizenship, it is not only an entitlement to equal treatment in respect of the privilege and benefit of diplomatic protection, but also an entitlement to diplomatic protection itself.

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JUSTICE SACHS [] [. . .] Section (b) of the Constitution makes it clear that one of the principles governing national security is: “The resolve to live in peace and harmony precludes any South African citizen from participating in armed conflict, nationally or internationally, except as provided for in terms of the Constitution or national legislation.” Mercenary activities aimed at producing regime-change through military coups violate this principle in a most profound way. As the main judgment trenchantly establishes, the government is under a duty to act resolutely to combat them, the more so if they are hatched on South African soil. [] At the same time, section () provides that: “The security services must act, and must teach and require their members to act, in accordance with the Constitution and the law, including customary international law and international agreements binding on the Republic.” This section emphasizes that in dealing with even the most serious threats to the state, a noble end does not justify the use of base means. On the contrary, as I stated in S v. Basson [ () SA  (CC)], none of the above should be taken as suggesting that because war crimes might be involved, the rights to a fair trial of the respondent as constitutionally protected are in any way attenuated. When allegations of such serious nature are at issue, and where the exemplary value of constitutionalism as against lawlessness is the very issue at stake, it is particularly important that the judicial and prosecutorial functions be undertaken with rigorous and principled respect for basic constitutional rights. The effective prosecution of war crimes and the rights of the accused to a fair trial are not antagonistic concepts. On the contrary, both stem from the same constitutional and humanitarian foundation, namely the need to uphold the rule of law and the basic principles of human dignity, equality and freedom.

[] The values of our Constitution and the human rights principles enshrined in international law are mutually reinforcing, interrelated and, where they overlap, indivisible. South Africa owes much of its very existence to the rejection of apartheid by the organized international community and the latter’s concern for the upholding of fundamental human rights. It would be a strange interpretation of our Constitution that suggested that adherence by the government in any of its activities to the foundational norms that paved the way to its creation was merely an option and not a duty. [] I believe that the main judgment, with which I agree, as well as the two complementary judgments all underline the importance and correctness of the acceptance by the government of its constitutional obligations in the present matter. In my view, in their basic outline the judgments of Justice Ngcobo and Justice

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O’Regan are compatible with and give added texture to the principal judgment of Chief Justice Chaskalson. I do not think that the present matter calls for a definitive position on all the doctrinal nuances of Mohamed. Nor do I believe that a declarator concerning the government’s obligations is required. Subject to keeping an open mind on Mohamed, I accordingly concur in the principal judgment, and with the order it makes. I also agree with the additional points of substance made in the two separate judgments. In my opinion, the government has a clear and unambiguous duty to do whatever is reasonably within its power to prevent South Africans abroad, however grave their alleged offences, from being subjected to torture, grossly unfair trials and capital punishment. At the same time, the government must have an extremely wide discretion as to how best to provide what diplomatic protection it can offer.

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Jaftha and Van Rooyen

Jaftha v. Schoeman and Others; Van Rooyen v. Stoltz and Others  () SA  (CC) CASE SUMMARY

Facts The appellants in the two cases were both poor unemployed women whose houses, acquired with the help of a state subsidy, had been sold in execution to satisfy debts of R and R respectively. The sales in execution, which took place on the same day, were undertaken in terms of sections ()(a) and  of the Magistrates’ Court Act  of . Section ()(a) provided that an order by a court for the payment of money can be enforced by execution against the moveable property of judgment debtor. Only if there is insufficient moveable property to satisfy the judgment can the immovable property of that person be executed. Section  then provides for property that is necessary for the debtor to survive to be protected from execution. That protection does not extend to a debtor’s home. Lawyers in Cape Town heard of the applicant’s situation and took up their cause. They argued that these provisions infringed the right of access to housing in section () of the Constitution.

Legal History The High Court found that the right of access to housing in section () did not entail that a person own a house. So, although a sale in execution brings the judgment debtor’s ownership to an end, this state of affair does not violate section (). The appellants then appealed to the Constitutional Court.

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Issues Does a law permitting the attachment of a person’s house for payment of a judgment debt violate the constitutional right of access to housing? Decision of the Constitutional Court Justice Mokgoro, writing for the court, reemphasized that when a socio-economic right, such as the right to housing, is limited the right to dignity is “invariably implicated” (paragraph ). Dignity does play an important role in fleshing out the meaning of the section () right to housing. One could not ignore—when out teasing out the content of section ()—South Africa’s ugly history of forced removals. Such removals then impaired their dignity (paragraph ). The court concluded that, at the very least, any measure which permits a person to be deprived of existing access to adequate housing limits the negative right section () right of access to housing. Section ()(a) permitted exactly that outcome and thus had to be justified under section . While the section served the important purpose of ensuring the payment of debts, it had the potential, as in these cases, to deprive a person of her constitutional right for a trifling amount. The court therefore found the limitation unjustified. Order However, an absolute ban on attachment would also be impermissible, as it would fail to recognize the legitimate interests of judgment creditors. The Court therefore ordered that section ()(a) be altered to permit the attachment of immoveable property only after a magistrate had considered how attachment would effect the dignity or the housing of the judgment debtor. Comment Jaftha raises interesting questions about the relationship between section  and socio-economic rights. Justice Mokgoro emphasizes the necessity of dignity in determining the content of socio-economic rights, but also holds that relying on section  in addition to the right to housing “does not add anything.” Does this holding gel with the court’s holding in Dawood? Can we still give independent content to dignity and socio-economic rights after Jaftha, or are they so intermingled that they just highlight different elements of the same principle? Can you think of any cases involving housing that will violate the right to dignity, but not the housing rights in section ? Even if including a section  challenge does not formally add anything new to the case, doesn’t it change the way we perceive the housing challenge? Isn’t that precisely what happened in Jaftha? JUSTICE MOKGORO [] [. . .] Section ()(a) of the act prescribes the process from the time a court gives judgment in favor of a creditor until the ultimate sale in execution of the

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debtor’s immovable property. The sheriff calls at the home of the debtor and attaches movable property sufficient to settle the debt. If insufficient movables exist the sheriff issues a nulla bona return, which reflects that there is insufficient movable property to settle the debt. On the strength of the fact that no movables are found, the clerk of the court is obliged to issue a warrant of execution against the immovable property. It is for him or her to decide whether, in the light of the sheriff ’s nulla bona return, insufficient movables exist to satisfy the judgment. Once he or she is satisfied of this fact, it follows that the debtor’s immovable property will be sold in execution. [] The appellants rely on the right of access to adequate housing as protected under section () of the Constitution. They argue that in terms thereof both the state and private parties have a duty not to interfere unjustifiably with any person’s existing access to adequate housing and that s ()(a) of the act is unconstitutional to the extent of its over-breadth in that it allows a person’s right to have access to adequate housing to be removed even in circumstances where it is unjustifiable. This is particularly so in the circumstances of this case, they argue, where the debtor is a recipient of state-subsidized housing and such a person is barred from receiving such assistance in the future, if he or she loses a house pursuant to a sale in execution. [] Section  of the act serves to limit the range of movables that may be attached. The section lists certain movables that are exempt from execution in all cases. It is clear from the list that the act seeks to insulate from execution certain items necessary for the debtor to survive. Although the appellants commend the section, they argue that it is unconstitutional in that it fails to shield from execution the home of a debtor, which is now constitutionally protected. They argue that the section should be read to protect the homes of debtors below a particular value. [] In response to the appellants’ argument in respect of section ()(a), the minister points to sections  and  of the act. Under section , a debtor may approach a court and seek, on good cause shown, that a warrant of execution be stayed or set aside. Section  permits a debtor to approach a court for an order entitling him or her to pay the judgment debt in installments. The minister argues that the act therefore contains built-in safeguards, which serve to protect the debtor should he or she avail him or herself of these. The minister acknowledges that indeed many people similarly situated to the appellants might not have the wherewithal to use those provisions of the act, but the minister argues that this fact in itself does not render the act unconstitutional. [] Before the High Court, the appellants sought to rely on section  of the Constitution only. Before this court, however, they seek to amplify their argument. They challenge the impugned sections on the basis that they are in conflict with the right to dignity under section  and the right against unlawful deprivation of property under section () of the Constitution. The minister contends that this is undesirable in that there are no special circumstances that justify this court sitting as a court of first and final instance in relation to these rights.

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[] This court has made it clear that any claim based on socio-economic rights must necessarily engage the right to dignity. The lack of adequate food, housing, and health care is the unfortunate lot of too many people in this country and is a blight on their dignity. Each time an applicant approaches the courts claiming that his or her socio-economic rights have been infringed the right to dignity is invariably implicated. The appellants’ reliance on section  as a self-standing right therefore does not add anything to this matter making it unnecessary to consider the attempted amplification of their case in this regard. [] The question of section () of the Constitution is different. The structure of section () and its protection of ownership, as well as the uncertainty about the scope of the negative obligation in terms of section , mean that section () could add a new dimension to this case. However, in the light of the conclusion that I reach regarding the scope of section  below, it is unnecessary to consider the challenge under section ().

The Right to Adequate Housing in International Law [] Although the concept of adequate housing was briefly discussed in Government of the Republic of South Africa and Others v. Grootboom and Others [ () SA  (CC)], this court has yet to consider it in any detail. This subject has however been dealt with by the United Nations Committee on Economic, Social and Cultural Rights (the Committee) in the context of the International Covenant on Economic, Social and Cultural Rights,  (the Covenant). In terms of section ()(b) of the Constitution, this court must consider international law when interpreting the Bill of Rights. Therefore, guidance may be sought from international instruments that have considered the meaning of adequate housing. [] Article () of the Covenant reads as follows: The states parties of the present Covenant recognize the right of everyone to an adequate standard of living, including adequate food, clothing and housing, and to the continuous improvement of living conditions. The states parties will take appropriate steps to ensure the realization of this right, recognizing to this effect the essential importance of international co-operation based on free consent. (Emphasis added.)

In its general comment , the committee, giving content to article () of the Covenant, emphasized the need not to give the right to housing a restrictive interpretation and to see it as “the right to live somewhere in security, peace and dignity.” The position of the Committee reflects the view adopted by this court in Grootboom, that the right to dignity is inherently linked with socio-economic rights. It is important, for the purposes of this case, to point to the Committee’s recognition that “the concept of adequacy is particularly significant in relation to the right to housing.” While acknowledging that adequacy “is determined in part by social, economic,

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cultural, climatic, ecological, and other factors,” it has identified “certain aspects of the right that must be taken into account for this purpose in any particular context.” Of relevance is the focus on security of tenure. The committee points out that security of tenure takes many forms, not just ownership, but that “all persons should possess a degree of security of tenure which guarantees legal protection against forced eviction, harassment and other threats.”

Security of Tenure in Our Historical Context [] The international law concept of adequate housing and its central theme of security of tenure reinforce the notion of adequate housing in section  as understood in the light of our particular history of forced removals and racist evictions in South Africa. The focus on security of tenure in section  of the Constitution marks an intention to reject that part of our history where invasive legislation was used to remove people from their land and homes forcefully and to intimidate and harass them with senseless evictions, rendering them homeless. [] The history of the legislative scheme under apartheid and the grave injustices perpetrated in the context of land have been dealt with in detail elsewhere. It is not necessary here to go into great detail on this subject. It is important to emphasize, however, that the need for the protection of security of tenure in section  must be viewed in the light of the injustices of forced removals from land and evictions from homes perpetrated in the past. [] The situation under apartheid demonstrates the extent to which access to adequate housing is linked to dignity and self-worth. Not only did legislation permit the summary eviction of people from their land and homes, which, in many cases, had been occupied for an extremely long time, it branded as criminal anyone who was deemed to be occupying land in contravention of it. In this sense a person was made to suffer double indignity—the loss of one’s home and the stigma that attaches to criminal sanction. [] Against this backdrop, it is important to emphasize that section  of the Constitution must be read as a whole. Section () is the provision that speaks directly to the practice of forced removals and summary eviction from land and which guarantees that a person will not be evicted from his or her home or have his or her home demolished without an order of court considering all of the circumstances relevant to the particular case. The whole section, however, is aimed at creating a new dispensation in which every person has adequate housing and in which the state may not interfere with such access unless it would be justifiable to do so. The words of Justice Mahomed, writing with reference to the death penalty, have been quoted in many contexts. They also bear repetition here because they are particularly relevant to an analysis of the purpose of section : All Constitutions seek to articulate, with differing degrees of intensity and detail, the shared aspirations of a nation; the values which bind its people, and

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which discipline its government and its national institutions; the basic premises upon which judicial, legislative and executive power is to be wielded; the constitutional limits and the conditions upon which that power is to be exercised; the national ethos which defines and regulates that exercise; and the moral and ethical direction which that nation has identified for its future. In some countries the Constitution only formalizes, in a legal instrument, a historical consensus of values and aspirations evolved incrementally from a stable and unbroken past to accommodate the needs of the future. The South African Constitution is different: It retains from the past only what is defensible and represents a decisive break from, and a ringing rejection of that part of the past which is disgracefully racist, authoritarian, insular, and repressive, and a vigorous identification of and commitment to a democratic, universalistic, caring and aspirationally egalitarian ethos, expressly articulated in the Constitution. The contrast between the past which it repudiates and the future to which it seeks to commit the nation is stark and dramatic.

[] Section  must be seen as making that decisive break from the past. It emphasizes the importance of adequate housing and in particular security of tenure in our new constitutional democracy. The indignity suffered as a result of evictions from homes, forced removals and the relocation to land often wholly inadequate for housing needs has to be replaced with a system in which the State must strive to provide access to adequate housing for all and, where that exists, refrain from permitting people to be removed unless it can be justified. [] Before turning to a more detailed consideration of section , I emphasize that the underlying problem raised by the facts of this case is not greed, wickedness, or carelessness, but poverty. What is really a welfare problem gets converted into a property one. People at the lower end of the market are quadruply vulnerable: They lack income and savings to pay for the necessities of life; they have poor prospects of raising loans, since their only asset is a state-subsidized house; the consequences of inability to pay, under the law as it stands, can be drastic because they live on the threshold of being cast back into the ranks of the homeless in informal settlements, with little chance of escape; and they can easily find themselves at the mercy of conscienceless persons ready to abuse the law for purely selfish gain.

Section () and the Negative Aspect of the Right of Access to Adequate Housing [] In all the socio-economic rights cases previously dealt with in this court, the applicants approached the court claiming a positive obligation on the part of the state to provide access to the socio-economic rights in the Constitution. In some of those cases this court made reference to the negative aspect of socio-economic rights without considering it in any detail. In this matter, however, the appellants, in their claim, distinguish between the positive and the negative aspects of the right to hous-

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ing. They argue that it is the negative aspect of the right that has been violated. Relying on the decision of this court in Grootboom, the appellants contend that the negative obligation under section  is not to prevent or impair existing access to adequate housing and while the positive obligations fall only on the state, the negative obligation applies to everyone, including private persons. The appellants argue that the positive obligations are clearly subject to progressive realization but that it would make no sense to say the same of the negative ones. In this case the appellants already have their homes and the state has a duty to protect their right of access to adequate housing. The availability of state resources is not an issue. [] In rejecting the contention that there is a negative aspect to the rights in section , the High Court held that section () “does not give rise to a self-standing and independent right irrespective of the considerations enumerated in section ().” As authority for this proposition, the High Court cited the remarks made by this court in Minister of Health and Others v. Treatment Action Campaign and Others No  [ () SA  (CC)] where the following was said: We therefore conclude that section () of the Constitution does not give rise to a self-standing and independent positive right enforceable irrespective of the considerations mentioned in section (). Section () and () must be read together as defining the scope of the positive rights that everyone has and the corresponding obligations on the state to “respect, protect, promote and fulfill” such rights. The rights conferred by sections () and () are to have “access” to the services that the state is obliged to provide in terms of sections () and (). (Emphasis added.)

The appellants seek to distinguish this reasoning on the grounds that the court was considering the question whether an “independent positive right” existed. The court’s reasoning there, according to the appellants, cannot be used for authority that there is no negative obligation under section (). [] The appellants are indeed correct. The interpretation adopted by the High Court fails to take cognizance of this court’s various statements that there is a negative content to socio-economic rights. [] It is not necessary in this case to delineate all the circumstances in which a measure will constitute a violation of the negative obligations imposed by the Constitution. However, in the light of the conception of adequate housing described above I conclude that, at the very least, any measure that permits a person to be deprived of existing access to adequate housing limits the rights protected in section (). Such a measure may, however, be justified under section  of the Constitution.

Limitation Analysis [] The appellants argue that section ()(a) is unconstitutional to the extent that it has the potential of rendering a person permanently homeless because of his or

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her failure to pay a trifling debt. On the test set out above it is important to note that the fact that trifling debts can lead to sales in execution is not relevant to the question whether the right to adequate housing has been limited by the section ()(a) measure but is relevant to the justifiability of this particular measure. It is to this question that I now turn. [] Section () reads: The rights in the Bill of Rights 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, taking into account all relevant factors, including— (a) the nature of the right; (b) the importance of the purpose of the limitation; (c) the nature and extent of the limitation; (d) the relation between the limitation and its purpose; and (e) less restrictive means to achieve the purpose.

Of the factors that section  enjoins the courts to consider, the nature of the right and the nature and extent of the limitation are of great importance when weighed against the importance of the purpose of the limitation. [] In the present matter, the minister, while not conceding that the impugned provisions violate the rights of the appellants, has advanced argument to the effect that the measures are reasonable and justifiable. She contends that debt recovery is an important government purpose. The procedure put in place to allow for execution in order to recover money owed is reasonable and, without it, the administration of justice would be severely hampered. She argues that it is not possible for every execution order to be overseen by a magistrate and that the process provided by section ()(a) facilitates collection of debt in the most viable manner. [] It is further contended that to strike down section ()(a) would in fact hinder commercial transactions benefiting persons in the same position as the appellants. This is because for poor people with few assets other than low-cost housing, often the only way to raise capital to improve their living conditions is to take out loans against security in the form of their homes. Absent a convenient and foolproof mechanism to execute against such property, creditors, so the argument goes, will be reluctant to provide loans to people similarly situated to the appellants. She points out that not all creditors are themselves wealthy and that there might be circumstances in which creditors deprived of the execution procedure would be left in a difficult financial situation because of outstanding debts, which they might otherwise be unable to recover. [] The importance of access to adequate housing and its link to the inherent dignity of a person has been well emphasized by this court. In the present matter access to adequate housing already exists. Relative to homelessness, to have a home

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one calls one’s own, even under the most basic circumstances, can be a most empowering and dignifying human experience. The impugned provisions have the potential of undermining that experience. The provisions take indigent people who have already benefited from housing subsidies and, worse than placing them at the back of the queue to benefit again from such subsidies in the future, put them in a position where they might never again acquire such assistance, without which they may be rendered homeless and never able to restore the conditions for human dignity. Section ()(a) is therefore a severe limitation of an important right. [] The purpose of the limitation is important, as the minister contends. However, when the focus is on the trifling nature of the debt the importance of the purpose is diminished. It is difficult to see how the collection of trifling debts in this case can be sufficiently compelling to allow existing access to adequate housing to be totally eradicated, possibly permanently, especially where other methods exist to enable recovery of the debt. This is not to say that every sale in execution to satisfy a trifling debt will be unreasonable and unjustifiable. There are a number of difficulties with such a conclusion. In the first place, it is not easy to adopt a uniform definition of the concept of a “trifling debt.” What might seem trifling to an affluent observer might not be trifling to a poor creditor reliant on his or her ability to recover debts. Indeed, not all creditors are affluent and to many who use the execution process, it constitutes the only mechanism to recover outstanding debts. [] Another difficulty is that there may be other factors that militate against a finding that execution is unjustifiable. Such factors will vary according to the facts of each case. It might be that the debtor incurred debts despite the knowledge of his or her inability to repay the money and was reckless as to the consequences of incurring the debt. While it will ordinarily be unjustifiable for a person to be rendered homeless where a small amount of money is owed, and where there are other ways for the creditor to recover the money lent, this will not be the case in every execution of this nature. [] The interests of creditors must not be overlooked. There might be circumstances where, notwithstanding the relatively small amount of money owed, the creditor’s advantage in execution outweighs the harm caused to the debtor. In such circumstances, it may be justifiable to execute. It is in this sense that a consideration of the legitimacy of a sale in execution must be seen as a balancing process. [] However, it is clear that there will be circumstances in which it will be unjustifiable to allow execution. The severe impact that the execution process can have on indigent debtors has already been described. There will be many instances where execution will be unjustifiable because the advantage that attaches to a creditor who seeks execution will be far outweighed by the immense prejudice and hardship caused to the debtor. Besides, the facts of this case also demonstrate the potential of the section ()(a) process to be abused by unscrupulous people who take advantage of the lack of knowledge and information of debtors similarly situated to the appellants. Execution in these circumstances will also be unjustifiable.

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[] The section is therefore sufficiently broad to allow sales in execution to proceed in circumstances where it would not be justifiable for them to be permitted. In the light of the view that I take on the appropriate remedy, it is not desirable for this judgment to provide an exhaustive account of those factors that would justify the sale in execution and those that would not. However, I return to a more detailed account of these factors in the discussion on the remedy below. [] The appellants have argued that the obligation not to interfere with preexisting rights under section () attaches to everyone, not only to the state. In the light of the conclusion I have reached, it is not necessary to consider this argument. [] A further matter must be addressed. The minister has argued that s ()(a) is not unconstitutional because it is part of the scheme of the act, which must be assessed as a whole. She points to sections  and  of the act and argues that these provisions provide sufficient protection for debtors who wish to avoid the sale of their homes in execution. [] The crux of section , for the purposes of this case, is that it allows a court to set aside or stay a warrant of execution that it has issued on good cause shown. This, however, places a burden on a debtor whose home has been subject to a warrant of execution to approach a court and show good cause why the warrant ought to be set aside. This being the case, the problem with the minister’s argument is that it overlooks the fact that many debtors in the position of the appellants are unaware of the protection offered by this section. Even where there is awareness, it would generally be difficult for indigent people in the position of the appellants to approach a court to claim protection. They are a vulnerable group whose indigence and lack of knowledge prevents them from taking steps to stop the sales in execution, as is demonstrated by the facts of this case. [] The minister argues that the practical difficulties that accompany the use of a legislative scheme cannot render that scheme unconstitutional. This might be so in many cases. In this case, however, it is clear that section ()(a) is so broad that it permits sales in execution to occur without judicial intervention and even where they are unjustifiable. The fact that a permissive measure which must be invoked by the debtor exists does not change the potentially unjustified executions that may occur when the process envisaged by section ()(a) is initiated by creditors. So long as the possibility exists within the legislative scheme for sales in execution to occur in circumstances where debtors’ rights have been unjustifiably violated, the scheme is overbroad. [] Similar considerations apply to section . That section provides for a debtor to approach a court and request that the debt be repaid in installments. The same difficulties that arise regarding section  follows from the argument in respect of section . Here too, the section is invoked only when a debtor approaches the court. The same problem of an absence of knowledge and the indigence of those similarly situated to the appellants applies here. The section  measure can therefore also not save section ()(a) from unconstitutionality.

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

Section  of the Act [] As part of their challenge, the appellants argue that section  of the act is also unconstitutional. Their argument is that the section protects certain assets belonging to a debtor from execution because it is recognized that they constitute necessities without which it would be unduly difficult for the debtor to survive. While supporting the protection afforded to those assets, the appellants argue that the section is unconstitutional to the extent that it fails to provide similar protection to the homes of debtors, which also constitute necessities. The argument is that the right of access to housing is constitutionally protected and the impugned provisions ought to protect the homes of debtors in circumstances where the loss of a home will render the debtor permanently homeless. To remedy this defect, the appellants contend that words should be read into section  to prohibit sales in execution against houses below a particular minimum value. [] It is my view that a blanket prohibition of the sort suggested by the appellants is not appropriate. A blanket prohibition against sales in execution below a particular value might well lead to a poverty trap—preventing many poor people from improving their station in life because of an incapacity to generate capital of any kind. Additionally, to impose a blanket prohibition as suggested would pay insufficient attention to the interests of the creditor. It would potentially foreclose the possibility of creditors recovering debts owed to them by owners of excluded properties. Section  cannot be unconstitutional to the extent that it does not provide for a blanket prohibition against sales in execution of a house below a certain value. Remedy [] I have held that section ()(a) of the act is over-broad and constitutes a violation of section () of the Constitution to the extent that it allows execution against the homes of indigent debtors, where they lose their security of tenure. I have held further that section ()(a) is not justifiable and cannot be saved to the extent that it allows for such executions where no countervailing considerations in favor of the creditor justify the sales in execution. I now turn to the appropriate remedy. [] [. . .] From the time judgment is obtained, with or without a hearing before a magistrate, the entire process from attempted execution against movables until the final stage of the sale in execution against the immovable property of the debtor is administered by various officers of the court and the Sheriff. It was the appellants’ contention that an appropriate remedy would require that once insufficient movable property to satisfy the debt has been found a creditor should approach a court to request execution against the immovable property of the debtor. It would then be for the court to order execution and only if the circumstances of the case make it appropriate. [] It is my view that this is indeed an appropriate remedy in this case. Judicial oversight permits a magistrate to consider all the relevant circumstances of a case to

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Legal Cases (–)

determine whether there is good cause to order execution. The crucial difference between the provision of judicial oversight as a remedy and the possibility of reliance on section  and  of the act is that the former takes place invariably without prompting by the debtor. Even if the process of execution results from a default judgment the court will need to oversee execution against immovables. This has the effect of preventing the potentially unjustifiable sale in execution of the homes of people who, because of their lack of knowledge of the legal process, are ill-equipped to avail themselves of the remedies currently provided in the Act. [] It would be unwise to set out all the facts that would be relevant to the exercise of judicial oversight. However, some guidance must be provided. If the procedure prescribed by the rules is not complied with, a sale in execution cannot be authorized. If there are other reasonable ways in which the debt can be paid an order permitting a sale in execution will ordinarily be undesirable. If the requirements of the rules have been complied with and if there is no other reasonable way by which the debt may be satisfied, an order authorizing the sale in execution may ordinarily be appropriate unless the ordering of that sale in the circumstances of the case would be grossly disproportionate. This would be so if the interests of the judgment creditor in obtaining payment are significantly less than the interests of the judgment debtor in security of tenure in his or her home, particularly if the sale of the home is likely to render the judgment debtor and his or her family completely homeless. [] A final consideration will be the availability of alternatives which might allow for the recovery of debt but do not require the sale in execution of the debtor’s home. At present, section  of the act provides for a judgment debtor to approach a court with an offer to pay off a debt in installments. As pointed out above, this section does not constitute sufficient protection for indigent debtors because they are generally unaware of its potential to protect them and their inability to invoke it. However, the concept of paying off the debt in installments is important and the practicability of making such an order must be ever present in the mind of the judicial officer when determining whether there is good cause to order the execution. The balancing should not be seen as an all or nothing process. It should not be that the execution is either granted or the creditor does not recover the money owed. Every effort should be made to find creative alternatives that allow for debt recovery but which use execution only as a last resort. [] In summing up, factors that a court might consider, but to which a court is not limited, are: The circumstances in which the debt was incurred; any attempts made by the debtor to pay off the debt; the financial situation of the parties; the amount of the debt; whether the debtor is employed or has a source of income to pay off the debt and any other factor relevant to the particular facts of the case before the court.

Reading in [] Once the court has found constitutional inconsistency, it must declare invalidity to the extent of the inconsistency. As this court held in Khosa and Others v. Minister

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of Social Development and Others; Mahlaule and Another v. Minister of Social Development and Others, “[w]hen courts consider a remedy following a declaration of invalidity of a statute, the question of remedial precision, which relates directly to respect for the role of the legislature, is an important consideration.” I have held that section ()(a) is unconstitutional only to the extent that it allows for sales in execution in unjustifiable circumstances and without judicial intervention. I have held further that the most appropriate way to remedy this over-breadth is to provide for judicial oversight at the point of sale in execution against the immovable property. What remains is to determine the most precise remedy to match the limited unconstitutionality of the provision. [] This brings me to the appropriate manner for providing judicial oversight over the process of execution. . . . [] The most precise way to remedy the lack of judicial oversight over the process is to add the phrase “a court, after consideration of all relevant circumstances, may order execution” so that it applies to sales in execution over immovable property where insufficient movables have been found to satisfy the judgment or order. Section ()(a) will then read as follows: Whenever a court gives judgment for the payment of money or makes an order for the payment of money in installments, such judgment, in case of failure to pay such money forthwith, or such order in case of failure to pay any installment at the time and in the manner ordered by the court, shall be enforceable by execution against the movable property and, if there is not found sufficient movable property to satisfy the judgment or order, or the court, on good cause shown, so orders, then a court, after consideration of all relevant circumstances, may order execution against the immovable property of the party against whom such judgment has been given or such order has been made. (Emphasis added.)

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De Reuck

De Reuck v. Director of Public Prosecutions, Witwatersrand Local Division  () SA  (CC) CASE SUMMARY

Facts Section () of the Films and Publications Act  of  prohibits the creation, production, importation, or possession of child pornography. The appellant, a film producer, was charged in the regional Magistrate’s Court with the offence of possession of child pornography. He challenged, in terms of breadth and vagueness, the constitutionality of section () read with the definition in section  on the grounds the sections infringed his rights to privacy, freedom of expression, and equality. Child pornography is defined in section  as follows: “[C]hild pornography” includes any image, real or simulated, however created, depicting a person who is or who is shown as being under the age of  years, engaged in sexual conduct or a display of genitals which amounts to sexual exploitation, or participating in, or assisting another person to engage in sexual conduct which amounts to sexual exploitation or degradation of children.

Legal History The trial in the Magistrates’ Court was adjourned to enable the appellant to approach the High Court in Johannesburg for a ruling on the constitutionality of the challenged

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provisions. The High Court dismissed his challenge. The appellant then sought leave to appeal directly to the Constitutional Court against the finding of the High Court.

Issues Is the prohibition on the possession of child pornography, as defined in the act, inconsistent with the rights to privacy, freedom of expression, and equality? Decision of the Constitutional Court After carefully considering the various components of the definition of child pornography, the court considered whether section () of the act violated the right to equality and held that the differentiation between distributors and possessors of child pornography was rationally connected to a legitimate purpose and did not offend the right to equality. The court then held that both the right to privacy and the right to freedom of expression were infringed by the provision. However, the limitation of these rights was found to be reasonable and justifiable because the prohibition served to protect the dignity of children. The affront to dignity took three forms: the direct harm to the victims of child abuse; the potential harm to all children from “grooming” for the industry and the (ostensible overall societal) “harm to human dignity and perception of all children when a society allows sexualized images of children to be available” (paragraph ). Order The court dismissed the appeal and confirmed the order of the High Court. Comment The court justifies the limitation of the right to privacy in part by relying on the risk of harm to children that is presented by child pornography. Is there a risk that the possibility of “harm” may be used by the courts as a pretext on which to impose the judges’ own moral views on society? Who determines what constitutes “harm” to society generally? How much interference in the inner sanctum of a person’s life does the Constitution tolerate? Is there really harm to the “dignity” of children in animated child pornography that did not involve any actual children? DEPUTY CHIEF JUSTICE LANGA

The Primary Meaning of “Child Pornography” [] [. . .] According to The New Shorter Oxford English Dictionary, “pornography” means: The explicit description or exhibition of sexual subjects or activity in literature, painting, films, etc., in a manner intended to stimulate erotic rather than aesthetic feelings; literature, etc., containing this.

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Legal Cases (–)

This is a useful guide. I would observe, however, that erotic and aesthetic feelings are not mutually exclusive. Some forms of pornography may contain an aesthetic element. Where, however, the aesthetic element is predominant, the image will not constitute pornography. With this qualification, the dictionary definition above fairly represents the primary meaning of “pornography.” “Child pornography” bears a corresponding primary meaning where the sexual activity described or exhibited involves children. In my view, the section  definition is narrower than this primary meaning of child pornography. [] The section  definition is, in several respects, narrower than the primary meaning. It is in fact more precise: (a) it refers to “any image,” thereby excluding written descriptions; and (b) it lists various forms of conduct that may not be depicted; I shall refer to these as “prohibited acts.” This is narrower, and more precise, than the dictionary’s reference to “explicit . . . exhibition of sexual subjects or activity.”

It follows that the prohibited acts are a closed list of what constitutes child pornography for purposes of the act. [] Child pornography is defined as images “depicting” those prohibited acts. A threshold question is the perspective from which it is to be determined what an image depicts. Legal certainty and the practicalities of proof favor an objective test based on the perspective of a “reasonable viewer” over those tests that consider the subjective state of mind of the author or the accused.

The Meaning of “Person” [] The image, which may be “real or simulated, however created,” must depict a “person.” Counsel were rightly in agreement that this includes imaginary as well as real persons. There was unchallenged evidence on behalf of the state that virtual child pornography exists on the Internet, which depicts wholly imaginary children. An effective interpretation of the act requires that “person” includes at least the imaginary persons that appear in such pseudo photographs. Moreover, the terms “film,” “publication,” and “visual presentation” which are elements of the child pornography offences in section (), are defined as referring to a wide range of media, including paintings, drawings, and the Internet. Many of these media lend themselves to work from the imagination. The term “person” in section  is accordingly intended to include imaginary persons. It is clear that no child is physically harmed in the production of an image of an imaginary “person.” This is a matter I will return to in due course.

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The Meaning and Effect of the Terms “Sexual Exploitation” and “Degradation” [] Child pornography comprises images of four prohibited acts. Disentangling the description of each from the syntax of the definition is a task of some difficulty. The text of the definition is reproduced once more for convenience: “[C]hild pornography includes any image, real or simulated, however created, depicting a person who is or who is shown as being under the age of  years, engaged in sexual conduct or a display of genitals which amounts to sexual exploitation, or participating in, or assisting another person to engage in sexual conduct which amounts to sexual exploitation or degradation of children.” It is necessary to determine what is qualified by the phrases “which amounts to sexual exploitation” and “which amounts to . . . degradation of children.”

[] Child pornography is restricted to an image and section  is therefore aimed at conduct in relation to that image that falls within the ambit of the definition in section . In other words, section  sets out to define the characteristics of the image in respect of which the prohibition in section  applies. The definition in section  contemplates two categories of images. There are certain characteristics that apply to all the images contemplated in the section while there are other characteristics which apply to one or other category of them and which assist in defining that category. There are two characteristics that are common to all images. The image: (a) may be real or simulated regardless of how it is created; and (b) must be that of a person who is or is shown as being under the age of  years. [] In summary, I would say that the characteristics common to all images require simply that the image must be that of a child. I will reflect these essential characteristics by referring in this judgment to the child image. [] The stimulation of erotic rather than aesthetic feelings is an essential element of the definition of child pornography. Any image that predominantly stimulates aesthetic feelings is not caught by the definition. It does require, however, that the image viewed objectively and as a whole has as its predominant purpose the stimulation of erotic feelings in certain human beings, who may conveniently, be referred to as the target audience. How does one determine whether the predominant purpose of an image is to stimulate erotic rather than aesthetic feelings in the target audience? Evidence of the intention of the author is irrelevant to this determination. The purpose must be determined from the perspective of the reasonable viewer. The image must, therefore, be seen by the reasonable viewer as having as its predominant purpose the stimulation of erotic rather than aesthetic feelings in a target audience. It

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Legal Cases (–)

must be emphasized that the image need not, and in most instances will not, stimulate erotic feelings in the reasonable viewer. THE EQUALITY CHALLENGE [] It is convenient to deal first with the applicant’s submissions based on the right to equality. His main argument was as follows: mere possessors of a publication charged under section ()(a) are treated more harshly than distributors of an as yet unclassified publication charged under section (). Except in relation to art, the latter group may raise the schedule  defenses even if the publication is found to be child pornography. These defenses are not available under section ()(a) to mere possessors of the same publication. Similarly, mere possessors of a film charged under section ()(b) are treated more harshly than broadcasters of an as yet unclassified film charged under section ()(a), because the schedule  defenses (except art) are available to the latter but not the former. In each case the applicant claimed irrational differentiation, alternatively unfair discrimination, against mere possessors. [] The difficulty with this submission is that it ignores the overall purpose of section (). Schedule  contains the list of materials, the distribution of which is targeted by section (). It contains, in addition to child pornography, several other classes of sexually explicit or violent material. Its scope is wider therefore than the material targeted by section , although it is narrowed somewhat by the exemptions in schedule . Thus section () should be characterized as a measure that bans for distribution a range of publications that is broader, in most respects, than those banned for possession by section ()(a). This differentiation is connected with the legitimate government objective of combating the harm caused by pornographic and violent materials by targeting those who distribute such materials. Section () of the Constitution is satisfied if that connection is rational. THE RIGHT TO FREEDOM OF EXPRESSION [] The applicant argued that section () of the act infringed both the right to freedom of expression and the right to privacy as protected by the Constitution. [] Section () of the Constitution provides: Everyone has the right to freedom of expression, which includes— (a) freedom of the press and other media; (b) freedom to receive or impart information or ideas; (c) freedom of artistic creativity; and (d) academic freedom and freedom of scientific research.

The respondents, quite correctly in my view, did not seek to rely upon the specific exclusions in section (). In Islamic Unity Convention, this court emphasized the

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fact that any expression that is not specifically excluded by section () enjoys the protection of the right. [] [. . .] Limitations of rights are dealt with under section  of the Constitution and not at the threshold level. Section () expressly protects the freedom of expression in a manner that does not warrant a narrow reading. Any restriction upon artistic creativity must satisfy the rigors of the limitation analysis. [] The criminalization of the creation, production, importation, distribution, and possession of the material that falls within the definition of child pornography, as discussed above, limits the right to freedom of expression. Whether the limitation is justifiable remains to be considered under a limitation analysis.

The Right to Privacy [] The applicant claims the protection of the right to privacy specifically for the possession and importation of works of art created from the imagination and artistic films in which the actors are over eighteen years old. Section  of the Constitution provides: Everyone has the right to privacy, which includes the right not to have— (a) their person or home searched; (b) their property searched; (c) their possessions seized; or (d) the privacy of their communications infringed.

[] In another case, all the members of this court held that the crime of possessing “indecent or obscene photographic matter” (a much wider range of materials than those at issue in the present case) violated the right to privacy under the Interim Constitution. The majority of the court in that matter, however, agreed that a law prohibiting possession of a narrower category of erotic materials would limit the right to privacy, but could be upheld if it satisfied the requirements of the limitation clause. It flows from this decision that the impugned provisions infringe the right to privacy and their constitutionality will depend on whether the requirements of the limitation clause in section  of the Constitution are fulfilled.

Limitation Analysis [] I proceed to the limitation analysis of the two rights limited by section (), namely, freedom of expression and privacy. Section () of the Constitution provides: The rights in the Bill of Rights 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, taking into account all relevant factors, including—

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Legal Cases (–)

(a) the nature of the right; (b) the importance of the purpose of the limitation; (c) the nature and extent of the limitation; (d) the relation between the limitation and its purpose; and (e) less restrictive means to achieve the purpose.

It is well established that courts applying section () are required to undertake a proportionality enquiry, in the course of which they consider factors including, but not limited to, those listed in subparagraphs (a)–(e). [] The first question is whether section (), read with the definition of child pornography, is a “law of general application” as required by section (). This court has held that this requirement derives from an important principle of the rule of law, namely that “rules be stated in a clear and accessible manner.” The applicant’s complaint concerned clarity: he submitted that the definition of “child pornography” in section  was too vague to satisfy this requirement. Having analyzed and considered that definition above, I am satisfied that it is sufficiently clear and does constitute a law of general application.

The Nature and Extent of the Limitation [] Freedom of expression is an important right in our Bill of Rights. [It] lies at the heart of a democracy. It is valuable for many reasons, including its instrumental function as a guarantor of democracy, its implicit recognition and protection of the moral agency of individuals in our society and its facilitation of the search for truth by individuals and society generally. The Constitution recognizes that individuals in our society need to be able to hear, form and express opinions and views freely on a wide range of matters. Seen from this perspective, the limitation of the right caused by section () does not implicate the core values of the right. Expression that is restricted is, for the most part, expression of little value which is found on the periphery of the right and is a form of expression that is not protected as part of the freedom of expression in many democratic societies. [] The applicant did not suggest that the prevention of the creation and possession of child pornography was not a legitimate government purpose. He contended, however, that the statute in the present case goes further than is necessary for this purpose. I deal with this when I consider the relationship between the limitation and its purpose. But first it is necessary to address the purpose of the legislation. The Purpose of the Legislation [] In determining the importance of section () of the act, it is necessary to examine its objective as a whole. The purpose of the legislation is to curb child pornography, which is seen as an evil in all democratic societies. Child pornography is universally condemned for good reason. It strikes at the dignity of children, it is harmful to children who are used in its production, and it is potentially harmful because of the

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attitude to child sex that it fosters and the use to which it can be put in grooming children to engage in sexual conduct. I will deal with each of these in turn. [] Dignity is a founding value of our Constitution. It informs most if not all of the rights in the Bill of Rights and for that reason is of central significance in the limitations analysis. As this court held in Dawood: 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 labor.

[] Similarly, article  of the Universal Declaration of Human Rights stresses the importance of human dignity. It states: “All human beings are born free and equal in dignity and rights.” Children merit special protection by the State and must be protected by legislation which guards and enforces their rights and liberties. This is recognized in section  of our Constitution. Children’s dignity rights are of special importance. The degradation of children through child pornography is a serious harm that impairs their dignity and contributes to a culture that devalues their worth. Society has recognized that childhood is a special stage in life which is to be both treasured and guarded. The state must ensure that the lives of children are not disrupted by adults who objectify and sexualize them through the production and possession of child pornography. There is obvious physical harm suffered by the victims of sexual abuse and by those children forced to yield to the demands of the pedophile and pornographer, but there is also harm to the dignity and perception of all children when a society allows sexualized images of children to be available. The chief purpose of the statutory prohibitions against child pornography is to protect the dignity, humanity, and integrity of children. [] Little need be said about the second purpose of section , which is to protect children from being used in the production of child pornography. The expert

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Legal Cases (–)

evidence in this case confirms that abusing children in this way is severely harmful to them. The psychological harm to the child who was photographed is exacerbated if he or she knows that the photograph continues to circulate among viewers who use it to derive sexual satisfaction. [] Thirdly, there is a reasonably apprehended risk of harm from child pornography. The state produced evidence to suggest that images of children engaged in sexual conduct may be used in one of the three ways to harm children, firstly, to “groom” children for sexual abuse by showing them acts other children have purportedly performed; secondly, to reinforce cognitive sexual distortions, i.e. the belief that sex with children is acceptable; and finally for pedophiles to fuel their fantasies prior to committing an act of sexual abuse. The affidavit of Superintendent Pienaar details a number of cases in which South African pedophiles used child pornography to “groom” children whom they abused. On the other hand, the evidence of cognitive distortions and fuelling of fantasies is not supported by empirical observation. It may well be unethical for medical researchers to expose pedophiles to such materials in order to investigate these phenomena. Nor is this necessary, in my view, as common sense indicates that these effects will occur in some cases. [] The question of reasonable apprehension of harm was considered in S v. Jordan [and Others (Sex Workers Education and Advocacy Task Force and Others as Amici Curiae)  () SA  (CC)]. In that case it was argued, in the context of a limitation of the right to privacy that some of the harm was caused not by prostitution itself but by its criminalization, and that legalization or regulation could lead to a net reduction of such harm. Although the state did not empirically refute these claims, the court nevertheless found that the state was entitled to criminalize prostitution as a reasonable means of combating the harm. The harm of child abuse is real and ongoing and the state is under a constitutional obligation to combat it. To hold otherwise would place the state in jeopardy of having to close the gate, as it were, after the horse has bolted and might signal a breach by the state of its obligation towards children. [] I conclude that the state has established three legitimate objectives which the limitation aims to serve, namely, protecting the dignity of children, stamping out the market for photographs made by abusing children and preventing a reasonable risk that images will be used to harm children. [] I turn now to the question whether there are less restrictive means available to the state to achieve these purposes. Statutes dealing with child pornography in the United Kingdom and Germany penalize the possession of photographs and “pseudo photographs” only. [] These may amount to less restrictive means. The English and German statutes would exclude any imaginative image that is not a photograph or a pseudo photograph. This requires presiding officers to ask the question, “Is it a photograph or a pseudo photograph?” rather than “Is it art?” On the other hand, what precisely is a pseudo photograph may be difficult to determine. Section  has adopted instead

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a test whereby a judge is required to consider whether the material would, from the perspective of a reasonable viewer, have as its predominant purpose the stimulation of erotic feeling. I am not persuaded that this approach is significantly more invasive of the right to freedom of expression than the approach adopted in the United Kingdom and Germany. [] I am, however, persuaded that the relatively narrow infringement of expression is outweighed by the important legislative purposes performed by section , together with the legislative safeguards provided, as well as the difficulty of legislating in this area at all. [] The applicant, however, pointed to two categories of overbreadth, which he argued went beyond the legitimate purposes of the state in limiting the right to freedom of expression. The first relates to the documentary filmmaker who possesses child pornography for the purposes of making a documentary film on child pornography; and the second relates to lawyers and others who are in possession of child pornography in order to defend a person charged under section (). These examples of overbreadth, the applicant argued, rendered section () an unjustifiable limitation of freedom of expression. I consider these two examples separately below. [] In determining whether section () is overbroad, the exemption procedure set out in section  of the act is relevant. Section  permits a person who wishes to possess or otherwise deal with child pornography in breach of section  to apply to do so to an executive committee of board. This means that section  does not impose a blanket prohibition, but permits exemptions if an applicant can persuade the board that “it has good reason to believe that bona fide purposes will be served by such an exemption.” [] I turn now to consider the position of researchers and documentary film producers who possess child pornography as “raw material” for their academic or documentary project. The applicant claimed that such persons should be able to raise a defense of “legitimate purpose” if charged with possession or importation of the material concerned. [] According to the applicant, filmmakers or researchers may wish to have access to some of the crudest forms of child pornography if this is reasonably necessary for the project they are pursuing. The state’s objectives in prohibiting researchers and filmmakers from possessing or importing such images are the same as its objectives in relation to the general prohibition and importation bans which have already been discussed. The objective of protecting and affirming the dignity of children remains of primary importance. The objective of stamping out the market in child pornography remains valid in relation to researchers or filmmakers who obtain child pornography, although it must be acknowledged that they represent a minuscule proportion of the market. Equally relevant is the objective of combating the risk of grooming, cognitive distortion and the fuelling of fantasies. [] It follows from the above remarks that a blanket defense for any filmmaker or researcher who reasonably needs to possess or import child pornography is not

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constitutionally required. The question then arises whether the Constitution requires a qualified defense for researchers and filmmakers or whether a general prohibition on the possession or importation of such materials may be maintained intact. [] The real question is whether the section  exemption procedure is a sufficient safeguard for the right, regard being had to the legitimate government objective. As I have said, section  confers the discretion upon the executive committee of the board to grant an exemption if “bona fide purposes” will be served thereby. It is a broad discretion, insofar as the act does not provide any express guidelines for its exercise. The discretion may, in the situations we are considering, be used to limit the freedom of expression right of an applicant for exemption whose project involves child pornography. It is, in my view, legitimate to confer such a discretion upon the executive committee of the board, which is expert in matters relating to films and publications. Moreover the board is required to scrutinize applications against the legislative standard set—that “bona fide purposes will be served” by the applicant’s possession of child pornography. Guidelines for the exercise of the discretion are therefore established. [] Regarding the nature and extent of the limitation, it should be noted that researchers and filmmakers will not be convicted if they have received an exemption under section . Given the nature of their interest in the material, it is not a disproportionate burden for researchers and filmmakers to apply for exemption under section . [] Finally, I must consider whether less restrictive means could not have been used. The applicant proposed a “legitimate purpose” defense that could be raised by, amongst others, documentary filmmakers or researchers who possessed or imported child pornography that was reasonably necessary to their projects. Counsel for the applicant indicated that similar defenses existed in a number of foreign jurisdictions. [] The main difficulty with this suggestion is that it is unlikely to be an effective less restrictive means. [. . .] Once a defense of legitimate purpose has been raised, the prosecution will have to disprove it beyond a reasonable doubt. This may entail proving that the accused had an “unhealthy interest” in the images, in the sense explained in the passage from Atkins above. It may be very difficult to establish this. [] The result of a “legitimate purpose” defense would then be that people may exploit the defense as a cover. Such persons pose a reasonable risk of harm. The assessment of risk does not attach to the particular person who is charged, but considers the average probability that, among all the people who possess child pornography, some will use it to harm children. The proposed “legitimate purpose” defense seeks to undo this form of risk assessment by requiring an individualized risk to be proved on the part of a researcher, a filmmaker or someone pursuing a similar project. Drawing an analogy with other possession offences may illustrate how the “legitimate purpose” defense would undermine the effectiveness of the general prohibition. Consider, for example, a “legitimate purpose” defense which allowed amateur chemists to possess dangerous drugs.

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Overbreadth: Lawyers and Other Legitimate Possessors [] Finally, the applicant contended that section () reaches too far because police officers, lawyers, and judicial officers who possess the document in the course of the investigation and prosecution of an accused person would commit an offence. It is true that there is no express provision in the legislation to the effect that people in this category can possess section () prohibited images with impunity. It does not follow, however, that police officers, lawyers, and judicial officers would necessarily be committing an offence in the circumstances envisaged. The determination of whether they do involves questions concerned with the issues of lawfulness, mens rea, justification, necessity, and the constitutional concept of a fair trial. In the circumstances, the court must consider whether this question needs to be determined in this case. [] The applicant is not a police officer, lawyer or judicial officer who is alleged to be in possession of the material in order to participate in the investigation or prosecution of an offence alleged to be committed by someone else. This court has, however, repeatedly made plain that the subjective position of a particular applicant is irrelevant to the determination of the validity of a statutory provision; a statutory provision is objectively either valid or invalid. The applicant has been charged in terms of section () and has made an application to set aside the whole section. The objective theory of constitutional invalidity entitles him to an order setting aside section () or to some other appropriate relief should the section be found to be inconsistent with the Constitution. This would be so even if the basis of the finding of constitutional invalidity had nothing to do with his subjective circumstances. [] The objective theory requires us to consider all the bases upon which an applicant contends for constitutional invalidity or inconsistency. This enquiry can be conducted in the present case on the hypothesis that the point made by the applicant is good and that section () is inconsistent with the Constitution on this score. [] I conclude, therefore, that it has been established that section () constitutes a reasonable and justifiable limitation on the section  right to freedom of expression.

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Bhe and Others v. Magistrate, Khayelitsha, and Others (Commission for Gender Equality as Amicus Curiae); Shibi v. Sithole and Others; South African Human Rights Commission and Another v. President of the Republic of South Africa and Another  () SA  (CC) CASE SUMMARY

Facts According to section () of the Black Administration Act  of , and the regulations promulgated under that section, particularly regulation (e), the estates of Africans who died intestate were to be distributed according to “Black law and custom.” The Intestate Succession Act  of  expressly excluded “African” estates from being assessed in terms of its provisions. According to the “accepted notion” of African customary law of succession, the distribution of the estates of African deceased were governed by the rule of male primogeniture: the nearest male relative of the deceased became the sole heir. In Bhe, the deceased’s father was recognized as sole heir. The deceased’s two extramarital minor daughters were denied any portion of the estate. In Shibi, the deceased’s nearest male relatives— and sole heirs—were two cousins. The deceased’s sister was denied any share of the inheritance. The applicants challenged the appointment of the respective heirs on the basis that section () of the act and regulation (e) were unconstitutional.

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Legal History The applicants in Bhe and Shibi approached the Cape High Court and Pretoria High Court, respectively, for relief. The High Courts found that certain provisions of section  of the Black Administration Act were unconstitutional and ordered that until the defects were corrected by the legislature, the distribution of intestate black estates were to be governed by section  of the Intestate Succession Act  of . The applicants then applied to the Constitutional Court for confirmation of the High Courts’ orders. Issues The Constitutional Court had to address two issues: the alleged constitutional infirmity of section  of the Black Administration Act; and the alleged constitutional infirmity of the customary law rule of male primogeniture. Decision of the Constitutional Court The Constitutional Court first found that section  of the Black Administration Act purported to give effect to customary law. Secondly, it found that under the Constitution, rules of customary law enjoyed the same status as rules of common law—or any other form other law. However, the continued validity of customary law rules and principles—as with all other forms of law—rests entirely on their consistency with the Constitution. The court then found that section  as a whole had been animated and promulgated by a racist colonial regime and maintained under an equally racist apartheid regime. Given its manifestly racist underpinnings, section  of the act was held to be a violation of the right to dignity (section ), to be unfairly discriminatory, and thus in breach of the right to equality in terms of section () of our Constitution. The court reached a similar finding with regard to the customary law rule of primogeniture. It stressed that customary law—like all other law—had to conform to the dictates of the Constitution. While the rule of male primogeniture may have originally been devised to promote family structures, it was found to no longer do so. Moreover, it now manifestly and unfairly discriminated against women. Order The court held that it would not be appropriate to simply strike down the impugned principles of customary law: too many people still regulated their lives according to these rules. In addition, the court expressed reservations about the effectiveness of piecemeal development of customary law by the courts. It granted the legislature a two year period in which to develop a better system to cater for members of traditional communities who wished to be governed by extant rules and principles of customary law (that cohered with the dictates of our basic law.) However, until the legislature promulgated the requisite piece of legislation, the court ordered that section ()(c)(i) and s ()(f ) of the Intestate Succession Act would apply to Africans.

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Of course, these provisions had to be read in a manner designed to accommodate familial arrangements in which, as a result of polygynous unions recognized by customary law, the deceased left more than one surviving spouse.

Comment It is the manner in which the Bhe court negotiates two different kinds of claims for equal respect (and thus two different kinds of dignity claims) that is most instructive for our current purposes. The Bhe court begins with the following bromide: while customary law provides a comprehensive vision of the good for many South African communities and receives some level of constitutional solicitude, this new-found constitutional respect for traditional practices does not immunize them from constitutional review. The Bhe court must, as we have just noted, locate any justification or alteration of customary law in the provisions of the Constitution. To achieve this two-pronged endeavor, Deputy Chief Justice Langa characterizes the customary law of succession in terms that validate its spirit without necessitating that the court be beholden to its letter. By recasting the justification for customary rules of succession in terms of family and community stability, rather than patriarchy and property, the Bhe court is able to soften its critique. It then notes that the conditions of family and community that gave rise to the challenged rules no longer obtain. Customary law has not, the Bhe court ruefully observes, evolved to meet the changing needs of the community. Again the court takes care to note that the fault for this arrested development lies outside traditional communities. Ruptures within traditional ways of life—caused by both apartheid, the hegemony of western culture and capitalism—have prevented the law’s evolution. This aside sets the stage for the delivery of the Bhe court’s coup de grace: that “the official rules of customary law of succession are no longer universally observed” (paragraph ). The trend within traditional communities is toward new norms that “sustain the surviving family unit” rather than reinscribe male primogeniture. By having shown that the spirit of succession lies in its commitment to family cohesion, that the traditional family no longer coheres as it once did, and that “distorted” rules of customary law “emphasize . . . patriarchal features and minimize its communitarian ones,” the deputy chief justice closes the gap between constitutional imperative and customary obligation (paragraph ). Had customary law been permitted to develop in an “active and dynamic manner,” it would have already reflected the Bhe court’s conclusion that “the exclusion of women from inheritance on the grounds of gender is a clear violation of . . . section ()” (paragraph ). Had customary law not been allowed to ossify, traditional communities would have noted how male primogeniture entrenched “past patterns of disadvantage among a vulnerable group” and endorsed the Bhe court’s reworking of customary understandings of the competence “to own and administer property” in a manner that vindicates a woman’s right to dignity under final Constitution section  (paragraph ). The Bhe court is able, therefore, to assert that traditional communities have conceptions of dignity worth protecting without being

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obliged to endorse a rule that quite clearly offends the dignity interests of many women and female children within those communities. DEPUTY CHIEF JUSTICE LANGA

The Legislative Framework [] [. . .] For a proper understanding of the issues, it is necessary to set out in full the legislative provisions that are the subject of the constitutional challenge. Section  of the act provides as follows: () All movable property belonging to a Black and allotted by him or accruing under Black law or custom to any woman with whom he lived in a customary union, or to any house, shall upon his death devolve and be administered under Black law and custom. () All land in a tribal settlement held in individual tenure upon quitrent conditions by a Black shall devolve upon his death upon one male person, to be determined in accordance with tables of succession to be prescribed under subsection (). () All other property of whatsoever kind belonging to a Black shall be capable of being devised by will. () [. . .] () Any claim or dispute in regard to the administration or distribution of any estate of a deceased Black shall be decided in a court of competent jurisdiction. () In connection with any such claim or dispute, the heir, or in case of minority his guardian, according to Black law, if no executor has been appointed by a Master of the Supreme Court shall be regarded as the executor in the estate as if he had been duly appointed as such according to the law governing the appointment of executors. () Letters of administration from the Master of the Supreme Court shall not be necessary in, nor shall the Master or any executor appointed by the Master have any powers in connection with, the administration and distribution of— (a) [. . .] (b) any portion of the estate of a deceased Black which falls under subsections () or (). () A Master of the Supreme Court may revoke letters of administration issued by him in respect of any Black estate. () Whenever a Black has died leaving a valid will which disposes of any portion of his estate, Black law and custom shall not apply to the administration or distribution of so much of his estate as does not fall under subsections

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() or () and such administration and distribution shall in all respects be in accordance with the Administration of Estates Act,  (Act  of ). () The governor-general may make regulations not inconsistent with this act— (a) prescribing the manner in which the estates of deceased Blacks shall be administered and distributed; (b) defining the rights of widows or surviving partners in regard to the use and occupation of the quitrent land of deceased Blacks; (c) dealing with the dispersion of Blacks; (d) . . . (e) prescribing tables of succession in regard to Blacks; and (f ) generally for the better carrying out of the provisions of this section. () Any Black estate which has, prior to the commencement of this Act, been reported to a Master of the Supreme Court shall be administered as if this act had not been passed, and the provisions of this act shall apply in respect of every Black estate which has not been so reported.

[] For purposes of this discussion, it is necessary to draw attention to regulations , , and  only. Regulation  provides as follows: () If a Black dies leaving no valid will, so much of his property, including immovable property, as does not fall within the purview of subsection () or subsection () of section  of the act shall be distributed in the manner following: (a) . . . (b) If the deceased was at the time of his death the holder of a letter of exemption issued under the provisions of section  of the act, exempting him from the operation of the Code of Zulu Law, the property shall devolve as if he had been a European. (c) If the deceased, at the time of his death was— (i) a partner in a marriage in community of property or under antenuptial contract; or (ii) a widower, widow or divorcee, as the case may be, of a marriage in community of property or under antenuptial contract and was not survived by a partner to a customary union entered into subsequent to the dissolution of such marriage, the property shall devolve as if the deceased had been a European. (d) When any deceased Black is survived by any partner— (i) with whom he had contracted a marriage which, in terms of subsection () of section  of the act, had not produced the legal consequences of a marriage in community of property; or (ii) with whom he had entered into a customary union; or

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(iii) who was at the time of his death living with him as his putative spouse; or by any issue of himself and any such partner, and the circumstances are such as in the opinion of the minister to render the application of Black law and custom to the devolution of the whole, or some part, of his property inequitable or inappropriate, the minister may direct that the said property or the said part thereof, as the case may be, shall devolve as if the said Black and the said partner had been lawfully married out of community of property, whether or not such was in fact the case, and as if the said Black had been a European. (e) If the deceased does not fall into any of the classes described in paras (b), (c), and (d), the property shall be distributed according to Black law and custom.

[] In terms of regulation , a magistrate in whose jurisdiction the deceased resided may hold an inquiry to determine the identity of the person or people entitled to succeed to the deceased’s property. For that purpose, the magistrate may summon anyone able to supply the information necessary to make that decision. [] Regulation  provides for the appointment of a representative of the estate who may be required to provide security for the due and proper administration of the estate. Once appointed, the representative has an obligation to render “a just, true and exact account of his administration” of the estate. [] The above provisions should be read with section ()(b) of the Intestate Succession Act which provides as follows: “[I]ntestate estate” includes any part of an estate . . . in respect of which section  of the Black Administration Act,  (Act  of ), does not apply.

The Approach to Customary Law [] The system that flows from the above legislative framework purports to give effect to customary law. It is a parallel system, different in concept and in effect, to that which flows from the Intestate Succession Act, which is designed to apply to all intestate estates other than those governed by section  of the act. [] It is important to appreciate the distinction between the legal framework based on section  of the act and the place occupied by customary law in our constitutional system. Quite clearly the Constitution itself envisages a place for customary law in our legal system. Certain provisions of the Constitution put it beyond doubt that our basic law specifically requires that customary law should be accommodated, not merely tolerated, as part of South African law, provided the particular rules or provisions are not in conflict with the Constitution. Sections  and  of the Constitution entrench respect for cultural diversity. Further, section () specifically requires a court interpreting customary law to promote the spirit, purport and

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objects of the Bill of Rights. In similar vein, section () states that the Bill of Rights does not deny the existence of any other rights or freedoms that are recognized or conferred by customary law as long as they are consistent with the Bill of Rights. Finally, section  protects those institutions that are unique to customary law. It follows from this that customary law must be interpreted by the courts, as first and foremost answering to the contents of the Constitution. It is protected by and subject to the Constitution in its own right. [] It is for this reason that an approach that condemns rules or provisions of customary law merely on the basis that they are different to those of the common law or legislation, such as the Intestate Succession Act, would be incorrect. At the level of constitutional validity, the question in this case is not whether a rule or provision of customary law offers similar remedies to the Intestate Succession Act. The issue is whether such rules or provisions are consistent with the Constitution. [] This status of customary law has been acknowledged and endorsed by this Court. In Alexkor Ltd and Another v. The Richtersveld Community and Others [ () SA  (CC)], the following was stated: While in the past indigenous law was seen through the common-law lens, it must now be seen as an integral part of our law. Like all law it depends for its ultimate force and validity on the Constitution. Its validity must now be determined by reference not to common law, but to the Constitution. (Footnotes omitted.)

This approach avoids the mistakes that were committed in the past and which were partly the result of the failure to interpret customary law in its own setting but rather attempting to see it through the prism of the common law or other systems of law. That approach also led in part to the fossilization and codification of customary law which in turn led to its marginalization. This consequently denied it of its opportunity to grow in its own right and to adapt itself to changing circumstances. This no doubt contributed to a situation where, in the words of Justice Mokgoro, “customary law was lamentably marginalized and allowed to degenerate into a vitrified set of norms alienated from its roots in the community.” [] It should however not be inferred from the above that customary law can never change and that it cannot be amended or adjusted by legislation. In the first place, customary law is subject to the Constitution. Adjustments and development to bring its provisions in line with the Constitution or to accord with the “spirit, purport and objects of the Bill of Rights” are mandated. Secondly, the legislative authority of the Republic vests in Parliament. Thirdly, the Constitution envisages a role for national legislation in the operation, implementation and/or changes effected to customary law. [] The positive aspects of customary law have long been neglected. The inherent flexibility of the system is but one of its constructive facets. Customary law places

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much store in consensus seeking and naturally provides for family and clan meetings, which offer excellent opportunities for the prevention and resolution of disputes and disagreements. Nor are these aspects useful only in the area of disputes. They provide a setting that contributes to the unit of family structures and the fostering of co-operation, a sense of responsibility in and of belonging to its members, as well as the nurturing of healthy communitarian traditions such as uBuntu. These valuable aspects of customary law more than justify its protection by the Constitution. [] It bears repeating, however, that as with all law, the constitutional validity of rules and principles of customary law depend on their consistency with the Constitution and the Bill of Rights.

The Constitutional Rights Implicated [] In both written and oral submissions before the court, it was argued that the impugned provisions seriously violate various constitutional rights, primarily, rights to human dignity (section  of the Constitution), and to equality (section  of the Constitution), as well as the rights of children (section  of the Constitution). Human Dignity (Section  of the Constitution) [] Section  of the Constitution provides that “[e]veryone has inherent dignity and the right to have their dignity respected and protected.” This court has repeatedly emphasized the importance of human dignity in our constitutional order. In S v. Makwanyane [and Another  () SA  (CC)] President Chaskalson stated that the right to human dignity was, together with the right to life, the source of all other rights. Elsewhere, Justice Ackermann stated that “the constitutional protection of dignity requires us to acknowledge the value and worth of all individuals as members of our society.” As a value, Justice Kriegler referred to human dignity as one of three “conjoined, reciprocal and covalent values” that are foundational to this country. In Dawood and Another v. Minister of Home Affairs and Others; Shalabi and Another v. Minister of Home Affairs and Others; Thomas and Another v. Minister of Home Affairs and Others [ () SA  (CC)], the court asserted: 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

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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. (Footnotes omitted.)

The Right to Equality and the Prohibition of Discrimination (Section  of the Constitution) [] The importance of the right to equality has frequently been emphasized in the judgments of this court. In Fraser v. Children’s Court, Pretoria North, and Others [ () SA  (CC)], Deputy President Mahomed had the following to say: There can be no doubt that the guarantee of equality lies at the very heart of the Constitution. It permeates and defines the very ethos upon which the Constitution is premised. In the very first paragraph of the preamble it is declared that there is a “need to create a new order . . . in which there is equality between men and women and people of all races so that all citizens shall be able to enjoy and exercise their fundamental rights and freedoms.” (Footnotes omitted.)

[] The centrality of equality is underscored by references to it in various provisions of the Constitution and in many judgments of this court. Not only is the achievement of equality one of the founding values of the Constitution, section  of the Constitution also guarantees the achievement of substantive equality to ensure that the opportunity to enjoy the benefits of an egalitarian and nonsexist society is available to all, including those who have been subjected to unfair discrimination in the past. Thus section () of the Constitution prohibits unfair discrimination by the state “directly or indirectly against anyone” on grounds which include race, gender and sex. [] Nor is the South African Constitution alone in the emphasis it places on the right to equality. The right is cherished in the constitutions and the jurisprudence of many open and democratic societies. A number of international instruments, to which South Africa is party, also underscore the need to protect the rights of women, and to abolish all laws that discriminate against them as well as to eliminate any racial discrimination in our society.

The Rights of Children [] Section  of the Constitution provides specific protection for the rights of children. Our constitutional obligations in relation to children are particularly important for we vest in our children our hopes for a better life for all. The inclusion of this provision in the Constitution marks the constitutional importance of protecting the rights of children, not only those rights expressly conferred by section  but also all the other rights in the Constitution which, appropriately construed, are also conferred upon children. Children, therefore, may not be subjected to unfair discrimination in breach of section () just as adults may not be.

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Bhe



[] Two prohibited grounds of discrimination are relevant in this case. The first relates to sex, something that I need not discuss further here, except to remark that the importance of protecting children from discrimination on the grounds of sex is acknowledged in the African Charter on the Rights of the Child. [] The second relates to the prohibition of unfair discrimination on the ground of “birth” in section (). To the extent that one of the issues that arises in this case is the question of whether the differential entitlements of children born within a marriage and those born extramaritally constitutes unfair discrimination, the meaning to be attributed to “birth” in section () is important. [] In interpreting both section  and the other rights in the Constitution, the provisions of international law must be considered. South Africa is a party to a number of international multilateral agreements designed to strengthen the protection of children. The Convention on the Rights of the Child asserts that children, by reason of their “physical and mental immaturity” need “special safeguards and care.” Article  of the Convention requires signatories to ensure that the rights set forth in the Convention shall be enjoyed regardless of “race, color, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status.” Article () of the International Covenant on Civil and Political Rights () also provides expressly that: Every child shall have, without any discrimination as to race, color, sex, language, religion, national or social origin, property or birth, the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the state.

Similarly, article  of the African Charter on the Rights and Welfare of the Child provides that children are entitled to enjoy the rights and freedoms recognized and guaranteed in the charter “irrespective of the child’s or his/her parents’ or legal guardians’ race, ethnic group, color, sex, . . . birth, or other status.” [] Historically in South Africa, children whose parents were not married at the time they were conceived or born were discriminated against in a range of ways. This was particularly true of children whose family lives were governed by common law. Much of the stigma that attached to extramarital children was social and religious in origin, rather than legal, but that stigma was deeply harmful. The legal consequences of extramarital birth at common law flowed from the Dutch principle that “een wijf maakt geen bastaard,” the implications of which were that the extramarital child was not recognized as having any legal relationship with his or her father, but only with his or her mother. The child therefore took the mother’s name, inherited only from his or her mother, and the father of the child had no parental obligations or rights vis-à-vis the child. The law and social practice concerning extramarital children without doubt conferred a stigma upon them, which was harmful and degrading.

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[] It is important, however, in assessing the discrimination and stigma attached to extramarital birth to distinguish between common law and customary law. As Jones records: The African means of dealing with extramarital birth is essentially accommodative in intent and character; it is oriented towards social inclusivity. The mechanism of maternal-filiation provides an extramarital child with a father, with a male ritual and social sponsor, with a place in a conjugal unit, and it manufactures for the child a full lineal identity. Very importantly, these attributes are socially visible—they counter what would otherwise be clearly evident deficits in an extramarital child’s social make-up—and are preserved and upheld by way of taboo against reference to the child’s real paternity or social position. As far as is possible within the bounds of cultural reason, the effect of the African system is therefore to ensure that an extramarital child’s position is not compromised by the circumstances of his or her birth.

Nevertheless, extramarital sons had reduced rights of inheritance under customary law, as they would only inherit in the absence of any other male descendants. Contemporary research suggests too that there is social stigma attached to extramarital children, though the stigma probably varies depending on the circumstances and community concerned. [] The prohibition of unfair discrimination on the ground of birth in section () of our Constitution should be interpreted to include a prohibition of differentiating between children on the basis of whether a child’s biological parents were married either at the time the child was conceived or when the child was born. As I have outlined, extramarital children did, and still do, suffer from social stigma and impairment of dignity. The prohibition of unfair discrimination in our Constitution is aimed at removing such patterns of stigma from our society. Thus, when section () prohibits unfair discrimination on the ground of “birth,” it should be interpreted to include a prohibition of differentiation between children on the grounds of whether the children’s parents were married at the time of conception or birth. Where differentiation is made on such grounds, it will be assumed to be unfair unless it is established that it is not.

Does Section  Violate the Rights Contended For? [] In argument, section  was correctly described as a racist provision, which is fundamentally incompatible with the Constitution. It was submitted that the section is inconsistent with sections  and  of the Constitution because of its blatant discrimination on grounds of race, color, and ethnic origin and its harmful effects on the dignity of persons affected by it. This court has often expressed its abhorrence of discriminatory legislation and practices that were features of our hurtful and racist

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Bhe



past and which are fundamentally inconsistent with the constitutional guarantee of equality. [] Section  cannot escape the context in which it was conceived. It is part of an act that was specifically crafted to fit in with notions of separation and exclusion of Africans from the people of “European” descent. The act was part of a comprehensive exclusionary system of administration imposed on Africans, ostensibly to avoid exposing them to a result which, “to the Native mind,” would be “both startling and unjust.” What the act in fact achieved was to become a cornerstone of racial oppression, division, and conflict in South Africa, the legacy of which will still take years to completely eradicate. Proponents of the policy of apartheid were able, with comparative ease, to build on the provisions of the act and to perfect a system of racial division and oppression that caused untold suffering to millions of South Africans. Some parts of the act have now been repealed and modified; most of section  however remains and still serves to haunt many of those Africans subject to the parallel regime of intestate succession which it creates. [] In DVB Behuising [Western Cape Provincial Government and Others: In re DVB Behuising (Pty) Ltd. v. North West Provincial Government and Another  () SA  (CC)], Justice Madala referred to the act as “a piece of obnoxious legislation not befitting a democratic society based on human dignity, equality, and freedom.” In the same case, Justice Ngcobo described the act as “an egregious apartheid law which anachronistically has survived our transition to a non-racial democracy” and referred to proclamations made under it as part of a “demeaning and racist” system. Justice Ngcobo went on to comment: The Native Administration Act  of  appointed the governor-general (later referred to as the state president) as “supreme chief ” of all Africans. It gave him power to govern Africans by proclamation. The powers given to him were virtually absolute. He could order the removal of an entire African community from one place to another. The Native Administration Act became the most powerful tool in the implementation of forced removals of Africans from the so-called “white areas” into the areas reserved for them. These removals resulted in untold suffering. This geographical plan of segregation was described as forming part of “a colossal social experiment and a long term policy.” (Footnotes omitted.)

[] More recently, in Moseneke, Justice Sachs, writing for a unanimous court, expressed himself as follows: It is painful that the act still survives at all. The concepts on which it was based, the memories it evokes, the language it continues to employ and the division it still enforces are antithetical to the society envisaged by the Constitution. It is an affront to all of us that people are still treated as “blacks” rather

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than as ordinary persons seeking to wind up a deceased estate, and it is in conflict with the establishment of a non-racial society where rights and duties are no longer determined by origin or skin color.

[] Justice Sachs went on to discuss section () of the act and regulation () of the regulations. He noted that the minister and the master suggested that the administration of deceased estates by magistrates was often convenient and inexpensive, and responded by commenting that even if there are practical advantages for people in the system, the fact remains that it is rooted in racial discrimination. He held that, given our history of racial discrimination, the indignity occasioned by treating people differently as “blacks” is not rendered fair by the factors identified by the minister and the master. He concluded that no society based on equality, freedom, and dignity would tolerate differential treatment based on skin color, particularly where the legislative provisions in question formed part of a broader package of racially discriminatory legislation that systematically disadvantaged Africans. Any convenience the provisions might achieve could be accomplished equally as well by a nondiscriminatory provision. [] [. . .] The only question that remains to be considered is whether the discrimination occasioned by section  and its regulations is capable of justification in terms of section  of our Constitution.

Justification Inquiry [] Section  of the Constitution requires that a provision that limits rights should be a law of general application and that the limitation should be reasonable and justifiable in an open and democratic society based on human dignity, equality, and freedom. [] The rights violated are important rights, particularly in the South African context. The rights to equality and dignity are of the most valuable of rights in any open and democratic state. They assume special importance in South Africa because of our past history of inequality and hurtful discrimination on grounds that include race and gender. [] It could be argued that despite its racist and sexist nature, section  gives recognition to customary law and acknowledges the pluralist nature of our society. This is, however, not its dominant purpose or effect. Section  was enacted as part of a racist program intent on entrenching division and subordination. Its effect has been to ossify customary law. In the light of its destructive purpose and effect, it could not be justified in any open and democratic society. [] It is clear from what is stated above that the serious violation by the provisions of section  of the rights to equality and human dignity cannot be justified in our new constitutional order. In terms of section ()(a) of the Constitution, section  must accordingly be struck down.

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Bhe



[] The effect of the invalidation of section  is that the rules of customary law governing succession are applicable. The applicants in both the Bhe and Shibi cases, however, launched an attack on the customary-law rule of primogeniture. It is to that attack that I now turn to.

The Customary Law of Succession [] It is important to examine the context in which the rules of customary law, particularly in relation to succession, operated and the kind of society served by them. The rules did not operate in isolation. They were part of a system that fitted in with the community’s way of life. The system had its own safeguards to ensure fairness in the context of entitlements, duties, and responsibilities. It was designed to preserve the cohesion and stability of the extended family unit and ultimately the entire community. This served various purposes, not least of which was the maintenance of discipline within the clan or extended family. Everyone, man, woman, and child had a role and each role, directly or indirectly, was designed to contribute to the communal good and welfare. [] The heir did not merely succeed to the assets of the deceased; succession was not primarily concerned with the distribution of the estate of the deceased, but with the preservation and perpetuation of the family unit. Property was collectively owned and the family head, who was the nominal owner of the property, administered it for the benefit of the family unit as a whole. The heir stepped into the shoes of the family head and acquired all the rights and became subject to all the obligations of the family head. The members of the family under the guardianship of the deceased fell under the guardianship of his heir. The latter, in turn, acquired the duty to maintain and support all the members of the family who were assured of his protection and enjoyed the benefit of the heir’s maintenance and support. He inherited the property of the deceased only in the sense that he assumed control and administration of the property subject to his rights and obligations as head of the family unit. The rules of the customary law of succession were consequently mainly concerned with succession to the position and status of the deceased family head rather than the distribution of his personal assets. [] Central to the customary law of succession is the rule of primogeniture, the main features of which are well established. The general rule is that only a male who is related to the deceased qualifies as intestate heir. Women do not participate in the intestate succession of deceased estates. In a monogamous family, the eldest son of the family head is his heir. If the deceased is not survived by any male descendants, his father succeeds him. If his father also does not survive him, an heir is sought among the father’s male descendants related to him through the male line. [] The exclusion of women from heirship and consequently from being able to inherit property was in keeping with a system dominated by a deeply embedded patriarchy which reserved for women a position of subservience and subordination

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and in which they were regarded as perpetual minors under the tutelage of the fathers, husbands, or the head of the extended family.

The Position of the Extramarital Child [] Extramarital children are not entitled to succeed to their father’s estate in customary law. They, however, qualify for succession in their mother’s family, but subject to the principle of primogeniture. The eldest male extramarital child qualifies for succession only after all male intra-marital children and other close male members of the family. The Effect of Changing Circumstances [] The setting has, however, changed. Modern urban communities and families are structured and organized differently and no longer purely along traditional lines. The customary-law rules of succession simply determine succession to the deceased’s estate without the accompanying social implications, which they traditionally had. Nuclear families have largely replaced traditional extended families. The heir does not necessarily live together with the whole extended family, which would include the spouse of the deceased as well as other dependents and descendants. He often simply acquires the estate without assuming, or even being in a position to assume, any of the deceased’s responsibilities. In the changed circumstances, therefore, the succession of the heir to the assets of the deceased does not necessarily correspond in practice with an enforceable responsibility to provide support and maintenance to the family and dependents of the deceased. Customary Law Has Not Kept Pace [] In Richtersveld, this court noted that “indigenous law is not a fixed body of formally classified and easily ascertainable rules. By its very nature it evolves as the people who live by its norms change their patterns of life.” It has throughout history “evolved and developed to meet the changing needs of the community.” [] The rules of succession in customary law have not been given the space to adapt and to keep pace with changing social conditions and values. One reason for this is the fact that they were captured in legislation, in textbooks, in the writings of experts and in court decisions without allowing for the dynamism of customary law in the face of changing circumstances. Instead, they have over time become increasingly out of step with the real values and circumstances of the societies they are meant to serve and particularly the people who live in urban areas. [] The report of the Law Reform Commission makes the point that the rule of primogeniture is evolving to meet the needs of changing social patterns. It states that the order of succession is the theory and that in reality different rules may well be developing, such as the replacement of the eldest son with the youngest for purposes of inheritance, and the fact that widows often take over their husbands’ lands and other assets, especially when they have young children to raise.

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Bhe



[] What needs to be emphasized is that, because of the dynamic nature of society, official customary law as it exists in the textbooks and in the act is generally a poor reflection, if not a distortion of the true customary law. True customary law will be that which recognizes and acknowledges the changes that continually take place. In this respect, I agree with Bennett’s observation that “a critical issue in any constitutional litigation about customary law will therefore be the question whether a particular rule is a mythical stereotype, which has become ossified in the official code, or whether it continues to enjoy social currency.” [] The official rules of customary law are sometimes contrasted with what is referred to as “living customary law,” which is an acknowledgment of the rules that are adapted to fit in with changed circumstances. The problem with the adaptations is that they are ad hoc and not uniform. However, magistrates and the courts responsible for the administration of intestate estates continue to adhere to the rules of official customary law, with the consequent anomalies and hardships as a result of changes that have occurred in society. Examples of this are the manner in which the Bhe and Shibi cases were dealt with by the respective magistrates.

The Problem with Primogeniture [] The basis of the constitutional challenge to the official customary law of succession is that the rule of primogeniture precludes (a) (b) (c) (d)

widows from inheriting as the intestate heirs of their late husbands; daughters from inheriting from their parents; younger sons from inheriting from their parents, and extramarital children from inheriting from theirfathers. It was contended that these exclusions constitute unfair discrimination on the basis of gender and birth and are part of a scheme underpinned by male domination.

[] Customary law has, in my view, been distorted in a manner that emphasizes its patriarchal features and minimizes its communitarian ones. As Nhlapo indicates: Although African law and custom has always had [a] patriarchal bias, the colonial period saw it exaggerated and entrenched through a distortion of custom and practice which, in many cases, had been either relatively egalitarian or mitigated by checks and balances in favor of women and the young . . . Enthroning the male head of the household as the only true person in law, sole holder of family property and civic status, rendered wives, children and unmarried sons and daughters invisible in a social and legal sense. The identification of the male head of the household as the only person with property-holding capacity, without acknowledging the strong rights of wives to security of tenure and use of land, for example, was a major distor-

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tion. Similarly, enacting the so-called perpetual minority of women as positive law when, in the pre-colonial context, everybody under the household head was a minor (including unmarried sons and even married sons who had not yet established a separate residence), had a profound and deleterious effect on the lives of African women. They were deprived of the opportunity to manipulate the rules to their advantage through the subtle interplay of social norms, and, at the same time, denied the protections of the formal legal order. Women became “outlaws.”

Nhlapo concludes that protecting people from distortions masquerading as custom is imperative; especially for those they disadvantage so gravely, namely, women and children. [] At a time when the patriarchal features of Roman-Dutch law were progressively being removed by legislation, customary law was robbed of its inherent capacity to evolve in keeping with the changing life of the people it served, particularly of women. Thus customary law as administered failed to respond creatively to new kinds of economic activity by women, different forms of property and household arrangements for women and men, and changing values concerning gender roles in society. The outcome has been formalization and fossilization of a system that by its nature should function in an active and dynamic manner. [] The exclusion of women from inheritance on the grounds of gender is a clear violation of section () of the Constitution. It is a form of discrimination that entrenches past patterns of disadvantage among a vulnerable group, exacerbated by old notions of patriarchy and male domination incompatible with the guarantee of equality under this constitutional order. [] The principle of primogeniture also violates the right of women to human dignity as guaranteed in section  of the Constitution as, in one sense, it implies that women are not fit or competent to own and administer property. Its effect is also to subject these women to a status of perpetual minority, placing them automatically under the control of male heirs, simply by virtue of their sex and gender. Their dignity is further affronted by the fact that as women, they are also excluded from intestate succession and denied the right, which other members of the population have, to be holders of, and to control property. [] To the extent that the primogeniture rule prevents all female children and significantly curtails the rights of male extramarital children from inheriting, it discriminates against them too. These are particularly vulnerable groups in our society that correctly places much store in the well-being and protection of children who are ordinarily not in a position to protect themselves. In denying female and extramarital children the ability and the opportunity to inherit from their deceased fathers, the application of the principle of primogeniture is also in violation of section () of the Constitution.

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Bhe



[] In view of the conclusion reached later in this judgment, that it is not possible to develop the rule of primogeniture as it applies within the customary-law rules governing the inheritance of property, it is not necessary or desirable in this case for me to determine whether the discrimination against children, who happen not to be the eldest, necessarily constitutes unfair discrimination. I express no view on that question. Nor, I emphasize again, does this judgment consider at all the constitutionality of the rule of male primogeniture in other contexts within customary law, such as the rules that govern status and traditional leaders.

Justification Inquiry: Primogeniture [] The primogeniture rule as applied to the customary law of succession cannot be reconciled with the current notions of equality and human dignity as contained in the Bill of Rights. As the centerpiece of the customary-law system of succession, the rule violates the equality rights of women and is an affront to their dignity. In denying extramarital children the right to inherit from their deceased fathers, it also unfairly discriminates against them and infringes their right to dignity as well. The result is that the limitation it imposes on the rights of those subject to it is not reasonable and justifiable in an open and democratic society founded on the values of equality, human dignity, and freedom. [] What needs to be determined is the nature and form of the wider relief that should be granted pursuant to the finding that section  of the act is unconstitutional and invalid in its entirety. In terms of section ()(a) of the Constitution, such a finding by the court must be followed by a declaration of invalidity, to the extent of the inconsistency. Thereafter, the court “may make any order that is just and equitable.” Declaration of Constitutional Invalidity and Suspension [] In the circumstances of this case it will not suffice for the court to simply strike down the impugned provisions. There are a substantial number of people whose lives are governed by customary law and their affairs will need to be regulated in terms of an appropriate norm. It will therefore be necessary to formulate an order that incorporates appropriate measures to replace the impugned framework in order to avoid an unacceptable lacuna, which would be to the disadvantage of those subject to customary law. [] Nor can this court afford to suspend the declaration of invalidity to a future date and leave the current legal regime in place pending rectification by the legislature. The rights implicated are important; those subject to the impugned provisions should not be made to wait much longer to be relieved of the burden of inequality and unfair discrimination that flows from section  and its related provisions. That would mean that the benefits of the Constitution would continue to be withheld from those who have been deprived of them for so long.

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Development of the Customary Law and the Notion of the “Living” Customary Law [] I have found that the primogeniture rule as applied to inheritance in customary law is inconsistent with the constitutional guarantee of equality. The question whether the court was in a position to develop that rule in a manner which would “promote the spirit, purport and objects of the Bill of Rights” evoked considerable discussion during argument. In order to do so, the court would first have to determine the true content of customary law as it is today and to give effect to it in its order. There is, however, insufficient evidence and material to enable the court to do this. The difficulty lies not so much in the acceptance of the notion of “living” customary law, as distinct from official customary law, but in determining its content and testing it, as the court should, against the provisions of the Bill of Rights. [] It was suggested in argument that if the court is not in a position to develop the rules of customary law in this case, it should allow for flexibility in order to facilitate the development of the law. The import of this was that since customary law is inherently flexible with the ability to permit compromise settlements, courts should introduce into the system those constitutional principles that the official system of succession violates. It was suggested that this could be done by using the exceptions in the implementation of the primogeniture rule which do occur in the actual administration of intestate succession as the applicable rule for customary law succession in order to avoid unfair discrimination and the violation of the dignity of the individuals affected by it. Those exceptions would, according to this view, constitute the “living” customary law, which should be implemented instead of official customary law. The Appropriateness of Substituting the Intestate Succession Act [] The effect of the High Court orders, in both the Bhe and Shibi cases is that a modified form of section  of the Intestate Succession Act should be put in place as a substitute for the impugned legislative framework pending appropriate legislation by Parliament. Reservations were however expressed in this court about whether the Intestate Succession Act was the correct mechanism for this purpose. It will be useful at this stage to give a broad indication of the effect of the detailed provisions of section  of the Intestate Succession Act. The section provides for the surviving spouse to inherit in the absence of descendants, for descendants to inherit in the absence of a surviving spouse and for the surviving spouse to inherit the share of a single child (subject to a minimum if there is too little in the estate) if the deceased is survived by both the surviving spouse and descendants. Where the deceased is survived neither by descendants nor by a surviving spouse, the parents of the deceased and, in some circumstances, the parents’ descendants and blood relations will benefit. It must be noted that the Intestate Succession Act makes provision for a single surviving spouse only and that extramarital children are included under the term “descendants.”

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Bhe



[] The objection against resorting to the Intestate Succession Act was that its provisions would be inadequate to cater for the various factual situations that arise in customary-law succession as the Intestate Succession Act was premised on the nuclear family model. The suggestion was that it would, for instance, not naturally accommodate extended families, which are a feature of the customary environment, nor would it have regard to polygynous unions. It was contended that the provisions of the Intestate Succession Act would also have a negative impact upon vulnerable groups such as poor rural women. [] A further concern was the fear that the utilization of the Intestate Succession Act would amount to an obliteration of the customary law of succession, a development that would be undesirable, having regard to the status customary law enjoys under the Constitution. [. . .] [] The advantage of using section  of the Intestate Succession Act as the basic mechanism for determining the content of the interim regime is that extramarital children, women who are survivors in monogamous unions, unmarried women and all children would not be discriminated against. However, as has been pointed out, the section provides for only one surviving spouse and would need to be tailored to accommodate situations where there is more than one surviving spouse because the deceased was party to a polygynous union. This can be done by ensuring that section ()(c)(i) and section ()(f ) of the Intestate Succession Act which are concerned with providing for a child’s share of the single surviving spouse and its calculation should apply with three qualifications if the deceased is survived by more than one spouse. First, a child’s share would be determined by having regard to the fact that there is more than one surviving spouse. Second, provision should be made for each surviving spouse to inherit the minimum if there is not enough in the estate. Third, the order must take into account the possibility that the estate may not be enough to provide the prescribed minimum to each of the surviving spouses. In that event, all the surviving spouses should share what is in the estate equally. These considerations will be reflected in the order.

Retrospectivity [] Section () of the Constitution empowers this court, upon a declaration of invalidity to make any order that is just and equitable, including an order to limit the retrospective effect of that invalidity. The statutory provisions and customary-law rules that have been found to be inconsistent with the Constitution are so egregious that an order that renders the declaration fully prospective cannot be justified. On the other hand, it seems to me that unqualified retrospectivity would be unfair because it could result in all transfers of ownership that have taken place over a considerably long time being reconsidered. However, an order that exempts all completed transfers from the provisions of the Constitution would also not accord with justice or equity. It would make it impossible to reopen a transaction even where the heir who received transfer knew at the time that the provisions that

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purport to benefit him or her were to be challenged in a court. That was the position in the Shibi case. [] To limit the order of retrospectivity to cases in which transfer of ownership has not yet been completed would enable an heir to avoid the consequences of any declaration of invalidity by going ahead with transfer as speedily as possible. What will accordingly be just and equitable is to limit the retrospectivity of the order so that the declaration of invalidity does not apply to any completed transfer to an heir who is bona fide in the sense of not being aware that the constitutional validity of the provision in question was being challenged. It is fair and just that all transfers of ownership obtained by an heir who was on notice ought not to be exempted. [] The next issue to be decided is whether it is just and equitable that the order of invalidity should date back to February  ,, when the Constitution became operative. The question is relevant because the deceased in Shibi died during , while the Interim Constitution was in force. The impugned provisions in this case became inconsistent with the Interim Constitution in  when it came into force. It would accordingly be neither just nor equitable for affected women and extramarital children to benefit from a declaration of invalidity only if the deceased had died after February , , but not if the deceased had died after the Interim Constitution had come into force but before the final Constitution was operative. I am accordingly of the view that the declaration of invalidity must be retrospective to April , , in order to avoid patent injustice.

The Facilitation of Agreements [] The order made in this case must not be understood to mean that the relevant provisions of the Intestate Succession Act are fixed rules that must be applied regardless of any agreement by all interested parties that the estate should devolve in a different way. The spontaneous development of customary law could continue to be hampered if this were to happen. The Intestate Succession Act does not preclude an estate devolving in accordance with an agreement reached among all interested parties but in a way that is consistent with its provisions. There is, for example, nothing to prevent an agreement being concluded between both surviving wives to the effect that one of them would inherit all the deceased’s immovable property, provided that the children’s interests are not affected by the agreement. Having regard to the vulnerable position in which some of the surviving family members may find themselves, care must be taken that such agreements are genuine and not the result of the exploitation of the weaker members of the family by the strong. In this regard, a special duty rests on the Master of the High Court, the magistrates and other officials responsible for the administration of estates to ensure that no one is prejudiced in the discussions leading to the purported agreements.

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The Effect of This Judgment [] It needs to be emphasized that this judgment is concerned with intestate deceased estates which were governed by section  of the act only. All such estates will henceforth be administered in terms of this judgment. The question arises as to the role of the master of the High Court, magistrates and other officials appointed by the master. Section (A) of the Administration of Estates Act provides that the master shall not have jurisdiction over estates that devolve in terms of customary law. The effect of this judgment is to bring about a change in this respect. The master is no longer precluded from dealing with intestate deceased estates that were formerly governed by section  of the act since they will now fall under the terms of this judgment and not customary law. [] The procedure under the Administration of Estates Act is somewhat different to the procedure under the act and its regulations. The Administration of Estates Act was recently amended to permit the master to designate posts in the Department of Justice to exercise the powers and perform the duties delegated to them on behalf of, and under the direction of the master. The same provision requires service points to be established where these officials may exercise the powers referred to. The court has not been informed what steps have been taken by the master in terms of these provisions. Section () of the Administration of Estates Act (somewhat similarly to section () of the act) permits the master to dispense with the appointment of an executor if the estate does not exceed a stipulated amount (currently set at R,). Section () also permits the master to “give directions as to the manner in which any such estate shall be liquidated and distributed.” The terms of this provision are broad enough to permit the master to hold an inquiry to facilitate the liquidation of the estate as is currently the practice under regulation . In the circumstances, I do not think it inappropriate to order that in future all new estates shall be wound up in terms of the provisions of the Administration of Estates Act. However, in case such an order causes dislocation or harm, I include in the order a provision permitting any interested person to approach this court on an urgent basis, in the event of serious administrative or practical problems being experienced as a result of this order. JUSTICE NGCOBO [] [. . .] The unconstitutionality of section  of the act can hardly be disputed. The act is manifestly racist in its purpose and effect. It discriminates on the grounds of race and color. Section  of the act, the regulations, and section ()(b) of the Intestate Succession Act are interlinked. They stand or fall together. Their combined effect is to put in place a succession scheme that discriminates on the basis of race and color applying only to African people. The limitation that this scheme imposes on the right of African people to equality can hardly be said to be reasonable and

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justifiable in an open and democratic society based on human dignity, equality, and freedom. The discrimination it perpetrates is an affront to the dignity of those that it governs. [] Section  is therefore inconsistent with the right to equality guaranteed in section () as well as the right to dignity protected by section  of the Constitution. The regulations and section ()(b) of the Intestate Succession Act must suffer the same fate. [] The High Court only declared invalid section ()(a), (c), and (e) of the act, regulation (e), and section ()(b) of the Intestate Succession Act. In my view, the whole of section  must go. The same goes for the regulations. To this extent, I concur in the judgment of the deputy chief justice. [] It will be recalled that in terms of the regulations, in particular, regulation (e), indigenous law of succession is made applicable to intestate estates that do not fall under regulation (b) to (d). And the central feature of indigenous law of succession is the principle of male primogeniture. This is a rule that was applied by the magistrates in the Bhe and Shibi matters. The constitutionality of this rule was challenged, too. It will therefore be convenient to consider the constitutional validity of the rule before considering the remedy that is appropriate in these cases.

The Constitutional Challenge to the Principle of Male Primogeniture [] This rule was challenged on the basis that it discriminates unfairly on the grounds of gender, age, and birth. In order to evaluate the cogency of the challenge, it is necessary to understand the nature of indigenous law and, in particular, the concept of succession in indigenous law. All of this provides the context in which the constitutional validity of the rule must be determined. But first, what is the place of indigenous law in our constitutional democracy? [] [. . .] While in the past indigenous law was seen through the common-law lens, it must now be seen as part of our law and must be considered on its own terms and “not through the prism of the common law.” Like all laws, indigenous law now derives its force from the Constitution. Its validity must now be determined by reference not to common law but to the Constitution. [] But how do we ascertain the applicable rule of indigenous law? How to Ascertain Indigenous Law? [] There are at least three ways in which indigenous law may be established. In the first place, a court may take judicial notice of it. This can only happen where it can readily be ascertained with sufficient certainty. Section () of the Law of Evidence Amendment Act  of  says so. Where it cannot be readily ascertained, expert evidence may be adduced to establish it. Finally, a court may consult textbooks and case law. [] Caution, however, must be exercised in relying on case law and textbooks. In Alexkor we emphasized the need for caution and said:

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Although a number of text books exist and there is a considerable body of precedent, courts today have to bear in mind the extent to which indigenous law in the predemocratic period was influenced by the political, administrative and judicial context in which it was applied. Bennett points out that, although customary law is supposed to develop spontaneously in a given rural community, during the colonial and apartheid era it became alienated from its community origins. The result was that the term “customary law” emerged with three quite different meanings: the official body of law employed in the courts and by the administration (which, he points out, diverges most markedly from actual social practice); the law used by academics for teaching purposes; and the law actually lived by the people.

[] Indigenous law is a dynamic system of law that is continually evolving to meet the changing circumstances of the community in which it operates. It is not a fixed body of classified rules. [. . .] [] The evolving nature of indigenous law and the fact that it is unwritten have resulted in the difficulty of ascertaining the true indigenous law as practiced in the community. This law is sometimes referred to as living indigenous law. Statutes, textbooks, and case law, as a result, may no longer reflect the living law. What is more, abuses of indigenous law are at times construed as a true reflection of indigenous law, and these abuses tend to distort the law and undermine its value. The difficulty is one of identifying the living indigenous law and separating it from its distorted version. [] In these cases, no attempt was made to ascertain the living indigenous law of succession. These matters were approached on the footing that indigenous law of succession is that which is described in the textbooks and case law. Whether that is the proper approach to a system of law that is dynamic and evolving is not free from doubt. However, in both the Bhe and Shibi matters, the magistrates concerned applied the indigenous law of succession as described in Mthembu v. Letsela and textbooks. It is that law which we must evaluate in these cases. But first, it is necessary to understand the concept of succession in indigenous law.

The Concept of Succession in Indigenous Law [] The concept of succession in indigenous law must be understood in the context of indigenous law itself. When dealing with indigenous law every attempt should be made to avoid the tendency of construing indigenous law concepts in the light of common law concepts or concepts foreign to indigenous law. There are obvious dangers in such an approach. These two systems of law developed in two different situations, under different cultures and in response to different conditions. [] However, because of our legal background and, in particular, the fact that indigenous law was previously not allowed to develop in the same way as other systems of law, the tendency may at times be unavoidable. But even then, common-law concepts should be used with great caution in indigenous law.

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[] In common law, concepts of “succession” and “inheritance” are sometimes used interchangeably. However, in the context of indigenous law, it is necessary to distinguish these concepts. As Bennett explains: The words “succession” and “inheritance” are often used as synonyms, but for analytical purposes they should be distinguished. The latter denotes transmission of rights to property only, and in those societies emphasizing material wealth (which will also have a highly evolved notion of property) inheritance predominates. Succession is more general; it implies the transmission of all the rights, duties, powers, and privileges associated with status. So in the case of customary law one should speak of a process of succession rather than inheritance.

[] The significance of distinguishing between “succession” and “inheritance” appears from the following passage by Himonga: Succession refers to the process of succeeding to the estate, office or status of the deceased person, while inheritance refers to the process of inheriting the property of the deceased. The person selected as successor does not, in Zambian systems of succession, as in many other African systems, inherit all the property, although he may have the power to administer the estate and a right to the larger portion of it. Otherwise, the right of inheritance belongs to a much wider group entitled to inherit from the deceased according to the operative system of kinship. (Footnotes omitted.)

[] Inheritance of property is not always linked to succession to status. The successor does not inherit the family property. He steps into the shoes of the deceased by taking over the control of the family property. That is not to say that the concept of inheritance was unknown. It is not necessary in this case to determine the circumstances in which inheritance to property occurred. Indigenous law of succession is therefore not solely concerned with the transfer of rights in property. The transfer of status and roles traditionally form an essential component of succession.

The Social Context in Which the Law Developed [] To understand the concept of succession in indigenous law, it is instructive to look at the social context in which it originated. The rules of indigenous law, in particular, the rule of primogeniture, have their origin in traditional society. This society was based on a subsistence agricultural economy. At the heart of the African traditional structure was the family unit. The family unit was the focus of social concern. Individual interests were submerged in the common weal. The system emphasized duties and responsibilities as opposed to rights. At the head of the family there was a patriarch or a senior male who exercised control over the family property and

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members of the family. The family organization was self-sufficient. Within this system, the position of each member of the family was based on an equitable division of labor. [] A sense of community prevailed from which developed an elaborate system of reciprocal duties and obligations among the family members. This is manifest in the concept of uBuntu—umuntu ngumuntu ngabantu—a dominant value in African traditional culture. This concept encapsulates communality and the interdependence of the members of a community. As Deputy Chief Justice Langa put it, it is a culture that “regulates the exercise of rights by the emphasis it lays on sharing and coresponsibility and the mutual enjoyment of rights.” It is this system of reciprocal duties and obligations that ensured that every family member had access to basic necessities of life such as food, clothing, shelter and healthcare. [] The main purpose of succession was to keep the family property in the family. This was essential to the preservation of the family unit. Land and livestock were the most important property. They provided the whole family with a source of livelihood and a place to live. They constituted family property and as such belonged to the family. The father was the head of the family and he held the property on behalf of and for the benefit of the family. He was responsible for the maintenance of the family from the property. Upon his death, two objectives had to be achieved: the perpetuation of the family; and getting someone to take over the powers and duties of the deceased family head. This was achieved by providing rules for the transmission of the deceased’s rights and obligations to the eldest son. [] The indigenous law of succession was concerned with two objectives: (a) The perpetuation and the preservation of the family; and (b) getting someone to take over the duties and obligations of the deceased family head. The preservation of the family required the preservation of family property. Family property consisted mainly of land and livestock. These were the primary sources of livelihood. And these were viewed as the property of the family and not that of each individual. The father was viewed as the caretaker and manager of the common property and thus the family head. He was responsible for the maintenance of the family from the family property. To enable the successor to carry out the duties and obligations of the deceased, family property had to be kept in the family. [] Indigenous law preserved the family unit and its continuity by transferring responsibilities of the family head to his senior male descendant. This descendant is referred to as indlalifa or successor. It is this male descendant who is equated with the heir under common law. But there are important differences between the two. Indlalifa takes over the powers and responsibilities of the deceased family head. The powers relate to the right to control and administer the family property on behalf of

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and for the benefit of the family members. The responsibilities relate to the duty to support and maintain all the dependents of the deceased. This process is metaphorically expressed by the phrase “the indlalifa steps into the shoes of the deceased family head and takes over control of the family property.” [] The underlying purpose of indigenous law of succession is therefore to protect the family and ensure that the dependents of the deceased are looked after. [. . .]

The Rule of Male Primogeniture [] Central to the indigenous law of succession, therefore, is the rule of male primogeniture. It was described as follows by the SCA in the judgment of Mthembu: The customary law of succession in Southern Africa is based on the principle of male primogeniture. In monogamous families the eldest son of the family head is his heir, failing him the eldest son’s eldest male descendant. Where the eldest son has predeceased the family head without leaving male issue, the second son becomes heir; if he is dead leaving no male issue, the third son succeeds and so on through the sons of the family head. Where the family head dies leaving no male issue his father succeeds . . . Women generally do not inherit in customary law. When the head of the family dies his heir takes his position as head of the family and becomes owner of all the deceased’s property, movable and immovable; he becomes liable for the debts of the deceased and assumes the deceased’s position as guardian of the women and minor sons in the family. He is obliged to support and maintain them, if necessary from his own resources and not to expel them from his home.

[] Whether this passage reflects the indigenous law of succession actually lived by the people is doubtful. However, that is the law that was applied in these cases. In the Bhe matter, the deceased left no son and therefore in accordance with the rule of male primogeniture his father was declared the successor. Similarly, in the Shibi matter, the deceased left no male descendants and his cousin was therefore appointed sole indlalifa. It is this rule that came under constitutional challenge. And, as pointed out earlier, it is this version of the rule that we must evaluate. [] It is against this background that the constitutional challenge to the rule of male primogeniture must be evaluated. First, I deal with the challenge based on discrimination against younger children.

The Challenge Based on Age and Birth Discrimination [] The rule of primogeniture was challenged on the basis that it discriminates unfairly against younger children of the deceased. It will be recalled that only the eldest male succeeds. The rule, no doubt, limits the right of the younger children to succeed to the status of the deceased. The question is whether such limitation is rea-

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sonable and justifiable under section () of the Constitution. It is to that question that I now turn. [] The primary purpose of the rule is to preserve the family unit and ensure that upon the death of the family head, someone takes over the responsibilities of family head. These responsibilities include looking after the dependents of the deceased and administering the family property on behalf of and for the benefit of the entire family. Successorship also carries with it the obligation to remain in the family home for the purposes of discharging the responsibilities associated with heirship. From the family of the deceased, someone must be found to assume these responsibilities. There may be several conflicting demands. But there is a need for certainty in order to facilitate the transfer of the rights and obligations of the deceased without lengthy deliberations that may be caused by rival claims. The determination of the eldest male as the successor was intended to ensure certainty. [] Entrusting these responsibilities to the eldest child is consistent with the role of the eldest child in relation to his siblings. The eldest child has a responsibility to look after his or her siblings. The rule simply recognizes this responsibility. Furthermore, one of the cherished values in African culture is respect for elders. Respect is supposed to inculcate good habits such as humility and courtesy. The old are required to give guidance to the young. This is the basis of mentorship. [] Two points need to be stressed here. First, indlalifa does not inherit as that term is understood in common law. What happens is best conveyed by the expression that “indlalifa steps into the shoes of the family head.” Far from getting any property benefit, the indlalifa assumes the responsibilities of a family head. He is required to administer the family property for the benefit of the entire family. As pointed out earlier, where there are insufficient assets in the family, indlalifa must use his own resources. Second, the selection of the eldest child must also be seen against the flexibility of the rule and the fact that he may be removed from office. If the eldest child considers that he cannot perform the responsibilities, the next eldest takes over the responsibility. What is more, the indlalifa may be held to account to the family if he does not perform his responsibilities. The family may, if he fails to perform his duties, remove him. [] Having regard to all these factors, I am satisfied that the limitation imposed by entrusting the responsibilities of a deceased family head to the eldest child is reasonable and justifiable under section (). It follows therefore that the rule is not inconsistent with section () of the Constitution by reason of discrimination based on age and birth. It now remains to consider the challenge based on gender discrimination.

Gender Discrimination [] Under the rule of male primogeniture, only men can succeed to the deceased family head. The eldest son succeeds, failing which the son’s eldest male descendants succeed. If the eldest son has predeceased the father, leaving no descendants, the

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second son succeeds. If he, too, predeceased the father, leaving no sons, it goes to the next son. Where there are no male descendants, the father of the deceased succeeds. This is what happened in the Bhe matter. If the father predeceased the deceased, it will go to his sons and their dependents in their order of birth. The process therefore excludes women. [] That the rule of male primogeniture limits the rights of women to be considered for succession to the position and status of the deceased family head cannot be gainsaid. They are excluded regardless of their availability and suitability to acquit themselves in that position. They are overlooked in circumstances where they may be the only child of the deceased. Nor does it matter that they may have contributed to the acquisition or preservation of the family property. [] The question is whether such limitation is reasonable and justifiable under section () of the Constitution.

Justification [] The importance of the right to equality in our constitutional democracy cannot be gainsaid. This court has in the past emphasized the importance of the right to equality. The right to equality is related to the right to dignity. Discrimination conveys to the person who is discriminated against that the person is not of equal worth. The discrimination against women conveys a message that women are not of equal worth as men. Where women under indigenous law are already a vulnerable group, this offends their dignity. [] The role that women play in modern society and the transformation of the traditional African communities into urban industrialized communities with all their trappings, make it quite clear that whatever role the rule of male primogeniture may have played in traditional society, it can no longer be justified in the present day and age. Indeed, there are instances where in practice women have assumed the role of the head of the family. This may be due to the fact that indlalifa is almost always away from the common home, or has decided to establish his home outside the common family home. The rule has therefore lost its vitality to a certain degree. [] Jurisprudence from African courts, which have considered the position of women in the context of succession, further demonstrates that the rule in its present form no longer has any place in modern times. [] In re Kofi Antubam (Decd): Quaico v. Fosu and Another [ GLR ], the High Court was concerned, amongst other things, with whether the widows and the children of the deceased had any interest in the estate of the deceased, and if they did, the nature and extent of such interest under Akan customary law. The court found that widows and children have an interest not only in the immovable property but have to be maintained from the whole estate. “Their interests are inextricably mixed up in the indivisible estate and accordingly they are entitled to share in the estate if ultimately the whole estate is converted into money or partitioned.” [] Concerning the development of customary law, the court remarked:

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[I]n the last quarter of the last century, customary law in Ghana has progressed and developed in accordance with the tempo of social, commercial and industrial progress. So far as land tenure is concerned, farming rights have been converted into building and residential rights, customs which appear to be repugnant to natural justice, equity and good conscience have been gradually extinguished by judicial decisions. The then legislature played a less effective role in these spontaneous developments engineered by public opinion. The courts have embraced these developments without adhering strictly to the original customary rigid rules.

And then added: Ghana is a developing state with remarkable social and economic transformations, which render some of our customary rules antediluvian. If the customary law is to retain its place as the greatest adjunct to statutory law and the common law, it cannot remain stagnant whilst other aspects of the law are in constant motion.

[] What conclusion can be drawn from the above analysis? [] Having regard to these developments on the continent, the transformation of African communities from rural communities into urban and industrialized communities, and the role that women now play in our society, the exclusion of women from succeeding to the family head can no longer be justified. [. . .]

Should the Rule Be Developed in Line with the Constitution? [] We are dealing here with indigenous law. That law is part of our law. Section () of the Constitution imposes an obligation on courts to develop indigenous law so as to bring it in line with the Constitution, in particular, the rights in the Bill of Rights. In Carmichele v. Minister of Safety and Security and Another, this court considered the obligation to develop the common law and held that “where the common law deviates from the spirit, purport and objects of the Bill of Rights the courts have an obligation to develop it by removing that deviation.” [] The Carmichele case applies equally to the development of indigenous law. Where a rule of indigenous law deviates from the spirit, purport and objects of the Bill of Rights, courts have an obligation to develop it so as to remove such deviation. This obligation is especially important in the context of indigenous law. Once a rule of indigenous law is struck down, that is the end of that particular rule. Yet there may be many people who observe that rule, and who will continue to observe the rule. And what is more, the rule may already have been adapted to the ever-changing circumstances in which it operates. Furthermore, the Constitution guarantees the survival of the indigenous law. These considerations require that, where possible, courts should develop rather than strike down a rule of indigenous law.

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[] [. . .] This is the kind of development that is envisaged in Carmichele. Where indigenous law is inconsistent with the rights in the Bill of Rights, courts have an obligation to develop it so as to bring it in line with the rights in the Bill of Rights. Here the court assesses the rule of indigenous law (the rule of male primogeniture) against the applicable provision in the Bill of Rights. In this instance, the court is not primarily concerned with the changing social context in which indigenous law of succession operates or the practice of the people. The dearth of authority on what the living indigenous law is should not therefore preclude a court from bringing a rule of indigenous law in line with the rights in the Bill of Rights. After all: Our Constitution contemplates that there will be a coherent system of law built on the foundations of the Bill of Rights, in which common law and indigenous law should be developed and legislation should be interpreted so as to be consistent with the Bill of Rights and with our obligations under international law. In this sense the Constitution demands a change in the legal norms and the values of our society.

And Indigenous Law Must Reflect This Change [] By contrast, the development of indigenous law in order to adapt it to the changed circumstances requires the court to have regard to what people are actually doing. It is here where the living indigenous law—law as actually lived by the people—becomes relevant. It is here, too, where the problem of identifying living indigenous law arises. The court must have regard to what people are actually doing in order to adapt the indigenous law to the ever-changing circumstances. That is not to say that in this process courts should not have regard to the Constitution. Of course, in the process of developing indigenous law and adapting it to the everchanging circumstances, courts are required by section () of the Constitution to do so in a manner that promotes the spirit, purport and objects of the Bill of Rights. [] The defect in the rule of male primogeniture is that it excludes women from being considered for succession to the deceased family head. In this regard it deviates from section () of the Constitution. It needs to be developed so as to bring it in line with our Bill of Rights. This can be achieved by removing the reference to a male so as to allow an eldest daughter to succeed to the deceased estate. [] Ours is not the only country that has a pluralist legal system in the sense of common, statutory and indigenous law. Other African countries that face the same problem have opted not for replacing indigenous law with common law or statutory laws. Instead, they have accepted that indigenous law is part of their laws and have sought to regulate the circumstances where it is applicable. In my view this approach reflects recognition of the constitutional right of those communities that live by and are governed by indigenous law. It is recognition of our diversity, which is an important feature of our constitutional democracy. [. . .]

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[] It seems to me therefore that the answer lies somewhere other than in the application of the Intestate Succession Act only. It lies in flexibility and willingness to examine the applicability of indigenous law in the concrete setting of social conditions presented by each particular case. It lies in accommodating different systems of law in order to ensure that the most vulnerable are treated fairly. The choice of law mechanism must be informed by the need to: (a) Respect the right of communities to observe cultures and customs, which they hold dear; (b) preserve indigenous law subject to the Constitution; and (c) protect vulnerable members of the family. Indigenous law is part of our law. It must therefore be respected and accorded a place in our legal system. It must not be allowed to stagnate as in the past or disappear. [] In my view, the question whether indigenous law is applicable should in the first place be determined by agreement. After the burial, it is common for the family to meet and decide what should happen to the deceased’s estate. If an agreement can be reached there seems to be no reason for any interference. Any dispute relating to the choice of law should be resolved by the magistrate’s court having jurisdiction. In determining such dispute a magistrate must have regard to what is fair, just and equitable in the circumstances of the case. And in determining what is fair, just and equitable, the magistrate must have regard to, amongst other things, the assets and liabilities of the estate, the widow’s contribution to the acquisition of assets, the contribution of family members to such assets, and whether there are minor children or other dependents of the deceased who require support and maintenance. Naturally, this list is not intended to be exhaustive of all the factors that are to be taken into consideration; there may be others too. The ultimate consideration must be to do that which is fair, just and equitable in the circumstances of each case.

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Volks NO

Volks NO v. Robinson and Others  () BCLR  (CC) CASE SUMMARY

Facts Mrs. Robinson was in a permanent life partnership with Mr. Schandling. They shared a home, a car, and many mutual friends. She was financially dependent on him and they were regarded by all who knew them as a couple. When Mr. Schandling died, Mrs. Robinson argued that she should have a claim for maintenance against his estate. However, the executor of the estate (Mr. Volks) read the Maintenance of Surviving Spouses Act, which provided the legal basis for a claim against the deceased estate of a spouse, to apply only to married couples. Mrs. Robinson—with the assistance of the Women’s Legal Centre—applied to the High Court for an order declaring that her rights to equality and dignity required that the act apply to permanent life partners as well.

Legal History Justice Davis heard the application in the Cape High Court. He held that the word “spouse” in the act was incapable of being interpreted to include “life partners.” For that reason the act unfairly discriminated against Mrs. Robinson on the ground of marital status. The act failed to recognize the “dignity of difference” and undermined the promise of equality. He ordered that the act be altered so that the definition of

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

“spouse” embraced people in a permanent life partnership. That decision was sent to the Constitutional Court for confirmation.

Decision of the Constitutional Court Justice Skweyiya wrote for the majority of the court. He agreed with the High Court that “spouse” could not be interpreted to include unmarried couples. However, he found that the exclusion of unmarried couples did not violate the Constitution. While he was willing to assume that the distinction drawn in the act between married and unmarried couples amounted to discrimination, he found that that discrimination was fair. Justice Skweyiya stressed the unique nature of marriage as an institution. It imposed obligations and created benefits that could not be expected to exist in an unmarried relationship: “There is a fundamental difference between her position and spouses or survivors who are predeceased by their husbands. Her relationship with Mr. Shandling is one in which each was free to continue or not, and from which each was free to withdraw at will, without obligation and without legal or other formalities” (paragraph ). Justice Skweyiya also noted that the act already limited the freedom of testation, a freedom that would be further limited by extending the reach of the act. For the same reasons, he dismissed the alleged violation of the right to dignity (paragraphs –). However, the majority judgment does acknowledge that the law could have serious consequences for cohabitants—such as Ms. Volks—and accepted that laws to regulate those relationships and protect surviving partners were desirable. But that need did not make the present law unconstitutional. Justices Mokgoro and O’Regan wrote a joint dissenting judgment in which they emphasized the disparate and deleterious impact laws governing cohabitation have on women. Comment Volks is a hard case. And, as the saying goes, hard cases sometimes make bad law. One cannot but be sympathetic to Ms. Robinson and other women in her position who are denied maintenance by what even Justice Skweyiya admits amounts to little more than compliance with legal formalities. Moreover, the vulnerable position of women in this society invariably ensures that the law operates to their detriment. At the same time, the right and the value of dignity recognize self-governance—autonomy—as an inherent good. Indeed, the freedom to contract and the freedom of testation are two of the most fundamental freedoms recognized by our common law. Should the autonomy interests of the testator trump our need to protect vulnerable classes of women in no position to determine how a partnership is formed? Or should we permit legal formalities—and conservative aspects of our common law tradition—to reinforce the entrenched disadvantage of women. That dignity pulls in different directions does not mean we cannot assess competing rights situations and competing values through the development of a coherent dignity jurisprudence

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Legal Cases (–)

recognized by the Roman Dutch and English Common Law of South Africa. Should the autonomy interest of the testator override our need to protect vulnerable classes of women in no position to determine how a partnership is formed? JUSTICE SKWEYIYA [] The High Court stated that it was trite that one of the core commitments of our constitutional society was the recognition of the dignity of difference, which accords respect to the existence of domestic partnerships and those who live in them. The court stated that: If there were clear evidence that parties expressly, by choice, decided to eschew any possible financial benefits which flowed from a marriage and, for this reason (or notwithstanding this position), chose to live within the context of a domestic life partnership, there may be an argument, . . . that a surviving partner such as [Mrs. Robinson] could not successfully launch a constitutional challenge to the act.

The court concluded that, in this case “there is little beyond the speculation of [Mr. Volks] that a conscious choice was made by [Mr. Shandling] and [Mrs. Robinson] to live in terms of a relationship in which none of the benefits of marriage now sought were to apply.” [] Relying on certain factual information in an article by Goldblatt [Regulating Domestic Partnerships-A Necessary Step in the Development of South African Family Law ()  SA Law Journal ] to the effect that for a range of reasons domestic partnerships were a significant part of South African family life, Justice Davis stated: To ignore the arrangement and impose a particular religious view on their world is to undermine the dignity of difference and to render the guarantee of equality somewhat illusory insofar as a significant percentage of the population is concerned.

He therefore held that the breach of both the rights to equality and dignity could not be justified.

Equality Challenge [] The basis of the High Court’s finding of unconstitutionality is that the act excludes permanent life partners from its protection and thereby violates the antidiscrimination provision in section () of the Constitution. [] The question for determination in this case is whether the exclusion of survivors of permanent life partnerships from the protection of the Act constitutes unfair discrimination. The Act draws a distinction between married people and unmarried

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

people by including only the former. We are not concerned with the exclusion of survivors of gay and lesbian relationships, nor are we concerned with survivors of polygynous relationships. [] Although it is arguable whether the distinction or differentiation amounts to discrimination, I am prepared to accept that it amounts to discrimination based on marital status. That being the case, the discrimination is presumed to be unfair in terms of section () of the Constitution. The question, however, is whether it is indeed unfair discrimination. [] In determining whether discrimination is unfair one must consider the differences between the two groups. Although there is no right to marry and to found a family contained in chapter  of the Constitution marriage as an institution is recognized therein. This is clear from the provisions of section ()(a)(i) of the Constitution. The constitutional recognition of marriage is an important starting point for determining the question presented in this case. [] Marriage and family are important social institutions in our society. Marriage has a central and special place, and forms one of the important bases for family life in our society. In this regard Justice O’Regan notes in Dawood that: Marriage and the family are social institutions of vital importance. Entering into and sustaining a marriage is a matter of intense private significance to the parties to that marriage for they make a promise to one another to establish and maintain an intimate relationship for the rest of their lives which they acknowledge obliges them to support one another, to live together and to be faithful to one another. Such relationships are of profound significance to the individuals concerned. But such relationships have more than personal significance, at least in part because human beings are social beings whose humanity is expressed through their relationships with others. Entering into marriage therefore is to enter into a relationship that has public significance as well. The institutions of marriage and the family are important social institutions that provide for the security, support and companionship of members of our society and bear an important role in the rearing of children. The celebration of a marriage gives rise to moral and legal obligations, particularly the reciprocal duty of support placed upon spouses and their joint responsibility for supporting and raising children born of the marriage. These legal obligations perform an important social function. This importance is symbolically acknowledged in part by the fact that marriage is celebrated generally in a public ceremony, often before family and close friends. (Footnotes omitted.)

[] From this recognition, it follows that the law may distinguish between married people and unmarried people. Indeed, this court in Fraser [v. Children’s Court, Pretoria North, and Others  () SA  (CC)] noted:“In the context of certain

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Legal Cases (–)

laws there would often be some historical and logical justification for discriminating between married and unmarried persons and the protection of the institution of marriage is a legitimate area for the law to concern itself with.” The law may in appropriate circumstances accord benefits to married people which it does not accord to unmarried people. [] The distinction between married and unmarried people cannot be said to be unfair when considered in the larger context of the rights and obligations uniquely attached to marriage. Whilst there is a reciprocal duty of support between married persons, no duty of support arises by operation of law in the case of unmarried cohabitants. The maintenance benefit in section () of the act falls within the scope of the maintenance support obligation attached to marriage. The act applies to persons in respect of whom the deceased person (spouse) would have remained legally liable for maintenance, by operation of law, had he or she not died. [] It must be borne in mind that the legislature, by enacting the law, in fact qualified the right to freedom of testation. It said that freedom of testation would be limited to the extent that where marriage obliged the parties to it to maintain each other; freedom of testation ought not to result in the termination of the obligation upon death. The question we have to answer is whether it was unfair for the legislature not to qualify freedom of testation further, by creating a posthumous duty to maintain on cohabitants. [] In his judgment Justice Sachs envisages two categories of people within this broad class of unmarried cohabitants against whom the disputed law is unfairly discriminatory. The first category is the people who by written instrument or by necessary implication agree to live together, to maintain each other and to give each other support of every kind. It is contended that for the law not to oblige survivors of relationships in this category to be maintained entails unfair discrimination against the survivor simply because the survivor does not have the piece of paper which is the marriage certificate. That is an over-simplification. Marriage is not merely a piece of paper. Couples who choose to marry enter the agreement fully cognizant of the legal obligations that arise by operation of law upon the conclusion of the marriage. These obligations arise as soon as the marriage is concluded, without the need for any further agreement. They include obligations that extend beyond the termination of marriage and even after death. To the extent that any obligations arise between cohabitants during the subsistence of their relationship, these arise by agreement and only to the extent of that agreement. The Constitution does not require the imposition of an obligation on the estate of a deceased person, in circumstances where the law attaches no such obligation during the deceased’s lifetime, and there is no intention on the part of the deceased to undertake such an obligation. [] The second category referred to by Justice Sachs is the relationship in which the deceased male partner refused to marry the woman who cared for him, put everything into the relationship and gave her heart and soul to it, bringing up a number of children born of the relationship between them in the process. I have sympathy for

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

surviving partners who fall within this category. The [] conduct of the male partner is unconscionable in these cases. There is a strong argument that partners ought to be obliged to maintain each other during their lifetime in certain circumstances. [] I conclude that it is not unfair to make a distinction between survivors of a marriage on the one hand, and survivors of a heterosexual cohabitation relationship on the other. In the context of the provision for maintenance of the survivor of a marriage by the estate of the deceased, it is entirely appropriate not to impose a duty upon the estate where none arose by operation of law during the lifetime of the deceased. Such an imposition would be incongruous, unfair, irrational and untenable.

The Right to Dignity [] It was also contended that the failure to make provision for the people in the class to which Mrs. Robinson belongs offends the dignity of members of that class. Section  of the Constitution provides: “Everyone has inherent dignity and the right to have their dignity respected and protected.” [] I do not agree that the right to dignity has been infringed. Mrs. Robinson is not being told that her dignity is worth less than that of someone who is married. She is simply told that there is a fundamental difference between her relationship and a marriage relationship in relation to maintenance. It is that people in a marriage are obliged to maintain each other by operation of law and without further agreement or formalities. People in the class of relationships to which she belongs are not in that position. In the circumstances, it is not appropriate that an obligation that did not exist before death be posthumously imposed. Vulnerability and Economic Dependence [] Structural dependence of women in marriage and in relationships of heterosexual unmarried couples is a reality in our country and in other countries. Many women become economically dependent on men and are left destitute and suffer hardships on the death of their male partners. [] Much of the argument and many of the passages of the judgment of Justice Sachs express concern for the plight of vulnerable women in cohabitation relationships. This concern arises because women remain generally less powerful in these relationships. They often wish to be married, but the nature of the power relations within the relationship makes a translation of that wish into reality difficult. This is because the more powerful participants in the relationship would not agree to be bound by marriage. The consequences are that women are taken advantage of and the essential contributions by women to a joint household through labor and emotional support is not compensated for. [] I agree that the women in this category suffer considerably. But it is not the under-inclusiveness of section () which is the cause of their misery. The plight of a woman who is the survivor in a cohabitation relationship is the result of the absence of any law that places rights and obligations on people who are partners

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Legal Cases (–)

within relationships of this kind during their lifetimes. I accept that laws aimed at regulating these relationships in order to ensure that a vulnerable partner within the relationship is not unfairly taken advantage of are appropriate. JUSTICE NGCOBO [] For the purposes of this judgment, I am prepared to accept that the differentiation involved here constitutes discrimination. The differentiation is on the ground of marital status, a ground listed in subsection () of the Constitution. That being the case, the discrimination is presumed to be unfair under subsection (). The ultimate question for determination therefore is whether the provisions of section () read with section  of the act do in fact discriminate unfairly against survivors of permanent life partnerships. [] The proper approach to the equality analysis is that set out in the President of the Republic of South Africa and Another v. Hugo [ () SA  (CC)] and Harksen v. Lane NO and Others [ () SA  (CC)] cases. [] The nature of unfairness contemplated by the provisions of section  of the Constitution has been considered by this court, albeit in the context of section  of the Interim Constitution, the predecessor to section . In the Hugo case, this court held that: The prohibition on unfair discrimination in the Interim Constitution seeks not only to avoid discrimination against people who are members of disadvantaged groups. It seeks more than that. At the heart of the prohibition of unfair discrimination lies a recognition that the purpose of our new constitutional and democratic order is the establishment of a society in which all human beings will be accorded equal dignity and respect regardless of their membership of particular groups.

[] Dignity is an underlying consideration in the determination of unfairness. Thus in the Harksen case, this court held that “[t]he prohibition of unfair discrimination in the Constitution provides a bulwark against invasions which impair human dignity or which affect people adversely in a comparably serious manner.” While legislation may make distinctions, those “distinctions that treat certain people as second-class citizens, that demean them, that treat them as less capable for no good reason, or that otherwise offend fundamental human dignity” [Egan v. Canada ()] cannot be tolerated. In the final analysis, it is the impact of discrimination on the survivors of permanent life partnerships that is the determining factor regarding the unfairness of the discrimination in this case. [] The starting point in determining the fairness or otherwise of the discrimination involved in this case is the Constitution itself. Although our Constitution contains no express provision protecting the institution of marriage, it nevertheless

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

recognizes the right freely to marry and to raise a family. In Dawood and Another v. Minister of Home Affairs and Others; Shalabi and Another v. Minister of Home Affairs and Others; Thomas and Another v. Minister of Home Affairs and Others, this court commented as follows on the absence of an express provision protecting the right to family life or the right of spouses to cohabit: The omission of such a right from the Constitution was challenged during the first certification proceedings on the basis that such a right constituted a “universally accepted fundamental right” which in terms of Constitutional Principle II had to be entrenched in the Constitution. The court observed from its survey of international instruments that states are obliged in terms of international human rights law to protect the rights of persons freely to marry and raise a family. However, it also observed that these obligations are achieved in a great variety of ways in different human rights instruments. The court therefore concluded that the new constitutional text, although it contained no express clause protecting the right to family life, nevertheless met the obligations imposed by international human rights law to protect the rights of persons freely to marry and to raise a family. (Footnotes omitted.)

[] There can be no doubt that our Constitution recognizes the institution of marriage. This much is apparent from section ()(a)(i) of the Constitution which in substance makes provision for the recognition of “marriages concluded under any tradition, or a system of religious, personal or family law.” This court too has recognized the importance of marriage as an institution. One need only refer to the Dawood case, where this court said the following concerning the institution of marriage: Marriage and the family are social institutions of vital importance. Entering into and sustaining a marriage is a matter of intense private significance to the parties to that marriage for they make a promise to one another to establish and maintain an intimate relationship for the rest of their lives which they acknowledge obliges them to support one another, to live together and to be faithful to one another. Such relationships are of profound significance to the individuals concerned. But such relationships have more than personal significance, at least in part because human beings are social beings whose humanity is expressed through their relationships with others. Entering into marriage therefore is to enter into a relationship that has public significance as well. The institutions of marriage and the family are important social institutions that provide for the security, support, and companionship of members of our society and bear an important role in the rearing of children. The celebration of a marriage gives rise to moral and legal obligations, particularly the reciprocal duty of support placed upon spouses and their joint responsibility for supporting and raising children born of the marriage. These

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

Legal Cases (–)

legal obligations perform an important social function. This importance is symbolically acknowledged in part by the fact that marriage is celebrated generally in a public ceremony, often before family and close friends. (Footnotes omitted.)

[] Once it is accepted that marriage is a constitutionally recognized institution in our constitutional democracy, it follows that the law may legitimately afford protection to marriage. And in appropriate circumstances the law may afford protection to married people which it does not accord to unmarried people. This seems to me to be the logical consequence of the recognition of the institution of marriage. But there are other considerations that are relevant to the determination of the fairness or otherwise of the discrimination involved in this case. [] One of the factors that is relevant to the determination of unfairness is the purpose sought to be achieved by the impugned provisions. The purpose of the provisions of the act is manifestly not directed at impairing the dignity of the survivors of permanent life partnerships. It is primarily directed at ensuring that surviving spouses who are in need of maintenance and who are unable to support themselves, do get maintenance. One of the invariable consequences of marriage is a reciprocal duty of support. During the subsistence of the marriage, the deceased spouse is under a duty to support and maintain the surviving spouse. What the provisions of the act merely do is to ensure that this duty continues after the death of one of the spouses. It does this by transferring this duty to the estate of a deceased spouse. [] It is not without significance that indigenous law, which is part of our law, also protects widows. Under indigenous law, the duty to maintain and support the widow survives the death of the husband. Thus upon the death of a husband, the duty to maintain and support the widow falls upon indlalifa. This duty remains with indlalifa regardless of whether the deceased husband left enough assets from which to maintain and support the widow. Recently, I had occasion to observe that: The perpetuation and preservation of the family unit and succession to the position and status of the deceased therefore lie at the heart of succession in indigenous law. Like his predecessor, indlalifa becomes the nominal owner of the family property, and is required to administer it on behalf of and for the benefit of the family. Indlalifa acquires the duty to maintain and support the widow and minor children. In dealing with family property, indlalifa has to consult the widow who had the right to restrain him from dissipating family assets. When there are insufficient assets to maintain the family, indlalifa had to use his own resources to provide maintenance.

[] It is therefore plain that the impact of the provisions of the Act on surviving spouses is to protect their right to receive maintenance and support from the deceased spouse by transferring the duty to support and maintain onto the estate of a deceased

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Volks NO



spouse. It is true that surviving partners of permanent life partnerships are not afforded this protection. But, although this may constitute a disadvantage, it does not take away the right of a surviving partner of a permanent life partnership from receiving a sum of money from the estate of a deceased partner. Indeed, the provisions of the act do not prevent partners in a permanent life partnership from leaving sums of money to each other in their respective wills, which can be used for maintenance. We know for example that the deceased in this case left Mrs. Robinson a sum of money in his will. [] There is a further consideration that is equally relevant. The law places no legal impediment to heterosexual couples involved in permanent life partnerships from getting married. All that the law does is to put in place a legal regime that regulates the rights and obligations of those heterosexual couples who have chosen marriage as their preferred institution to govern their intimate relationship. Their entitlement to protection under the act, therefore, depends on their decision whether to marry or not. The decision to enter into a marriage relationship and to sustain such a relationship signifies a willingness to accept the moral and legal obligations, in particular, the reciprocal duty of support placed upon spouses and other invariable consequences of a marriage relationship. This would include the acceptance that the duty to support survives the death of one of the spouses. [] The act does not say who may enter into a marriage relationship. The Act simply attaches certain legal consequences to people who choose marriage as their contract. There is a choice at the entry level. The law expects those heterosexual couples who desire the consequences ascribed to this type of relationship to signify their acceptance of those consequences by entering into a marriage relationship. Those who do not wish such consequences to flow from their relationship remain free to enter into some other form of relationship and decide what consequences should flow from their relationships. [] The other consideration is that marriage is a matter of choice. Marriage is a manifestation of that choice and more importantly, the acceptance of the consequences of a marriage. It is more than a piece of paper. As this court observed in the Dawood case: The celebration of a marriage gives rise to moral and legal obligations, particularly the reciprocal duty of support placed upon spouses and their joint responsibility for supporting and raising children born of the marriage. These legal obligations perform an important social function. This importance is symbolically acknowledged in part by the fact that marriage is celebrated generally in a public ceremony, often before family and close friends.

[] People involved in a relationship may choose not to marry for a whole variety of reasons, including the fact that they do not wish the legal consequences of a marriage to follow from their relationship. It is also true that they may not marry

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Legal Cases (–)

because one of the parties does not want to get married. Should the law then step in and impose the legal consequences of marriage in these circumstances? To do so in my view would undermine the right freely to marry and the nature of the agreement inherent in a marriage. Indeed it would amount to the imposition of the will of one party upon the other. This is equally unacceptable. [] Another consideration that is relevant is the difficulty of establishing the existence of a permanent life partnership. The point at which such partnerships come into existence is not determinable in advance. In addition, the consequences of such partnerships are determined by agreement between the parties. Unless these have been expressly agreed upon, they have to be inferred from the conduct of the parties. What happens at the dissolution of such partnerships is far from clear. All of this points to the need to regulate permanent life partnerships. This does not mean that a law designed to regulate marriages is unconstitutional simply because it does not regulate permanent life partnerships. [] The provisions of the act may have denied the surviving partners of permanent life partnerships the protection it affords to surviving spouses, but it cannot be said that it fundamentally impairs their rights of dignity or sense of equal worth. The impact of the discrimination upon the surviving partners is, therefore, in all the circumstances not unfair. It follows that the provisions of the act are not inconsistent with sections  and  of the Constitution. In the event, the order of invalidity made by the High Court cannot be confirmed. JUSTICES MOKGORO AND O’REGAN [] We have had the opportunity of reading the judgments in this matter prepared by Justice Skweyiya and Justice Sachs. We are unable to agree with the order proposed by Justice Skweyiya. We agree with the conclusion reached by Justice Sachs but for different reasons, which we set out in this judgment. [] The crisp constitutional issue we have to decide is whether section () of the Maintenance of Surviving Spouses Act,  of  (the Act) read with the definition of “survivor” in section  of that act constitutes unfair discrimination and is inconsistent with the Constitution as found by the Cape High Court (the High Court) [Robinson and Another v Volks NO and Others  () SA  (C);  () BCLR  (C)]. Section () provides that: If a marriage is dissolved by death after the commencement of this Act the survivor shall have a claim against the estate of the deceased spouse for the provision of his reasonable maintenance needs until his death or remarriage in so far as he is not able to provide therefor from his own means and earnings.

[] The word “survivor” is defined in section  of the act as “the surviving spouse in a marriage dissolved by death.” The High Court found that this narrow

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

definition of “survivor” rendered the provision discriminatory to the extent that it did not afford a maintenance claim to the surviving partner of a permanent life partnership. The High Court accordingly made an order reading in the following words to the definition of survivor in section —“and includes the surviving partner of a life partnership” as well as two further orders reading in definitions of “spouse” and “marriage.” We must decide whether to confirm that order. [] The facts of the case have been set out in the judgments of both Justice Skweyiya and Justice Sachs. To recap in brief, Mrs. Robinson and Mr. Shandling (the deceased), who had both been previously married, formed a relationship in which they lived together from  until Mr. Shandling’s death in November . The relationship thus lasted sixteen years. They did not marry although there was no legal impediment to marriage. For the last twelve years of Mr. Shandling’s life, they lived in a flat owned by a Shandling family trust. Their relationship was monogamous and Mrs. Robinson characterized the relationship as a “permanent life or domestic partnership.” The applicant in this court, Mr. Volks, the executor of Mr. Shandling’s deceased estate (the executor) did not dispute the characterization of the relationship as a “permanent life partnership.” [] In his will, Mr. Shandling referred to Mrs. Robinson as his “friend.” He also mentioned his former wife whom he referred to as “my wife Edith Rose.” He bequeathed certain of his assets, totaling approximately one third of his estate, to Mrs. Robinson. The residue of his estate was left to his three children in different proportions. In addition to the bequests made in her favor, Mrs. Robinson applied to the executor for her to be treated as a surviving spouse for the purposes of section () of the Act, which would entitle her to maintenance. That application was refused by the executor on the grounds that she did not fall within the terms of section () as she had not been married to Mr. Shandling. [] Mr. Shandling was a senior partner in a firm of attorneys in Cape Town while Mrs. Robinson worked intermittently as a freelance journalist and artist. Mrs. Robinson averred that Mr. Shandling supported her financially during the subsistence of their relationship and paid all household expenses. Mrs. Robinson was also added as a dependant to Mr. Shandling’s medical aid from . [] Mrs. Robinson states that Mr. Shandling had been diagnosed as suffering from bipolar disorder before their relationship commenced and that she nursed him through the mood swings that are characteristic of this disorder. She also nursed him in his final illness. It is quite clear from the evidence given by Mrs. Robinson, and not disputed by the executor, that Mr. Shandling and Mrs. Robinson lived together for sixteen years, supporting one another both financially and emotionally and that both considered the relationship to be a permanent one. The High Court found on the facts that Mr. Shandling and Mrs. Robinson had entered into a permanent and intimate life partnership. [] In deciding whether this finding is correct, we consider the following factors to be determinative in this case: the length of the period of cohabitation

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which was sixteen years, the fact that Mr. Shandling paid Mrs. Robinson an allowance to cover household expenses and was generally responsible for the payment of all the costs of running the household, the fact that Mr. Shandling had declared Mrs. Robinson to be his dependant for the purposes of medical aid, the undisputed close and intimate relationship between them, and the fact that Mrs. Robinson nursed Mr. Shandling through bouts of ill-health. In our view, these facts make it plain that both Mr. Shandling and Mrs. Robinson considered themselves to constitute a permanent life partnership in which they undertook duties of mutual support and care for one another. It is also clear, however, that they chose not to marry. We must assume that it was Mr. Shandling who chose not to marry as Mrs. Robinson says that she was at all times willing to be married. We cannot ascertain Mr. Shandling’s reasons for not marrying from the affidavits before us. In our view, however, the fact that they did not marry does not mean that they had not established a permanent life partnership. Section () of our Constitution prohibits discrimination on the grounds of marital status. It provides: 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, color, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.

[] The law has tended to privilege those families that are founded on marriages recognized by the common law. Historically, marriages solemnized according to the principles of African customary law were not afforded recognition equal to the recognition afforded to common law marriages, though this has begun to change. Similarly, marriages solemnized in accordance with the principles of Islam or Hinduism were also not recognized as lawful marriages though this too is now altering. The prohibition of discrimination on the ground of marital status was adopted in the light of our history in which only certain marriages were recognized as deserving of legal regulation and protection. It is thus a constitutional prescript that families that are established outside of civilly recognized marriages should not be subjected to unfair discrimination. [] Where relationships that are socially and functionally similar to marriage are not regulated in the same way as marriage, discrimination on the grounds of marital status will arise. In this case, we have concluded that the cohabitation relationship of Mrs. Robinson and Mr. Shandling was a relationship that constituted a permanent life partnership in which the parties had undertaken mutually to support one another, both financially and otherwise. We concluded, therefore, that their relationship was socially and functionally similar to marriage. To the extent that the law regulates its consequences differently from that of marriage, the law will be prima facie discriminatory. The question that then arises is whether that discrimi-

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nation is unfair. In each case where it is shown that a relationship that is socially and functionally similar to marriage is treated differently from marriage, a careful contextual analysis will be necessary to determine whether the discrimination is indeed unfair. [] It will be helpful to start by considering the legal rules governing marriage. Before we do so, however, it is important to note that the rules governing marriage both under common law and under African customary law have been the subject of intense debate in the last few decades. The focus of that debate has been a realization that many of the rules of marriage in both systems were discriminatory on the grounds of gender and sex. Some of the rules were expressly and obviously discriminatory, such as the rule of common law which provided that a woman married in community of property had limited contractual capacity and that her husband, the bearer of the marital power, was entitled to manage their common estate on his own without referring to her at all. Or the rule of customary law which provided that women may ordinarily not inherit property. [] Other rules regulating marriage were discriminatory against women, not expressly, but in effect. In particular these rules often failed to acknowledge the division of labor within the household, in terms of which women bore primary and often sole responsibility for the maintenance of the household and caring for children and elderly members of the family. The responsibilities so often borne by women across all South African communities, whether wealthy or poor, and regardless of color, meant that women were less likely to be able to participate in the labor market as successfully as men. (Indeed practices in the labor market as well were often discriminatory, further hampering women’s ability to participate.) The effect of the unequal division of labor in the household, and discriminatory practices in the labor market, meant that at the termination of a marriage, whether by death or divorce, women were often more materially vulnerable than men. This was caused by the fact that during the marriage women were often less able than men to accumulate property, and were also less able to compete in the labor market. [] The legislature has sought to remedy this inequality over the last twenty years with a range of legislative enactments governing the regulation of matrimonial property both during the subsistence of the marriage and upon its termination, as well as provisions extending the duty of support that arises on marriage to after the death of one of the spouses (the provision in question in this case), and seeking to improve the procedures whereby the duty of support may be enforced. This brief account of recent developments in the law of marriage makes it plain that marriage itself is an institution that is legally evolving. That evolution reflects and responds to changes in the broader community. The discussion of the rights of marriage that follows is based largely, but not exclusively, on the current common law rules regulating marriage. [] One of the most important invariable consequences of marriage is the reciprocal duty of support. It is an integral part of the marriage contract and has

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immense value not only to the partners themselves but to their families and also to the broader community. The duty of support gives rise to the special rule that spouses, even those married out of community of property, can bind one another to third parties in relation to the provision of household necessaries which include food, clothing, and medical and dental services. The law sees the spouses as life partners and jointly and severally responsible for the maintenance of their common home. This obligation may not be excluded by antenuptial contract. [] Another invariable legal consequence of the marriage is the right of both parties to occupy the joint matrimonial home. This obligation is clearly based on the premise that spouses will live together. The party who owns the home may not exclude or evict the other party from the home. Limited exceptions to this rule have been created under the Domestic Violence Act. [] The way in which the marriage affects the property regime of the parties to the marriage is variable at common law. The ordinary common law regime is one of community of property including profit and loss in terms of which the parties to a marriage share one joint estate, which they manage jointly. Historically, of course, our common law provided that the power to manage the estate (“the marital power”) vested in the husband. This rule was altered by statutory intervention in . Major transactions affecting the joint estate must now be carried out with the concurrence of both parties. [] Marriage also produces certain invariable consequences in relation to children. Children born during a marriage are presumed to be children of the father. Both parents have an ineluctable duty to support their children (and children have a reciprocal duty to support their parents). The duty to support children arises whether the children are born of parents who are married or not. [] Because of the social importance of marriage in our community, the law also attaches a range of other consequences to marriage—for example, insolvency law provides that where one spouse is sequestrated, the estate of the other spouse also vests in the master in certain circumstances, the law of evidence creates certain rules relating to evidence by spouses against or for one another, and the law of delict recognizes damages claims based on the duty of support. The rules that govern marriage have developed over a long period of time. More recently, as pointed out in the judgment of Justice Sachs, acts of Parliament which attach benefits to marriage, also confer them upon cohabitants who are not married, variously referred to in legislation as “life partners,” “partners,” and “cohabitants.” [] It has become apparent that more and more people in South Africa live together without being married. In the  Census, . million people described themselves as “living together like married partners” although they were not married. This constitutes approximately  percent of the adult population. However, although cohabitating partners have received some piecemeal attention by Parliament over the last ten years, no comprehensive legislative regulation of the consequences of cohabitation has yet taken place. The South African Law Reform Commission,

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however, has been engaged in researching the matter and has prepared a comprehensive discussion paper on it. [] Of course, the circumstances of cohabitants can vary significantly. Some may be living together with no intention of permanence at all, others may be living together because there is a legal or religious bar to their marriage, others may be living together on the firm and joint understanding that they do not wish their relationship to attract legal consequences, and still others may be living together with the firm and shared intention of being permanent life partners. Moreover, one cohabiting relationship may change its joint character and purpose so that partners who may originally not intend to be living together as permanent life partners may over time alter that intention and intend to live together as permanent life partners. [] Some cohabitation relationships, such as that between Mrs. Robinson and Mr. Shandling, play a role very similar to marriage in our society. However, because they are not formally celebrated in a manner that is capable of easy proof or ascertainment, attaching legal consequences automatically to such relationships may be less practicable. To resolve this problem some societies have provided for the registration of cohabitation relationships in a manner similar to marriage. [] There are thus differences between marriage and cohabitation even where cohabitation plays a similar social function to marriage. These differences mean that the mere fact that the law regulates marriage relationships differently from cohabitation relationships does not mean that the law, to the extent that it discriminates on the grounds of marital status, will constitute unfair discrimination. To determine whether the law does constitute unfair discrimination requires us to follow the approach to unfairness established by this court in a series of cases. Three things need to be considered: (a) the position of complainants in society and whether they have previously suffered from patterns of disadvantage; (b) the nature of the provision and the purpose sought to be achieved by it; and (c) the extent to which the discrimination has affected the rights or interests of the complainants and whether it has led to an impairment of their fundamental human dignity or has caused them some other harm of a comparably serious nature. [] Although discrimination against cohabiting partners has not been equal to the discrimination relating to race and gender, cohabiting partners have been excluded from legal recognition as we have described above. Moreover, cohabiting partners have been and still are the subject of stigma and disapproval in our community, though this stigma is on the wane in some sectors of our society. A further important factor in this case is that the group of cohabiting partners under consideration are those who, upon the death of their partner, are unable to provide for

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their own reasonable maintenance needs from their own resources. We are, by definition therefore, concerned with survivors of a cohabitation relationship in financial need. We conclude for these reasons that the cohabiting partners under consideration in this case are a vulnerable group. We turn now to consider the circumstances of cohabiting partners under our law at present. [] At present our law makes no express provision for the regulation of the affairs of cohabiting partners upon termination of their relationship. In several other jurisdictions, the law of implied or constructive trusts has been used to re-allocate property rights between partners at the termination of a cohabitation relationship to achieve equity. This remedy is not available in our law, given the different legal basis of the law of trusts in South African law. However, the common law rules governing universal partnership may in some circumstances assist the partners at termination. A universal partnership is a contract in which the parties agree to put in common all their property, both that which they presently own and that which they are to acquire in the future. In Ally v. Dinath [ () SA  (T)], the court held that a universal partnership like other contracts could be tacitly concluded. Establishing that a contract has been concluded tacitly is of course not straightforward. [] Another legal remedy that may be available to assist a cohabiting partner on the termination of the relationship arises from the law governing unjustified enrichment. One partner may be able to show that the other partner has been enriched during the existence of the relationship by tangible improvements made to the property of the one partner by the other. It might even be that the enrichment action could be developed to accommodate other forms of contributions made by partners to one another during the subsistence of their relationship. However, the law has not yet developed in this direction. The scope of the law of unjustified enrichment need not be further considered. [] Accordingly, at present, there are only a few common law rules which may have the potential to regulate the rights of parties upon the termination of a cohabitation relationship, no matter how longstanding that relationship. [] These remedies do not as presently recognized provide a comprehensive, certain, and coherent set of principles to protect cohabitants. Moreover, there are no express statutory provisions at all to regulate the affairs of cohabitants upon termination of their relationship by the death of one party. Accordingly, at termination by the death of one of the parties, the surviving partner is left without effective legal recourse, unless she or he can formulate a claim based on the principles of the common law described above. This situation arises, despite the fact that it is clear that the relationship of cohabitation was one in which the parties had undertaken mutual duties of support and one in which patterns of vulnerability and dependence had been established, such that the death of one party may put the other in great difficulty. [] There is a significant difference, therefore, between the way in which the law regulates the rights of spouses who survive a marriage, and the manner in which it regulates the rights of partners who survive a cohabitation relationship. There can

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be no doubt that there is a range of ways in which the rights of partners surviving cohabitation relationships could be regulated. There are many different examples to be found in other legal systems. In particular, the legislature may be minded to regulate different forms of cohabitation differently. For example, it may conclude that registered cohabitation relationships will be more comprehensively regulated than other forms of cohabitation. The various possibilities are canvassed extensively in the Law Reform Commission report referred to earlier. It is unnecessary and premature in our view to consider the full range of forms of regulation that may be considered by the legislature and to consider their constitutionality for as yet there is no statutory regulation. [] From the foregoing it becomes plain that cohabiting partners are a vulnerable group, and that in the absence of any other forms of legal regulation, the fact that they are excluded from the provisions of section () can have a grave impact on the interests of cohabiting partners. That impact will be particularly grave where the partnership is a permanent life partnership in which partners have undertaken reciprocal duties of support, where the surviving partner is in need, and there has been no equitable distribution to the surviving partner from the estate of the deceased partner. It is our conclusion that, in the absence of any regulation in such circumstances, the effect of limiting the scope of section () to married spouses only will constitute unfair discrimination within the meaning of section () of the Constitution. [] The unfairness of the discrimination in this case lies not primarily in the fact that cohabiting partners are not afforded equivalent rights to marriage as stipulated in section () of the Act, but in the fact that neither section () nor any other legal rule regulates the rights of surviving partners to cohabitation relationships which were socially and functionally similar to marriage, when those relationships are terminated by death and where that surviving partner is in financial need. In our view, given that section () of the Act and other legal provisions extensively regulate the rights of spouses in the event of the termination of a marriage by death, but there are no statutory provisions at all regulating the rights of cohabitants upon the termination of their relationships by death, the law discriminates against surviving partners of cohabitation relationships who are in financial need. [] We have concluded that the discrimination is unfair. The next question that arises is whether that unfair discrimination can be said to be reasonable and justifiable within the contemplation of section  of the Constitution. The purpose of the legislation is to alter the common law rules governing marriage to protect the surviving spouse from penury upon the death of the other spouse. In our view, this is an important purpose. However, that purpose can be achieved without excluding surviving partners of cohabitation relationships in which duties of support had been mutually undertaken, whether tacitly or expressly, and where those surviving partners are in financial need, from similar protection. It is not clear why marriage only need be protected. The need to provide protection to such surviving partners is all the more acute in the light of the prevailing common law principle that provides that

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such partners would not be able to enter into legally enforceable contractual obligations to support one another after the termination of their partnership by the death of one of them. The law prohibits contracts between individuals who seek to regulate their affairs or relationships posthumously. To the extent that the purpose of providing legal protection to a surviving spouse but not to a surviving cohabitant might be to preserve the religious attributes of marriage, this cannot be an acceptable purpose in terms of our Constitution. While marriage plays an important role in our society, and most religions cherish it, the Constitution does not permit rights to be limited solely to advance a particular religious perspective. We conclude therefore that the unfair discrimination is not justifiable within the terms of section .

Remedy [] It is necessary to consider the appropriate remedy. Section ()(a) of the Constitution requires a court when deciding a constitutional matter to declare any law or conduct that is inconsistent with the Constitution to be invalid to the extent of its inconsistency. Section ()(b) also permits a court to make an order that is just and equitable. The difficulty we face in this case is that, for the reasons given earlier in this judgment, the discrimination we have found may be cured by the legislature in a variety of ways and that those ways need not be identical to the manner in which marriages are currently regulated. To cure the unfairness of the discrimination identified in this case the legislature should make provision to ensure that on the termination of a longstanding cohabitation relationship by death, an equitable arrangement is reached in relation to the financial position of the survivor so that the dependence or vulnerability of the survivor which has arisen through the relationship of cohabitation is appropriately redressed. This equitable arrangement could be achieved, either by an equitable distribution of the property of the cohabitants, or by rules relating to maintenance. The legislature is in the best position to determine the precise nature of that regulation. We accordingly consider that the order of constitutional invalidity should be suspended to give the legislature an opportunity to cure the constitutional defect. [] All this may be so, yet section () nevertheless obliges us to capture the scope of the unconstitutionality as precisely as we can. It may be that if the context were to change, what would constitute “unfair discrimination” may also change. We are, however, constitutionally obliged to formulate an order of invalidity as precisely as we can in the light of the circumstances that currently obtain. If the legislature were not to take steps to cure the defect within the time stipulated and also not seek an extension of the suspension of the order, the order of invalidity would come into effect. It is important for this reason too that the scope of the unconstitutionality be as carefully drawn as possible. [] In the light of the reasoning on the merits above, we consider that the unconstitutionality in section () lies in the definition given to “spouse” in section  of the Act. In our view, were that definition to be read to include “and includes the surviving

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partner of a permanent heterosexual life partnership terminated by the death of one partner in which the partners undertook reciprocal duties of support and in circumstances where the surviving partner has not received an equitable share in the deceased partner’s estate,” the unconstitutionality would be cured. It should be emphasized that, were this order to come into operation, a partner would only be able to claim maintenance in the circumstances contemplated by section (). The surviving partner would have to show that he or she was not able to provide for his or her reasonable maintenance needs from his or her own means and earnings. [] It should be noted that this definition limits the scope of the relief to a narrow class of cohabitation relationships only—those that are permanent heterosexual life partnerships in which the parties have undertaken reciprocal duties of support. It was argued by the respondents and the amicus in this court that basing the relief only on parties who have expressly or tacitly undertaken duties of support, which was also the approach adopted by this court in the Satchwell case, was not correct because family law should not be governed by contractual principles and the common law should instead be developed to give rise to an automatic legal duty of support between the parties to permanent life partnerships. The difficulty with this submission is that the development of the common law as proposed by the amicus was not relief sought in this litigation. The relief sought in this case was a declaration of constitutional invalidity in respect of section () of the act. Developing the common law as proposed by the amicus is quite different relief which it would be inappropriate to grant on appeal, in circumstances where it is has not been considered by any other court. Accordingly, the submission made by the amicus must fail. [] In our view, the proposed order identifies the relationships which perform most closely a similar social function to marriage and the relief should not extend beyond them, though of course it is open to the Legislature to regulate other cohabitation relationships. Moreover, we limit the relief to circumstances in which a partner in such a relationship has not been afforded any equitable distribution from his or her partner’s estate. We do this because we consider that even where a life partnership performs a similar social function to marriage, it is not constitutionally necessary for the legislature to regulate that partnership in the same way as it regulates a marriage. The key issue for the Constitution is to ensure that some provision is made equitably to regulate the circumstances of a cohabiting partner upon the death of the other partner. In the circumstances of this matter, it is prudent to leave the legislature as free as constitutionally possible to determine the appropriate form of regulation. JUSTICE SACHS

Introduction [] This case raises complex social and legal questions about the interaction between freedom of choice and equality in intimate relationships.

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[] The problem does not lie in defining the technical legal question to be answered: does the fact that the Constitution prohibits unfair discrimination on the ground of marital status, mean that the exclusion of the survivor of a committed, permanent and intimate life partner from the benefits of the Maintenance of Surviving Spouses Act [Act  of ] (the Act) amounts to unfair discrimination against her? [] Similarly, it is not difficult to illustrate the practical issues involved: to take a not unusual situation, should a person who has shared her home and life with her deceased partner, borne and raised children with him, cared for him in health and in sickness, and dedicated her life to support the family they created together, be treated as a legal stranger to his estate, with no claim for subsistence because they were never married? Should marriage be the exclusive touchstone of a survivor’s legal entitlement as against the rights of legatees and heirs? [] The source of the complexity appears to lie elsewhere. In my view this is one of those cases in which however forceful the reasoned text might be, it is the largely unstated subtext, which will be determinative of the outcome. The formal legal issue before us is embedded in an elusive, evolving and resilient matrix made up of varied historical, social, moral and cultural ingredients. At times these emerge and enter explicitly into the legal discourse. More often they exercise a subterranean influence, all the more powerful for being submerged in deep and largely unarticulated philosophical positions. [] I find myself in disagreement with the judgment both as to the approach utilized and to the conclusion reached, and totally so. This is not because I would challenge the legal logic used, which appears to be impeccable within the framework adopted. It is because I would locate the issue in a completely different legal landscape. I do not accept that it is appropriate to examine the entitlements of the surviving cohabitant in the context of what the common law would provide during the lifetime of the parties. To do so is to employ a process of definitional reasoning which presupposes and eliminates the very issue which needs to be determined, namely, whether for the limited socially remedial purposes intended to be served by the Act, unmarried survivors could have a legally cognizable interest which founds a constitutional right to equal benefit of the law. [] In my view, the question of the fairness of excluding such survivors from such benefits falls to be assessed not in the narrow confines of the rules established by matrimonial law, but rather within the broader and more situation-sensitive framework of the principles of family law, principles that are evolving rapidly in our new constitutional era. By its very nature, the quality of fairness, like that of mercy and justice, is not strained. The enquiry as to what is fair in our new constitutional democracy accordingly does not pass easily through the eye of the needle of black-letter law. Judicial dispassion does not exclude judicial compassion; the question of fairness must be rigorously dealt with, but in a people-centered and not a rule-centered way. [] The issues raised are novel. A wide range of jurisprudential perspectives are implicated. Because I differ fundamentally with the majority with regard to the point

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of departure and the context of the enquiry I have found it necessary to set out my views at some length. The first part of this judgment seeks to delineate and establish the jurisprudential setting in which I believe the issues should be located. The second part sets out my reasons for holding that the Act does in fact discriminate unfairly against survivors of committed life partnerships.

Part One: Establishing the Legal Landscape T HE P HILOSOPHICAL C ONTEXT: F REEDOM OF C HOICE AND E QUALITY [] Respect for human autonomy undoubtedly implies that the law must honor the choices that people make, including the decision whether or not to marry. A central argument advanced in the appellant’s written submissions, and, I believe, the philosophical premise underlying the majority judgment (as well as the basis for the judgment of Justice Ngcobo, which I have had the opportunity to read) is as follows: By opting not to marry, thereby not accepting the legal responsibilities and entitlements that go with marriage, a person cannot complain if she is denied the legal benefits she would have had if she had married. Having chosen cohabitation rather than marriage, she must bear the consequences. Just as the choice to marry is one of life’s defining moments, so, it is contended, the choice not to marry must be a determinative feature of one’s life. These are powerful considerations. Sinclair indicates her respect for such an argument, which implies that freedom of choice demands that cohabitation be preserved as an alternative to marriage and not simply become a different type of marriage. She goes on, however, to negate this contention. On the premise that two people set up a home together, live in a stable, permanent, affective relationship that emulates marriage, and intend to deal fairly with one another, the law’s objective, she states, should be to achieve equity between the parties. This, she adds, should be accomplished both during the currency of the partnership and after the death of one of the partners. [] In my view this balanced, flexible, and nuanced approach accords well with the multifaceted character of our new constitutional order. Respecting autonomy means giving legal credence not only to a decision to marry but to choices that people make about alternative lifestyles. Such choices may be freely undertaken, either expressly or tacitly. Alternatively, they might be imposed by the unwillingness of one of the parties to marry the other. Yet if the resulting relationships involve clearly acknowledged commitments to provide mutual support and to promote respect for stable family life, then the law should not be astute to penalize or ignore them because they are unconventional. It should certainly not refuse them recognition because of any moral prejudice, whether open or unconscious, against them. [] The jurisprudential importance of context in deciding whether a distinction between married and unmarried persons can fairly be made, has also been underlined by this court. In Fraser [v. Children’s Court, Pretoria North, and Others  () SA  (CC)], which dealt with a provision that excluded unmarried fathers from the

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category of persons whose consent had to be sought for adoption, Deputy President Mohamed stated: In the context of certain laws there would often be some historical and logical justification for discriminating between married and unmarried persons and the protection of the institution of marriage is a legitimate area for the law to concern itself with. But in the context of an adoption statute where the real concern of the law is whether an order for the adoption of the child is justified, a right to veto the adoption based on the marital status of the parent could lead to very unfair anomalies. It is . . . evident that not all unmarried fathers are indifferent to the welfare of their children and that in modern society stable relationships between unmarried parents are no longer exceptional. (My emphasis.)

[] By analogy, I believe that a decontextualized approach to the status of unmarried survivors of intimate life partnerships inevitably leads to very unfair anomalies. The survivor of an empty shell marriage will have a claim while the survivor of a caring and committed life partnership that produced a real family, would be left destitute. T HE S OCIO - LEGAL C ONTEXT: PATRIARCHY AND P OVERTY [] In Fraser this court stressed the need for a nuanced and balanced consideration of our society in which the demographic picture will often be quite different from that on which “first world” western societies are premised. As Deputy President Mohamed pointed out: “The socio-economic and historical factors which give rise to gender inequality in South Africa are not always the same as those in many of the ‘first-world’ countries described.” [] This court has on numerous occasions stressed the importance of recognizing patterns of systematic disadvantage in our society when endeavoring to achieve substantive and not just formal equality. The need to take account of this context is as important in the area of gender as it is in connection with race, and it is frequently more difficult to do so because of its hidden nature. For all the subtle masks that racism may don, it can usually be exposed more easily than sexism and patriarchy, which are so ancient, all-pervasive, and incorporated into the practices of daily life as to appear socially and culturally normal and legally invisible. The constitutional quest for the achievement of substantive equality therefore requires that patterns of gender inequality reinforced by the law be not viewed simply as part of an unfortunate yet legally neutral background. They are intrinsic, not extraneous, to the interpretive enquiry. [] It should be remembered that many of the permanent life partnerships dissolved by death today would have been established in past decades, when conditions were even harsher than they are now, and people had far less choice concerning

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their life circumstances. Thus, in respect of most of the significant transactions potentially affecting present-day claims for maintenance, the social reality would have been that in a considerable number of families the man would have regarded himself as the head of the household with the right to take all major decisions concerning the family. It would have been he who effectively decided whether he and his partner should register their relationship in terms of the law. If she refused to do what he wanted, he could have been the one to threaten violence or expulsion, with little chance of the law intervening. Because he would in many cases have been the party to go out to work while she stayed at home to look after the children and attend to his needs, it would have been he who accumulated assets, and he who had the proprietary right to determine how they were to be disposed of after his death. [] It should be remembered too that the migrant labor system had a profoundly negative effect on family life. An essential ingredient of segregation and apartheid, it involved the deliberate and targeted destruction of settled and sustainable African family life in rural areas so as to provide a flow of cheap labor to the mines and the towns. The chaotic, unstable, and oppressive legal universe in which the majority of the population were as a consequence compelled by law and policy to live had a severe impact on the way many families were constituted and functioned. Repeal of the racist laws which sustained the system, and entry into the new constitutional era, opened the way to fuller lives for those whose dignity had been assailed, and gave them renewed opportunity to take responsibility for their lives. Yet it did not in itself correct the imbalances inside the family or eliminate the desperate poverty that is still so prevalent. [] Sinclair states that because there is exiguous welfare to protect the victims of breakdown of intimate relationships, neither public law nor private law on its own is adequate, and a combination of responses from both is called for. Dealing specifically with the failure of the state to provide protection for the vulnerable parties in cohabiting families, she concludes: [T]here are no easy solutions to the problem of poverty. Both intervention to regulate and refraining from doing so manifest choices made by the state about the plight of its people. Not intervening, in the context of cohabitation, manifests a choice to allow substantial suffering to continue unalleviated. Far from a liberal, enlightened stance, this choice would permit the strong to remain strong and the weak and vulnerable to be removed from the consciousness of the law in the name of respect for individual autonomy.

T HE H ISTORICAL AND J URISPRUDENTIAL C ONTEXT: F ROM M ATRIMONIAL L AW TO FAMILY L AW [] In a case like the present it is vital to draw a distinction between matrimonial law and family law. The difference between the two is helpfully analyzed in a discussion paper recently issued on the question of domestic partnerships by the South

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African Law Reform Commission (the SALRC paper). The SALRC paper points out that many of the features of marriage which are assumed to have been present from time immemorial are actually of more recent origin. What is clear, however, is that marriage in its many forms has enjoyed a uniquely privileged status, while domestic partnerships have been virtually unrecognized. The SALRC paper observes that opposite-sex partners were a largely invisible group as far as the legal system was concerned: any acknowledgment of their existence tended to be characterized by scathing references to their attempts to “masquerade as husband and wife.” They were excluded from the rights and obligations which attached automatically to marriage, and it was not even clear whether any agreements which they entered into in order to create parallel rights and obligations, were legally enforceable. [] The SALRC paper notes that over the years, however, there has been an increasing focus on the rights of opposite and same-sex partners, and domestic partnerships have come to be perceived as functionally if not formally similar to marriage. It observes that the increased recognition of intimate relationships outside of marriage started in South African law with the imposition of support obligations created in domestic partnership agreements and continued with the use of principles of unjust enrichment to provide property rights and to extend statutorily defined benefits similar to partnerships. [] The SALRC paper concludes that legal regulation is needed since the existing law contains inadequate mechanisms to address disputes arising from cohabitation relationships. The significant numbers involved mean that the Napoleonic adage that “cohabitants ignore the law and the law ignores them” is no longer acceptable. Where a domestic partnership has created responsibilities for, and expectations of, the parties, the law should play a role in enforcing the responsibilities and realizing the expectations of the parties that are in conflict. Academic opinion also strongly favors recognition by the law of domestic partnerships. Thus Goldblatt states that families need to be understood in terms of the functions that they perform rather than in terms of traditional categories. If we move away from defining relationships in terms of marriage, we can look at the actual functions that they perform in society. [. . .] [] The new way of looking at family law represents an emphatic shift from what the SALRC paper refers to as a definitional approach to conjugal rights and responsibilities, towards a functional one. (I believe that it is this shift that lies at the center of my divergence from the majority judgment). According to the definitional argument, only those who comply with the current definition of marriage are entitled to the rights and obligations attached to marriage, and only a legally valid marriage can create a family worthy of legal protection. The SALRC paper offers its own reply. Against this argument, it states, one may put what has been referred to as the functional response, which emanates from the argument that marriage changes over time and that the time has come for marriage to be redefined.

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[] The SALRC paper suggests that conditions in South Africa today require a shift from a purely definitional approach to marriage to a functional approach to the family [b]ecause the exclusive nature of the common-law definition of marriage does not reflect social reality, [and it has thus] become necessary under certain legislation to adopt a functional approach to defining family status, with the result that couples who do not fit the traditional family model may be deemed spouse of one another.

According to the SALRC paper, the South African courts (and the legislator) should determine whether or not to extend common law and other legal protections to family members on this basis. It asserts furthermore that such an approach will lead to greater fairness, will bring law in line with reality and is more likely to harmonize the law with the values underlying the Constitution. T HE L EGISLATIVE C ONTEXT [] Recent legislation has given extensive, if ad hoc, recognition to conjugal relationships outside of marriage. The acknowledgment of domestic partnerships can be traced in the preconstitutional era to the Insolvency Act of . It is noteworthy that the Constitution itself accepted this type of family unit by providing that a detained person, including a sentenced prisoner, has the right to communicate with, and be visited by, that person’s spouse or partner. Since  a flurry of statutes has recognized domestic partnerships. These include the Medical Schemes Act of , the Prevention of Domestic Violence Act of , the Housing Act of , the Compensation for Occupational Injuries and Diseases Act of , and the Basic Conditions of Employment Act of . [] The fact that many if not all statutes adopted in recent times dealing with the rights of conjugal partners expressly include nonmarried partners within their ambit, is indicative of a new legislative approach consistent with new values, and as the SALRC paper suggests, with the spirit, purport, and object of the Constitution. [] The increased legislative recognition being given to cohabitation suggests that cohabitation has achieved a particular status of its own. This status gives it something of a marriage-like character, without equating it for all purposes to marriage. Unlike marriage, the legal response to cohabitation is not dictated by general laws. In practice it will depend upon the qualitative and quantitative nature of the cohabitation and the particular legal purpose for which it is being claimed, or denied, that a couple is cohabiting. A distinction will usually be drawn, for example, between short-term and long-term cohabitation, between the casual affair and the stable relationship, between relationships that have resulted in the birth of children and those that have not, and between couples who live together and couples who do

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not. Marriage law in this respect is different: you are either married with all the legal consequences that follow, or you are not. Your life circumstances are irrelevant. The consequences are to that extent invariable. By way of contrast, Parry observes it is not perhaps surprising that the legal response to relationships outside marriage has been as variable as the relationships themselves. [] Finally, government policy is clearly committed towards dealing with families in functional rather than definitional terms. Thus the Department of Population and Welfare Development defines family as follows: Family: Individuals who either by contract or agreement choose to live together intimately and function as a unit in a social and economic system. The family is the primary social unit which ideally provides care, nurturing and socialization for its members. It seeks to provide them with physical, economic, emotional, social, cultural and spiritual security.

C ONCLUSION [] The SALRC paper, the thrust of legislation and academic opinion all point in the same direction. It is towards establishing a new legal landscape consistent with the values of diversity, tolerance of difference and the concern for human dignity expressed in the Constitution. The emphasis shifts from locating conjugal rights and responsibilities exclusively within the tight framework of formalized marriages, towards embracing a wider canvass of rights and responsibilities so as to include all marriage-like, intimate, and permanent family relationships. The problem at the heart of this case is that although the law has advanced rapidly in granting recognition to cohabitants in relation to public life and in respect of third parties, it has done little, if anything, to regulate relationships amongst themselves.

Part Two: Framing and Resolving the Legal Question T HE O RIGIN AND P URPOSE OF THE A CT [] It is in the above context that I turn to the question of whether the exclusion of nonmarried members of intimate life partnerships from the benefits of the Act constitutes unfair discrimination against them. It is convenient to begin the enquiry by examining the circumstances in which the Act was passed. Its genesis explains its object, which was to overcome a perceived source of injustice stemming from limitations of the common law. [] It is convenient to set out once again the provisions of section () of the Act. They read: If a marriage is dissolved by death after the commencement of this Act the survivor shall have a claim against the estate of the deceased spouse for the provision of his reasonable maintenance needs until his death or remarriage in so far as he is not able to provide therefor from his own means and earnings.

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In terms of section  of the Act “survivor” is defined as “the surviving spouse in a marriage dissolved by death.” [] In Daniels this court recently observed that although linguistically genderneutral, in substantive terms the Act benefited mainly widows rather than widowers. The court went on to say: The value of nonsexism is foundational to our Constitution and requires a hard look at the reality of the lives that women have been compelled to lead by law and legally backed social practices. This, in turn, necessitates acknowledging the constitutional goal of achieving substantive equality between men and women. The reality has been and still in large measure continues to be that in our patriarchal culture men find it easier than women to receive income and acquire property. (Footnotes omitted.)

The court stressed that the Act be seen as a measure intended primarily to rescue widows from possible penury. I would add that the survivor’s need for maintenance is particularly acute if she finds herself penniless at a time of emotional bereavement accompanied by a dramatic change in life circumstances. To the extent, then, that the widow has a claim against the estate at least for her basic needs to be satisfied, the choice by the deceased not to provide for her by will (or simply the consequences of his failure to make a will) is to be overridden or disregarded. T HE N ATURE OF THE C ONSTITUTIONAL E NQUIRY [] It is against this particular legal background, and within the broad legal landscape delineated in Part One of this judgment, that the question in this matter must be asked: given the manifest remedial purposes of the Act and the constitutional requirement of ensuring equal protection and benefit of the law, must the Act’s ambit be extended to cover survivors of permanent life partnerships that have not been consecrated by marriage? [] In what the SALRC paper referred to as the Calvinistic and conservative atmosphere of the preconstitutional era, the answer to this question would have been simple. People living in extra-marital unions would have been condemned at worst as living in sin, and at best as being irresponsible. They would have been disentitled from claiming any benefit whatsoever under the law. Today, however, we are not bound by the original intent of the legislators. We are living in an open and democratic society in which pluralism and diversity are acknowledged, different forms of family life are tolerated by society and recognized by the law, and the right to equality is listed before any other right in our Constitution. [] The restriction of the benefit to married survivors only, clearly differentiates them from unmarried survivors who share with them the status of bereavement and need after the death of their intimate life partner. All that distinguishes them is their marital status: the one group was married, and the other was not. This court has

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held that once there is differentiation on one of the listed grounds, there is discrimination. The only issue remaining, then, is whether the discrimination is fair. T HE F RAMEWORK OF THE E NQUIRY [] In considering the fairness of the Act it becomes vital to decide what the framework of the enquiry should be. In my view, the very nature of the equality enquiry requires a framework of reference that goes beyond the classificatory landscape established by the impugned measure itself. The larger socio-legal context has already been described. I will now examine the larger constitutional and legal context. In particular, I will give the reasons why I believe that the context for the analysis should be that of family law, and not just that of matrimonial law. [] The point of identifying differentiation on the grounds of marital status is to save from unfair treatment those families that cannot invoke the protections provided by matrimonial law. By implication, the enquiry must shift from the relatively precise, circumscribed, and rule-governed terrain of matrimonial law to the wider and evolving fields of family law. It is important to note that the present case does not involve any attack on the rules and principles of matrimonial law. Indeed, the challenge is not to any malevolence in the Act, but to the limits of its beneficence. [] The issue in the present matter, then, is not whether it is fair for the state to single out married partners for claims of maintenance, as opposed, say, to siblings or parents or life-long friends of the deceased. Nor is it to decide whether widows are entitled to special consideration not accorded to other persons who might be alone, elderly, and in need. It is, first, to examine the specific purpose that the Act is intended to serve in the context of the overall objectives of family law. Then it is to determine whether in substantive terms the committed life partner of the deceased bears the same relationship to the deceased in every respect as a married partner, save for not having gone through the formalities of marriage. Finally, it is to decide if such person in such circumstances can fairly be excluded from that benefit. M ARITAL S TATUS AS A G ROUND OF U NFAIR D ISCRIMINATION [] In considering the question of fairness I do not believe that a mechanical application of the presumption of unfairness provided by section () of the Constitution takes the matter very far. Rather, analysis should begin with identification of the specific kinds of marginalization and exclusion which led to the identification of marital status as a constitutionally outlawed ground of unfair discrimination. [] These would include the directly discriminatory practices of the past, such as penalizing women for being married (e.g. women teachers and civil servants who automatically lost their employment on marriage on the basis that they could not hold down a job and look after their husbands and children at the same time); or penalizing women for not being married (e.g. for bringing disgrace on an institution, neighborhood, building, or workplace by having a child “out of wedlock”); or

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treating married women as losing the autonomy they formerly had as single women, because from marriage onwards they required their husband’s consent for various legal transactions. Alternatively, certain posts, such as ambassadorships, were as a matter of practice reserved for married people only. In addition, there were indirect forms of disadvantage affecting people not living as a married couple. Thus single parents, widows, and widowers could be denied housing, or suffer from tax or social security disadvantages or be refused mortgages because they did not fit the format of the married and male-headed-couple household. [] Two points need to be noted. First, it is women rather than men who in general suffered disadvantage because of their status of being married or not married. Any investigation of unfairness resulting from marital status would accordingly have to take account of the manner in which patriarchy resulted in elements of structured advantage and disadvantage being associated with the status of being and not being married. [] The second is that by the time the Constitution was adopted, legal disabilities associated with being married had been eliminated from the common law. Nevertheless, marital status was expressly identified in section () as one of the grounds of potential discrimination. This would seem to suggest that it was included precisely to protect the rights of people who were vulnerable not because they were married, but because they were not married. It is not easy to see why, if it was not regarded as a prototypical source of unfair discrimination in our society, marital status was itemized in section () in the first place. By implication its inclusion problematizes the vulnerability of the unmarried, and directs constitutional attention to the specific difficulties they face. The obvious classes of people requiring protection against unfair discrimination in this category would be single parents, divorcees, widows, gay, and lesbian couples and cohabitants. [] Once more it will be instructive to look at the manner in which the Canadian Supreme Court has approached the question. In Miron, where the applicants challenged an accident compensation statute on the grounds that it provided for the needs of married dependents only, Justice McLachlin held as follows: Exclusion of unmarried partners from accident benefits available to married partners under the policy violates section () of the Charter. Denial of equal benefit on the basis of marital status is established in this case, and marital status is an analogous ground of discrimination for purposes of section (). First, discrimination on that basis touches the essential dignity and worth of the individual in the same way as other recognized grounds of discrimination violative of fundamental human rights norms. Second, marital status possesses characteristics often associated with recognized grounds of discrimination under section (). Persons involved in an unmarried relationship constitute a historically disadvantaged group, even though the disadvantage has greatly diminished in recent years. A third characteristic

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sometimes associated with analogous grounds, namely distinctions founded on personal, immutable characteristics, is also present, albeit in attenuated form. While in theory, the individual is free to choose whether to marry or not to marry, in practice the reality may be otherwise. Since the essential elements necessary to engage the overarching purpose of section ()— violation of dignity and freedom, an historical group disadvantage, and the danger of stereotypical group-based decision-making—are present, discrimination is made out.

[] South African society has indeed become far more tolerant than it once was towards different ways of creating families, including cohabitation not formalized in marriage. Yet there can be no doubt that many prejudices of the past linger on, particularly against women who are seen as not conducting their lives in a manner befitting their culture or religion. A certain degree of conventional disdain coupled with moral disapproval is still directed at unmarried couples. By the very nature of their unconventional relationship they are regarded as either immoral, irresponsible, or defiant. This will be irrespective of the actual degree of commitment, seriousness, and stability of their family relationships. [] As this court said in Dawood, “[t]he decision to enter into a marriage relationship and to sustain such a relationship is a matter of defining significance for many if not most, people.” I would add that our painful history provides additional reasons why the institution of marriage should receive support. In the predemocratic era the racist policies of the state involved disgraceful use of the law in ways that showed profound disrespect for the marriages of the majority. Thus the migrant labor system, administered under racist laws and enforced by racist courts, deliberately targeted the self-sufficiency and autonomy of rural African families, forcing married men to live in what were called bachelor quarters in the towns. Prohibitions on interracial marriage and the refusal of the law to recognize Hindu and Muslim marriages prevented people from marrying persons of their choice and from receiving recognition of the marriage rites and ceremonies appropriate to their beliefs. A host of laws permitted gross intrusion by police and state officials into the intimate lives of the majority, who as a result were compelled to live in chaotic social and legal circumstances. Special support for marriage today accordingly helps heal the ravages of the past. It promotes social stability and supports dignity by giving state recognition to fundamental choices people make about their lives. [] Formalization of marriages provides for valuable public documentation. The parties are identified, the dates of celebration and dissolution are stipulated, and all the multifarious and socially important steps that the public administration is required to make in connection with children and property, are facilitated. Furthermore, the commitment of the parties to fulfill their responsibilities is solemnly and publicly undertaken. This is particularly important in imposing clear legal duties on the party who is in the stronger position economically. And, since the economi-

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cally advantaged party is usually the man, the result in general terms is that the solemnization of marriage tends to favor gender equality rather than the reverse. [] There can accordingly be no doubt that the institution of marriage is entitled to very special recognition and protection by the law. The issue, however, is not whether marriage should in many respects be privileged. Clearly it has to be. The question is whether it must be exclusive. [] For convenience, I will refer to the principle of restricting claims under the Act to married survivors only, as the “exclusivity principle.” The first constitutional issue, then, is whether the exclusivity principle is compatible with the prohibition of unfair discrimination on the grounds of marital status. If it is held to be unfair, the next matter for decision is whether such unfairness is justifiable under section  of the Constitution. It is not easy to separate the question of fairness from that of justification, since each involves elements of proportionate balancing, and inevitably there will be overlap between them. Nevertheless I will deal with each in turn, on the basis that the focus of fairness is on the impact on the interests of those affected, while the emphasis in the case of justification is on the public interest. T HE FAIRNESS OF L IMITING THE B ENEFITS OF THE A CT TO M ARRIED P ERSONS O NLY [] Any consideration of the fairness of the exclusivity principle must take account of this court’s emphasis on the need to recognize diversity of family formations in South Africa. In the First Certification case [Ex Parte Chairperson of the Constitutional Assembly: In Re Certification of the Constitution of the Republic of South Africa,   () SA  (CC);  () BCLR  (CC)] the court stated that: Families are constituted, function and are dissolved in such a variety of ways, and the possible outcomes of constitutionalizing family rights are so uncertain, that constitution-makers appear frequently to prefer not to regard the right to marry or to pursue family life as a fundamental right that is appropriate for definition in constitutionalized terms.

In Dawood Justice O’Regan said that “families come in many shapes and sizes. The definition of the family also changes as social practices and traditions change. In recognizing the importance of the family, we must take care not to entrench particular forms of family at the expense of other forms.” [] Justice Ackermann made similar statements in National Coalition (), dealing with the rights of same-sex life partners: It is important to emphasize that over the past decades an accelerating process of transformation has taken place in family relationships, as well as in societal and legal concepts regarding the family and what it comprises. Sinclair and Heaton, after alluding to the profound transformations of the legal relationships between

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family members that have taken place in the past, comment as follows on the present: But the current period of rapid change seems to “strike at the most basic assumptions” underlying marriage and the family. Itself a country where considerable political and socio-economic movement has been and is taking place, South Africa occupies a distinctive position in the context of developments in the legal relationship between family members and between the State and the family. Its heterogeneous society is “fissured by differences of language, religion, race, cultural habit, historical experience and self-definition” and, consequently, reflects widely varying expectations about marriage, family life and the position of women in society.

Similarly, Justice Skweyiya in Du Toit [and Another v. Minister of Welfare and Population Development and Others (Lesbian and Gay Equality Project as Amicus Curiae)  () SA  (CC)] emphasized: “[F]amily life as contemplated by the Constitution can be provided in different ways and that legal conceptions of the family and what constitutes family life should change as social practices and traditions change.” [] In each of the above matters there was a specific legal issue that prompted a general observation about the need to adopt a flexible and evolutionary approach to family life. I do not think it is appropriate to cherry-pick statements from the above cases simply on the basis that they appear to be favorable to any particular outcome in the present matter. Though all highlight the importance of the courts not being bound by traditional views of how families should properly be constituted, none deals expressly and directly with the issue of the rights of unmarried heterosexual life partners. Indeed, each case underlines how important its specific social, historical, and legal context is. [] The one unifying theme lurking in the evolving approach to all the different forms of family units being created is that the general purpose of family law is to promote stability, responsibility, and equity in intimate family relations. In this context it is significant that the specific objective of the Act is to furnish a preferred claim to a survivor who is not otherwise provided for and finds herself in need. In the present matter, hardship on its own, even if associated with the status of not being married would not in itself be sufficient to establish unfairness. The Constitution does not seek to take to its bosom and respond to all the inequities to be found in our society. Not every unfairness in life becomes unfairness in law. In order for unfairness in a constitutional sense to be established, there must be a specific link between the survivor’s intimate relationship with the deceased, her state of need, the overall appropriateness in the circumstances of debarring her from being able to claim maintenance, and the resulting impact on her dignity of reinforcing the negative type-casting of her as an unworthy person because she was not married. [] The critical question accordingly must be: is there a familial nexus of such proximity and intensity between the survivor and the deceased as to render it man-

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ifestly unfair to deny her the right to claim maintenance from the estate on the same basis as she would have had if she and the deceased had been married? I believe that there are in fact at least two circumstances in which, applying this test, it would be unfair to exclude permanent, nonmarried life partners from the benefits of the Act. [] The first would be where the parties have freely and seriously committed themselves to a life of interdependence marked by express or tacit undertakings to provide each other with emotional and material support. The unfairness of the exclusion would be particularly evident if the undertakings had been expressed in the form of a legal document. Such a document would satisfy the need to have certainty, at least inasmuch as it establishes a clear commitment to provide mutual support within their respective means and according to their particular needs. Like a marriage certificate, the document would thus both prove the seriousness of the commitment and at the same time satisfy the need for certainty. What should be central, however, is the serious content of the mutual commitment and not the particular form in which it is expressed. Thus the undertaking could be inferred from conduct that clearly established a relationship acknowledging a mutual duty of support. [] Unless the purpose of the Maintenance Act is to stigmatize unmarried life partners as being beyond the pale, I can see little reason in fairness why the responsibility for maintenance should not survive the death of a partner where either by express or by tacit agreement, each has undertaken as part of their relationship to support the other within his or her means. If anything, the element of voluntarism and autonomy is particularly strong in these circumstances. Resistant to acknowledging the need to respect such undertakings are notions in society of “living in sin” and “bohemianism,” reminiscent of stereotypical notions imposed by the intransigent “Calvinist and conservative” public morality of yesteryear. Whether consciously expressed or unconsciously held, these are inappropriate for an open and democratic society that acknowledges diversity of lifestyle and bases itself on respect for human dignity, equality, and freedom. [] Secondly, I am of the view that responsibility for maintenance can arise not only from express or tacit agreement but directly from the nature of the particular life partnership itself. The critical factor will be whether the relationship was such as to produce dependency for the party who, in material terms at least, was the weaker and more vulnerable one (and who, in all probability, would have been unable to insist that the deceased enter into formal marriage). The reciprocity would be based on care and concern rather than on providing equal support in material or financial terms. [] Maintenance by its nature is concerned with survival. Relegation to poverty, coupled with the imputation of having been a lawless interloper in the life of the deceased, severely affronts the dignity of the survivor. The indignity is all the greater where the relationship with the deceased was marked by intense mutuality of concern and freely given reciprocal support. Where legal formulae function in a stereotypical manner that is impertinent to those affected, serious equality issues are engaged. As

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so often happens in cases where prejudice is habitual and mainstream, the hurt to those affected is not even comprehended by those who cause it, and passes unnoticed by members of the mainstream. [] At the same time it is necessary to acknowledge and respond in a sensitive and practical manner to the fact that people have had to accommodate themselves to harsh and diverse life circumstances over which they may have had little control. Many have been obliged to shoulder burdens heavier than any notion of fairness would tolerate. All measures aimed at redistribution of such uneven loads, whether through family law or welfare law, risk being criticized as being calculated to undermine self-reliance. Yet, while over-paternalism can be disempowering and negate the very objective of achieving equality, what has disparagingly been called the concept of judicial tough love can be unduly insensitive to the actual and overwhelming problems people have had to face in life. The knowledge that the law will intervene to provide basic justice will in fact assist such people to overcome a sense of helplessness and fatalism. That, indeed, is why courts intervene to protect fundamental rights. In so doing they enhance rather than undermine dignity and self-respect. [] It follows from the above that the exclusivity principle operates unfairly in at least two broadly defined sets of circumstance, neither of which is so far-fetched, hypothetical, or unusual as to escape the net of constitutional concern. In each case the unfairness operates both directly and indirectly. In direct terms it treats the unmarried claimants in a way that disrespects the actual commitment they have shown to their families through a lifetime of endeavor, while excluding them from being potential beneficiaries under the Act. Furthermore, it tells the world that there is something unworthy and not respectable about them because they had a family without getting married. Indirectly, it impacts on all persons living in permanent intimate life partnerships outside of marriage. It reinforces the stereotype that, irrespective of the actual character of their relationship and the reality of their commitment to each other, they are all irresponsible and unconcerned about the need to live in a good family relationship that is infused with love, concern and mutual support. [] There might well be other circumstances in which it would be unfair to stigmatize a surviving cohabitant as being unworthy of claiming spousal maintenance. The two examples given, however, are sufficient to establish that the Act is invalid for under-inclusivity. I conclude therefore that the blanket nature of the exclusivity principle results in unfair discrimination in conflict with section () of the Constitution. J USTIFIABILITY [] There appear to be two possible arguments based on public interest that could be advanced in favor of justifying retention of the exclusivity principle, in spite of the fact that it operates unfairly. [] The first is connected with problems of proof. The argument is that the absence of a marriage certificate makes it difficult to determine whether the life partnership ever existed or whether it continued until the death of the deceased. There

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are undoubtedly great advantages in terms of certainty that flow from the registration of marriages, and concomitant disadvantages related to difficulties of proof which would result from the proposed recognition for certain purposes of nonformalized cohabitation. [] It needs to be remembered, however, that the claim for maintenance stems from the social regard to be given to commitment, intimacy, interdependency, and stability in the family. In the case of a married survivor these will be presumed to have existed as a matter of law. However brief, unstable, and nonintimate the marriage might have been, the certificate alone would suffice to grant a claim. In the case of the unmarried survivor, on the other hand, the partnership relationship would have to be proved as a matter of fact. [] In my view, then, such difficulties of proof as exist might be of relevance to the remedy that should be crafted. They do not justify the continuation of unfair treatment to manifestly meritorious survivors who find themselves in need after a lifetime of devotion to the family relationship. [] The second and more substantial contention put forward to justify the exclusivity principle is that any departure from it would undermine the institution of marriage, which must be supported at all costs. As this judgment has indicated, the institution of marriage plays a particularly important role in South Africa today and must without doubt be supported by the law. It is not clear to me, however, how marriage is dignified through the imposition of unfairness on those who for one reason or another live their lives outside of it. [] The law would continue to privilege marriage, even if partnerships are given limited recognition. The purpose of family law is to promote stability and fairness in family relationships. Marriage is the most widely recognized and most straightforward way of achieving this. The law recognizes this fact. Mere production of a marriage certificate is sufficient to establish the degree of commitment and seriousness that the Act requires. No proof need be provided of permanency, intimacy, cohabitation, fidelity, or shared lives. The law attributes to marriage all these qualities in irrefutable fashion. It will continue to privilege married survivors. Thus, even if the executors of the estate could show that none of the above qualities existed in fact, the survivor would still be able to lodge a claim for maintenance, simply on the basis that she and the deceased had been married. [] It follows that the continued blanket exclusion of domestic partners from the ambit of the Act, irrespective of the degree of commitment shown to the family by the survivor, cannot be justified. The Act is accordingly invalid to the extent that it excludes unmarried survivors of permanent intimate life partnerships as identified above, from pursuing claims for maintenance.

Part Three: The Remedy [] I find these arguments persuasive. The very factor which gives rise to constitutional concern, namely, the huge variety of nonstandard family relationships in South

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Africa, is the one that makes crafting a remedy in the present matter particularly difficult. Problems of proof arise, and although not insuperable, as the gay and lesbian permanent life partnership cases showed, they pose difficulties. There are problems about de facto polygamy. There are difficulties of overlap and interaction between various statutes, as well as potential impact on the common law. Third parties stand to be affected. It has implications for inheritance law. Above all, we are concerned with sensitive social issues requiring maximum impact from all concerned. They cry out for democratic debate and legislative solution. I believe that over-ambitious judicial prescription could impede comprehensive legislative reform and retard rather than advance the achievement of fairness in this field. [] In these circumstances I believe the best way forward is to follow a nonprescriptive remedial path. I would declare the Act to be unconstitutional to the extent of the inconsistency outlined in this judgment, and suspend the operation of the declaration of invalidity for two years. This would give Parliament a free hand as to how the under-inclusiveness of the Act should best be remedied.

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K v. Minister of Safety and Security  () SA  (CC) CASE SUMMARY

Facts The applicant launched an action seeking damages in delict from the minister of safety and security for the harm she suffered as a result of being raped and assaulted in the early hours of  March . Her assailants were three uniformed and onduty police sergeants. Ms. K had had an argument with a boyfriend with whom she had been out for the evening and was looking for a telephone when she met the police officers at approximately  o’clock in the morning. They offered her a lift home which she accepted. They then took her to a deserted place, where they raped and abandoned her. The three policemen were subsequently convicted of rape and kidnapping, and sentenced to life in prison by the Johannesburg High Court.

Legal History The applicant argued that as the employer of the police officers, the Minister was vicariously liable in delict for their conduct. The High Court held that the actions of the police officers fell outside the course and scope of their employment, and that the minister therefore could not be liable for their conduct. On appeal, the SCA upheld the High Court’s judgment. Ms. K sought leave to appeal to the Constitutional Court.

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Issues Was the minister vicariously liable to pay damages for the actions of the policemen? Decision of the Constitutional Court Justice O’Regan, writing for a unanimous court, held that the minister was liable and upheld the appeal with costs. She discussed the existing common-law principles of vicarious liability and the approach taken to vicarious liability in some other jurisdictions. She concluded that there nevertheless existed a sufficiently close relationship between their employment and the wrongful conduct. Three factors lead to Justice O’Regan’s conclusion. First, the policemen bore a statutory and constitutional duty to prevent crime and protect the members of the public. Secondly, since the applicant accepted an offer of assistance from the policemen in circumstances in which she needed assistance, it was their duty to supply it and it was reasonable of her to accept their offer (as policemen). Thirdly, the wrongful conduct of the policemen coincided with their failure to perform their duties to protect the applicant. Order Justice O’Regan accordingly found that the minister was liable for damages to the applicant for the wrongful conduct of the policemen and referred the matter back to the High Court for the amount of damages to be determined by that court. Comment The court in K found that there was a sufficient basis to find the minister vicariously liable for the kidnapping and rape of Ms. K. Is an award of damages against the state likely to deter members of the police service from committing acts that they already know constitute criminal offences? Or might the judgment provide an incentive to the state to improve training and oversight of police officers? If that is the appropriate goal, isn’t there a more effective remedy than an award of damages? Justice O’Regan emphasizes the need for the public to be able to trust the police. Does the court’s decision, which holds the minister responsible for the behavior of aberrant police officers, enhance public confidence in the police or simply serve as a painful reminder that policemen, like everyone else, are not all angels? JUSTICE O’REGAN

A Constitutional Issue? [] [. . .] The first question that arises is whether the matter raises a constitutional issue. The respondent argues that it does not, at least to the extent that the case concerns the application of the principles of vicarious liability. It relies on this court’s judgment in Phoebus Apollo Aviation CC v. Minister of Safety and Security [ ()

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SA  (CC)]. In that case the appellant had sought to hold the minister of safety and security liable in delict for damages arising from the theft by certain policemen of property of the appellant. It was common cause that the appellant was robbed of a large sum of money by an armed gang. The investigating officer traced the proceeds of the robbery but when he arrived he discovered that the money had already been taken by three dishonest policemen. It was not clear where these three policemen had come by the information concerning the location of the stolen money, but it was clear that they had not been responsible for the investigation of the robbery, nor had they been on duty when they went to recover it, nor had they been in uniform although they had induced the man guarding the money to hand it over because they were policemen. [] The appellant in that case did not argue either that the rules of vicarious liability were in conflict with the Constitution or that they failed to give effect to the spirit, purport and objects of the Bill of Rights. In the light of this and on the facts of the case, the court accordingly concluded that the matter did not raise a constitutional issue and dismissed the appeal. In doing so, Justice Kriegler on behalf of a unanimous court made the following remarks upon which the respondent replied: It is not suggested that in determining the question of vicarious liability the SCA applied any principle which is inconsistent with the Constitution. Nor is there any suggestion that any such principle needs to be adapted or evolved to bring it into harmony with the spirit, purport or objects of the Bill of Rights. On the contrary, counsel for the appellant expressly conceded that the common-law test for vicarious liability, as it stands, is consistent with the Constitution. It has long been accepted that the application of this test to the facts of a particular case is not a question of law but one of fact, pure and simple. The thrust of the argument presented on behalf of the appellant was essentially that though the SCA has set the correct test, it had applied that test incorrectly—which is of course not ordinarily a constitutional issue. This court’s jurisdiction is confined to constitutional matters and issues connected with decisions on constitutional matters. It is not for it to agree or disagree with the manner in which the SCA applied a constitutionally acceptable common-law test to the facts of the present case.

[] In this case, however, both before this court and the Supreme Court of Appeal, counsel for the applicant have contended that if, on a proper application of the ordinary common-law rule of vicarious liability, the state is not liable for the applicant’s damages, then that rule should be developed. In developing the rule, the argument goes, the court should consider the applicant’s constitutional right to freedom and security of the person, and in particular, the right to be free from all forms of violence from either public or private sources as well as her right to dignity, right to privacy, and right to substantive equality. The applicant’s argument was quite

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different, therefore, from the argument leveled in Phoebus Apollo. It is an argument, albeit in the alternative, that the common-law rule of vicarious liability should be developed to render it consistent with the spirit, purport and objects of the Bill of Rights, and in particular to vindicate the applicant’s constitutional rights and provide a remedy to correspond to the respondent’s alleged constitutional duties. I conclude, therefore, that the respondent is not aided by its reliance on the judgment in Phoebus Apollo. [] Our Constitution requires a court, when developing the common law, to promote the spirit, purport and objects of the Constitution. The pervasive normative effect of our Constitution was acknowledged by this court in Carmichele v. Minister of Safety and Security and Another (Centre for Applied Legal Studies Intervening) [ () SA  (CC)] where it held that: Our Constitution is not merely a formal document regulating public power. It also embodies, like the German Constitution, an objective, normative value system. As was stated by the German Federal Constitutional Court: “The jurisprudence of the Federal Constitutional Court is consistently to the effect that the basic right norms contain not only defensive subjective rights for the individual but embody at the same time an objective value system which, as a fundamental constitutional value for all areas of the law, acts as a guiding principle and stimulus for the legislature, executive, and judiciary.” The same is true of our Constitution. 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. (Footnotes omitted.)

In addition to section () of the Constitution, section  of the Bill of Rights makes it plain that the judiciary is bound by the provisions of the Bill of Rights in the performance of its functions. The cumulative effect of these constitutional provisions is to create an expressly normative legal system founded on the norms articulated in our Constitution. [] Section () of the Constitution requires courts, when developing the common law, to promote the spirit, purport and objects of the Bill of Rights. In S v. Thebus and Another [ () SA  (CC)], Justice Moseneke noted that there were at least two instances in which the need to develop the common law under section () of the Constitution could arise. The first would be when a rule of the common law is inconsistent with a constitutional provision. Repugnancy of this kind would compel an adaptation of the common law to resolve the inconsistency. The second possibility arises even when a rule of the common law is not inconsistent with a specific constitutional provision but may fall short of its spirit, purport and objects. Then,

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the common law must be adapted so that it grows in harmony with the “objective normative value system” found in the Constitution.

It is necessary to consider the difficult question of what constitutes “development” of the common law for the purposes of section (). In considering this, we need to bear in mind that the common law develops incrementally through the rules of precedent. The rules of precedent enshrine a fundamental principle of justice: that like cases should be determined alike. From time to time, a common-law rule is changed altogether, or a new rule is introduced, and this clearly constitutes the development of the common law. More commonly, however, courts decide cases within the framework of an existing rule. There are at least two possibilities in such cases: firstly, a court may merely have to apply the rule to a set of facts which it is clear fall within the terms of the rule or existing authority. The rule is then not developed but merely applied to facts bound by the rule. Secondly, however, a court may have to determine whether a new set of facts falls within or beyond the scope of an existing rule. The precise ambit of each rule is therefore clarified in relation to each new set of facts. A court faced with a new set of facts, not on all fours with any set of facts previously adjudicated, must decide whether a common-law rule applies to this new factual situation or not. If it holds that the new set of facts falls within the rule, the ambit of the rule is extended. If it holds that it does not, the ambit of the rule is restricted, not extended. [] The question we should consider is whether one characterizes such cases as development of the common law for the purposes of section (). The overall purpose of section () is to ensure that our common law is infused with the values of the Constitution. It is not only in cases where existing rules are clearly inconsistent with the Constitution that such an infusion is required. The normative influence of the Constitution must be felt throughout the common law. Courts making decisions that involve the incremental development of the rules of the common law in cases where the values of the Constitution are relevant are therefore also bound by the terms of section (). The obligation imposed upon courts by section () of the Constitution is thus extensive, requiring courts to be alert to the normative framework of the Constitution not only when some startling new development of the common law is in issue, but in all cases where the incremental development of the rule is in issue. [] In this case, the applicant argues that the Supreme Court of Appeal’s conclusion that the principles of vicarious liability do not render the respondent liable in this case is inconsistent with the spirit, purport, and objects of the Bill of Rights and that the principles of vicarious liability therefore need to be developed to hold the respondent liable. This argument raises a constitutional issue. The question of the protection of Ms. K’s rights to security of the person, dignity, privacy, and substantive equality are of profound constitutional importance. In addition, it is clear and it was conceded by the respondent that it was part of the three policemen’s work

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to ensure the safety and security of all South Africans and to prevent crime. These obligations arise from the Constitution and are affirmed by the Police Act. In the light of these obligations, the court said in Carmichele: In addressing these obligations in relation to dignity and the freedom and security of the person, few things can be more important to women than freedom from the threat of sexual violence. As it was put by counsel on behalf of the amicus curiae: “Sexual violence and the threat of sexual violence goes to the core of women’s subordination in society. It is the single greatest threat to the selfdetermination of South African women.” ... South Africa also has a duty under international law to prohibit all genderbased discrimination that has the effect or purpose of impairing the enjoyment by women of fundamental rights and freedoms and to take reasonable and appropriate measures to prevent the violation of those rights. The police is one of the primary agencies of the state responsible for the protection of the public in general and women and children in particular against the invasion of their fundamental rights by perpetrators of violent crime.

[] These comments are of equal importance in the present case. I am prepared to accept for the purposes of the discussion at hand that the Supreme Court of Appeal was correct in reasoning that the issue of wrongfulness in delict is not at issue in this case as it was in Carmichele. [] Despite the policy-laden character of vicarious liability, our courts have often asserted, though not without exception, that the common-law principles of vicarious liability are not to be confused with the reasons for them, and that their application remains a matter of fact. If one looks at the principle of vicarious liability through the prism of section () of the Constitution, one realizes that characterizing the application of the common-law principles of vicarious liability as a matter of fact untrammelled by any considerations of law or normative principle cannot be correct. Such an approach appears to be seeking to sterilize the common-law test for vicarious liability and purge it of any normative or social or economic considerations. Given the clear policy basis of the rule as well as the fact that it is a rule developed and applied by the courts themselves, such an approach cannot be sustained under our new constitutional order. This is not to say that there are no circumstances where rules may be applied without consideration of their normative content or social impact. Such circumstances may exist. What is clear, however, is that as a matter of law and social regulation, the principles of vicarious liability are principles that are imbued with social policy and normative content. Their application will always be difficult and will require what may be troublesome lines to be drawn by courts applying them.

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[] Denying that the principles bear such normative implications will only bedevil the exercise by rendering inarticulate premises that in a democracy committed to openness, responsiveness and accountability should be articulated. To this extent, at least, therefore, the principles of vicarious liability and their application needs to be developed to accord more fully with the spirit, purport, and objects of the Constitution. This conclusion, however, should not be misunderstood to mean anything more than that the existing principles of common-law vicarious liability must be understood and applied within the normative framework of our Constitution, and the social and economic purposes which they seek to pursue. Nor does this conclusion mean that an employer will be saddled with damages simply because injuries might be horrendous. Rather, it implies that the courts, bearing in mind the values the Constitution seeks to promote, will decide whether the case before it is of the kind that in principle should render the employer liable. Whether the principles of vicarious liability themselves, as currently applied by the courts, require development beyond an acceptance of the normative character of their provenance and application will be considered later. I turn now to consider the existing principles of vicarious liability.

The Common-Law Principles of Vicarious Liability [] The general principle of vicarious liability holds an employer responsible for the wrongs committed by an employee during the course of employment. The courts have held that as long as the employee is acting “within the course and scope of his or her duty” or is “engaged with the affairs of his master” that the employer will be liable. The principle of vicarious liability is not peculiar to our common law, but is also to be found in customary law rules. It is clear, therefore, that there is a deep-seated sense of justice that is served by the notion that in certain circumstances a person in authority will be held liable to a third party for injuries caused by a person falling under his or her authority. [] Many cases are straightforward. However, difficulties arise when the delict is committed in the course of a deviation from the normal performance of an employee’s duties. The question the courts have to answer is whether the employee is still acting within the course and scope of his or her duty or is still engaged with the affairs of the employer. The difficulty is particularly pronounced where the deviation itself is intentional and even more pronounced where the deviation constitutes an intentional wrong, such as in the present case. [] In Minister of Police v. Rabie, the Appellate Division had to consider a claim for damages arising from the wrongful arrest, detention, and assault of the plaintiff. The member of the police force who had made the arrest was a mechanic, in plain clothes and not on duty at the time. In making the arrest he had acted in pursuance of his own interests. He had, however, identified himself as a policeman to the plaintiff, taken the plaintiff to the police station, filled out a docket and wrongfully charged the plaintiff with attempted housebreaking. The case thus concerned the clear deviation of an employee from the ordinary tasks of his employment. The question was whether

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his employer, the minister of police, was vicariously liable for the damages suffered by the plaintiff. Acting Justice Jansen, for the majority of the court holding the minister liable, formulated a test for determining vicarious liability in such cases, which has since been applied in many cases. He reasoned as follows: It seems clear that an act done by a servant solely for his own interests and purposes, although occasioned by his employment, may fall outside the course or scope of his employment, and that in deciding whether an act by the servant does so fall, some reference is to be made to the servant’s intention (cf. Estate Van der Byl v. Swanepoel  AD  at ). The test is in this regard subjective. On the other hand, if there is nevertheless a sufficiently close link between the servant’s acts for his own interests and purposes and the business of his master, the master may yet be liable. This is an objective test.

[] The approach makes it clear that there are two questions to be asked. The first is whether the wrongful acts were done solely for the purposes of the employee. This question requires a subjective consideration of the employee’s state of mind and is a purely factual question. Even if it is answered in the affirmative, however, the employer may nevertheless be liable vicariously if the second question, an objective one, is answered affirmatively. That question is whether, even though the acts that were done have been done solely for the purpose of the employee, there is nevertheless a sufficiently close link between the employee’s acts for his own interests and the purposes and the business of the employer. This question does not raise purely factual questions, but mixed questions of fact and law. The questions of law it raises relate to what is “sufficiently close” to give rise to vicarious liability. It is in answering this question that a court should consider the need to give effect to the spirit, purport and objects of the Bill of Rights. [] It is instructive to note, however, that the test applied in Rabie although frequently applied, has not always been followed. Indeed, in this case, the Supreme Court of Appeal formulated the test somewhat differently to the Rabie test. It said that the question to be asked is whether the deviation is of such a degree that it can be said the employee is still exercising the functions to which he or she was appointed or still carrying out some instruction of the employer. Variations of the test have proliferated, and have resulted in uncertainty. In my view, this is unsatisfactory. I shall return to the question of what the rule that should govern vicarious liability should be later in the judgment. First, it will be helpful to consider briefly the doctrine of vicarious liability as it has developed in other jurisdictions. [] In the recent House of Lords decision, Lister v. Hesley Hall, the plaintiffs, who had been boarders at a private school for boys, were sexually abused by the warden in charge of the school’s hostel. The school was held vicariously liable for the conduct of the warden even though it was clear that it constituted a gross deviation from his duties. The test established by Lord Steyn, after a careful consideration of the author-

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ities, was whether the torts “were so closely connected with [the warden’s] employment that it would be fair and just to hold the employers vicariously liable” Lord Millett reasoned as follows: The school was responsible for the care and welfare of the boys. It entrusted that responsibility to the warden. He was employed to discharge the school’s responsibility to the boys. For this purpose the school entrusted them to his care. He did not merely take advantage of the opportunity which employment at a residential school gave him. He abused the special position in which the school had placed him to enable it to discharge its own responsibilities, with the result that the assaults were committed by the very employee to whom the school had entrusted the care of the boys. . . . I would hold the school liable.

[] In each of their speeches, the Law Lords held therefore that although the conduct of the warden had been clearly a gross deviation, the conduct itself was sufficiently closely related to the obligations borne by the employer in respect of the children who were abused to render the employer liable. [] This brief review illustrates that the problem of the vicarious liability of employers for sexual assaults committed by employees is one that is faced by legal systems in some other parts of the world. Courts have grappled with the need to identify the circumstances in which employers will be liable for such assaults. It is interesting to note that the approach in the United Kingdom, in terms of which the courts ask whether there is a close link between the wrongful conduct of the employees and the business of the employer or the nature of the employment, is very similar to the test set in Rabie. The approach taken by the Canadian Supreme Court sets a similar objective test to be answered in the light of a range of factors. There can be no doubt that the jurisprudence of these jurisdictions will be of value in considering the development and application of our own rules of vicarious liability.

The Development of the Common Law [] From this comparative review, we can see that the test set in Rabie, with its focus both on the subjective state of mind of the employees and the objective question, whether the deviant conduct is nevertheless sufficiently connected to the employer’s enterprise, is a test very similar to that employed in other jurisdictions. The objective element of the test which relates to the connection between the deviant conduct and the employment, approached with the spirit, purport, and objects of the Constitution in mind, is sufficiently flexible to incorporate not only constitutional norms but other norms as well. It requires a court when applying it to articulate its reasoning for its conclusions as to whether there is a sufficient connection between the wrongful conduct and the employment or not. Thus developed, by the explicit recognition of the normative content of the objective stage of the test, its application should not offend the Bill of Rights or be at odds with our constitutional order.

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[] It is necessary now to apply the test set in Rabie, adapted in the light of the preceding discussion, to the facts of this case. As to the first leg of the test, it is clear that the three policemen did not rape the applicant upon the instructions of the respondent. Nor did they further the respondent’s purposes or obligations when they did so. They were indeed, subjectively viewed, acting in pursuit entirely of their own objectives and not those of their employer. That conclusion is not the end of the matter. [] The next question that arises is whether, albeit that the policemen were pursuing their own purposes when they raped the applicant; their conduct was sufficiently close to their employer’s business to render the respondent liable. In this regard, there are several important facts that point to the closeness of that connection. First, the policemen all bore a statutory and constitutional duty to prevent crime and protect the members of the public. That duty is a duty that also rests on their employer and they were employed by their employer to perform that obligation. Secondly, in addition to the general duty to protect the public, the police here had offered to assist the applicant and she had accepted their offer. In so doing, she placed her trust in the policemen although she did not know them personally. One of the purposes of wearing uniforms is to make police officers more identifiable to members of the public who find themselves in need of assistance. [] Our Constitution mandates members of the police to protect members of the community and to prevent crime. It is an important mandate that should quite legitimately and reasonably result in the trust of the police by members of the community. Where such trust is established, the achievement of the tasks of the police will be facilitated. In determining whether the minister is liable in these circumstances, courts must take account of the importance of the constitutional role entrusted to the police and the importance of nurturing the confidence and trust of the community in the police in order to ensure that their role is successfully performed. In this case, and viewed objectively, it was reasonable for the applicant to place her trust in the policemen who were in uniform and offered to assist her. [] Thirdly, the conduct of the policemen that caused harm constituted a simultaneous commission and omission. The commission lay in their brutal rape of the applicant. Their simultaneous omission lay in their failing while on duty to protect her from harm, something which they bore a general duty to do and a special duty on the facts of this case. In my view, these three interrelated factors make it plain that viewed against the background of our Constitution, and, in particular, the constitutional rights of the applicant and the constitutional obligations of the respondent, the connection between the conduct of the policemen and their employment was sufficiently close to render the respondent liable. [] Counsel for the respondent conceded that if the policemen had arrested the applicant and then raped her in circumstances otherwise similar to this case, the respondent would have been liable vicariously. He argued, however, that as the applicant had not been arrested in this case, no liability on the part of the respondent

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K

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should arise. Although there can be no doubt that where police officers arrest or detain a person, and then assault that person, it is likely that the respondent would be liable, it does not seem to me that the converse should be true and that the respondent should not be liable where the assault is on a person who has not been arrested but has accepted an offer of assistance from the police. In this case, the applicant willingly accepted assistance from the policemen. Once in their car, when it became clear that they no longer intended to take her home safely, she struggled and sought to resist their attack. To conclude that on the facts of this case the minister is not liable, when it is conceded he would have been liable should Ms. K have been detained on a reasonable suspicion of having committed an offence and then raped, would be absurd. It would be a conclusion quite at odds with our constitutional values and the values of our community. The concession, therefore, while rightly made, highlights the untenable nature of the respondent’s argument. [] These factors mentioned by counsel for the respondent do not avoid the conclusion that there was a close connection between the wrongful conduct of the policemen and the nature of their employment. In sum, the opportunity to commit the crime would not have arisen but for the trust the applicant placed in them because they were policemen, a trust that harmonizes with the constitutional mandate of the police and the need to ensure that mandate is successfully fulfilled. When the policemen—on duty and in uniform—raped the applicant, they were simultaneously failing to perform their duties to protect the applicant. In committing the crime, the policemen not only did not protect the applicant, they infringed her rights to dignity and security of the person. In so doing, their employer’s obligation (and theirs) to prevent crime was not met. There is an intimate connection between the delict committed by the policemen and the purposes of their employer. This close connection renders the respondent liable vicariously to the applicant for the wrongful conduct of the policemen. [] In the light of the conclusion to which I have come, namely that the respondent is vicariously liable for the conduct of the policemen, it is not necessary to consider the argument made by the applicant that the respondent was directly liable in delict to the applicant.

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Minister of Home Affairs and Lesbian and Gay Equality Project

Minister of Home Affairs v. Fourie (Doctors for Life International and Others, Amici Curiae); Lesbian and Gay Equality Project and Others v. Minister of Home Affairs  () SA  (CC) CASE SUMMARY

Facts The first applicants—Ms. Fourie and Ms. Bonthuys—contended that the common law definition of marriage in South Africa as the “union of one man with one woman” excludes homosexual couples and unfairly discriminates against them in terms of section () of the Constitution. The Gay and Lesbian Equality Project— the second applicant—challenged section () of the Marriage Act. That section required that marriage officers must put to each of the parties the following question: “Do you X . . . call all here present to witness that you take Y as your lawful wife (or husband)?” This question, the applicants argued, unconstitutionally excluded samesex couples.

Legal History The High Court held that the first applicants were barred from getting an order allowing them to marry because they had not challenged the constitutionality of the Marriage Act. The Supreme Court of Appeal held that the right of same-sex couples to celebrate a secular marriage would have to await a challenge to the Marriage Act. However, the common-law definition of marriage could be developed so as to

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embrace same-sex couples. The Equality Project matter was initially brought in the High Court as a challenge to both the Marriage Act vow and the common law definition of marriage. However, the Constitutional Court granted the second applicant direct access so that its case could be heard together with the appeal and the crossappeal of the first applicants.

Issues Is the common law definition of marriage and the question posed in section () of the Marriage Act inconsistent with sections () and () (the right to equality) and  (the right to dignity) of the Constitution to the extent that they make no provision for same-sex couples to enjoy the same status, entitlements, and responsibilities accorded to heterosexual couples? Decision of the Constitutional Court The court was unanimous on all matters—except in relation to the remedy. With respect to the remedy, Justice O’Regan dissented. The court acknowledged the long history of marginalization and persecution of gays and lesbians in South Africa. However, it then noted that the South African Constitution represents a radical rupture with a not-so-distant past in which marginalization, persecution, intolerance, and exclusion were the leitmotifs of the apartheid state. While the court has made notable inroads in a broad array of areas that effect that lives of gay and lesbian couples, the long history of domination and discrimination on the basis of sexual orientation has meant that no comprehensive legal regulation of the family law rights of gays and lesbians exists. It then found that the exclusion of same-sex couples from the benefits and responsibilities of marriage is no small and tangential inconvenience. It represents a harsh if oblique statement by the law that same-sex couples remain outsiders (paragraph ). Moreover, the allegedly intangible damage of withholding the recognition of marriage to same-sex life partners is as severe as the material deprivation engendered by these laws. The silent obliteration of same-sex couples from the reach of the law, together with the utilization of gender-specific language in the marriage vow, presupposes that only heterosexual couples were contemplated. The common law definition of marriage and section () of the Marriage Act were accordingly found inconsistent with sections (), (), and  of the Constitution to the extent that they make no provision for same-sex couples to enjoy the status, entitlements, and responsibilities they accord to heterosexual couples. Order As to the remedy, the majority, per Justice Sachs, preferred a legislative intervention which would have the effect of enabling same-sex couples to enjoy the status, entitlements, and responsibilities that heterosexual couples achieve through marriage and would override any discriminatory impact that flowed from the current common law definition standing on its own. He also believed that more than one legislative

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solution existed. He therefore suspended the decision for twelve months to allow Parliament to craft a suitable remedy. If they failed to do so within twelve months the common-law definition would include homosexual couples and the words “or spouse” would be added after the words “or husband” in the marriage formula. In a strongly worded judgment that concurred with the holding of the court but not its preferred remedy, Justice O’Regan wrote that the court’s consistent use of “readingin” in sexual orientation cases and its ability to develop the common law with immediate effect suggested a different remedy—and a remedy that would give immediate effect to the court’s findings and holding. She could imagine no remedy arrived at through the legislative process other than the one consistent with use of reading-in with respect to the Marriage Act and the development of the common law definition of marriage to grant same-sex life partners the same rights and privileges as opposite-sex life partners.

Comment However, at least as notable as the court’s fundamental break with past discrimination vis-a-vis homosexual unions and the institution of marriage is the manner in which the court finesses the distinction between how the Constitution engages public space and sacred space. In particular, the Constitutional Court found that while the state could not continue to enforce common-law rules and statutory provisions that prevented same-sex life partners from entering civilly sanctioned marriages, the Final Constitution had nothing immediate to say about religious prohibitions on gay and lesbian marriage and could not be read to require religious officials to consecrate a marriage between members of a same-sex life partnership. The Fourie court writes: [F]reedom of religion goes beyond protecting the inviolability of the individual conscience. For many believers, their relationship with God or creation is central to all their activities. It concerns their capacity to relate in an intensely meaningful fashion to their sense of themselves, their community and their universe. For millions in all walks of life, religion provides support and nurture and a framework for individual and social stability and growth. . . . For believers, then, what is at stake is not merely a question of convenience or comfort, but an intensely held sense about what constitutes the good and proper life and their place in creation. . . . . In the open and democratic society contemplated by the Constitution there must be mutually respectful coexistence between the secular and the sacred. The function of the court is to recognize the sphere which each inhabits, not to force the one into the sphere of the other. Provided there is no prejudice to the fundamental rights of any person or group, the law will legitimately acknowledge a diversity of strongly held opinions on matters of great public controversy. I stress the qualification that there must be no prejudice to basic rights. Majoritarian opinion can often be harsh to minorities that exist outside the mainstream. It is precisely

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the function of the Constitution and the law to step in and counteract rather than reinforce unfair discrimination against a minority. The test, whether majoritarian or minoritarian positions are involved, must always be whether the measure under scrutiny promotes or retards the achievement of human dignity, equality and freedom. The hallmark of an open and democratic society is its capacity to accommodate and manage difference of intensely held worldviews and lifestyles in a reasonable and fair manner. (Paragraphs –.)

The Fourie court commits itself to a number of propositions that are of fundamental import for dignity, equality, freedom of association, and community rights. Religious, cultural, and linguistic communities are not merely a critical source of meaning for the majority of South Africans: respect for the self-governance and the self-actualization secured by individuals and groups that hold such deeply held beliefs are central to our Constitution’s conception of dignity. However, while religious, cultural, and linguistic associations are entitled to articulate—and make manifest through action—their “intensely held world views,” they may not do so in a manner that unfairly discriminates against other members of South African society. That said, although the “intensely held world views” and practices of various religious, cultural, and linguistic associations must, by necessity, exclude other members of South African society from some forms of membership and of participation, such exclusion does necessarily constitute unfair discrimination or a violation of another person’s dignity. JUSTICE SACHS

Introduction [] Finding themselves strongly attracted to each other, two people went out regularly and eventually decided to set up home together. After being acknowledged by their friends as a couple for more than a decade, they decided that the time had come to get public recognition and registration of their relationship, and formally to embrace the rights and responsibilities they felt should flow from and attach to it. Like many persons in their situation, they wanted to get married. There was one impediment. They are both women. [] The matter before us accordingly raises the question: does the fact that no provision is made for the applicants, and all those in like situation, to marry each other, amount to denial of equal protection of the law and unfair discrimination by the state against them because of their sexual orientation? And if it does, what is the appropriate remedy that this court should order? [] The SCA upheld the appeal in part. Two separate judgments were delivered. All five judges held that the exclusion of same-sex couples from the common-law definition of marriage constituted unfair discrimination against them. The reasons

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Legal Cases (–)

for coming to this conclusion diverged in certain significant respects, however, resulting in different approaches being taken as to the order to be made. [] Writing for the majority, Acting Justice Cameron held that the Constitution grants powers to the Constitutional Court, the SCA, and the High Courts to develop the common law, taking into account the interests of justice. The Bill of Rights provides that when applying a provision of the Bill of Rights to a natural or juristic person a court, in order to give effect to a right in the Bill, “must apply, or if necessary develop, the common law to the extent that legislation does not give effect to that right” though it may develop the rules of the common law to limit the right in accordance with the limitations provision in section (). It also provides that when developing the common law the court must promote the spirit, purport, and objects of the Bill of Rights. Taken together, these provisions create an imperative normative setting that obliges courts to develop the common law in accordance with the spirit, purport and objects of the Bill of Rights. Doing so is not a choice. Where the common law is deficient, the courts are under a general obligation to develop it appropriately. This provided the background to the task in the appeal. [] Acting Justice Cameron went on to state that developing the common law involves a creative and declaratory function in which the court puts the final touch on the process of incremental legal development that the Constitution has already ordained. The task of applying the values in the Bill of Rights to the common law thus requires the courts to put its faith in both the values themselves, as well as in the people whose duly elected representatives created a visionary and inclusive constitutional structure that offered acceptance and justice across diversity to all. He said that South Africans and their elected representatives have for the greater part accepted the sometimes far-reaching decisions in regard to sexual orientation and other constitutional rights over the past ten years. It is not presumptuous to believe that they will accept also the further incremental development of the common law that the Constitution requires in this case. [] Acting Justice Cameron pointed out that our equality jurisprudence had taken great strides in respect of gays and lesbians in the last decade. The cases articulate far-reaching doctrines of dignity, equality, and inclusive moral citizenship. They establish that: gays and lesbians are a permanent minority in society who have suffered patterns of disadvantage and are consequently exclusively reliant on the Bill of Rights for their protection; the impact of discrimination on them has been severe, affecting their dignity, personhood and identity at many levels; family as contemplated by the Constitution can be constituted in different ways and legal conceptions of the family and what constitutes family life should change as social practices and traditions change; permanent same-sex partners are entitled to found their relationships in a manner that accords with their sexual orientation and such relationships should not be subject to unfair discrimination; and same-sex life partners are “as capable as heterosexual spouses of expressing and sharing love in its manifold form.” Acting Justice Cameron continued:

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“The sting of the past and continuing discrimination against both gays and lesbians” lies in the message it conveys, namely, that viewed as individuals or in their same-sex relationships, they “do not have the inherent dignity and are not worthy of the human respect possessed by and accorded to heterosexuals and their relationships.” This “denies to gays and lesbians that which is foundational to our Constitution and the concepts of equality and dignity” namely that “all persons have the same inherent worth and dignity,” whatever their other differences may be.

[] He added that the capacity to choose to get married enhances the liberty, the autonomy and the dignity of a couple committed for life to each other. It offers them the option of entering an honorable and profound estate that is adorned with legal and social recognition, rewarded with many privileges and secured by many automatic obligations. It offers a social and legal shrine for love and commitment and for a future shared with another human being to the exclusion of all others. [] Legislative developments, he continued, have ameliorated but not eliminated the disadvantages same-sex couples suffer. More deeply, the exclusionary definition of marriage injures gays and lesbians because it implies a judgment on them. It suggests not only that their relationships and commitments and loving bonds are inferior but that they themselves can never be fully part of the community of moral equals that the Constitution promises to create for all. The applicants’ wish was not to deprive others of any rights. It was to gain access for themselves, without limiting that enjoyed by others. [] The majority judgment went on to state that the Marriage Act prescribes a verbal formula that must be uttered if the legal consequences of the lawful marriage are to follow. The legislature prescribed this formula, and its words cannot be substituted by “updating” interpretation. If the court, and not Parliament, is to make a constitutionally necessary change to such a formula, that must be done not by interpretation but by the constitutional remedy of “reading-in.” The applicants’ legal advisors, however, had overlooked the question of the Marriage Act. [] This did not, however, constitute a complete obstacle to granting them some portion of the relief they sought. The Marriage Act permits the minister to approve variant marriage formulae for ministers of religion and others holding a “responsible position” within religious denominations. Acting Justice Cameron noted that there are currently many religious societies that approve same-sex marriages. Even without amendment to the statute, the minister is now at liberty to approve religious formulae that encompass same-sex marriages. [] Acting Justice Cameron stated that it is important to emphasize that neither the court’s decision, nor the ministerial grant of such a formula, in any way impinges on religious freedom. The extension of the common-law definition of marriage does not compel any religious denomination or minister of religion to approve or perform same-sex marriages.

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[] Turning to the appropriate remedy, he stated that once the court concludes that the Bill of Rights requires the development of the common law, it is not engaging in a legislative process. Nor in fulfilling that function is the court intruding on the legislative domain. In his view, successful litigants should be awarded relief; the order of the SCA developing the common law trenched on no statutory provision, and deference to Parliament did not require that the order be suspended; and the applicants should be awarded the benefit of an order regarding the common law of marriage that would take effect immediately. Acting Justice Cameron indicated that when the minister approved appropriate religious formulae, the development of the common law would take practical effect. Religious orders whose use of such formulae are approved, will at their option be able to perform gay and lesbian marriages. But, he concluded, gay and lesbian couples seeking to have a purely secular marriage would have to await the outcome of proceedings that were launched in the Johannesburg High Court in July , designed to secure comprehensive relief challenging the provisions of the Marriage Act and other statutes. [] Acting Justice Cameron accordingly limited his order to declaring that in terms of sections (), (), and  of the Constitution, the common-law concept of marriage is developed to embrace same-sex partners as follows: “Marriage is the union between two persons to the exclusion of all others for life.” [] In his minority judgment, Acting Justice Farlam dealt broadly with the history of the institution of marriage in our law. He emphasized that during the classical Roman law period marriage was a purely private institution which did not involve the state. No religious or ecclesiastical rite was essential, even after Christianity became the official religion of the Roman Empire in  AD. All that was required for the existence of a marriage was reciprocally expressed consent of parties. After the disintegration of the Roman Empire in the West, when the Church began to control marriage, parties were encouraged to declare their consent before a priest and to receive a blessing. Such marriages were regarded as “regular” marriages. There were also so-called “irregular” marriages that were based on the consent of the parties alone. Parties to “irregular” marriages were often subjected to ecclesiastical and secular penalties, but their marriages were nonetheless as valid as the “regular” ones. [] The present Marriage Act consolidated the laws governing the formalities of marriage and the appointment of marriage officers, and repealed some  Union and pre-Union statutes from the Marriage Order in Council of September , , onwards. A study of the provisions of the Marriage Act makes it clear that it builds on the foundations laid by the Council of Trent in  and by the States of Holland in . It is solely concerned with marriage as a secular institution. Many may see a religious dimension to marriage, but this is not something that the law is concerned with. [] Acting Justice Farlam then went on to hold that [i]t will be recalled that section () of the Constitution provides that everyone has the right to equal protection and benefit of the law, while section ()

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lists among the proscribed grounds of discrimination sexual orientation. Homosexual persons are not permitted in terms of the common-law definition to marry each other, however strong their yearning to establish a conjugal society of the kind described. As a result they are debarred from enjoying the protection and benefit of the law on the ground of their sexual orientation. This clearly constitutes discrimination within the meaning of section  of the Constitution.

[] He added that the effect of the common-law prohibition of same-sex marriages was clearly unfair because it prevented parties to same-sex permanent relationships, who are as capable as heterosexual spouses of establishing a consortium omnis vitae, of constituting a family and of establishing, enjoying, and benefiting from family life, from entering into a legally protected relationship from which substantial benefits conferred and recognized by the law flowed. He went on to say that the common-law definition of marriage not only gave rise to an infringement of the appellants’ constitutional right not to be the victims of unfair discrimination in terms of section  of the Constitution but also to their right to human dignity in terms of section . [] Acting Justice Farlam was of the view that the omission to challenge the marriage formula in the Marriage Act did not constitute a basis for denying the applicants relief. The finding by Justice Roux that the parties cannot be married as required by the law was wrong. The applicants’ true case was that they intended to enter into a marriage with each other and that they sought a declaration that such marriage, when entered into in accordance with the formalities in the Marriage Act, would be valid and registerable under the Marriage Act and the Identification Act. [] To summarize: both judgments were in agreement that the SCA could and should rule that the common-law definition discriminated unfairly against samesex couples. The majority judgment by Acting Justice Cameron held, however, that although the common-law definition should be developed so as to embrace samesex couples, the Marriage Act could not be read in such a way as to include them. In the result, the only way the parties could marry would be under the auspices of a religious body that recognized same-sex marriages, and whose marriage formula was approved by the Minister of Home Affairs. The right of same-sex couples to celebrate a secular marriage would have to await a challenge to the Marriage Act. The minority judgment of Acting Justice Farlam, on the other hand, held both that the common law should be developed and that the Marriage Act could and should be read there and then in updated form so as to permit same-sex couples to pronounce the vows. In his view, however, the development of the common law to bring it into line with the Constitution should be suspended to enable Parliament to enact the appropriate legislation. [] [. . .] The overall result was that the state has sought leave to appeal against the SCA’s decision on the basis that it went too far, while the applicants have sought

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leave to cross-appeal on the grounds that it did not go far enough. It was common cause that the application in the Fourie matter by the state for leave to appeal and by the applicants for leave to cross-appeal, raise questions of considerable constitutional significance and social importance. It is in the interests of justice that they both be granted.

The Second Challenge: Section () of the Marriage Act as well as the Common-Law Definition (the Equality Project Case) [] In the meantime, accepting the need to challenge the Marriage Act as well as the common law, the Lesbian and Gay Equality Project (the Equality Project) and eighteen others had launched an application in the Johannesburg High Court for the following relief: . Declaring that the common-law definition of marriage and the prescribed marriage formula in s () of the Marriage Act  of  (“the Marriage Act”) are unconstitutional in that they violate the rights of lesbian and gay people to: .. equality in terms of section  of the Constitution of the Republic of South Africa,  (“the Constitution”); .. dignity in terms of section  of the Constitution; and .. privacy in terms of section  of the Constitution. . Declaring that the common-law definition of marriage is henceforth to be read as follows: “Marriage is the lawful and voluntary union of two persons to the exclusion of all others while it lasts.” . Declaring that the words “or spouse” are to be read into the prescribed marriage formula in section () of the Marriage Act immediately after the words “or husband.” . Ordering those of the respondents who oppose this application to pay the applicants’ costs of suit. . Granting the applicants such further and/or alternative relief as this court deems appropriate in the circumstances. The case was originally due to be heard in the High Court in October this year, but was eventually set down for January next year. The Equality Project then applied for direct access to this court to enable their challenge to the statute as well as to the common-law definition of marriage to be heard together with the appeal and the cross-appeal relating to the SCA judgment in the Fourie case.

The Application for Direct Access in the Equality Project Matter [] The application by the Equality Project for direct access to this court was resisted by the state, and requires special consideration. This court has frequently

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stated that as a general rule it should not act as a court of first and final instance in relation to constitutional matters that may be heard in other courts. In Mkontwana [v. Nelson Mandela Metropolitan Municipality and Another; Bissett and Others v. Buffalo City Municipality and Others; Transfer Rights Action Campaign and Others v. MEC, Local Government and Housing, Gauteng, and Others (KwaZulu-Natal Law Society and Msunduzi Municipality as Amici Curiae)  () SA  (CC)], Justice Yacoob emphasized that the importance and complexities of the issues raised in an application for direct access would weigh heavily against this court being a court of first and final instance. Not only is the jurisprudence of this court greatly enriched by being able to draw on the considered opinion of another court. Proper evidential foundations, where appropriate, can be laid. Issues, both in relation to substantive law and appropriate orders to be made, are crystallized out for focused research and attention. There is no doubt, therefore, that a judgment by the High Court on the application made to it by the Equality Project would be of great assistance. [] At the same time it has to be borne in mind that the hearing in the High Court would only take place next year. The broad question of the right of same-sex couples to marry is already before us in the Fourie matter. It was first considered in the High Court and then in a comprehensive judgment of the SCA. Although the challenge to section () of the Marriage Act as such was not before the SCA, the SCA devoted considerable attention to interpreting its terms and evaluating its significance in relation to the common law. Furthermore, there has been no suggestion that evidence of significance to the outcome would or could have been led in the High Court in the Equality Project matter. The issues are matters of law that fall to be determined in a social context that has already frequently been dealt with by this court. [] In the present matter, the appeal from the SCA decision in the Fourie matter is already before us. The direct access application fills a gap in the Fourie case referred to by the High Court, this court and the SCA. The common law in relation to marriage has been overtaken by statute in a great number of respects. To deal with it as if the Marriage Act did not exist would be highly artificial and abstract. The overlap between the issues raised and their strong interconnectedness requires them to be dealt with in an integrated and comprehensive fashion. There would be grave disadvantages to all concerned if the issues raised were to be decided in a piecemeal way. [] In opposing direct access the state did not contend that the High Court should first pronounce on the matter, but rather fired the first salvos of its new approach to the substantive issues raised. Its contentions will be dealt with in the course of this judgment, and it will suffer no prejudice from having the two matters consolidated. On the contrary, like all the parties it will gain from having the pieces of the puzzle placed together as would happen if the application for direct access is granted. [] In essence the enquiry into the common-law definition of marriage and the constitutional validity of section () of the Marriage Act is the same. Are gay and lesbian people unfairly discriminated against because they are prevented from achieving

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the status and benefits coupled with responsibilities which heterosexual couples acquire from marriage? If they are, both the common-law definition as well as section () must have the effect of limiting the rights contained in section  of the Constitution. If not, both will be good. It must be emphasized that it is not possible for one of the two provisions concerning marriage that are under attack in this case to be consistent with the Constitution, and for the other to be constitutionally invalid. In the circumstances, a refusal to consider both together would amount to no more than technical nicety. In the circumstances of this case, therefore, it is clearly in the interests of justice that the application for direct access be granted and that the Fourie and the Equality Project matters be heard together.

The Issues [] At the hearing two broad and interrelated questions were raised: The first was whether or not the failure by the common law and the Marriage Act to provide the means whereby same-sex couples can marry, constitutes unfair discrimination against them. If the answer was that it does, the second question arose, namely, what the appropriate remedy for the unconstitutionality should be. These are the central issues in this matter, and I will start with the first. Does the law deny equal protection to and discriminate unfairly against same-sex couples by not including them in the provisions of the Marriage Act? [] Counsel for the minister of justice argued that the Constitution did not protect the right to marry. It merely guaranteed to same-sex couples the right to establish their own forms of family life without interference from the state. This was a negative liberty, not to be equated with a right to be assimilated into the institution of marriage, which, in terms of its historic genesis and evolution, was heterosexual by nature. International law recognized and protected marriage as so understood. Same-sex couples accordingly had no constitutional right to enter into or manipulate that institution. If their form of family life suffered from particular disadvantages, then these should be dealt with by appropriate legal remedies in response to each of the identified problems, not by entry into the global set of rights and entitlements established by marriage. Marriage law appropriately confined itself to marriage; it was contended, and not to all forms of family relationship. [] The initial proposition of the state’s argument is undoubtedly correct inasmuch as the Bill of Rights does not expressly include a right to marry. It does not follow, however, that the Constitution does nothing to protect that right, and with it, the concomitant right to be treated equally and with dignity in the exercise of that right. Explaining why the right to marry had not been expressly included in the text of the Constitution as produced by the Constitutional Assembly, this court in the First Certification [Ex parte Chairperson of the Constitutional Assembly: In re Certification of the Constitution of the Republic of South Africa,  () SA  (CC)] case pointed out that families are constituted, function and are dissolved in such a variety of ways, and the possible outcomes of constitutionalizing family rights are so

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uncertain, that Constitution-makers appear frequently to prefer not to regard the right to marry or to pursue family life as a fundamental right that is appropriate for definition in constitutionalized terms. This avoids questions that relate to the history, culture and special circumstances of each society. At the same time, the provisions of the constitutional text would clearly prohibit any arbitrary state interference with the right to marry or to establish and raise a family. The text enshrined the values of human dignity, equality, and freedom. However these words might come to be interpreted in the future, the judgment said, it was evident that laws or executive action resulting in enforced marriages, or oppressive prohibitions on marriage or the choice of spouses, would not survive constitutional challenge. [] The way the words dignity, equality, and privacy later came to be interpreted by this court showed that they in fact turned out to be central to the way in which the exclusion of same-sex couples from marriage came to be evaluated. In a long line of cases, most of which were concerned with persons unable to get married because of their sexual orientation, this court highlighted the significance for our equality jurisprudence of the concepts and values of human dignity, equality, and freedom. It is these cases that must serve as the compass that guides analysis in the present matter, rather than the references made in argument to North American polemical literature or to religious texts. [] Although the Sodomy case, which was the first in the series, did not deal with access to marriage as such, it highlighted the seriously negative impact that societal discrimination on the ground of sexual orientation has had, and continues to have, on gays and same-sex partnerships. It concluded that gay men are a permanent minority in society and have suffered in the past from patterns of disadvantage. [] This court stated later in the Home Affairs [National Coalition for Gay and Lesbian Equality and Others v. Minister of Home Affairs and Others  () SA  (CC)] case, dealing with same-sex immigrant partners that although the main focus of the Sodomy judgment was on the criminalization of sodomy and on other proscriptions of erotic expression between men, the conclusions regarding the minority status of gays and the patterns of discrimination to which they had been and continued to be subjected were also applicable to lesbians. The sting of past and continuing discrimination against both gays and lesbians was the clear message that it conveyed, namely, that they, whether viewed as individuals or in their same-sex relationships, did not have the inherent dignity and were not worthy of the human respect possessed by and accorded to heterosexuals and their relationships. This discrimination occurred at a deeply intimate level of human existence and relationality. It denied to gays and lesbians that which was foundational to our Constitution and the concepts of equality and dignity, which at that point were closely intertwined, namely that all persons have the same inherent worth and dignity as human beings, whatever their other differences may be. The denial of equal dignity and worth all too quickly and insidiously degenerated into a denial of humanity and led to inhuman treatment by the rest of society in many other ways. This was deeply demeaning

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Legal Cases (–)

and frequently had the cruel effect of undermining the confidence and sense of selfworth and self-respect of lesbians and gays. The court went on to hold that it had recognized that the more vulnerable the group adversely affected by the discrimination, the more likely the discrimination would be held to be unfair. Vulnerability in turn depended to a very significant extent on past patterns of disadvantage, stereotyping and the like. [] The issue in the Home Affairs case was the discriminatory impact of a provision of immigration law that gave special protection to foreigners married to South Africans, while ignoring same-sex life partners. The case accordingly has very direct relevance to the present one. The pertinent question was the impact on same-sex life partners of being excluded from the relevant provisions. The judgment pointed out that under South African common law a marriage creates a physical, moral and spiritual community of life, a consortium omnis vitae described as an abstraction comprising the totality of a number of rights, duties and advantages accruing to spouses of a marriage. . . . These embrace intangibles, such as loyalty and sympathetic care and affection, concern . . . as well as the more material needs of life, such as physical care, financial support, the rendering of services in the running of the common household or in a support-generating business.

[] It was important to emphasize, the court continued, that over the past decades an accelerating process of transformation had taken place in family relationships, as well as in societal and legal concepts regarding the family and what it comprises. The court cited Sinclair and Heaton for the proposition that the current period of rapid change seems to “strike at the most basic assumptions” underlying marriage and the family. . . . Itself a country where considerable political and socio-economic movement has been and is taking place, South Africa occupies a distinctive position in the context of developments in the legal relationship between family members and between the state and the family. Its heterogeneous society is “fissured by differences of language, religion, race, cultural habit, historical experience and self-definition” and, consequently, reflects widely varying expectations about marriage, family life, and the position of women in society.

The impact of the exclusion of lesbians and gays by the provision in question was to reinforce harmful and hurtful stereotypes. Underlying these stereotypes, the court continued, lay misconceptions derived from the fact that the sexual orientation of lesbians and gays was such that they had an erotic and emotional affinity for persons of the same sex. This resulted in classifying lesbians and gays as exclusively sexual beings, reduced to one-dimensional creatures “defined by their sex and sexuality.”

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Minister of Home Affairs and Lesbian and Gay Equality Project

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[] The judgment sums up what it calls the facts concerning gays and lesbians as follows: (i)

Gays and lesbians have a constitutionally entrenched right to dignity and equality; (ii) sexual orientation is a ground expressly listed in section () of the Constitution and under section () discrimination on it is unfair unless the contrary is established; (iii) prior criminal proscription of private and consensual sexual expression between gays, arising from their sexual orientation and which had been directed at gay men, has been struck down as unconstitutional; (iv) gays and lesbians in same-sex life partnerships are as capable as heterosexual spouses of expressing and sharing love in its manifold forms, including affection, friendship, eros, and charity; (v) they are likewise as capable of forming intimate, permanent, committed, monogamous, loyal and enduring relationships; of furnishing emotional and spiritual support; and of providing physical care, financial support, and assistance in running the common household; (vi) they are individually able to adopt children and in the case of lesbians to bear them; (vii) in short, they have the same ability to establish a consortium omnis vitae; (viii) finally, . . . they are capable of constituting a family, whether nuclear or extended, and of establishing, enjoying, and benefiting from family life which is not distinguishable in any significant respect from that of heterosexual spouses. [] The provision in question stated in effect that persons in same-sex relationships were not entitled to the benefit extended to married spouses in order to protect their family and family life. This was so notwithstanding that the family and family life were in all significant respects indistinguishable from those of spouses and in human terms as important to gay and lesbian same-sex partners as they were to spouses. The message and impact are clear. Section  of the Constitution recognizes and guarantees that everyone has inherent dignity and the right to have their dignity respected and protected. The message is that gays and lesbians lack the inherent humanity to have their families and family lives in such same-sex relationships respected or protected. It serves in addition to perpetuate and reinforce existing prejudices and stereotypes. The impact constitutes a crass, blunt, cruel, and serious invasion of their dignity. The discrimination, based on sexual orientation, is severe because no concern, let alone anything

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approaching equal concern, is shown for the particular sexual orientation of gays and lesbians.

The judgment adds that protecting the traditional institution of marriage as recognized by law may not be done in a way that unjustifiably limits the constitutional rights of partners in a permanent same-sex life partnership. [] Having pronounced unambiguously on the issues before it, the judgment goes on to say that it expressly leaves open two questions, the first relating to the position of unmarried partners in permanent heterosexual relationships, and the second “whether, or to what extent, the law ought to give formal institutional recognition to same-sex partnerships.” In other words, it stopped short of considering whether some form of global or umbrella institutional recognition should be given to same-sex partnerships, an issue that had not been raised in that matter and was not before it, but which is before us. [] In Satchwell [v. President of the Republic of South Africa and Another  () SA  (CC)], the issue was whether the noninclusion of same-sex partners in a statute providing pension rights to the surviving spouses of judges was discriminatory. Justice Madala pointed out that marriage was a matter of profound importance to the parties, and indeed to their families, and was of great social value and significance. Historically, however, our law had only recognized marriages between heterosexual spouses, and this narrowness of focus had excluded many relationships that created similar obligations and had a similar social value. Inasmuch as the provisions in question afforded benefits to spouses but not to same-sex partners who had established a permanent life relationship similar in other respects to marriage, including accepting the duty to support one another, such provisions, he held, constituted unfair discrimination. [] In Du Toit [and Another v. Minister of Welfare and Population Development and Others (Lesbian and Gay Equality Project as Amicus Curiae)  () SA  (CC)], the issue flowed from a provision in child-care legislation which confined the right to adopt children jointly to married couples. Holding that the exclusion of same-sex life partners conflicted both with the best interests of the child and the right to dignity of same-sex couples, Acting Justice Skweyiya emphasized that family life as contemplated by the Constitution could be provided in different ways, and that legal conceptions of the family and what constituted family life should change as social practices and traditions changed. He pointed out further that it was a matter of our history, and that of many countries, that same-sex relationships had been the subject of unfair discrimination in the past. The Constitution required that unfairly discriminatory treatment cease. It was significant that there had been a number of recent cases, statutes, and government consultation documents in South Africa which broadened the scopes of “family,” “spouse,” and “domestic relationship” to include same-sex life partners. These legislative and jurisprudential developments indicated the growing recognition afforded to same-sex relationships.

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Minister of Home Affairs and Lesbian and Gay Equality Project

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The Right to Be Different [] This court has thus in five consecutive decisions highlighted at least four unambiguous features of the context in which the prohibition against unfair discrimination on grounds of sexual orientation must be analyzed. The first is that South Africa has a multitude of family formations that are evolving rapidly as our society develops, so that it is inappropriate to entrench any particular form as the only socially and legally acceptable one. The second is the existence of an imperative constitutional need to acknowledge the long history in our country and abroad of marginalization and persecution of gays and lesbians, that is, of persons who had the same general characteristics as the rest of the population, save for the fact that their sexual orientation was such that they expressed erotic desire and affinity for individuals of their own sex, and were socially defined as homosexual. The third is that although a number of breakthroughs have been made in particular areas, there is no comprehensive legal regulation of the family law rights of gays and lesbians. Finally, our Constitution represents a radical rupture with a past based on intolerance and exclusion, and the movement forward to the acceptance of the need to develop a society based on equality and respect by all for all. Small gestures in favor of equality, however meaningful, are not enough. In the memorable words of Justice Mahomed: In some countries, the Constitution only formalizes, in a legal instrument, a historical consensus of values and aspirations evolved incrementally from a stable and unbroken past to accommodate the needs of the future. The South African Constitution is different: it retains from the past only what is defensible and represents a decisive break from, and a ringing rejection of, that part of the past which is disgracefully racist, authoritarian, insular, and repressive, and a vigorous identification of and commitment to a democratic, universalistic, caring, and aspirationally egalitarian ethos expressly articulated in the Constitution. The contrast between the past which it repudiates and the future to which it seeks to commit the nation is stark and dramatic.

[] A democratic, universalistic, caring, and aspirationally egalitarian society embraces everyone and accepts people for who they are. To penalize people for being who and what they are is profoundly disrespectful of the human personality and violatory of equality. Equality means equal concern and respect across difference. It does not presuppose the elimination or suppression of difference. Respect for human rights requires the affirmation of self, not the denial of self. Equality therefore does not imply a leveling or homogenization of behavior or extolling one form as supreme, and another as inferior, but an acknowledgment and acceptance of difference. At the very least, it affirms that difference should not be the basis for exclusion, marginalization, and stigma. At best, it celebrates the vitality that difference brings to any society. The issue goes well beyond assumptions of heterosexual exclusivity, a source of contention in the present case. The acknowledgment and acceptance of

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difference is particularly important in our country where for centuries group membership based on supposed biological characteristics such as skin color has been the express basis of advantage and disadvantage. South Africans come in all shapes and sizes. The development of an active rather than a purely formal sense of enjoying a common citizenship depends on recognizing and accepting people with all their differences, as they are. The Constitution thus acknowledges the variability of human beings (genetic and socio-cultural), affirms the right to be different, and celebrates the diversity of the nation. Accordingly, what is at stake is not simply a question of removing an injustice experienced by a particular section of the community. At issue is a need to affirm the very character of our society as one based on tolerance and mutual respect. The test of tolerance is not how one finds space for people with whom, and practices with which, one feels comfortable, but how one accommodates the expression of what is discomfiting. [] As was said by this court in Christian Education [South Africa v. Minister of Education  () SA  (CC)] there are a number of constitutional provisions that underline the constitutional value of acknowledging diversity and pluralism in our society, and give a particular texture to the broadly phrased right to freedom of association contained in section . Taken together, they affirm the right of people to self-expression without being forced to subordinate themselves to the cultural and religious norms of others, and highlight the importance of individuals and communities being able to enjoy what has been called the “right to be different.” In each case, space has been found for members of communities to depart from a majoritarian norm. The point was made in Christian Education that these provisions collectively and separately acknowledge the rich tapestry constituted by civil society, indicating in particular that language, culture and religion constitute a strong weave in the overall pattern. For present purposes it needs to be added that acknowledgment of the diversity that flows from different forms of sexual orientation will provide an extra and distinctive thread to the national tapestry. The strength of the nation envisaged by the Constitution comes from its capacity to embrace all its members with dignity and respect. In the words of the preamble, South Africa belongs to all who live in it, united in diversity. What is at stake in this case, then, is how to respond to legal arrangements of great social significance under which same-sex couples are made to feel like outsiders who do not fully belong in the universe of equals. [] These may seem purely abstract statements. Yet the impact of the legal void in which same-sex couples are compelled to live is real, intense, and extensive. To appreciate this it is necessary to look precisely at what it is that the law offers to heterosexual couples, and, conversely, at what it denies to same-sex couples. Such scrutiny establishes that the consequences of the total exclusion of same-sex couples from the solemnities and consequences of marriage are far from academic, as the following section shows. [] One of the most important invariable consequences of marriage is the reciprocal duty of support. It is an integral part of the marriage contract and has immense

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value not only to the partners themselves but to their families and also to the broader community. The duty of support gives rise to the special rule that spouses, even those married out of community of property, can bind one another to third parties in relation to the provision of household necessaries which include food, clothing, and medical services. The law sees the spouses as life partners and jointly and severally responsible for the maintenance of their common home. This obligation may not be excluded by antenuptial contract. Another invariable legal consequence of the marriage is the right of both parties to occupy the joint matrimonial home. This obligation is clearly based on the premise that spouses will live together. The party who owns the home may not exclude or evict the other party from the home. Limited exceptions to this rule have been created under the Domestic Violence Act [Act  of ]. [] It should be added that formalization of marriages provides for valuable public documentation. The parties are identified, the dates of celebration and dissolution are stipulated, and all the multifarious and socially important steps that the public administration is required to make in connection with children and forward planning, are facilitated. Furthermore, the commitment of the parties to fulfill their responsibilities is solemnly and publicly undertaken. This is particularly important in imposing clear legal duties on the party who is in the stronger position economically. Marriage stabilizes relationships by protecting the vulnerable partner and introducing equity and security into the relationship. [] Marriage law thus goes well beyond its earlier purpose in the common law of legitimizing sexual relations and securing succession of legitimate heirs to family property. And it is much more than a mere piece of paper. [] The exclusion of same-sex couples from the benefits and responsibilities of marriage, accordingly, is not a small and tangential inconvenience resulting from a few surviving relics of societal prejudice destined to evaporate like the morning dew. It represents a harsh if oblique statement by the law that same-sex couples are outsiders, and that their need for affirmation and protection of their intimate relations as human beings is somehow less than that of heterosexual couples. It reinforces the wounding notion that they are to be treated as biological oddities, as failed or lapsed human beings who do not fit into normal society and as such do not qualify for the full moral concern and respect that our Constitution seeks to secure for everyone. It signifies that their capacity for love, commitment and accepting responsibility is by definition less worthy of regard than that of heterosexual couples. [] It should be noted that the intangible damage to same-sex couples is as severe as the material deprivation. To begin with, they are not entitled to celebrate their commitment to each other in a joyous public event recognized by the law. They are obliged to live in a state of legal blankness in which their unions remain unmarked by the showering of presents and the commemoration of anniversaries so celebrated in our culture. It may be that, as the literature suggests, many same-sex couples would abjure mimicking or subordinating themselves to heterosexual norms.

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Others might wish to avoid what they consider the routinization and commercialization of their most intimate and personal relationships, and accordingly not seek marriage or its equivalence. Yet what is at issue is not the decision to be taken, but the choice that is available. If heterosexual couples have the option of deciding whether to marry or not, so should same-sex couples have the choice of whether to seek to achieve a status and a set of entitlements and responsibilities on a par with those enjoyed by heterosexual couples. It follows that, given the centrality attributed to marriage and its consequences in our culture; to deny same-sex couples a choice in this respect is to negate their right to self-definition in a most profound way. [] Equally important, as far as family law is concerned, is the right of same-sex couples to fall back upon state regulation when things go wrong in their relationship. Bipolar by its very nature, the law of marriage is invoked both at moments of blissful creation and at times of sad cessation. There is nothing to suggest that same-sex couples are any less affected than are heterosexual ones by the emotional and material consequences of a rupture of their union. The need for comprehensive judicial regulation of their separation or divorce, or of devolution of property, or rights to maintenance or continuation of tenancy after death, is no different. Again, what requires legal attention concerns both status and practical regulation. [] The law should not turn its back on any persons requiring legal support in times of family breakdown. It should certainly not do so on a discriminatory basis; the antiquity of a prejudice is no reason for its survival. Slavery lasted for a century and a half in this country, colonialism for twice as long, the prohibition of interracial marriages for even longer, and overt male domination for millennia. All were based on apparently self-evident biological and social facts; all were once sanctioned by religion and imposed by law; the first two are today regarded with total disdain, and the third with varying degrees of denial, shame, or embarrassment. Similarly, the fact that the law today embodies conventional majoritarian views in no way mitigates its discriminatory impact. It is precisely those groups that cannot count on popular support and strong representation in the Legislature that have a claim to vindicate their fundamental rights through application of the Bill of Rights. [] Some minorities are visible, and suffer discrimination on the basis of presumed characteristics of the group with which they are identified. Other minorities are rendered invisible inasmuch as the law refuses them the right to express themselves as a group with characteristics different from the norm. In the present matter, the unfair discrimination against same-sex couples does not flow from any express exclusion in the Marriage Act. The problem is that the Marriage Act simply makes no provision for them to have their unions recognized and protected in the same way as it does for those of heterosexual couples. It is as if they did not exist as far as the law is concerned. They are implicitly defined out of contemplation as subjects of the law. [] Sections () and () cannot be read as merely protecting same-sex couples from punishment or stigmatization. They also go beyond simply preserving a private space in which gay and lesbian couples may live together without interference from

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the state. Indeed, what the applicants in this matter seek is not the right to be left alone, but the right to be acknowledged as equals and to be embraced with dignity by the law. Their love that was once forced to be clandestine, may now dare openly to speak its name. The world in which they live and in which the Constitution functions, has evolved from repudiating expressions of their desire to accepting the reality of their presence, and the integrity, in its own terms, of their intimate life. Accordingly, taking account of the decisions of this court, and bearing in mind the symbolic and practical impact that exclusion from marriage has on same-sex couples, there can only be one answer to the question as to whether or not such couples are denied equal protection and subjected to unfair discrimination. Clearly, they are, and in no small degree. The effect has been wounding and the scars are evident in our society to this day. By both drawing on and reinforcing discriminatory social practices, the law in the past failed to secure for same-sex couples the dignity, status, benefits, and responsibilities that it accords to heterosexual couples. Although considerable progress has been made in specific cases through constitutional interpretation, and, as will be seen, by means of legislative intervention, the default position of gays and lesbians is still one of exclusion and marginalization. The common law and section () of the Marriage Act continue to deny to same-sex couples equal protection and benefit of the law, in conflict with section () of the Constitution, and taken together result in same-sex couples being subjected to unfair discrimination by the state in conflict with section () of the Constitution. [] At the very least, then, the applicants in both matters are entitled to a declaration to the effect that same-sex couples are denied equal protection of the law under section (), and subjected to unfair discrimination under section () of the Constitution, to the extent that the law makes no provision for them to achieve the dignity, status, benefits, and responsibilities available to heterosexual couples through marriage. The question that then has been posed is whether the traditional law of marriage is itself constitutionally defective, or whether the solution must necessarily be found outside of it.

Marriage and Recognition of Same-Sex Unions [] I will now deal with the contention that respect for the traditional institution of marriage requires that any recognition of same-sex unions must be accomplished outside of the law of marriage. The applicants submitted that as a matter of simple logic flowing from the above analysis, the Marriage Act is inconsistent with the Constitution and must be declared to be invalid to the extent that it makes no provision for same-sex couples to enjoy the status, entitlements, and responsibilities which it accords to heterosexual couples. The state and amici, however, argued that the fault in not furnishing same-sex couples with the possibility of regularizing and giving legal effect to their unions lay outside the Marriage Act itself. Instead, they contended, it stemmed from the failure of the law to provide an appropriate remedial mechanism that was alternative and supplementary to the Marriage Act.

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Legal Cases (–)

[] There is an immediate answer to this proposition. A law that creates institutions that enable heterosexual couples to declare their public commitment to each other and achieve the status, entitlements and responsibilities that flow from marriage, but does not provide any mechanism for same-sex couples to achieve the same, discriminates unfairly against same-sex couples. It gives to the one and not to the other. The instruments created by the legal system exclude from their reach persons entitled to be protected by them. It is those instruments that stand to be identified as being inconsistent with the Constitution, and not “the law” as an abstraction. The law must be measured in the context of what is provided for by the legal system as a whole. In this respect, exclusion by silence and omission is as effective in law and practice as if effected by express language. Same-sex unions continue in fact to be treated with the same degree of repudiation that the State until two decades ago reserved for interracial unions; the statutory format might be different, but the effect is the same. The negative impact is not only symbolic but also practical, and each aspect has to be responded to. Thus, it would not be sufficient merely to deal with all the practical consequences of exclusion from marriage. It would also have to accord to same-sex couples a public and private status equal to that which heterosexual couples achieve from being married. [] The conclusion is that when evaluated in the context of the legal regime as a whole, the common-law definition and section () are under-inclusive and unconstitutional to the extent that they make no appropriate provision for gay and lesbian people to celebrate their unions in the same way that they enable heterosexual couples to do. [] The matter does not end there, however. The state and the amici contend that even if the Marriage Act and common law are under-inclusive, the remedy is not to be found in tampering with them but in providing an appropriate alternative. Thus, they argue, given that there is discrimination against same-sex couples, and accepting that the results may be harsh and need to be corrected, the remedy does not lie in radically altering the law of marriage, which by its very nature and as it has evolved historically is concerned with heterosexual relationships. The answer, they say, is to provide appropriate alternative forms of recognition to same-sex family relationships. Several alternative arguments in support of this proposition were advanced by the state and the amici. What they have in common is an objection to any remedial measures being assimilated into the traditional institution of marriage, or permitting the unions of same-sex couples to be referred to as marriages. They submit that whatever remedy the state adopts cannot include altering the definition of marriage as contained in the common law and as expressed in section () of the Marriage Act. [] Four main propositions were advanced in support of the proposition that whatever remedy is adopted, it must acknowledge the need to leave traditional marriage intact. There was some overlap between the arguments but for convenience they may be identified as: the procreation rationale; the need to respect religion contention; the recognition given by international law to heterosexual marriage

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argument; and the necessity to have recourse to diverse family law systems contained in section  of the Constitution submission. I consider each in turn.

The Procreation Argument [] The Marriage Alliance, with the support of Cardinal Napier, contended that an essential, constitutive, and definitional characteristic of marriage is its procreative potential. The affidavit by Cardinal Napier asserts that marriage institutionalizes and symbolizes, as it has done across millennia and societies, the inherently procreative relationship between a man and a woman, and it should be protected as such. Lacking such procreative potential same-sex unions could never be regarded as marriages, whatever other form of legal recognition could be given to them. [] This very argument was considered in Home Affairs. The court held in that matter that however persuasive procreative potential might be in the context of a particular religious world-view, from a legal and constitutional point of view, it is not a defining characteristic of conjugal relationships. To hold otherwise would be deeply demeaning to couples (whether married or not) who, for whatever reason, are incapable of procreating when they commence such relationship or become so at any time thereafter. It is likewise demeaning to couples who commence such a relationship at an age when they no longer have the desire for sexual relations or the capacity to conceive. It is demeaning to adoptive parents to suggest that their family is any less a family and any less entitled to respect and concern than a family with procreated children. It is even demeaning of a couple who voluntarily decide not to have children or sexual relations with one another; this being a decision entirely within their protected sphere of freedom and privacy. [] It is clear, then, that the procreation argument cannot defeat the claim of same-sex couples to be accorded the same degree of dignity, concern and respect that is shown to heterosexual couples. More particularly, it cannot prevail in the face of the claim of same-sex couples to be accorded the status, entitlements, and responsibilities which heterosexual couples receive through marriage. It cannot be an insuperable bar to the claims advanced by the applicants. Respect for Religion Arguments [] The two amici submitted a number of arguments from an avowedly religious point of view in support of the view that by its origins and nature, the institution of marriage simply cannot sustain the intrusion of same-sex unions. The corollary is that such unions can never be regarded as marriages, or even marriage-like or equivalent to marriages. To disrupt and radically alter an institution of centuries-old significance to many religions would accordingly infringe the Constitution by violating religious freedom in a most substantial way. [] Their arguments raise important issues concerning the relationship foreshadowed by the Constitution between the sacred and the secular. They underline the fact that in the open and democratic society contemplated by the Constitution,

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Legal Cases (–)

although the rights of nonbelievers and minority faiths must be fully respected, the religious beliefs held by the great majority of South Africans must be taken seriously. As this court pointed out in Christian Education, freedom of religion goes beyond protecting the inviolability of the individual conscience. For many believers, their relationship with God or creation is central to all their activities. It concerns their capacity to relate in an intensely meaningful fashion to their sense of themselves, their community and their universe. For millions in all walks of life, religion provides support and nurture and a framework for individual and social stability and growth. Religious belief has the capacity to awaken concepts of self-worth and human dignity that form the cornerstone of human rights. Such belief affects the believer’s view of society and founds a distinction between right and wrong. It expresses itself in the affirmation and continuity of powerful traditions that frequently have an ancient character transcending historical epochs and national boundaries. For believers, then, what is at stake is not merely a question of convenience or comfort, but an intensely held sense about what constitutes the good and proper life and their place in creation. [] Furthermore, in relation to the extensive national debates concerning rights for homosexuals, it needs to be acknowledged that though religious strife may have produced its own forms of intolerance, and religion may have been used in this country to justify the most egregious forms of racial discrimination, it would be wrong and unhelpful to dismiss opposition to homosexuality on religious grounds simply as an expression of bigotry to be equated to racism. As Justice Ackermann said in the Sodomy case: The issues in this case touch on deep convictions and evoke strong emotions. It must not be thought that the view that holds that sexual expression should be limited to marriage between men and women with procreation as its dominant or sole purpose, is held by crude bigots only. On the contrary, it is also sincerely held, for considered and nuanced religious and other reasons, by persons who would not wish to have the physical expression of sexual orientation differing from their own proscribed by the law.

[] It is also necessary, however, to highlight his qualification: “It is nevertheless equally important to point out that such views, however honestly and sincerely held, cannot influence what the Constitution dictates in regard to discrimination on the grounds of sexual orientation.” It is one thing for the court to acknowledge the important role that religion plays in our public life. It is quite another to use religious doctrine as a source for interpreting the Constitution. It would be out of order to employ the religious sentiments of some as a guide to the constitutional rights of others. Between and within religions there are vastly different and at times highly disputed views on how to respond to the fact that members of their congregations and clergy are themselves homosexual. Judges would be placed in an intol-

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erable situation if they were called upon to construe religious texts and take sides on issues that have caused deep schisms within religious bodies. [] In the open and democratic society contemplated by the Constitution there must be mutually respectful coexistence between the secular and the sacred. The function of the court is to recognize the sphere which each inhabits, not to force the one into the sphere of the other. Provided there is no prejudice to the fundamental rights of any person or group, the law will legitimately acknowledge a diversity of strongly held opinions on matters of great public controversy. I stress the qualification that there must be no prejudice to basic rights. Majoritarian opinion can often be harsh to minorities that exist outside the mainstream. It is precisely the function of the Constitution and the law to step in and counteract rather than reinforce unfair discrimination against a minority. The test, whether majoritarian or minoritarian positions are involved, must always be whether the measure under scrutiny promotes or retards the achievement of human dignity, equality, and freedom. [] The hallmark of an open and democratic society is its capacity to accommodate and manage difference of intensely held world views and lifestyles in a reasonable and fair manner. The objective of the Constitution is to allow different concepts about the nature of human existence to inhabit the same public realm, and to do so in a manner that is not mutually destructive and that at the same time enables government to function in a way that shows equal concern and respect for all. [] The need for coexistence and respect for diversity of belief is in fact expressly recognized by the Marriage Act. The act in terms permits religious leaders to be designated as marriage officers, religious buildings to be used for the solemnization of marriages, the marriage formula usually observed by a religious denomination to be employed and its religious marriage rites to be followed. It is not only permissible to solemnize marriages in these ways. All such marriages are recognized and given legal force by the State. Legal consequences flow from them as from a civil marriage celebrated before a magistrate or other state marriage officer. The state interest in marriage ceremonies performed by religious leaders is protected by empowering the minister of home affairs to designate the ministers of religion concerned and to approve of the marriage formula being followed. [] State accommodation of religious belief goes further. Section  provides: Certain marriage officers may refuse to solemnize certain marriages. . . . Nothing in this act contained shall be construed so as to compel a marriage officer who is a minister of religion or a person holding a responsible position in a religious denomination or organization to solemnize a marriage which would not conform to the rites, formularies, tenets, doctrines or discipline of his religious denomination or organization.

The effect of this provision is that no minister of religion could be compelled to solemnize a same-sex marriage if such a marriage would not conform to the doctrines

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Legal Cases (–)

of the religion concerned. There is nothing in the matters before us that either directly or indirectly trenches in any way on this strong protection of the right of religious communities not to be obliged to celebrate marriages not conforming to their tenets. [] Considerable stress was placed by the state on the contention that international law recognizes and protects heterosexual marriage only. As such, the state contended, it could not be regarded as unfair discrimination to exclude same-sex couples from the institution of marriage. The remedy to the plight of same-sex couples should therefore be found outside of rather than inside marriage. Thus, reference was made to article  of the  Universal Declaration of Human Rights (UDHR), which states: () Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution. () Marriage shall be entered into only with the free and full consent of the intending spouses. () The family is the natural and fundamental group unit of society and is entitled to protection by society and the state.

Similar provisions from a number of different instruments were referred to, as was a decision of the United Nations Human Rights Committee to the effect that a New Zealand law denying marriage licenses to same-sex couples does not violate the International Covenant on Civil and Political Rights (ICCPR). Support for the argument was sought from the provision in our Constitution requiring that customary international law be recognized as part of the law in the Republic and that when interpreting the Bill of Rights a court must consider international law. [] The reference to “men and women” is descriptive of an assumed reality, rather than prescriptive of a normative structure for all time. Its terms make it clear that the principal thrust of the instruments is to forbid child marriages, remove racial, religious or nationality impediments to marriage, ensure that marriage is freely entered into and guarantee equal rights before, during and after marriage. [] Indeed, rights by their nature will atrophy if they are frozen. As the conditions of humanity alter and as ideas of justice and equity evolve, so do concepts of rights take on new texture and meaning. The horizon of rights is as limitless as the hopes and expectations of humanity. What was regarded by the law as just yesterday is condemned as unjust today. When the Universal Declaration was adopted, colonialism and racial discrimination were seen as natural phenomena, embodied in the laws of the so-called civilized nations, and blessed by as many religious leaders as they were denounced. Patriarchy, at least as old as most marriage systems, defended as being based on biological fact and which was supported by many a religious leader, is no longer accepted as the norm, at least in large parts of the world. Severe chastisement of women and children was tolerated by family law and international

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legal instruments then, but is today considered intolerable. Similarly, though many of the values of family life have remained constant, both the family and the law relating to the family have been utterly transformed. [] It would be a strange reading of the Constitution that utilized the principles of international human rights law to take away a guaranteed right. This would be the more so when the right concerned was openly, expressly, and consciously adopted by the Constitutional Assembly as an integral part of the first of all rights mentioned in the Bill of Rights, namely, the right to equality. [] I conclude that while it is true that international law expressly protects heterosexual marriage it is not true that it does so in a way that necessarily excludes equal recognition being given now or in the future to the right of same-sex couples to enjoy the status, entitlements, and responsibilities accorded by marriage to heterosexual couples.

The Family Law Pluralism Argument [] Much reliance was placed by the state and the amici on section () of the Constitution which, after guaranteeing freedom of religion, conscience, and belief, and providing for the circumstances in which religion may be observed in State institutions, states: ()(a) This section does not prevent legislation recognizing— (i) marriages concluded under any tradition, or a system of religious, personal or family law; or (ii) systems of personal and family law under any tradition, or adhered to by persons professing a particular religion. (b) Recognition in terms of para (a) must be consistent with this section and the other provisions of the Constitution. (My emphasis.)

It was submitted that these provisions presupposed special legislation governing separate systems of family law to deal with different family situations. This, it was contended, had a double effect. In the first place it entailed acknowledgment that it would be the legislature and not the courts that would be responsible for creating a legal regime to respond to the needs of same-sex couples. Secondly, the ability to cater for same-sex couples through legislation adopted under section () showed that the Constitution envisaged their rights being protected through special laws, which would not interfere with the hallowed institution of marriage. [] The special provisions of section () are anchored in a section of the Constitution dedicated to protecting freedom of religion, belief, and opinion. In this sense they acknowledge the right to be different in terms of the principles governing family life. The provision is manifestly designed to allow Parliament to adopt legislation, if it so wishes, recognizing, say, African traditional marriages, or Islamic

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Legal Cases (–)

or Hindu marriages, as part of the law of the land, different in character from, but equal in status to general marriage law. Furthermore, subject to the important qualification of being consistent with the Constitution, such legislation could allow for a degree of legal pluralism under which particular consequences of such marriages would be accepted as part of the law of the land. The section “does not prevent” legislation recognizing marriages or systems of family or personal law established by religion or tradition. It is not peremptory or even directive, but permissive. It certainly does not give automatic recognition to systems of personal or family law not accorded legal status by the common law, customary law or statute. Whether or not it could be extended to same-sex marriages, which might not easily be slotted into the concept of marriage or systems of personal or family law “under any tradition,” it certainly does not project itself as the one and only legal portal to the recognition of same-sex unions. [] Thus section () is indicative of constitutional sensitivity in favor of acknowledging diversity in matters of marriage. It does not, however, in itself provide a gateway, let alone a compulsory path, to enable same-sex couples to enjoy the status, entitlements, and responsibilities which marriage accords to heterosexual couples. At most, for present purposes, section () offers constitutional guidance of a philosophical kind pointing in the direction of acknowledging a degree of autonomy for different systems of family law. Yet while it reinforces a general constitutional propensity to favor diversity, it does not in itself provide the remedy claimed for it by the state and the amici, let alone constitute a bar to the claims of the applicants.

Justification [] Having accepted that the need to accord an appropriate degree of respect to traditional concepts of marriage does not as a matter of law constitute a bar to vindicating the constitutional rights of same-sex couples, a further question arises: has justification in terms of section  of the Constitution been shown to exist for the violation of the equality and dignity rights of these couples? There are accordingly two interrelated propositions advanced as justification that need to be considered. The first is that the inclusion of same-sex couples would undermine the institution of marriage. The second is that this inclusion would intrude upon and offend against strong religious susceptibilities of certain sections of the public. [] The first proposition was dealt with by Justice Ackermann in Home Affairs. Referring to possible justification in relation to exclusion of same-sex life partners from benefits accorded to married couples under immigration law, he stated: There is no interest on the other side that enters the balancing process [for justification]. It is true . . . that the protection of family and family life in conventional spousal relationships is an important governmental objective, but

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the extent to which this could be done would in no way be limited or affected if same-sex life partners were appropriately included under the protection of [the section].

The same considerations would apply in relation to enabling same-sex couples to enjoy the status and benefits coupled with responsibilities that marriage law affords to heterosexual couples. Granting access to same-sex couples would in no way attenuate the capacity of heterosexual couples to marry in the form they wished and according to the tenets of their religion. [] The second proposition is based on the assertion derived from particular religious beliefs that permitting same-sex couples into the institution of marriage would devalue that institution. Whatever its origin, objectively speaking this argument is in fact profoundly demeaning to same-sex couples, and inconsistent with the constitutional requirement that everyone be treated with equal concern and respect. [] However strongly and sincerely held the beliefs underlying the second proposition might be, these beliefs cannot through the medium of state law be imposed upon the whole of society and in a way that denies the fundamental rights of those negatively affected. The express or implied assertion that bringing same-sex couples under the umbrella of marriage law would taint those already within its protection can only be based on a prejudgment, or prejudice against homosexuality. This is exactly what section  of the Constitution guards against. It might well be that negative presuppositions about homosexuality are still widely entertained in certain sectors of our society. The ubiquity of a prejudice cannot support its legitimacy. As Justice Ngcobo said in Hoffmann: Prejudice can never justify unfair discrimination. This country has recently emerged from institutionalized prejudice. Our law reports are replete with cases in which prejudice was taken into consideration in denying the rights that we now take for granted. Our constitutional democracy has ushered in a new era—it is an era characterized by respect for human dignity for all human beings. In this era, prejudice and stereotyping have no place. Indeed, if as a nation we are to achieve the goal of equality that we have fashioned in our Constitution we must never tolerate prejudice, either directly or indirectly. SAA, as a state organ that has a constitutional duty to uphold the Constitution, may not avoid its constitutional duty by bowing to prejudice and stereotyping.

I conclude therefore that the arguments tendered in support of justification cannot be upheld. The factors advanced might have some relevance in the search for effective ways to provide an appropriate remedy that enjoys the widest public support, for the violation of the rights involved. They cannot serve to justify their continuation.

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Legal Cases (–)

Conclusion [] I conclude that the failure of the common law and the Marriage Act to provide the means whereby same-sex couples can enjoy the same status, entitlements and responsibilities accorded to heterosexual couples through marriage, constitutes an unjustifiable violation of their right to equal protection of the law under section (), and not to be discriminated against unfairly in terms of section () of the Constitution. Furthermore, and for the reasons given in Home Affairs, such failure represents an unjustifiable violation of their right to dignity in terms of section  of the Constitution. As this court said in that matter, the rights of dignity and equality are closely related. The exclusion to which same-sex couples are subjected manifestly affects their dignity as members of society. Remedy [] A notable and significant development in our statute law in recent years has been the extent of express and implied recognition that the legislature has accorded to same-sex partnerships. Yet as Justice Ackermann pointed out in Home Affairs, there is still no appropriate recognition in our law of same-sex life partnership, as a relationship, to meet the legal and other needs of its partners. Since Home Affairs was decided a number of other statutes have been adopted, the ambit of which clearly include same-sex life partnerships. In some cases there is express reference to the inclusion of same-sex relationships, in others the term “life partner” or “partner” is used. They cover such socially important areas as domestic violence, estate duty, employment equity, and legislation to promote equality. [] While this legislative trend is significant in evincing Parliament’s commitment to its constitutional obligation to remove discrimination on the ground of sexual orientation, and while these statutes are consistent with the judgment of this court in Home Affairs, the advances continue to be episodic rather than global. Thus, however valuable they may be in dealing with particular aspects of discrimination, and however much their cumulative effect contributes towards changing the overall legal climate, they fall short of what this court called for in J, namely that comprehensive legislation regularizing relationships between gay and lesbian persons was necessary; and that it was unsatisfactory for the courts to grant piecemeal relief to members of the gay and lesbian community as and when aspects of their relationships are found to be prejudiced by unconstitutional legislation. [] At the heart of legal disabilities afflicting same-sex life partnerships today, then, is the lack of general recognition by the law of their relationships. The problem does not in fact arise from anything constitutionally offensive in what the commonlaw definition of marriage actually contains. Nor has there been any suggestion that the formula in the Marriage Act intrinsically violates the Constitution as far as it goes. Indeed, there is no reason why heterosexual couples should not be able to take each other as husband and wife. The problem is not what is included in the common-law definition and the act, but what is left out. The silent obliteration of same-

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sex couples from the reach of the law, together with the utilization of gender-specific language in the marriage vow, presupposes that only heterosexual couples are contemplated. The formula makes no allowance for an equivalent public declaration being made by same-sex couples, with all the legal and cultural consequences that would flow from it. [] As I have already concluded, the common law and section () of the Marriage Act are inconsistent with sections () and () and  of the Constitution to the extent that they make no provision for same-sex couples to enjoy the status, entitlements and responsibilities it accords to heterosexual couples. In terms of section ()(a) of the Constitution, this court must declare that any law inconsistent with the Constitution is invalid to that extent. Under s ()(b) it is then open to the court to make any order that is just and equitable. Such order may include suspending the declaration of invalidity to give the Legislature time to cure the defect.

Should the Order of Invalidity Be Suspended? [] Having concluded that the law of marriage as it stands is inconsistent with the Constitution and invalid to the extent outlined above, an appropriate declaration of invalidity needs to be made. The question that arises is whether this court is obliged to provide immediate relief in the terms sought by the applicants and the Equality Project, or whether it should suspend the order of invalidity to give Parliament a chance to remedy the defect. The test is what is just and equitable, taking account of all the circumstances. [] This is a matter that touches on deep public and private sensibilities. I believe that Parliament is well-suited to finding the best ways of ensuring that samesex couples are brought in from the legal cold. The law may not automatically and of itself eliminate stereotyping and prejudice. Yet it serves as a great teacher, establishes public norms that become assimilated into daily life and protects vulnerable people from unjust marginalization and abuse. It needs to be remembered that not only the courts are responsible for vindicating the rights enshrined in the Bill of Rights. The legislature is in the front line in this respect. One of its principal functions is to ensure that the values of the Constitution as set out in the preamble and section  permeate every area of the law. [] This judgment serves to vindicate the rights of the applicants by declaring the manner in which the law at present fails to meet their equality claims. At the same time, it is my view that it would best serve those equality claims by respecting the separation of powers and giving Parliament an opportunity to deal appropriately with the matter. In this respect it is necessary to bear in mind that there are different ways in which the legislature could legitimately deal with the gap that exists in the law. On the papers, at least two different legislative pathways have been proposed. Although the constitutional terminus would be the same, the legislative formats adopted for reaching the end-point would be vastly different. This is an area where symbolism and intangible factors play a particularly important role. What might

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Legal Cases (–)

appear to be options of a purely technical character could have quite different resonances for life in public and in private. Parliament should be given the opportunity in the first place to decide how best the equality rights at issue could be achieved. Provided that the basic principles of equality as enshrined in the Constitution are not trimmed in the process, the greater the degree of public acceptance for same-sex unions, the more will the achievement of equality be promoted. [] It would not be appropriate for this court to attempt at this stage to pronounce on the constitutionality of any particular legislative route that Parliament might choose to follow. At the same time I believe it would be helpful to Parliament to point to certain guiding principles of special constitutional relevance so as to reduce the risk of endless adjudication ensuing on a matter which both evokes strong and divided opinions on the one hand, and calls for firm and clear resolution on the other. [] At the heart of these principles lies the notion that in exercising its legislative discretion Parliament will have to bear in mind that the objective of the new measure must be to promote human dignity, the achievement of equality, and the advancement of human rights and freedoms. This means in the first place taking account of the fact that in overcoming the under-inclusiveness of the common law and the Marriage Act, it would be inappropriate to employ a remedy that created equal disadvantage for all. Thus the achievement of equality would not be accomplished by ensuring that if same-sex couples cannot enjoy the status and entitlements coupled with the responsibilities of marriage; the same should apply to heterosexual couples. Leveling down so as to deny access to civil marriage to all would not promote the achievement of the enjoyment of equality. Such parity of exclusion rather than of inclusion would distribute resentment evenly, instead of dissipating it equally for all. The law concerned with family formation and marriage requires equal celebration, not equal marginalization; it calls for equality of the vineyard and not equality of the graveyard. [] The second guiding consideration is that Parliament be sensitive to the need to avoid a remedy that on the face of it would provide equal protection, but would do so in a manner that in its context and application would be calculated to reproduce new forms of marginalization. Historically the concept of “separate but equal” served as a threadbare cloak for covering distaste for or repudiation by those in power of the group subjected to segregation. The very notion that integration would lead to miscegenation, mongrelization, or contamination, was offensive in concept and wounding in practice. Yet, just as is frequently the case when proposals are made for recognizing same-sex unions in desiccated and marginalized forms, proponents of segregation would vehemently deny any intention to cause insult. On the contrary, they would justify the apartness as being a reflection of a natural or divinely ordained state of affairs. Alternatively they would assert that the separation was neutral if the facilities provided by the law were substantially the same for both groups. In S v. Pitje where the appellant, an African candidate attorney employed by

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the firm Mandela and Tambo, occupied a place at a table in court that was reserved for “European practitioners” and refused to take his place at a table reserved for “non-European practitioners,” Chief Justice Steyn upheld the appellant’s conviction for contempt of court as it was “clear [from the record] that a practitioner would in every way be as well seated at the one table as at the other, and that he could not possibly have been hampered in the slightest in the conduct of his case by having to use a particular table.” [] The above approach is unthinkable in our constitutional democracy today not simply because the law has changed dramatically, but because our society is completely different. What established the visible or invisible norm then is no longer the point of reference for legal evaluation today. Ignoring the context, once convenient, is no longer permissible in our current constitutional democracy, which deals with the real lives as lived by real people today. Our equality jurisprudence accordingly emphasizes the importance of the impact that an apparently neutral distinction could have on the dignity and sense of self-worth of the persons affected. [] It is precisely sensitivity to context and impact that suggests that equal treatment does not invariably require identical treatment. Thus corrective measures to overcome past and continuing discrimination may justify and may even require differential treatment. Similarly, measures based on objective biological or other constitutionally neutral factors, such as those concerning toilet facilities or genderspecific search procedures, might be both acceptable and desirable. The crucial determinant will always be whether human dignity is enhanced or diminished and the achievement of equality is promoted or undermined by the measure concerned. Differential treatment in itself does not necessarily violate the dignity of those affected. It is when separation implies repudiation, connotes distaste or inferiority and perpetuates a caste-like status that it becomes constitutionally invidious. [] In the present matter, this means that whatever legislative remedy is chosen must be as generous and accepting towards same-sex couples as it is to heterosexual couples, both in terms of the intangibles as well as the tangibles involved. In a context of patterns of deep past discrimination and continuing homophobia, appropriate sensitivity must be shown to providing a remedy that is truly and manifestly respectful of the dignity of same-sex couples.

Should There Be an Interim Remedy? [] In coming to the conclusion that the declaration of invalidity should be suspended I am not unmindful of the fact that this case started simply with the desire of two people, who happen to be of the same-sex, to get married. The effect of the suspension of the order of invalidity will be to postpone the day when they can go to a registry and publicly say “I do.” I have considered whether interim arrangements should be ordered similar to those provided for in Dawood. I have come to the conclusion, however, that such an arrangement would not be appropriate in the present matter. It is necessary to remember at all times that what is in issue is a question of

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status. Interim arrangements that would be replaced by subsequent legislative determinations by Parliament would give to any union established in terms of such a provisional scheme a twilight and impermanent character out of keeping with the stability normally associated with marriage. The dignity of the applicants and others in like situation would not be enhanced by the furnishing of what would come to be regarded as a stopgap mechanism. [] Lying at the heart of this case is a wish to bring to an end, or at least diminish, the isolation to which the law has long subjected same-sex couples. It is precisely because marriage plays such a profound role in terms of the way our society regards itself, that the exclusion from the common law and Marriage Act of same-sex couples is so injurious, and that the foundation for the construction of new paradigms needs to be steadily and securely laid. It is appropriate that Parliament be given a free hand, within the framework established by this judgment, to shoulder its responsibilities in this respect.

What Should Happen If Parliament Fails to Cure the Defect? [] Attention needs to be given to the situation that would arise if Parliament fails timeously to cure the under-inclusiveness of the common law and the Marriage Act. Two equally untenable consequences need to be avoided. The one is that the common law and section () of the Marriage Act cease to have legal effect. The other unacceptable outcome is that the applicants end up with a declaration that makes it clear that they are being denied their constitutional rights, but with no legal means of giving meaningful effect to the declaration; after three years of litigation Ms. Fourie and Ms. Bonthuys will have won their case, but be no better off in practice. [] What justice and equity would require, then, is both that the law of marriage be kept alive and that same-sex couples be enabled to enjoy the status and benefits coupled with responsibilities that it gives to heterosexual couples. These requirements are not irreconcilable. They could be met by reading into s () of the Marriage Act the words “or spouse” after the words “or husband,” as the Equality Project proposes. [] Reading-in of the words “or spouse” has the advantage of being simple and direct. It involves minimal textual alteration. The values of the Constitution would be upheld. The existing institutional mechanisms for the celebration of marriage would remain the same. Budgetary implications would be minimal. The long-standing policy of the law to protect and enhance family life would be sustained and extended. Negative stereotypes would be undermined. Religious institutions would remain undisturbed in their ability to perform marriage ceremonies according to their own tenets, and thus if they wished, to celebrate heterosexual marriages only. The principle of reasonable accommodation could be applied by the state to ensure that civil marriage officers who had sincere religious objections to officiating at

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Minister of Home Affairs and Lesbian and Gay Equality Project

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same-sex marriages would not themselves be obliged to do so if this resulted in a violation of their conscience. If Parliament wished to refine or replace the remedy with another legal arrangement that met constitutional standards, it could still have the last word. [] In keeping with this approach it is necessary that the orders of this court, read together, make it clear that if Parliament fails to cure the defect within twelve months, the words “or spouse” will automatically be read into section () of the Marriage Act. In this event the Marriage Act will, without more, become the legal vehicle to enable same-sex couples to achieve the status and benefits coupled with responsibilities, which it presently makes available to heterosexual couples. JUSTICE O’REGAN [] There is very little in the comprehensive and careful judgment of Justice Sachs with which I disagree. I agree that the application for direct access should be granted. The issues raised by the Equality Project are inextricably intertwined with the issues raised in the application for leave to appeal and the decision on the application for leave to appeal will inevitably determine many of the issues in the Equality Project application. In addition, granting direct access will assist the resolution of the issues in the application for leave to appeal. Finally, there are no disputes of fact to be determined that would deter the grant of direct access. [] I also agree with Justice Sachs, for the reasons given by him, as well as for the reasons given in both judgments in the Supreme Court of Appeal, that the common-law definition of marriage in excluding gay and lesbian couples from marriage constitutes unfair discrimination on the grounds of sexual orientation in breach of section  of the Constitution. Similarly, and for the same reasons, section  of the Marriage Act  of  is in conflict with the same constitutional provision. I need add nothing to the comprehensive judgment of Justice Sachs on this score. [] The difference between his judgment and this, therefore, lies solely in one significant area, namely, that of remedy. How best should these clear constitutional infringements be remedied by this court? In S v. Bhulwana; S v. Gwadiso [ () SA  (CC)] this court held that it is an important principle of the law of constitutional remedies that successful litigants should ordinarily obtain the relief they seek. Without doubt there are exceptions to this rule. A court must consider in each case whether there are other considerations of justice or equity that would warrant an exception to this key precept. In this case, Justice Sachs concludes that this case does involve considerations that warrant such an exception, and he accordingly proposes an order suspending the declaration of invalidity for twelve months. The effect of this order is that gay and lesbian couples will not be permitted to marry during this period. [] His main reasons for this order are firstly, that there are at least two ways in which the unconstitutionality can be remedied, as recommended by the South

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African Law Reform Commission; and that given these alternatives, and the important democratic and legitimating role of the legislature in our society, it is appropriate to leave it to Parliament to choose between these courses of action, or any other which might be constitutional. A second and equally important reason that he gives is that, as marriage involves a question of personal status, it would lead to greater stability if such matters were to be regulated by an act of Parliament rather than the courts. [] I am not persuaded that these considerations can weigh heavily in the scales of justice and equity. We are concerned in this case with a rule of the common law developed by the courts, the definition of marriage. The provisions of section  of the Marriage Act rest on that definition, the definition does not arise from the provisions of the legislation. As a definition of the common law, the responsibility for it lies, in the first place, with the courts. It is the duty of the courts to ensure that the common law is in conformity with the Constitution, as this court held in Carmichele [v. Minister of Safety and Security and Another (Centre for Applied Legal Studies Intervening)  () SA  (CC)]. This is not to say that both the common law definition and the provisions of the act could not be altered by appropriate legislative intervention. The question is, however, whether it is appropriate in this case for a court to suspend an order of invalidity, thus denying successful litigants immediate relief, in order to give Parliament an opportunity to enact legislation to do both. [] In my view, it is not. It is true that there is a choice for the Legislature to make, but on the reasoning of the majority judgment, there is not a wide range of options. If as Justice Sachs correctly concludes, it is not appropriate to deny gays and lesbians the right to the same status as heterosexual couples, the consequence is that, whatever the legislative choice, it is a narrow one which will affect either directly or indirectly all marriages. The choice as to how to regulate these relationships will always lie with Parliament and will be unaffected by any relief we might grant in this case. [] In my view, this court should develop the common-law rule as suggested by the majority in the Supreme Court of Appeal, and at the same time read in words to section  of the act that would with immediate effect permit gays and lesbians to be married by civil marriage officers (and such religious marriage officers as consider such marriages not to fall outside the tenets of their religion). Such an order would mean simply that there would be gay and lesbian married couples at common law, which marriages would have to be regulated by any new marital regime the legislature chooses to adopt. I cannot see that there would be any greater uncertainty or instability relating to the status of gay and lesbian couples than in relation to heterosexual couples. The fact that Parliament faces choices does not, in this case, seem to me to be sufficient for this court to refuse to develop the common law and, in an ancillary order, to remedy a statutory provision, reliant on the common-law definition, which is also unconstitutional.

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Minister of Home Affairs and Lesbian and Gay Equality Project

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[] The doctrine of the separation of powers is an important one in our Constitution but I cannot see that it can be used to avoid the obligation of a court to provide appropriate relief that is just and equitable to litigants who successfully raise a constitutional complaint. The exceptions to the principle established in the Bhulwana case must arise in other circumstances, where the relief cannot properly be tailored by a court, or where even though a litigant would otherwise be successful, other interests or matters would preclude an order in his or her favor, or where an order would otherwise produce such disorder or administrative difficulties that the interests of justice served by an order in favor of a successful litigant are outweighed by the social dislocation such an order might occasion. The importance of the principle that a successful litigant should obtain the relief sought has been acknowledged by this court through the grant of interim relief where an order of suspension is made to ensure that constitutional rights are infringed as little as possible in the period of suspension. [] There can be no doubt that it is necessary that unconstitutional laws be removed from our statute book by Parliament. It is equally necessary that provisions of the common law that conflict with the Constitution are developed in a manner that renders them in conformity with it. It would have been desirable if the unconstitutional situation identified in this matter had been resolved by Parliament without litigation. The corollary of this proposition, however, is not that this court should not come to the relief of successful litigants, simply because an act of Parliament conferring the right to marry on gays and lesbians might be thought to carry greater democratic legitimacy than an order of this court. The power and duty to protect constitutional rights is conferred upon the courts and courts should not shrink from that duty. The legitimacy of an order made by the court does not flow from the status of the institution itself, but from the fact that it gives effect to the provisions of our Constitution. Time and again, there will be those in our broader community who do not wish to see constitutional rights protected, but that can never be a reason for a court not to protect those rights. [] There is one further comment I wish to add. It does not seem to me that an order developing the common law, as ordered by the majority in the Supreme Court of Appeal, coupled with an order reading in the words “or spouse” to the relevant provisions of the Marriage Act would undermine the institution of marriage at all. This court has noted on several occasions the important role that institution plays in our society. Permitting those who have been excluded from marrying to marry can only foster a society based on respect for human dignity and human difference. Nor will it undermine the special role of marriage as recognized by different religions. Such marriages draw their strength and character from religious beliefs and practices. The fact that gay and lesbian couples are permitted to enter civil marriages should not undermine the strength or meaning of those beliefs.

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[] In sum, I dissent from the judgment of Justice Sachs in one respect. I would not suspend the order of invalidity as proposed by Justice Sachs. In my view, the court should make an order today that has immediate prospective effect. Such an order would not preclude Parliament from addressing the law of marriage in the future, and would simultaneously and immediately protect the constitutional rights of gay and lesbian couples pending parliamentary action.

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Van der Merwe

Van Der Merwe v. Road Accident Fund and Another (Women’s Legal Centre Trust as Amicus Curiae)  () SA  (CC) CASE SUMMARY

Facts On October , , Vanessa Van der Merwe’s husband intentionally ran her over with a car; then reversed and ran over her again. Van der Merwe claimed both patrimonial damages—primarily medical expenses—and nonpatrimonial damages for pain and suffering, from the Road Accident Fund (RAF). The RAF is a statutory body set up to compensate people injured in motor vehicle accidents. In terms of its enabling statue, the RAF is only liable if the victim would have a claim against the wrongdoer. The RAF admitted liability for Van der Merwe’s nonpatrimonial claim but, relying on subsections (a) and (b) of the Matrimonial Property Act  of , denied liability for the patrimonial damages. Section  prohibited spouses married in community of property, which the Van der Merwes were, from claiming patrimonial damages from each other. In reply, Van der Merwe argued that the provision was unconstitutional because it unfairly discriminated against her on the basis of marital status and infringed her right to dignity.

Legal History The High Court held that section  unfairly discriminated against those married in community of property. Given the prevalence of domestic violence in South

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Africa, Acting Justice Ndita held that the section discriminated on the basis of gender and impaired the dignity of women. Because the violation of the right to equality could not be justified under section , it declared the section unconstitutional and referred its order to the Constitutional Court to be confirmed.

Issues Does the denial to spouses married in community of property of the right to claim patrimonial damages from each other violate their rights to equality and dignity? Decision of the Constitutional Court Deputy Chief Justice Moseneke wrote for the court and upheld the High Court’s declaration of invalidity. Moseneke did so, on different grounds. He held that section  violated section () of the Constitution: section () prohibits laws that are not rationally related to a legitimate government purpose. No reason existed to differentiate between married couples or between couples married in and out of community of property. However, the deputy chief justice also made some important statements about domestic abuse. “No one can credibly suggest” Moseneke held, “that the domestic road rage Mrs. Van der Merwe had to endure is not an affront to her self-worth and dignity” (paragraph ). He noted that section  was act to the detriment of women more than men and that it is part of a system of law that exacerbates the impact of domestic abuse. Order The court confirmed the order of invalidity with immediate effect, thus permitting Mrs. Van der Merwe’s claim to proceed. Comment The facts of Van der Merwe are extremely disturbing, as are the discriminatory consequences of section . Considering these facts, why do you think the court chose to decide the case on the basis of section () rather than engaging with the real dignity interests at stake, either through section  or section ()? Would the outcome have been the same if the analysis had been done under those sections? DEPUTY CHIEF JUSTICE MOSENEKE

The Common Law and Section (b) of the Act [] I have already held that the pre-eminent concern of this case is not the development of the common law but the constitutional validity of section (b). It is nonetheless beneficial to restate the impugned section’s common-law substratum that spouses who are fettered to a joint estate may not sue each other for delictual loss; be it patrimonial or nonpatrimonial. The rule in effect ousts legal redress for

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delictual loss of any kind arising from the wrongdoing of a spouse against another. The amicus argues, and it must be right, that this rule owes its origin to boundless patriarchy in a setting where the husband wielded marital power over the wife and children born of the marriage, and was the exclusive administrator of the joint estate. As long as the marriage endured, the estate was deemed to be one, indivisible and subject to one command. Short of a divorce, a wife married in community of property dared not sue her husband for any cause in delict because it would be futile to do so: [L]aw of a joint estate was and is at common law the obstacle to an action between spouses married with community of property, . . . neither has a separate estate and what he or she recovers from the other comes out of the joint estate and falls back instantly into the joint estate.

Equally trite is that in a marital property regime where each spouse has a separate estate, the common-law restriction on claims in delict has no place. That explains why the bar to suing one’s spouse does not extend to marriages out of community of property. [] This onerous and dated rule of the common law was soon to fall foul of evolving societal notions of gender equality within marriage and the equal worth of spouses. On November , , chapters  and  of the act jettisoned much of the gender differentiation found in the common-law of marriage in community of property. The legislation made drastic inroads into the theoretical unity and inviolability of the joint estate and recast the common law of marriage irreversibly. A few examples will suffice. The chapters abolished the marital power of the husband over the person and property of his wife, equalized the power of the wife to that of the husband to manage the joint estate, subjected juristic acts affecting the joint estate to the consent of the other spouse, and immunized and protected monetary and other financial receipts by a spouse from interference by the other. [] Importantly for the present purpose, the act introduced “separate property” which does not form part of the joint estate. Section (b) confers on a spouse a claim in delict against the other for damages other than for patrimonial loss arising from bodily injury. The amount so recovered does not fall into the joint estate but becomes her or his separate property in terms of section (a). In turn, section  directs that an injured spouse must recover damages and costs from the separate estate of the guilty party absent which the damages and costs are recoverable by way of an appropriate adjustment on dissolution of the joint estate. [] The question that must be asked is why did these far-reaching legislative reforms authorize legal redress for non-patrimonial loss, but not for patrimonial damages arising from bodily harm? Put otherwise, in the light of our constitutional setting, which legitimate purpose of government is advanced by the distinction in section (b) between claims for patrimonial and nonpatrimonial damages and

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in turn between people in marriages in and in marriages out of community of property? [] In this court, the fund formulated the government purpose pursued by section (b) no higher than the need to regulate patrimonial consequences of marriage. It is indeed so that matrimonial property law, whether of common law or statutory variety, pursues at a generic level, the object of regulating proprietary consequences of marriage. That does not mean, however, that when the constitutional validity of a specific rule of the law of matrimonial property is in issue, the generic purpose overrides the specific purpose of the rule of law under challenge. A court remains obliged to identify and examine the specific government object sought to be achieved by the impugned rule of law or provision. In other words, we are obliged to look at the specific purpose of section (b) even though the general purpose of regulating property arrangements in marriage may not in itself be open to constitutional doubt. For present purposes, the question is not whether it is constitutionally authorized to regulate patrimonial consequences of marriage by law, but whether a specific part of the scheme is constitutionally tolerable. [] In my view, the minister is right when she contends that the purpose sought to be achieved by the differentiation in section (b) is to avoid the futility of spousal claims. Sinclair explains the purpose in clear terms: Actions sounding in property or money between spouses married according to a system of universal community do not make sense, for everything is owed and owned in common. For this reason the common law did not provide for the possibility that the spouses might have an action in delict against each other for defamation, assault, bodily injury arising out of an accident, and so on.

[] We know that section (b) permits claims in delict, between spouses sharing a joint estate, arising from bodily injury, provided the damages sought are nonpatrimonial. What remains is to determine whether the distinction between patrimonial and nonpatrimonial damages and between marriages in and out of community is rationally related to the purpose sought to be advanced.

Patrimonial and Nonpatrimonial Damages [] A good starting point for probing the rationality of the distinction found in section (b) is the relationship in law between patrimonial and nonpatrimonial damages. That understanding will inform the constitutional appropriateness of granting legal redress to one class of married couples and denying it to another. [] The act does not define “damages” or “damages for patrimonial loss.” Its meaning must be garnered from the common law. The notion of damages is best understood not by its nature but by its purpose. Damages are “a monetary equivalent” of loss “awarded to a person with the object of eliminating as fully as possible [her or]

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his past as well as future damage.” The primary purpose of awarding damages is to place, to the fullest possible extent, the injured party in the same position she or he would have been in, but for the wrongful conduct. Damages also represent “the process through which an impaired interest may be restored through money.” To realize this purpose our law recognizes patrimonial and nonpatrimonial damages. Both seek to redress the diminution in the quality and usefulness of a legally protected interest. It seems clear that the notion of damages is sufficiently wide to include pecuniary and nonpecuniary loss and it is understood to do so ordinarily in practice. [] Thus patrimonial damages, which in practice are also called special damages, aim to redress, to the extent that money can, the actual or probable reduction of a person’s patrimony as a result of the delict or breach of contract. In this sense patrimonial damages are said to be a “true equivalent” of the loss. Ordinarily they are calculable in money. Well-settled examples in bodily injury claims are past and future medical expenses, past and future loss of income, loss of earning capacity, and loss of support. [] On the other hand nonpatrimonial damages, which also bear the name of general damages, are utilized to redress the deterioration of a highly personal legal interest that attach to the body and personality of the claimant. However, ordinarily the breach of a personal legal interest does not reduce the individual’s estate and does not have a readily determinable or direct monetary value. Therefore, general damages are, so to speak, illiquid and are not instantly sounding in money. They are not susceptible to exact or immediate calculation in monetary terms. In other words, there is no real relationship between the money and the loss. In bodily injury claims, well-established variants of general damages include “pain and suffering,” “disfigurement,” and “loss of amenities of life.” [] Besides bodily integrity, our law recognizes and protects other personality interests such as dignity, mental integrity, bodily freedom, reputation, privacy, feeling, and identity. A wrongful reduction of the quality of these personality interests or rights entitles the victim to nonpatrimonial damages.

Does the Section Differentiate? [] Yes, section (b) does differentiate. On a plain reading it denies a spouse married in community of property the right to claim damages for patrimonial loss arising from bodily injury inflicted by the other spouse. However, in doing so the section, in effect, draws a distinction amongst different classes of domestic partnerships. For the present purpose, the differentiation operates between marriages in community of property and marriages out of community of property. More accurately, the differentiation is between the proprietary interests and protections which the section attaches to the two marital regimes. [] The equality jurisprudence of this court on the specified ground of “marital status” so far relates to protectable interests or disabilities of being married or not being married. In advancing the argument that the differentiation is on the specified

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ground of marital status, the minister sought refuge in the decision of this court in Daniels v. Campbell NO. However, this decision does not assist the cause of the Minister. In Daniels the court held that the discrimination complained of had occurred in the past in respect of marital status precisely because legislative protection was withheld from Muslim spouses on the unsustainable interpretive pretext that their marriages were not marriages at all. In that case, what the old and constitutionally unacceptable judicial interpretation of the word “spouse” had resulted in was in effect denial of the very legal status, official classification and formal recognition or standing of marriage. In Volks NO v. Robinson the specified ground of marital status was engaged because the impugned law accorded benefits to married people which it did not accord to unmarried people. However the present case is different. The challenged measure merely regulates and distinguishes rights and duties that attach to different property regimes within marriage. [] The applicant urged upon us to adopt a generous and expansive meaning of “marital status” as required when giving effect to a right in the Bill of Rights. For this proposition applicant referred to the dictionary meaning of “marital” and “status.” None appear to support the meaning contended for. Be that as it may, it is open to doubt whether the specified ground of marital status is engaged by the impugned legislative differentiation. If that were so, it would imply that any difference in proprietary consequences of marital regimes prescribed by the common law or legislation is presumptively discriminatory and unfair unless shown not to be. In my view, such a generous and far-reaching understanding of “marital status” in section () of the Constitution may well be untenable. However, given the conclusion I have come to on the rationality requirement of equality under section () of the Constitution, I need not, in this case, reach a final conclusion on whether the differentiation is on the specified ground of marital status. For the same reason I need not reach the question whether the differentiation constitutes unfair discrimination on any other specified or “analogous” ground.

Does the Differentiation Bear a Rational Connection to a Legitimate Government Purpose? [] I am at the point of enquiring whether the differentiation brought into being by section (b) evinces a rational connection to the governmental purpose proffered to validate it. For the appropriate test I turn to Prinsloo v. Van der Linde and Another in which this court explained that in the first leg of the equality test the constitutional state is bound to act in a rational manner: It should not regulate in an arbitrary manner or manifest “naked preferences” that serve no legitimate governmental purpose, for that would be inconsistent with the rule of law and the fundamental premises of the constitutional state. The purpose of this aspect of equality is, therefore, to ensure that the state is bound to function in a rational manner. This has been said to promote the

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need for governmental action to relate to a defensible vision of the public good, as well as to enhance the coherence and integrity of legislation.

[] It is so that laws rarely prescribe the same treatment for everyone. Yet it bears repetition that when a law elects to make differentiation between people or classes of people it will fall foul of the constitutional standard of equality if it is shown that the differentiation does not have a legitimate purpose or a rational relationship to the purpose advanced to validate it. Absent the precondition of a rational connection the impugned law infringes, at the outset, the right to equal protection and benefit of the law under section () of the Constitution. This is so because the legislative scheme confers benefits or imposes burdens unevenly and without a rational criterion or basis. That would be an arbitrary differentiation that neither promotes public good nor advances a legitimate public object. In this sense, the impugned law would be inconsistent with the equality norm that the Constitution imposes, inasmuch as it breaches the “rational differentiation” standard set by section () thereof. [] The charge of the irrationality and inequity of section (b) is neither novel nor of recent origin. In fact it well precedes our constitutional dispensation. The minister and the amicus drew our attention to the  SA Law Commission Report that preceded the enactment of the act. We were referred to an insightful critique of section  of the act and its underlying common-law rationale: Contrary to the position in marriages out of community of property, one spouse cannot claim on the ground of delict against the person to whom he or she is married in community of property. Not only is this state of affairs clearly anomalous, but its injustice is also particularly striking where the actual defendant is a third party, for example an insurance company. Should a husband, for example, run his wife down and injure her, she could well succeed against the third-party insurer if they were married out of community of property, but would have no claim at all if they were married in community of property.

[] In my view, the distinction made by section (b) on claims for patrimonial damages between spouses married in and out of community is a relic of the common law of marriage, which is simply not useful. The distinction drawn by section  displays a preoccupation with the conceptual cohesion of a joint estate. After all in theory “everything is owed and owned in common” and “what he or she recovers from the other comes out of the joint estate and falls back instantly.” Thus by refusing the physically brutalized spouse a claim for patrimonial loss against the other spouse, the common law, so too section (b), seeks to retain the notional purity of the universal community and to escape the futility of damages that would come from and return to joint patrimony.

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[] But the rub is that the government purpose of preserving the unity of the joint estate and to avoid the futility of spousal claims for bodily injury has fallen away. [] There is no rational account why the scheme or purpose of the act stops short of granting redress in the form of patrimonial damages resulting from spousal violence. The claim would not be futile because the proceeds of the claim would not accrue to the common patrimony but would become separate property of the battered spouse. In that event, clearly the guilty spouses will not benefit from their willful or negligent misdeeds. [] Equally absurd is to withhold from spouses in joint estates patrimonial redress against physical abuse but to grant it to spouses married out of community of property. It does not seem to me that the risk of bodily harm at the hands of a spouse is an essential or defining difference between the two types of marital property regimes. Nothing suggests that spouses in the one class merit greater protection from willful domestic battery or accidental bodily injury than spouses in the other. The anomaly and arbitrariness assumes even more startling proportions when the claim arising from spousal violence lies against a third party insurer. The insurer is not liable in the one instance of marriage in community of property but is liable in the case of marriage out of community of property. Why should the negligent driving of a spouse in the one class of marriage attract delictual relief and not under a different marital regime? In my view, no legitimate end dictates this distinction. [] Another important consideration is that there is no rational divide between patrimonial and non-patrimonial damages for purposes of spousal claims against each other for delictual personal injury. As we have seen earlier, the principal distinction between the two classes of damages is that nonpatrimonial damages seek to redress the loss or reduction of a highly personalized interest, which does not affect the claimant’s estate and is not readily calculable in monetary terms, whereas patrimonial loss ordinarily affects the patrimony and represents a true pecuniary equivalent of the damages. What is crucial for the present purpose is that the law of damages recognizes special and general damages to afford the fullest possible redress for delictual harm. Both classes of damages seek to redress the deterioration or reduction of the quality or usefulness of a legally protected interest. In both cases the injured party loses something and receives money as reparation. Stated differently, the principal object of damages, whatever the kind, is to “neutralize loss through the addition of a new patrimonial element.” By prohibiting recovery of patrimonial damages for personal injury, section (b) arbitrarily prevents the fullest possible compensation for spouses who are victims of violence, negligent driving or other wrongdoing that leads to bodily harm by their marriage partners. [] Another pointer to arbitrariness is that whilst there are definitional differences between patrimonial and nonpatrimonial damages, in bodily injury claims the distinction is often blurred because the infringed personality interest often causes loss that affects both the person and the patrimony. For an example we need not look far. Mrs. Van der Merwe, the applicant, was run over by her husband intentionally. On

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her version, she sustained grievous bodily injuries which have given rise to general damages in the form of pain and suffering, disfigurement and loss of amenities of life and to special or patrimonial damages for loss of earnings and earning capacity and hospital and medical expenses. Thus infringement of bodily integrity is not a reliable predictor of the nature or class of damages that may flow. The absence of a reliable distinction between patrimonial and non-patrimonial damages in bodily injury suits in itself demonstrates that the distinction made in section (b) is at best tenuous and thus falls foul of the requirement of a rational differentiation. [] The section draws an impermissible differentiation between spouses married in and out of community of property in respect of the right to recover patrimonial damages suffered from bodily injury attributable either wholly or in part to the fault of the other spouse. The differentiation is not legitimate because in itself it is arbitrary and furthermore it does not serve a legitimate public end. In doing so, section (b) limits the right to equal protection and benefit of the law guaranteed by section () of our Constitution. The question is whether such limitation is justifiable?

Justification [] The Fund contends that the limitation of the applicant’s right to equal protection and benefit of the law is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom. To that end, the Fund urged upon us that marriage is a matter of choice and so too are the proprietary consequences of marriage. [] This line of reasoning falters on two grounds. First, the constitutional validity or otherwise of legislation does not derive from the personal choice, preference, subjective consideration or other conduct of the person affected by the law. The objective validity of a law stems from the Constitution itself, which in section , proclaims that the Constitution is the supreme law and that law inconsistent with it is invalid. Several other provisions of the Constitution buttress this foundational injunction in a democratic constitutional State. A few should suffice. Section () affirms that the Bill of Rights applies to all law and binds all organs of State including the Judiciary. Section () obliges courts to interpret legislation in a manner that promotes the spirit, purport and objects of the Bill of Rights. And importantly, section () makes plain that, when deciding a constitutional matter within its power, a court must declare that any law that is inconsistent with the Constitution is invalid to the extent of its inconsistency. Thus the constitutional obligation of a competent court to test the objective consistency or otherwise of a law against the Constitution does not depend on and cannot be frustrated by the conduct of litigants or holders of the rights in issue. Consequently, the submission that a waiver would, in the context of this case, confer validity on a law that otherwise lacks a legitimate purpose has no merit. [] Second, ordinarily the starting point of a justification enquiry would be to examine the purpose the government articulates in support of the legislation under

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Legal Cases (–)

challenge. In this case the government did not proffer a purpose to validate the impugned provision. If anything, the government contends that the provision is inconsistent with the Constitution because it is irrational or unfairly discriminatory. It correctly, in my view, disavowed the existence of a legitimate purpose for withholding a right of recourse for patrimonial loss from physically brutalized spouses in marriages in community of property whilst granting the protection to spouses in other forms of marriages or indeed to parties in other domestic partnerships. [] [. . .] The lack of a legitimate purpose renders, at the outset, the limitation unjustifiable. I am satisfied that section (b) of the act is inconsistent with the Constitution because it limits the equality provision of section () without any justification.

Dignity, Gender Discrimination, and Domestic Violence [] The amicus presented three compelling arguments on dignity, gender discrimination, and domestic abuse to support the contention that the impugned provisions are constitutionally intolerable. The arguments are mutually reinforcing and often seem to point to intersectional limitation of these vital constitutional protections. [] First, on their argument, the challenged section desecrates the intrinsic and equal worth promised by section  of the Constitution to everyone including victims of spousal brutality and of accidents attributable to the willful or negligent wrongdoing by spouses. Yet section (b) immunizes spouses married in community of property from all patrimonial claims, even those which arise from degrading domestic battery. No one can credibly suggest that the domestic road rage Mrs. Van der Merwe had to endure is not an affront to her self-worth and dignity. Yet the law refuses to hold fully accountable and liable its perpetrator. In other words, her bodily harm is not actionable in a material respect, yet spouses, women in particular, situated in another form of marriage are worthy of full protection. [] Second, the amicus urged us to find that section (b) is problematic because it amounts to indirect and unfair discrimination against women. To this assertion, the fund protested that the scantily stated facts do not permit a speculative foray into the conditions under which women married in community of property find themselves. It is so that ordinarily, when a court is invited to decide a legal issue only on an agreed set of facts, it may not depart from the facts. However, when the constitutional validity of a law or conduct is challenged by invoking one or more guarantees in the Bill of Rights, contextual analysis is often all important. The validity or otherwise of a law has implications that go well beyond the parties before court. It is a matter of public concern. For that reason a court is obliged, where appropriate, to consider the context, historical or social or textual, in which the guarantees should be understood and the impugned law operates. It is, however, unnecessary to resolve the question whether the facts in the stated case provide ample platform to decide the challenge premised on indirect gender discrimination. This is so because I uphold the applicant’s claim on another basis, which disposes of the appeal.

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[] There is nonetheless much cogency in the submission of the amicus that, despite its gender-neutral terms, the probable effect of section (b) on women married in community of property is likely to be more devastating than on their male counterparts. There is no doubt that in our society domestic violence and economic vulnerability are gendered in nature. Both are a sad sequel to patriarchy. Women are more likely to fall victim to the battery, abuse or negligent driving of their domestic partner than otherwise and are therefore more likely to be nonsuited for patrimonial damages than their husbands. Even more demeaning is that victims of domestic and other violence within marriages in community of property would have to solicit their abuser’s consent to meet medical and other bills or to make up loss of earnings out of the joint estate. Moreover, in these circumstances third-party insurers, if any, are not liable to reimburse the injured spouse or the joint estate. In this way, the burden of abuse and economic dependency becomes mutually reinforcing and most intolerable. [] The facts that impelled Mrs. Van der Merwe to seek satisfaction illustrate this devastation. Not even a divorce from her abuser entitles her to escape the adverse consequences of being rendered claimless under section (b) in time if needed. Although on its face the provision appears gender-neutral, there is much to be said for the inference that it is bound to work a more severe hardship on women married in community of property than men similarly situated. [] Third, the amicus and the applicant invited us to hold that section (b) omits to protect patrimonial loss derived from spousal bodily injury. Both submit that the omission by the State unjustifiably limits freedom from all forms of violence from either public or private resources as envisaged in section ()(c) of the Constitution. It is so that section (b) attaches limited adverse patrimonial consequences to domestic violence, be it negligent or willful. Spouse batterers and wrongdoers in delict are in effect immunized from making good patrimonial damages of their marriage partners. This ouster provision seems to be at odds with the constitutional protection extended to a person’s bodily integrity. However, once again, given the conclusion I have reached on the equality provisions under section (), I need not express a firm view on this contention.

Remedy [] I have found that section (b) of the act is inconsistent with the equality provision of section () of the Constitution because it fails the rational differentiation test. [] Having weighed the applicable guidelines on the remedy of severance and reading-in, I am persuaded that the inclusion of the words “other than damages for patrimonial loss” in section (b) of the act is inconsistent with the Constitution and should be so declared. I have come to the conclusion that it would be just and equitable that the offending words should be severed from the provision. [] I also find that the omission from section (b) of the act of the words “[s]uch damages do not fall into the joint estate but become the separate property

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Legal Cases (–)

of the injured spouse” after the words “either wholly or in part to the fault of that spouse” is inconsistent with the Constitution and invalid. In the order I will make, the declaration of constitutional invalidity will be accompanied by an appropriate reading-in order to that effect. This approach to the order will resolve the obvious omission in the order of the High Court. As the order presently stands, patrimonial damages recovered under section (b) would nonetheless revert to the joint estate. The words inserted to the order I propose to make, make it clear that patrimonial damages will accrue to the separate estate of the injured spouse. JUSTICE YACOOB [] In my view, the choice argument may well have been relevant to the justification analysis if there had, at the very least, been a legitimate governmental purpose. I agree with the finding that there is no legitimate governmental purpose present to support any justification of the law under attack in this case. In this event, the justification analysis fails on that ground and that ground alone.

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Dikoko

Dikoko v. Mokhatla  () SA  (CC) CASE SUMMARY

Facts This case concerned a claim for damages arising out of allegedly defamatory statements made by the applicant, Mr. David Dikoko, a municipal councilor. The auditor-general summoned the applicant to appear before the North West Provincial Standing Accounts Committee (the Standing Committee) to provide an explanation for certain unpaid cell-phone accounts. During the hearing, Dikoko made a statement that his indebtedness arose because the respondent, Mr. Mokhatla, who was also a municipal official, had changed the accounting procedures of the council. The accounting procedure now provided for periodic, as opposed to monthly, payments of cell-phone accounts. Dikoko stated that Mokhatla had done so deliberately in order to cause the applicant’s indebtedness to the council to accumulate so as to provide Dikoko’s political opponents with a basis to attack his integrity.

Legal History Mokhatla instituted an action for damages against Dikoko in the Pretoria High Court, claiming that the latter’s statement to the Standing Committee was defamatory. In his defense, Dikoko entered a special plea claiming that the statement enjoyed privilege under the relevant legislation. The High Court found that the statements were defamatory and awarded Mokhatla damages of R,. In coming

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Legal Cases (–)

to its conclusion, the High Court dismissed Dikoko’s special plea of privilege. The applicant applied to the Supreme Court of Appeal for leave to appeal against the finding of liability as well as against the quantum of damages awarded. The application was dismissed. The applicant sought leave to appeal to the Constitutional Court.

Issues Two issues arose during the Constitutional Court proceedings. The first issue was whether Dikoko’s statements enjoyed privilege. Secondly, the court considered the issue of the quantum of damages awarded to Mokhatla by the High Court. Decision of the Constitutional Court Separate majorities emerged in the court in respect of the two issues. Justice Mokgoro writing for a unanimous court (Chief Justice Langa, Deputy Chief Justice Moseneke, Justices Madala, Ngcobo, Nkabinde, O’Regan, Sachs, Skweyiya, Van der Westhuizen, and Yacoob concurring) dismissed the applicant’s arguments in relation to privilege. With regard to the question of quantum, Deputy Chief Justice Moseneke, writing for a majority of the court (Chief Justice Langa, Justices Madala, Ngcobo, O’Regan, Van der Westhuizen, and Yacoob concurring), held that an excessive award of damages will deter free speech and therefore have a chilling effect on freedom of expression. He assumed, without deciding, that the issue of quantum in a defamation suit is a constitutional matter. Deputy Chief Justice Moseneke held further that there is no reason why, for the purposes of section  of the Constitution, an appropriate award in a defamation case should not include an award of damages (paragraph ). However, he held that the general rule is that damages should be left to the determination of the trial court and that an appellate court should only interfere when there are special circumstances obtain. He concluded that, in this case, no special circumstances justified interference with the High Court’s award. On the question of quantum, Justice Mokgoro dissented (Justices Nkabinde and Sachs concurring). She held that quantum is in itself a constitutional issue. And although the amount of damages is a matter generally best left to the discretion of the trial court, an appeal court can replace the trial court’s award if it finds that the trial court erred in law or fact. She held that in this case the trial court had not taken all the relevant factors into account, in particular certain mitigating facts. Justice Mokgoro therefore concluded that the High Court did not exercise its discretion reasonably and an award of R, would have been more reasonable. Justice Sachs, in a separate judgment, held that the law of defamation should be developed so as to move away from an almost exclusive preoccupation with monetary awards. Monetary awards, Sachs said, do not restore damage done to a person’s reputation and often serve to drive parties further apart rather. “Unlike businesses”, he wrote, “honor is not quoted on the stock exchange. The true and lasting solace for the person wrongly injured is the vindication by the court of his or her reputation

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in the community” (paragraph ). He stated that the law of defamation should develop towards an approach that encourages an apology—a remedy better suited to reconciling the parties (paragraph ). The goal of the remedy should be reparation rather than punishment. He held that this approach would be more consonant with the constitutional value of uBuntu-botho and the notion of restorative justice.

Order Deputy Chief Justice Moseneke, on behalf of the majority of the court, granted the application for leave to appeal, but dismissed the appeal with costs. Comment The dissenting judgments of Justices Mokgoro and Sachs both assert the close relationship between the constitutional value of human dignity and uBuntu or botho. Justice Mokgoro describes uBuntu or botho as an idea based on deep respect for the humanity of another (paragraph ). Both Justices Mokgoro (paragraph ) and Sachs (paragraphs –) contend that uBuntu-botho supports a model of restorative justice that aims to rebuild social relationships. The twin dissents of Justices Mokgoro and Sachs in Dikoko are therefore a strong indication that members of the court continue to regard uBuntu-botho as a principle that, though not independently justiciable, has a real and substantial impact on constitutional adjudication. Justice Sachs describes uBuntu-botho as “intrinsic to and constitutive of our constitutional culture” (paragraph ). JUSTICE MOKGORO

Mr. Dikoko’s Appeal Against the Quantum of Damages [] The High Court, having found Mr. Dikoko liable for defamation, awarded damages against him in the amount of R,. He appealed against the award, claiming that it is excessively disproportionate or grossly unreasonable and not commensurate with the limited publication of the statement as well as the slight injury to Mr. Mokhatla’s reputation and contended for this court to substitute its own award of damages for that of the High Court. [] The emerging question is whether this court has jurisdiction to review the High Court award. First to determine is whether the award of damages is a constitutional issue falling within the jurisdiction of this court. Should this court have jurisdiction to review the award, the next question would be whether in our jurisprudence and under the applicable legal principles this court should do so. [] I agree with Deputy Chief Justice Moseneke’s finding in paragraph  of this judgment that the extent of damages for defamation has implications for the relationship between dignity and freedom of expression. Robust awards will indeed have a “chilling effect” on freedom of expression.

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Legal Cases (–)

[] Deputy Chief Justice Moseneke assumes without deciding that the amount of damages in a defamation suit is a constitutional matter. My view is that when a damages award is excessive, as this judgment finds, it has the effect of curbing freedom of speech for fear of repercussions that might flow from exercising that freedom guaranteed and protected in the Constitution. In my view, therefore, we are clearly seized with a constitutional matter. What remains to be determined is whether this court should interfere with the High Court’s award. [] In that regard, Mr. Mokhatla submits this court should interfere with the damages award only if leave to appeal on the constitutional issue is granted. Having granted leave, there can be no objection on the part of Mr. Mokhatla for this court to redetermine the High Court’s assessment. [] Even if this court has jurisdiction to review the quantum, Mr. Mokhatla submitted, being in the same position as any appellate court, it ought not to interfere with the High Court’s award merely for the reason that its own assessment would yield a different amount. What would additionally be required, Mr. Mokhatla argues, is for this court to make a finding that the High Court’s award of damages was manifestly unreasonable. [] The approach of the Supreme Court of Appeal to the question whether it can replace a trial court’s award of damages has been that the amount of damages to be awarded is in the discretion of the trial court but that that court must exercise its discretion reasonably. In Sandler v. Wholesale Supplies Ltd. the Supreme Court of Appeal held that should an appellate court find that the trial court had misdirected itself with regard to material facts or in its approach to the assessment, or, having considered all the facts and circumstances of the case, the trial court’s assessment of damages is markedly different to that of the appellate court, it not only has the discretion but is obliged to substitute its own assessment for that of the trial court. In its determination, the court considers whether the amount of damages, which the trial court had awarded, was so palpably inadequate as to be out of proportion to the injury inflicted. [] The Supreme Court of Appeal will therefore interfere with an award of damages only if it finds that the award of the trial court was palpably excessive, clearly disproportionate in the circumstances of the case, grossly extravagant or unreasonable, or so high as to be manifestly unreasonable. An appellate court may therefore interfere if a trial court is found to have misdirected itself in its assessment of damages. [] When the High Court assessed the quantum it took into account and emphasized relevant factors that demonstrated the serious nature of the defamation. Relying on the dictum in Skinner v. Shapiro (I) [ WLD ], the High Court simply stated without motivation: “[W]hen this dictum is applied to the facts of the present case it is clear that the plaintiff ’s position in society; the relationship that existed between the parties; the absence of an apology and the seriousness of the allegations

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all weigh against the defendant.” After considering that all these factors weighed against Mr. Dikoko the court found that it was reasonable to make an award of damages of R,.

Assessment of the Quantum [] The law of defamation is based on the actio injuriarum; a flexible Roman-law remedy, which afforded the right to claim damages to a person whose personality rights had been impaired by another. The action is designed to afford personal satisfaction for an impairment of a personality right and became a general remedy for any vexatious violation of a person’s right to his dignity and reputation. A number of factors arising from the facts and circumstances of the case are taken into account in assessing the amount of damages. [] Mr. Dikoko has not apologized to Mr. Mokhatla for his defamatory statement. The question arises as to what effect an apology should have on the amount of damages to be awarded. In Mineworkers Investment Co (Pty) Ltd. v. Modibane [ () SA  (W)] (the Mineworkers case) the plaintiff had brought two separate defamation actions against the defendant, which were consolidated and set down together for trial. The order which the plaintiff requested was an order for damages in the event that the defendant did not publish within ten days of the court’s order an apology and a retraction of the statements which he had made. Justice Willis proceeded to consider whether a defendant in a defamation action could be ordered to apologize. The court considered a remedy which had existed in Roman-Dutch law, known as the amende honorable. In describing this remedy he referred to Melius de Villiers in The Roman and Roman-Dutch Law of Injuries at , which stated the following: In the systems of jurisprudence founded on Roman law a legal remedy has been introduced which was entirely unknown to the Romans, known as the amende honorable. . . . This remedy took two forms. In the first place, there is the palinodia, recantatio or retractio, that is a declaration by the person who uttered or published the defamatory words or expressions concerning another, to the effect that he withdraws such words or expressions as being untrue; and it is applied when such words or expressions are in fact untrue. In the second place there is the deprecatio or apology, which is an acknowledgment by the person who uttered or published concerning another anything which if untrue would be defamatory, or who committed a real injury, that he has done wrong and a prayer that he may be forgiven.

[] Justice Willis held further that the remedy had fallen into disuse in our law, mainly because in Roman-Dutch law it was to be enforced by means of civil imprisonment, a remedy of which the courts disapproved. This did not mean it had been abrogated by disuse; it still formed part of our law and

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Legal Cases (–)

[e]ven if I am wrong in the conclusion that the amende honorable is still part of our law, there are other reasons why I believe a remedy analogous thereto should be available. I agree with the submission of Mr. Chaskalson that, if the only other remedy available in a defamation action is damages, then very often an appropriate balance will not be struck between the protection of reputation on the one hand and freedom of expression on the other. It fails in two respects: (i) often, it does not afford an adequate protection to reputation and (ii) it can, at least indirectly, impose restrictions on freedom of expression. Awards of damages can ruin defendants financially and this risk can operate to restrict information being published which may indeed be in the public interest. The uncertainty as to whether the “truth plus public benefit” defense will succeed can inhibit freedom of expression. As Acting Justice Hefer, as he then was, said in the case of National Media Ltd. v. Bogoshi (supra at G–I): “Much has been written about the ‘chilling’ effect of defamation actions but nothing can be more chilling than the prospect of being mulcted in damages for even the slightest error.”

Furthermore, the harm done by a defamatory statement is damage to the reputation of a person. A public apology will usually be far less costly than an award of damages. It can set the record straight; restore the damaged reputation giving the necessary satisfaction; avoid serious financial harm to the culprit and encourage, rather than inhibit, freedom of expression. [] A somewhat different approach was adopted in Young v. Shaikh [ () SA  (C)]. In that matter statements made during an interview with the defendant on a South African television station on  November  and repeated on  November  led the plaintiff to claim damages in the amount of R,. In his plea the defendant apologized to the plaintiff unconditionally and unreservedly and in addition, tendered to pay his costs up to and including the consideration of his plea. The defendant submitted that the plaintiff should have claimed an apology instead of damages and should have been satisfied with the apology tendered in the plea. As authority for this submission reference was made to the dictum of Justice Willis in the Mineworkers case. [] The court nonetheless held that, even if the amende honorable was still part of South African law, an apology in the circumstances of that case would not serve the interests of justice. Freedom of expression, it held, does not include the right to attack falsely the integrity of a fellow citizen for selfish reasons, which have nothing to do with “public benefit.” It further held that, if the award which it intended to make might have a chilling effect on possible future and similarly baseless and selfish attacks on the integrity of others, it would be an additional reason not to make use of the amende honorable. In addition it was found that an apology in a plea given half-heartedly in evidence could not be regarded as adequate. An aggravating factor

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was that the defendant had not shown any compunction when attacking the plaintiff ’s integrity and was indifferent to any financial harm that his baseless accusations could have caused. [] The case illustrates that whether or not the amende honorable technically still forms part of our law, it is important that, once an apology is tendered as compensation or part thereof, it should be sincere and adequate in the context of each case. When considering the purpose of compensation in defamation cases the true value of a sincere and adequate apology, the publication of which should be as prominent as that of the defamatory statement, and/or a retraction as a compensatory measure restoring the integrity and human dignity of the plaintiff, cannot be exaggerated. Far more is involved than protecting freedom of speech from inordinate damages claims. [] In our constitutional democracy the basic constitutional value of human dignity relates closely to uBuntu or botho, an idea based on deep respect for the humanity of another. Traditional law and culture have long considered one of the principal objectives of the law to be the restoration of harmonious human and social relationships where they have been ruptured by an infraction of community norms. It should be a goal of our law to emphasize, in cases of compensation for defamation, the reestablishment of harmony in the relationship between the parties, rather than to enlarge the hole in the defendant’s pocket, something more likely to increase acrimony, push the parties apart and even cause the defendant financial ruin. The primary purpose of a compensatory measure, after all, is to restore the dignity of a plaintiff who has suffered the damage and not to punish a defendant. A remedy based on the idea of uBuntu or botho could go much further in restoring human dignity than an imposed monetary award in which the size of the victory is measured by the quantum ordered and the parties are further estranged rather than brought together by the legal process. It could indeed give better appreciation and sensitize a defendant as to the hurtful impact of his or her unlawful actions, similar to the emerging idea of restorative justice in our sentencing laws. [] The focus on monetary compensation diverts attention from two considerations that should be basic to defamation law. The first is that the reparation sought is essentially for injury to one’s honor, dignity, and reputation, and not to one’s pocket. The second is that courts should attempt, wherever feasible, to reestablish a dignified and respectful relationship between the parties. Because an apology serves to recognize the human dignity of the plaintiff, thus acknowledging, in the true sense of uBuntu, his or her inner humanity, the resultant harmony would serve the good of both the plaintiff and the defendant. Whether the amende honorable is part of our law or not, our law in this area should be developed in the light of the values of uBuntu emphasizing restorative rather than retributive justice. The goal should be to knit together shattered relationships in the community and encourage acrossthe-board respect for the basic norms of human and social interdependence. It is an area where courts should be proactive, encouraging apology and mutual understanding wherever possible.

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[] This case suggests itself as one where perhaps more could have been done to facilitate an apology. The parties worked closely together in the same environment. An apology or retraction by Mr. Dikoko could have gone a long way. At no stage did he offer an apology or a retraction of his false and damaging accusations. The evidence that he led before the High Court, testifying to the high regard he had for Mr. Mokhatla, was of an abstract nature and fell far short of a direct apology for the specific and baseless charges he had made. This is a case where it might have been appropriate to order an apology if this had been a majority judgment. However, considering that this is a minority judgment it is not appropriate. Having said that, what remains is to consider whether the monetary award made by the High Court can be interfered with. [] When assessing damages for defamation, courts have in the past considered a range of factors arising from the circumstances and facts of the case: The nature and gravity of the defamatory words; falseness of the statement; malice on the part of the defendant; rank or social status of the parties; the absence or nature of an apology; the nature and extent of the publication and the general conduct of the defendant. The court must therefore have regard to all the circumstances of a case where the assessment is always context specific. The list is nonexhaustive. Although earlier cases of a similar nature give guidance, they must always be applied with the necessary circumspection. [] When factors that could have a mitigating effect on the seriousness of the defamation are not shown to have been taken into consideration a difficulty arises. The difficulty is that, unless shown, this court will never know. In Charles Mogale, the court stated that: “A court of appeal may also interfere if the court of first instance materially misdirected itself and in this regard it is important for a court of second instance to know what factors a trial court has taken into account in determining the award.” [] It is therefore important that all relevant factors be taken into account when assessing damages for defamation. Also important is to strike an equitable balance in the determination of the gravity of the damage. It is for this reason too that a trial court must show that it has considered those relevant factors that not only aggravate but also mitigate the seriousness of the damages. Hulley v. Cox [ AD ], considering quantum in a different context, emphasized the importance of equity in the assessment of damages and held: “The amount . . . should be estimated on an equitable basis on a consideration of all the circumstances.” [] Equity in determining a damages award for defamation is therefore an important consideration in the context of the purpose of a damages award, aptly expressed in Lynch as solace to a plaintiff ’s wounded feelings and not to penalize or deter people from doing what the defendant has done. Even if a compensatory award may have a deterrent effect, its purpose is not to punish. Clearly, punishment and deterrence are functions of the criminal law. Not the law of delict. [] In our law a damages award therefore does not serve to punish for the act of

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defamation. It principally aims to serve as compensation for damage caused by the defamation, vindicating the victim’s dignity, reputation and integrity. Alternatively, it serves to console. For the reasons stated above and in particular having disregarded relevant factors that could have mitigated the damage caused by the defamation, the High Court, in my view, had materially misdirected itself, thereby arriving at an unreasonable award. The grounds for this court to make its own assessment of the damages are therefore sufficient and I proceed to do so. [] The High Court had taken into account Mr. Mokhatla’s position in society; the relationship between Mr. Dikoko and Mr. Mokhatla; the absence of an apology and the seriousness of the allegations made by Mr. Dikoko against Mr. Mokhatla. It said so expressly. Additional relevant factors not mentioned and, in my view, not given due regard are: the nature of the defamatory statement; the damaging effect that it had on Mr. Mokhatla; and the nature and extent of circulation of the publication. [] The untruthful nature of the statement; denying responsibility for his tardiness and placing all blame on Mr. Mokhatla for the predicament which he created for himself are factors which aggravate the damage done not only to Mr. Mokhatla’s personal reputation, dignity and esteem, but also to his professional integrity. Although Mr. Mokhatla has no doubt suffered serious damage to his professional integrity, the damage was, in my view, not fatal to his career. At the time the proceedings were launched he was municipal manager of the Klerksdorp Municipal Council, a position of high public office, directly relevant to his experience, performance, and trustworthiness as CEO of the council and his integrity as a person and a professional in the management of local government. Although Mr. Mokhatla had been defamed largely in local and provincial government circles, having been appointed to this high public office within the same government circles is demonstration that his integrity as a trustworthy public manager in local government is still largely intact despite Mr. Dikoko’s statement. This is an important mitigating factor, which the High Court should not have disregarded. [] Mr. Dikoko’s statements were made in the Standing Committee and were published only in the local press. The statements therefore had limited circulation. Although Mr. Mokhatla contended that this local publication did more damage to his career than would publication at a national level, in that his professional reputation was more at stake in local circles, his professional reputation does not seem to have been fatally dented. As indicated above, his current position as municipal manager after he had left the council where he served as CEO seems to suggest that he is still held in high esteem in local-government circles and in the province. This, too, is a factor which, had the High Court taken into account, would have influenced its assessment of damages. [] In making its award of damages, the High Court did not exercise its discretion reasonably. It did not take into account factors that mitigate the damages award. Mr. Dikoko contends that an amount of R, to R, would be adequate. The High Court made an award of R,. For reasons outlined above I conclude

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that in the circumstances of this case an award in the amount of R, would have been appropriate. I would therefore have replaced the High Court’s order that Mr. Dikoko pay damages in the amount R, with an order that he pay damages in the amount of R,. DEPUTY CHIEF JUSTICE MOSENEKE [] I have had the benefit of reading the judgment of Justice Mokgoro. I am in agreement with the outcome she proposes that the application for leave to appeal be granted. I also concur that the appeal against the decision of the High Court holding Mr. Dikoko liable for defamation has no merit and should fail for the reasons she admirably advances. However, Justice Mokgoro concludes that the appeal of Mr. Dikoko against the quantum of damages awarded by the High Court has merit and should succeed. I respectfully disagree. [] Justice Skweyiya has written a separate dissenting judgment. He concludes that the application for leave to appeal against the quantum of defamation damages must fail because this court has no power to entertain the appeal. I agree that the appeal must fail. However, this he says because, in his view, the assessment of defamation damages, particularly in this matter, is neither a constitutional matter, nor a matter connected to a constitutional matter. Given the conclusion I arrive at, I do not consider it necessary to decide whether the assessment of damages raises a constitutional issue. [] It will be remembered that the High Court made an award of R, in damages against the applicant. Justice Mokgoro takes the view that in all the circumstances of this case a proper award should be no more than half of the original award and that accordingly an award of R, should replace that of the High Court. In her view, the principal misdirection of the High Court is that it omitted from its assessment of damages factors that could mitigate the amount of the award. The omission, she finds, makes the award palpably excessive and significantly higher than her estimation, to the extent that the award is unreasonable. Relying on the authority of Hulley v. Cox, Justice Mokgoro holds that once an award is unreasonable an appellate court is obliged to substitute it with its own assessment. [] Two obvious issues surface. They are whether this court has the power to review the award of damages and if so whether it should do so. The first issue speaks to whether an assessment of defamation damages is a constitutional matter or an issue connected to a decision on a constitutional matter. The second poses the question whether any ground exists to interfere with the award of the trial court. [] Counsel for the respondent argued that the application for leave to appeal on the quantum of damages is incompetent because the assessment of defamation damages is not a constitutional matter, but rather a matter preeminently within the discretion of a trial court. He asserted that, even if the determination of delictual damages passes as a constitutional matter, an appeal against the award would ordi-

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narily lie with the Supreme Court of Appeal and not with this court. If, however, we were inclined to interfere with the award, he urged that we remit the award to the trial court for its reconsideration. [] It seems to me that the delict of defamation implicates human dignity (which includes reputation) on the one side and freedom of expression on the other. Both are protected in our Bill of Rights. It may be that it is a constitutional matter because, although the remedy of sentimental damages is located within the common law, it is nonetheless “appropriate relief ” within the meaning of section  of the Constitution. In Fose v. Minister of Safety and Security [ () SA  (CC)] this court assumed but stopped short of deciding whether “appropriate relief ” in section ()(a) of the Interim Constitution includes an award for damages where the award is required to enforce or protect rights in the Bill of Rights. The court, however, made it clear that [t]here is no reason in principle why “appropriate relief ” should not include an award of damages, where such an award is necessary to protect and enforce [chapter]  rights. Such awards are made to compensate persons who have suffered loss as a result of the breach of a statutory right if, on a proper construction of the statute in question, it was the Legislature’s intention that such damages should be payable, and it would be strange if damages could not be claimed for, at least, loss occasioned by the breach of a right vested in the claimant by the supreme law. When it would be appropriate to do so, and what the measure of damages should be will depend on the circumstances of each case and the particular right which has been infringed. (Footnotes omitted.)

[] Although these remarks in Fose were directed at the remedy provision of the Interim Constitution, it seems to me that the same considerations apply to the “appropriate relief ” envisaged in section  of the Constitution when an award of damages is necessary to vindicate, that is to protect and enforce, rights which aside their common-law pedigree are also enshrined in the Bill of Rights. There appears to be no sound reason why common law remedies, which vindicate constitutionally entrenched rights, should not pass for appropriate relief within the reach of section . If anything, the Constitution is explicit that, subject to its supremacy, it does not deny the existence of any other rights that are recognized and conferred by the common law. [] The extent of sentimental damages for defamation has implications for the properly mediated connection between dignity and free expression. It is plainly so that overly excessive amounts of damages will deter free speech and foster intolerance to it. As it is often said, robust awards will have a “chilling effect” on free expression, which is the lifeblood of an open and democratic society cherished by our Constitution. On the other hand, as Acting Justice Smalberger observed in Van der Berg v. Coopers and Lybrand Trust (Pty) Ltd. and Others [ () SA  (SCA)] “a person

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whose dignity has unlawfully been impugned deserves appropriate financial recompense to assuage his or her wounded feelings.” I therefore think there is a very strong argument to be made that the assessment of damages in a defamation suit is a constitutional matter and I will assume in favor of the applicant that it is. However, as will appear from the reasoning below, it is not necessary to finally decide the issue in this case. [] The next question is whether this court should interfere with the extent of the compensation award? It is a well-settled general rule that the assessment of sentimental damages properly reside within the province of a trial court. It is better suited to the task having had the opportunity to evaluate at first hand the evidence and demeanor of the parties. In fixing damages the trial court is entrusted with a wide discretion that must be exercised reasonably in the light of all the germane facts and other relevant factors. [] Special circumstances which justify encroachment are said to be present when the trial court has misdirected itself in the sense that it has awarded high or low damages on the wrong principle or when in the opinion of the appellate court the award is so unreasonable as to be grossly out of proportion to the injury inflicted. It must, however, be emphasized that the mere fact that the damages seem high is no reason to cut them down. In other words, the mere preference of a court with appellate power is not sufficient to upset a damages award. The standard at issue is not whether or not the trial court is correct but whether there is a glaring disproportionality between the amount awarded and the injury to be assuaged. Ultimately, the test is whether in all the circumstances of the case the compensation is a reasonable and just measure of the harm. [] Justice Mokgoro finds that the quantum of damages awarded is unreasonable. It is higher because none of the factors, which would have the effect of mitigating the gravity of the defamation, have been shown to have been considered. In her view, the trial court appears to have considered only factors that aggravate the seriousness of the defamation and damages. She finds that the following factors “have not been given due regard”: The nature of the defamatory statements; the effect of the statements on the respondent; and the nature and extent of the circulation of the publication. [] As we have seen, the principal charge against the High Court is that it omitted to have regard to all factors relevant in assessing damages. I am constrained to disagree. In my view the approach of the trial court to fixing damages should not be evaluated by the discussion in the judgment of the quantum of the compensation only. It must be gathered from the judgment read as a whole. One has to read the judgment, inclusive of the discussion on the merits and quantum, as a whole. The mere fact that certain considerations relevant to quantum are mentioned in the discussion on the merits only should not lead to the inference that they were not in the mind of the trial court when it determined the extent of the damages. The very nature of an enquiry into whether an expression is a defamatory matter requires an

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examination of the very factors Justice Mokgoro says the trial court has omitted. The body of the judgment of the trial court in fact traverses, as it must, the nature of the defamatory statement, the scope of its publication and effect and whether the applicant took any steps to rectify the harm done. [] The trial court was fully alive to the personal circumstances of both parties. In particular, the senior employment of the respondent at the time of the trial as a municipal manager of Klerksdorp. The court has recorded in detail his distinguished academic and work record. I think it is indeed relevant that the defamation was to a group of people who have oversight of the work of the respondent. Moreover, there has been no formal apology up to now. The applicant’s response after the defamatory event has been to litigate up to this forum seeking to hide behind the skirts of his public office. [] I would not interfere with the award of damages made by the High Court. I would instead find that there is no reasonable prospect that this court would alter the award of the trial court. [] In my view this is an appropriate matter in which costs should follow the result. Although, in constitutional matters, the ordinary rule is that an unsuccessful plaintiff who has sought to rely on constitutional rights is not ordinarily required to pay costs, particularly when litigating against the state, I do not think that that rule should be followed in this case. The respondent was admittedly defamed by the applicant. The applicant sought to raise a range of constitutional arguments in this court not proffered before and has not been successful. The respondent, as a private citizen, has had to come to this court to oppose those arguments. It seems fair and equitable in the circumstances that the applicant should pay the costs of the respondent. [] As this judgment has the support of the majority of the members of the court it is appropriate that it should reflect the court’s order. The order is as follows: . The application for leave to appeal is granted. . The appeal is dismissed. . The applicant is ordered to pay the costs of the respondent, such costs to include the costs of two counsel. Chief Justice Langa, Justices Madala, Ngcobo, O’Regan, Van der Westhuizen, and Yacoob concurred in the judgment of Deputy Chief Justice Moseneke. JUSTICE SACHS [] In concurring with the judgment of Justice Mokgoro, I offer reasons for proposing a remedial shift in the law of defamation from almost exclusive preoccupation with monetary awards, towards a more flexible and broadly based approach that involves and encourages apology. Developing the common law in this way would,

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consistent with our new constitutional ethos, facilitate interpersonal repair and the restoration of social harmony. [] It might well be that the issue of quantum of damages would generally not on its own qualify as being a constitutional one falling within the jurisdiction of this court. In this case, however, it arises on the periphery of and in connection with issues of a manifestly constitutional character. Here were public figures being called to account by a public institution for behavior or misbehavior in an official setting. Even although qualified privilege was not pleaded as a defense to the claim, the context should have had a significant bearing on the appropriateness of any damages to be awarded. The mayor was testifying before a governmental committee. Witnesses before such investigative committees should feel free to speak their mind. As a matter of general principle they should not be made to fear heavy damages suits if they either overstep the mark in the telling, or do not have iron-clad proof to substantiate their testimony. The chilling effect of punitive awards would not only be felt by officials caught with their metaphorical pants down, but by honest whistleblowers and by newspapers simply carrying testimonial exposures. [] There is a further and deeper problem with damages awards in defamation cases. They measure something so intrinsic to human dignity as a person’s reputation and honor as if these were marketplace commodities. Unlike businesses, honor is not quoted on the stock exchange. The true and lasting solace for the person wrongly injured is the vindication by the court of his or her reputation in the community. The greatest prize is to walk away with head high, knowing that even the traducer has acknowledged the injustice of the slur. [] There is something conceptually incongruous in attempting to establish a proportionate relationship between vindication of a reputation, on the one hand, and determining a sum of money as compensation, on the other. The damaged reputation is either restored to what it was, or it is not. It cannot be more restored by a higher award, and less restored by a lower one. It is the judicial finding in favor of the integrity of the complainant that vindicates his or her reputation, not the amount of money he or she ends up being able to deposit in the bank. [] The notion that the value of a person’s reputation has to be expressed in rands in fact carries the risk of undermining the very thing the law is seeking to vindicate, namely, the intangible, socially constructed, and intensely meaningful good name of the injured person. The specific nature of the injury at issue requires a sensitive judicial response that goes beyond the ordinary alertness that courts should be expected to display to encourage settlement between litigants. As the law is currently applied, defamation proceedings tend to unfold in a way that exacerbates the ruptured relationship between the parties, driving them further apart rather than bringing them closer together. For the one to win, the other must lose, the scorecard being measured in a surplus of rands for the victor. [] What is called for is greater scope and encouragement for enabling the reparative value of retraction and apology to be introduced into the proceedings. In

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jurisprudential terms, this would necessitate reconceiving the available remedies so as to focus more on the human and less on the patrimonial dimensions of the problem. The principal goal should be repair rather than punishment. To achieve this objective requires making greater allowance in defamation proceedings for acknowledging the constitutional values of uBuntu-botho. [] uBuntu-botho is more than a phrase to be invoked from time to time to add a gracious and affirmative gloss to a legal finding already arrived at. It is intrinsic to and constitutive of our constitutional culture. Historically it was foundational to the spirit of reconciliation and bridge building that enabled our deeply traumatized society to overcome and transcend the divisions of the past. In present-day terms it has an enduring and creative character, representing the element of human solidarity that binds together liberty and equality to create an affirmative and mutually supportive triad of central constitutional values. It feeds pervasively into and enriches the fundamental rights enshrined in the Constitution. As this court said in Port Elizabeth Municipality v. Various Occupiers [ () SA  (CC)]: The spirit of uBuntu, part of the deep cultural heritage of the majority of the population, suffuses the whole constitutional order. It combines individual rights with a communitarian philosophy. It is a unifying motif of the Bill of Rights, which is nothing if not a structured, institutionalized and operational declaration in our evolving new society of the need for human interdependence, respect and concern.

[] uBuntu-botho is highly consonant with rapidly evolving international notions of restorative justice. Deeply rooted in our society, it links up with worldwide striving to develop restorative systems of justice based on reparative rather than purely punitive principles. The key elements of restorative justice have been identified as encounter, reparation, reintegration, and participation. Encounter (dialogue) enables the victims and offenders to talk about the hurt caused and how the parties are to get on in future. Reparation focuses on repairing the harm that has been done rather than on doling out punishment. Reintegration into the community depends upon the achievement of mutual respect for and mutual commitment to one another. And participation presupposes a less formal encounter between the parties that allows other people close to them to participate. These concepts harmonize well with processes well known to traditional forms of dispute resolution in our country, processes that have long been, and continue to be, underpinned by the philosophy of uBuntu-botho. [] Like the principles of restorative justice, the philosophy of uBuntu-botho has usually been invoked in relation to criminal law, and especially with reference to child justice. Yet there is no reason why it should be restricted to those areas. It has already influenced our jurisprudence in respect of such widely divergent issues as capital punishment and the manner in which the courts should deal with persons

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threatened with eviction from rudimentary shelters on land unlawfully occupied. Recently it was applied in creative fashion in the High Court to combine a suspended custodial sentence in a homicide case with an apology from a senior representative of the family of the accused, as requested and acknowledged by the mother of the deceased. [] I can think of few processes that would be more amenable in appropriate cases to the influence of the affirming values of uBuntu-botho than those concerned with seeking simultaneously to restore a person’s public honor while assuaging interpersonal trauma and healing social wounds. In this connection attention should be paid to the traditional Roman-Dutch law concept of the amende honorable referred to in Justice Mokgoro judgment. Although uBuntu-botho and the amende honorable are expressed in different languages intrinsic to separate legal cultures, they share the same underlying philosophy and goal. Both are directed towards promoting face-to-face encounter between the parties, so as to facilitate resolution in public of their differences and the restoration of harmony in the community. In both legal cultures the centerpiece of the process is to create conditions to facilitate the achievement, if at all possible, of an apology honestly offered, and generously accepted. [] Thus, although I believe the actual award made by the High Court in this matter was way over the top, and accordingly associate myself with Justice Mokgoro’s minority finding in this regard, my concern is not restricted to the excessiveness of the amount. It lies primarily with the fact that the law, as presently understood and applied, does far too little to encourage repair and reconciliation between the parties. In this respect the High Court cannot be faulted. The concerns expressed above were not raised in the papers or addressed in argument before it. The court was simply working with a well-tried remedy in the ordinary way. Unfortunately, the hydraulic pressure on all concerned to go with the traditional legal flow inevitably produces a set of rules that are self-referential and self-perpetuating. The whole forensic mindset, as well as the way evidence is led and arguments are presented, is functionally and exclusively geared towards enlarging or restricting the amount of damages to be awarded, rather than towards securing an apology. In my view, this fixed concentration on quantum requires amendment. Greater scope has to be given for reparatory remedies. [] What is needed, then, is more flexibility and innovation concerning the relation between apology and money awards. A good beginning for achieving greater remedial suppleness might well be to seek out the points of overlap between uBuntubotho and the amende honorable, the first providing a new spirit, the second a timehonoured legal format. Whatever renovatory modalities are employed, and however significant to the outcome the facts will have to be in each particular case, the fuller the range of remedial options available the more likely will justice be done between the parties. And the greater the prospect of realizing the more humane society envisaged by the Constitution.

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JUSTICE SKWEYIYA [] I have read the judgments of my colleagues Justice Mokgoro, Deputy Chief Justice Moseneke, and Justice Sachs. I agree that the appeal against the decision of the High Court holding Mr. Dikoko liable for defamation has no merit and should therefore be dismissed. I, however, disagree with the conclusion reached by Justice Mokgoro that an award for damages arising out of defamation in the present case is a constitutional matter, as well as the conclusion reached by Deputy Chief Justice Moseneke that, although this may be a constitutional issue, it is not necessary to decide the question in this case. I would hold that in the circumstances of this case the debate concerning the quantum of damages awarded by the trial court does not raise a constitutional matter or an issue connected to a constitutional matter. [] The Constitution seeks to draw a distinction between constitutional and other issues. “Whether one can speak of a nonconstitutional issue in a constitutional democracy where the Constitution is the supreme law and all law and conduct has to conform to the Constitution is not free from doubt.” However, while it is accepted that all matters have constitutional implications, in order to recognize and preserve this court’s jurisdiction, a jurisdictional distinction, a line, must be drawn. It has been recognized in the past that it is difficult to draw that line because as a jurisdictional question, what constitutes a constitutional matter is by no means clearly defined. As previously pointed out by this court, “the Constitution offers no definition of a constitutional matter, or of an issue connected with a decision on a constitutional matter.” This is ultimately left for this court to decide. It is, however, clear that the Constitution expressly provides for a divide between issues classed as “constitutional matters” and those which are nonconstitutional matters. Therefore, judges who have sworn to uphold the Constitution “must accept that such distinction exists and try to make sense of that distinction.” [] The respondent submitted that the applicant did not contend that the quantum of damages is a constitutional matter and went on to suggest that this Court should entertain the question of damages only if it grants leave to appeal on the issue of privilege, which is a constitutional matter, and should not consider the quantum issue if leave to appeal the rest of the SCA judgment is denied. The respondent stood by his earlier submission that the court should refuse leave to appeal on the privilege issue, and hence by implication also on the issue of quantum. [] The fact that the Constitution necessarily permeates all law and conduct does not mean that every issue that may implicate the Constitution is a constitutional issue. In order to preserve the distinction between constitutional and nonconstitutional issues, and thus between the jurisdiction of this court and the lower courts in this regard, something more must be required in order for something to qualify as a constitutional issue. [] In Van der Walt [v. Metcash Trading Ltd.  () SA  (CC)] it was said that:

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The starting point must be that in our country the Constitution is the supreme law. “[L]aw or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled.” In terms of section (), the Bill of Rights binds the Judiciary as it binds the legislature and executive. Judges, who are the vanguard of our constitutional democracy, are required, by the oath they take, to “uphold and protect the Constitution and the human rights entrenched in it, and . . . [to] administer justice to all persons alike without fear, favor or prejudice, in accordance with the Constitution and the law.” These provisions from the Constitution demonstrate that if the conduct of a court results in a breach of the Constitution this court not only has the power, but it is obliged, to intervene and to say so.

[] A judge calculating damages in a case where defamation has been proved is given a set of guidelines that he must work with in settling on the amount of damages. These guidelines take the form of a number of factors that may be considered when arriving at the appropriate quantum. There is no rigid test in that none of the factors are mandatory. The manner in which a Judge chooses to apply the factors, the factors that he chooses to give weight to and other similar matters are matters left to his discretion. [] Effectively what the applicant is arguing is that the amount of damages which the trial judge chose to award is too high given the facts of the case, and that another court would come to a different, lower amount were it to have regard to the same facts. It is apparent from his submissions that he is not challenging the way in which damages are calculated generally. No grievance is aired with regard to the method of calculation that is applicable to cases in general. The grievance is based squarely on the facts of this case. [] We are therefore clearly dealing with a case that falls into the category mentioned in both Boesak and Phoebus Apollo as not ordinarily being a constitutional issue. That is not to say that such a case will never raise a constitutional issue, but that something more is required than what has been brought in this case. It is possible that in a future case an applicant will be able to show that as a result of the way in which the lower court judge evaluated the factors a constitutional right is violated; or that the judge failed to infuse the values of the Constitution into the process whereby he settled on an amount of damages to be awarded. It is possible that in such a case the threshold requirement of “a constitutional issue” will be proved to the satisfaction of the court. This is not such a case. [] The conclusion reached above means that, in my view, the enquiry into the damages aspect of the appeal need go no further. [] However, I wish to add the following additional comments on the “chilling effect” on freedom of expression. Much of the justification for classifying damages in a defamation action as a constitutional matter arises from the oft-quoted “chilling effect” that the award of damages may have on freedom of expression. This was the

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position taken in Van der Berg [v. Coopers and Lybrand Trust (Pty) Ltd. and Others  () SA  (SCA)] and is echoed in the judgments of both Justice Mokgoro and Deputy Chief Justice Moseneke. [] There is no doubt that freedom of expression lies at the heart of our democracy. Its value was eloquently described in South African National Defence Union [v. Minister of Defence and Another  () SA  (CC)] as follows: [Freedom of expression] is valuable for many reasons, including its instrumental function as a guarantor of democracy, its implicit recognition and protection of the moral agency of individuals in our society and its facilitation of the search for truth by individuals and society generally.

The argument goes that if courts award extremely high amounts in damages for defamation, the free expression of the ordinary person will be curbed as they will be hesitant to speak under the risk of having to pay such large awards. It is, however, important, albeit fairly obvious, to remember that damages are awarded only where defamation has been found to exist. Damages are thus ordered where someone has said something which society believes to be unacceptable; they do not follow from a legitimate exercise of the right of free expression. It is therefore important to keep in mind precisely what kinds of utterances are being curbed, what type of expression is being chilled. [] Not all expression is constitutionally protected. Islamic Unity Convention [v. Independent Broadcasting Authority and Others  () SA  (CC)] explains how [t]he pluralism and broadmindedness that is central to an open and democratic society can . . . be undermined by speech which seriously threatens democratic pluralism itself. Section  of the Constitution declares that South Africa is founded on the values of “human dignity, the achievement of equality and the advancement of human rights and freedoms.” Thus, open and democratic societies permit reasonable proscription of activities and expressions that pose a real and substantial threat to such values and to the constitutional order itself.

In that case, this court recognized that expression has the potential to impair the exercise and enjoyment of other important rights, such as the right to dignity. It went on to say that “[t]he right is accordingly not absolute; it is, like other rights, subject to limitation under section () of the Constitution. Determining its parameters in any given case is therefore important, particularly where its exercise might intersect with other interests.” [] The Constitution itself limits acceptable expression in section () which sets out the types of expression which fall beyond the ambit of the protection afforded to free expression by the Bill of Rights. In Islamic Unity Convention it was said that

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Implicit in [the provisions of section ()] is an acknowledgment that certain expression does not deserve constitutional protection because, among other things, it has the potential to impinge adversely on the dignity of others and cause harm. Our Constitution is founded on the principles of dignity, equal worth, and freedom, and these objectives should be given effect to.

[] The chilling effect on freedom of expression envisaged in defamation cases would play out in the following manner. A person who suspects that he may possibly be about to defame someone else, is cognizant of the fact that if he does there may be legal consequences. As a result, he either refrains from making the utterance or does some background checking first. So the kinds of utterances that are chilled are those that an ordinary person may suspect to be defamatory in nature. The chilling of this kind of expression is by no means an undesirable result and is in line with the framework of intersecting rights outlined above in which freedom of expression may well have to take a back seat to dignity in certain circumstances. [] Before I end this judgment, I consider it appropriate that we remind ourselves as South Africans that we live in a constitutional democracy which is founded upon the supremacy of the Constitution and the rule of law. It is worrying that there appears to be an increase in the number of cases which are brought to this court by legal practitioners on claims of their being constitutional matters or issues connected to constitutional matters. Constitutional issues are at times raised by legal practitioners for the first time in argument in this court. [] The hallowed status of the Constitution has particular consequences for legal practitioners. They must approach all law with the Constitution foremost in their minds. The values that find expression in the Constitution permeate our entire legal fabric. No area of law is left untouched by their reach. Thus when preparing legal argument and strategies, the Constitution is the starting place. Constitutional arguments are not an alternative strategy should the standard common-law arguments fail. As this court emphasized in Pharmaceutical Manufacturers Association [of SA and Another: In re Ex parte President of the Republic of South Africa and Others  () SA  (CC)]: There are not two systems of law, each dealing with the same subject-matter, each having similar requirements, each operating in its own field with its own highest court. There is only one system of law. It is shaped by the Constitution which is the supreme law, and all law, including the common law, derives its force from the Constitution and is subject to constitutional control.

[] It is important that we foster a legal culture in which the provisions of the Constitution play a primary role in the arguments prepared by attorneys and counsel so as to avoid the situation where constitutional arguments are tacked on as a last resort when all else fails. In this vein, the words of Justice Ngcobo in Prince [v. President,

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Cape Law Society, and Others  () SA  (CC)], where he dealt with the constitutionality of a statute, have particular resonance: Parties who challenge the constitutionality of a provision in a statute must raise the constitutionality of the provisions sought to be challenged at the time they institute legal proceedings. In addition, a party must place before the court information relevant to the determination of the constitutionality of the impugned provisions. Similarly, a party seeking to justify a limitation of a constitutional right must place before the court information relevant to the issue of justification. I would emphasize that all this information must be placed before the court of first instance. The placing of the relevant information is necessary to warn the other party of the case it will have to meet, so as to allow it the opportunity to present factual material and legal argument to meet that case. It is not sufficient for a party to raise the constitutionality of a statute only in the heads of argument, without laying a proper foundation for such a challenge in the papers or the pleadings. The other party must be left in no doubt as to the nature of the case it has to meet and the relief that is sought. Nor can parties hope to supplement and make their case on appeal. (Emphasis added.)

Not only should the Constitution be foremost in the minds of practitioners when preparing their legal arguments, but heed must also be paid to the provisions of the Constitution that establish a jurisdictional framework which governs the manner in which the courts should be approached.

Conclusion [] I conclude that this court does not have jurisdiction. Accordingly, I would hold that leave to appeal the quantum of damages awarded by the High Court be refused.

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South African Broadcasting Corp. Ltd. v. National Director of Public Prosecutions  () SA  (CC) CASE SUMMARY

Facts In  Schabir Shaik was found guilty by the Durban High Court of being in a corrupt relationship with then Deputy President Jacob Zuma. Shaik appealed his conviction and sentence to the Supreme Court of Appeal. Some three weeks before the hearing, the South African Broadcasting Corporation (SABC) applied for permission to broadcast live and edited versions of the appeal on both radio and television. Both Shaik and the national director of public prosecutions opposed the application.

Legal History The Supreme Court of Appeal refused to permit the SABC to broadcast the proceedings. It held that while the SABC and the public’s right to freedom of expression encompassed a right to broadcast judicial proceedings, it invariably impaired Shaik’s right to a fair trial. The SCA held that the right to a fair trial had to take precedence and broadcasting could only be permitted if there was no risk that the right would be impaired. In this case, broadcasting posed two risks: that it would inhibit interaction between counsel and the judges, and that it would discourage witnesses from testifying in the upcoming trial of Jacob Zuma.

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Issues When should the media be entitled to broadcast the hearing of a criminal appeal? Decision of the Constitutional Court A majority of the court upheld the decision of the SCA. It first decided that each court exercised a significant degree of discretion in such matters. Appeal courts should only interfere if the lower court was clearly wrong. While it did not necessarily agree with the test the SCA had applied or the outcome in this case, the Constitutional Court could not say the SCA was clearly mistaken. It could not, therefore, interfere with the SCA’s exercise of discretion. However, the judgment also emphasized the importance of courts being open to the public and that courts should strive to better accommodate the media. Three judges demurred. Justice Mokgoro dissented. She found that the public’s right and ability to receive information was underpinned by, and a vital incident of, the value of human dignity. Deputy Chief Justice Moseneke also dissented. He found that the SCA had applied the wrong test. It should have applied something akin to a balancing test that, in this matter, would have permitted the broadcast. Justice Sachs largely agreed with the analysis in the dissenting judgments, but concurred with the majority’s order because of the way the SABC had raised the issue. Order The appeal was dismissed. The Shaik hearing was not broadcast. Comment An important part of this judgment is Justice Mokgoro’s holding that “the right of the public to be informed is one of the rights underpinned by the value of human dignity” (paragraph ). While there is a link between the right to speak and dignity, what is the precise link between dignity and the right to listen? Which of the dimensions of dignity discussed in “The Architecture of Dignity” above is engaged in SABC? CHIEF JUSTICE LANGA ET AL.

Is It in the Interests of Justice to Grant Leave to Appeal? [] The first respondent argues that we should not grant leave to appeal because, while the clarification and protection of the powers contained in section  are matters of substantial importance, the Supreme Court of Appeal judgment does not affect the substance of section  in a way which renders it desirable for consideration by this court. We disagree. The reach of a court’s power to regulate its own process is an issue of great constitutional moment and the current dispute raises the issue directly. In addition, this contention ignores the other constitutional issues of

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Legal Cases (–)

importance in the case and, in particular, the ambit of the constitutional protection of the freedom of the press. [] All the respondents argue that the applicant has placed insufficient evidence before the court to enable it to make a ruling. They also note that the date of the hearing of the appeal was made public on about  June , yet the SABC did not approach the Supreme Court of Appeal for permission to televise the hearing until  August . The second to twelfth respondents argue that any urgency in the matter is therefore of the applicant’s own making since it should have been aware of a practice arrangement in the Supreme Court of Appeal, adopted in  after discussions between members of the court and the media, in terms of which filming of the proceedings of that court is permitted but not sound-recording. [] It is of course desirable for parties to bring matters to court as early as possible, and the SABC’s unexplained delay in bringing this case shows a lack of respect for both the parties to the appeal and the program of the court. However, there remains sufficient information before this court to decide this case. This case, unlike Bruce and Another v. Fleecytex Johannesburg CC and Others [ () SA  (CC)], is not a case of direct access where the issues have not been canvassed by lower courts. Christian Education South Africa v. Minister of Education [ () SA  (CC)] is similarly inapposite since this is not a case where the arguments were not fully canvassed by the parties. In argument, counsel for the second respondent admitted that the applicant’s failure to launch proceedings timeously was more properly relevant to the issue of costs than to the question of the interests of justice. [] We conclude in the circumstances that it is in the interests of justice to grant leave to appeal. Before considering the application for leave to appeal itself, we identify two important constitutional considerations we consider relevant to the application: the first is the obligation of a criminal court to ensure that the appeals it hears are conducted fairly; and the second is the importance of ensuring that appeals are public, which includes a recognition of the public’s right to receive information about criminal appeals, as entrenched in section  of the Constitution.

Obligations of an Appeal Court in a Criminal Appeal [] It is important to start by noting that this is an application for leave to appeal against the judgment of an appellate court that had to determine the conduct of its own proceedings. The task of an appeal court in determining its own proceedings is an important one. Its primary constitutional responsibility is to ensure that the proceedings before it are fair and it must give content to that obligation. This obligation has always been part of our law and is now constitutionally enshrined as a fundamental right in section () of the Constitution. The task of ensuring that the proceedings are fair will often require consideration of a range of principled and practical factors, some of which may pull in different directions. [] The right to a fair trial has been interpreted by this court as including the foundational values of dignity, freedom and equality which lie “at the heart of a fair

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trial in the field of criminal justice” and as embracing “a concept of substantive fairness which is not to be equated with what might have passed muster in our criminal courts before the Constitution came into force.” [] Freedom of expression is another of the fundamental rights entrenched in chapter  of the Constitution. This court has frequently emphasized that freedom of expression lies at the heart of democracy. It is valuable for many reasons, including its instrumental function as a guarantor of democracy, its implicit recognition and protection of the moral agency of individuals in our society and its facilitation of the search for truth by individuals and society generally. The Constitution recognizes that individuals in our society need to be able to hear, form and express opinions and views freely on a wide range of matters. [] This court has also highlighted the particular role in the protection of freedom of expression in our society that the print and electronic media play. Thus everyone has the right to freedom of expression and the media and the right to receive information and ideas. The media are key agents in ensuring that these aspects of the right to freedom of information are respected. The ability of each citizen to be a responsible and effective member of our society depends upon the manner in which the media carry out their constitutional mandate. The media thus rely on freedom of expression and must foster it. In this sense they are both bearers of rights and bearers of constitutional obligations in relation to freedom of expression. As was said in Khumalo [and Others v. Holomisa  () SA  (CC)]: In a democratic society . . . the mass media play a role of undeniable importance. They bear an obligation to provide citizens both with information and with a platform for the exchange of ideas which is crucial to the development of a democratic culture. As primary agents of the dissemination of information and ideas, they are, inevitably, extremely powerful institutions in a democracy and they have a constitutional duty to act with vigor, courage, integrity, and responsibility. The manner in which the media carry out their constitutional mandate will have a significant impact on the development of our democratic society. If the media are scrupulous and reliable in the performance of their constitutional obligations, they will invigorate and strengthen our fledgling democracy. If they vacillate in the performance of their duties, the constitutional goals will be imperiled. The Constitution thus asserts and protects the media in the performance of their obligations to the broader society, principally through the provisions of section .

[] The question whether the right to freedom of expression and the media includes the right of the media to televise and broadcast court proceedings is not beyond doubt in other democratic jurisdictions. [] Ultimately, however, what is central to the issue is not the responsibility and rights of the SABC as a broadcaster. What is at stake is the right of the public to be

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informed and educated as is acknowledged in the Preamble to the Broadcasting Act, which reads: Noting that the South African broadcasting system comprises public, commercial and community elements, and the system makes use of radio frequencies that are public property and provides, through its programming, a public service necessary for the maintenance of a South African identity, universal access, equality, unity, and diversity.

[] The need for public information and awareness flows from the nature of our democracy. Public participation on a continuous basis provides vitality to democracy. This was also recognized by the House of Lords in McCartan Turkington Breen (A Firm) v. Times Newspapers Ltd. [[]  All ER  (HL)] that “[t]he proper functioning of a modern participatory democracy requires that the media be free, active, professional and inquiring.” A vibrant and independent media encourages citizens to be actively involved in public affairs, to identify themselves with public institutions and to derive the benefits that flow from living in a constitutional democracy. Access to information and the facilitation of learning and understanding are essential for meaningful involvement of ordinary citizens in public life. This corresponds to the vision in the preamble to the Constitution of laying the foundations for a democratic and open society in which government is based on the will of the people. It also reflects the foundational principle of democratic government that ensures accountability, responsiveness, and openness. [] This case, then, is not essentially about the rights of the SABC. Rather it concerns the right of South Africans to know and understand the manner in which one of the three arms of government functions, namely, the judiciary. This is a strong constitutional consideration. The right of the people to be informed of judicial processes presupposes that courts are open and accessible. The fact that courts do their work in the public eye is a key mechanism for ensuring their accountability. As we have already said, this case is also about the obligation upon courts to ensure that accused people have a fair trial. [] Open courtrooms are likely to limit high-handed behavior by judicial officers and to prevent railroaded justice, to mention two of the risks of secret justice. It is not surprising then that section ()(c) of the Constitution includes as one of the aspects of the right to a fair trial, the right to “a public trial before an ordinary court.” Similarly, section  of the Constitution entrenches the right to have disputes resolved “in a fair public hearing before a court.” Far from being intrinsically inimical to a fair trial, open justice is an important part of that right and serves as a great bulwark against abuse. [] It should be remembered however, that open justice is observed in the ordinary course in that the public is able to attend all hearings. The press are also entitled to be there, and are able to report as extensively as they wish, and they do so. It is

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clear that, in this case, these ordinary conditions were to apply. In addition, the Supreme Court of Appeal has permitted the applicant to make soundless recordings of the proceedings and televise these and any extracts of these if it wishes. The narrow issue raised by this case concerns the further extension of the open-justice principle to include audio-recording and broadcasting of the entire appeal proceedings, as well as edited highlights of those proceedings, against the background of the court’s obligation to ensure that those proceedings are not only public but fair. [] Courts should in principle welcome public exposure of their work in the courtroom, subject, of course, to their obligation to ensure that proceedings are fair. The foundational constitutional values of accountability, responsiveness and openness apply to the functioning of the judiciary as much as to other branches of government. These values underpin both the right to a fair trial and the right to a public hearing (i.e. the principle of open courtrooms). The public is entitled to know exactly how the judiciary works and to be reassured that it always functions within the terms of the law and according to time-honored standards of independence, integrity, impartiality, and fairness. [] Section  provides that: “The Constitutional Court, Supreme Court of Appeal and High Courts have the inherent power to protect and regulate their own process, and to develop the common law, taking into account the interests of justice.” This is an important provision that recognizes both the power of courts to protect and regulate their own process as well as their power to develop the common law. It is the former power that is of relevance in this case. It must be understood in the context of section , which provides that the judicial authority is vested in courts, that they are independent, and must apply the law impartially and without fear, favor, or prejudice. [] Courts, therefore, must be independent and impartial. The power recognized in section  is a key tool for courts to ensure their own independence and impartiality. It recognizes that courts have the inherent power to regulate and protect their own process. A primary purpose for the exercise of that power must be to ensure that proceedings before courts are fair. It is therefore fitting that the only qualification on the exercise of that power contained in section  is that courts in exercising this power must take into account the interests of justice. [] When courts exercise the power to regulate their own process it is inevitable that that power will affect rights entrenched in chapter  of the Constitution. A court must regulate the way proceedings are conducted and this will inevitably affect both the right to a fair trial (section  of the Constitution) and the right to have disputes resolved by courts (section ). Courts are bound by the provisions of the Bill of Rights and therefore bear a duty to respect those rights. In exercising the power, therefore, they must take care to ensure that those rights are not unjustifiably attenuated. [] It may well be that the exercise of the powers recognized in section  is not capable of single characterization for the purposes of determining the correct approach

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on appeal. However, in this case we are persuaded that this court should interfere only in narrow circumstances. Our reasons for so concluding are the following: This case concerns the detailed arrangements for the conduct of appeal proceedings in the Supreme Court of Appeal. In the absence of a constitutional violation, it is generally undesirable for this court to instruct the Supreme Court of Appeal how to regulate the conduct of its proceedings. The case required a value judgment by the Supreme Court of Appeal as to how best to discharge its responsibility of ensuring that the proceedings before it were fair and to reconcile that obligation with the public’s right to be informed of the conduct of those proceedings. In the exercise of the section  power different courts might legitimately come to different conclusions. The Supreme Court of Appeal prepared its judgment in haste, as have we, in response to an urgent application. Its judgment must therefore be analyzed with that in mind. In particular that court might not have been able to formulate its reasons for its order as fully and meticulously as it would ordinarily do. It is difficult for an appellate court to second-guess the decision of the Supreme Court of Appeal which is directly based on its first-hand knowledge of the record and all the circumstances of the appeal. [] Therefore the question for this court is not whether we would have permitted radio and television broadcasting of the appeal in the circumstances of this case, but whether the Supreme Court of Appeal did not act judicially in exercising its section  discretion, or based the exercise of that discretion on wrong principles of law, or a misdirection on the material facts. As Justice Cloete formulated the test more laconically in Bookworks [(Pty) Ltd. v. Greater Johannesburg Transitional Metropolitan Council and Another  () SA  (W)], the question is whether the court committed some “demonstrable blunder” or reached an “unjustifiable conclusion.” [] [. . .] As pointed out by the Supreme Court of Appeal in its judgment, “the fair trial right includes the right to an appeal [and] . . . the appeal must be as subject to considerations of fairness as the trial which gives rise to it.” [] It is against this background that the SABC’s submissions must be examined. Counsel for the SABC contended that the approach of the Supreme Court of Appeal in this regard was seriously flawed in three respects. First, what was at issue before the Supreme Court of Appeal was not simply a “clash” of the competing rights to a fair trial and to freedom of expression. According to counsel the need for the SABC to broadcast does not arise merely due to the right of freedom of expression; on the contrary, it is a consequence of the principle of open justice which itself flows from the values of openness, accountability and the rule of law in the Constitution and

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also flows directly from the requirement in sections  and ()(c) that civil and criminal proceedings must be “public.” The question before the Supreme Court of Appeal should not, therefore, have been which right prevailed, but rather how best to give effect to the requirement of the Constitution that the appeal hearing be both “fair” and “public.” In counsel’s submission the Supreme Court of Appeal completely failed to address this question. [] Second, even in respect of freedom of expression, the Supreme Court of Appeal was, so counsel contended, incorrect to rely on a model of “clashing” rights in which one right had to prevail at the expense of the other. Referring to foreign jurisprudence, counsel submitted that freedom of expression can bring substantial benefits to the notion of a fair hearing. A far richer, more nuanced analysis was required of the Supreme Court of Appeal—rather than simply concluding that there was a “clash of rights” and that the right to freedom of expression had “to give way.” It was incumbent upon the Supreme Court of Appeal to investigate and evaluate how preventing or allowing the SABC broadcasts would impact on the right to freedom of expression, the right to a “fair” “public” hearing, the principle of open justice and the administration of justice. This, said counsel, the Supreme Court of Appeal did not do. [] Third, counsel submitted, the Supreme Court of Appeal materially misdirected itself in adopting the “test” set out above, such test being inconsistent with the jurisprudence of this court in cases such as S v. Mamabolo and Laugh It Off Promotions CC, and with the jurisprudence of foreign courts. This test allowed the Supreme Court of Appeal to refuse to grant broadcast rights unless it was “satisfied that justice will not be inhibited,” thereby allowing for freedom of expression to be limited without the court’s having concluded that the broadcast “really was likely to damage” the right to a fair trial and the administration of justice, and notwithstanding that the harm speculated consisted merely of “conjecture alone.” Moreover, the test adopted by the Supreme Court of Appeal inevitably and permanently privileges the right to a fair trial over the right to a public trial, the right to freedom of expression and the principle of open justice. In doing so, counsel argued, it creates a hierarchy of rights inappropriate for a Constitution such as ours. [] Each of these arguments needs to be considered separately. There can be no doubt, as we have observed earlier, that the right to a fair trial does include the right to a trial in public and that the principle that underlies that right may aptly be called a principle of “open justice.” This principle does promote the accountability of courts and the administration of justice. It has traditionally been understood to mean that court hearings must be open to members of the public who wish to observe them and to journalists who wish to report upon them. Traditionally the principle has never been absolute. Trials and parts of trials may be, and often are, held behind closed doors to protect the privacy or security of witnesses. [] The right to a public hearing does not automatically mean that trials must necessarily be broadcast live in all circumstances. Indeed, as we have noted above, it

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Legal Cases (–)

will often not be in the interests of justice for a trial, where oral evidence is to be led, to be broadcast on radio and television. While the situation with appeal proceedings is different, in some circumstances, such as rape cases or those involving the testimony of minors, it may not be in the interests of justice to broadcast appeal proceedings. [. . .] [] [. . .] The test must be understood on the basis that the proceedings were to be open to the public and the press. The only issue was whether that openness should extend to radio and television broadcasts. Understood in its context, the test adopted by the Supreme Court of Appeal did seek to accommodate both the need to ensure that the proceedings took place in public and that the proceedings were fair. The fact that that accommodation might have been differently achieved by another court is not sufficient to suggest that the accommodation adopted by the Supreme Court of Appeal may be interfered with on appeal. Accordingly this criticism raised by the applicant is misconceived. [] The second criticism by applicant’s counsel is the “clash of rights” model adopted by the Supreme Court of Appeal. In our view, as set out above, when a court is seeking to determine whether the broadcasting of proceedings before it is “in the interests of justice” or not, it should seek to reconcile the fundamental rights at issue with its obligation to ensure that the proceedings before it are fair. Although the Supreme Court of Appeal may have used the language of a clash, what it did was to seek to reconcile appropriately its obligation to ensure that the proceedings before it were fair with the extension of the principle of open justice sought by the applicant. It held that it would not permit broadcasting unless it was certain that the fairness of the proceedings would not be threatened. This being so, the second argument raised by the applicant mischaracterizes what the Supreme Court of Appeal, in fact, did. [] The third argument raised by counsel related to the test set by the Supreme Court of Appeal to determine whether the application to broadcast the proceedings should be granted. The applicant criticizes the test on a number of grounds. First, it argues that it is inconsistent with the jurisprudence of this court, in that it posits a hierarchy of rights inconsistent with our constitutional order. Second, it argues that it fails to consider the trends in other open democracies. [] As to the first argument, although it is correct that our Constitution does not postulate a hierarchy of rights in the abstract, there are circumstances in which one right will take precedence over others. Given that a court has a primary obligation to ensure that the proceedings before it are fair, that obligation will always figure large in the exercise of discretion under section . We cannot agree that the Supreme Court of Appeal erred in recognizing this in the particular circumstances of this case. We repeat that it may well be that another court might have perceived the interests of justice differently in relation to proceedings before it, but that is not the test on appeal here. The question is whether the Supreme Court of Appeal committed a “demonstrable blunder” in adopting the test it did. It did not.

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[] As to the second, most if not all of the foreign judgments relied on by counsel for the SABC are not directly on point. They deal either with considerations applicable to a total ban on the publication of court proceedings or with proceedings before an organ of state other than a court. As against all these foreign cases relied on by the applicant that are not on point, reference should be made to a fairly recent decision of the German Federal Constitutional Court relied on by counsel for the first respondent. In this case the court upheld a federal law that bans recording and filming in courts for broadcast purposes, holding that the Legislature had properly decided to limit the openness of court proceedings to persons physically present during the proceedings. Broadcasting journalists were perfectly free to attend and to report proceedings; only live coverage was prohibited. The court held that the ban took account of the parties’ constitutional right to privacy, the importance of a fair procedure and the correct finding of facts. A majority of the court also held that the law need not give courts a discretionary power to allow television coverage and filming in exceptional cases as media pressure would place an impossible burden on courts if they were to be given that discretion. [] Given the absence of acceptance of the existence of the right in other open and democratic societies, it cannot in our view be said that in its application of legal principles and its consideration of the constitutional rights at stake, the Supreme Court of Appeal acted in such a way as to justify the conclusion that its decision was not judicially made. [] The ground upon which the SABC seeks to counter this finding by the Supreme Court of Appeal is not convincing. The SABC argues that witnesses may be subpoenaed, but this argument does not address the fact that a reluctant witness is much less likely than a willing one to be found credible and reliable. Furthermore, while there is merit in the submission by counsel for the SABC that distorted versions of criticisms advanced against witnesses during the course of the appeal hearing may, in any event, be a product of allowing only “second-hand” reports on the argument during the course of such hearing, on the SABC’s account, television will have a much greater impact on a far larger audience. [] The same considerations apply to the criticism by the SABC of the finding that another difficulty that justified the NDPP’s opposition to the application before it was the fact that: [A]lthough Zuma’s alleged guilt is not in issue in the pending criminal appeal discussion and consideration of the case against the second respondent will necessarily involve exhaustive reference to Zuma and may even appear to the outside observer or listener to portray him as a coaccused and even as criminally liable. Obviously it will not be anyone’s intention in the pending criminal appeal to consider or pronounce upon Zuma’s alleged guilt but again it is in the interests of justice pertinent to the pending trial to minimize, if not eradicate, the risk that popular perception will regard the crucial question in

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Legal Cases (–)

the Zuma case as having already been made. In regard to this second reason live or delayed coverage by radio would serve to create that risk just as much as live or delayed television coverage.

[] It is likely that, as contended by counsel for the SABC, the same risk will exist whether or not sound-recording and broadcasting of the appeal proceedings are allowed. However, the submission by counsel that allowing a full broadcast of the appeal hearing to take place will ensure that members of the public witnessing the case will understand that the appeal is primarily about the second respondent and not about Mr. Zuma, underplays the impact of the actual spoken words of counsel and of the judges in comparison with “second-hand” reports of the appeal proceedings. Moreover, the possible impact on witnesses remains a sufficient justification for the Supreme Court of Appeal decision to prohibit live broadcasting in this case. [] In conclusion, it cannot in our view be said that the Supreme Court of Appeal reached its decision other than judicially. Even if this court might well have come to a different decision, no basis has been established for intervening in the exercise by the Supreme Court of Appeal of its discretion to regulate its own process and to ensure that the arrangements within its own courtroom do not interfere with the administration of justice. [] Before turning to the question of the order, we consider it helpful to set out some considerations that, in our view, need to be taken into account in the future when the question of televising court proceedings is raised. The time has come for courts to embrace the principle of open justice and all it implies. However, in our view, it should be borne in mind that the electronic media create some special difficulties for the principle of open justice. Broadcasting, whether by television or radio, has the potential to distort the character of the proceedings. This can happen in two ways: first, by the intense impact that television, in particular, has on the viewer, in comparison to the print media; and second, the potential for the editing of court proceedings to convey an inaccurate reflection of what actually happened. This is particularly dangerous, given that visual and audio-recordings can be edited in a manner that does not disclose the fact of editing. This distorting effect needs to be guarded against. It arises not so much from the presence of cameras and microphones interfering with the court proceedings themselves. But, more dangerously, it may arise from the manner in which coverage can be manipulated, often unwittingly, to produce communications that may undermine rather than support public education on the workings of the court, and may also undermine the fairness of the trial. Such distortions are much more likely to arise from edited highlights-packages than from full, live broadcasts. [] The interests of justice require that appropriate guarantees be in place to ensure both accuracy and balance. Sound bites from political discourse, sometimes played over and over again on television, may or may not be justified in news or cur-

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rent-affairs programs. In the case of judicial proceedings, however, similar sound bites carry the real risk of trivializing complex issues and converting what should be public education into public entertainment. [] This problem is by no means insuperable. As President Howie emphasized: “[D]elayed ‘highlights’ packages, which will most times contain ‘sound bites’, present a considerable risk of misrepresentation (even if unintended) and consequent misunderstanding. This is not the occasion on which to try to resolve that problem but resolution will unquestionably be necessary at some future stage.” Indeed, in the open and democratic society envisaged by the Constitution, in which the public has a right of access to the workings of the judicial system, the question is not necessarily whether the electronic media should be able to cover appeals, but how guarantees can be put in place to ensure that the public is indeed well informed about how the courts function when hearing appeals. Television and radio may not be the only ways to ensure that this is achieved, and in addition may not necessarily be the best ways. [] In this connection reference was made to an agreement entered into between the media and the judiciary in . It would seem that the advent of a democratic Constitution, technological advances and growing acceptance throughout the world of the power and impact of the electronic media may require this agreement to be reconsidered. The answer, however, is not to treat it as nonexistent but rather to renovate and update it. It would be inappropriate for this court at this stage to prejudge such a process. It is for the judiciary to work out the modalities, working in co-operation with the media. The objective will be to get fair and balanced reporting of legal proceedings while maintaining the fairness and integrity of those proceedings. [] It might well be considered advisable to start with coverage on a trial basis. It is certainly not in the interests of any of the parties to this litigation or the viewing public in general for the process to be impelled by a last-minute application followed by hastily improvised procedures. DEPUTY CHIEF JUSTICE MOSENEKE

Introduction [] Regrettably this judgment is prepared in great haste. Our decision must be made known within a few days of hearing oral argument. We owe this unseemly rush to the fact that the South African Broadcasting Corporation (SABC) is aggrieved that the Supreme Court of Appeal has refused it permission to record and broadcast live on television, with visuals and sound, or on radio, two appeals by Mr. Schabir Shaik, the second respondent, and ten other respondents due to be heard by the Supreme Court of Appeal on – September . In the alternative the public broadcaster had asked for permission to record the appeal proceedings for delayed broadcasting on television or radio as edited highlights-packages to be reported on

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daily news bulletins and current-affairs programs. For that reason the SABC seeks to move us to grant it urgent leave to appeal the decision. [] I have had the benefit of reading the majority judgment. I am indebted to its rendition of the background. I support its discussion on the importance and relative space of free expression, free press and courts in our constitutional setting. While I agree with the majority judgment on the proper approach to be adopted by an appellate court towards the exercise of discretion by another court, I regret that I am constrained to part ways on the manner in which the main judgment characterizes the discretion conferred to a court by section  of the Constitution. I also disagree on whether the decision of the Supreme Court of Appeal is vitiated by a misdirection that entitles this court to interfere.

Source and Nature of the Power to Disallow Live Sound Broadcast [] The Supreme Court of Appeal conceived of its power to ban the public broadcaster from disseminating sound recording of the appeals to derive from section  of the Constitution. The section affirms the “inherent power” of the Supreme Court of Appeal, and indeed of this court and High Courts, to protect and regulate its own processes, taking into account the interests of justice. In argument before us all parties, correctly so in my view, accepted that section  conferred on the Supreme Court of Appeal a discretion to regulate its process if it is in the interests of justice to do so and that the words “own process” are wide enough to include not only written notices and pleadings, but also the actual proceedings before a Superior Court. It follows that when the Supreme Court of Appeal declined the application of the public broadcaster it exercised an authority derived, not from legislation or the common law, but from the Constitution itself. I deal with the importance of this distinction later. However, first it is crucial to understand the nature and scope of the authority in issue. [] The text of section  suggests that the jurisdiction to control “process” is “inherent” in Superior Courts by reason only of their very nature as Superior Courts. That indeed was the approach of Superior Courts before the advent of constitutional democracy. The reservoir of inherent jurisdiction is described as “the unwritten power without which the court is unable to function with justice and good reason” and derives neither from the common law nor from legislation, but is modeled on the powers of an English Superior Court. [] The scope of the inherent jurisdiction to regulate a court’s own procedure in the preconstitutional era was considered in Universal City Studios Inc and Others v Network Video (Pty) Ltd. [ () SA  (A)], in which the Appellate Division held that although the court does not have an inherent power to create substantive law, the dividing line between substantive and adjectival law is not always an easy one. In the end the court accepted the distinction that substantive law is concerned with “the ends of the administration of justice” while procedural law prescribes “the means and instruments” by which the ends are to be attained.

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[] It must, however, be stated that nowadays in our constitutional architecture all public power, so too judicial power, flows from the Constitution itself. No judicial power inheres in a Superior Court if not derived from the supreme law whose obligations must be fulfilled. It is the Constitution that vests judicial authority in courts. It makes their orders and decisions binding on all concerned and declares them independent subject only to the Constitution and the law, which the courts must apply “impartially and without fear, favor, and prejudice.” Also important in this regard is that the Constitution is not silent on court procedures. Courts must function in terms of national legislation and their rules and procedures must themselves derive from national legislation. Recently, in Phillips and Others v. National Director of Public Prosecutions [ () SA  (CC)], this court made a similar point that, since courts derive their power from the Constitution itself, they do not enjoy original jurisdiction conferred by a source other than the Constitution. [] In S v. Pennington and Another [ () SA  (CC)], this court said of section : It is a power that has to be exercised with caution. It is not necessary to decide whether it is subject to the same constraints as the “inherent reservoir of power to regulate its procedures in the interests of the proper administration of justice” which vested in the Appellate Division prior to the passing of the  Constitution. (Footnotes omitted.)

The court emphasized that when this power is exercised it must be done in a way that accords with the requirements of the Constitution. Again in Parbhoo and Others v. Getz NO and Another [ () SA  (CC)] this court turned to its “inherent power” to meet an “extraordinary” procedural situation pending the enactment of relevant legislation and the promulgation of rules of procedure. The court made the point that ordinarily the power in section  to protect and regulate relates to the process of court and arises when there is a legislative lacuna in the process. The power must be exercised sparingly, after having taken into account the interests of justice in a manner consistent with the Constitution. [] In our constitutional scheme a right entrenched in the Bill of Rights is certainly not absolute. Nor do we subscribe to a hierarchy of entrenched freedoms and fundamental rights. A right may be limited, but only in terms of a 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 or by any other provision of the Constitution. The National Director of Public Prosecutions, the first respondent, argued that the broadcaster’s right to free expression and freedom of the press under section () is limited by section  of the Constitution. The question that arises is whether the manifestly procedural character of the jurisdiction under section  serves the same purpose as the limitation of rights standard in section () of the Constitution. I think not.

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Legal Cases (–)

[] If a court seeks to limit an entrenched right, such as the free expression of the media, relying only on the power to regulate procedure under section , and not on a law of general application that confers a discretion to limit an entrenched right, as was the case in Giddey [NO v. JC Barnard and Partners (CC case No. CCT /, September , ), as yet unreported], the court itself is imposing the limitation. It must follow that, at a bare minimum, the limitations must, in substance, fall within the bounds imposed by section (). It seems to me plain that under section  the court does not have a strict discretion in the sense that it has more than one legitimate option. On the contrary, it is obliged to give effect to the entrenched right unless it is reasonable and justifiable to limit the right, and even so only to the extent necessary to achieve the purpose of the limitation.

The Proper Test [] Before us all parties argued this case on the basis that the Supreme Court of Appeal exercised a discretion conferred by section  of the Constitution when it refused the application of the public broadcaster. I have described the nature of the discretion section  permits. However, for present purposes it is unnecessary to characterize the discretion as strict or not. Suffice it to draw attention to some differences between the discretion here and the one we were concerned with in Giddey. [] Most instances of discretion in the strict sense only affect the parties involved in the dispute. These include a decision to grant a postponement, a decision regarding condonation, a decision regarding security for costs, or the discretion regarding the admission of a bail record. In contrast, the discretion exercised in this case affects not only the public broadcaster and the parties involved, but also every member of the public who might wish to observe the criminal appeals. Decisions involving broadcast rights relate to the limitation of fundamental rights and have a substantial impact on the broader public. It would therefore be inappropriate to conclude that, in making such a decision on a particular set of facts, a court has a free choice regarding whether to grant such broadcasting rights or not. Another crucial difference is that here the Supreme Court of Appeal on it own accord has limited the right to free expression. This is not a case where the legislature itself has chosen to limit the rights. If it does limit enumerated rights, it may do so only in a manner compatible with the rights-limitation precepts of the Constitution. Has the Discretion Been Exercised Properly? [] First, it bears repetition that the right of media, such as the SABC, to gather and broadcast information, footage and audio recordings flows from s () of the Constitution. Equally important is that the SABC is a public broadcaster and has the license and obligations to broadcast under legislation and particularly the Broadcasting Act  of . At the threshold enquiry, the rights to freedom of expression, freedom of the media and freedom to impart information and ideas must carry a generous import. It seems entirely apposite that its reach must include the right of

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the media to gather information, video footage and audio recordings for dissemination to the public. The right to freedom of expression would serve little purpose if the media, though entitled to convey information and broadcast footage and recordings, were not entitled to gather information, footage, and recordings. The suggestion that the scope of the right of freedom of the media should be limited at the threshold on a context-sensitive, case-by-case basis, may well be inconsistent with the jurisprudence of this court on the limitation of rights. In my view the Supreme Court of Appeal misappreciated the nature of the enquiry it was called upon to make, which is whether there exist reasonable and justifiable grounds to limit the right asserted by the public broadcaster. [] Second, there is much to be said for the submission of the public broadcaster that the Supreme Court of Appeal counted freedom of expression as the only interest in favor of broadcasts. It omitted to bear in mind that the principle of open justice, which is well entrenched in our law, provides a powerful reason for allowing the broadcast of court proceedings. The principle of open justice is an incident of the values of openness, accountability and the rule of law, as well as a core part of the notion of a participatory democracy. All these are foundational values entrenched in the Constitution. Its preamble contemplates “a democratic and open society in which government is based on the will of the people,” whereas section (d) requires that our democracy shall ensure accountability, responsiveness, and openness. [] In the judicial sphere notions of openness are even more important. The public is entitled to have access to the courts and to obtain information pertaining to them. There is no gainsaying that the gathering of information pertaining to how courts function is indivisibly linked to representative democracy. Once more, sections  and ()(c) of the Constitution require that court proceedings in this country must be “public.” After all, courts of law exercise public and often coercive power. What they do and do not do is of legitimate public concern. In S v. Mamabolo (E TV and Others Intervening) [ () SA  (CC)], this court makes the point in telling terms: Since time immemorial and in many divergent cultures it has been accepted that the business of adjudication concerns not only the immediate litigants but is a matter of public concern which, for its credibility, is done in the open where all can see. Of course this openness seeks to ensure that the citizenry know what is happening, such knowledge in turn being a means towards the next objective: so that the people can discuss, endorse, criticize, applaud, or castigate the conduct of their courts. And, ultimately, such free and frank debate about judicial proceedings serve more than one vital public purpose. Self-evidently such informed and vocal public scrutiny promotes impartiality, accessibility and effectiveness, three of the important aspirational attributes prescribed for the Judiciary by the Constitution.

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[] In concluding the discussion on the principle of open justice it is important to recognize that its relevance in our context is even greater. On the papers the evidence suggests that the majority of South Africans receive news and information principally by means of radio and television. The printed media is a preserve of a few. This is so partly on account of the extensively high level of illiteracy. We are told that daily newspapers average a circulation of approximately . million, whereas the national television network reaches approximately  million people and radio has a daily adult audience of around  million people. [. . .] [] Fourth, the dictates of our Constitution are that a court hearing must be not only fair but also public. The Supreme Court of Appeal started its analysis by pitting the right to freedom of expression against the right to a fair hearing. In doing so the Supreme Court of Appeal in effect failed to bring to account the fact that the right to a fair hearing itself includes the right to a “public” hearing. Therefore, the issue is not one of a choice but of how best a court can reconcile the two elements of fairness and openness in the hearing. Freedom of expression does not necessarily threaten fair hearing rights. It can bring considerable benefits to the requirement. That means that courts are required to embark upon a nuanced analysis rather than simply opting, as the Supreme Court of Appeal did, for one right to prevail over another. [] Lastly, on the facts, the Supreme Court of Appeal concluded that there was a reasonable possibility that allowing the public broadcaster to record the proceedings and to broadcast them on sound television and radio would “inhibit justice” because counsel and the court will be distracted by the extensive publicity surrounding the appeals such that an unfair hearing would result, contrary to the fair-trial guarantees in sections  and () of the Constitution. There is no doubt that the appeals have elicited unprecedented public interest and the political stakes are high. The record is indeed long and trying. The evidence therein will be subjected to incisive analysis and often trenchant criticism. A variety of legal arguments will be made and refuted. And certainly there will be searching and sometimes robust exchanges between counsel and the bench. This, however, seems to me as par for the course. It certainly comes with the territory. I have agonized much over the reasonable prospects of judges and counsel alike being inhibited in discharging their solemn duties. I am not persuaded, nor do the facts indicate any material risk, that counsel, very senior ones at that, would shirk their responsibility to advance as vigorously as is permissible the cause of their clients. I can find no real likelihood that senior counsel would not address the court “with their customary dignity, erudition and helpfulness.” Nor am I persuaded that judges would not discharge their obligations “impartially and without fear, favor, or prejudice.” [] Finally, in imposing the sound-broadcast ban, the Supreme Court of Appeal was in my view obliged to consider whether there were less restrictive means to prevent the mischief at which the prohibition was directed. In its reasoning, the court concentrated on sound television broadcast and to a lesser degree radio. However,

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in the order it made it appears to have conflated the different forms of relief sought by the SABC. In particular, there is no evidence that the court considered whether it could allow sound broadcast to some extent or under particular circumstances in the proceedings. In argument before us counsel for the respondents conceded that radio relay of the proceedings may well be less inhibiting than sound television and yet would reach millions of listeners. It is so that the Supreme Court of Appeal chose not to make any firm decision about delayed broadcasting on television or radio by means of edited highlights-packages. [] In the last instance the fair-trial rights of an accused person are indeed important. In this case the second respondent faces a significant risk to his liberty and to a substantial portion of his estate. It is also important that he opposes the sound broadcasting of the appeal. The state, too, resists an order permitting a live sound broadcast. And it is so that ordinarily a court seized with a particular hearing is best positioned to determine what is in the interests of justice in relation to fair hearing rights. However, in my view, at a factual level there must be a demonstration of a substantial likelihood of harm relied upon. Moreover, none of these factors taken alone or together are decisive if it is not reasonable and justifiable to limit entrenched rights and founding values of our Constitution, particularly where the public itself is the beneficiary of the rights and values that are implicated. JUSTICE MOKGORO [] I have read the judgment of the majority of the court and the dissenting judgment of Deputy Chief Justice Moseneke in this matter. I concur in Deputy Chief Justice Moseneke’s judgment for the reasons he gives. [] As Deputy Chief Justice Moseneke does, I, too, will assume without deciding that the discretion exercised by the Supreme Court of Appeal under section  is a strict discretion. I therefore agree that it can be interfered with only if it is shown that the Supreme Court of Appeal, in exercising that discretion, materially misdirected itself on the law or the facts; took into account factors which are not relevant; or came to a conclusion which no reasonable court would have come to on the basis of the law or the facts before it. [] In South African National Defence Union v. Minister of Defence and Another [ () SA  (CC)], the importance of the right to freedom of expression protected in section  of the Bill of Rights was emphasized when this court held that: Freedom of expression lies at the heart of democracy. It is valuable for many reasons, including its instrumental function as a guarantor of democracy, its implicit recognition and protection of the moral agency of individuals in our society and its facilitation of the search for truth by individuals and society generally. The Constitution recognizes that individuals in our society need to be able to hear, form and express opinions freely on a wide range of matters.

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[] While the right of the SABC under section  consists primarily of the right and freedom to disseminate information, this right correlates with its duty as the public broadcaster to inform the public. The public in turn has the right to receive information. In an open democracy based on the values of equality, freedom and human dignity, the right of the public to be informed is one of the rights underpinned by the value of human dignity. [] Thus in Laugh It Off Promotions CC v. SAB International (Finance) BV t/a Sabmark International (Freedom of Expression Institute as Amicus Curiae) [ () SA  (CC)], this court held that freedom of expression is a vital incident of dignity, equal worth, and freedom, with its own inherent worth and serving a collection of constitutional ends in an open and democratic society. [] In Khumalo and Others v. Holomisa (Khumalo) [ () SA  (CC)], this court recognized the crucial role that the media play with regard to freedom of expression: The print, broadcast and electronic media have a particular role in the protection of freedom of expression in our society. Every citizen has the right to freedom of the press and the media and the right to receive information and ideas. The media are key agents in ensuring that these aspects of the right to freedom of information are respected. ... In a democratic society, then, the mass media play a role of undeniable importance. They bear an obligation to provide citizens both with information and with a platform for the exchange of ideas which is crucial to the development of a democratic culture. As primary agents of the dissemination of information and ideas, they are, inevitably, extremely powerful institutions in a democracy and they have a constitutional duty to act with vigor, courage, integrity, and responsibility.

It is with that constitutional duty and responsibility in mind that the SABC asks this court to set aside the order of the Supreme Court of Appeal prioritizing the right to a fair trial and denying the public broadcaster its right to freedom of expression. [] It is important to acknowledge the right to freedom of expression of the SABC. Like any other right in the Bill of Rights, the right to freedom of expression may be limited. In circumstances where the right competes with other rights in the Bill of Rights, its limitation may be justified. However, that justification has to be subject to the Constitution. [] In Islamic Unity Convention v. Independent Broadcasting Authority and Others [ () SA  (CC)], Chief Justice Langa stated: There is thus recognition of the potential that expression has to impair the exercise and enjoyment of other important rights, such as the right to dignity,

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as well as other state interests. . . . The right is accordingly not absolute; it is, like other rights, subject to limitation under section () of the Constitution.

[] Clearly, therefore, when freedom of expression does conflict with other rights, a court must balance the conflicting rights proportionally. Our Constitution does not envisage a hierarchy of rights where courts simply prefer one right over the other. [] Although the right to freedom of expression is of cardinal importance in our constitutional democracy, in the context of this case the Supreme Court of Appeal was well within its discretion under section  of the Constitution to limit this right. In considering the SABC’s right to freedom of expression, the court held the view that that right was in conflict with the litigants’ right to a fair trial. The Supreme Court of Appeal recognized the need to engage in a balancing of the conflicting rights, an approach consistent with our constitutional rights-limitation jurisprudence. [] However, the court proceeded to hold that, in the event of a “clash of rights,” the accused should not be the one to give way. In coming to this conclusion, the court adopted a test that would in its terms logically favor the right to a fair trial over that of freedom of expression. The further application of the test, the Supreme Court had negligible regard to the imposition of the constitutional by the principle of open justice, which manifests in the notion of public trials in open court. [] The Supreme Court of Appeal, as indicated above, recognized the need to balance conflicting rights. The court, however, approached that balancing exercise by adopting a test that determined that audio recording will be permitted only if the court was satisfied that “justice will not be inhibited.” The application of that test clearly prioritized the right to a fair trial—a result that is not permitted in our Bill of Rights. For reasons stated above, and these, I conclude, as he does, that the court did not exercise its discretion judicially. [] I am of the view that the SABC broadcasts of the appeal proceedings would give effect to the principle of open justice and the right to freedom of expression, which is fundamental to our democratic society, without undermining the right to a fair trial. It would make the appeal proceedings a matter of utmost public interest and concern, accessible to millions of viewers as the statistics cited by Deputy Chief Justice Moseneke in his judgment show, bringing the courtroom into their houses and allowing them to be first-hand witnesses to the appeal proceedings. In balancing the conflict between the relevant rights, the SCA adopted an approach that created a hierarchy of rights that prioritized the right to a fair trial, contrary to the Bill of Rights in the Constitution. The court did not exercise its discretion judicially. I therefore agree with Deputy Chief Justice Moseneke that the application should be upheld.

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Legal Cases (–)

JUSTICE SACHS [] [. . .] Our constitutional order obliges appellate courts to facilitate the widest possible communication with the public. This is not in order to promote judicial vanity or to improve the ratings of the public broadcaster. It is to account to the general public for the functioning of the courts and to do so in the way that best enables the people at large to be well informed and to make up their own minds as to how well or badly the Judiciary goes about its work. [] As Deputy Chief Justice Moseneke’s judgment establishes, the ineluctable logic of living in an open and democratic society is that where major institutions of state are engaged in the public aspects of law making and law enforcement, there should be the greatest degree of public involvement that can reasonably be achieved. Such facilitation should not be looked upon as an inconvenient intrusion by the public, or as a favor to be granted or withheld from the broadcasters. It involves fulfillment of an obligation. The standards that this court set for the legislature in the recent case of Doctors for Life [International v. Speaker of the National Assembly and Others  () SA  (CC)] should apply with no fewer exigencies to the functioning of the courts themselves. The powers of the court do not originate from any discretionary power, but are derived from the character and foundational values of our Constitution. Exposure to the public gaze is particularly important in a country where historically all the major instruments of public power in general functioned in a way that was oppressive, distant, unresponsive and frequently mysterious. The combination of the achievement of democracy and the development of the electronic media opens up new possibilities. For the first time, the workings of government can reach in an immediate and effective way to all parts of our society in all parts of the country. [] This is not to say that in a participatory democracy there cannot be limits on the right of the public to see and hear what is going on in the courts. It is well recognized, for example, that the interests of justice may require that the identity of children be protected, and that the names of complainants in cases involving sexual offences be withheld. In many countries cases involving matters of extreme importance to national security are held in camera (though this has frequently been criticized for leading to abuse). At a more general level it has been widely held that televising trials where oral testimony is involved risks imposing special pressures on the witnesses and thereby distorting the evidence and subverting the fairness of the trial. [] These are circumstances where context and proportionality should be decisive. They do not challenge the principle that the public work of courts should be as accessible as possible. They simply provide narrowly tailored exceptions of recognized provenance, which ensure that other important constitutional values are maintained. [] What is at stake in each case, therefore, is not the comfort of the judicial officers—some of whom might in fact welcome moments in the limelight—but the fairness of the proceedings. Nor is it automatically related to whether the case involves a trial or an appeal. Thus in two trials in which Mr. Jacob Zuma has been

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South African Broadcasting Corp.

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involved, one directly as the accused, and the other indirectly through the nature of the charges, the trial judges welcomed cameras into the courtroom at the stage of handing down judgments, and both judgments were widely communicated to the public at large. The educational value of such communication cannot be overestimated. Viewers and listeners were able to see and hear the analyses of the evidence and the processes of reasoning which led to the ultimate decisions. This was accountability by the judiciary carried to its highest conclusion. The public gained far more than they could have done through reading snippets in the press. And they certainly benefited in a way that they could not have done if the judgments had been published in full only some months later in the law reports. [] Fidelity to the Constitution requires us to do more than we have done in the past. We have to break out of the vicious circle in terms of which cameras are excluded from courts because judges and counsel are unfamiliar with them, and judges and counsel are unfamiliar with cameras because they are excluded. [] This is where the Rubicon factor comes in. We need to transform the whole manner in which the judiciary has become used to considering its responsibilities in this area. In our open and democratic society we have to cross an imaginary river that cuts us off from the full reach of what we can and must do so as best to fulfill our responsibilities. To extend the Rubicon analogy, tradition can be a treacherous stream. Some of its currents can help keep legal thought flowing so as to promote time-honored notions of human dignity, equality, and freedom. Others can tug us away from reaching and exploring the further shores of accountability, openness, and responsiveness. In general terms the story of justice needs to be played out in as public an arena as possible. We need to shift from expectations of participating in a relatively cozy forensic drama, in which the public plays bit parts by sitting in the back of the court. We have to embrace the full potential for public access by engaging the nation as a whole. [] To sum up: The courts have their responsibilities, and the SABC and other broadcasters have theirs. The courts have the double function of zealously protecting rights to a fair trial and actively encouraging public understanding of the judicial function. In general terms and particularly at the appeal court level, as the majority judgment indicates, these two court responsibilities should not be in tension with each other. Any possible tension should be reduced, if not eliminated, by means of discussion between the broadcasters and the judiciary. In particular, guarantees must be established so as to ensure that broadcasting of proceedings is accurate, intelligent, appropriately focused and, above all, balanced. On the one hand, to have a camera in court, but to muzzle it, makes no sense at all. On the other, to allow electronic broadcasting to be controlled by ordinary processes of news-orientated selection and editing, would be imprudent in the extreme, and do a disservice to the promotion of public understanding of how the courts actually work. [] The reconciliation of all the different interests involved cannot be achieved by privileging one interest over another. Nor can it be accomplished by leaving each

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Legal Cases (–)

case to be determined in an ad hoc manner according to the robustness or sensitivity of the judges concerned. Nor should it be influenced by the extent of the clamor of broadcasters who, understandably, will be interested in improving their ratings. Clear guidelines need to be established in advance so as to provide a principled and functionally operational basis for the granting or refusal of access to the electronic media. They should also deal with whether access should be made subject to any particular conditions. As I see it, such guidelines could well give to courts a certain margin of appreciation in terms of the application of these guidelines on a case-bycase basis. Pre-established and principled guidelines, subject to periodic review, would assist broadcasters in their planning. They would also substantially relieve the courts of the duty to make invidious judgments concerning their own capacities and responsibilities in particular cases. In addition they would save courts from having to hear appeals from these decisions, and from having to evaluate the assessments of their colleagues faced with the situation in their own courtrooms. [] In the result I would agree with the majority that the appeal should not be allowed. But I do so on the limited grounds that the SABC erred in not raising the question of electronic broadcasts in a timeous manner so as to ensure that proper safeguards were put in place. Complete coverage would have met many of my objections and, if it were possible, I would wish to see the question of full radio coverage’s being explored even at this late stage. But I do feel it is not in the interests of justice for matters such as these to be resolved under a sword of Damocles. All the questions concerning accurate and balanced broadcasting should be worked out through an appropriate process of negotiation. This not only establishes clear points of reference. It gives sufficient time for all those involved to accustom themselves to the major changes involved.

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Barkhuizen

Barkhuizen v. Napier  () SA  (CC) CASE SUMMARY

Facts The resolution of this matter turned on a constitutional challenge to a time limitation clause in a short-term insurance contract. Clauses of this type prevent an insured claimant from instituting legal action if summons is not served within the time limit prescribed by the time limitation clause. Barkhuizen, the plaintiff, insured his new BMW with a syndicate of Lloyds Underwriters. The time limitation clause in this policy required Barkhuizen to institute legal proceedings within ninety days of the rejection of his claim by the insurance company. Barkhuizen’s vehicle was subsequently involved in an accident. Barkhuizen lodged a claim with the insurance company within eight days. The insurance company rejected his claim. However, Barkhuizen then waited two years before instituting legal action against his insurers. The insurance company contended that Mr. Barkhuizen was barred from instituting an action since he had not done so within the ninety-day time frame prescribed by the time limitation clause.

Legal History Barkhuizen conceded noncompliance with the clause. He then argued that the clause was not enforceable because it violated his section  right to have legal disputes resolved by a court. The Witwatersrand Local Division upheld Barkhuizen’s

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Legal Cases (–)

challenge on the grounds that the clause in question violated Barkhuizen’s section  right of access to courts. The Supreme Court of Appeal reversed the decision of the High Court. The SCA held that, on the evidence placed before it, it seemed that the contract was entered into freely and voluntarily. Moreover, it was not apparent that the clause was unfair. Furthermore, the SCA held that the mere fact that a clause may seem harsh and unreasonable does not render it contrary to public policy or make it inconsistent with the Constitution.

Issues Was the time limitation clause inconsistent with section , the right of access to courts, of the Constitution? Decision of the Constitutional Court Justice Ngcobo, writing for the majority, held that the proper approach to Mr. Barkhuizen’s constitutional challenge was to determine whether the time limitation clause in question was contrary to public policy. Public policy is, now, to be determined by reference to such constitutional values as dignity and freedom—as well as other values made manifest in the Bill of Rights. Once again, the Constitutional Court decided not to analyze the problem in terms of any of the specific substantive provisions of the Bill of Rights. The question then was whether, in light of public policy, Barkhuizen had an adequate and fair opportunity to seek the assistance of a court. The vital question, according to the court, was whether the contract had been freely concluded: “Self-autonomy, or the ability to regulate one’s own affairs, even to one’s own detriment, is the very essence of freedom and a vital part of dignity. The extent to which the contract was freely and voluntarily concluded is clearly a vital factor as it will determine the weight that should be afforded to the values of freedom and dignity” (paragraph ). Absent evidence that the contract was not freely concluded between persons with equal bargaining power, or that Barkhuizen was unaware of the clause, the majority concluded that Barkhuizen had adequate access to court. Justice Sachs and Deputy Chief Justice Moseneke dissented. Justice Sachs stressed the inherently coercive nature of standard form contracts vitiated the right. Order The appeal was dismissed. Comment Is the value of dignity better supported by recognizing the autonomy of individuals to sign invidious contracts and suffer the consequences; or by intervening in a contractual relationship to protect the weaker party? Should the Constitution play a paternalistic, protective role in contractual relations or should it stand back and allow power relations to play out unimpeded, whatever the consequences? To what

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Barkhuizen

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extent does the outcome depend on the particular facts of the case, and how much room does the court actually leave for similar challenges in the future? JUSTICE NGCOBO

The Supreme Court of Appeal [] On appeal the Supreme Court of Appeal accepted the correctness of the “general premise” that contractual claims are subject to the Constitution. It also accepted that a contractual term that is contrary to public policy is unenforceable and that public policy “now derives from the founding constitutional values of human dignity, the achievement of equality and the advancement of human rights and freedoms, nonracialism, and nonsexism.” However, it found that the evidence placed before it by way of a stated case was “extremely slim” for it to determine whether these constitutional values have been impeached. It held that the High Court’s finding that clause .. was unfair was not self-evident on the record and, moreover, that the evidence did not warrant such a finding. In this regard it held that: Whether the period is in fact reasonable, and thus whether the clause is “fair,” would depend, amongst other things, on the number of claims the insurer has to deal with, how its claims procedures work, what resources it has to investigate and process claims, and on the amount of the premium it exacts as a quid pro quo for the cover it offers. Of all this, we know nothing.

[] The Supreme Court of Appeal, however, cautioned that the fact that a term in a contract is unfair or may operate harshly does not, by itself, lead to the conclusion that it offends the values of the Constitution. Here, it emphasized the principles of dignity and autonomy which “find expression in the liberty to regulate one’s life by freely engag[ing] [in] contractual arrangements.” What the Constitution requires of the courts, the Supreme Court of Appeal held, is that they “employ its values to achieve a balance that strikes down the unacceptable excesses of ‘freedom of contract’, while seeking to permit individuals the dignity and autonomy of regulating their own lives.” The Supreme Court of Appeal further explained that this entails “that intruding on apparently voluntarily concluded arrangements is a step that Judges should countenance with care, particularly when it requires them to impose their individual conceptions of fairness and justice on parties’ individual arrangements.” [] However, the Supreme Court of Appeal accepted that the constitutional values of equality and dignity may prove to be decisive when the issue of the parties’ relative bargaining positions is an issue. It held that the critical question is whether the applicant in effect was forced to contract with the insurer on terms that infringed his constitutional rights to dignity and equality and in a way that requires the court to develop the common law of contract so as to invalidate the term in question. It

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Legal Cases (–)

concluded that it was not possible to reach any conclusion on this aspect in the light of the scanty evidence before it. [] I do not understand the Supreme Court of Appeal as suggesting that the principle of contract pacta sunt servanda is a sacred cow that should trump all other considerations. That it did not is apparent from the judgment. The Supreme Court of Appeal accepted that the constitutional values of equality and dignity may, however, prove to be decisive when the issue of the parties’ relative bargaining positions is an issue. All law, including the common law of contract, is now subject to constitutional control. The validity of all law depends on their consistency with the provisions of the Constitution and the values that underlie our Constitution. The application of the principle pacta sunt servanda is, therefore, subject to constitutional control.

The Proper Approach to Constitutional Challenges to Contractual Terms [] The section  argument raises the fundamental question of the appropriateness or otherwise of testing a contractual provision directly against a provision in the Bill of Rights. This raises the question of horizontality, that is the direct application of the Bill of Rights to private persons as contemplated in section () and () of the Constitution. This court has yet to consider this issue. But apart from this there are further difficulties. Clause .., if found to limit section , is not a law of general application. It cannot, therefore, on its own be subjected to a limitation analysis under section (). The limitation clause contemplates that only a law of general application will be subject to it. It is this difficulty that confronted the High Court in the first place. [] To overcome this difficulty the High Court had to find a law of general application peg on which to hang clause ... It found this peg in the form of the common-law principle of contract that is expressed in the maxim pacta sunt servanda, agreements are binding. The High Court reasoned that the framers of the Constitution intended the phrase “law of general application” in section  to have a wide meaning. It therefore held that the common-law principle that agreements are binding is a law of general application. Having clothed clause .. in the law of general application garb, the High Court then posed the question whether parties can by a term in a contract agree to limit the right of access to a court. Here the question, the High Court reasoned, was whether such a limitation is reasonable and justifiable under section (). Having found that the limitation is not reasonable and justifiable under section (), the High Court found that clause .., not the commonlaw principle that agreements are binding, fell foul of section . [] But this was not the end of the difficulties. There was section ()(a) of the Constitution, which requires a court to declare “any law or conduct” that is inconsistent with the Constitution to be invalid. Clause .. is manifestly not “conduct” within the meaning of section ()(a). That left the question, whether it is a “law.” The High Court found that the clause was a “regsvoorskrif,” that is, a

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Barkhuizen

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“law” within the meaning of section ()(a). It is not clear from the judgment of the High Court why, if the clause is not a law of general application for the purposes of a limitations analysis, it is nevertheless a “law” within the meaning of section ()(a). [] These difficulties that the High Court had to overcome, and the manner in which it dealt with them, in my judgment cast grave doubt on the appropriateness of testing the constitutionality of a contractual term directly against a provision in the Bill of Rights. The High Court accepted that the clause was not a law of general application. Hanging the clause on the common-law principle of pacta sunt servanda does not meet the difficulty. For what is ultimately found by the High Court to be flawed is not the common-law principle, but the clause itself. And this clause is ultimately elevated to a “law” within the meaning of section ()(a). [] What then is the proper approach of constitutional challenges to contractual terms where both parties are private parties? Different considerations may apply to certain contracts where the state is a party. This does not arise in this case. [] Ordinarily constitutional challenges to contractual terms will give rise to the question of whether the disputed provision is contrary to public policy. Public policy represents the legal convictions of the community; it represents those values that are held most dear by the society. Determining the content of public policy was once fraught with difficulties. That is no longer the case. Since the advent of our constitutional democracy, public policy is now deeply rooted in our Constitution and the values that underlie it. Indeed, the founding provisions of our Constitution make it plain: our constitutional democracy is founded on, among other values, the values of human dignity, the achievement of equality and the advancement of human rights and freedoms, and the rule of law. And the Bill of Rights, as the Constitution proclaims, “is a cornerstone” of that democracy; “it enshrines the rights of all people in our country and affirms the democratic [founding] values of human dignity, equality and freedom.” [] What public policy is and whether a term in a contract is contrary to public policy must now be determined by reference to the values that underlie our constitutional democracy as given expression by the provisions of the Bill of Rights. Thus a term in a contract that is inimical to the values enshrined in our Constitution is contrary to public policy and is, therefore, unenforceable. [] In my view the proper approach to the constitutional challenges to contractual terms is to determine whether the term challenged is contrary to public policy as evidenced by the constitutional values, in particular, those found in the Bill of Rights. This approach leaves space for the doctrine of pacta sunt servanda to operate, but at the same time allows courts to decline to enforce contractual terms that are in conflict with the constitutional values even though the parties may have consented to them. It follows therefore, that the approach that was followed by the High Court is not the proper approach to adjudicating the constitutionality of contractual terms.

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Legal Cases (–)

Public Policy and the Right of Access to Court [] Section , the provision in the Constitution that guarantees the right to seek the assistance of courts, proclaims that “[e]veryone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court.” Our democratic order requires an orderly and fair resolution of disputes by courts or other independent and impartial tribunals. This is fundamental to the stability of an orderly society. It is indeed vital to a society that, like ours, is founded on the rule of law. Section  gives expression to this foundational value by guaranteeing to everyone the right to seek the assistance of a court. [] When we had occasion to consider section , we alluded to these matters saying: Section  is an express constitutional recognition of the importance of the fair resolution of social conflict by impartial and independent institutions. The sharper the potential for social conflict, the more important it is, if our constitutional order is to flourish, that disputes are resolved by courts. As this court said in Lesapo: “The right of access to court is indeed foundational to the stability of an orderly society. It ensures the peaceful, regulated and institutionalized mechanisms to resolve disputes without resorting to self-help. The right of access to court is a bulwark against vigilantism, and the chaos and anarchy which it causes. Construed in this context of the rule of law and the principle against self-help in particular, access to court is indeed of cardinal importance.”

[] Section  therefore not only reflects the foundational values that underlie our constitutional order, it also constitutes public policy. [] Under our legal order all law derives its force from the Constitution and is thus subject to constitutional control. Any law that is inconsistent with the Constitution is invalid. No law is immune from constitutional control. The common law of contract is no exception. And courts have a constitutional obligation to develop common law, including the principles of the law of contract, so as to bring it in line with values that underlie our Constitution. When developing the common law of contract, courts are required to do so in a manner that “promotes the spirit, purport and objects of the Bill of Rights.” Section () of the Constitution says so. All this is, by now, axiomatic. Courts are equally empowered to develop the rules of the common law to limit a right in the Bill of Rights “provided that the limitation is in accordance with section ().” [] The proper approach to this matter is, therefore, to determine whether clause .. is inimical to the values that underlie our constitutional democracy, as given expression to in section  and thus contrary to public policy.

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Barkhuizen

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Should the Applicant Be Permitted to Raise the Public Policy Argument in This Court? [] Counsel for the respondent submitted that the applicant should not be permitted to rely on the public policy argument because this argument was being raised for the first time in this court. It was neither considered by the High Court nor by the Supreme Court of Appeal—so did the argument go. The applicant did not dispute the fact that the public policy argument, now pursued in this court, was not raised in the argument in the courts below but contended that it was nevertheless raised in the pleadings. [] It is not entirely accurate to say the Supreme Court of Appeal did not consider the public policy argument. It did. And what it said must be understood in the context of the manner in which the public policy argument was raised before it. The public policy argument appears to have been run together with the argument based on the direct infringement of section . But even if it is accepted that the public policy argument is being raised for the first time in this court, the point raised on behalf of the respondent cannot succeed. [] The mere fact that a point of law is raised for the first time on appeal is not in itself sufficient reason for refusing to consider it. If the point is covered by the pleadings, and if its consideration on appeal involves no unfairness to the other party against whom it is directed, this court may in the exercise of its discretion consider the point. Unfairness may arise where, for example, a party would not have agreed on material facts, or on only those facts stated in the agreed statement of facts had the party been aware that there were other legal issues involved. It would similarly be unfair to the other party if the law point and all its ramifications were not canvassed and investigated at trial. Does Public Policy Tolerate Time-limitation Clauses in Contracts between Private Parties? [] The main thrust of the argument presented on behalf of the applicant was that the clause limits the applicant’s right to seek judicial redress in court and thus offends public policy. That the clause limits the right of the applicant to seek judicial redress cannot be gainsaid. What is also apparent from the clause is that it does not deny the applicant the right to seek judicial redress; it simply requires him to seek judicial redress within the period it prescribes, failing which the respondent is released from liability. It is in this sense that the clause limits the right to seek judicial redress. [] The question whether public policy tolerates time-limitation clauses in contracts must be considered in the light of the fact that time limitations are a common feature both in our statutory and contractual terrain. Their effect is the same whether they occur in a statute or a contract. They deny the right to seek the assistance of a court once the action gets barred because an action was not instituted within the

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Legal Cases (–)

time allowed. This is true of all of them, regardless of the amount of time they allow. These clauses therefore limit the right to seek judicial redress. [] Yet their importance cannot be gainsaid. In Mohlomi, in the context of a statutory time limitation provision, this court recognized the importance of limiting time during which litigation may be launched: Rules that limit the time during which litigation may be launched are common in our legal system as well as many others. Inordinate delays in litigating damage the interests of justice. They protract the disputes over the rights and obligations sought to be enforced, prolonging the uncertainty of all concerned about their affairs. Nor in the end is it always possible to adjudicate satisfactorily on cases that have gone stale. By then witnesses may no longer be available to testify. The memories of ones whose testimony can still be obtained may have faded and become unreliable. Documentary evidence may have disappeared. Such rules prevent procrastination and those harmful consequences of it. They thus serve a purpose to which no exception in principle can cogently be taken.

[] I can conceive of no reason either in logic or in principle why public policy would not tolerate time-limitation clauses in contracts subject to the considerations of reasonableness and fairness. What is also relevant in this regard is that the Constitution recognizes that the right to seek judicial redress may be limited in certain circumstances where this is sanctioned by a law of general application in the first place, and where the limitation is reasonable and justifiable in the second. The Constitution thus recognizes that there may be circumstances when it would be reasonable to limit the right to seek judicial redress. This too reflects public policy. [] In general the enforcement of an unreasonable or unfair time-limitation clause will be contrary to public policy. Broadly speaking the test announced in Mohlomi is whether a provision affords a claimant an adequate and fair opportunity to seek judicial redress. Notions of fairness, justice, and equity, and reasonableness cannot be separated from public policy. Public policy takes into account the necessity to do simple justice between individuals. Public policy is informed by the concept of uBuntu. It would be contrary to public policy to enforce a time-limitation clause that does not afford the person bound by it an adequate and fair opportunity to seek judicial redress. [] In my judgment the requirement of an adequate and fair opportunity to seek judicial redress is consistent with the notions of fairness and justice which inform public policy. There is no reason in principle why this test should not be applicable in determining whether a time-limitation clause in a contract is contrary to public policy. [] I accept that there is a conceptual difference between a statute that introduces a limitation on the period within which a pre-existing right may be prosecuted and a contract that establishes rights and time periods within which those rights must

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Barkhuizen

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be prosecuted. That conceptual difference, however, cannot have the consequence suggested by the Supreme Court of Appeal. Such a consequence would undermine the importance of the right of access to courts. In each case, of course, the question will be whether the contract contains a time-limitation clause that affords a contracting party an adequate and fair opportunity to have disputes arising from the contract resolved by a court of law. In approaching this question a court will bear in mind the need to recognize freedom of contract, but the court will not let blind reliance on the principle of freedom of contract override the need to ensure that contracting parties must have access to courts.

The Determination of Fairness [] There are two questions to be asked in determining fairness. The first is whether the clause itself is unreasonable. Secondly, if the clause is reasonable, whether it should be enforced in the light of the circumstances that prevented compliance with the time-limitation clause. [] The first question involves the weighing-up of two considerations. On the one hand public policy, as informed by the Constitution, requires in general that parties should comply with contractual obligations that have been freely and voluntarily undertaken. This consideration is expressed in the maxim pacta sunt servanda, which, as the Supreme Court of Appeal has repeatedly noted, gives effect to the central constitutional values of freedom and dignity. Self-autonomy, or the ability to regulate one’s own affairs, even to one’s own detriment, is the very essence of freedom and a vital part of dignity. The extent to which the contract was freely and voluntarily concluded is clearly a vital factor as it will determine the weight that should be afforded to the values of freedom and dignity. The other consideration is that all persons have a right to seek judicial redress. These considerations express the constitutional values that must now inform all laws, including the common-law principles of contract. [] The second question involves an inquiry into the circumstances that prevented compliance with the clause. It was unreasonable to insist on compliance with the clause or impossible for the person to comply with the time limitation clause. Naturally, the onus is upon the party seeking to avoid the enforcement of the time-limitation clause. What this means in practical terms is that once it is accepted that the clause does not violate public policy and noncompliance with it is established, the claimant is required to show that in the circumstances of the case there was a good reason why there was a failure to comply. [] It follows in my judgment that the first inquiry must be directed at the objective terms of the contract. If it is found that the objective terms are not inconsistent with public policy on their face, the further question will then arise which is whether the terms are contrary to public policy in the light of the relative situation of the contracting parties. In Afrox the Supreme Court of Appeal recognized that unequal bargaining power is indeed a factor that together with other factors plays a

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role in the consideration of public policy. This is recognition of the potential injustice that may be caused by inequality of bargaining power. Although the court found ultimately that on the facts there was no evidence of an inequality of bargaining power, this does not detract from the principle enunciated in that case, namely that the relative situation of the contracting parties is a relevant consideration in determining whether a contractual term is contrary to public policy. I endorse this principle. This is an important principle in a society as unequal as ours. [] I accept that there may well be time-limitation clauses that are so unreasonable that their unfairness is manifest. A clause I have in mind is one that requires a claimant to give notice of a claim and to sue within twenty-four hours of the occurrence of the risk insured against. Having regard to the information that needs to be obtained, and the steps that need to be taken before a written claim can be submitted and legal proceedings instituted, it would not require any additional information to conclude that the clause is so unreasonable that its unfairness is manifest. There may be other examples of time-limitation clauses that give claimants subject to them so little time to institute legal proceedings that they are tantamount to an outright denial of the right to seek judicial redress. [] The first question therefore is whether clause .. falls within this category of time-limitation clauses.

Is Clause .. So Manifestly Unreasonable That It Offends Public Policy? [] In Mohlomi the court found two flaws in the provision in issue which together rendered it unconstitutional. The first was that it gave claimants “too short a time” to give notice in the first place and to sue in the second. This, the court held, limited the right to seek judicial redress. The second flaw was that the provision was inflexible. It insisted on strict compliance with its requirements no matter how harsh this may have turned out to be in a given case. This, the court found, rendered the provision unjustifiable under section () of the Interim Constitution. Thus, too short a time to give notice (one month) and to sue (six months), and the inflexibility of the provision, rendered section () of the Defence Act unconstitutional. [] Relying on the reasoning in Mohlomi, counsel for the applicant contended that the period of ninety days allowed by clause .. was too short a time to sue. The fact is that the period of ninety days began to run once the claim had been lodged with and repudiated by the insurance company. At this stage the applicant not only knew what his cause of action was, but he also knew the identity of the defendant as well as the amount of his claim. All that remained was for the applicant to issue summons against the respondent. This he could do either himself or through a lawyer, as he eventually did. Thus the moment the ninety-day period began to run; the applicant had all the information that was necessary to sue. It is clear that ninety days is not a manifestly unreasonable period comparable to the twenty-four-hour

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period described above. The question remains whether, considering the circumstances of its conclusion, it still violates public policy. [] We are concerned here with a contract between the applicant and the respondent. The reasonableness or otherwise of the period allowed by the clause must be assessed by reference to the circumstances of the parties. In Mohlomi this court observed that the harshness of the statutory provision in issue there must be assessed in the light of the realities that prevail in our country, the realities that our history has bequeathed to us. And as this court observed, this is a land where poverty and illiteracy abound and differences of culture and language are pronounced, where such conditions isolate the people whom they handicap from the mainstream of the law, where most persons who have been injured are either unaware of or poorly informed about their legal rights and what they should do in order to enforce those, and where access to the professional advice and assistance that they need so sorely is often difficult for financial or geographical reasons.

[] Indeed, many people in this country conclude contracts without any bargaining power and without understanding what they are agreeing to. That will often be a relevant consideration in determining fairness. [] This court must, however, operate on the basis of the evidence that was presented to the High Court and that is now before us. There is no admissible evidence that the contract was not freely concluded, that there was unequal bargaining power between the parties or that the clause was not drawn to the applicant’s attention. There is nothing to suggest that the contract was not freely concluded between persons with equal bargaining power or that the applicant was not aware of the clause. On the contrary, the indications are that he was aware of the time limitations. The contract required him to submit a written claim with the respondent within thirty days of the accident but he submitted his written claim within at least eight days of the accident through his insurance broker. [] In these circumstances I am unable to conclude that the ninety-day period allowed to the applicant to sue is so unreasonable that its unfairness is manifest and that therefore its enforcement would be contrary to public policy. [] While it is necessary to recognize the doctrine of pacta sunt servanda, courts should be able to decline the enforcement of a time-limitation clause if it would result in unfairness or would be unreasonable. This approach requires a person in the applicant’s position to demonstrate that in the particular circumstances it would be unfair to insist on compliance with the clause. It ensures that courts, as the Supreme Court of Appeal put it, “employ [the Constitution and] its values to achieve a balance that strikes down the unacceptable excesses of ‘freedom of contract’ while seeking to permit individuals the dignity and autonomy of regulating their own lives.” And this entails, the Supreme Court of Appeal explained, “that intruding on

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apparently voluntarily concluded arrangements is a step that Judges should countenance with care, particularly when it requires them to impose their individual conceptions of fairness and justice on parties’ individual arrangements.” [] This is a sound approach. [] Thus if a court finds that a time-limitation clause does not afford a contracting party a reasonable and fair opportunity to approach a court, it will declare it to be contrary to public policy and therefore invalid. To the extent that the Supreme Court of Appeal appears to have held otherwise, that dictum cannot be supported. [] Public policy imports the notions of fairness, justice and reasonableness. Public policy would preclude the enforcement of a contractual term if its enforcement would be unjust or unfair. Public policy, it should be recalled, “is the general sense of justice of the community, the boni mores, manifested in public opinion.” Thus where a claimant seeks to avoid the enforcement of a time-limitation clause on the basis that noncompliance with it was caused by factors beyond his or her control, it is inconceivable that a court would hold the claimant to such a clause. The enforcement of the time-limitation clause in such circumstances would result in an injustice and would no doubt be contrary to public policy. As has been observed, while public policy endorses the freedom of contract, it nevertheless recognizes the need to do simple justice between the contracting parties. To hold that a court would be powerless in these circumstances would be to suggest that the hands of justice can be tied; in my view the hands of justice can never be tied under our constitutional order. [] The contentions by the parties on the question whether clause .. is enforceable regardless of how unfair or unjust this might be in a given case, raises difficult and complex questions concerning the development of the common law of contract, in particular the need to extend the application of the common-law legal principles that seek to apply justice and fairness to time-limitation clauses. [] For instance, common law does not require a person to do that which is impossible. This principle is expressed in the maxim lex non cogit ad impossibilia— no one should be compelled to perform or comply with that which is impossible. This maxim derives from the principles of justice and equity that underlie the common law. Over the years the maxim has become entrenched in our law and has been applied to avoid time-bar provisions in statutes. The occasion that comes to mind when this was done was in Montsisi v. Minister van Polisie [ () SA  (A)]. [] In Montsisi the Appellate Division held that the principle expressed by the maxim lex non cogit ad impossibilia applied to a statutory time bar provision contained in section () of the Police Act  of . The case concerned a plaintiff who sued the minister of police for damages for unlawful assault alleged to have been committed upon him by police while he was being detained in terms of section  of the Terrorism Act  of . The court held that it was impossible for the plaintiff to comply with the provisions of section () while he was in detention, and that therefore the expiry period provided for in section () did not run against him so long as he was in detention.

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[] The other common-law principle that is relevant is the requirement of good faith that the respondent submitted should be implied in this case. To counter the argument that the clause is inflexible and insists on compliance even when this would be unjust, counsel for the respondent submitted that the contract in issue here is subject to an implied term requiring the parties to act bona fide. As I understand the argument, the requirement of good faith will preclude the respondent from insisting on compliance with the time-limitation clause when it will be unjust to the applicant. Good faith, the argument went, is implied as a matter of law. Reading clause .. subject to the requirement of good faith, the clause takes account of the reasons for noncompliance and does not insist on compliance with its provisions when this would be unjust to the applicant. Counsel for the applicant submitted that the requirement of good faith is not part of our law. [] The requirement of good faith is not unknown in our common law of contract. It underlies contractual relations in our law. The concept of good faith was considered by the Appellate Division in Tuckers Land and Development Corporation (Pty) Ltd. v. Hovis [ () SA  (A)], albeit in the context of whether the doctrine of anticipatory breach should be grafted into our law. The court was concerned, in particular, with whether the doctrine of anticipatory breach relates to a breach of an existing obligation. The court observed that in Roman law courts generally had wide powers to complement or restrict the duties of parties, and to imply contractual terms in accordance with the requirements of justice, reasonableness and fairness. The concepts of justice, reasonableness and fairness constitute good faith. [] As the law currently stands good faith is not a self-standing rule, but an underlying value that is given expression through existing rules of law. In this instance good faith is given effect to by the existing common-law rule that contractual clauses that are impossible to comply with should not be enforced. To put it differently: “Good faith . . . has a creative, a controlling, and a legitimating or explanatory function. It is not, however, the only value or principle that underlies the law of contracts.” Whether, under the Constitution, this limited role for good faith is appropriate and whether the maxim lex non cogit ad impossibilia alone is sufficient to give effect to the value of good faith are, fortunately, not questions that need be answered on the facts of this case and I refrain from doing so. [] While there is a compelling argument for the proposition that both the maxim lex non cogit ad impossibilia and the requirement of good faith should be applicable to the enforcement of time-limitation clauses, the applicability of these common-law principles will depend on the reason advanced for noncompliance. In the view I take of the facts it is not necessary to reach any firm conclusion on whether the maxim lex non cogit ad impossibilia and the requirement of good faith may be applied to the enforcement of a time-limitation clause. [] The difficulty in the present case is that the applicant has not furnished the reason for the non-compliance with the time clause. He waited for two years after

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the defendant had repudiated his claim before instituting legal proceedings. On the face of it, there is nothing in his particulars of claim that suggests why he had to wait for such a long period. If the applicant had been prevented by factors beyond his control from complying with clause .., one would have expected this fact to have been pleaded. We are left to speculate on the reason for noncompliance. Without those facts it is impossible to say whether the enforcement of the clause against the applicant would be unfair and thus contrary to public policy. Indeed without those facts our decision on the constitutional issue raised may not be decisive of the litigation and might prove to be purely academic. [] But this has consequences for the appeal. In the result, without facts establishing why the applicant did not comply with the clause, I am unable to say that the enforcement of the clause would be unfair or unjust to the applicant. For all we know he may have neglected to comply with the clause in circumstances where he could have complied with it. And to allow him to avoid its consequence in these circumstances would be contrary to the doctrine of pacta sunt servanda. This would indeed be unfair to the respondent. [] Given the fact that the case must be adjudicated on the basis of the stated facts, the question whether it would be unfair to enforce clause .. must be determined on the basis of the stated facts. These facts do not disclose any reason for noncompliance that would render the enforcement of clause .. unjust and unfair. On the facts presented, the conclusion that the enforcement of clause .. would not be unjust to the applicant is unavoidable. It follows therefore that the special plea was well taken. [] In his dissenting judgment Justice Sachs deals with a range of issues and concerns, including standard-form contracts, actual, and implied consensus, public policy, the significance of small print in written contracts, and the power imbalance between insurers supported by legal expertise and people without expertise. I share many of his concerns and sentiments. Pacta sunt servanda is a profoundly moral principle, on which the coherence of any society relies. It is also a universally recognized legal principle. But the general rule that agreements must be honored cannot apply to immoral agreements that violate public policy. As indicated above, courts have recognized this and our Constitution reinforces it. Furthermore, the application of pacta sunt servanda often raises the question whether a purported agreement or pact is indeed a real one, in other words whether true consensus was reached. Therefore the relevance of power imbalances between contracting parties and the question whether true consensus could for that matter ever be reached, have often been emphasized. [] The facts of this case simply do not require us to consider these issues. What is more, these issues were never raised in the pleadings and could not, therefore, have been anticipated by the parties in the formulation of their statement of agreed facts. In these circumstances it is not appropriate to deal with them.

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DEPUTY CHIEF JUSTICE MOSENEKE [] I have had the distinct benefit of reading the elegantly reasoned judgment of my colleague, Justice Sachs. I respectfully concur in the outcome he proposes. Like him I would uphold the appeal, dismiss the respondent’s special plea and remit the matter to the High Court for the final adjudication of the applicant’s claim. [] I have also read the strongly reasoned majority judgment prepared by my colleague, Justice Ngcobo. Whilst I agree with the majority judgment in some respects, I regret that I am unable to embrace its reasoning and primary conclusion that the impugned time-bar clause does not violate public policy because the agreed facts do not show that it is unfair to the applicant. This conclusion Justice Ngcobo reaches by holding that the facts do not disclose any reason for noncompliance that would render the enforcement of the time-bar provision unjust and unfair. In his view, the onus is upon the party seeking to avoid the harshness of a timelimitation clause to show that the contractual provision is contrary to public policy in the sense that it does not afford an adequate and fair opportunity to seek judicial redress. [] In my view the fault line in the reasoning of the majority judgment lies in the way it frames the enquiry into whether a contractual provision offends public policy. The judgment advocates that the consistency of a contractual term with public policy must be assessed by reference to the circumstances and conduct of the parties to the contract. In this particular case the judgment goes on to hold that “the fairness or otherwise of the clause must therefore be assessed by reference to the circumstances of the applicant.” [] This preferred subjective yardstick has prompted a fulsome enquiry into: (a) (b) (c) (d)

whether the applicant is poor or illiterate; whether he was unaware of his rights; whether he had access to professional advice; and whether he was impeded by financial, educational or geographical reasons from meeting the deadline set by the time bar.

In the same vein, much has been made of the fact that he is a software developer and drives a new BMW i, which in the words of the Supreme Court of Appeal is “a vehicle seemingly appurtenant to a reasonably affluent middle-class lifestyle.” The majority judgment also notes that the applicant lodged his claim with the insurance company promptly after the motor collision that saw his motor vehicle damaged beyond repair, thereby implying that he could have issued summons well within the ninety-day prescriptive period. In effect the applicant’s personal attributes and station in life played a decisive role in the determination of the majority judgment that the time-bar clause is fair and just and thus accords with public policy.

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[] In my view the enquiry must be characterized differently. The appropriate test as to whether a contractual term is at odds with public policy has little or nothing to do with whether the party seeking to avoid the consequences of the time-bar clause was well-resourced or in a position to do so. The question to be asked is whether the stipulation clashes with public norms and whether the contractual term is so unreasonable as to offend public policy. In the context of this case the question to be posed is whether the provision itself unreasonably or unjustifiably limits the right to seek judicial redress. Ordinarily the answer should not rest with the peculiar situation of the contracting parties, but with an objective assessment of the terms of their bargain. [] The proper approach would be to look at the time-bar stipulation itself within the context of the entire agreement with a view to assessing whether it evinces a tendency or reasonable likelihood to deprive the claimant of the right to approach the courts for redress. When one weighs whether a contractual term is at variance with public policy, it matters little, or perhaps matters not, what the personal attributes of the party seeking to escape the results of the time bar are. It is not inconceivable that the personal and social station of the claimant may have some bearing on the public policy evaluation, but ordinarily it is not decisive. It is the likely impact of the impugned stipulation that should be determinative of what public notions of fairness may tolerate. [] Courts emphasize that it is the tendency of the clause to deprive the respondent of his right to judicial redress, which should be scrutinized for reasonableness. Public policy cannot be determined at the behest of the idiosyncrasies of individual contracting parties. If it were so, the determination of public policy would be held ransom by the infinite variations to be found in any set of contracting parties. In effect, on the subjective approach that the majority judgment favors, identical stipulations could be good or bad in a manner that renders whimsical the reasonableness standard of public policy. [] The issue whether the peculiar situation of contracting parties should enter the equation in assessing a contractual term, which is said to offend public policy, is neither novel nor free from controversy. But it is by now well settled. In fact judicial opinion on the issue has a century long pedigree and was recently confirmed by the unanimous Supreme Court of Appeal judgment of Bafana Finance Mabopane v. Makwakwa and Another [ () SA  (SCA)]. [] While there is often merit in contextual analysis, it is clear that contractual terms should not be tested for their consistency to public norms by merely observing the peculiar situation of contracting parties. The enquiry must rather focus on the arrangement that the stipulation contemplates, on its impact on the parties, whoever they may be, on its tendency or likely outcome and ultimately, on its fairness between the parties as measured against public notions of fairness. This approach is particularly apposite in our constitutional setting. Trite as it is that our constitutional values allow individuals the dignity and freedom to regulate their affairs, they also require

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that bargains, even if freely struck, may not steer a course inimical to public notions of equity and fairness, which are now sourced from constitutional values. To defeat a complaint that a contractual term offends public policy by holding that the complainant has not shown individual unfairness is in effect to extol the laissez faire notions of freedom of contract at the expense of public notions of reasonableness and fairness. [] I am therefore in agreement with Justice Sachs, who holds that courts are obliged to find relevant objective factors that might provide pointers towards public policy compliance in relation to terms limiting access to courts. And Justice Sachs does so admirably by looking first at the time-bar provision itself within its full contractual setting. He meticulously examines other ancillary documents that provide valuable clues on the likely manner in which the insurance agreement was concluded. [] As the majority judgment does, I hold that the two-part test in Mohlomi [v. Minister of Defence  () SA  (CC)] on whether a provision affords a claimant an adequate and fair opportunity to seek legal redress, applies in this case. The first part relates to whether the impugned term is too short, first to give notice and next to sue. The second part probes whether the stipulation is inflexible and requires strict compliance, whatever the circumstances. [] I accept that the special plea has to be decided on the stated case, sparse as the facts may be. In this regard, the facts must be understood within the context of the pleadings, and in particular the insurance agreement and other annexures. However, I do not accept that the facts are not enough to adjudicate the special plea of prescription and the replication that the contractual provision is inimical to public policy. [] For my part the impugned time-bar clause, clause .., fails the test laid down in Mohlomi on both counts. The clause is unreasonably short and it is manifestly inflexible. It is couched in certain and explicit terms. The claimant must serve summons within ninety days of repudiation. If this is not done, the insurer is released from liability. The clause irreversibly takes away, in an unreasonably short time, the right of action of the insured, and in that way denies the insured a reasonable opportunity to have the dispute decided by an independent tribunal. [] The period is unreasonably short on several grounds. First, to require a claimant to find litigation funds, appoint an attorney, cause counsel to be briefed and issue and serve summons within a period of ninety days of repudiation of the claim is unreasonable and unconscionable. The likely impact or tendency of this brief time bar is to release the insurer from liability to its considerable financial gain and to the irreparable prejudice of the insured. [] Second, it is not clear what legitimate purpose is served by this unseemly haste. Once the claimant has given timeous notice of an intention to claim, the insurance company is afforded the opportunity to investigate the claim and to preserve evidence for trial. One must wonder why this one-sided rush is necessary to protect the interests of the insurance company. The likely harm to the insured that the provision wreaks seems disproportionate to the interest the insurance company seeks to

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protect. In other words the prejudice that the clause visits on claimants is disproportionate to the conceivable benefits that it confers on the insurance company. [] Third, the attenuated time bar is not reciprocal. The insurance agreement does not contain any time bar to the insurer’s right of action against the insured. It may repudiate the claim when it chooses and any claim it may have against the insured seems to be limited only by the three-year prescription period of general application. [] Fourth, at least since the advent of our democracy, Parliament seems to have adopted a new approach to ameliorate the consequence of time-limitation clauses in statutes. Here I have in mind the Institution of Legal Proceedings Against Certain Organs of State Act. Its declared purpose is to regulate and harmonize the periods of time within which to institute legal proceedings against certain organs of State and to give notice of such proceedings. Under section ()(b), debts that became due after the commencement of this statute are governed by chapter  of the Prescription Act. [] In the present matter the impugned time-bar clause on its terms does not provide for extension of time on good cause shown, and is enforceable whatever the reason is for failure to comply. In other words the clause may be enforced however unfair or unjust its consequences may be. In this court the respondent contended that the time limitation is not an absolute defense to an insurance claim brought out of time because at common law the applicant has remedies that may be invoked to escape its oppressive consequences. The respondent relied on the doctrine of good faith and the common-law maxim that the law does not require people to do the impossible. However, given the view the majority judgment takes that the facts are insufficient, it does not find it necessary to reach a firm conclusion on whether the maxim relating to impossibility and the requirement of good faith may be applied to the enforcement of a time-limitation clause. In effect the majority judgment does not decide whether the clause is inflexible because there are no facts to show why the applicant did not comply with the time limitation. [] It seems clear that the respondent’s contention that there are common-law defenses that could render the time-bar clause flexible is at best of no practical value in this case. This argument is an after-thought. It was never pleaded or argued in the High Court or the Supreme Court of Appeal. It amounts to a belated invitation to this court to develop the common law. In any event the common-law qualification that the respondent seeks to have read into the stipulation flies in the face of the respondent’s actual conduct, which is that the special plea is sufficient to destroy the applicant’s claim. In my view the clause means what it says. If the summons is not served within  days of repudiation of the claim the insurer is released from liability. The clause is on its face unreasonable and unjust. It denies the applicant a reasonable and adequate opportunity to seek legal redress and is therefore at odds with public policy.

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JUSTICE SACHS

The Actual Contractual Arrangements [] In considering the appropriate manner in which to evaluate the time bar it is impossible to avoid going through the tedious process of examining the four documents before this court that are said to establish the contractual arrangements in which it appears. There has been no suggestion from either party that there are any other relevant factors bearing on these arrangements, though it does appear from the documents that what was involved was a renewal of an insurance policy previously entered into. [] The first document: In a letter dated  October , Hamford indicates that it has successfully maintained their premiums on the Homesecure policy without increase since , but unfortunately, due to the increase in motor vehicle accidents and costs of repairs, it has no alternative but to nominally increase the insurance premiums on motor vehicles from  December . The letter goes on to say: Please ensure that provision is made for a revised monthly premium of R, to be debited on  December . Kindly note that any endorsements on your policy before  December  might have an effect on the premium. Enclosed is a new schedule of insurance and revised policy wording including excess payments, which become effective on  December . Please read your schedule and ensure that you are aware of and comply with the security requirements. Should you have any queries with regard to the above, please contact your broker or Hamford. Thank you for your valued support in the past and be assured of our best attention in the future. Yours faithfully, Lynford Clarke Director

[] The second document: On  November  Hamford underwriting department wrote to the applicant as follows: Policy number: PL/ We have revised your policy as requested by yourself and have pleasure in attaching an updated schedule for your records. Kindly check the schedule and ensure that all the details contained therein are correct. Should you not advise us to the contrary within  days of date hereof, it will be assumed to be correct. Ensure that you are aware of and comply with the security requirements as listed on the schedule. Please note that cover is subject to compliance with the requirements. Vehicles have to be inspected before cover will incept.

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Legal Cases (–)

Should you reside in the Pretoria, Johannesburg, or surrounding areas, the vehicle inspection must be performed by our own inspector. Please contact Pat Davies at [number provided] or our office to arrange an appointment. Please do not hesitate to contact your broker should you have any queries. Kind Regards Hamford underwriting department.

[] The third document: The attached schedule runs to four pages. It is clear from its terms that it is intended to set out all the key terms agreed to by the parties. In section a on the third page, under the heading “Motor vehicles,” it sets out information of special relevance to this case. This relates to the sum insured, the premium and details of the car. Opposite the word “Cover” appears the word “Comprehensive.” Opposite the word “Requirements” it reads “. Approved tracking device. . . . . Vehicle inspection report.” At the bottom of the page is a column headed “Loadings” under which the word “No” appears next to the words “[Under]  years old,” “Motor only,” and “Business use,” respectively. Another column headed “Discounts” has the word “Yes” next to “Tracking device” and “No” next to “Lady driver,” “Advanced driver,” and “[Over]  years old,” respectively. On the last page is a signature for and on behalf of C. Hamford. Right at the end is a box headed “Schedule of cancelled sections/items,” which refers to a car radio, CD shuttle, laptops, and FAH  GP. [] Before considering the fourth and last document I note three points. The first is that it appears from the documents themselves that the negotiations were largely if not completely conducted by correspondence, and that these three contractual documents were prepared and signed by Hamford, with the terms being based on information provided by the applicant, recorded by Hamford and intended to be binding if Hamford was not advised to the contrary within fourteen days. The second is that no time limitation for bringing proceedings is referred to in these three documents. And the third is that no mention whatsoever is made of any further document to be regarded as part of the contract, that is, the correspondence does not refer to an attached contract of reinsurance with Lloyd’s, the fourth document included in the bundle. I now turn to consider the status of that fourth document. [] The fourth document: The fourth document is a printed document of twenty-nine pages, each headed with the word “Lloyd’s” under which is stamped the words “Hamford: Sertifikaat van versekering.” Below that on the covering page the following appears: Underwritten at Lloyd’s This is to certify that certain underwriters at Lloyd’s of London (whose names and proportions underwritten by them shall be supplied on application and hereinafter collectively called the insurer) have granted Hamford (Pty)

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Ltd. authorization under contract (which bears the seal of the Lloyd’s policy signing office) to grant insurance in accordance with this policy wording. Hamford (Pty) Ltd. shall act as underwriting manager of Lloyd’s of London and shall issue quotations, policies and pay claims insured in accordance with its mandate from Lloyd’s of London. Signed on behalf of the Insurer and Hamford (Pty) Ltd.: LR Clarke Managing Director Important: Carefully examine this policy. Immediately on receipt please examine this policy and if it is not in accordance with your application kindly return it at once to the office of issue. Immediate notification must be given to Hamford (Pty) Ltd. of any changes which may affect the Insurance provided by this policy.

The first page is headed “What to do in the event of a motor accident” and sets out in small print various responsibilities of the insured emphasizing the importance of reporting. Then follow twenty-seven pages in equally small print. They are grouped in eight sections, each with its own format and extensive headings, clauses, subclauses, many written in dense legal language. Only one portion is to some degree highlighted: in the “General” section at the beginning it deals with cancellation, and stands out slightly from the rest of the text because it is in bold type. [] On the fourth page in a section headed “General,” the first five lines purport to state the contractual relationship between the insured (whose name is not given) and the insurer. They read: The insurer agrees to insure the insured, where he holds insurable interest in the property, in respect of the insured events subject to all the terms, exceptions and conditions contained herein or endorsed hereon upon the payment and acceptance of the premium as specified in the schedule for the period of insurance. The proposal form completed by the Insured shall be the basis of this option . . . of the insurer by payment, replacement, reinstatement or repair.

A multitude of provisions appear in the following twenty-two pages, dealing with terms covering such diverse themes as the meaning of headnotes, loss, or damage arising out of computers not being compliant with the year , averaging, automatic inflation margins, war and nuclear risks. Much space is taken up with “Special exclusions.” [] If one pages through these twenty-two pages diligently, on the fourth page one comes across several headings, the fourth of which reads “Claims procedures

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Legal Cases (–)

and the requirements.” After stating that notification of an event likely to give rise to a claim must be given as soon as possible and the claim submitted within thirty days, eight further procedural requirements are stipulated. Then follows a subheading “Requirements.” Three are listed on this page. At the top of the fifth page are four more provisions, including the one at the heart of this litigation. Clause .. reads: If we reject liability for any claim made under this policy we will be released from liability unless summons is served on Lloyd’s SA or Hamford (Pty) Ltd. within  days of repudiation.

More than twenty pages of small print in single space follow, covering a vast range of topics, much of it relating to matters such as sea-craft that could have no bearing on the relationship between the applicant and the insurer. Finally, at the foot of the twenty-ninth page the reader is informed as follows: Copyright \C . The contents and layout of this document remains the sole and exclusive property of Hamford (Pty) Ltd. and no part of it may be reproduced, stored in a retrieval system or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior written permission of Hamford (Pty) Ltd.

[] Reading the four documents together establishes that the negotiated terms between the parties are contained in document , the schedule, and not in document , the self-entitled “Certificate of insurance.” Furthermore none of the documents are signed by the insured, and although documents  and  (the letters signed on behalf of Hamford) draw attention to the schedule, they do not refer to the certificate of insurance. Document  invites the applicant to peruse document , the schedule, and states that if he does not advise to the contrary within fourteen days, the details will be assumed to be correct. The applicant’s attention is then specifically drawn to the need for compliance with security requirements and the importance of his vehicle being inspected. [] The fourth document does not appear to have been discussed by the parties. Presumably, however, it had been attached in the previous year to the negotiated documents. I will assume in favor of the insurer that the applicant was aware of its existence and of the fact that in some rather vague way the relationship between the insurer and Lloyd’s as reflected in it had a bearing on his relationship with Hamford. Yet not only was it not signed by him, there is no evidence from Hamford that its provisions were drawn to his attention. It was in fact a prolix, dense and hard to read example of a standard-form contract, sometimes referred to as a contract of adhesion, and copyrighted to boot.

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Standard-form Contracts [] Standard-form contracts are contracts that are drafted in advance by the supplier of goods or services and presented to the consumer on a take-it-or-leave-it basis, thus eliminating opportunity for arm’s length negotiations. They contain a common stock of contract terms that tend to be weighted heavily in favor of the supplier and to operate to limit or exclude the consumer’s normal contractual rights and the supplier’s normal contractual obligations and liabilities. Not only is the consumer frequently unable to resist the terms in a standard-form contract but he or she is often unaware of their existence or unable to appreciate their import. Onerous terms are often couched in obscure legalese and incorporated as part of the “fine print” of the contract. [] As it is impracticable for ordinary people in their daily commercial activities to enlist the advice of a lawyer, most consumers simply sign or accept the contract without knowing the full implications of their act. The task of endlessly shopping around and wading through endless small print in endless standard forms would be beyond the expectations that could be held of any ordinary person who simply wished to get his or her car insured. What the insured in fact looks for is a reliable insurer that offers what he or she thinks are reasonable terms as regards cover and premiums. Indeed, to expect the would-be purchaser of short-term insurance to seek full legal advice on every term in the standard-form contract would both require that the expense of the premium be exceeded many times over, and result in the absurdity of the short term of the cover expiring before comprehensive clarity on each and every provision was obtained. [] Standard-form contracts such as the one in the present case undoubtedly provide benefits for those who produce and rely on them. In the context of mass production of goods and services, the use of standard forms gave rise to the most significant new phenomenon in the practice of making contracts in the twentieth century—the application of mass contracts to consumer transactions. For a business dealing with consumers, lawyers devised printed contracts that purported to govern exclusively the business relationship between the parties. Standard-form contracts are thus ordinarily the product not of negotiations but of the employment of legal teams by sellers of goods and services to serve their interests. In a business context such a standard-form contract preserves the wisdom of the inhouse lawyers about the best way in which to handle recurrent problems of negotiation and performance. [] In many consumer and business transactions the contract will be concluded on the basis of a printed document that purports to contain all the terms of the contract. In some cases the printed document will be signed by both parties, but often it is merely handed over or posted at the time of the formation of the contract. Some doubt has been expressed about the validity of such standard forms to count as contracts at all. The process often resembles an imposition of will rather than

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Legal Cases (–)

mutual consent to an agreement, so these transactions have been described as contracts of adhesion. [] The use of standard forms responds to two economic pressures. They reduce the transaction costs of contracting by making available at no extra cost a suitable set of terms. In addition the printed forms permit senior management of a firm to control the contractual arrangement made by subordinate sales staff. For these reasons it makes sense to permit the use of standard forms, but to control the content of the terms of the contracts.

The Legal Status of Standard-form Contracts [] A strong case can be made out for the proposition that clauses in a standardform contract that are unreasonable, oppressive or unconscionable are in general inconsistent with the values of an open and democratic society that promotes human dignity, equality and freedom. Justice Davis has presented the argument in the following terms: Like the concept of boni mores in our law of delict, the concept of good faith is shaped by the legal convictions of the community. While Roman-Dutch law may well supply the conceptual apparatus for our law, the content with which concepts are filled depends on an examination of the legal conviction of the community—a far more difficult task. This task requires that careful account be taken of the existence of our constitutional community, based as it is upon principles of freedom, equality and dignity. The principle of freedom does, to an extent, support the view that the contractual autonomy of the parties should be respected and that failure to recognize such autonomy could cause contractual litigation to mushroom and the expectations of contractual parties to be frustrated. But the principles of equality and dignity direct attention in another direction. Parties to a contract must adhere to a minimum threshold of mutual respect in which the “unreasonable and one-sided promotion of one’s own interest at the expense of the other infringes the principle of good faith to such a degree as to outweigh the public interest in the sanctity of contracts.” The task is not to disguise equity or principle but to develop contractual principles in the image of the Constitution. . . . In short, the constitutional state which was introduced in  mandates that all law should be congruent with the fundamental values of the Constitution. Oppressive, unreasonable or unconscionable contracts can fall foul of the values of the Constitution. In accordance with its constitutional mandate the courts of our constitutional community can employ the concept of boni mores to infuse our law of contract with this concept of bona fides. (References omitted.)

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[] I should add that the legal convictions of the community should not be equated with the convictions of the legal community. The doctrine of sanctity of contract and the maxim pacta sunt servanda have through judicial and textbook repetition come to appear axiomatic, indeed mesmeric, to many in the legal world. Their virtue, if applied in an unlimited way, is not self-evident, and their reach, if not their essence, has come to be severely restricted in open and democratic societies. This has happened over several decades through the overlapping effects of consumer protection struggles, scholarly critiques, legislative interventions and creative judicial reasoning. The jurisprudential pedestal on which it once imperiously stood has been singularly narrowed in the great majority of democratic societies. Our new constitutional order, I believe, further attenuates its one-time implacable application. [] These broad considerations provide an important backdrop against which public policy in the present matter has to be viewed. More directly, there appear to be three specific factors that in combination raise serious questions about the enforceability on public-policy grounds of the specific standard-form clause in the present matter. [] The first is that an expressly guaranteed constitutional right is engaged, namely the right to have a dispute between the parties resolved by a court. This is an area where public and private law meet. The courts are there precisely to ensure that legal disputes are not settled through self-help but through recourse to an impartial tribunal. Indeed, the courts have developed the law of contract over the centuries because they have been relied upon to hold the balance between the parties and establish appropriate norms and standards for regulating their respective rights. The special significance of the right of access to the courts will be dealt with later. [] Secondly, the area of activity relates to matters of considerable public concern. Insurance for car users is not a luxury but part and parcel of everyday life, a virtual necessity for many vehicle owners. The insurance industry deals with members of the public who come off the streets and place their faith in the solvency, efficiency, probity, and integrity of the insurers. Insurance companies compete on aspects concerning cover, no-claim bonuses and premiums, not on the basis of what appears in the small print. Its public service character is reflected in self-regulation as an industry, and the appointment of an ombudsman. Insurance thus has become a necessity for large sections of our society—it is not a personal indulgence. The insurance industry is highly organized and large insurance companies play a major role in public life. The public interest in promoting fair dealing in insurance contracts so as to protect relatively vulnerable individuals contracting with large, specialist business firms, is accordingly strong. [] Thirdly, the clause in question appeared in a classic example of a standardform contract. Unlike other leading cases that have been litigated on in recent years, where the challenged clause was one of that both parties were aware at the time of contracting, but was sought to be struck down because of its extortionate character,

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Legal Cases (–)

the clause in the present case was not signed by Mr. Barkhuizen, but buried in a voluminous add-on document. On the face of it the actual bargain struck between the parties was contained in the letter sent by Hamford to the applicant, and the schedule that accompanied it. These two documents convey what the parties actually agreed to. The certificate of insurance with Lloyd’s in which clause .. can be found, was sent to him in circumstances not clear from the record. It contains endless provisions in a font sufficiently small to reduce the costs of the paper used while simultaneously discouraging any reasonable person from ploughing through it. Clause .. sought unilaterally and without giving Mr. Barkhuizen any corresponding benefits, to impose onerous terms on him that he had apparently not knowingly agreed to, and to restrict the ordinary rights he would have had to seek enforcement of his claim under the law of contract. [] In my view it is the combination of these three factors that characterizes this case and establishes the specific matrix in which it must be evaluated. Of particular relevance is the enforceability or otherwise of terms which might technically be brought within what is referred to as “the contract,” but which did not form part of the actual consensus or real agreement between the parties. The potential unreasonableness in the eyes of the community, leading to a possible finding of violation of public policy, lies in holding a person to one-sided terms of a bargain to which he or she apparently did not actually agree, in respect of which there is nothing to indicate that his or her attention was drawn and the legal import of which a reasonable person in his or her position could not be expected to be aware. [] It is appropriate at this stage to consider the relevance, if any, of the fact that the applicant was not a poor and illiterate person likely to be bamboozled by any complex legal document. Standard-form contracts by their very nature have standard effects. The fact is that one-sided clauses, the existence or import of which the consumer is likely to be largely or totally unaware, hit the computer-literate owner of a relatively new BMW who buys online with the same impact as they do the owner of the jalopy close to the scrapyard who signs with a thumbprint. It is not only the indigent and the illiterate who in practice remain ignorant of everything the document contains; the fact that consumer protection is especially important for the poor does not imply that it is irrelevant for the rich. The rich too have rights. They have the same entitlement as everybody else to fair treatment in their capacity as consumers. If in our new constitutional order the quality of public policy, like the quality of mercy and justice, is not strained, then the wealthy must be as entitled to their day in court as the poor. [] The questions before us, then, are as follows: does public policy, propelled by the letter and spirit of our Constitution, regard received notions of contract law as encapsulated in the notion of sanctity of contract, to be inviolate and unchanging? Does it countenance a person being bound by onerous terms even though they were unilaterally attached to the actual bargain made? To what extent does public policy in an open and democratic society require that the service provider who authored

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such provisions show that these terms were specifically drawn to the consumer’s attention? How central to public policy is the fact that these terms attenuate a constitutionally protected right in a manifestly one-sided way? And what weight does public policy attach to the reality that the person negatively affected cannot in the circumstances reasonably be expected to have understood the provision to constitute an obligation actually undertaken by him or her under the contract? To answer these questions it is necessary to look at the manner in which contract law has evolved over the centuries in relation to the central issue of mutual consent lying at the heart of contractual obligation. Freedom of contract has been said to lie at the heart of constitutionally prized values of dignity and autonomy. Yet the evolution of contract law suggests that the notion of sanctity of contract has been used to undermine rather than reinforce true volition.

The Evolution of Contract Law: From Actual to Imputed Consensus [] The right, and power, to make a contract evolved over time to become a central part of the bundle of legal rights that constituted legal personality. Indeed, as Maine demonstrated in the nineteenth century, the emergence of the concept of contract as a means of organizing relationships between people was seen as marking the maturity of a legal system. The historical movement from “status to contract,” in his famous phrase, was not only vital, it was inevitable. The making of contracts was an aspect of freedom. It is not surprising, therefore, that the common law, which historically was a powerful tool in the evolution of political freedom, should adopt the attitude that the less interference with an individual’s exercise of the right and power to contract, the better. As Atiyah has shown, this attitude of the common law vis-à-vis contract was intrinsically bound up with the economic doctrine of laissez faire. It presupposed freedom to contract or not to contract, and non-interference by the courts under the governing principles of the law of contract. What gave a particular character to contract law, however, was the development of the notion that consent to contractual terms could be inferred objectively. [] In recent decades, however, more emphasis has been placed on restoring a truly consensual approach. This has come about not because Judges have been prepared to overturn settled principles of the common law in order to dispense “palm tree justice.” As Fridman explains, a prime factor in this evolution may well be the greater interest of the state, i.e. society at large, in the regulation of private arrangements. A contract may no longer be of concern solely to the parties. The public in general may be concerned with the consequences of such arrangements, whoever the parties and whatever the subject matter of the arrangement. “Our more liberal, democratic and egalitarian society,” he states, “places more emphasis upon the achievement of just result than on the maintenance of technical doctrine derived from precedents that stretch back several centuries.” [] Prolix standard-form contracts undermine rather than support the integrity of what was actually concluded between the parties. They unilaterally introduce

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Legal Cases (–)

elements that were never in reality bargained for, and that had nothing to do with the actual bargain. It may be said that far from promoting autonomy, they induce automatism. The consumer’s will does not enter the picture at all. Indeed, it could be contended that the question has moved from being one of whether Judges should impose their own subjective and undefined preferences in this field, to one of whether their own vision has become so clouded by anachronistic doctrine as to prevent them from seeing objective reality. [] A distinction needs to be drawn, then, between those aspects of the contract where the minds concerned actually met, and a range of surrounding provisions that were never discussed at all, but that, like Mount Everest, were just there. Little wonder that such provisions characteristically appear in small print. Their objective is not to record negotiated terms but to be as un-prominent as possible so as to provide the least possible distraction from finalizing the contract, while securing the greatest obligatory reach for the consumer and the most-reduced prospect of liability for the provider. Thus, while businesspeople can get their lawyers to scrutinize the small print with professional lenses and advise accordingly, ordinary consumers cannot be expected to do the same. The result is that much of the contract is in reality not a record of what was agreed upon but a superimposed construction favoring one side. In my view, to treat mass-produced script as sanctified legal Scripture is to perpetuate something hollow and to dishonor the moral and philosophical foundation of contract law. It certainly does not promote the spirit of openness central to our new constitutional order. [] I now turn to consider the significance of these historical and philosophical considerations for the issue of unenforceability of contracts that go against public policy, as animated by the Constitution, in South Africa.

Public Policy in South African Contract Law [] As the majority in the Supreme Court of Appeal held in Sasfin the interest of the community or the public are of paramount importance in relation to the concept of public policy. Agreements that are clearly inimical to the interests of the community, whether they are contrary to law or morality, or run counter to social or economic expedience, will accordingly, on the grounds of public policy, not be enforced. [] More recently the Supreme Court of Appeal was called upon to deal with the implications for public policy of a contractual term that inhibited access to the courts. In Bafana Finance [Mabopane v. Makwakwa and Another  () SA  (SCA)], Justice Cachalia , writing for a unanimous court, said: That a court may not enforce an agreement because the objective it seeks to achieve is contrary to public policy is firmly part of our law. And in this determination “public policy” is anchored in the founding constitutional values, which include human dignity, the achievement of equality, and the advancement of human rights and freedoms.

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... [O]ur Courts have had no difficulty in declaring contracts contrary to public policy where their tendency . . . is to restrict or prevent a person from vindicating his or her rights in the courts. Thus in Schierhout v. Minister of Justice Acting Justice Kotze stated: “If the terms of an agreement are such as to deprive a party of his legal rights generally, or to prevent him from seeking redress at any time in the courts of justice for any future injury or wrong committed against him, there would be good ground for holding that such an undertaking is against the public law of the land.” ... There can be no doubt that the tendency of the clause [in the present matter] is to deprive the respondent of his right to approach the court for redress from his parlous financial position. To deprive or restrict anyone’s right to seek redress in court, as the cases cited above make clear, is offensive to one’s sense of justice and is inimical to the public interest.

[] While establishing the importance of contractual terms being compliant with public policy, these cases do not in themselves indicate whether, or to what extent, standard-form contracts raise public policy concerns. I will accordingly seek to establish relevant objective factors that might provide pointers to what public policy requires with regard to standard-form contracts in general, and to terms limiting access to court in particular. I will look at the following: international practice with regard to the status and reviewability of standard-form contracts; research done and proposals made by the South African Law Reform Commission (SALRC), leading to the recent publication of the Consumer Protection Bill; academic opinion; and relevant statutory provisions regarding prescription and time limits for the bringing of civil proceedings.

Guidance from International Practice [] In considering the standards of contractual behavior required by public policy in South Africa, attention should be paid to the manner in which standard-form contracts are being dealt with in other open and democratic societies. As Collins points out, one of the foremost general challenges for legal regulation of markets during the twentieth century was the requirement to limit the advantages that businesses could obtain against consumers by deploying standard-form contracts. This has been a worldwide concern. [] The SALRC has stated that “public policy . . . is more sensitive to justice, fairness and equity than ever before.” It added that: With the rise of the movement towards consumer protection in the early seventies, it became the generally accepted view in most Western countries that

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neither specific legislation dealing with certain types of contract nor the traditional techniques of control through “interpretation” of contractual terms were sufficient, and that legislative action was required to deal with contractual unconscionability on a more general level. Such laws have been enacted in Denmark, Sweden, Norway, France, the Federal Republic of Germany, the Netherlands, and Australia as well. They are all based on the principle of good faith in the execution of contracts.

[] The United Kingdom standard-form contracts are governed by a consumer protection statute of  and Article  of the European Council Directive on Unfair Terms in Consumer Contracts, which provides “[a] contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations arising under the contract, to the detriment of the consumer.” This broad provision is restricted in its scope by Article (): Assessment of the unfair nature of the terms shall relate neither to the definition of the main subject-matter of the contract nor to the adequacy of the price and remuneration, on the one hand, as against the services or goods supplied in exchange, on the other, insofar as these terms are in plain intelligible language.

[] Collins observes, however, that when attention is focused on ancillary terms, the conception of fairness undergoes a shift. Instead of fairness being measured against a fair price, usually the ordinary market price, the criterion of assessment becomes one of a mixture of balancing reciprocal ancillary obligations and conformity to reasonable expectations. The idea of balance suggests that an advantage obtained in ancillary terms, such as an exclusion of liability or a fixed measure of damages for breach, should be matched by corresponding benefits to the other party. Conformity to reasonable expectations suggests that the ancillary terms should not deviate from a reasonable package of terms for transactions of that type unless the parties have expressly negotiated the point. The courts are not permitted, then, to uphold a challenge to the fairness of a contract on the ground that the main subject matter of the contract represented a poor bargain. For challenges to ancillary terms, however, a combination of the ideas of balance of advantage and conformity to reasonable expectations will suffice.

Official Proposals for Statutory Reform in South Africa on Consumer Protection [] The whole question of the reviewability of allegedly unfair terms in contracts has been subjected to extensive research by the SALRC. Its conclusion was that the common law as it was being applied was inadequate for providing appropriate reme-

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dies in relation to contract terms that were unconscionable, oppressive, or unreasonable. [. . .] [] In modern contract law, the report stated, a balance had to be struck between the principle of freedom of contract, on the one hand, and the counterprinciple of social control over private volition in the interest of public policy, on the other. Its view was that there was a need to legislate against contractual unfairness, unreasonableness, unconscionability or oppressiveness in all contractual phases, namely at the stages when a contract comes into being, when it is executed and when its terms are enforced. [] It acknowledged that the main objection to the said proposal was based on the uncertainty argument. This argument was a straightforward one: the main aim of a contract is to regulate the future relationship between the parties as regards a specific transaction. The very foundation of contract law was to create certainty, to protect the expectations of the parties, to secure to each the bargain made. That was why the idea of contract, based on autonomy of the will of freedom of contract, was the very basis of all commercial and financial dealings and practices, from the simple supermarket purchase to the most involved building contract. If a court was given a review power, it meant in practical terms that the court could remake the contract, relieve one party of his or her obligations, wholly or partly, and to that extent frustrate the legitimate expectations of the other party. One would not know, when concluding a contract, whether or not that contract was going to be rewritten by a court, using as its yardstick vague terms such as “good faith,” “fairness,” “unconscionability.” [] The commission, however, was not persuaded by these arguments. It accepted that any change effected by the proposed legislation would produce a measure of legal uncertainty and consequent litigation, at least in the short term, when many contracts might be challenged. The commission was nevertheless of the view that this was a price that must be paid if greater contractual justice was to be achieved; that certainty was not the only goal of contract law, or of any other law; and lastly, in any event, that the fears provoked by the proposed bill were exaggerated in the light of the experience of countries that had already introduced such legislation. [] The commission consequently recommended the enactment of legislation addressing the issue. Unreasonableness, unconscionability, or oppressiveness should be the yardstick, and guidelines should be included in the proposed legislation. The commission concurred with the view, however, that a court would apply more flexible criteria when a contract concluded by so-called businesspeople was being considered, than would be the case where other contracting parties were involved. [] Bearing in mind the above indicators as to what the legal convictions of the community are in relation to consumer protection generally, and the status of one-sided terms in standard-form contracts in particular, I turn to consider the enforceability of clause .. in the light of public policy as currently infused with constitutional values.

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Legal Cases (–)

[] This court has on different occasions upheld appeals from decisions of the Supreme Court of Appeal on the ground that that court had failed to take due account of the duty to develop the common law so as to promote the spirit, purport and objects of the Bill of Rights. In the present matter, however, Acting Justice Cameron, writing for a unanimous court, forcefully underlined the principle that the courts will invalidate agreements offensive to public policy, and will refuse to enforce agreements that seek to achieve objects offensive to public policy. Crucially, in this calculus “public policy” now derives from the founding constitutional values of human dignity, the achievement of equality and the advancement of human rights and freedoms, nonracialism, and nonsexism.

Given this clear awareness of the duty, I would ordinarily be reluctant to cavil at the evaluation made by the Supreme Court of Appeal of how best to fulfill that duty and ensure that the common law is imbued with, rather than alien to, constitutional values. [] Because of the line of reasoning he followed, however, Acting Justice Cameron did not in the end find it necessary to consider the possible effect of the Bill of Rights on the enforceability of clause ... He held that the applicant had no rights at all that needed to be viewed through the optic of the Constitution, summarizing his reasoning as follows: On the evidence before us, there is nothing to suggest that the plaintiff did not conclude the contract with the insurer freely and in the exercise of his constitutional rights to dignity, equality and freedom. This leads to the conclusion that constitutional norms and values cannot operate to invalidate the bargain he concluded. That bargain contained at its heart a limitation of the rights it conferred. The defendant’s plea invokes that limitation, and there is nothing before us to gainsay its defense.

While respecting the elegance of the reasoning, I cannot support it. [] As I see it the bargain did not in reality contain at its heart a limitation of the rights it conferred. At its heart was an agreement that covered the use to which the car could be put, the damage to be insured against and the premiums to be paid. Possibly because of the manner in which the matter was argued, Acting Justice Cameron did not deal with what I believe to be the most salient feature of the contractual arrangement in dispute in this matter, namely, that the time-bar was contained in an ancillary clause buried in the dense standard-form text of the added-on Lloyd’s certificate of insurance. Indeed, clause .. was as far removed as one could get from the heart of the contract, obscurely located in the fourth document of the bundle annexed to the particulars of claim. It appears not to have been part of the

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actual bargain concluded, and not to be a provision of the kind which a reasonable car owner renewing an insurance policy could be expected to read, let alone digest. [] It is not, of course, the smallness of the print itself that is significant, though its minimalism may be symptomatic of a deeper malady. Whether small print is legally innocuous or legally obnoxious will depend not so much on the font as on the subject matter. [. . .] [] In the case of clause .., however, the position is different. And this is not because it is in small print, nor merely because it bears harshly on the applicant. Its enforceability is open to challenge because on its face it: Was contained in a standard-form document; was not part of the actual terms on which reliance was placed by the parties when the agreement was reached; was prepared with legal expertise on behalf of insurers who specialize in handling insurance claims and routinely engage in litigation, for use on a general basis in relation to people usually without legal expertise and who in the ordinary course of events could not be expected to get a legal opinion on the document in which it appears; wholly favors the party that drafted it without any apparent reciprocal benefit for the insured; lies buried obscurely in the small print of an exceptionally long, dense and structurally inelegant certificate of insurance apparently sent on to the insured after negotiations had been completed; is not highlighted in the text so as visually, and in keeping with internationally accepted standards of consumer protection, to bring the consequences of noncompliance to the attention of the insured at the time the contract was entered into; similarly, is not accompanied by a requirement that its import be timeously brought to the attention of the insured at the moment of repudiation, when the time period begins to run against the insured who stands to be prejudiced by noncompliance with its provisions; is for a time period less than  percent of that in respect of which either an ordinary contractual claim, or else a claim against the Road Accident Fund, would prescribe; has the effect of significantly limiting a right to have a dispute settled by a court, a right long recognized by the common law and now guaranteed as a fundamental right by the Constitution; is not subject to express qualifications in case of impossibility or difficulty of compliance, nor apparently permissive of condonation where considerations of justice would require that its harshness be tempered by prolongation of the time;

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Legal Cases (–)

impacts in an unbalanced way, not generally permitted in open and democratic societies, on the relationship between insured and insurers in respect of an activity of considerable public interest; and finally, when invoked does not simply limit or qualify the insurance claim, but wipes the claim out altogether, enabling the insurer to keep the premium, while the insured loses the right to find out if he or she should in fact have been paid for the damage done to his car. Taken together, as they must be, I believe that these factors establish convincingly and on an objective basis, and without more being required, that clause .. in and of itself offends against public policy in our new constitutional dispensation and should not be enforced.

Conclusion [] Given the scale of injustice in our past, it is not surprising that the theme of consumer protection has not loomed as large in this country as it has in other parts of the industrialized world. Yet just as the best should not be the enemy of the good, so the worst should not be the friend of the bad. As our society normalizes itself, issues that were once relatively submerged now surface to claim full attention. In this way achievement of the larger constitutional freedoms enables us to attend to and develop the smaller freedoms so necessary for enabling ordinary people to live dignified lives in an open and democratic society. People should not feel that arcane, lawyermade and highly technical rules beyond their ken, leave them with a sense of having been cheated out of their rights by the big enterprises with which they perforce have to do business. And as long as government and the legislature continue to be preoccupied with major questions of social transformation, and only now begin to tackle consumer protection in a comprehensive way, the common law, under the impulse of the values of our new constitutional order, is called upon to shoulder the burden of grappling in its own quiet and incremental manner with appropriate legal regulation to ensure basic equity in the daily dealings of ordinary people. CHIEF JUSTICE LANGA [] I concur in the judgment of Justice Ngcobo, with the exception of one matter on which I prefer not to express an opinion at this time. To the extent that Justice Ngcobo’s judgment holds that the only acceptable approach to challenging the constitutionality of contractual terms is indirect application under section (), I disagree. While I agree that indirect application may ordinarily be the best manner to address the problem, I am not convinced that section  does not allow for the possibility that certain rights may apply directly to contractual terms or the common law that underlies them. Fortunately, I find it unnecessary to decide the matter at

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this time as, to my mind, what public policy requires in this case is exactly the same as what a direct application of section  would demand. Indeed, the distinction between direct and indirect application will seldom be outcome determinative. I would therefore prefer not to preclude the possibility that the Bill of Rights may, in some circumstances, apply directly to contracts.

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Mec for Education: Kwa Zulu-Natal, Thulani Cele: School Liaison Officer, Anne Martin: Principal of Durban Girls’ High School, Fiona Knight: Chairperson of the Governing Body of Durban Girls’ High School v. Navaneethum Pillay, Governing Body Foundation, Natal Tamil Vedic Society Trust, Freedom of Expression Institute  () BCLR  (CC) CASE SUMMARY

Facts A pupil at Durban Girls High School, Sunali Pillay, pierced her nose and inserted a gold nose stud. The school told her to remove the stud because it contravened their dress code. The code banned virtually all jewelry. Sunali, supported by her mother, refused to remove the stud, on the grounds that it was part of her South Tamil culture and Hindu religion. The school considered and rejected the cultural and religious claim, and ordered Sunali to remove the stud or face suspension or expulsion from the school. Sunali’s mother took the school to the Equality Court. She argued that the school’s actions unfairly discriminated against her daughter.

Legal History After hearing evidence from the headmistress of the school, Sunali’s mother and an expert in Hindu religion, the Equality Court found that although the school had discriminated against Sunali, the discrimination was fair because it served the important purposes of maintaining uniformity and discipline. Unsatisfied, Ms. Pillay

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appealed to the High Court. Justice Kondile reversed the Equality Court decision. He observed that the school’s refusal to grant Sunali an exemption from its code reinforced the historical discrimination and marginalization of Hindus and Indians. Furthermore, Justice Kondile found no evidence that granting Sunali an exemption would undermine discipline in the school. If so, then no grounds existed for the prima facie unfair discrimination against Sunali on the grounds of religion or culture. The school appealed to the Constitutional Court.

Issue Did the school’s refusal to permit Sunali to wear the nose stud unfairly discriminate, in terms of section () of the Constitution, against Sunali on the grounds of culture or religion? Decision of the Constitutional Court Chief Justice Langa wrote for the majority of the court. The majority upheld Sunali’s right to wear the nose stud. He held that a seemingly neutral rule, such as the dress code, could still unfairly discriminate against Sunali on the grounds of culture and religion. Chief Justice Langa held that the objective evidence of the school’s own expert indicated that wearing the stud was a voluntary element of Sunali’s religion and culture. The chief justice then found that voluntary practices were entitled to as much constitutional solicitude as mandatory practices (paragraphs –). Since the nose stud was a practice entitled to constitutional solicitude, interference with Sunali’s wearing the stud amounted to discrimination. The next step was to determine whether the discrimination was fair. Chief Justice Langa emphasized the importance of reasonable accommodation. That is, the Constitution requires the state to incur reasonable costs to accommodate diverse practices. What was “reasonable” would depend on the extent of the infringement and the cost that it would impose on the rights’ bearer. In the instant matter, the prohibition on the wearing of the stud had a serious impact on Sunali’s self-understanding—as well as her religious and cultural practices—and little if any impact on the school. The discrimination was therefore unfair. Justice O’Regan dissented. She found that the only problem with the school’s actions lay with its grant of exemptions to some students but not to Sunali. She saw no problem with the code itself. She also placed greater emphasis on the objective, associative nature of culture and the link between human dignity and association. Order As Sunali had already left the school, the court could only grant the symbolic relief of a declaration that she was entitled to wear the stud. It also ordered the school to amend the school’s dress code to create a proper procedure for learners in a similar situation as Sunali to seek an exemption.

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Legal Cases (–)

Comment From the perspective of dignity analysis, the most interesting element of the decision is the link the court draws between freedom and dignity. In rejecting the contention that voluntary religious or cultural practices should be given less protection than mandatory practices, the chief justice held: A necessary element of freedom and of dignity of any individual is an “entitlement to respect for the unique set of ends that the individual pursues.”1 One of those ends is the voluntary religious and cultural practices in which we participate. That we choose voluntarily rather than through a feeling of obligation only enhances the significance of a practice to our autonomy, our identity and our dignity. (Paragraph )

While Pillay takes an important step towards working out the complex interactions between our constitutional state’s founding values—dignity, equality, and freedom— the chief justice may have overstated the case in arguing that voluntary practices are by their nature more important to individual identity than involuntary practices. Indeed, the opposite proposition is largely true. Involuntary cultural and religious practices shape us—and make us who we are—in ways that voluntary practices generally do not. They not only construct the social universe we inhabit, they largely determine what we as individuals often value most. Meaning makes us—generally speaking. The court’s judgment would have been on more solid footing had it located the groundwork for the protection of both mandatory community practices and individual voluntary practices in different sections of the Bill of Rights. But, even assuming an overlap of sources of protection in the Bill of Rights, the court might have taken greater care to lay out the basis for both types of practices and not suggested, wrongly as an empirical matter, that voluntary associations are more central to individual identity than involuntary associations.2 CHIEF JUSTICE LANGA

Leave to Appeal [] The parties were agreed that the case raises a constitutional issue; it was also not disputed that the applicants have reasonable prospects of success on appeal. There are, however, two issues that must be examined in order to determine whether leave to appeal should be granted. The first is the fact that the Supreme Court of Appeal has been bypassed and the second is the issue of mootness. The central enquiry is whether it is in the interests of justice for leave to appeal to be granted. [] It is clear that the issues in this case involve matters that must eventually be decided by this court. The parties themselves have made this patently clear. These issues have been fully canvassed in two courts. We have also had the benefit of com-

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prehensive argument, presented by the parties and the three amici curiae. In my view, it is not in the interests of justice in this case to require the parties to incur the additional expense of going to the Supreme Court of Appeal before the matter is decided by this court. With regard to mootness, this court has held that “[a] case is moot and therefore not justiciable if it no longer presents an existing or live controversy which should exist if the court is to avoid giving advisory opinions on abstract propositions of law.” [] Sunali is no longer at DGHS and the issue is therefore moot. This court, however, has held that it may be in the interests of justice to hear a matter even if it is moot if “any order which [it] may make will have some practical effect either on the parties or on others.” The following factors have been held to be potentially relevant: the nature and extent of the practical effect that any possible order might have; the importance of the issue; the complexity of the issue; the fullness or otherwise of the argument advanced; and resolving disputes between different courts. [] As already noted, this matter raises vital questions about the extent of protection afforded to cultural and religious rights in the school setting and possibly beyond. The issues are both important and complex, as is evidenced by the varying approaches of the courts below as well as courts in foreign jurisdictions. Extensive argument has been presented, not only from the parties but from three amici curiae. There is accordingly no doubt that the order, if the matter is heard, will have a significant practical effect on the school and all other schools in the country, although it will have no direct impact on Sunali. It is therefore in the interests of justice to grant leave to appeal.

What Is at Issue? [] The first question is whether the discrimination complained of by Ms. Pillay flows from the code or from the decision of the school to refuse an exemption. Ms. Pillay specifically identifies the decision of the school as the problem, but the major part of the arguments addressed to the court by all the other parties focused on the discriminatory nature of the code. To my mind, it is the combination of the code and the refusal to grant an exemption that resulted in the alleged discrimination, not the one or the other in isolation. [] There are two problems with the code, which operate together. The first is that it does not set out a process or standard according to which exemptions should be granted, for the guidance of learners, parents, and the governing body. The school has itself developed a tradition of granting exemptions in certain circumstances. The second problem is the fact that the jewelry provision in the code does not permit

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Legal Cases (–)

learners to wear a nose stud and accordingly required Sunali to seek an exemption in the first place. [] It is true, however, that even taking these flaws into account, this dispute would never have arisen if the school had granted an exemption to Sunali. Whether the policy according to which that decision was taken was part of the code, or existed only as the governing body’s tradition, would ultimately have made no difference. Nonetheless, it is still necessary for the court to address the underlying problems of the code. A properly drafted code, which sets realistic boundaries and provides a procedure to be followed in applying for and the granting of exemptions, is the proper way to foster a spirit of reasonable accommodation in our schools and to avoid acrimonious disputes such as the present one. In sum, the problem is both the decision to refuse Sunali an exemption and the inadequacies of the code itself.

The Correct Approach to “Discrimination” under the Equality Act [] Unfair discrimination, by both the state and private parties, including on the grounds of both religion and culture, is specifically prohibited by sections () and () of the Constitution, which read: () 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, color, 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 (). National legislation must be enacted to prevent or prohibit unfair discrimination.

[] The Equality Act is clearly the legislation contemplated in section () and gives further content to the prohibition on unfair discrimination. Section  of the Equality Act reiterates the Constitution’s prohibition of unfair discrimination by both the state and private parties on the same grounds including, of course, religion and culture. Although this court has regularly considered unfair discrimination under section  of the Constitution, it has not yet considered discrimination as prohibited by the Equality Act. Two preliminary issues about the nature of discrimination under the act therefore arise. [] The first is that claims brought under the Equality Act must be considered within the four corners of that act. This court has held in the context of both administrative and labor law that a litigant cannot circumvent legislation enacted to give effect to a constitutional right by attempting to rely directly on the constitutional right. To do so would be to “fail to recognize the important task conferred upon the legislature by the Constitution to respect, protect, promote, and fulfill the rights in the Bill of Rights.” The same principle applies to the Equality Act. Absent a direct challenge to the act, courts must assume that the Equality Act is consistent with the

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Constitution and claims must be decided within its margins. [] The second issue is how the definition of “discrimination” in the Equality Act should be interpreted. Section  of the Equality Act defines “discrimination” as any act or omission, including a policy, law, rule, practice, condition, or situation which directly or indirectly— (a) imposes burdens, obligations or disadvantage on; or (b) withholds benefits, opportunities or advantages from, any person on one or more of the prohibited grounds.

The school, the GBF and, to a lesser extent, the department argued that in this case, there was no comparator in the form of a group that was treated better than Sunali. They contended that although a comparator is not specifically mentioned in the definition in the Equality Act, it should be implied as a requirement. Absent a comparator therefore, no discrimination could be established. Ms. Pillay’s response to this line of reasoning spawned a deeper debate about the extent to which the act must be informed by section  of the Constitution and this court’s interpretation of that section. [] I deal with that deeper problem first and then turn to the specific question of the need for a comparator. Section () of the Constitution makes it clear that the act must be interpreted in light of the “spirit, purport and objects of the Bill of Rights” which includes section . That does not mean that the act must be interpreted to restate the precise terms of section . The legislature, when enacting national legislation to give effect to the right to equality, may extend protection beyond what is conferred by section . As long as the act does not decrease the protection afforded by section  or infringe another right, a difference between the act and section  does not violate the Constitution. It would therefore not be a problem if the definition of discrimination in the act included forms of conduct not covered by section  as long as the prohibition of those forms of conduct conformed to the Bill of Rights. [] Fortunately, on the approach I adopt below, the final determination of the more direct question of whether the Equality Act always requires a comparator can be left for another day. I hold that there is an appropriate comparator available in this case. It is those learners whose sincere religious or cultural beliefs or practices are not compromised by the code, as compared to those whose beliefs or practices are compromised. The ground of discrimination is still religion or culture as the code has a disparate impact on certain religions and cultures. The norm embodied by the code is not neutral, but enforces mainstream and historically privileged forms of adornment, such as ear studs, which also involve the piercing of a body part, at the expense of minority and historically excluded forms. It thus places a burden on learners who are unable to express themselves fully and must attend school in an environment that does not completely accept them. In my view, the comparator is

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Legal Cases (–)

not learners who were granted an exemption compared with those who were not. That approach identifies only the direct effect flowing from the school’s decisions and fails to address the underlying indirect impact inherent in the code itself. [] It follows, therefore that the code coupled with the decision to refuse Sunali an exemption will be discriminatory if they imposed a burden on her or withheld a benefit from her. In the circumstances of this case that will require a showing that Sunali’s religious or cultural beliefs or practices have been impaired. It is to that question that I now turn.

Discrimination [] The prohibition of discrimination on the basis of religion or culture in terms of the Equality Act and section  of the Constitution is distinct from the protection of religion and culture provided for by sections  and  of the Constitution. The two rights may overlap, however, where the discrimination in question flows from an interference with a person’s religious or cultural practices. Therefore, in order to establish discrimination in this case, Ms. Pillay must show that the school in some way interfered with Sunali’s participation in or practice or expression of her religion or culture. This inquiry is similar to an inquiry under sections  or , but it is not identical because the court must go on to consider whether the discrimination, if any, was unfair. [] The alleged grounds of discrimination are religion and/or culture. It is important to keep these two grounds distinct. Without attempting to provide any form of definition, religion is ordinarily concerned with personal faith and belief, while culture generally relates to traditions and beliefs developed by a community. However, there will often be a great deal of overlap between the two; religious practices are frequently informed not only by faith but also by custom, while cultural beliefs do not develop in a vacuum and may be based on the community’s underlying religious or spiritual beliefs. Therefore, while it is possible for a belief or practice to be purely religious or purely cultural, it is equally possible for it to be both religious and cultural. [] With that brief introduction in mind, I now address the facts of this specific case. The first question is whether Sunali is part of an identifiable religion or culture. It was not contended that Hinduism is not a religion or that Sunali is not a Hindu. The GBF argued however that Sunali did not show that she was part of an identifiable culture. While I do not propose to provide a comprehensive definition of culture, it is necessary to consider the matter briefly. The GBF supported Lord Fraser’s understanding of “ethnic group” in the United Kingdom’s Race Relations Act  as being an appropriate starting point to define “culture.” Lord Fraser held that for a group to constitute an “ethnic group” it must at least have a long shared history and a cultural tradition of its own, including family and social customs and manners. Other relevant factors would include a common geographical origin; a common language; a common literature peculiar to the group; and a common reli-

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gion different from that of neighboring groups or from the general community surrounding it. [] While foreign jurisprudence is useful, the context in which a particular pronouncement was made needs to be carefully examined. Lord Fraser’s remarks were crafted in the specific context of the English Race Relations Act and concerned legislation specifically directed at race and ethnicity, not at the concept of culture, broadly understood. They are accordingly, in my view, not a reliable guide in interpreting the Equality Act. In addition, discrimination on the basis of race, ethnic or social origin, religion and language is already prohibited by the Constitution and the Equality Act. Our understanding of “culture” must therefore extend beyond the limits of those terms that seem to have been the focus of Lord Fraser’s definition. At the same time, if too wide a meaning is given to culture, “the category becomes so broad as to be rather useless for understanding differences among identity groups” [] The outer limits of culture fortunately do not concern us in this case. Even on the most restrictive understanding of culture, Sunali is part of the South Indian, Tamil, and Hindu groups, which are defined by a combination of religion, language, geographical origin, ethnicity, and artistic tradition. Whether those groups operate together or separately matters not; combined or separate, they are an identifiable culture of which Sunali is a part. [] Next, we need to consider the religious and cultural significance of the nose stud. There were two interrelated areas of contention. The first was whether a claim that a practice has religious or cultural significance should be determined subjectively or objectively. The second concerned the absence of any evidence from Sunali herself. [] It is accepted both in South Africa and abroad that, in order to determine if a practice or belief qualifies as religious a court should ask only whether the claimant professes a sincere belief. There is however no such consensus concerning cultural practices and beliefs. There was much argument in this court that because culture is inherently an associative practice, a more objective approach should be adopted when dealing with cultural beliefs or practices. It is unnecessary in this case to engage too deeply in that debate as both the subjective and objective evidence lead to the same conclusion. It is however necessary to make two points. [] Firstly, cultural convictions or practices may be as strongly held and as important to those who hold them as religious beliefs are to those more inclined to find meaning in a higher power than in a community of people. The notion that “we are not islands unto ourselves” is central to the understanding of the individual in African thought. It is often expressed in the phrase umuntu ngumuntu ngabantu which emphasizes “communality and the inter-dependence of the members of a community” and that every individual is an extension of others. According to Gyekye, “an individual human person cannot develop and achieve the fullness of his/her potential without the concrete act of relating to other individual persons.” This thinking emphasizes the importance of community to individual identity and

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Legal Cases (–)

hence to human dignity. Dignity and identity are inseparably linked as one’s sense of self-worth is defined by one’s identity. Cultural identity is one of the most important parts of a person’s identity precisely because it flows from belonging to a community and not from personal choice or achievement. And belonging involves more than simple association; it includes participation and expression of the community’s practices and traditions. [] Secondly, while cultures are associative, they are not monolithic. The practices and beliefs that make up an individual’s cultural identity will differ from person to person within a culture: one may express their culture through participation in initiation rites, another through traditional dress or song and another through keeping a traditional home. While people find their cultural identity in different places, the importance of that identity to their being in the world remains the same. There is a danger of falling into an antiquated mode of understanding culture as a single unified entity that can be studied and defined from outside. As Martin Chanock warns us: The idea of culture derived from anthropology, a discipline that studied the encapsulated exotic, is no longer appropriate. There are no longer (if there ever were) single cultures in any country, polity, or legal system, but many. Cultures are complex conversations within any social formation. These conversations have many voices.

Cultures are living and contested formations. The protection of the Constitution extends to all those for whom culture gives meaning, not only to those who happen to speak with the most powerful voice in the present cultural conversation. [] The second debate I mentioned earlier related to the absence of any evidence from Sunali. The school argued that Sunali’s failure to testify in the Equality Court or to provide any affidavit renders it impossible for a court to determine what her beliefs are and this court is accordingly precluded from making a finding of discrimination. [] It is always desirable, and may sometimes be vital, to hear from the person whose religion or culture is at issue. That is often no less true when the belief in question is that of a child. Legal matters involving children often exclude the children and the matter is left to adults to argue and decide on their behalf. In Christian Education South Africa v. Minister of Education [ () SA  (CC);  () BCLR  (CC)] this court held, in the context of a case concerning children, that their “actual experiences and opinions would not necessarily have been decisive, but they would have enriched the dialogue, and the factual and experiential foundations for the balancing exercise in this difficult matter would have been more secure.” That is true for this case as well. The need for the child’s voice to be heard is perhaps even more acute when it concerns children of Sunali’s age who should be increasingly taking responsibility for their own actions and beliefs.

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[] However, as an analysis of the evidence shows, Sunali’s failure to testify is not fatal to Ms. Pillay’s case. It is important to note that the school does not directly challenge the veracity of Ms. Pillay’s testimony; it simply argues that we should have heard Sunali as well. I agree with Ms. Pillay that any difficulties they had with her testimony should have been raised in the Equality Court during cross-examination, and not for the first time on appeal. It is possible that if Ms. Pillay had been challenged on whether she correctly represented Sunali’s belief, she would have called Sunali, who was present in court, as a witness. [] In any event, we have the specific admission of Mrs. Martin that the nose stud has cultural significance to Sunali although she denies it has independent religious significance. And we know how Sunali acted. Although when Mrs. Martin first confronted her about the nose stud she agreed to remove it, she consistently thereafter defied the will of the school in order to adhere to her belief. The initial failure can easily be explained as a young woman uncertain about the consequences of standing up against the imposing authority of the school’s headmistress. Sunali also endured a large measure of insensitive treatment from her peers, including the prefects of the school, and media exposure, yet continued to stand by her belief. All this points to the conclusion that Sunali held a sincere belief that the nose stud was part of her religion and culture. [] In conclusion, the evidence shows that the nose stud is not a mandatory tenet of Sunali’s religion or culture; Ms. Pillay has admitted as much. But the evidence does confirm that the nose stud is a voluntary expression of South Indian Tamil Hindu culture, a culture that is intimately intertwined with Hindu religion, and that Sunali regards it as such. The question arises whether the nose stud should be classified as a religious or cultural practice, or both. This court has noted that “the temptation to force [grounds of discrimination] into neatly self-contained categories should be resisted.” That is particularly so in this case where the evidence suggests that the borders between culture and religion are malleable and that religious belief informs cultural practice and cultural practice attains religious significance. As noted above, that will not always be the case: culture and religion remain very different forms of human association and individual identity, and often inform peoples’ lives in very different ways. But in this matter, culture and religion sing with the same voice and it is necessary to understand the nose stud in that light—as an expression of both religion and culture. [] The final question is whether the Equality Act and the Constitution apply to voluntary religious and cultural practices. This question has not yet arisen before South African courts. The school and the GBF have argued that voluntary practices should not be protected or should be accorded less protection while Ms Pillay has taken the opposite stance. [] The traditional basis for invalidating laws that prohibit the exercise of an obligatory religious practice is that it confronts the adherents with a Hobson’s choice between observance of their faith and adherence to the law. There is however more

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to the protection of religious and cultural practices than saving believers from hard choices. As stated above, religious and cultural practices are protected because they are central to human identity and hence to human dignity which is in turn central to equality. Are voluntary practices any less a part of a person’s identity or do they affect human dignity any less seriously because they are not mandatory? [] Freedom is one of the underlying values of our Bill of Rights and courts must interpret all rights to promote the underlying values of “human dignity, equality, and freedom.” These values are not mutually exclusive but enhance and reinforce each other. In Ferreira v. Levin NO and Others and Vryenhoek and Others v. Powell NO and Others [ () SA  (CC)] Justice Ackermann wrote that: Human dignity has little value without freedom; for without freedom personal development and fulfillment are not possible. Without freedom, human dignity is little more than an abstraction. Freedom and dignity are inseparably linked. To deny people their freedom is to deny them their dignity.

[] A necessary element of freedom and of dignity of any individual is an “entitlement to respect for the unique set of ends that the individual pursues.” One of those ends is the voluntary religious and cultural practices in which we participate. That we choose voluntarily rather than through a feeling of obligation only enhances the significance of a practice to our autonomy, our identity and our dignity. [] The protection of voluntary as well as obligatory practices also conforms to the Constitution’s commitment to affirming diversity. It is a commitment that is totally in accord with this nation’s decisive break from its history of intolerance and exclusion. Differentiating between mandatory and voluntary practices does not celebrate or affirm diversity, it simply permits it. That falls short of our constitutional project, which not only affirms diversity but promotes and celebrates it. We cannot celebrate diversity by permitting it only when no other option remains. As this court held in Minister of Home Affairs and Another v. Fourie and Another; Lesbian and Gay Equality Project and Others v. Minister of Home Affairs and Others [ () SA  (CC)]: The acknowledgment and acceptance of difference is particularly important in our country where for centuries group membership based on supposed biological characteristics such as skin color has been the express basis of advantage and disadvantage. South Africans come in all shapes and sizes. The development of an active rather than a purely formal sense of enjoying a common citizenship depends on recognizing and accepting people with all their differences, as they are. The Constitution thus acknowledges the variability of human beings (genetic and socio-cultural), affirms the right to be different, and celebrates the diversity of the nation.

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These values are shared with other jurisdictions, such as Canada, to name one, where the Supreme Court has affirmed the necessity of protecting voluntary religious practices. [] The protection of voluntary practices applies equally to culture and religion. Indeed, it seems to me that it may even be more vital to protect non-obligatory cultural practices. Cultures, unlike religions, are not necessarily based on tenets of faith but on a collection of practices, ideas or ways of being. While some cultures may have obligatory rules that act as conditions for membership of the culture, many cultures, unlike many religions, will not have an authoritative body or text that determines the dictates of the culture. Any single member of a culture will seldom observe all those practices that make up the cultural milieu, but will choose those which she or he feels are most important to her or his own relationship to and expression of that culture. To limit cultural protection to cultural obligations would, for many cultures and their members, make the protection largely meaningless. [] It follows that whether a religious or cultural practice is voluntary or mandatory is irrelevant at the threshold stage of determining whether it qualifies for protection. However, the centrality of the practice, which may be affected by its voluntary nature, is a relevant question in determining the fairness of the discrimination. That is a point I return to later. [] I therefore find that Sunali was discriminated against on the basis of both religion and culture in terms of section  of the Equality Act. I proceed now to consider whether or not that discrimination was fair. [] Before considering the fairness of the discrimination in this case, it will be convenient to make a few comments about the form of the unfairness inquiry under the Equality Act in circumstances such as the present. Much was said by both parties in argument about the principle of “reasonable accommodation.” Ms. Pillay specifically argued that Sunali’s case should be decided on that principle. It is therefore necessary to consider both the content of the idea of reasonable accommodation and its place in the Equality Act. [] The concept of reasonable accommodation is not new to our law—this court has repeatedly expressed the need for reasonable accommodation when considering matters of religion. The Employment Equity Act defines reasonable accommodation as “any modification or adjustment to a job or to the working environment that will enable a person from a designated group to have access to or participate or advance in employment” and recognizes making reasonable accommodation for designated groups as an affirmative action measure. There is also specific mention of the concept in the Equality Act. It recognizes that “failing to take steps to reasonably accommodate the needs” of people on the basis of race, gender, or disability will amount to unfair discrimination. The Equality Act places a duty on the state to “develop codes of practice . . . in order to promote equality, and develop guidelines, including codes in respect of reasonable accommodation” and permits courts to order that a group or class of persons be reasonably accommodated. Finally, section

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()(i)(ii) lists as a factor for the determination of fairness the question whether the applicant has taken reasonable steps to accommodate diversity. [] But what is the content of the principle? At its core is the notion that sometimes the community, whether it is the state, an employer or a school, must take positive measures and possibly incur additional hardship or expense in order to allow all people to participate and enjoy all their rights equally. It ensures that we do not relegate people to the margins of society because they do not or cannot conform to certain social norms. In Christian Education, in the context of accommodating religious belief in society, a unanimous court identified the underlying motivation of the concept as follows: The underlying problem in any open and democratic society based on human dignity, equality and freedom in which conscientious and religious freedom has to be regarded with appropriate seriousness, is how far such democracy can and must go in allowing members of religious communities to define for themselves which laws they will obey and which not. Such a society can cohere only if all its participants accept that certain basic norms and standards are binding. Accordingly, believers cannot claim an automatic right to be exempted by their beliefs from the laws of the land. At the same time, the State should, wherever reasonably possible, seek to avoid putting believers to extremely painful and intensely burdensome choices of either being true to their faith or else respectful of the law.

[] The idea extends beyond religious belief. Its importance is particularly well illustrated by the application of reasonable accommodation to disability law. As I have already mentioned, the Equality Act specifically requires that reasonable accommodation be made for people with disabilities. Disabled people are often unable to access or participate in public or private life because the means to do so are designed for able-bodied people. The result is that disabled people can, without any positive action, easily be pushed to the margins of society: Exclusion from the mainstream of society results from the construction of a society based solely on “mainstream” attributes to which disabled persons will never be able to gain access. Whether it is the impossibility of success at a written test for a blind person, or the need for ramp access to a library, the discrimination does not lie in the attribution of untrue characteristics to the disabled individual. The blind person cannot see and the person in a wheelchair needs a ramp. Rather, it is the failure to make reasonable accommodation, to fine-tune society so that its structures and assumptions do not result in the relegation and banishment of disabled persons from participation, which results in discrimination against them.

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[] While the extent of this exclusion is most powerfully felt by the disabled, the same exclusion is inflicted on all those who are excluded by rules that fail to accommodate those who depart from the norm. Our society which values dignity, equality, and freedom must therefore require people to act positively to accommodate diversity. Those steps might be as simple as granting and regulating an exemption from a general rule or they may require that the rules or practices be changed or even that buildings be altered or monetary loss incurred. [] The difficult question then is not whether positive steps must be taken, but how far the community must be required to go to enable those outside the “mainstream” to swim freely in its waters. This is an issue which has been debated both in this court and abroad and different positions have been taken. For instance, although the term “undue hardship” is employed as the test for reasonable accommodation in both the United States and Canada, the United States Supreme Court has held that employers need only incur “a de minimis cost” in order to accommodate an individual’s religion, whilst the Canadian Supreme Court has specifically declined to adopt that standard and has stressed that “more than mere negligible effort is required to satisfy the duty to accommodate.” The latter approach is more in line with the spirit of our constitutional project, which affirms diversity. However, the utility of either of these phrases is limited as ultimately the question will always be a contextual one dependant not on its compatibility with a judicially created slogan but with the values and principles underlying the Constitution. Reasonable accommodation is, in a sense, an exercise in proportionality that will depend intimately on the facts. [] There may be circumstances where fairness requires a reasonable accommodation, while in other circumstances it may require more or less, or something completely different. It will depend on the nature of the case and the nature of the interests involved. Two factors seem particularly relevant. First, reasonable accommodation is most appropriate where, as in this case, discrimination arises from a rule or practice that is neutral on its face and is designed to serve a valuable purpose, but which nevertheless has a marginalizing effect on certain portions of society. Second, the principle is particularly appropriate in specific localized contexts, such as an individual workplace or school, where a reasonable balance between conflicting interests may more easily be struck. Even where fairness requires a reasonable accommodation, the other factors listed in section  will always remain relevant. [] The present case bears both these characteristics and therefore, in my view, fairness required a reasonable accommodation. Whether that required the School to permit Sunali to wear the nose stud depends on the importance of the practice to Sunali on the one hand, and the hardship that permitting her to wear the stud would cause the School. Before I address that question, there were two points raised about the context within which fairness should be determined. These relate to the need for deference and the consultation that went into the making of the code.

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[] This court has recognized the need for judicial deference in reviewing administrative decisions where the decision maker is, by virtue of his or her expertise, especially well-qualified to decide. It is true that the court must give due weight to the opinion of experts, including school authorities, who are particularly knowledgeable in their area, depending on the cogency of their opinions. The question before this court, however, is whether the fundamental right to equality has been violated, which in turn requires the court to determine what obligations the school bears to accommodate diversity reasonably. Those are questions that courts are best qualified and constitutionally mandated to answer. This court cannot abdicate its duty by deferring to the school’s view on the requirements of fairness. That approach is obviously incorrect for the further reason that it is for the school to show that the discrimination was fair. A court cannot defer to the view of a party concerning a contention that that same party is bound to prove.

Consultation [] In urging that the code should be respected, the school stressed the fact that it was devised after extensive consultation with parents, educators, staff, and learners, and accordingly represented the combined wisdom of all who participated in its construction and should therefore be respected. There is no doubt that consultation and public participation in local decision making are good and deserve to be applauded. They promote and deepen democracy. In the context of the code, it means that the school community is involved in the running of the School and acquires a sense of ownership over the code. In Doctors for Life v. Speaker of the National Assembly and Others [ () SA  (CC)] Justice Ngcobo held, in the context of public participation in crafting national legislation, that participation by the public on a continuous basis provides vitality to the functioning of representative democracy. It encourages citizens of the country to be actively involved in public affairs, identify themselves with the institutions of government and become familiar with the laws as they are made. It enhances the civic dignity of those who participate by enabling their voices to be heard and taken account of. It promotes a spirit of democratic and pluralistic accommodation calculated to produce laws that are likely to be widely accepted and effective in practice. It strengthens the legitimacy of legislation in the eyes of the people.

[] This, however, does not immunize the resultant decisions, in effect the opinion of the school community, from constitutional scrutiny and review. The reality is that many individual communities still retain historically unequal power relations or historically skewed population groups that may make it more likely that local decisions will infringe on the rights of disfavored groups. In sum, while local democratic processes and consultation are important constitutional values in their own

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right, their role in the evaluation of the substance of decisions, if any, should not be overstated. [] I turn now to the question of the importance of the nose stud to Sunali and its effect on the school.

The Severity of the Infringement [] The school submitted that the infringement of Sunali’s right, if any, is slight, because Sunali can wear the nose stud outside of school. I do not agree. The practice to which Sunali adheres is that once she inserts the nose stud, she must never remove it. Preventing her from wearing it for several hours of each school day would undermine the practice and therefore constitute a significant infringement of her religious and cultural identity. What is relevant is the symbolic effect of denying her the right to wear it for even a short period; it sends a message that Sunali, her religion and her culture are not welcome. [] The school further argued that the nose stud is not central to Sunali’s religion or culture, but is only an optional practice. I agree that the centrality of a practice or a belief must play a role in determining how far another party must go to accommodate that belief. The essence of reasonable accommodation is an exercise of proportionality. Persons who merely appear to adhere to a religious and/or cultural practice, but who are willing to forego it if necessary, can hardly demand the same adjustment from others as those whose identity will be seriously undermined if they do not follow their belief. The difficult question is how to determine centrality. Should we enquire into the centrality of the practice or belief to the community, or to the individual? [] Centrality must be judged with reference only to how important the belief or practice is to the claimant’s religious or cultural identity. In reaching that decision the court can properly look at a range of evidence including evidence of the objective centrality of the practice to the community at large. That evidence however is only relevant in so far as it helps to answer the primary inquiry of subjective centrality. The fact that a practice is voluntary may also be relevant as many people will not feel that voluntary practices are central to their religious or cultural identity. But there will also be those who, although they do not feel obliged to observe a certain practice, feel that it is central to their identity that they do so. They too deserve protection. In sum, the school and this court must consider all the relevant evidence, but the ultimate question they must answer is: “How central is the nose stud to Sunali’s religious and cultural identity?” However, the need for a subjective investigation takes us back to the complaint that Sunali did not give evidence regarding that importance. [] Ms. Pillay’s case would no doubt have been assisted by Sunali’s evidence. However, the court must evaluate such evidence as there is. Ms. Pillay stated that the nose stud was not imposed on Sunali; she had wanted her nose pierced since the age of four. The nose stud was not worn for fashion reasons but was inserted as part

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of a traditional ritual and an expression of her religious and cultural identity. In her first letter to the school, Ms. Pillay wrote that the stud “serves not only to indicate that we value our daughters, but in keeping with Indian tradition, that our daughters are the Luxmi (Goddess of Prosperity) and Light of the house.” In her testimony Ms. Pillay stated that by inserting the stud: “we acknowledge our daughters, the women in our family, as a very vital part of family life. We honor them and we honor the divine within them. And that’s important. It’s important for every child to know that she garners respect.” [] The wearing of the nose stud was also not without consequences to Sunali. She was obviously under a great deal of stress and her grades dropped because of the school’s reaction to the nose stud and the related publicity. She was regularly required to explain herself to staff members and prefects at the school and was threatened with disciplinary action. In spite of these difficulties, Sunali did not alter her conduct or belief. None of this evidence was disputed and it all points to a very strong belief on Sunali’s part that the nose stud was important for her identity. I am accordingly convinced that the practice was a peculiar and particularly significant manifestation of her South Indian, Tamil, and Hindu identity. It was her way of expressing her roots and her faith. While others may have expressed the same faith, traditions and beliefs differently or not at all, the evidence shows that it was important for Sunali to express her religion and culture through wearing the nose stud. [] The next string of the school’s centrality bow was that the infringement of Sunali’s right to equality is less severe because the nose stud is a cultural rather than a religious adornment. This was also the basis originally relied upon by the school for refusing the exemption and why it could recognize the stud’s cultural significance without granting Sunali an exemption. To my mind the argument is flawed. As stated above, religious and cultural practices can be equally important to a person’s identity. What is relevant is not whether a practice is characterized as religious or cultural but its meaning to the person involved. Predetermining that importance based on what will often be an imperfect or artificial categorization reinforces ideas about the respective roles and importance of religion and culture in peoples’ lives and fails to accommodate those who do not conform to that stereotype. [] The school also argued that if Sunali did not like the code, she could simply go to another school that would allow her to wear the nose stud. I cannot agree. In my view the effect of this would be to marginalize religions and cultures, something that is completely inconsistent with the values of our Constitution. As already noted, our Constitution does not tolerate diversity as a necessary evil, but affirms it as one of the primary treasures of our nation. There may, however, be occasions where the specific factual circumstances make the availability of another school a relevant consideration in searching for a reasonable accommodation. However, there are no such circumstances in this case and the availability of another school is therefore not a relevant consideration.

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The Code Limits Freedom of Expression [] While considering the centrality of the practice to Sunali or the effect that its prohibition would have on her dignity, it bears mentioning that the ban affects other constitutional rights as well. The dual purpose of the NTVS and FXI’s submission was to stress the relevance of the right to freedom of expression to the case and to show that it had been infringed. They argued that freedom of expression was relevant both as a self-standing right and as a relevant factor in determining unfair discrimination. This was disputed by the applicants and the GBF on the basis that the case had been brought under the Equality Act, which does not make provision for nonequality claims. [] It is unnecessary in this case to decide whether it is possible to rely directly on the right to freedom of expression under the Equality Act, or whether the ban on the nose stud is an unjustifiable limit on that right. It suffices to say that the extent to which discrimination impacts on other rights will be a relevant consideration in the determination of whether the discrimination is fair and that the ban on the nose stud limited Sunali’s right to express her religion and culture which is central to the right to freedom of expression. The Effect on the School [] It is no doubt true that even the most vital practice of a religion or culture can be limited for the greater good. No belief is absolute, but those that are closer to the core of an individual’s identity require a greater justification to limit. The question is whether, considering the importance of the stud to Sunali, allowing her to wear the stud would impose too great a burden on the School. [] This evaluation is correctly characterized by Ms. Pillay as relating to the factors in section ()(f ), (g), and (h) of the Equality Act that are also part of the traditional section  analysis. It is also part of determining whether allowing the stud imposes an undue burden. If allowing the stud would cause indiscipline and a drop in academic standards that might indeed be an undue burden to impose on the school. It is helpful to separate the inquiry into its constitutive parts: Is there a legitimate purpose? Does the limitation achieve the purpose? Are less restrictive means available to achieve the purpose? [] Both discipline and education are legitimate goals. However, care must be taken not to state the school’s interest too broadly. Sunali’s interest in wearing her nose stud could never outweigh the general importance of ensuring discipline in schools. The interest of the school must be confined to refusing Sunali an exemption, not to the wearing of uniforms in general because this case is not about uniforms, but about exemptions to existing uniforms. [] Rules are important to education. Not only do they promote an important sense of discipline in children, they prepare them for the real world, which contains even more rules than the schoolyard. Schools belong to the communities they serve and that ownership implies a responsibility not only to make rules that fit

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the community, but also to abide by those rules. Nothing in this judgment should be interpreted as encouraging or condoning the breaking of school rules. [] I am therefore not persuaded that refusing Sunali an exemption achieves the intended purpose. Indeed, the evidence shows that Sunali wore the stud for more than two years without any demonstrable effect on school discipline or the standard of education. Granting exemptions will also have the added benefit of inducting the learners into a multicultural South Africa where vastly different cultures exist side-by-side. [] The only confirmed effect of granting Sunali an exemption is that some of the girls might feel it is unfair. While that is unfortunate, neither the Equality Act nor the Constitution requires identical treatment. They require equal concern and equal respect. They specifically recognize that sometimes it is fair to treat people differently. In Christian Education this court held: It is true that to single out a member of a religious community for disadvantageous treatment would, on the face of it, constitute unfair discrimination against that community. The contrary, however, does not hold. To grant respect to sincerely held religious views of a community and make an exception from a general law to accommodate them, would not be unfair to anyone else who did not hold those views.

[] Asserting that the nose stud should not be allowed because it is also a fashion symbol fails to understand its religious and cultural significance and is disrespectful of those for whom it is an important expression of their religion and culture. In addition, to uphold the school’s reasoning would entail greater protection for religions or cultures whose symbols are well known; those are in fact often the ones least in need of protection. It would also have the absurd result that if a turban, yarmulke or headscarf became part of popular fashion they would no longer be constitutionally protected, while they have constitutional protection as long as they remain on the fringes of society. I accept that the popularity of the nose stud may make it more difficult to determine if a learner is practicing her religion or culture or trying to impress her friends. But once the former is established, as it has been in this case, the mainstream popularity of a religious or cultural practice can never be relevant. [] The other argument raised by the School took the form of a “parade of horribles” or slippery slope scenario that the necessary consequence of a judgment in favor of Ms. Pillay is that many more learners will come to school with dreadlocks, body piercings, tattoos and loincloths. This argument has no merit. Firstly, this judgment applies only to bona fide religious and cultural practices. It says little about other forms of expression. The possibility for abuse should not affect the rights of those who hold sincere beliefs. Secondly, if there are other learners who hitherto were afraid to express their religions or cultures and who will now be

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encouraged to do so, that is something to be celebrated, not feared. As a general rule, the more learners feel free to express their religions and cultures in school, the closer we will come to the society envisaged in the Constitution. The display of religion and culture in public is not a “parade of horribles” but a pageant of diversity that will enrich our schools and in turn our country. Thirdly, acceptance of one practice does not require the school to permit all practices. If accommodating a particular practice would impose an unreasonable burden on the School, it may refuse to permit it.

The Manner in Which the Matter Was Raised [] One final issue needs attention. It is common cause that the way in which Ms. Pillay dealt with the problem left much to be desired and the school has quite rightly complained about it. The school argued that this should count against Ms. Pillay in the determination of whether the conduct of the school was unfair. Ms. Pillay has accepted that it would have been preferable to approach the school before the nose stud was inserted, rather than to confront the school with the nose stud and demand that it should be accommodated. Ms. Pillay has apologized for her conduct. [] It is obviously preferable for these matters to be dealt with by approaching the relevant authority before the issue arises. It indicates an important degree of respect and a desire to resolve the matter amicably rather than through confrontation. In South African Broadcasting Corp Ltd. v. National Director of Public Prosecutions and Others Justice Sachs pointed out, in the context of television broadcasting of court proceedings, that: it is not in the interests of justice for matters such as these to be resolved under a sword of Damocles. All the questions concerning [these difficult issues] should be worked out through an appropriate process of negotiation. This not only establishes clear points of reference. It gives sufficient time for all those involved to accustom themselves to the major changes involved.

While it is uncertain whether there would have been a different result, the process of negotiation is inherently valuable. It is part of a search for a reasonable accommodation that will suit both parties. [] It would be perfectly correct for a school, through its code of conduct to set strict procedural requirements for exemption. It would also be appropriate for the parents and, depending on their age, the learners, to be required to explain in writing beforehand why they require an exemption. That would ensure that these difficult matters are resolved responsibly, fairly, and amicably. It seems that the absence of such a procedure in the code is largely to blame, not only for the manner in which the complaint was raised but for the way in which it was resolved. It is a serious obstacle to a search for reasonable accommodation that an appropriate procedure was not in place.

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Conclusion [] The discrimination has had a serious impact on Sunali and, although the evidence shows that uniforms serve an important purpose, it does not show that the purpose is significantly furthered by refusing Sunali her exemption. Allowing the stud would not have imposed an undue burden on the school. A reasonable accommodation would have been achieved by allowing Sunali to wear the nose stud. I would therefore confirm the High Court’s finding of unfair discrimination. [] The following order is made: Leave to appeal is granted. The appeal is dismissed. The order of the High Court is set aside and replaced with the following: It is declared that the decision of the Governing Body of Durban Girls’ High School to refuse Sunali Pillay an exemption from its Code of Conduct to allow her to wear a nose stud, discriminated unfairly against her. The Governing Body of Durban Girls’ High School is ordered, in consultation with the learners, parents and educators of the School and within a reasonable time, to effect amendments to the school’s code of conduct to provide for the reasonable accommodation of deviations from the code on religious or cultural grounds and a procedure according to which such exemptions from the code can be sought and granted.

JUSTICE O’REGAN [] Education is the engine of equal opportunity. Education in South Africa under apartheid was both separate and deeply unequal. Notoriously, HF Verwoerd proclaimed in  that— Native education should be controlled in such a way that it should be in accord with the policy of the state . . . If the native in South Africa today in any kind of school in existence is being taught to expect that he will live his adult life under a policy of equal rights, he is making a big mistake . . . There is no place for him in the European community above the level of certain forms of labor.

And the apartheid state implemented this vision. Spending on Black school children in  was a fraction of spending on White school children. It is not surprising then that education was the trigger for the Soweto revolt by Black school children. Throughout the s and s, the issue of unequal education mobilised thousands of South Africans of all ages to oppose the apartheid state. [] When democracy dawned in , the picture was bleak. By and large South African children of different colors were educated separately in institutions

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that bore the scars of the appalling policy of apartheid. Excellence in the matriculation examination at the end of twelve years of formal schooling reflected this unequal past. A tremendous challenge faced the new government. [] Things have improved somewhat but the pattern of disadvantage engraved onto our education system by apartheid has not been erased. In  there were , candidates for matriculation, of whom . percent were black, . percent were colored, . percent were Indian, and . percent were white. Only  percent of these candidates passed and a tiny  percent obtained a university entrance pass. While more than  percent of all white candidates who wrote obtained a university entrance pass, only just over  percent of black candidates who wrote did so. There is much to be done to achieve educational equality of opportunity. [] As importantly, although the law no longer compels racially separate institutions, social realities by and large still do. Most black learners are educated in township schools where there are generally no White learners at all. Many white learners are educated in schools where there is only a sprinkling of black learners. The absence of racial integration in our schools remains a problem for us all. It deprives young South Africans of the ability to meet, and to learn and play together. [] Durban Girls’ High School, the school at issue in this case, is one of the exceptions. Although historically it was a school for white girls under apartheid law, that has changed dramatically in the last fifteen years. Now, we were told from the bar, of its approximately , learners, approximately  are black,  are Indian,  are white and  are colored. Moreover, it is an educationally excellent school that produces fine matriculation results. It is at the cutting edge of nonracial education, facing the challenges of moving away from its racial past to a non-racial future where young girls, regardless of their color or background, can be educated. This context is crucial to how we approach this case. [] At one level, this is a case about a school learner (“the learner”) who, after having had her nose pierced, sought an exemption from the school rule that prohibited adornment of this sort. At another level, it is about how schools and other educational institutions establish rules and processes to accommodate diversity in a manner which makes all learners in the school feel that they are equally worthy and respected. [] Section  of the South African Schools Act  of  (“the Schools Act”), requires governing bodies of schools to “adopt a code of conduct for learners after consultation with learners, parents and educators of the school.” The purpose of a code of conduct is to establish a “disciplined and purposeful school environment, dedicated to the improvement and maintenance of the quality of the learning process.” According to Mrs. Martin, the principal of the school (“the principal”), the code of conduct was drawn up by the school’s governing body in consultation with parents and the learners’ representative council. [] When parents apply for the admission of their daughters to the school, they are required to sign a form declaring that they will ensure that their daughters

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comply with the code of conduct and regulations of the school. This the learner’s mother did. [] The code of conduct does not contain any express procedure for exemption from its terms. However, in her evidence, the principal made clear that from time to time exemptions are granted by the school. For example, at certain times during the year, some learners of the Hindu faith apply to wear “Lakshmi strings” in honor of the Goddess Lakshmi, the deity of prosperity and well-being in the home. Similarly, requests from learners to wear hide bracelets as a mark of respect on the death of a close relative are granted. When exemptions of this sort are granted, the learner is given a card noting the permission, should any teacher query her noncompliance with the code of conduct. [] It is also clear from the principal’s evidence that the basis upon which exemptions are granted is not clearly established. An important consideration is whether the exemption is sought on religious grounds, but this is not a pre-requisite for the exemption to be granted. In this case, the learner sought an exemption after having had her nose pierced. [] I agree with Chief Justice Langa that this case falls to be determined under the Promotion of Equality and Prevention of Unfair Discrimination Act  of  (“the Act” or “Equality Act”), not directly on the basis of section  of the Constitution although I also accept that the act should, where reasonably possible, be interpreted consistently with section  of the Constitution. I turn now to a brief consideration of that Act. [] Section  of the act prohibits unfair discrimination in the following terms: “Neither the state nor any person may unfairly discriminate against any person.” Discrimination is defined in the act as any act or omission . . . which directly or indirectly— • imposes burdens, obligations or disadvantage on; or • withholds benefits, opportunities or advantages from, any person on one or more of the prohibited grounds.

The prohibited grounds provided in the definitions section are “race, gender, sex, pregnancy, marital status, ethnic or social origin, color, sexual orientation, age, disability, religion, conscience, belief, culture, language, and birth.” This is not a closed list and it includes additional criteria for identifying further grounds, though this has no relevance in the present case. [] The act also provides guidance for the determination of unfairness. Section  of the act provides that: () It is not unfair discrimination to take measures designed to protect or advance persons or categories of persons disadvantaged by unfair discrimination or the members of such groups or categories of persons.

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() In determining whether the respondent has proved that the discrimination is fair, the following must be taken into account: • The context; • the factors referred to in subsection (); • whether the discrimination reasonably and justifiably differentiates between persons according to objectively determinable criteria, intrinsic to the activity concerned. () The factors referred to in subsection ()(b) include the following: (a) Whether the discrimination impairs or is likely to impair human dignity; (b) the impact or likely impact of the discrimination on the complainant; (c) the position of the complainant in society and whether he or she suffers from patterns of disadvantage or belongs to a group that suffers from such patterns of disadvantage; (d) the nature and extent of the discrimination; (e) whether the discrimination is systemic in nature; (f ) whether the discrimination has a legitimate purpose; (g) whether and to what extent the discrimination achieves its purpose; (h) whether there are less restrictive and less disadvantageous means to achieve the purpose; (i) whether and to what extent the respondent has taken such steps as being reasonable in the circumstances to— (i) address the disadvantage which arises from or is related to one or more of the prohibited grounds; or (ii) accommodate diversity.

[] This provision is not a model of legislative clarity, as some observers have commented. Section () is the key provision and provides that in determining unfairness, a court will have regard to the context, the list of criteria in section () and whether the discrimination is reasonably and justifiably based on objective criteria intrinsic to the activity concerned. The criteria in section () are suggestive of a proportionality analysis: in particular, it seems as if the criteria identified in section ()(a)–(e) should be weighed against the criteria in section ()(f )–(i). How this analysis should chime with section ()(c) is not clear. Section ()(c) seems similar to the exception of genuine occupational requirement in English labor law, or the bona fide occupational qualification analysis of the Civil Rights Act in the United States of America. Section ()(c) is not in issue in this case so it is not necessary to consider how it interrelates with the criteria identified in section (). I shall return to a discussion of the application of section  later in this judgment. [] The court tasked with the determination of whether unfair discrimination has taken place in the first place is the Equality Court. The scheme contemplated

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by the act is for the Equality Court to determine whether a complainant has shown that there has been an act or omission that caused harm by imposing a burden or withholding a benefit on a prohibited ground. Once the complainant establishes this, discrimination has been established. Then it is for the respondent to show that the discrimination was not unfair. [] Section  of the act provides that a court may make a range of orders including a declaratory order, an order requiring the payment of damages, an interdict restraining unfair discrimination, a mandatory order including an order directing the reasonable accommodation of a group or class of people, an order that an apology be made and an order requiring progress reports to be made. [] In this case, the applicant argues that the conduct of the school constituted unfair discrimination on the grounds of culture and religion. Argument was also presented by the applicant and the Freedom of Expression Institute concerning freedom of expression. I am in complete agreement with the chief justice’s consideration of these arguments and have nothing to add. Before turning to the question of unfair discrimination, I consider it necessary to consider briefly the constitutional approach to culture and religion.

Culture and Religion [] Both “culture” and “religion” are terms that resist definition. And it is not desirable in this case to seek to identify a determinative definition of either. However our Constitution does treat them differently. And that different treatment gives us some understanding of where the difference between the two concepts lies. Section  of the Constitution prohibits discrimination on the grounds of both culture and religion, but section  entrenches the right to freedom of “conscience, religion, thought, belief and opinion” and does not mention culture or cultural identity. Here the different constitutional treatment of the two concepts arises. [] Although it is not easy to divine a sharp dividing line between the two, it does seem to me that our Constitution recognizes that culture is not the same as religion, and should not always be treated as if it is. Religion is dealt with without mention of culture in section , which entrenches the right to freedom of belief and conscience. By associating religion with belief and conscience, which involve an individual’s state of mind, religion is understood in an individualist sense: a set of beliefs that an individual may hold regardless of the beliefs of others. The exclusion of culture from section  suggests that culture is different. [] The inclusion of culture in section  and section  makes it clear that by and large culture as conceived in our Constitution, involves associative practices and not individual beliefs. So, section  speaks of the right of persons who are members of religious, linguistic or cultural communities “with other members of that community” to enjoy their culture. This formulation is drawn almost directly from Article  of the United Nations International Covenant on Civil and Political Rights, which provides that people who belong to a particular “minority” shall not

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be denied “in community with other members of their group” the right to enjoy their own culture. In this sense, it is understood that individuals draw meaning and their sense of cultural identity from a group with whom they share cultural identity and with whom they associate. As Currie and De Waal reason: The right of a member of a cultural or linguistic community cannot meaningfully be exercised alone. Enjoyment of culture and use of language presupposes the existence of a community of individuals with similar rights. . . . Therefore an individual right of enjoyment of culture assumes the existence of a community that sustains a particular culture.

[] By including religion in section , the Constitution makes plain that when a group of people share a religious belief, that group may also share associative practices that have meaning for the individuals within that religious group. Where one is dealing with associative practices, therefore, it seems that religion and culture should be treated similarly. In the case of an associative practice, an individual is drawing meaning and identity from the shared or common practices of a group. The basis for these practices may be a shared religion, a shared language or a shared history. Associative practices, which might well be related to shared religious beliefs, are treated differently by the Constitution because of their associative, not personal character. [] Religion, however, need not be associative at all. A religious belief can be entirely personal. The importance of a personal religious belief is more often than not based on a particular relationship with a deity or deities that may have little bearing on community or associative practices. Where one is dealing with personal and individualized belief, religion is to be considered differently to culture, as the Constitution makes clear. In such circumstances, it is appropriate for a court to ask whether the belief is sincerely held in order to decide whether a litigant has established that it falls within the scope of section . If a sincere religious belief is established, it seems correct that a court will not investigate the belief further as the cases cited by the chief justice in his judgment make plain. A religious belief is personal, and need not be rational, nor need it be shared by others. A court must simply be persuaded that it is a profound and sincerely held belief. [] A cultural practice on the other hand is not about a personal belief but about a practice pursued by individuals as part of a community. The question will not be whether the practice forms part of the sincerely held personal beliefs of an individual, but whether the practice is a practice pursued by a particular cultural community. This distinction needs to inform how we deal with discrimination on the grounds of religion and culture. Where one is dealing with an associative religious practice such as protected by section , religion and culture will be treated very similarly. In this regard it is worth noting that some religions are far more associative in character than others.

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Legal Cases (–)

[] Many African religions and traditions are profoundly associative in character. Our Constitution recognizes this and does not privilege one form of religion over another, although associative practices are treated differently to what can loosely be described as personal beliefs. Where one is dealing with religious belief that is personal, as contemplated by section , it will be treated differently to culture. At times, this line may be difficult to draw but that is not the case here and nothing further need be said at this stage. [] I set out the difference between the constitutional protection of religion, on the one hand, and associative religious and cultural practices, on the other, because I am uneasy with the approach taken by Chief Justice Langa on two issues. The first is whether religious and cultural practices are to be dealt with on the basis of the sincerely held beliefs of a particular complainant; and the second relates to the implications for the principles of unfair discrimination as to whether a particular practice is mandatory or not. I shall return to these issues in a moment. First, I wish to consider briefly the constitutional approach to culture.

The Constitutional Approach to Culture [] Culture is a difficult concept to define. As O’Keefe has highlighted, it has at least three senses in modern usage: the first is the concept of culture as involving the arts; the second concept is culture in a more plural form including handicraft, popular television, film, and radio; and the third is anthropological conception of culture which refers to the way of life of a particular community. There can be no doubt that it is the third concept of culture to which our Constitution refers in sections  and , although the expression of the right to culture in international law may embrace the first two conceptions, as O’Keefe argues. [] In the anthropological sense, all human beings have a culture. Human beings live in communities and ordinarily share practices that make life meaningful to that community. Sections  and  of the Constitution protect the rights of individuals within communities to pursue cultural practices. There can be no doubt that these are important rights that protect diversity within our country. The rights, like all others in our Constitution, must be interpreted in light of the founding value of human dignity, which asserts the equal moral worth of human beings and the right of each and every person to choose to live the life that is meaningful to them. Understanding the right to cultural life against the background of human dignity emphasizes that the rights in sections  and  are associative rights exercised by individual human beings and are not rights that attach to groups. They foster association and bolster the existence of cultural, religious and linguistic groups so long as individuals remain committed to living their lives in that form of association. [] These rights are important in protecting members of cultural, religious and linguistic communities who feel threatened by the dominance or hegemony of larger or more powerful groups. They are an express affirmation of those members of cultural or other groups as human beings of equal worth in our society whose

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community practices and associations must be treated with respect. However, there is a constitutional limit on the protection of associative practices. The rights may not be exercised in a manner inconsistent with other provisions of the Bill of Rights. [] It is also important to remember that cultural, religious, and linguistic communities are not static communities that can be captured in constitutional amber and preserved from change. Our constitutional understanding of culture needs to recognize that these communities, like all human communities, are dynamic. It is tempting as an observer to seek to impose coherence and unity on communities that are not, in the lived experience of those who are members of those communities, entirely unified. As Benhabib observes: In my view, all analyses of cultures, whether empirical or normative, must begin by distinguishing the standpoint of the social observer from that of the social agent. The social observer—whether an eighteenth-century narrator or chronicler; a nineteenth-century general, linguist, or educational reformer; or a twentieth-century anthropologist, secret agent, or development worker—is the one who imposes, together with local elites, unity and coherence on cultures as observed entities. Any view of cultures as clearly delineable wholes is a view from the outside that generates coherence for the purposes of understanding and control. Participants in the culture, by contrast, experience their traditions, stories, rituals and symbols, tools, and material living conditions through shared, albeit contested and contestable, narrative accounts. From within, a culture need not appear as a whole; rather, it forms a horizon that recedes each time one approaches it.

[] Benhabib’s distinction between the observer of a community and the member of a community must remind South Africans of the colonial approach to customary law which sought to impose coherence and unity on a set of customary rules and practices. The result of this, as this court has recently observed, was to fossilize customary law and to produce a distinction between customary law in the courts and textbooks. This is counter to what has been called “living customary law”—the evolving nature of customary law as practiced and experienced by members of communities. Our history must warn us that when approaching culture in our new constitutional order, courts, as outsiders, must seek to avoid imposing a false internal coherence and unity on a particular cultural community. [] How then should we approach culture? The chief justice’s answer to this question is that courts should urge respect for the sincerely held beliefs of those who assert cultural rights. My difficulty with that approach is threefold. First, it does not acknowledge sufficiently that cultural practices are associative and that the right to cultural life is a right to be practiced as a member of a community and not primarily a question of a sincere, but personal belief. If the right to cultural life “cannot be meaningfully exercised alone” then an individualized and subjective approach to what

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constitutes culture is faulty. In probing whether a particular practice is a cultural practice, some understanding of what the cultural community considers to be a cultural practice, is important. Of course, we must approach this task with an acknowledgement of the caution sounded by Benhabib. Cultures are not generally unified and coherent but are dynamic and often contested. Nevertheless, the need to investigate whether a particular asserted practice is shared within the broader community, or portion of it, and therefore properly understood as a cultural practice rather than a personal habit or preference, is central to determining whether a cultural claim has been established. [] Secondly, I am anxious that an approach to cultural rights that is based predominantly on subjective perceptions of cultural practices may undervalue the need for solidarity between different communities in our society. After all, the Preamble of our Constitution proclaims that, “South Africa belongs to all who live in it, united in our diversity.” It does not envisage a society of atomized communities circling in the shared space that is our country, but a society that is unified in its diversity. That unity requires a “pluralistic solidarity” between our different racial, cultural, religious and linguistic communities. That solidarity, of course, must not be based on domination by a majority culture or group, but on a shared understanding of the human dignity of all citizens and the recognition of our need for solidarity with one another in our common land. [] My third difficulty with Chief Justice Langa conclusion—that a subjective sincerely held belief regarding a cultural practice is the central point of the constitutional enquiry into a complaint of unfair discrimination on the ground of culture—is that it obscures the need to approach diversity with the fundamental value of human dignity firmly in mind. With human dignity as the lodestar, it becomes clear that treating people as worthy of equal respect in relation to their cultural practices requires more than mere tolerance of sincerely held beliefs with regard to cultural practices. As Addis has observed: To treat individuals with “equal respect” entails, at least partly, respecting their traditions and cultures, the forms of life which give depth and coherence to their identities. And to treat those forms of life with respect means to engage them, not simply to tolerate them as strange and alien. . . . [I]nsofar as paternalistic toleration does not provide for . . . the notion of the tolerator taking the tolerated group seriously and engaging it in a dialogue, the polity cannot cultivate an important virtue . . . “civility (reciprocal empathy and respect).” One can hardly develop empathy for those that one only knows as the alien and strange. To have reciprocal empathy is to first attempt to understand the Other, but there cannot be understanding the Other if one is not prepared to engage the Other in a dialogue.

[] My understanding of how our Constitution requires us to approach the rights to culture, therefore, emphasizes four things: cultural rights are associative

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practices, which are protected because of the meaning that shared practices gives to individuals and to succeed in a claim relating to a cultural practice a litigant will need to establish its associative quality; an approach to cultural rights in our Constitution must be based on the value of human dignity which means that we value cultural practices because they afford individuals the possibility and choice to live a meaningful life; cultural rights are protected in our Constitution in the light of a clear constitutional purpose to establish unity and solidarity amongst all who live in our diverse society; and solidarity is not best achieved by simple toleration arising from a subjectively asserted practice. It needs to be built through institutionally enabled dialogue. Once again as Addis reasons: “A genuine sense of shared identity, social integration, in multicultural and multiethnic societies will develop only through a process where minorities and majorities are linked in institutional dialogue. Shared identity, like justice itself, is defined discursively.” It is necessary now to return to the Equality Act to consider how this understanding of culture and cultural rights in our Constitution affects the interpretation and application of that act in the light of the facts of this case.

Was There Discrimination in This Case? [] As set out above, the Equality Act prohibits unfair discrimination on the ground of culture. In determining whether an applicant has established discrimination on the ground of culture, a court will need to bear in mind that the Constitution protects culture as an associative right. It will not ordinarily be sufficient for a person who needs to establish that he or she has been discriminated against on the grounds of culture to establish that it is his or her sincerely held belief that it is a cultural practice, or that his or her family has a tradition of pursuing this practice. The person will need to show that the practice that has been affected relates to a practice that is shared in a broader community of which he or she is a member and from which he or she draws meaning. [] It is clear on the facts of this case that there are many women within the southern Indian community who consider that wearing a nose stud or nose ring identifies them as members of that community. Wearing the nose stud connects them with their community and establishes continuity with former generations. In his affidavit placed before the Equality Court, Dr. Rambilass, the principal of the Westville Hindu School and an expert in Hinduism, averred that although ear piercing is one of the religious sacraments prescribed by the Sanskaras, nose piercing is not. He accepted, however, that nose piercing is a form of cultural expression common amongst Hindu women. His oral evidence in the Equality Court was to the same effect. During it, he acknowledged that although wearing a nose stud is not a religious practice, it is a cultural practice of significance and value. [] Having established that wearing the nose stud is a cultural practice with associative significance, the question arises whether the applicant has shown that the failure to afford the learner an exemption to wear the nose stud imposed a

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burden on the learner’s exercise of her cultural practice that has caused her harm. In formulating the question in this way, it should be emphasized that this case does not concern a challenge to the general prohibition on the wearing of jewelry set out in the school’s code of conduct itself. It concerns a challenge to the failure by the school to provide an exemption to the learner. [] In answering this question, one of the issues that arises is whether the Equality Act, properly construed, requires a complainant to show that he or she has been treated differently to some comparably-situated person. I agree with the chief justice, that it is not necessary in this case to determine whether it is always necessary for a complainant to point to a comparator in order to establish discrimination in terms of the Equality Act, as there is a comparator in this case. Chief Justice Langa finds the comparator to be those learners whose sincere religious or cultural beliefs are not compromised by the code. In my view, the correct comparator is those learners who have been afforded an exemption to allow them to pursue their cultural or religious practices, as against those learners who are denied exemption, like the learner in this case. Those learners who are not afforded an exemption suffer a burden in that they are not permitted to pursue their cultural or religious practice, while those who are afforded an exemption may do so. [] This is the correct comparator in my view because the challenge really relates to a failure by the school to afford the learner an exemption. The challenge is thus based on a failure to provide reasonable accommodation to the learner in respect of a neutral rule. In this I differ from the position taken by the chief justice who sees the complaint both in the text of the code and in the failure to grant an exemption. In my view, the code is entitled to establish neutral rules to govern the school uniform. Indeed, uniforms by definition require such rules. The only cogent complaint to be directed at the code is its failure to provide expressly for a fair exemption procedure, a matter to which I return later. [] I conclude that the applicant has established that in failing to grant her an exemption to wear the nose stud in circumstances where other learners are afforded exemptions to pursue their cultural practices, the school did discriminate against her. [] In assessing whether the discrimination in this case is unfair, it is necessary to recognize that it arises from the school’s refusal to grant an exemption to the learner to wear a nose stud. There is no clear statement on the record as to why the school refused to grant an exemption. [. . .] [] An issue that was raised on the papers that might have been relevant to the decision to refuse the exemption was the fact that the wearing of nose studs is now considered to be fashionable by many teenagers. This consideration may have been taken into account by the school in its decision to refuse to permit the wearing of the nose stud. Although this factor may be a relevant factor, it cannot be a determinative one. Once it is established that the desire to wear a nose stud is genuinely based on a cultural practice that is important to a learner, the fact that it may coincide with current fashions, cannot without more justify a refusal to permit the

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learner to wear the nose stud. A school is an ideal place to educate other learners about the difference between fashion and cultural practices and should an exemption for nose studs be granted, a school would be obliged to furnish such education to its learners. [] The unfairness I have identified in this case lies in the school’s failure to be consistent with regard to the grant of exemptions. It is clear that the school has established no clear rules for determining when exemptions should be granted from the code of conduct and when not. Nor is any clear procedure established for processing applications for exemption. Schools are excellent institutions for creating the dialogue about culture that will best foster cultural rights in the overall framework of our Constitution. Schools that have diverse learner populations need to create spaces within the curriculum for diversity to be discussed and understood, but also they need to build processes to deal with disputes regarding cultural and religious rights that arise. [] In this case, as required by the Schools Act, the school established a consultation process to draft a code of conduct that contained the rules regulating the uniform. I pause here to emphasize the importance of this consultative process. The first step in accommodating a plurality of traditions within one institution is the need to consult widely and carefully on common rules. The process is likely not only to improve the content of the rules, but also to foster their legitimacy. On the other hand, one of the great difficulties for schools and other educational institutions is the relevant transience of the learner population. This transience makes it desirable, especially in schools with changing demographic profiles, to repeat the process of consultation at regular intervals. [] The code of conduct once adopted did not contain any express provision for exemptions, either to regulate in what circumstances they would be granted or to establish a procedure whereby an exemption could be obtained. In my view, it is this absence that was a significant factor in giving rise to the unfairness in this case. An exemption procedure was established in an ad hoc fashion which allowed certain exemptions to be made but which did not establish the principles for the granting of an exemption, nor the process that had to be followed to obtain one. [] In this regard, I conclude that the school failed in its obligations to the learner. Where a school establishes a code of conduct that may have the effect of discriminating against learners on the grounds of culture or religion, it is obliged to establish a fair process for the determination of exemptions. This principle requires schools to establish an exemption procedure that permits learners, assisted by parents, to explain clearly why it is that they think their desire to follow a cultural practice warrants the grant of an exemption. Such a process would promote respect for those who are seeking an exemption as well as afford appropriate respect to school rules. An exemption process would require learners to show that the practice for which they seek exemption is a cultural practice of importance to them, that it is part of the practices of a community of which they form part and which in a significant

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Legal Cases (–)

way constructs their identity. The school’s authorities would in this way gain greater understanding of and empathy for the cultural practices of learners at the school. [] In this case, the learner has never set out either orally or in writing her view as to why she thinks the school should afford her an exemption. This failure is unexplained on the record. Only the learner’s mother’s voice has been heard. This is unfortunate. A fifteen-year old learner who is seeking an exemption from school rules should as part of a fair exemption process be required to set out in writing or orally her reasons for seeking an exemption. As citizens of a diverse society we need to be able to explain to the other members of society why it is that our cultural practices require protection. An exemption process in a school environment, particularly where one is dealing with learners in their teens, should require learners to take responsibility for the exemption they are seeking by setting out their reasons for requiring the exemption. Such a process contributes to an enhancement of human dignity and autonomy. [] Once those reasons have been provided, the school decision-making body would need to take into account the following considerations: the cultural or religious practice on which the application for an exemption is based; the importance of that practice to the learner concerned; whether the cultural or religious practice is mandatory or voluntary; whether the relevant cultural or religious community considers it to be a practice which ordinarily warrants exemption from school rules; the extent of the exemption required (in other words how great the departure from the ordinary school rule); and the effect of granting the exemption on the achievement of a “disciplined and purposeful school environment, dedicated to the improvement and maintenance of the quality of the learning process.” [] The approach to the granting of exemptions will thus require an exercise in proportionality. The importance of the cultural practice to the learner, including the question of whether it needs to be pursued during school hours, will need to be weighed against the effect that the grant of the exemption may have on the important and legitimate principles that support the wearing of a school uniform. In performing this exercise, a school needs to be fully apprised of the cultural importance of the practice. [] I do not agree with Chief Justice Langa that it is appropriate to make a declaratory order that the learner’s rights have been infringed. The learner has left the school and the matter is accordingly moot as between the learner and the school as Chief Justice Langa accepts in his judgment. I do not think an order in such circumstances is just and equitable. [] On the other hand, I agree with Chief Justice Langa that the court should make an order calling upon the school to effect amendments to its code of conduct to provide for the granting of exemptions from the code of conduct in the case of religious and cultural practices. The amendments to the code of conduct should only be adopted after a proper process of consultation in terms of section  of the Schools Act has taken place. Once they have been adopted, the school should provide

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a place in its curriculum for the code of conduct to be discussed with all learners in the classroom. That discussion should include a discussion of the principles on which exemptions from the rules are granted and the process whereby that happens. In particular, it seems important to stress that parents and learners need to accept that school rules should ordinarily be observed. Where processes are established for exemptions to be granted, they must be followed. Encouraging the observance of rules is the first step towards establishing civility in an institution. [] Finally, I should add that this has been an important case concerning the ground rules that should apply in schools that have a diverse student body. As stated at the outset, sadly there are still too few schools in South Africa whose learner population is genuinely diverse. There can be no doubt of the good faith of the applicant, the learner and the school involved in this case. It is inevitable given the extraordinary transformation that the school in this case has undergone that conflict about the school and its rules should arise from time to time. It needs to be emphasized, however, that the strength of our schools will be enhanced only if parents, learners and teachers accept that we all own our public schools and that we should all take responsibility for their continued growth and success. [. . .] NOTES . Citing S. Woolman, Dignity in Constitutional Law of South Africa – (S. Woolman, T. Roux, and M. Bishop eds., nd ed., Juta ). . See S. Woolman, Freedom of Association in Constitutional Law of South Africa chap.  (S. Woolman, T. Roux, and M. Bishop eds., nd ed., Juta ); see S Woolman Community Rights in Constitutional Law of South Africa chap.  (S. Woolman, T. Roux, and M. Bishop eds., nd ed., Juta ).

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Occupiers

Occupiers of  Olivia Road, Berea Township and Another v. City of Johannesburg and Others [] JOL  (CC) CASE SUMMARY

Facts The case arose as a challenge to an eviction order obtained by the City of Johannesburg (the City) against more than four hundred occupiers of two buildings in the inner city of Johannesburg (the occupiers). The City had found that the two buildings were “unsafe” and “unhealthy” in terms of section ()(b) of the National Building Regulations and Building Standards Act  of  (the National Building Act).

Legal History In the High Court, which considered the ejectment applications brought by the City and counter-applications by the occupiers seeking alternative accommodation as a prerequisite to eviction, the occupiers prevailed. The High Court found that the City’s housing program was unreasonable and ordered that it must produce a program to cater for those people in the inner city who were in desperate need. In addition, the High Court agreed to the interdict sought regarding the eviction of the occupiers until such a time as the City had implemented a reasonable housing program. The Supreme Court of Appeal overturned the High Court ruling. But while it upheld the appeal by the City—and thus authorized the eviction of the occupiers, it still ordered the City to ensure their “relocation to a temporary settlement area.”

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Issues Two broad issues seized the Constitutional Court: first, whether the eviction order should have been granted; and, second, whether the City’s housing program was constitutionally compliant. Both questions necessarily engaged matters beyond the immediate factual situation of the occupiers because the occupiers had expressly pleaded the broader issue, in the public interest, as to whether the City had made reasonable provision for housing for inner city dwellers living in desperate conditions. Under the umbrella of these two broad issues, a number of subsidiary issues arose. In relation to the eviction order, five questions emerged from the defenses raised by the occupiers: . the constitutionality of section  of the National Building Act; . the constitutionality of the decision by the City to evict the occupiers, on the basis of the failure to give them a hearing; . the reasonableness of the administrative action to evict the occupiers in the circumstances, particularly because the City did not consider that they would be rendered homeless by eviction; . whether section () of the Constitution permitted their eviction; and . whether the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act  of  (“PIE”) was applicable.

Decision of the Constitutional Court The Constitutional Court decided three primary issues in upholding the appeal of the occupiers against the decision of the SCA. First, it explained its earlier “engagement order” that obliged the parties to engage, fully, with each other in order to arrive at an optimal solution for all concerned (paragraph ). It follows that a court must take into account whether there has been meaningful engagement by a municipality before granting an eviction order. The Supreme Court of Appeal should not have granted the ejectment order given that the city had not undertaken meaningful engagement. Secondly, while the City has statutory obligations to eliminate unsafe and unhealthy buildings, its constitutional duty to provide access to adequate housing means that potential homelessness must be considered by a city before it can seek an eviction order (paragraph ). Thirdly, those sections of the National Building Regulations and Building Standards Act (the Act) that make it a crime for people who remain in buildings after an eviction notice by the City, but before the issuance of any order of court for eviction, are unconstitutional. Justice Yacoob conceded that this sanction may serve a legitimate purpose: however, the penalty could only be constitutionally compliant only after a court has ordered the eviction. In upholding this ground of appeal, the Court “read in” a proviso that section () of the act only applies only to people who, after service upon them of an order of court for their eviction, continue to occupy the property concerned. With respect to the retrospective effect of its order, the Court held that the proviso

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shall not apply to cases in which people have already been convicted of contravening the section.

Order The order set aside the orders of both the High Court and SCA. It declared s () of the Act inconsistent with the Constitution and read-in to the statute described above. However, the court’s order must be read with the Constitutional Court’s earlier orders directing the parties to engage meaningfully and its subsequent endorsement of the settlement agreement reached between the parties to the matter. Comment Occupiers,  Olivia Road, has important implications for the right to housing: it employs a procedural protection in the form of the engagement process in order to safeguard existing access to housing. From a dignity perspective, however, the decision is significant in two respects. First, the Court adopted a remedial approach that emphasized consensus building over adversarialism. In this respect, the court built upon its earlier decision in Port Elizabeth Municipality v. Various Occupiers  () SA  (CC);  () BCLR  at paragraph , in which Justice Sachs held: Thus, one potentially dignified and effective mode of achieving sustainable reconciliations of the different interests involved is to encourage and require the parties to engage with each other in a proactive and honest endeavor to find mutually acceptable solutions. Wherever possible, respectful face-to-face engagement or mediation through a third party should replace arm’s-length combat by intransigent opponents.

Secondly, “engagement” is by nature a process that requires local government to take seriously the views and interests of occupiers and in so doing to treat them as ends in themselves, rather than as mere means to an end. In other words, engagement requires local government entities seeking eviction to shift their focus from the objective of securing an eviction to the concerns of occupiers who may face homelessness if evicted. JUSTICE YACOOB

Reasons for the Engagement Order [] The need for meaningful engagement between the City and the occupiers was not directly raised by the parties before this court. It was, however, in some sense foreshadowed by their contention that the City was obliged to give the occupiers a hearing before taking the decision to evict on the basis that the decision was an administrative one. The City contended that the occupiers had indeed been given a

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hearing because they had had an opportunity to file affidavits in the High Court in opposition to the ejectment application. [] In Grootboom [Government of the Republic of South Africa and Others v. Grootboom and Others  () SA  (CC)] this court said, on the relationship between reasonable state action and the need to treat human beings with the appropriate respect and care for their dignity to which they have a right as members of humanity: All levels of government must ensure that the housing program is reasonably and appropriately implemented in the light of all the provisions in the Constitution. All implementation mechanisms and all State action in relation to housing falls to be assessed against the requirements of section  of the Constitution. Every step at every level of government must be consistent with the constitutional obligation to take reasonable measures to provide adequate housing. But section  is not the only provision relevant to a decision as to whether state action at any particular level of government is reasonable and consistent with the Constitution. The proposition that rights are interrelated and are all equally important is not merely a theoretical postulate. The concept has immense human and practical significance in a society founded on human dignity, equality, and freedom. It is fundamental to an evaluation of the reasonableness of state action that account be taken of the inherent dignity of human beings. The Constitution will be worth infinitely less than its paper if the reasonableness of state action concerned with housing is determined without regard to the fundamental constitutional value of human dignity. Section , read in the context of the Bill of Rights as a whole, must mean that the respondents have a right to reasonable action by the state in all circumstances and with particular regard to human dignity. In short, I emphasize that human beings are required to be treated as human beings. This is the backdrop against which the conduct of the [state] must be seen.

[] The court went on to say more specifically about engagement and its importance: The respondents began to move onto the New Rust land during September  and the number of people on this land continued to grow relentlessly. I would have expected officials of the municipality responsible for housing to engage with these people as soon as they became aware of the occupation. I would have also thought that some effort would have been made by the municipality to resolve the difficulty on a case-by-case basis after an investigation of their circumstances before the matter got out of hand. The municipality did nothing and the settlement grew by leaps and bounds.

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[] In Port Elizabeth Municipality [v. Various Occupiers  () SA  (CC),  () BCLR  (CC)] this court said: [T]he procedural and substantive aspects of justice and equity cannot always be separated. The managerial role of the courts may need to find expression in innovative ways. Thus, one potentially dignified and effective mode of achieving sustainable reconciliations of the different interests involved is to encourage and require the parties to engage with each other in a proactive and honest endeavor to find mutually acceptable solutions. Wherever possible, respectful face-to-face engagement or mediation through a third party should replace arm’s-length combat by intransigent opponents.

[] It became evident during argument that the City had made no effort at all to engage with the occupiers at any time before proceedings for their eviction were brought. Yet the City must have been aware of the possibility, even the probability, that people would become homeless as a direct result of their eviction at its instance. In these circumstances those involved in the management of the municipality ought at the very least to have engaged meaningfully with the occupiers both individually and collectively. [] Engagement is a two-way process in which the City and those about to become homeless would talk to each other meaningfully in order to achieve certain objectives. There is no closed list of the objectives of engagement. Some of the objectives of engagement in the context of a city wishing to evict people who might be rendered homeless consequent upon the eviction would be to determine: (a) what the consequences of the eviction might be; (b) whether the City could help in alleviating those dire consequences; (c) whether it was possible to render the buildings concerned relatively safe and conducive to health for an interim period; (d) whether the City had any obligations to the occupiers in the prevailing circumstances; and (e) when and how the City could or would fulfill these obligations. [] Engagement has the potential to contribute towards the resolution of disputes and to increased understanding and sympathetic care if both sides are willing to participate in the process. People about to be evicted may be so vulnerable that they may not be able to understand the importance of engagement and may refuse to take part in the process. If this happens, a municipality cannot walk away without more. It must make reasonable efforts to engage and it is only if these reasonable efforts fail that a municipality may proceed without appropriate engagement. It is precisely to ensure that a city is able to engage meaningfully with poor, vulnerable,

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or illiterate people that the engagement process should preferably be managed by careful and sensitive people on its side. [] The City has constitutional obligations towards the occupants of Johannesburg. It must provide services to communities in a sustainable manner, promote social and economic development, and encourage the involvement of communities and community organizations in matters of local government. It also has the obligation to fulfill the objectives mentioned in the preamble to the Constitution to “[i]mprove the quality of life of all citizens and free the potential of each person.” Most importantly it must respect, protect, promote, and fulfill the rights in the Bill of Rights. The most important of these rights for present purposes is the right to human dignity and the right to life. In the light of these constitutional provisions, a municipality that ejects people from their homes without first meaningfully engaging with them acts in a manner that is broadly at odds with the spirit and purpose of the constitutional obligations set out in this paragraph taken together. [] But the duty of the City to engage people who may be rendered homeless after an ejectment to be secured by it is also squarely grounded in section () of the Constitution. It was said in Grootboom that “[e]very step at every level of government must be consistent with the constitutional obligation to take reasonable measures to provide adequate housing.” Reasonable conduct of a municipality pursuant to section () includes the reasonableness of every step taken in the provision of adequate housing. Every homeless person is in need of housing and this means that every step taken in relation to a potentially homeless person must also be reasonable if it is to comply with section (). [] And, what is more, section () mandates that the response of any municipality to potentially homeless people with whom it engages must also be reasonable. It may in some circumstances be reasonable to make permanent housing available and, in others, to provide no housing at all. The possibilities between these extremes are almost endless. It must not be forgotten that the City cannot be expected to make provision for housing beyond the extent to which available resources allow. As long as the response of the municipality in the engagement process is reasonable, that response complies with section (). The Constitution therefore obliges every municipality to engage meaningfully with people who would become homeless because it evicts them. It also follows that, where a municipality is the applicant in eviction proceedings that could result in homelessness, a circumstance that a court must take into account to comply with section () of the Constitution is whether there has been meaningful engagement. [] It has been suggested that there are around , people living in the inner city of Johannesburg in unsafe and unhealthy buildings in relation to whom ejectment orders will have to be issued and that it would be impractical to expect meaningful engagement in every case. I cannot agree. It is common cause that the implementation

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of the City’s Regeneration Strategy is an important reason that founded the decision to evict. That strategy was adopted in . If structures had been put in place with competent sensitive council workers skilled in engagement, the process could have begun when the strategy was adopted. It must then have been apparent that the eviction of a large number of people was inevitable. Indeed the larger the number of people potentially to be affected by eviction, the greater the need for structured, consistent and careful engagement. Ad hoc engagement may be appropriate in a small municipality where an eviction or two might occur each year, but is entirely inappropriate in the circumstances prevalent in the City. [] It must be understood that the process of engagement will work only if both sides act reasonably and in good faith. The people who might be rendered homeless as a result of an order of eviction must, in their turn, not content themselves with an intransigent attitude or nullify the engagement process by making non-negotiable, unreasonable demands. People in need of housing are not, and must not be regarded as a disempowered mass. They must be encouraged to be proactive and not purely defensive. Civil society organizations that support the people’s claims should preferably facilitate the engagement process in every possible way. [] Finally, it must be mentioned that secrecy is counter-productive to the process of engagement. The constitutional value of openness is inimical to secrecy. Moreover, as I have already pointed out, it is the duty of a court to take into account whether, before an order of eviction that would lead to homelessness is granted at the instance of a municipality, there has been meaningful engagement or, at least, that the municipality has made reasonable efforts towards meaningful engagement. In any eviction proceedings at the instance of a municipality, therefore, the provision of a complete and accurate account of the process of engagement including at least the reasonable efforts of the municipality within that process would ordinarily be essential. The absence of any engagement or the unreasonable response of a municipality in the engagement process would ordinarily be a weighty consideration against the grant of an ejectment order. [] This court made the interim order because it was not appropriate to grant any eviction order against the occupiers, in the circumstances of this case, unless there had at least been some effort at meaningful engagement. It was common cause during argument that there had been none. The ejectment of a resident by a municipality in circumstances where the resident would possibly become homeless should ordinarily take place only after meaningful engagement. Whether there had been meaningful engagement between a city and the resident about to be rendered homeless is a circumstance to be considered by a court in terms of section (). [] It follows that the Supreme Court of Appeal should not have granted the order of ejectment in the circumstances of this case, in the absence of meaningful engagement.

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The Engagement Agreement [] The postengagement agreement concluded between the City and the occupiers records at its inception that it “contemplates” the resolution of two aspects of their dispute: the interim measures to be taken by the City to improve the condition of the properties as well as “[t]he City’s application for the eviction of the occupiers.” It is not necessary to go into these two aspects of the agreement in much detail. [] The agreement makes explicit and meticulous provision for measures aimed at rendering both properties “safer and more habitable” in the interim. It is not necessary to set out each measure. They include the installation of chemical toilets, the cleaning and sanitation of the buildings, the delivery of refuse bags, the closing of a certain lift shaft and the installation of fire extinguishers. The work aimed at rendering the building more habitable was to be completed within twenty-one working days of the signature of the agreement. The agreement was signed on  October . [] The eviction application of the City was resolved on a somewhat different basis. The agreement obliged the City to provide all occupiers with alternative accommodation in certain identified buildings. It defined with reasonable precision the nature and standard of the accommodation to be provided and determined the way in which the rent in respect of this accommodation will be calculated. The agreement obliged all occupiers to move into alternative accommodation by yesterday and stipulated that this alternative accommodation is provided “pending the provision of suitable permanent housing solutions” being developed by the City “in consultation” with the occupiers concerned. [] It will not always be appropriate for a court to approve all agreements entered into consequent upon engagement. It is always for the municipality to ensure that its response to the process of engagement is reasonable. The deciding factor in this case, in my view, was that engagement was ordered by this Court, and the parties had been asked to report back on the process while proceedings were pending before it. Courts would ordinarily consider agreements entered into consequent upon engagement ordered by them in the course of litigation. It must be emphasized that the process of engagement should take place before litigation commences unless it is not possible or reasonable to do so because of urgency or some other compelling reason. [] It is not necessary for this court to consider the question of “permanent housing solutions” for the occupiers. The City has agreed that these solutions will be developed in consultation with them. The complaint by the occupiers that negotiations have been marred by unclear and inconcrete housing plans is not, in my view, a sufficient reason for this court to consider this question at this stage. There is every reason to believe that negotiations will continue in good faith. The situation now is very different from that which confronted the occupiers in the High Court. The City has shown a willingness to engage. As a result, the desperate situation of the occupiers has been alleviated by the reasonable response of the City to the

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engagement process. There is no reason to think that future engagement will not be meaningful and will not lead to a reasonable result. In any event this court should not be the court of first and last instance on whether the City has acted reasonably in the process. Nor should it be the only determinant of whether the plan is reasonable in the sense of being sufficiently concrete and clear. It is the duty of both parties to continue with the process of negotiation and for the occupiers or the City to approach the High Court if this course becomes necessary. [] Much the same reasoning applies to the plea of the occupiers that we consider the plight of thousands of other poor people in the inner city and evaluate the housing plan in relation to them. The housing plan before the High Court differs from the one that we are required to consider in this case. This court should not be the court of first and last instance in deciding whether it complies with the Constitution and the law. We must bear in mind that the engagement between the occupiers and the City has resulted in an agreement that represents a reasonable response by the City. There is no reason to believe that the City will not in the future engage meaningfully with other occupants whose evictions become either necessary or desirable. The City has undertaken to negotiate permanent housing solutions for the occupiers in consultation with them. It is not unreasonable to expect that the City will, in the ordinary course, adopt a similar approach in respect of other people who are affected in the future. In the circumstances, it would be premature to examine the plan and evaluate it in a generalized way. A process of this kind comes close to an abstract evaluation, which is undesirable at the best of times. A case can always be brought in the High Court in relation to particular occupiers with specific allegations as to the respects in which the housing obligations imposed by the Constitution have not been complied with. This is preferable to dealing with a generalized claim in relation to anticipated future occurrences. At the same time the High Court order has been overtaken by events and cannot be allowed to stand. [] It must be apparent by now that this court did not afford any opportunity for further response to the housing plan because, though the evaluation of these plans did raise a constitutional issue, it was not in the interests of justice to follow that course and to consider and evaluate the plan. [] It is common cause that the City in making the decision to evict the people concerned took no account whatsoever of the fact that the people concerned would be rendered homeless. This is regrettable. Municipal officials do not act appropriately if they take insulated decisions in respect of different duties that they are obliged to perform. In this case the City had a duty to ensure safe and healthy buildings on the one hand and to take reasonable measures within its available resources to make the right of access to adequate housing more accessible as time progresses on the other. It cannot be that the City is entitled to make decisions on each of these two aspects separately, one department making a decision on whether someone should be evicted and some other department in the bureaucratic maze determining whether housing should be provided. The housing provision and the health and safety provision must

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be read together. There is a single City. That City must take a holistic decision in relation to eviction after appropriate engagement taking into account the possible homelessness of the people concerned and the capacity of the City to do something about it. [] Section (), like all provisions of the Bill of Rights, deserves a generous construction. The section prohibits eviction of people from their home absent a court order that must be made after taking into account all the relevant circumstances. It means in effect that no person may be compelled to leave their home unless there exists an appropriate court order. The provisions of section () would be virtually nugatory and would amount to little protection if people who were in occupation of their homes could be constitutionally compelled to leave by the exertion of the pressure of a criminal sanction without a court order. It follows that any provision that compels people to leave their homes on pain of criminal sanction in the absence of a court order is contrary to the provisions of section () of the Constitution. Section () provides for this criminal compulsion and is not consistent with the Constitution. Continued occupation of the property should not be a criminal offence absent a court order for eviction. [] It is neither just nor equitable to set the provisions of section () of the act aside. It is appropriate to encourage people to leave unsafe or unhealthy buildings in compliance with the court order for their eviction. A criminal sanction does have this effect. It provides an additional incentive for occupiers to leave unhealthy and unsafe buildings and reduces the need for a forced eviction at the instance of the state. A reading-in order that provides for a criminal sanction only after a court order for eviction has already been made would, in my view, be appropriate to save the section. As has already been pointed out in this judgment, a court must take into account all relevant circumstances before making an order for eviction. Any eviction order would also afford the occupier a reasonable time within which to vacate the property.

Retrospectivity [] It will not be just and equitable for this order to be retrospective. The read-in proviso should not apply to cases in which people have already been convicted of a contravention of section () of the act, the period provided for the lodging of an application for leave to appeal has expired and no notice of appeal has been lodged. Costs [] This is an appropriate case in which the City should be ordered to pay the costs of the applicants. The proceedings would have been obviated if there had been meaningful engagement before the case had been started. In the circumstances the City should also pay the applicants’ costs in the High Court and in the Supreme Court of Appeal. The appeal succeeds to this extent.

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NM

NM and Others v. Smith and Others  () SA  (CC);  () BCLR  (CC) CASE SUMMARY

Facts In  New Africa Books published an authorized biography of well-known politician Patricia de Lille, authored by Charlene Smith. All three—New Africa Books, De Lille and Smith (the respondents)—were sued by three women (the applicants) whose HIV-positive status had been revealed in the book. The women had participated in clinical trials for HIV medication at the University of Pretoria that went horribly wrong resulting in several deaths. De Lille was involved in an investigation into the trials. The incident took up a whole chapter of the biography. Relying on the use of full names in an internal university report, Smith felt that the applicants had consented to their status being revealed and used their name. The applicants argued that they consented only to their status being revealed in the internal report, not a publicly distributed book.

Legal History As a result of the ambiguous nature of the consent the applicants gave, they argued both that respondents had intentionally revealed private medical information and, in the alternative, that the common law actio iniuriarum should be developed to embrace negligent disclosures of private information by media defendants. Justice

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Schwartzmann rejected both claims, but held that the respondents were liable for damages suffered as a result of continued distribution of the book after the applicants had complained. When it came to determining damages, the High Court found that the applicants were entitled to less damages because they were illiterate in English and it was, therefore, unlikely that their acquaintances would read the book. It granted them R, damages each. An appeal to the Supreme Court was refused without a hearing. The applicants then appealed to the Constitutional Court.

Decision of the Constitutional Court The majority of the court reversed the High Court decision. Justice Madala observed that “[t]he personal and intimate nature of an individual’s health information, unlike other forms of documentation, reflects delicate decisions and choices relating to issues pertaining to bodily and psychological integrity and personal autonomy” (paragraph ). The court was careful to note that there was nothing shameful about suffering from HIV “[i]t is, however, an affront to the infected person’s dignity for another person to disclose details about that other person’s HIV status or any other private medical information without his or her consent” (paragraph ). Justice Madala therefore concluded that the disclosure of the applicants HIV status violated their common-law and constitutional rights to privacy and dignity. The majority reevaluated the evidence prevented to the High Court and reached a different conclusion: the respondents acted with a form of intention known as dolus eventualis because they had known there was a possibility that the applicants did not consent to the disclosure and published anyway. The court did not need to consider whether the common law should be developed to outlaw negligent disclosures of private medical information. The court also rejected the High Court’s evaluation of damages. That “the applicants were disadvantaged . . . does not,” Justice Madala wrote, “mean that they should not fight for the restoration of their dignity damaged by the disclosure of their names and HIV status” (paragraph ). Several judges wrote separately. Justice O’Regan argued that the respondents had not acted intentionally, that the actio iniuriarum should be developed to include negligent disclosures by media defendants. She reasoned that this struck a reasonable balance between the rights to privacy and dignity on the one hand and the media’s right to freedom of expression on the other. However, she concluded that the respondents had not acted negligently. Chief Justice Langa agreed with Justice O’Regan that the common law should be developed, but held that the respondents had been negligent in publishing the applicants’ HIV status. Finally, Justice Sachs wrote to highlight the minimal benefit that publishing names provided and to try and narrow the gap between the other judgments. Order The appeal was upheld and the applicants were granted R, damages each.

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Comment Was it appropriate for the court to reconsider the High Court’s factual finding about intention? Even if a case concerns the rights to privacy and dignity, is a factual finding in a common-law dispute really a constitutional matter or an issue connected with a constitutional matter? The court bases its finding of a violation of dignity on a removal of choice about what to keep private. If that is all dignity means in this context, does it add anything to the violation of privacy? If the common law is to be developed in the future, is it appropriate to distinguish between media defendants and nonmedia defendants? If we rely primarily on the media to distribute information, why should they be held to a higher standard than ordinary people? A similar distinction was drawn in the context of defamation in Bogoshi and Khumalo. Are there any differences between defamation and the disclosure of private medical facts that would justify a different rule? JUSTICE MADALA

Introduction [] In March  a biography of Ms. Patricia de Lille entitled “Patricia de Lille” and authored by Ms. Charlene Smith was published by New Africa Books (Pty) Ltd. The names of three women who are HIV positive were disclosed. They alleged that their names had been published in the book without their prior consent having been obtained. The three women claimed that their rights to privacy, dignity and psychological integrity had been violated. A sequel to that publication was an action for damages in the Johannesburg High Court. The High Court dismissed with costs the action against Ms. Smith and Ms. de Lille.

Factual Background [] In August , Dr. Marietta Botes, head of the Immunology Clinic in the Medical Faculty of the University of Pretoria (the University), recruited volunteers to participate in clinical trials, known as the FTC  trials, directed at determining the efficiency of a combination of drugs that could decrease a patient’s HIV level. The volunteers, including the applicants, were required to sign a consent form indicating that they had been informed of the nature, benefits, side effects and the risks of the clinical trials. The trials were conducted at the Kalafong Hospital, Pretoria and ended in . [] Soon after the start of the clinical trials, concerns were raised by the participants, including the applicants, regarding illnesses and fatalities on the trials. The gravity of the complaints was noted. On  April  the Minister of Health made a statement to Parliament regarding the effects of the drugs and called for a report from the Medicines Control Council, which found that a causal association between

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the drugs and the deaths was probable. As a consequence the Medicines Control Council halted any further recruitment of study projects while full reports were being compiled on all the serious adverse effects, including the deaths. [] Some of the volunteers, in particular the applicants, complained specifically to Father Johan Viljoen, a former priest employed at the centre attached to the Kalafong Hospital while at a support group meeting for people with HIV/AIDS. Father Viljoen was concerned about the fact that so many of the volunteers were getting sick as a result of taking the drugs. He approached the second respondent for assistance with a complaint in March/April . The second respondent was a member of Parliament known for her stand in relation to the rights of people living with HIV/AIDS. The second respondent flew from Cape Town to meet with the applicants and to see whether a solution could not be found regarding the complaints raised by them. [] On  March  the second respondent met with members of the support group. The participants complained that, amongst others, the consent form was never properly explained to them and that Dr. Botes was unsympathetic to complaints about the side effects of the drugs, which she attributed to the disease and not to the drugs themselves. [] The second respondent and Father Viljoen investigated the complaints and took statements from, among others, the three applicants. A meeting with the Ethics Committee took place on  April  in a lecture hall at the Pretoria Academic Hospital. Present at the meeting were Professor Falkson (head of the University Ethics Committee), members of the Ethics Committee, Dr. Botes, the second respondent, Miss Vivienne Vermaak (a freelance journalist), other journalists and the South African Broadcasting Corporation. Even though there are disputes of fact regarding these meetings nothing turns on them. [] Another meeting took place on  April  in a small house in Atteridgeville Pretoria, which the second respondent also attended as well as ten members of the support group. Statements were taken by Father Viljoen in English at that meeting. The first and second applicants admitted signing these statements. [] On  May  the second respondent sent copies of these statements to the Ethics Committee. On  May  copies of the statements were also sent to the South African Human Rights Commission. As a result of that the Pretoria Academic Hospital decided to set up an internal investigation to look into the complaints. Dr. Freislich was appointed to conduct the investigation. His report was submitted to the Ethics Committee and to Professor Grove (the Registrar of the University) during July . This report, according to the applicants, was sent to the second respondent on  October . The second respondent read the report and was aware of the applicants’ complaints included and expressed in the report. This report was allegedly filed with other AIDS-related documents in her AIDS file. [] During August  the University requested another external enquiry into the matter to complement the report of Dr. Freislich. It appointed Professor SA

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Strauss to enquire into the allegations made in the statements. The second respondent was not invited to this enquiry, but the applicants and a number of other trialists were present. At the enquiry, the three applicants repudiated their statements made at the meeting in Atteridgeville on  April  as incorrect. In his report, delivered on  May  Professor Strauss exonerated the University and the Medical Faculty, stipulating there was no substance in the statements and no evidence of any improper conduct on the part of Dr. Botes. Professor Grove also sent the Strauss Report to the second respondent, but without the annexures attached. The second respondent read the report and filed it with other AIDS related documents, and did nothing further regarding the matter. A copy of the report was also sent to Ms. Vermaak, the journalist present at the meeting held at the University. A Martin Welz, also a journalist and editor of “Noseweek,” obtained a copy. [] In the period September to November  Ms. Charlene Smith (the first respondent) was commissioned by the publisher to write a biography of Ms. de Lille. The book was to include a chapter on Ms. de Lille’s work in campaigning for the rights of those living with HIV/AIDS. During the trial, Ms. Smith stated that although she had the Strauss Report, she did not have the annexures to it that contained the terms of the consent forms signed by the applicants. The consent forms did not permit full public disclosure of the identity of the three applicants and the fact that they are living with HIV/AIDS, but only permitted limited disclosure for the purposes of the University’s investigation. She stated that there was nothing in the report nor in the covering letter sent to Ms. de Lille that suggested the report was confidential and pointed to the fact that the report had been circulated to two journalists. She confirmed in evidence that she knew that the annexures contained the terms of the consents of the three applicants. She also acknowledged that she knew that media ethics would require her ordinarily not to disclose a person’s HIV/AIDS status without his/her consent. She also stated that she had tried to obtain the annexures to the report from Professor Grove, but that he did not return her calls and she gave up trying to obtain the annexures. She also stated that though she originally made attempts to meet the three women, she did not succeed in these attempts either. [] As stated before, the book was published in March . The second respondent confirmed in evidence that the book is truly an authorized biography of herself. Some , copies of the book were printed. The book was distributed to various bookshops during March . Dr. Botes bought a copy and after having read the relevant chapters, informed the applicants that their names and HIV status had been disclosed. The applicants denied consenting to the publication of their names and HIV status in the book. [] The applicants were then referred to the University of Pretoria Law Clinic to obtain advice as to what they should do. On the advice from the Law Clinic, they sought to interdict publication of the book in the Pretoria High Court. The respon-

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dents opposed the application. The application was ultimately withdrawn, and the respondents did not press for a costs order. [] On  July  the applicants sent a letter to the respondents’ attorneys requesting the removal of their names from the book. The first and the second respondents replied to the letter stipulating that they did not regard themselves accountable to the applicants and if action was to be taken against them, it would be defended. The third respondent did not reply to the applicants’ request. [] Approximately six months after the application for the interdict, the applicants sued the respondents for damages. They claimed: (a) a private apology from the respondents; (b) the removal or excision of their names from all unsold copies of the book; (c) payment by the respondents of the sum of R, to each of the applicants, and (d) costs of suit. A pretrial conference was held on  February , but it appears that nothing was resolved there. The trial commenced before the High Court. The applicants applied for and obtained an order to prevent the disclosure of their identities. Judgment was given on  May . The applicants appealed to the High Court for leave to appeal to the Supreme Court of Appeal. [] On  August  the High Court refused leave to appeal to the Supreme Court of Appeal. On  November  the Supreme Court of Appeal dismissed with costs an application for leave to appeal without giving reasons.

Issues [] The following issues, amongst others, seem to arise from the dispute between the parties: (a) Whether the issues raised in this application are constitutional matters and if so whether it is in the interests of justice to hear them; (b) Whether the disclosure or publication was of private facts; (c) Whether the disclosure was wrongful; (d) Whether the publication was done with knowledge of the wrongfulness of the conduct and with the intention to harm the applicants; (e) Whether the common law of privacy should be developed so as to impose liability on those who negligently publish confidential information; (f ) If liability is established, what would be the appropriate quantum of damages? These are considered in the judgment. [] In this court the applicants complained that the High Court had failed to protect their rights to privacy, dignity, and psychological integrity. While these rights are claimed by the applicants under the actio iniuriarum, they are also protected under the Constitution. In this case the applicants could not have instituted a constitutional

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claim directly because of the reasoning of this court in Fose v. Minister of Safety and Security [ () SA  (CC)]. [] While the claim falls to be dealt with under the actio iniuriarum the precepts of the Constitution must inform the application of the common law.

Is This a Constitutional Issue? [] The applicants approached this court with the view to vindicate their constitutional rights to privacy, dignity and psychological integrity which, they allege, have been violated by the respondents. Their claim is, however, based on the actio iniuriarum and, therefore, falls to be determined in terms of the actio iniuriarum. [] It is important to recognize that even if a case does raise a constitutional matter, the assessment of whether the case should be heard by this court rests instead on the additional requirement that access to this court must be in the interests of justice and not every matter will raise a constitutional issue worthy of attention. [] The dispute before us is clearly worthy of constitutional adjudication and it is in the interests of justice that the matter be heard by this court since it involves a nuanced and sensitive approach to balancing the interests of the media, in advocating freedom of expression, privacy and dignity of the applicants irrespective of whether it is based on the constitutional law or the common law. This court is in any event mandated to develop and interpret the common law if necessary. Privacy [] The academic literature on privacy demonstrates the considerable controversy over the definitional nature and the scope of the right. However, it appears common cause in many jurisdictions that the nature and the scope of the right envisage a concept of the right to be left alone. [] Privacy encompasses the right of a person to live his or her life as he or she pleases. In Bernstein and Others v. Bester NNO and Others [ () SA  (CC)] this court stated: A very high level of protection is given to the individual’s intimate personal sphere of life and the maintenance of its basic preconditions and there is a final untouchable sphere of human freedom that is beyond interference from any public authority. So much so that, in regard to this most intimate core of privacy, no justifiable limitation thereof can take place. But this most intimate core is narrowly construed. This inviolable core is left behind once an individual enters into relationships with persons outside this closest intimate sphere; the individual’s activities then acquire a social dimension and the right of privacy in this context becomes subject to limitation. (Footnotes omitted.)

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Were These Private Facts and Were They Wrongfully Published? [] Private facts have been defined as those matters the disclosure of which will cause mental distress and injury to anyone possessed of ordinary feelings and intelligence in the same circumstances and in respect of which there is a will to keep them private. [] The applicants contended that as a result of the disclosure of their names and HIV status to the public the respondents had wrongfully and intentionally or negligently violated their rights of personality, more particularly their right to privacy, dignity and psychological integrity. They therefore averred that they had suffered damages. [] The respondents, denying any liability to the applicants, relied on the fact that the applicants’ names had previously been disclosed in the Strauss Report and that the report was not marked “confidential.” The applicants argued that the respondents had made public their names and HIV status. As a response to that the respondents contended that the HIV status of the applicants was not a private fact. [] The respondents testified that the applicants and others had agreed at a meeting to present their grievances orally to the ethics committee in the presence of the media. The motivation was that having the media present would result in the quick resolution of the problems. The respondents contended that the applicants knew that their grievances were likely to be reported and to reach the public because the grievances had been made in the presence of journalists. [] The respondents in their defense stated that the publication of the HIV status of the applicants was already in the public domain when the book was published and that therefore the applicants had no basis for complaining. They had appeared before the various commissions of inquiry including the Strauss inquiry and had brought an application in their own names in the High Court seeking an interdict against the inclusion of their names in the book. [] In my view, when they made their application for the interdict in their names, they were not thereby saying their names should be published in a book having a wide circulation throughout South Africa, which would be the position since the second applicant is a national figure. Similarly by attending the various inquiries they were not giving blanket consent to the publication of their status. [] Private and confidential medical information contains highly sensitive and personal information about individuals. The personal and intimate nature of an individual’s health information, unlike other forms of documentation, reflects delicate decisions and choices relating to issues pertaining to bodily and psychological integrity and personal autonomy. [] Individuals value the privacy of confidential medical information because of the vast number of people who could have access to the information and the potential harmful effects that may result from disclosure. The lack of respect for private medical information and its subsequent disclosure may result in fear

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jeopardizing an individual’s right to make certain fundamental choices that he/she has a right to make. There is therefore a strong privacy interest in maintaining confidentiality. [] The disclosure of an individual’s HIV status, particularly within the South African context, deserves protection against indiscriminate disclosure due to the nature and negative social context the disease has as well as the potential intolerance and discrimination that result from its disclosure. The affirmation of secure privacy rights within our Constitution may encourage individuals to seek treatment and divulge information encouraging disclosure of HIV which has previously been hindered by fear of ostracism and stigmatization. The need for recognized autonomy and respect for private medical information may also result in the improvement of public health policies on HIV/AIDS. [] As a result, it is imperative and necessary that all private and confidential medical information should receive protection against unauthorized disclosure. The involved parties should weigh the need for access against the privacy interest in every instance and not only when there is an implication of another fundamental right, in this case the right to freedom of expression. [] The assumption that others are allowed access to private medical information once it has left the hands of authorized physicians and other personnel involved in the facilitation of medical care, is fundamentally flawed. It fails to take into account an individual’s desire to control information about him or herself and to keep it confidential from others. It does not follow that an individual automatically consents to or expects the release of information to others outside the administration of health care. As appears from what has gone on before there is nothing on the record to suggest that the applicants’ HIV status had become a matter of public knowledge. [] This protection of privacy in my view raises in every individual an expectation that he or she will not be interfered with. Indeed there must be a pressing social need for that expectation to be violated and the person’s rights to privacy interfered with. There was no such compelling public interest in this case. [] The High Court held that the first and second respondent were not liable for any damage suffered at the time of publication of the book. I disagree with this finding of the High Court. The first respondent did not sufficiently pursue her efforts to establish if the necessary consents had been obtained, despite having ample time to do so. More importantly she could have used pseudonyms instead of the real names of the applicants. The use of pseudonyms would not have rendered the book less authentic. The same position applies to the second respondent. [] I am, therefore, persuaded that the publication by the respondents of the HIV status of the applicants’ constituted a wrongful publication of a private fact and so the applicants’ right to privacy was breached by the respondents. The need for access to medical information must also serve a compelling public interest.

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Dignity [] It is trite that the actio iniuriarum under the common law protects both dignity and privacy under the concept of dignitas. There is nothing shameful about suffering from HIV/AIDS. HIV is a disease like any other; however, the social construction and stigma associated with the disease make fear, ignorance, and discrimination the key pillars that continue to hinder progress in its prevention and treatment. These pessimistic perceptions persist to fuel prejudice towards people living with HIV/AIDS. Living with HIV/AIDS should not be viewed as a violation of one’s dignity. Rather, an acceptance that HIV/AIDS should be treated like any other disease would help to destigmatize negative perceptions and pave the right channels to encourage positive change in the lives of those afflicted with HIV/AIDS, as well as in the treatment of the disease. It is, however, an affront to the infected person’s dignity for another person to disclose details about that other person’s HIV status or any other private medical information without his or her consent. [] A constant refrain in our Constitution is that our society aims at the restoration of human dignity because of the many years of oppression and disadvantage. While it is not suggested that there is a hierarchy of rights it cannot be gainsaid that dignity occupies a central position. After all, that was the whole aim of the struggle against apartheid—the restoration of human dignity, equality and freedom. [] If human dignity is regarded as foundational in our Constitution, a corollary thereto must be that it must be jealously guarded and protected. As this court held in Dawood and Another v. Minister of Home Affairs and Others, Shalabi and Another v. Minister of Home Affairs and Others, Thomas and Another v. Minister of Home Affairs and Others [ () SA  (CC)]: 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.

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[] In S v. Makwanyane and Another [ () SA  (CC)] this court observed as follows: 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.

[] The applicants contended that the High Court failed to give sufficient weight and importance to the public perception of stigma, degradation and discrimination that often goes with HIV/AIDS. Because of the social difficulties that are attendant upon disclosure of HIV, individuals are not very keen to announce themselves as being HIV positive. [] The indignity experienced by the applicants as a result of the disclosure of their names, seems to have been treated lightly by the court a quo. The case of the applicants was reduced to a malady that had befallen “lesser men or women.” They were regarded as poor, uneducated, coming from an insignificant informal settlement and their plight disclosed in the book was not likely to spread far beyond the community where they resided. There was, in my view, a total disregard for the circumstances of the applicants and the fact that because of their disadvantaged circumstances their case should have been treated with more than ordinary sensitivity. [] I therefore conclude that by the disclosure of the applicants’ HIV status the respondents violated the dignity and the psychological integrity of the applicants and that nowhere can it be shown that the disclosure was in the public interest.

The actio iniuriarum and the Development of the Common Law [] For the common law action for invasion of privacy based on the actio iniuriarum to succeed, the following must be proved: (a) Impairment of the applicants’ privacy; (b)Wrongfulness; and (c) Intention (animus iniuriandi). Negligence is as a rule, therefore, insufficient to render the wrongdoer liable. [] The applicants contended that if the invasion of their privacy by the respondents was not intentional, it was negligent. As a result they raised the constitutional issue whether or not the common law of privacy should be developed so as to impose liability on those who negligently publish confidential medical information (in par-

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ticular a person’s HIV status) by not first obtaining the express informed consent of that person unless the public interest clearly demands otherwise. [] Can it be said that the common law deviates in this case from the spirit, purport and objects of the Bill of Rights? It was argued on behalf of the applicants that it does—hence the assertion by the applicants that the common law should have been developed by the court a quo so as to impose negligence as an element of liability in respect of the actio iniuriarum. I do not subscribe to this view. This, in my view, is not an appropriate case for departing from the age-old approach to the actio iniuriarum. I do not, by any means, wish to be understood to say the common law should or could never be developed in this regard. In the view I take of this matter it is however unnecessary to reach a conclusion on this point.

Animus iniuriandi [] I now look a little closer at the conduct of the respondents. That they are good activists in the field of HIV/AIDS admits of no doubt. They also know all that there is to know about the private nature of HIV/AIDS and how sensitively these should be treated, in particular obtaining informed consent before disclosing such facts. [] I have no doubt in my mind that the first and second respondents were aware that they had not obtained the express informed consent of the applicants to publish their HIV status. The first respondent went ahead and published the information pertaining to the applicants, having made unsuccessful earlier attempts to find the consents. The disclosure of the HIV status of the applicants was done in a book which must naturally have taken time to produce. It was not a question of publishing breaking news such as might happen for the purposes of a newspaper. [] Both the first and second respondents assumed, without any enquiry and without a factual basis, that the applicants had given Professor Strauss express informed consent to disclose their names and HIV status to the public at large. This clearly cannot be so. The second respondent failed to take sufficient steps to ascertain whether the applicants had in fact given unlimited consent to Professor Strauss because, in her view, there was no onus or duty on her to find out what was contained in the consent forms. The second respondent conceded in evidence that, at the time of publication of the book, she was unaware of any other person outside the University who had been sent a copy of the report. Both respondents assumed, without any enquiry, that the information contained in the Strauss Report was not confidential. They conceded in evidence that they were not aware, at the time of publication of the book, of any other publication in which the applicants’ names and HIV status had been disclosed to the public at large. [] The first respondent conceded in evidence that it is important to err on the side of caution and not to disclose private facts about a person if one is unable to obtain the person’s express, informed consent. Yet, she assumed that the applicants had consented to the public disclosure of their names and HIV status because the

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source of the publication came from a reputable institution. Despite being acutely aware of the option of using pseudonyms in the book, the first respondent deliberately chose to use the applicants’ names in order to give the book “authenticity.” In my view, the public’s interest in authenticity does not outweigh the public’s interest in maintaining the confidentiality of private medical facts as well as the right to privacy and dignity that everybody should enjoy. [] The second respondent says there was no onus on her to seek out the applicants before publishing. Once they had repudiated her mandate and the complaint statements they had made to her, as was apparent from the Strauss Report which she read, they had to seek and find her. The applicants were in constant contact with Father Viljoen and therefore the respondents could easily have found them through him. She gave the entire AIDS file to the first applicant and read chapter  of the manuscript before publication. She allowed publication because nothing in the Strauss Report suggested that the private facts were confidential. She knew of no one else, outside the University, who had the report when the book was published and admitted that before the book there was no publication of these facts except in the report. She never followed up the blank consents. She accepted that Professor Strauss had the consent to disclose the names and she knew that the first internal report, unlike the Strauss Report did not use actual names and specified that it was confidential. [] There are in the case of HIV/AIDS special circumstances that justify the protection of confidentiality bearing in mind that the disclosure of the condition has serious personal and social consequences for the sufferer. For example, such a person stands to be isolated and even rejected by others. In the present case, each of the applicants testified as to the several setbacks, which occurred in their lives following the disclosure of their status. The first applicant had her shack burned down by her boyfriend who has since left her and broken off that relationship. The second applicant has withdrawn from society for fear of being ostracized by her family. The third applicant has shied away and has not told members of her family about her condition, which depresses her. [] Looking at the aforesaid conduct of the respondents and despite their denial of having acted animo iniuriandi and their further contention that they acted reasonably, I am satisfied that the respondents were certainly aware that the applicants had not given their consent or at least foresaw the possibility that the consent had not been given to the disclosure. As seasoned campaigners in the field of HIV/AIDS the respondents knew well of the wrongfulness of their conduct and that the disclosure of private facts was likely to invade the privacy rights of the applicants. [] I can come to no other conclusion but that the respondents have not rebutted the presumption that the disclosure of private facts was done with the intention to harm the applicants. Therefore the respondents had the requisite animus iniuriandi. Their position is exacerbated by their attitude that they wanted the book to have authenticity and credibility by publishing the names of the applicants. The defense of the respondents must accordingly fail.

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Freedom of Expression [] It was submitted by the amicus curiae that freedom of expression is critical to an open and democratic society based on freedom and equality and without freedom of expression, openness is severely compromised and endangered. It cannot be gainsaid that freedom of expression lies at the heart of democracy. This court has recognized in other cases that freedom of expression is one of a “web of mutually supporting rights.” [] It was suggested by the respondents and the amicus that if the media were to be held liable for negligent disclosure of private facts they would have an additional burden which would frustrate the right of freedom of expression. The amicus contended that it was neither necessary nor desirable for the common law to be developed to include negligence as a ground of fault under the animus iniuriarum. It submitted that such an approach would unjustifiably limit the ambit of the right of freedom of expression and would have a “chilling effect” on the freedom of expression in South Africa. [] In particular the amicus was concerned about the effect of holding individual respondents as opposed to media respondents liable on grounds of negligence. [] In light of the fact that this judgment is not extending the common law definition of intention to include negligence in relation to the publication of private medical facts, there will be no “chilling effect” on freedom of expression in South Africa and there is no need to pursue this issue any further. Assessment of Quantum of Damages [] In the light of the aforegoing it now remains for me to deal with the question of quantum of damages. [] At the end of the trial, the High Court assessed the damages and awarded an amount of R, to each of the applicants. It will be recalled that the applicants had claimed an amount of R, each in damages and that the respondents had offered the amount of R, to each plaintiff in their settlement offer in terms of Rule . [] The assessment of damages in any case under the actio iniuriarum can never be an easy exercise. I have not found it any easier. As was correctly observed by Acting Justice Smalberger in Van der Berg v. Coopers and Lybrand Trust (Pty) Ltd. and Others [ () SA  (SCA)]: In the nature of things no two cases are likely to be identical or sufficiently similar so that the award in one can be used as an accurate yardstick in the other. Nor will the simple application of an inflationary factor necessarily lead to an acceptable result. The award in each case must depend upon the facts of the particular case seen against the background of prevailing attitudes in the community. Ultimately a court must, as best it can, make a realistic assessment of what it considers just and fair in all the circumstances. The

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result represents little more than an enlightened guess. Care must be taken not to award large sums of damages too readily lest doing so inhibits freedom of speech or encourages intolerance to it and thereby fosters litigation. Having said that does not detract from the fact that a person whose dignity has unlawfully been impugned deserves appropriate financial recompense to assuage his or her wounded feelings.

[] Although such assessment is peculiarly within the province of the trial court there may be situations where the dictates of justice would be better served by interference by an appellate court with regard to the assessment and award made by the High Court. This is such a case. The assessment of damages will be on a different basis from that of the High Court, taking into account that the High Court’s assessment was not commensurate with the dignity and privacy which was unlawfully violated by the respondents. [] I have noted the reasons for the award made before the High Court based on the circumstances of the applicants, among others, that they are illiterate in English, they claimed no understanding of English, that there is no likelihood of any confrontation in the future by anyone in their community for or about their HIV status and their names being in the book. If the applicants were disadvantaged it does not mean that they should not fight for the restoration of their dignity damaged by the disclosure of their names and HIV status. [] The applicants contend that the award by the High Court failed to accord sufficient weight to the fact that the rights violated are enshrined in the Bill of Rights and accordingly the award flouted the spirit, purport and objects of the Bill of Rights. [] In assessing damages courts have in the past considered a range of factors arising from the circumstances and facts of the case: the nature and extent of the invasion or violation of privacy; malice on the part of the respondent; rank or social standing of the parties; the absence or nature of the apology; the nature and extent of the publication; and the general conduct of the respondent. The greater the violation of the privacy, the greater the need to protect the applicants and the greater the award of damages. [] The first respondent initially tried to establish whether the necessary consent had been obtained from the applicants and when she failed she went ahead and published the names. Her conduct in simply going ahead and publishing the names of the applicants violated the dignity and privacy of the applicants. It was wrongful in the sense that the first and second respondents went ahead to publish the names and HIV status of the applicants without obtaining their necessary express informed consent. [] The respondents argued that it might be that in exceptional cases this Court should grant leave to appeal against the quantum of damages awarded, but that this was not in any way a special case. Accordingly, so it was argued, the award was in

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line with other awards made by our courts in similar situations. They cited Jansen van Vuuren and Another NNO v. Kruger [ () SA  (A)]. [] In the present case, highly personal and confidential material had been placed in the book and without the respondents having obtained the express informed consent of the applicants. The consent which the applicants had given earlier in the Strauss Report had pertained to a report and not to the general publication for public consumption of the facts in a book. This consent was limited to medical records and if any other publication was envisaged the requisite consent had to be obtained for that particular publication. [] The respondents clearly violated the dignity and privacy enjoyed by the applicants and are therefore liable to compensate the applicants in damages. Due to the gravity of the violations, I would consider a higher award reasonable in these circumstances. [] Accordingly, I consider a fair assessment of the damage suffered by the applicants at R, for each applicant.

Order [] In the circumstances I make the following order: . The application for leave to appeal is granted. . The order in the court a quo is set aside. . The following order is made: . The respondents shall pay to each applicant the sum of R, inclusive of the amount of damages awarded against the third defendant in the High Court as compensation for damage jointly and severally. . The respondents shall pay costs of the respondents up to the first day of trial. . The third respondent’s application for leave to appeal is dismissed with costs. . The names of the applicants shall be deleted from all unsold copies of the book Patricia de Lille by Charlene Smith. . In this court each party shall pay its own costs, including the costs in the High Court. Deputy Chief Justice Moseneke, and Justices Mokgoro, Nkabinde, Skweyiya, Yacoob, and Van der Westhuizen concur in the judgment of Justice Madala. CHIEF JUSTICE LANGA [] I have had the opportunity of reading the judgments of Justices Madala, Sachs, and O’Regan. This case raises very difficult questions of both fact and law

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which do not permit of easy analysis. Hence, while there is much that I agree with in all the judgments, I have found it necessary to plot my own particular approach to this case. [] In brief, I agree that the disclosure of the HIV status of the applicants was wrongful and associate myself with the discussions of the rights to privacy and dignity in both Justices Madala and O’Regan’s judgments and concur in the spirit and tone of Justice Sachs’s judgment. In particular, I agree that being HIV positive does not in itself impair a person’s dignity and that courts must be careful not to stigmatize the disease. I disagree, however, with Justice Madala that intention has been established on the facts. I agree with Justice O’Regan that it is necessary to develop the common law, but I find it necessary to clarify the ambit of that development. I also find that the first and third respondents are media defendants and, contrary to Justice O’Regan, that they were negligent in this case. Finally, I disagree with Justice Madala’s approach to Rule  and, as a result, his award of costs.

Intention [] Justice Madala holds that the respondents failed to rebut the presumption of intention. Like Justice O’Regan, I am not convinced that is present. The available facts do not, to my mind, disclose that the respondents subjectively foresaw the possibility of their action causing harm. All the judgments accept, and the record makes it clear that both the first and the second respondents are active “seasoned campaigners” in the field of HIV/AIDS. Justice O’Regan highlights a number of heartfelt denials of intention by the first respondent which I find compelling. Although the respondents’ denials are not conclusive, they do mean that we would need a great deal of evidence to find that these activists would intentionally infringe the rights of the very people whom they are committed to protect. That evidence is not present. It could well be that the respondents honestly believed the Strauss Report to be a public document and therefore did not think it necessary to take any further steps to ascertain consent. A reasonable media defendant might have investigated further, but that goes to negligence, which I address later. I therefore hold that the respondents did not act intentionally. Development of the Common Law [] I agree with the reasons expressed by Justice O’Regan for holding the media to a higher standard than ordinary defendants. This court and the Supreme Court of Appeal have held that the media, as a consequence of their power, bear a particular constitutional responsibility to ensure that the vital right of freedom of expression is not used in a manner that improperly infringes on other constitutional rights. It makes sense that media defendants, who are experts in the field and who routinely distribute facts to vast numbers of people, with a particular air of authority and for commercial gain, should be held liable for any disclosures, which they should reasonably have foreseen would cause harm. However, to extend that standard to ordi-

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nary people, and thus to everyday relationships, would be to extend the law too far into intensely personal space. That is not to say that I approve of negligent disclosures of private facts by individuals, but simply that it is not a matter that is appropriate for the law to regulate. It is therefore constitutionally appropriate that the media should be held to a higher standard than the average person. [] I also agree, in general terms, with the nature of the development of the common law suggested by Justice O’Regan. I wish only to express a minor difference in my understanding of the correct technical construction of that development. As I understand Justice O’Regan’s judgment, the position for a media defendant is that they can rebut unlawfulness by showing that the publication was reasonable; if they fail on that count, there is a presumption of negligence which they must rebut; and, finally, if they succeed in rebutting negligence, they will still be liable if they acted with intention. To the extent that the first defense of reasonableness extends what is already part of the lawfulness inquiry, I disagree. [] Lawfulness is an ex post facto inquiry into whether the action is compatible with the boni mores. It is important that when we determine lawfulness we are not concerned with the facts that were known to the defendant, but with the facts that are now available to the court. It is also important that we operate on the basis that the act in question was done either negligently or intentionally. To do otherwise would defeat the purpose of the lawfulness inquiry as the boni mores would never condemn a blameless act. In the context of the disclosure of private medical facts this means that the reasonableness of a defendant’s averment that they thought they had consent is irrelevant if the consent was in fact absent. Reasonableness in the lawfulness inquiry will be relevant, for example, where it is unclear whether, objectively and ex post facto, there was consent or not, or where publication might have conformed to public policy despite the absence of consent. [] Negligence, on the other hand, relates specifically to the circumstances of the case and its determination is based on the facts known to the defendant at the time. It is at this stage that media defendants can argue, as the respondents do in this case, that it was reasonable to assume that consent was present. This is a separate inquiry that in my view should be kept distinct from the inquiry into wrongfulness. This approach in no way alters the substance of the various tests, but simply reassigns various questions to what I consider to be their correct position.

Media Defendants [] The next question is whether the respondents qualify as media defendants. The first and third respondents are professionals involved in the distribution of information for commercial gain. Although they do not meet the traditional image of a media defendant as a newspaper editor, they clearly meet the concept of media defendants that motivate setting higher standards for the media. [] The second respondent on the other hand, although she was undoubtedly involved in the process, is not a professional journalist and was more the subject of

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the book than its creator. While she maintained control over the content of the book, as a layperson that control would relate to the factual correctness of the book rather than the legality of its publication. Although the second respondent would still bear responsibility if she had acted intentionally, I cannot find that she is a media defendant and she therefore avoids liability.

Negligence [] The traditional test for negligence is axiomatic but still bears the briefest repetition: negligence is established if a reasonable person in the position of the defendant would have foreseen the harm, the reasonable person would have taken steps to prevent it and the defendant failed to take those steps. When we are dealing with professionals acting in their professional field, the relevant benchmark is not the ordinary reasonable person but the relevant reasonable professional person. In this case, we must compare the conduct of the respondents to that of a reasonable journalist and publisher. [] The applicant led the evidence of Professor Harber (Harber) as to what is expected of a journalist in the circumstances. Harber made it quite clear that ethical reporting of HIV/AIDS requires that “[t]he identity of a person with HIV/AIDS should not be disclosed without the explicit permission of that person and the onus is on the journalist/publisher to ensure that such permission has been granted.” He also testified that the consent must be informed consent which requires that it is obtained in the individual’s own language and that they are informed of the potential ramifications of publication and the context in which their name would be used. He stressed that a journalist cannot assume that consent has been given. This evidence was not seriously challenged by the respondents. [] Both the High Court and Justice O’Regan largely discount Harber’s evidence as they regard the Strauss Report as a public document. While I agree with the general proposition in Justice O’Regan’s judgment that journalists should not be forced to verify disclosures made by reputable organizations, that principle does not, to my mind, create any hard-and-fast rules. Whether it is reasonable to rely on another document will depend on the nature of the document, the nature of the institution that produced the document, the importance of the interests involved and the relevant circumstances of the case. It is not, for example, sufficient to rely simply on the absence of a distinct proclamation of confidentiality as automatically justifying reliance on an otherwise untested document. [] That this is the appropriate standard appears very clearly from Harber’s evidence. During cross-examination Harber was asked whether, if a commission of enquiry had been established and the report had been given to him, with no reference to its confidentiality or anything to suggest that it were secret, he would publish the report. Harber responded: I would say you would say to yourself is there any reason I cannot publish this, is it illegal, are there contents that can cause me problems of defamation

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or invasion [of ] privacy or you would ask yourself a range of questions and if the answers to those were no, then you would publish. . . . You would be very foolish if as a journalist and editor you did not establish first whether for example you were being defamatory and whether or not that was a risk you should and wanted to take.

The hypothesis was extended to a situation where it was an official report from the Minister to which Harber responded: “I am not sure why that would protect you if you carried defamatory material.” [] To my mind these responses make it clear that a journalist cannot rely on governmental or private institutions to publish only information that would be appropriate for a journalist to publish. Journalists have their own standards and bear an independent duty to ensure that they have been met. [] The question then is whether the reasonable journalist described above would have foreseen the possibility of the absence of consent under these circumstances. There are a number of important considerations on this score. Firstly, Professor Strauss explains on the second page of his report that “[r]ight at the outset [he] insisted upon each patient . . . giving consent to [him] in writing, the terms of which consent appear in exhibits ‘A-’ through ‘A-.’ ” The importance of this passage, so early in the report, is that it makes clear that the consent has been given with certain “terms” attached to them. Having been alerted to the fact the consent was limited, a reasonable media defendant would have foreseen that the consent would not cover publication outside the report itself. When asked whether she knew the exact terms of the consent in the Strauss Report, the first defendant responded: “Not the exact terms, that is why I contacted the University.” This indicates that Smith herself realized that the reference to terms of consent meant the consent was not unrestricted. Although it is not enough to convince me she acted with intent, it shows very clearly that anybody who read the report would realize the consent given by the applicants was limited. A reasonable journalist would have then made certain that they determined the exact terms of the consent by obtaining the annexures. [] The first respondent’s uncertainty is compounded by her concession that the applicants “were patients who had consistently changed their minds about whether or not they had a problem or did not have a problem, whether or not they felt free to speak out or did not feel free to speak out.” With that knowledge it should have been even more obvious to her that she should determine with certainty what the applicants’ attitudes were to disclosure in her book and at that time. [] The Strauss Report was an internal University report made in response to allegations of irregularities. It was compiled by a lawyer, not a journalist. This point was pertinently made during Ms. Smith’s cross-examination, when she was read the following principle of journalistic ethics:

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“No reporter or photographer should allow publication of material which can put informants at risk of losing their positions, injury or death. In particular, ordinary people are sometimes unaware of the possible consequences of talking to the media. In these cases it is incumbent on the reporter or photographer to establish informed consent by spelling out to the informant what the likely dangers are.” Are you aware of that principle?—I am aware of this and this is precisely what Professor Strauss should have applied. COURT: Is he a journalist?—No he is not.

[] In addition, the Strauss Report was not a public document and was not intended for widespread public consumption. The report was not publicized and as far as the first respondent was aware when the book was published, had not been disclosed to any other reporters. Again, the cross examination is telling: When you wrote and published your book you were not aware of a single report anywhere in the media where any of the plaintiffs’ names or faces had been published. Correct?—Correct.

[] The report was also not widely distributed. Professor Grove made clear that, outside the University, the report was only sent to Ms. de Lille, a Ms. Vermaak who assisted during the Strauss inquiry and possibly the Medical Research Council. The first respondent was unaware of this distribution, but admitted that the only effort she made to determine the extent of the distribution were three wholly unproductive phone calls to the registrar’s office. [] The reasonable media defendant would therefore, and keeping in mind the evidence of Harber, not have relied on the Strauss Report as a document that removed their duty to ensure informed consent had been obtained. [] The inescapable conclusion is that a reasonable journalist or a reasonable publisher would have foreseen the possibility that there was not consent. Because the possible harm was great, the effort necessary to avoid that harm minimal and the benefit of publishing the names negligible, a reasonable journalist or publisher would have taken steps to avoid that harm. Those steps could have involved, for example, finding the annexures, contacting the applicants directly or using pseudonyms. Whatever course they chose the defendants, to use the words of Justice Sachs, “should have left no stone unturned in [their] pursuit of verification.” The fact that they left those stones unturned renders them negligent. [] A word should be said about the third respondent’s liability. As a publisher it bears a separate responsibility to ensure that everything it publishes is lawful. It cannot abandon that responsibility to those whose work it chooses to disseminate. It is therefore negligent for the same reasons as the first respondent.

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JUSTICE O’REGAN [] I have had the opportunity of reading the judgment prepared in this matter by Justice Madala. Unfortunately, I cannot concur with it for the reasons set out here. [] This litigation arose from the publication of an authorized biography (“the book”) written by Ms. Charlene Smith, the first respondent, about Ms. Patricia de Lille, the second respondent. The publisher of the book, New Africa Books (Pty) Ltd., is the third respondent. In the book, the three applicants are named as persons who are living with HIV. The applicants did not consent to their names being published in this way. All of this is common cause. The fuller facts appear from the judgment of Justice Madala and I do not repeat them here save where necessary. [] The applicants issued summons in the High Court in Johannesburg alleging that the respondents had acted wrongfully with the intention of injuring the applicants in their rights of personality, particularly their rights to privacy, dignity, psychological integrity, and mental and intellectual well-being. In the alternative, the applicants alleged that the respondents acted negligently in publishing the names of the applicants with the same consequences. The applicants also alleged, in the alternative, that the first respondent knew or ought reasonably to have known that the applicants had not consented to the publication of their names. After hearing evidence, the court concluded that the applicants had not established the case as pleaded and dismissed their claim. [] The case raises complex issues. My primary disagreement with Justice Madala relates to his finding on the facts (contrary to the finding of the High Court) that the first and second respondents published the names of the applicants having actually known that the applicants had not consented to publication of their names, or alternatively, having foreseen the possibility that they did not consent and in reckless disregard of that possibility. Such a finding results in the conclusion that the respondents did act intentionally, either directly or under the specific form of intention called dolus eventualis. I do not think this case has been made out on the facts. In addition, I should add that the High Court concluded that such a case had not been made out on the facts. Nor do I think that the respondents have failed to dislodge a presumption that they acted either intentionally or, having foreseen the possibility that the applicants may not have consented to the publication of their names, acted recklessly despite that foresight. My conclusion on the facts requires a consideration of the alternate causes of action pleaded by the applicants, in particular, the question whether in our law unreasonable mistake or negligence can found liability for breach of privacy as alleged here. And if it does, whether it has been established on the facts of this case. Before turning to these complex issues, however, it is necessary to discuss briefly the constitutional rights in issue in this case.

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The Right to Privacy [] The constitutional basis for the applicants’ claim is the right to privacy protected in section  of the Constitution which provides: Everyone has the right to privacy, which includes the right not to have— (a) their person or home searched; (b) their property searched; (c) their possessions seized; or (d) the privacy of their communications infringed.

[] The applicants assert that their right to privacy entitles them not to have their private medical information disclosed without their consent to the public. In Bernstein and Others v. Bester NO and Others [ () SA  (CC)], Justice Ackermann recognized that privacy is an elusive concept that has been the subject of much debate by scholars. It has troubled lawyers too since at least the end of the nineteenth century. [] In a seminal article written by Samuel Warren and Louis Brandeis in  in the Harvard Law Review, in language that resonates today, the authors argued that: Instantaneous photographs and newspaper enterprise have invaded the sacred precincts of private and domestic life; and numerous mechanical devices threaten to make good the prediction that “what is whispered in the closet shall be proclaimed from the house-tops.” For years there has been a feeling that the law must afford some remedy for the unauthorized circulation of portraits of private persons; and the evil of the invasion of privacy by the newspapers, long keenly felt, has been but recently discussed by an able writer. . . . Of the desirability—indeed of the necessity—of some such protection, there can, it is believed, be no doubt. The press is overstepping in every direction the obvious bounds of propriety and of decency. Gossip is no longer the resource of the idle and of the vicious, but has become a trade, which is pursued with industry as well as effrontery. (Footnotes omitted.)

[] The statement by the authors that privacy needs protection seems intuitively to be correct. However, in the context of a Constitution, which values not only privacy, but also freedom of expression, more careful consideration of this apparent intuitive truth needs to be undertaken. The important question to be considered is why we protect the right to privacy in our constitutional order. There are at least two inter-related reasons for this protection. The first flows from our constitutional conception of what it means to be a human being; and the second from our constitutional conception of the state. [] Underlying our Constitution is a recognition that, although as human beings we live in a community and are in a real sense both constituted by and con-

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stitutive of that community, we are nevertheless entitled to a personal sphere from which we may and do exclude that community. In that personal sphere, we establish and foster intimate human relationships and live our daily lives. This sphere in which to pursue our own ends and interests in our own ways, although often mundane, is intensely important to what makes human life meaningful. [] The right to privacy recognizes the importance of protecting the sphere of our personal daily lives from the public. In so doing, it highlights the inter-relationship between privacy, liberty, and dignity as the key constitutional rights that construct our understanding of what it means to be a human being. All these rights are therefore interdependent and mutually reinforcing. We value privacy for this reason at least—that the constitutional conception of being a human being asserts and seeks to foster the possibility of human beings choosing how to live their lives within the overall framework of a broader community. The protection of this autonomy, which flows from our recognition of individual human worth, presupposes personal space within which to live this life. [] This first reason for asserting the value of privacy therefore lies in our constitutional understanding of what it means to be a human being. An implicit part of this aspect of privacy is the right to choose what personal information of ours is released into the public space. The more intimate that information, the more important it is in fostering privacy, dignity, and autonomy that an individual makes the primary decision whether to release the information. That decision should not be made by others. This aspect of the right to privacy must be respected by all of us, not only the state. As was pointed out in the minority judgment in S v. Manamela and Another (Director-General of Justice Intervening) [ () SA  (CC)]: Such an exhortation recognizes that the protection of individual rights depends not only on the actions of the State, but on the actions of fellow citizens. The conduct of each individual can and will contribute to a climate in which the rights of others are respected. Our society asserts individual moral agency and it does not flinch from recognizing the responsibilities that flow from it.

The right to privacy is therefore one of those rights which will often bind natural and juristic persons and individuals need to be furnished with appropriate remedies to protect their right against its invasion by others. The recognition by others of our right to an area of privacy is one of the bases upon which our community itself is built. The proper protection of a person’s privacy depends in a significant way on its being respected by others. [] Secondly, we value privacy as a necessary part of a democratic society and as a constraint on the power of the state. It is not surprising, given our authoritarian past, that the incidents of privacy listed in section  of our Constitution protect individuals from searches of their home, person, property, and communications. In

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authoritarian societies, the state generally does not afford such protection. People and homes are often routinely searched and the possibility of a private space from which the state can be excluded is often denied. The consequence is a denial of liberty and human dignity. In democratic societies, this is impermissible. [] This is not to say, however, that there are no limits to the inviolability of an individual’s entitlement to privacy. There are times when it will be legitimate for the state to invade private space. For example, violence against women often lurks in the shadows of the home and historically state officials have refused to intervene to protect women on the basis of the inviolability of the home. Such a refusal can no longer be tolerated under our Constitution which asserts that everyone has the right to be free from both public and private violence. The corollary of this right is an obligation borne by the state, and others, to provide protection to those at risk of violence even in traditionally private environments such as the home. Recognition of legitimate limits on the inviolability of personal space, however, does not mean that the space is not worthy of protection. The Constitution seeks to ensure that rights reinforce one another in a constructive manner in order to promote human rights generally. At times our Constitution recognizes that a balance has to be found to provide protection for the different rights. [] The breach of privacy relied upon by the applicants in this case is the disclosure of the fact that they are living with HIV. This is private medical information, which the applicants may ordinarily choose to keep private. In Bernstein, Justice Ackermann found that determining whether the right to privacy has been breached requires us to recognize that the concept should be seen as having a core and a periphery. He reasoned: “Privacy is acknowledged in the truly personal realm, but as a person moves into communal relations and activities such as business and social interaction, the scope of personal space shrinks accordingly.” [] In cases since Bernstein, this court has sought to locate the particular infringement complained of as either a core or peripheral complaint. In this case, the applicants argue that their private medical information was disclosed without their consent. There can be no doubt that private medical information, of whatever nature, but particularly where it concerns a life-threatening disease, is personal information, which is protected by the right to privacy. Moreover, it is information that the person concerned has the right to decide whether to disclose. If the person does decide to disclose it, he or she is entitled to determine in what circumstances and to whom. These choices are personal choices and must be respected not only by the state but by others. Of course, doctors and other medical personnel may need to know, and at times disclose, the information for privileged reasons, but they are not entitled to disclose it outside of their professional circumstances without consent. [] In National Media Ltd and Another v. Jooste [ () SA  (A)], the Appellate Division held that liability would only arise in respect of disclosure of those private facts when the general sense of justice of the community would expect protection because disclosure would “cause mental distress and injury to anyone

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possessed of ordinary feelings and intelligence.” It is not necessary for the purposes of this case to consider whether this test is the appropriate test under our Constitution for determining whether a fact is private or not. For it is clear that the publication of otherwise confidential information about a life-threatening illness is likely to cause distress to the person concerned. The question of whether it is only in such circumstances that an action for breach of privacy will lie can therefore be left for another day.

HIV/AIDS and Privacy [] It is important to add here that HIV/AIDS should not be seen as different from other life-threatening diseases for the purposes of the breach of privacy. It is true that our society stigmatizes those living with HIV/AIDS. The result of this stigma is that disclosure causes not only personal pain for those living with HIV/AIDS, but at times a reasonable fear that their lives and safety are at risk because of the attitudes of some in our community towards those living with HIV/AIDS. [] It needs to be said clearly that the stigma attached to those living with HIV/AIDS is inconsistent with the constitutional value of human dignity. Disclosing that a person is living with HIV/AIDS cannot therefore be an infringement of dignity on the grounds that members of the community may improperly think less of them because they are suffering from this frightening illness. It does undermine their dignity to the extent that it denies those living with HIV/AIDS the right to determine to whom and when their illness should be disclosed, which is itself an aspect of the right to privacy, as already discussed. [] HIV/AIDS therefore is not to be treated specially for the purposes of establishing a breach of privacy. It may well be that the effect of the stigma the illness currently attracts is relevant to the determination of damages appropriate to remedy the wrongful disclosure. This is a matter that for the reasons that follow does not need to be determined in this case. [] In dealing with cases concerning people living with HIV/AIDS, courts and lawyers must take care not to develop rules that will strengthen rather than diminish the stigma attached to HIV/AIDS. In time, we should hope that those living with HIV/AIDS should be seen merely as members of our community who have a disease for which treatment exists. Nothing in our law or legal system should undermine the achievement of that state of affairs. Was the Applicants’ HIV Status a Private Fact? [] The respondents sought to raise, as a defense, the fact that before the book was published it was already no longer a private fact that the applicants were living with HIV. In this regard, they relied, in particular, on the fact that the applicants had, as three of a group of people undergoing treatment as part of a medical trial staged by the University of Pretoria, agreed to meet to present their grievances orally to the University Ethics Committee. The meeting was held in April , and the

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media were invited and attended. However, the April meeting did not deal with the grievances of the applicants and others because the person chairing the meeting ruled that formal written complaints concerning the trials should be lodged and that the grievances should not be aired at the meeting. There is a dispute of fact on the record as to whether the applicants in fact attended either of these meetings but the High Court held that nothing turned on this dispute. What is clear, however, is that no actual disclosure took place at the meeting in April . [] The respondents argue that if the applicants attended the meeting in March , where it was decided that the Ethics Committee should be approached in public to raise grievances about the conduct of the clinical trial, at that stage the applicants indicated an intention no longer to keep their HIV status confidential. Accordingly, the respondents argue that the subsequent publication of the applicants’ status in the book did not breach their privacy. This argument cannot be accepted. I agree that nothing turns on whether or not the applicants did in fact attend the meetings of March and April. What is clear is that, as a matter of fact, the outcome of those meetings was not such as to render the applicants’ HIV status a matter of public record. As a matter of fact, their status remained private after that meeting. Whatever the intention of the applicants may have been, the fact of their HIV status did not become public knowledge. In reaching this conclusion, it should be emphasized that a court should not lightly conclude that what is a private fact has been rendered a public fact simply because a small number of people may have come to know of it. The question will be one of fact, in particular, whether the fact has been disclosed to such an extent that, viewed objectively, it can no longer genuinely be considered to be private. In this case, I conclude that the respondents published private medical information of the applicants without their consent.

Privacy and Freedom of Expression [] In understanding the scope of privacy, it is important to recognize that, at times, the right to privacy might suggest that certain facts should not be published while at the same time the right to freedom of expression might suggest that those same facts should be able to be published. As this court has held, freedom of expression is an important right in a democracy. It is important because it enables the free and open exchange of ideas that is the anchor of any modern democracy as Justice Brandeis noted in his powerful concurrence in the early case of Whitney v. California [ US , – ()]: Those who won our independence believed that the final end of the state was to make men free to develop their faculties, and that in its government the deliberative forces should prevail over the arbitrary. They valued liberty both as an end and as a means. They believed liberty to be the secret of happiness and courage to be the secret of liberty. They believed that freedom to think as

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you will and to speak as you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly discussion would be futile; that with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of the American government. They recognized the risks to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones. Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law—the argument of force in its worst form. Recognizing the occasional tyrannies of governing majorities, they amended the Constitution so that free speech and assembly should be guaranteed.

[] Freedom of expression is important because it is an indispensable element of a democratic society. But it is indispensable not only because it makes democracy possible, but also because of its importance to the development of individuals, for it enables them to form and share opinions and thus enhances human dignity and autonomy. Recognizing the role of freedom of expression in asserting the moral autonomy of individuals demonstrates the close links between freedom of expression and other constitutional rights such as human dignity, privacy and freedom. Underlying all these constitutional rights is the constitutional celebration of the possibility of morally autonomous human beings independently able to form opinions and act on them. As Scanlon described in his seminal essay on freedom of expression, an autonomous person cannot accept without independent consideration the judgment of others as to what he should believe or what he should do. He may rely on the judgment of others, but when he does so he must be prepared to advance independent reasons for thinking their judgment likely to be correct, and to weigh the evidential value of their opinion against contrary evidence.

[] Our Constitution seeks to assert and promote the autonomy of individuals in the sense contemplated by Scanlon. Freedom of expression is key to this purpose. It does not mean however that freedom of expression is without limit. This court has already held that there are legitimate limits on freedom of expression. At times, the limit on freedom of expression will arise from the need to protect another constitutional right, such as the right to privacy.

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[] Seeking the appropriate balance between privacy and expression requires the legal rules which provide for redress for breaches of privacy to be developed in a manner that recognizes both the importance of privacy and the importance of freedom of expression. The basis for a claim for breach of privacy in our common law is the actio injuriarum. It is that remedy which primarily must contain rules to regulate the relationship between the right to privacy and the right to freedom of expression. [] In developing and applying the rules of the actio injuriarum, both the right to privacy and freedom of expression need to be borne in mind. In determining appropriate limits on freedom of expression, ethical rules developed by journalists themselves will be of importance. In this case, a leading South African journalist, Professor Anton Harber, gave evidence at the trial concerning the accepted practice for journalists wishing to publish the identity of a person living with HIV/AIDS. It will be useful to describe his evidence briefly. [] Professor Harber identified four principles guiding journalists in their work: the obligation to tell the truth; the obligation to remain independent; the obligation to minimize harm; and the accountability of journalists to explain and defend their work. In regard to HIV/AIDS, the summary of his evidence stated that because people with HIV/AIDS often face stigmatization and persecution, the identity of a person should not be disclosed without their explicit permission. He helpfully placed in evidence a series of codes of ethics, some from South African media organizations and some from abroad, setting out the ethical responsibilities of journalists. Codes of media ethics will often be useful in considering the question of how privacy and freedom of expression should be balanced in our law. Most of the codes of conduct on the record emphasize the importance of privacy, but also recognize the possibility of overriding privacy in the public interest or where there is informed consent. He did not give evidence on the question that arises in this case—the responsibility of journalists when faced with a publication from a reputable source that discloses the identities of people living with HIV/AIDS. [] I turn now to consider that question in the context of the actio injuriarum, bearing in mind the aforegoing discussion of the constitutional rights at issue in this case.

The actio injuriarum [] The right to privacy finds protection in the law of delict and, specifically, in the actio injuriarum. This cause of action, recognized since the classical Roman period, protects a range of personality rights under the Latin terms corpus, fama, and dignitas—which can loosely be translated respectively, as physical and mental integrity, good name, and dignity understood in a broad sense. Privacy has been protected under the rubric of dignitas. The elements of the actio injuriarum are the intentional and wrongful infringement of a person’s dignitas, fama or corpus. [] The most common use of the actio injuriarum in our law is in relation to defamation. Special rules have developed in defamation, particularly in relation to

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which party bears the onus of establishing or disproving the facts relevant to the different elements of the delict. So, in defamation, it is clear that if a plaintiff establishes the publication of a defamatory statement that will constitute prima facie proof of the wrongfulness of the publication and prima facie proof that the defendant intended to defame the plaintiff. The defendant will then bear a legal burden to disestablish either wrongfulness or intention in order to avoid liability. [] It is not clear whether those rules relating to onus apply also to the use of the actio injuriarum in relation to the right to privacy. There does not seem to be any reason why, as a matter of principle, proof of the publication of a private fact in breach of a plaintiff ’s right to privacy should not give rise to presumptions both of wrongfulness and intention which the defendant must rebut. Both defenses will ordinarily fall within the peculiar knowledge of the defendant. However, it is not necessary on the view I take of the facts of this case to resolve that question now. As it concerns the common law, it would be desirable for the Supreme Court of Appeal to resolve this question. [] It is not necessary to decide the question on the burden of proof in relation to wrongfulness for the following reason. The respondents did not seek to raise, as a defense, that the publication was not wrongful. The main defenses to wrongfulness in these circumstances would be that the publication was in the public interest or that express informed consent had been rightly given. Both these defenses to wrongfulness are recognized in the codes of ethics referred to by Professor Harber. The respondents did not assert that publication of the names in this case, the applicants who are private citizens, was in the public interest. Nor did they allege that the applicants had given them express informed consent to publish their names. Their defense was firstly that the HIV status of the applicants was no longer a private fact. I have dealt with that argument above. Secondly, they argued that even if the applicants’ status was still a private fact, that they did not know this and had mistakenly thought that it was no longer a private fact. This second defense goes to the animus injuriandi. If the respondents genuinely considered the applicants to have consented to the publication of their HIV status, they did not act intentionally in disclosing that status.

Did the Respondents Have animus injuriandi? [] The next question that arises is whether the respondents did act animo injuriandi in publishing the information about the applicants. [ . . . ] [] The question that arises is whether the defendants have rebutted the fact that the publication of a private fact was intentional. Because Justice Madala reaches a different conclusion to me on the same record, I consider it necessary to spend some time recounting the evidence given by the first and second respondents in this regard. [] [. . .] An appellate court should be slow to interfere with the conclusion of a trial court on the facts unless the record clearly suggests that the trial court erred. Nothing on this record is suggestive of such error. It is also relevant, in my view, that by and large the applicants did not argue that animus injuriandi had been established

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on the record, either directly or in the form of dolus eventualis, and they did not argue on the basis that the respondents had unsuccessfully rebutted a presumption that they had acted animo injuriandi. Instead, the main argument on behalf of the applicants was that the common law of delict needed to be developed to impose liability for the negligent publication of private information in the breach of the constitutional right to privacy. For all these reasons, I cannot agree with the conclusion of the majority that it has been established that the respondents acted animo injuriandi in this case. I now turn to the applicants’ argument that the law of delict needed to be developed in this case.

The Development of the Common Law [] On the existing common law, a conclusion that the respondents did not act animo injuriandi would be the end of the matter, but the applicants pleaded and argued that the common law should be developed. On their pleadings and in argument before us they argued that the constitutional right of privacy requires more protection than the actio injuriarum currently provides. In particular, they argued that the intention requirement of the actio injuriarum should be developed to include not only actual intention, but also negligence. This would mean that a person who negligently discloses a private fact about another will be liable in delict. In the alternative, they argued, somewhat more narrowly, that a defendant who wishes to rebut a presumption of intention may not simply show that he or she made a mistake, but must also show that the mistake was reasonable on the facts of the case. [] In this regard, the suggested development of the common law has some similarities to the manner in which the liability of the media in the law of defamation, also based on the actio injuriarum, has developed in recent years. One of the difficulties in this case is the extent to which developments in the actio injuriarum in relation to defamation are or should be mirrored in the actio injuriarum in relation to privacy. Once again, this is a matter that ideally should be first considered by the Supreme Court of Appeal. Unfortunately, given that the matter has now arisen for decision in this case, that is not possible. I should note here that the Supreme Court of Appeal refused leave to appeal in this matter. [] The applicants argued both in the High Court and on appeal that the actio injuriarum in respect of a breach of privacy should be developed to found liability in circumstances where the breach of privacy occurs negligently. In this regard, it should be borne in mind that the High Court dealt with the case on the basis that the principles set out in Bogoshi and as considered in Khumalo and Others v. Holomisa and also in Mthembi-Mahanyele v. Mail and Guardian Ltd. and Another apply. The court assumed therefore that the respondents would be liable if they could not establish that the publication of the names of the applicants in the book was reasonable or that the respondents had not acted negligently in publishing the names. [] The law, as developed in Bogoshi and Khumalo, is not automatically applicable in this case. First, this case deals with an infringement of the right to privacy,

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and not to damage to the reputation of the applicants. In argument before us, counsel for the applicants expressly disavowed any suggestion that the publication of the applicants’ HIV status was defamatory of them and it is clear from the pleadings that this was never the argument of the applicants. While it may be that the actio injuriarum in respect of privacy should be developed in the same way as the law of defamation, this is not a matter that has yet been addressed by the Supreme Court of Appeal or by this court. [] Secondly, it is not immediately clear that the respondents in this case constitute media defendants as contemplated by the Bogoshi judgment. Media defendants in that case clearly involved print, broadcast and electronic media. In this case, we are dealing with an author, a person who has consented to be the subject of an authorized biography and a book publisher. Such people do not, on its ordinary meaning, fall within “the media.” This is a matter to which I return in a moment. [] For the purposes of this case, I accept that the legal principles developed in Bogoshi should apply not only in the law of defamation but also to the infringement of privacy rights by the media. I take this view for the following reasons. First, the reason in Bogoshi and other cases given for distinguishing between the media and other citizens in respect of their liability for defamation lies in the power that the media have to cause harm by publication of defamatory material. It is this potential harm to which Warren and Brandeis refer in the quotation included earlier in this judgment. Modern electronic, print and broadcast media are immensely, and indeed, increasingly powerful. Publications often reach hundreds of thousands of readers, viewers and listeners. It is accordingly appropriate, given the scale of damage to an individual that can be caused by such widespread publication, to confer special obligations upon the media in respect of publication. In so doing, we recognize that the media are not only bearers of rights under our constitutional order, but also bearers of obligations. [] The nature of obligations imposed however is merely a requirement that the media establish that the publication is reasonable in the circumstances or that it is not negligent. Such obligations require the media to consider the constitutional rights at play and be persuaded that publication is nevertheless appropriate. The effect on the media, therefore, is to require them to act in an objectively appropriate fashion. In determining whether they have so acted, a court will bear in mind the particular constraints under which the media operate and will not impose a counsel of perfection in circumstances where it would not be realistic. The effect of such a rule would be to require editors and journalists to act with due care and respect for the right to privacy, prior to publishing material that infringes that right. It will require them to ask the question: is the publication of this information, although it is private information, nevertheless reasonable in the circumstances? [] Such an obligation will provide some real protection for important constitutional rights. Accordingly, I conclude that it is appropriate to require the media when publishing private facts without consent to establish either that the publication

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is reasonable in the circumstances, in which case they will rebut wrongfulness, or that they have not acted negligently in the circumstances in which instance they will need to rebut the requirement of intention. [] This conclusion is not the end of the matter for the present case. The next question that arises is whether the respondents in this case constitute “the media.” There are important reasons for differentiating between ordinary citizens not engaged as part of their business or profession in the dissemination of information and those citizens and institutions that are so engaged. It is appropriate to impose additional obligations on those who disseminate information for professional and commercial purposes while not imposing such obligations on those who do not. [] Professional and commercial purveyors of information are well placed to ensure that appropriate systems prevent the unreasonable disclosure of private facts and the negligent disclosure of those facts. This is not the case for ordinary citizens. Moreover, generally, disclosure by ordinary citizens will not be as widespread as disclosure by those involved in the professional or commercial dissemination of information. This is not to say that at times targeted disclosure of information, albeit to a small community, may nevertheless be very harmful. Once again, this is an issue that does not arise on the facts of this case and does not require further consideration here. [] The respondents here were not acting as ordinary private citizens. They were engaged in the publication of a book. The first respondent is an author and a journalist who is fully aware of the ordinary constraints upon the publication of private information. The third respondent is a book publisher, engaged therefore in disseminating information for commercial reasons. It seems to me, to be appropriate to include both the first and third respondents within the concept of the media for the purposes of the expanded principles for liability under the actio injuriarium described above. But not the second respondent, who is neither an author nor publisher. As will become clear, nothing ultimately hangs on the conclusion that the first and third respondents do fall within “the media” while the second respondent does not. I should emphasize that there are sound reasons why publication of private information through the process of written or verbal comment in a private setting should not be subjected to the same test for liability.

Did the Respondents Act Negligently? [] The question that arises is whether in republishing the names of the applicants, the first and third respondents acted negligently. I cannot find that they did. To hold that in the circumstances as outlined above they were under a further duty to contact either the University or the applicants to ensure that they had in fact consented to publication of their names would impose a significant burden on freedom of expression. The result of such a finding would be that where personal private facts have been published already by a reputable organization, another organization may not rely on that publication as having been done lawfully and without infringement of privacy. Not one of the codes of conduct placed before the Court by Pro-

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fessor Harber suggested that this should be the case. The emphasis in the codes is on the need for journalists at first instance either to obtain an informed consent or, alternatively, not to disclose the identity of a person unless there is a clear public interest in so doing. They do not answer the question of what the responsibility of a journalist is when a reputable source has already published the information. In this case, the first respondent assumed that the reputable source had applied the accepted principle that the names should not be disclosed without proper consent. She thus assumed that there had been consent. [] To hold the first and third respondents liable, one would either have to find that wherever a reputable source has published identities, secondary publication may not take place without the existence of informed consent having been independently verified, so that in each case, the subsequent publisher would have to re-ascertain the facts. In my view, this would result in unacceptable burdens being imposed on the dissemination of information and have a significantly deleterious effect on freedom of speech. [] Journalists must be entitled to publish information provided to them by reliable sources without rechecking in each case whether the publication was lawful, unless there is some material basis upon which to conclude that there is a risk that the original publication was not lawful. If there is a reasonable basis for suspecting that the publication of private information was without consent, a journalist will, of course, bear an obligation to check. If there are no grounds for such suspicion, it cannot be said that a journalist acts negligently in not checking. [] Of course, if it turns out subsequently that the original publication was without consent and the disclosure was made wrongfully, the source of the harm will be the original publisher. The cause of action in such circumstances therefore lies against the original publisher of the private information, not all subsequent publishers. Those who have been harmed by the publication must therefore have a remedy—damages against the first publisher. In this case, neither Professor Strauss nor the University were cited as respondents in this case and nothing further can be said on that score. [] In my view, I conclude that, even on the assumption that it is appropriate that the actio injuriarum be developed to found liability against defendants such as the first and third respondents in circumstances where they publish private facts negligently, the applicants have not established that the respondents should be liable for the disclosure of their names and HIV status in the book. [] For the reasons given above, I would dismiss both the appeal of the first to third applicants and the third respondent. I would make no order as to costs. JUSTICE SACHS [] In many industrialized states privacy law has been advancing by leaps and bounds. The rich and famous seek legally to restrain the voracious mass media that swallow up and regurgitate trivial and hurtful information about their private lives.

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In our country privacy law has been invoked in quite a different context. It is to provide balm for the traumatized dignity of people living in the harshest of social conditions and afflicted with the most serious of ailments. It is in this human rights context that the competing interests at stake in the present matter must be dealt with. [] In a fittingly accessible manner, Justice Madala has indicated how in the particular circumstances of this case competing needs with respect to human dignity, on the one hand, and freedom of expression, on the other, should be reconciled. I support his reasons and conclusions, and wish to add the following observations. [] In Bogoshi [National Media Ltd and Others v. Bogoshi  () SA  (SCA)] the SCA developed in a way that was sensitive to contemporary concerns and realities, a well-weighted means of balancing respect for individual personality rights with concern for freedom of the press. Though the case related to the law of defamation, the principles developed in it are eminently transportable to the law of privacy. The SCA ensured the continued protection of individual rights of reputation by reaffirming the traditional common law principle that once the injurious statement was proved, intent to injure would be presumed, and a defendant would escape liability only by establishing truth and public benefit. But to preempt the undue chilling effect of huge potential claims for damages following on honest error, it added that even if aspects of a publication turned out to be untrue, a showing that the media concerned had taken reasonable steps to ensure the veracity of the relevant information would establish a good defense to the unlawfulness of the publication. What mattered was the reasonableness of the publication in the circumstances. [] The Bogoshi approach has two principal virtues. Firstly, it seeks to harmonize as much as possible respect for human dignity and freedom of the press, rather than to rank them in terms of precedence. The emphasis is placed on context, balance, and proportionality, and not on formal and arid classifications accompanied by mantras that favor either human dignity or press freedom. The more private the matter, the greater the call for caution on the part of the media, while conversely, the more profound the public interest, the more heavily will it weigh in the scales. Secondly, by stressing the need for the media to take reasonable steps to verify the information to be published, it introduces objective standards that can be determined in advance by the profession and then evaluated on a case-by-case basis by the courts. The result is the creation of clearly identifiable and operational norms, and the fostering in the media of a culture of care and responsibility. [] I feel that both of these elements are relevant as to how the tension between privacy rights and press freedom should be handled in the present matter. There is nothing to suggest that Ms. Smith, an experienced journalist, was unaware of the norms of her profession, and there is no reason to doubt the genuineness of her belief (in fact erroneous) that the applicants had indeed placed their medical status in the public domain. Nevertheless, given the extreme sensitivity of the information involved, she should have left no stone unturned in her pursuit of verification. Of

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even greater importance, if the slightest doubt existed, there was no need to publish the actual names of the applicants. [] There might be some cases where the need for verisimilitude, a sense of actuality, may be overwhelming. Indeed, in the case of film stars, models, and titled personalities, it is precisely their celebrity that establishes their newsworthiness. This case is not one of those. We are not dealing with famous people who simultaneously crave and decry extreme public attention. We are concerned with people whose lives are dominated by anxiety and who are only slowly beginning to break through intense barriers of community prejudice. Hardly a day goes by without reading in one publication or another, the name of someone living with HIV, where an asterisk is attached to indicate that the name is not real. [] In the present matter the publishing of the actual names of the applicants could have added only minimally to the vibrancy and texture of the story, if at all. At the same time it was devastating to the applicants. When the expressive interests are balanced against the privacy interests, the scales come down with a clang on the side of privacy. In the result, the steps taken by Ms. Smith, Ms. de Lille and the publishers to avoid unwitting damage through unauthorized disclosure of private medical facts did not meet the standard of reasonableness. [] Ms. Smith and Ms. de Lille both have an honorable history of raising public awareness of the need to deal sympathetically and efficaciously with the pandemic. The fact that persons with their record are being called to account for failure to ensure that highly sensitive private medical facts about identified individuals were not inappropriately revealed, serves to underline the need to hold firmly to stringent standards of respect for privacy in this area. These are standards that the profession has set for itself, and that the law demands of all. [] From a legal point of view, then, the moral of the story is that unless overwhelming public interest points the other way, publishers should refrain from circulating information identifying the HIV status of named individuals, unless they have the clearest possible proof of consent to publication having been given, or that the information is in the broad public domain. [] At its heart this case was never about money. It was about defining appropriate journalistic and publishing standards in a murky and undeveloped area of our law. In this context it is a matter of regret that parties that shared a deep concern about the need to develop a humane and sympathetic approach to people living with HIV, found themselves increasingly at loggerheads. The trial was acrimonious and argument in our court at times became strident. Yet the law has been clarified in ways that hopefully will be helpful to all concerned. Forensic closure has finally been achieved. It is to be hoped that in an appropriate spirit of healing, the offer of a private apology made at an earlier stage by Ms. Smith, Ms. de Lille and the publishers, will now be generously renewed by them, and generously accepted by the applicants.

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Masiya

Masiya v. Director of Public Prosecutions Pretoria (The State) and Another  () SA  (CC);  () BCLR  (CC) CASE SUMMARY

Facts Mr. Masiya was charged in the Regional Court with anally raping a nine-year-old girl. At the time, the common-law definition of rape was limited to vaginal penetration by a penis. Masiya was therefore charged with indecent assault. However, the presiding magistrate called for argument on whether the Constitution required the definition to be extended to include anal penetration.

Legal History After hearing argument, the magistrate extended the definition of rape to include anal penetration of both women and men. He also held that the new definition should apply to Masiya, even though he committed the crime before the definition was changed. The matter was referred to the High Court for sentencing. The High Court essentially confirmed the Magistrates’ Court decision. It held that the common-law definition of rape directly violated the constitutional right to equality. He altered the definition to include anal penetration of women and men and invalidated various statutory provisions that relied on the old definition. He also confirmed that Mr. Masiya could be convicted of rape. The matter was referred to the Constitutional Court to confirm the statutory declarations of invalidity.

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Decision of the Constitutional Court Justice Nkabinde wrote for the majority of the court overturning the High Court decision. First, she held that the existing definition did not directly violate any rights because it criminalized conduct that infringed the constitution—its only flaw was that it was under-inclusive. However, the majority concluded that the definition was inconsistent with the spirit, purport, and objects of the Bill of Rights and had to be developed in terms of section () to include anal penetration of women. Unlike the High Court and the Magistrates’ Court, the Constitutional Court explicitly did not extend the definition to cover anal penetration of men. Justice Nkabinde reasoned that the court should limit itself to the facts of the case and as the survivor in this case was female, the question of anal penetration of men would have to wait for a case the facts to arise. Second, Nkabinde J concluded that the principle of legality entrenched in section ()(l) of the Constitution meant that Mr. Masiya could not be convicted on the basis of a definition that had changed after he committed the crime. Chief Justice Langa (joined by Justice Sachs) dissented on the question of anal penetration of men. In his view, there was no principled difference between penetration of a female or male anus and they should therefore be treated identically. Order Mr. Masiya’s conviction on the charge of rape was replaced with a conviction for indecent assault and remitted to the High Court for sentencing. The court did not confirm the orders of statutory invalidity as they were only relevant if the definition had been extended to include men. Comment There are two aspects of the majority’s decision that are difficult to defend. First, its finding that the traditional definition of rape did not infringe any rights is all but unexplained. The only reason it provides is that the definition’s only fault was that it was under-inclusive: “The current definition of rape criminalizes unacceptable social conduct that is in violation of constitutional rights. It ensures that the constitutional right to be free from all forms of violence, whether public or private, as well as the right to dignity and equality are protected. Invalidating the definition because it is under-inclusive is to throw the baby out with the bath water” (paragraph ). The logical conclusion of that argument is that a law which criminalizes rape of white women but not black women is constitutional because its only flaw is underinclusivity. The reasoning evinces a failure to appreciate the impact on survivors of anal rape whose assailants are sentenced merely to indecent assault, avoiding both the stigma and the harsher sentences that would accompany the crime if their victim had been female. Second, as the chief justice notes (paragraphs –), the decision to limit the extension to anal penetration of women conflicts with the majority’s own conclusions

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Legal Cases (–)

that anal rape is as “degrading, humiliating, and traumatic” as vaginal rape and that rape is about power, not sex. There is a sense that underlying the majority’s technical objections that male rape did not arise on the facts is a conservative feminism that accepts that, despite the equal trauma anal rape inflicts on men and women, there might be a good reason to limit the label “rape” to the penetration of women. Whatever one may think of that strand of feminism, it does not fit easily with the court’s avowed commitment to a notion of inviolable, individual dignity. JUSTICE NKABINDE [] This case is about the constitutional validity of the common law definition of rape to the extent that it excludes anal penetration and is gender-specific. The case concerns the manner in which the definition of rape has been understood, developed and interpreted in South African law. The definition has been debated by the courts, legislature and civil society over the years. Essentially, this matter comes before this court on two bases. First, confirmation proceedings in terms of section ()(a) of the Constitution. Second, an application for leave to appeal against the whole of the judgment and order of the Pretoria High Court in which that court confirmed the applicant’s conviction by the Regional Court. [] The applicant, Mr. Masiya, is an awaiting-sentence prisoner. The first respondent is the director of public prosecutions (DPP). The second respondent is the minister of justice and constitutional development (Minister). She has been joined as a party to the proceedings by reason of her being the national executive authority responsible for the administration of justice. The first and second amici curiae, the Centre for Applied Legal Studies and Tshwaranang Legal Advocacy Centre (amici), respectively, have been admitted to assist the court. [] Mr. Masiya, forty-four years of age, was initially brought before the District Court at Sabie on a charge of rape. The state alleged that on or about  March  at or near Sabie he wrongfully and unlawfully had sexual intercourse with a nine-year old girl (the complainant), without her consent. The case was transferred to the Regional Court at Graskop where he was tried on that charge. At the trial Mr. Masiya, represented by an attorney from the Nelspruit Justice Centre, pleaded not guilty. He elected to remain silent and did not advance a statement explaining his plea. The evidence established that the complainant was penetrated anally. [] Mr. Masiya neither gave evidence nor called witnesses to testify. The state applied that he be convicted of indecent assault, a competent verdict on a charge of rape. The defense contended that if Mr. Masiya were to be found guilty he should be convicted of indecent assault. [] The Regional Court, of its own accord, considered whether the common law needed to be developed. The defense contended that Magistrates’ Courts do not have the power to pronounce on the constitutionality of a rule of the common law. The Regional Court remarked that the court, “albeit a creature of statute, has juris-

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diction in terms of the Constitution to judge the constitutionality of a legal principle under common law and, if necessary to develop the principle so that it conforms to the constitutional values enshrined in our Constitution.” The court remarked that there is nothing in the Constitution or other legislation that precludes it from enquiring into or ruling on the constitutionality of a rule of the common law and developing it where necessary. It pointed out that sections () and () of the Constitution speak, respectively, of “a court” and “every court, tribunal or forum.” [] The Regional Court remarked further that: [I]n terms of the existing common law definitions of crime, the non-consensual anal penetration of a girl (or a boy) amounts only to the (lesser) common law crime of indecent assault, and not rape, because only non-consensual vaginal sexual intercourse is regarded as rape. One’s initial feelings of righteousness would however immediately rebel against such thought. Why must the unconsensual sexual penetration of a girl (or a boy) per anum be regarded as less injurious, less humiliating and less serious than the unconsensual sexual penetration of a girl per vaginam? The distinction appears on face value to be irrational and totally senseless, because the anal orifice is no less private, no less subject to injury and abuse, and its sexual penetration no less humiliating than the vaginal orifice. It therefore appears that the common law definition of rape is not only archaic, but irrational and amounts to arbitrary discrimination with reference to which kind of sexual penetration is to be regarded as the most serious, and then only in respect of women. (Footnote omitted.)

[] The Regional Court held that the definition should be developed to promote constitutional objectives, and that courts may develop the current definition of rape given Parliament’s lengthy delay in promulgating the Criminal Law (Sexual Offences) Amendment Bill of  (the  Bill) so as to afford society the full protection of the Constitution. The court held that although the development would impact on Mr. Masiya’s fair trial rights in terms of section ()(n) of the Constitution those fair trial rights could be limited on the basis that: (a) nonconsensual anal penetration already constitutes an offence, namely indecent assault, and is manifestly immoral and unjust; (b) retroactive punishment could have been foreseen by Mr. Masiya; (c) such development will be consistent with foreign law; (d) the rights of society are weightier than those of Mr. Masiya not to be convicted of and sentenced to a more serious offence; (e) less restrictive means to achieve the purpose sought to be achieved by the extension of the definition of rape would have been for Parliament to address the lacuna with an appropriate law, but Parliament has dragged its feet; and

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Legal Cases (–)

(f ) the developed definition would become law of general application if endorsed by the High Court upon referral. [] The Regional Court thus extended the definition of rape to include “acts of non-consensual sexual penetration of the male sexual organ into the vagina or anus of another person.” It expressly refrained from ruling on whether nonconsensual oral penetration should constitute the crime of rape as that was not an issue in the proceedings. Having convicted Mr. Masiya of rape in terms of the extended definition, the Regional Court stopped the proceedings and committed him to the High Court in terms of section  of the act for the purpose of sentence. [] Regarding the need to extend the definition of rape, the High Court found that indecent assault attracts more lenient sentences than rape. This distinction in sentencing, the court said, results in “inadequate protection and discriminatory sentencing.” On the question of legality the court held that the principles are not applicable and need not be considered as an obstacle to the extension of the definition of rape since no new crime is created. As a prelude to the order set out in paragraph  above, the High Court said: [T]he unlawful deed the accused committed is simply given another name. . . . The accused knew very well that he was acting unlawfully. It has never been a requirement that an accused should know, at the time of the commission of an unlawful deed, whether it is a common law or statutory offence, or what the legal/official terminology is in naming it.

The court then referred the declaration of invalidity set out in paragraph  of the order to this court for confirmation. The imposition of sentence was postponed pending the determination of the matter. [] The issues raised in this matter involve the protection of the rights to dignity, equality, freedom and security of the person, and children’s rights as well as Mr. Masiya’s fair trial rights. As will appear later in this judgment, the case raises constitutional issues of considerable public importance. [. . .]

Constitutionality of the Definition [] It is useful to examine the historical perspective of the criminalisation of rape so as to determine its developmental direction. The word rape originates from the Latin words raptus, rapio, and rapina—respectively meaning “tearing off, rending away, carrying off, abduction, rape, plundering”; “to seize, snatch, tear way, to plunder a place, to hurry along a person or thing”; and “robbery, pillage, booty plunder.” As such, raptus in Roman law was generally understood as an offence consisting of the violent “carrying away” of women and is better translated as “abduction.” The crime of rape in Roman law was based on a prohibition of unchaste behavior. Pun-

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ishment of nonconsensual sexual intercourse protected the interests of the society in penalizing unchaste behavior, rather than the interests of the survivor. [] In this period, patriarchal societies criminalized rape to protect property rights of men over women. The patriarchal structure of families subjected women entirely to the guardianship of their husbands and gave men a civil right not only over their spouses’ property, but also over their persons. Roman-Dutch law placed force at the centre of the definition with the concomitant requirement of “hue and cry” to indicate a woman’s lack of consent. Submission to intercourse through fear, duress, fraud or deceit as well as intercourse with an unconscious or mentally impaired woman did not constitute rape but a lesser offence of stuprum. [] In English law the focus originally was on the use of force to overcome a woman’s resistance. By the mid-eighteenth century force was no longer required for the conduct to constitute rape and the scope of the definition was increased to include cases of fraud or deception. This latter definition was adopted in South Africa. [] In indigenous law rape was restrictively defined. Generally, the law stresses the responsibility of a group rather than of the individual. For instance in Pedi law, in rape cases women must be assisted by their fathers or husbands and compensation accrues not to the survivor but to her household under the guardianship of the husband or the father. The law excluded cases of sodomy and marital rape. In some communities intercourse with a prepubescent girl-child was also excluded from the definition. These acts often merely constituted assault or “unnatural sexuality.” [] It is evident from the history of the law of rape that the object of the criminalization of rape was to protect the economic interests of the father, husband or guardian of the female survivor of rape, to perpetuate stereotypes, male dominance, and power and to refer to females as objects. [] With the advent of our constitutional dispensation based on democratic values of human dignity, equality and freedom, the social foundation of these rules has disappeared. Although the great majority of females, for the most part in rural South Africa, remain trapped in cultural patterns of sex-based hierarchy, there is and has been a gradual movement towards recognition of a female as the survivor of rape rather than other antiquated interests or societal morals being at the core of the definition. The focus is on the breach of “a more specific right such as the right to bodily integrity” and security of the person and the right to be protected from degradation and abuse. The crime of rape should therefore be seen in that context.

The Current Law of Rape [] In our law, rape is understood as the nonconsensual penetration of a vagina by a penis. The generally accepted definition of rape, according to Justice Heath in Ncanywa, is “the (a) intentional (b) unlawful (c) sexual intercourse with a woman (d) without her consent.” Justice Heath remarked that “[t]he element of unlawfulness is based essentially on the absence of consent.” The four elements in the definition

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Legal Cases (–)

of rape were echoed by Justice Van der Merwe in S v. Zuma [ () BCLR  (W)] in which the absence of mens rea was relevant. Burchell and Milton state that the definition of rape is the “the intentional unlawful sexual intercourse with a woman without her consent.” Snyman prefers this definition: “Rape consists in a male having unlawful and intentional sexual intercourse with a female without her consent.” Both share an understanding of “sexual intercourse” as the “penetration of the woman’s vagina by the male penis.” [] The definitions presuppose non-consensual sexual penetration of a vagina by a penis. The definition of rape is not unconstitutional in so far as it criminalizes conduct that is clearly morally and socially unacceptable. In this regard it is different from the common law crime of sodomy, which was declared unconstitutional by this court because it subjected people to criminal penalties for conduct which could not constitute a crime in our constitutional order. There is nothing in the current definition of rape to suggest that it is fatally flawed in a similar manner. The current definition of rape criminalizes unacceptable social conduct that is in violation of constitutional rights. It ensures that the constitutional right to be free from all forms of violence, whether public or private, as well as the right to dignity, and equality are protected. Invalidating the definition because it is under-inclusive is to throw the baby out with the bath water. What is required then is for the definition to be extended instead of being eliminated so as to promote the spirit, purport and objects of the Bill of Rights. [] Moreover the current law of rape has been affected by statutory developments in recent decades. In  the rule that a husband could not rape his wife, the socalled marital rape exemption, was abolished; and the presumption that a boy is incapable of committing rape was abolished in . There have also been changes to the law of evidence relating to sexual offences. These changes reflect our society’s changing understanding of rape. Due in no small part of the work of women’s rights activists, there is wider acceptance that rape is criminal because it affects the dignity and personal integrity of women. The evolution of our understanding of rape has gone hand in hand with women’s agitation for the recognition of their legal personhood and right to equal protection. To this end, women in South Africa and the rest of the world have mobilized against the patriarchal assumption that underlay the traditional definition of rape. They have focused attention on the unique violence visited upon women. Much of this activism focused on creating support systems for women, such as rape crisis centers and abuse shelters; and also on the process whereby rape is investigated and prosecuted. It is now widely accepted that sexual violence and rape not only offends the privacy and dignity of women but also reflects the unequal power relations between men and women in our society. [] The facts of the present case deal with penetration of the anus of a young girl. The issue before us then is whether the current definition of rape needs to be developed to include anal penetration within its scope. The facts do not require us to consider whether or not the definition should be extended to include nonconsen-

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sual penetration of the male anus by a penis. Strong arguments were presented to us to the effect that gender-specificity in relation to rape reflected patriarchal stereotypes inconsistent with the Constitution. This court has stressed that it is not desirable that a case should be dealt with on the basis of what the facts might be rather than what they are. [] It can hardly be said that nonconsensual anal penetration of males is less degrading, humiliating and traumatic and, to borrow the phrase by Brownmiller, “a lesser violation of the personal private inner space, a lesser injury to mind, spirit and sense of self.” That this is so does not mean that it is unconstitutional to have a definition of rape that is gender-specific. Focusing on anal penetration of females should not be seen as being disrespectful to male bodily integrity or insensitive to the trauma suffered by male victims of anal violation, especially boys of the age of the complainant in this case. Extending the definition to include nonconsensual penetration of the anus of the male by a penis may need to be done in a case where the facts require such a development. It needs to be said that it is not constitutionally impermissible to develop the common law of rape in this incremental way. This court has stated that in a constitutional democracy such as ours the legislature and not the courts has the major responsibility for law reform and the delicate balance between courts’ functions and powers on one hand and those of the legislature on the other should be recognized and respected. The terrains of the courts and legislature, President Chaskalson said in Ferreira v. Levin NO and Others; Vryenhoek and Others v. Powell NO and Others [ () SA  (CC);  () BCLR  (CC)], should be kept separate even though they may overlap. The issue of male rape is therefore a matter that will no doubt be dealt with in an appropriate fashion either by the legislature or the courts when the circumstances make it appropriate and necessary to do so. [] The constitutional role of the courts in the development of the common law must be distinguished from their other role in considering whether legislative provisions are consistent with the Constitution. The latter role is one of checks and balances on the power provided for in our Constitution, whereby courts are empowered to ensure that legislative provisions are constitutionally compliant. The development of the common law on the other hand is a power that has always vested in our courts. It is exercised in an incremental fashion as the facts of each case require. This incremental manner has not changed, but the Constitution in section () provides a paramount substantive consideration relevant to determining whether the common law requires development in any particular case. This does not detract from the constitutional recognition, as indicated above, that it is the legislature that has the major responsibility for law reform. Courts must be astute to avoid the appropriation of the legislature’s role in law reform when developing the common law. The greater power given to the courts to test legislation against the Constitution should not encourage them to adopt a method of common-law development, which is closer to codification than incremental, fact-driven development.

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Legal Cases (–)

[] Accordingly, I conclude that the definition is not inconsistent with the Constitution but needs to be adapted appropriately. The question remains whether the facts of this case require that the definition be developed so as to include anal penetration of a female.

Development of the Common Law [] The question of development of the common law was comprehensively discussed by Justices Ackermann and Goldstone in Carmichele in which the duty of courts that is derived from sections , (), (), and  of the Constitution was stressed. The court sounded a reminder to judges when developing the common law to “be mindful of the fact that the major engine for law reform should be the Legislature and not the Judiciary.” The court repeated with approval the remarks of Justice Iacobucci in R v. Salituro [()  CRR (d) ; []  SCR ]: Judges can and should adapt the common law to reflect the changing social, moral and economic fabric of the country. Judges should not be quick to perpetuate rules whose social foundation has long since disappeared. Nonetheless there are significant constraints on the power of the Judiciary to change the law. . . . In a constitutional democracy such as ours it is the legislature and not the courts which has the major responsibility for law reform. . . . The judiciary should confine itself to those incremental changes which are necessary to keep the common law in step with the dynamic and evolving fabric of our society.

The court, however, said that “courts must remain vigilant and should not hesitate to ensure that the common law is developed to reflect the spirit, purport and objects of the Bill of Rights . . . whether or not the parties in any particular case request the court to develop the common law under section ().” Where there is deviation from the spirit, purport and objects of the Bill of Rights, courts are obliged to develop the common law by removing the deviation. [] The High Court emphasized the alleged inequality and discrimination engendered by the definition and the resultant inadequate and discriminatory sentences. In oral argument counsel for Mr. Masiya argued against the development only if the developed definition of rape were to apply to him. The DPP and amici substantially supported the judgment of the High Court and argued that the definition perpetuates gender inequality and promotes discrimination. The DPP further contended that the definition perpetuates leniency in sentencing. [] The minister opposed the development. She relied on the decision of this court in S v. Mhlungu and Others [ () SA  (CC);  () BCLR (CC) ;  () SACR (CC)] that the Regional Court should have decided the guilt or otherwise of Mr. Masiya on the facts and without considering the constitutional issue of developing the definition of rape. That might well have been the proper way

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to deal with the matter. However, the failure to do so is, in the circumstances of this case, of no consequence. When the matter was referred to the High Court in terms of section  of the act that court had to determine whether the conviction was in accordance with justice before considering an appropriate sentence. The court called for further evidence and confirmed the conviction. Strictly speaking, it is that finding, among others, and not the finding by the Regional Court, against which leave to appeal is sought. [] The amici, likewise, contended that apart from the gendered nature of the origins of the definition, the elements of the crime of rape perpetuate gender stereotypes and discrimination because they are suggestive of the fact that only males can commit the crime and only females can be raped. They argued that once it is recognized that the primary motive for rape is not sexual lust but the desire to gain power or control over another person, with sex being the violent means by which the power is exercised, the rationale for maintaining the gender distinction falls away. That might be so. However, for the reasons given above, it would not be appropriate for this court to engage with these questions. In this respect there are three important considerations that favor restraint on the part of this court. The first is that what is at issue is extending the definition of crime, something a court should do only in exceptional circumstances. The second is that the development would entail statutory amendments and necessitate law reform. The third is that, historically, rape has been and continues to be a crime of which females are its systematic target. It is the most reprehensible form of sexual assault constituting as it does a humiliating, degrading, and brutal invasion of the dignity and the person of the survivor. It is not simply an act of sexual gratification, but one of physical domination. It is an extreme and flagrant form of manifesting male supremacy over females. [] The Declaration on the Elimination of Violence against Women specifically enjoins member states to pursue policies to eliminate violence against women. Nonconsensual anal penetration of women and young girls such as the complainant in this case constitutes a form of violence against them equal in intensity and impact to that of nonconsensual vaginal penetration. The object of the criminalization of this act is to protect the dignity, sexual autonomy, and privacy of women and young girls as being generally the most vulnerable group in line with the values enshrined in the Bill of Rights—a cornerstone of our democracy. [] The extended definition would protect the dignity of survivors, especially young girls who may not be able to differentiate between the different types of penetration. The evidence of Dr. Grabe, an expert witness who testified in the High Court, that the complainant referred to a “hole” thinking that the anus is the only place she experiences as a “hole,” clearly illustrates this point. Women and girls would be afforded increased protection by the extended definition. One of the social contexts of rape is the alarming high incidences of HIV-infection. Anal penetration also results in the spread of HIV.

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Legal Cases (–)

[] The consequences caused by nonconsensual anal penetration might be different to those caused by nonconsensual penetration of the vagina but the trauma associated with the former is just as humiliating, degrading and physically hurtful as that associated with the latter. The inclusion of penetration of the anus of a female by a penis in the definition will increase the extent to which the traditionally vulnerable and disadvantaged group will be protected by and benefit from the law. Adopting this approach would therefore harmonize the common law with the spirit, purport, and objects of the Bill of Rights. [] The prevalence of sexual violence in our society is deeply troubling. The extension of the definition of rape to include anal penetration will not only yield advantages to the survivor but will also express the abhorrence with which our society regards these pervasive but outrageous acts. This court, while not unmindful of the fact that the  Bill is before Parliament, cannot delay, defer or refuse to deal with an extension of the definition when the facts before it demand such an extension and when it is clearly in the public interest to do so. Any further delay in or suspension of the extension of the current definition will constitute an injustice upon survivors of nonconsensual anal penetration such as the nine-year-old complainant in this case. That result cannot and should not be countenanced. The fact that the  Bill is before Parliament, as the minister contended, should not thwart the extension of the current definition of rape in these exceptional circumstances and when the interests of justice so demand. [] I conclude therefore that the extension of the common law definition of rape to include nonconsensual anal penetration of females will be in the interests of justice and will have, as its aim, the proper realization by the public of the principles, ideals, and values underlying the Constitution. Accepting that the element of unlawfulness is based essentially on the absence of consent, the definition should therefore be extended to include intentional penetration of the female anus by a penis without consent. [] The question of extending the definition so as to include acts of nonconsensual anal penetration of a penis into the anus of a male person is left open for future consideration where the facts might call for its resolution. The question then remains whether the extended definition should apply to Mr. Masiya.

Retrospective Application of the Definition [] Essentially, the question is whether the conviction of rape is in accordance with justice even though the definition of rape did not include non-consensual anal penetration at the time the crime was committed. The High Court held that the principle of legality has no application in this case since no new crime is created. It held that Mr. Masiya knew he was acting unlawfully when he assaulted the complainant and that it has never been a requirement that an accused person should know, at the time of the commission of the crime, whether it is a common-law or statutory crime or what its legal definition is. Mr. Masiya contended that the extended definition

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should not apply to him as the application would constitute a violation of his rights in terms of section ()(l) of the Constitution. [] The ordinary principle of common law is that when a rule is developed it applies to all cases, not only those which arise after the judgment in which the law has been developed has been handed down. As Acting Justice Kentridge observed in Du Plessis: In our courts a judgment that brings about a radical alteration in the common law as previously understood proceeds upon the legal fiction that the new rule has not been made by the court but merely “found,” as if it had always been inherent in the law. Nor do our courts distinguish between cases that have arisen before, and those that arise after, the new rule has been announced. For this reason it is sometimes said that “judge-made law” is retrospective in its operation. In all this our courts have followed the practice of the English courts. . . . [I]t may nonetheless be said that there is no rule of positive law which would forbid our Supreme Court from departing from that practice.

[] Indeed, as Acting Justice Kentridge pointed out, members of the Judicial Committee of the House of Lords in the United Kingdom have accepted that it may be appropriate when the interests of justice require for a new rule of law developed by the courts to operate prospectively only. [] Under our constitutional order, of course, the remedy of prospective overruling of a law that is inconsistent with the Constitution is permitted by the terms of section ()(b) of the Constitution. In this case, we are not dealing with the court’s remedial powers under section  as no order of constitutional invalidity has been made. The question is whether when developing the common law it is possible to do so prospectively only. In my view, it is. In this case, if the definition of rape were to be developed retrospectively it would offend the constitutional principle of legality as I have demonstrated above. On the other hand, if we were to accept that the principle of legality is a bar to the development of the common law, the courts could never develop the common law of crimes at all. In my view, such a conclusion would undermine the principles of our Constitution which require the courts to ensure that the common law is infused with the spirit, purport and objects of the Constitution. The impasse can be avoided by accepting that in these circumstances it is appropriate to develop the law prospectively only. I accept that it is only in rare cases that it will be appropriate to develop the common law with prospective effect only, as the Law Lords suggested in the Brockhill Prison decision. However, in my view this is one of those cases where fairness to an accused requires that the development not apply to him, but only to those cases which arise after judgment in this matter has been handed down. [] One of the central tenets underlying the common-law understanding of legality is that of foreseeability—that the rules of criminal law are clear and precise

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Legal Cases (–)

so that an individual may easily behave in a manner that avoids committing crimes. In this regard, the amici referred to the decision of the European Court of Human Rights in SW v. United Kingdom where the court held: However clearly drafted a legal provision may be, in any system of law, including criminal law, there is an inevitable element of judicial interpretation. There will always be a need for elucidation of doubtful points and for adaptation to changing circumstances . . . provided that the resultant development is consistent with the essence of the offence and could reasonably be foreseen.

The court used the element of foreseeability and Article  of the Convention, which is intended to exclude the abuse of any specific rights safeguarded by the Convention for any of the purposes set out in the article, to find that the accused’s conviction of the rape of his wife was not an infringement of the principle of legality as contained in Article () of the Convention. The court, in coming to their decision, emphasized the distinction between reinterpretation and clarification of the common law and the creation of a new common-law offence. It appears that the court found the surprise element entailed by the retroactive application of the common law to be an unacceptable feature in this case. [] Section ()(l) of the Constitution confirms a long-standing principle of the common law that provides that accused persons may not be convicted of offences where the conduct for which they are charged did not constitute an offence at the time it was committed. Although at first blush this provision might not seem to be implicated by finding Mr. Masiya guilty of rape in this case, because the act he committed did constitute an offence both under national law and international law at the time he committed it, in my view, the jurisprudence of this court would suggest otherwise. [] In the first case in which the court addressed section ()(l) and its counterpart in respect of sentence, section ()(n), Veldman v. Director of Public Prosecutions [ () SACR  (CC)], the court held that the principle of legality is central to the rule of law under our Constitution. That case concerned the question of whether, where the sentencing jurisdiction of a court had been increased after an accused had pleaded, the accused could be sentenced in terms of the increased jurisdiction. The court held it could not. The court observed that once an accused has pleaded, the constitutionally enshrined principle of legality requires that the sentencing jurisdiction of a court cannot be varied to the detriment of the accused, even where it was clear that the increased sentence was a permissible sentence for the charge involved. The court held that: To retrospectively apply a new law, such as section ()(a), during the course of the trial, and thereby to expose an accused person to a more severe

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sentence, undermines the rule of law and violates an accused person’s right to a fair trial under section () of the Constitution.

[] The strong view of legality adopted in Veldman suggests that it would be unfair to convict Mr. Masiya of an offence in circumstances where the conduct in question did not constitute the offence at the time of the commission. I conclude so despite the fact that his conduct is a crime that evokes exceptionally strong emotions from many quarters of society. However, a development that is necessary to clarify the law should not be to the detriment of the accused person concerned unless he was aware of the nature of the criminality of his act. In this case, it can hardly be said that Mr. Masiya was indeed aware, foresaw or ought reasonably to have foreseen that his act might constitute rape as the magistrate appears to suggest. The parameters of the trial were known to all parties before the court and the trial was prosecuted, pleaded, and defended on those bases. It follows therefore that he cannot and should not bear adverse consequences of the ambiguity created by the law as at the time of conviction. [] The evidence adduced at the trial established that Mr. Masiya was guilty of indecent assault. To convict him of rape would be in violation of his right as envisaged in section ()(l) of the Constitution. I conclude therefore that the developed definition should not apply to Mr. Masiya. [] The next question that calls for consideration is whether the declaration of invalidity referred to this court in terms of section ()(a) should be confirmed.

Should the Declaration of Invalidity Be Confirmed? [] I have indicated that the key to the developmental direction of the common law definition of the crime of rape lies in the facts of this case—the alleged rape of a nine-year-old girl. In deciding whether to develop the definition the court was obliged to confine itself to the facts of the case. It follows therefore that the court cannot confirm the declaration of invalidity to the extent that it is based on conclusions relating to the gender-neutral nature of the crime, an issue that does not arise on the facts of this case. [] The relevant declaration of invalidity concerns statutory provisions in the act and the CPA as well as their respective schedules to the extent that they are gender-specific. Having decided to extend the definition of rape to include anal penetration of both males and females, the High Court in consequence made an order reading the word “person” into the statutory provisions wherever reference is made to a specific gender. [] I have concluded that the definition of rape should be extended so as to include anal penetration of a female, but that the question of nonconsensual penetration of the penis into the anus of another male should be left open. That being so, there is no need for this court to address the declaration of invalidity of the statutory provisions made by the High Court.

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Legal Cases (–)

[] Having found that the developed definition cannot apply to Mr. Masiya, it cannot therefore, on the facts before us, be said that his conviction is in accordance with justice. The conviction of rape should, on the facts, be replaced with a conviction of indecent assault. The order of the High Court in paragraph  cannot therefore stand. The appeal against the conviction of rape should therefore be upheld. [] Having substituted the conviction of rape with that of indecent assault, it is necessary to remit the matter to the Regional Court to impose appropriate punishment. It needs be said that the offence of indecent assault is egregious. Mr. Masiya assaulted a nine-year old child. The offence arouses public indignation. The Regional Court is obliged, when considering an appropriate punishment, to apply its mind to the nature and gravity of the offence of which Mr. Masiya has been convicted and not merely look at the legal definition thereof. The fact that he has been convicted of indecent assault does not automatically mean that the sentence to be imposed upon him should be more lenient than if he had been convicted of rape.

Order [] In the result, the following order is made: . The application for leave to appeal against the declarations of invalidity and the order and judgment of the High Court confirming the conviction of Mr. Masiya of rape is granted. . The application for leave to appeal against the conviction on the merits is dismissed. . The order of the High Court is set aside in its entirety. . The order of the Regional Court referring the criminal proceedings to the High Court for purposes of sentence in terms of section ()(b)(i) of the Criminal Law Amendment Act  of , is set aside. . The common-law definition of rape is extended to include acts of nonconsensual penetration of a penis into the anus of a female. . The development of the common law referred to in paragraph  above shall be applicable only to conduct which takes place after the date of judgment in this matter. . The conviction of Mr. Masiya by the Regional Court of rape is set aside and replaced with a conviction of indecent assault. . The case is remitted to the Regional Court for Mr. Masiya to be sentenced in the light of this judgment. Deputy Chief Justice Moseneke, Acting Justice Kondile, Justice Madala, Justice Mokgoro, Justice O’Regan, Justice Van der Westhuizen, Acting Justice van Heerden, and Justice Yacoob concur in the judgment of Justice Nkabinde.

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CHIEF JUSTICE LANGA

Introduction [] I have had the opportunity of reading and reflecting on the judgment of Justice Nkabinde. I agree with her that the definition falls short of the spirit, purport, and objects enshrined in the Bill of Rights. I associate myself particularly with her eloquent exposition of the patriarchal origin of the definition as well as for placing it in the particular context of South Africa today. I also agree with her findings on legality and the role of the Magistrates’ Courts. However, I believe that the development she proposes must be taken further so that it includes the anal rape of men. [] Before I address that point, I would like to add that, while there is force to Justice Nkabinde’s view that the definition of rape does not directly violate the Constitution, I prefer not to express an opinion on the matter, as, on the approach I take, it is unnecessary to do so.

What Is Wrong with the Common Law [] In order to determine how the common law should be developed, it is necessary to determine precisely what is wrong with the current position. To my mind the problem is not about males and females; it is about altering our understanding of why rape is prohibited. There are two elements to this: first that rape is about dignity and power and second, that anal rape is equivalent to vaginal rape. [] As expressed in the judgment of Justice Nkabinde, the historical reason why rape was criminalized was to protect the proprietary rights of men in women. However, over the years the courts have gradually focused less on the proprietary interests and more on the sexual nature of the crime. Today rape is recognized as being less about sex and more about the expression of power through degradation and the concurrent violation of the victim’s dignity, bodily integrity, and privacy. In the words of the International Criminal Tribunal for Rwanda the “essence of rape is not the particular details of the body parts and objects involved, but rather the aggression that is expressed in a sexual manner under conditions of coercion.” [] Coupled with this approach to rape is the recognition that anal penetration is as severe an attack on a person’s dignity, bodily integrity and privacy as vaginal penetration. There is a line of case law that equates “the gross humiliation and indignity” of anal rape and vaginal rape. To use the words of Justice Nkabinde: It can hardly be said that non-consensual anal penetration of males is less degrading, humiliating and traumatic and, to borrow the phrase by Brownmiller, “a lesser violation of the personal private inner space, a lesser injury to mind, spirit and sense of self.” (Footnote omitted.)

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Legal Cases (–)

[] Justice Nkabinde’s decision to extend the definition of rape is based on precisely these two imperatives. My only point of disagreement is that I find that the inescapable conclusion of these imperatives is that the anal penetration of a male should be treated in the same manner as that of a female. In my view, to do otherwise fails to give full effect to the constitutional values of dignity, equality, and freedom: dignity through recognition of a violation; equality through equal recognition of that violation; and freedom as rape negates not only dignity but bodily autonomy. All these concerns apply equally to men and women and necessitate a definition that is gender-neutral concerning victims. [] Justice Nkabinde gives three reasons why this court should not extend the definition to male survivors in this particular case. First, courts should be wary to extend the reach of crimes. Second, women remain the primary victims of rape which entails that rape remains, and must be identified as, an exercise of male supremacy. Third, she holds that this court should restrict itself to the facts before it, namely the anal penetration of a female. To tread beyond this would exceed the judiciary’s limited constitutional role. While there is much to be said for these concerns, I remain unconvinced that in this case such restraint is warranted.

Extending the Reach of Crimes [] As was noted in S v. Jordan [and Others (Sex Worker Education and Advocacy Task Force and Others as Amici Curiae)  () SA  (CC);  () BCLR  (CC)], courts should not lightly criminalize conduct that was not previously criminal. But, as is clear from the majority’s extension of the definition to female anal penetration, that concern should not prevent courts from giving effect to the rights and values of the Constitution. The only difference between my judgment and that of the majority is what those rights and values demand. [] In addition, this is not truly an extension. Nonconsensual anal penetration of men already constitutes the criminal offence of indecent assault. There is no question, as there may have been in Jordan, of criminalization or decriminalization; the act was already, and will remain criminalized. This judgment simply recategorizes it. Women as the Primary Target of Rape [] Women have always been and remain the primary target of rape. That is not a fact that this court can or should ignore. Nor can we deny that male domination of women is an underlying cause of rape. But to my mind that does not mean that men must be excluded from the definition. Firstly, as was noted above, this case goes to the very reason for the existence of rape as a crime. To the extent that Justice Nkabinde concludes that the “object of the criminalization of [rape] is to protect the dignity, sexual autonomy and privacy of women and young girls as being generally the most vulnerable group,” I part ways. To my mind the criminalization of rape is about protecting the “dignity, sexual autonomy and privacy” of all people, irrespective of their sex or gender. When considering the boundaries of the definition of rape,

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the ICTY held that “[t]he essence of the whole corpus of . . . human rights law lies in the protection of the human dignity of every person, whatever his or her gender.” I agree. [] Secondly, there is no reason to believe that including men in the definition will in any way decrease the protection afforded to women. Indeed, limiting the definition to female survivors might well entrench the vulnerable position of women in society by perpetuating the stereotype that women are vulnerable, which in turn enforces the dangerous cycle of abuse and degradation that has historically led to placing women in this intolerable position. The unintended effect is to enforce the subordinate social position of women which informed the very patriarchy we are committed to uproot. The social reality of women cannot be ignored, but we should be wary not to worsen it. [] Thirdly, the groups of men who are most often the survivors of rape, young boys, prisoners and homosexuals, are, like women, also vulnerable groups in our society. Moreover, they, and most other male victims, are raped precisely because of the gendered nature of the crime. They are dominated in the same manner and for the same reason that women are dominated; because of a need for male gender supremacy. That they lack a vagina does not make the crime of male rape any less gender-based. The gendered basis of rape, rightly identified by Justice Nkabinde, requires that male victims are given equal rather than lesser protection. [] Finally, the extension to male survivors is in line with both recent foreign experience, as Justice Nkabinde notes, and international criminal and humanitarian law. The International Criminal Tribunal for Rwanda (ICTR) and the International Criminal Tribunal for the Former Yugoslavia (ICTY) have both defined rape as including male anal penetration. The Elements of Crimes of the International Criminal Court (ICC) also include male anal penetration under the definition of rape. Indeed, these international bodies have extended the definition of rape far beyond what is suggested in this judgment. [] For all these reasons I do not believe that limiting the extension of rape to the anal penetration of women is in line with the spirit, purport and objects of the Bill of Rights.

Judicial Restrain and the Separation of Powers [] There can be no doubt that the separation of powers is a vital principle of democracy and that undue judicial activism threatens the separation of powers. However, in this case the separation of powers does not seem relevant for a number of reasons. [] Firstly, although the particular survivor in this case was a female, the case is not about the sex of the victim but about gender and how we understand rape. Extending the definition to male survivors therefore goes no further than is absolutely necessary to cure the defect I have found in the common law. Even if this may be a slight departure from the facts of the case, it is not unusual for this Court to give

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Legal Cases (–)

orders, either when developing the common law or determining the validity of statutes that go beyond the exact facts but are necessitated by the underlying constitutional principles involved. [] Secondly, while it has only limited relevance, the original Criminal Law (Sexual Offences) Amendment Bill and the revised bill currently before the legislature are also neutral as to the victim of the crime. In addition, nothing prevents the legislature from enacting a new definition of rape subsequent to this extension. Any infringement on the terrain of the legislature is thus minimal. [] Finally, I can see no reason why the general principle of our law that constitutional remedies should give relief not only to the particular litigant but to all those similarly situated, should not apply equally to the development of the common law. The development a court selects must give relief to all those who find themselves in a similar position. In my mind, a boy who is raped under the same circumstances as the survivor in this case is in the same position and is entitled to the same relief. That cannot happen unless the definition is extended to include male anal penetration. [] It follows that I would confirm the decision of the High Court to develop of the common-law definition of rape to include the nonconsensual sexual penetration of the male penis into the vagina or anus of another person. Justice Sachs concurs in the judgment of Chief Justice Langa.

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Index of Cases

Affordable Medicines Trust v. Minister of Health, 164 Afrox Healthcare Bpk v. Strydom, 103, 164, 859 Alexkor Ltd and Another v. The Richtersveld Community and Others, 60–61, 141, 684, 692, 700 Ally v. Dinath, 726 Amod v. Multilateral Motor Vehicle Accident Fund, 493, 608–9, 617 August and Another v. Electoral Commission and Others, 79, 147, 353–59 Bachan Singh v. State of Punjab (India), 181–83 Bafana Finance Mabopane v. Makwakwa and Another, 866, 878 Barkhuizen v. Napier, 851–85 Barrett v. Enfield London Borough Council (U.K.), 491 Bato Star Fishing (Pty) Ltd. v. Minister of Environmental Affairs and Tourism and Others, 645 Bequinot, 493, 495 Bernstein and Others v. Bester and Others NNO, 16, 126, 162, 163, 274–90, 336, 347, 504, 505, 580, 581, 628, 936, 952, 954 Bhe v. Magistrate, Khayelitsha and Others; Shibi v. Sithole and Others; South African Human Rights Commission and Another v. President of the Republic of

South Africa and Another, 85, 121–22, 151, 153, 161, 170, 678–709 Bookworks (Pty) Ltd. v. Greater Johannesburg Transitional Metropolitan Council and Another, 834 Booysen and Others v. Minister of Home Affairs and Another, 119, 150, 156, 480–82 Bowers, Attorney General of Georgia v. Hardwick et al. (U.S.), 347 Brink v. Kitshoff NO, 130, 330 Brisley v. Drotsky, 102, 104–5, 163 Brockhill Prison, 977 Bruce and Another v. Fleecytex Johannesburg CC and Others, 493, 830 Callins v. Collins (U.S.), 199 Campbell and Cosans v. United Kingdom (EHRR), 236, 403 Canada (Attorney-General) v. Mossop (Canada), 366 Carmichele v. Minister of Safety and Security and Another, 6, 87, 91–92, 125, 133, 138, 152, 157, 483–501, 586, 707–8, 750, 752, 792, 974 Case v. Minister of Safety and Security; Curtis v. Minster of Safety and Security, 100–1, 108, 163, 165 Catholic Commission for Justice and Peace in Zimbabwe v. Attorney-General, Zimbabwe, and Others (Zimbabwe), 196, 199, 205, 219–20

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

Index of Cases

Christian Education South Africa v. Minister of Education, 87, 96, 98, 120, 152, 161, 170, 390–405, 493, 519, 524, 528, 531, 536, 774, 780, 830, 894, 898, 904 Christian Lawyers Association v. National Minister of Health and Others (II), 93, 158 Christian Lawyers Association of South Africa and Others v. Minister of Health and Others (I), 93, 158 City Council of Pretoria v. Walker, 128, 130, 152, 299–327, 340, 576–77 City of Chicago v. Shalala (U.S.), 597 Coetzee v. Comitis, 87, 102, 152 Coetzee v. Government of the Republic of South Africa; Matiso and Others v. Commanding Officer, Port Elizabeth Prison, and Others, 95–96, 158, 288, 340 Daniels v. Campbell, 90, 145, 150, 156, 604–23, 737, 800 Dawood and Another v. Minister of Home Affairs and others; Shalabi and Another v. Minister of Home Affairs and Others; Thomas and Another v. Minister of Home Affairs and Others, 13, 78, 83, 90, 91, 105, 114, 119, 126, 150, 151, 156, 157, 164, 168, 378–89, 481, 482, 520, 553, 593, 654, 673, 685, 713, 717, 719, 740–41, 789, 939 De Beer NO v. North-Central Local Council and South Central Local-Council and Others, 619 De Lange v. Smuts NO and Others, 343, 442, 444, 506, 511, 619, 641, 649 De Reuck v. Director of Public Prosecutions, Witwatersrand Local Division, 80, 87, 101, 102, 108, 148, 152, 163, 165, 666–77 Derbyshire County Council v. Times Newspapers (U.K.), 556 DeShaney v. Winnebago County Department of Social Services (U.S.), 491 Dikoko v. Mokhatla, 165–66, 807–27 District Attorney for the Suffolk v. Watson (U.S.), 187

Doctors for Life International v. Speaker of the National Assembly and Others, 848, 900 Du Plessis and Others v. De Klerk and Another, 488, 554, 977 Du Toit and Another v. Minister of Welfare and Population Development and Others, 155, 559–64, 618, 742, 772 Egan v. Canada (Canada), 366 Estate Van der Byl v. Swanepoel, 754 Ferreira v. Leven NO and Others; Vryenhoek and Others v. Powell NO and Others, 5, 13–14, 17, 79, 85, 118, 125, 126, 128, 136, 147, 151, 240–74, 275– 79, 285, 288, 290, 374, 896, 973 Fidelity Guards Holdings (Pty) Ltd t/a Fidelty Guards v. Pearmain, 164 First National Bank of SA Ltd t/a Wesbank v. Commissioner, South African Revenue Service, 57–58, 136, 140, 141 Fose v. Minister of Safety and Security, 136, 316, 375, 817, 936 Fraser v. Children’s Court, Pretoria North, and Others, 156, 686, 713, 731, 732 Fraser v. Naude and Others, 561 Freedom Front v. South African Human Rights Convention, 109, 165 Furman v. Georgia (U.S.), 158, 177, 186, 193, 196–97, 199, 204, 206, 209, 214, 219, 221, 234–35, 238 Giddey NO v. JC Barnard and Partners, 842 Government of the Republic of South Africa v. Basdeo and Another, 489 Government of the Republic of South Africa v. ‘Sunday Times’ Newspaper and Another, 552 Government of the Republic of South Africa and Others v. Grootboom and Others, 82, 112–13, 118, 141, 150, 167, 415–30, 593, 656, 659, 923, 925 Greater Johannesburg City Council v. Europa Hotel, 319 Gregg v. Georgia (U.S.), 178, 234

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Index of Cases Halm v. Canada (Minister of Employment and Immigration) (Canada), 474 Handyside v. The United Kingdom (EHRR), 541 Hardaker v. Phillips, 166 Harmelin v. Michigan (U.S.), 199 Harsken v. Lane NO and Others, 88, 127, 130, 152, 304, 306, 318, 321, 330–32, 339–40, 365, 373, 562, 575, 716 Hartzenberg v. Nelson Mandela Metropolitan Municipal, 168 Hilal v. United Kingdom (EHRR), 475 Hill v. Church of Scientology of Toronto (Canada), 556 Hoffmann v. South African Airways, 134, 153, 167, 406–14, 597, 785 Hulley v. Cox, 814, 816 In re Chinamasa (Zimbabwe), 456, 462 Investigating Directorate of Serious Economic Offences and Others v. Hyundai Motor Distributors (Pty) Ltd. and Others; In Re Hyundai Motor Distributors (Pty) Ltd. and Others v. Smit NO and Others, 163, 502–14, 544, 606, 611–12 Islamic Unity Convention v. Independent Broadcasting Authority and Others, 108, 109, 165, 537–47, 670, 825, 846 Ismail v. Ismail, 614 Jaftha v. Schoeman and Others; Van Rooyen v. Stoltz and Others, 115, 168, 653– 65 Jansen van Vuuren & Another NNO v. Kruger, 144, 945 K v. Minister of Safety and Security, 747–57 Kastigar (U.S.), 259 Kaunda v. President of the Republic of South Africa, 96–97, 160, 624–51 Khet Mazdoor Samity v. State of West Bengal (India), 294 Khosa and Others v. Minister of Social Development and Others; Mahlaule v. Minister of Social Development and Others, 80–81, 87, 106–7, 112–14, 118–19, 149, 152, 164, 167, 168, 169, 592–603, 664



Khumalo and Others v. Holomisa, 87, 110–11, 152, 165–66, 548–58, 831, 846, 932, 960 Kindler v. Canada (Canada), 179–80, 184, 219–20 Knop v. Johannesburg City Council, 489 Kofi Antubam (Decd): Quaico v. Fosu and Another, 706 Laerskool Middelburg en ‘n Ander v. Departementshoof, Mpumalanga Departement van Onderwys en Andere, 99, 162 Laugh it Off Promotions CC v. SAB International (Finance) BV t/a Sabmark International, 846 Lochner v. New York (U.S.), 258, 267 Lynn NO and Another v. Kreuger and Others, 246 M v. H (Canada), 366, 368–69 Magna Alloys and Research (SA) (Pty) Ltd. v. Ellis, 103, 163 Masiya v. Director of Public Prosecutions Pretoria (The State) and Another, 966–84 McCartan Turkington Breen (A Firm) v. Times Newspapers Ltd., 832 McGowan v. Maryland (U.S.), 588 McNabb v. United States (U.S.), 272 Mec for Education, Kwa Zulu-Natal, Thulani Cele: School Liaison Officer, Anne Martin: Principal of Durban Girls’ High School, Fiona Knight: Chairperson of the Governing Body of Durban Girls’ High School v. Navaneethum Pillay, Governing Body Foundation, Natal Tamil Vedic Society Trust, Freedom of Expression Insistute, 17, 99, 162, 886–919 MEC for Health, Mpumalanga v. M-Net, 112, 146, 163, 166 Mineworkers Investment Co (Pty) Ltd. v. Modibane, 811, 812 Minister of Health and Others v. Treatment Action Campaign and Others (2), 62, 113, 144, 167, 659 Minister of Home Affairs and Another v. Fourie and Another; Lesbian and Gay

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

Index of Cases

Equality Project v. Minister of Home Affairs, 99, 117, 148, 153, 154, 155, 156, 161, 163, 168, 606, 758–94, 896 Minister of Justice v. Hofmeyr, 355 Minister of Law and Order v. Kadir, 489– 90, 499 Minister of Police v. Rabie, 753–56 Minister of Safety and Security v. Van Duivenboden, 92, 157 Minister of the Interior and Another v. Harris and Others, 358 Minister of Welfare and Population Development v. Fitzpatrick, 156, 561 Minister van Polisie v. Ewels, 489 Miron (Canada), 739 Mkontwana v. Nelson Mandela Metropolitan Municipality and Another; Bisset and Others v. Buffalo City Municipality and Others; Transfer Rights Action Campaign and Others v. MEC, Local Government and Housing, Gauteng, and Others, 767 Mohamed and Another v. President of South Africa and Others, 467–79, 625–26, 629–31, 638, 644, 652 Mohlomi v. Minister of Defence, 858, 860– 61, 867 Moller v. Keimoes School Committee and Another, 613 Montsisi v. Minister van Polisie, 862 Moseneke and Others v. The Master and Another, 145, 151, 431–38, 689 Mthembi-Mahanyele v. Mail and Guardian Ltd. and Another, 166, 960 Mthembu v. Letsela, 701, 704 MX of Bombay, Indian Inhabitant v. M/s ZY and Another (India), 411 National Coalition for Gay and Lesbian Equality and Another v. Minister of Justice and Others, 54, 85, 118, 119, 127, 130, 131, 134, 137, 147, 151, 152, 155, 164, 169, 328–52, 533, 570, 581 National Coalition for Gay and Lesbian Equality and Others v. Minister of Home Affairs and Others, 51, 135, 136, 152, 155, 164, 360–77, 506, 605, 609–11, 618, 741, 769

National Media Ltd. and Another v. Jooste, 144, 954 National Media Ltd. and Others v. Bogoshi, 110, 165–66, 548, 549, 550, 557, 812, 932, 960–61, 964 Ncanywa, 971 Nhlapo, 693, 694 NK v. Minister of Safety and Security, 87, 91–92, 152, 157 NM and Others v. Smith and Others, 166, 930–65 Norris v. Republic of Ireland (EHRR), 334 O’Brien v. Skinner (U.S.), 356 Occupiers of 51 Olivia Rd, Berea Township and Another v. City of Johannesburg and Others, 115, 168, 920–29 Olmstead v. United States (U.S.), 236, 476 Parbho and Others v. Getz NO and Another, 841 Park-Ross and Another v. Director: Office for Serious Economic Offences, 510, 512 People v. Andserson (U.S.), 187, 198 Pharmaceutical Manufacturers Association of SA and Another: In re Ex parte President of South Africa and Others, 826 Phillips and Others v. National Director of Public Prosecutions, 841 Phoebus Apollo Aviation CC v. Minister of Safety and Security, 748, 750, 824 Pienaar and Another v. Argus Printing and Publishing Co. Ltd., 550 Port Elizabeth Municipality v. Various Occupiers, 149, 167, 430, 821, 922, 924 President of the Republic of South Africa and Another v. Hugo, 28, 85, 102, 118, 130, 147, 151, 152, 154, 169, 306, 308, 322, 323, 332, 339, 470, 573, 597, 716 Prince v. President, Cape Law Society, and Others, 80, 97–98, 148, 160–61, 515–36, 826 Prinsloo v. Van der Linde, 6, 27–28, 47, 85, 102, 125, 127, 130, 134, 137, 147, 151, 152, 317, 321, 323, 326, 330, 402, 800 Quilter v. Attorney-General (New Zealand), 362

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Index of Cases R v. Big M Drug Mart Ltd. (Canada), 176, 247, 296, 397, 587, 589 R v. Cook (Canada), 647 R v. Keegstra (Canada), 109, 165 R v. Oakes (Canada), 189 R v. Secretary of State for the Home Department, Ex parte Venables (U.K.), 449–50 R. v. Salituro, 142, 488, 974 Rail Commuters Action Group and Others v. Transnet Ltd t/a Metrorail and Others, 87, 152 RJS v. The Queen; Attorney-General et al. Interveners (Canada), 260 S v. A juvenile (Zimbabwe), 234, 403 S v. Basson, 651 S v. Bhulwana; S v. Gwadiso, 343, 791, 793 S v. Chapman, 157, 159, 486, 496 S v. Dodo, 95–96, 141, 142, 159, 439–50 S v. Jordan and Others (Sex Workers Education and Advocacy Task Force and Others), 80, 84, 104–6, 148, 151, 156, 164, 329, 565–91, 674, 982 S v. Lawrence; S v. Negal; S v. Solberg, 397, 574, 587 S v. Makwanyane, 46, 94–96, 125, 134–35, 144, 149, 158, 173–228, 247–49, 270, 337–38, 373, 419, 447, 471–75, 638, 685, 940 S v. Mamabolo, 107, 164, 165, 451–66, 541, 542, 835, 843 S v. Motsoesoana, 239 S v. Ncube; S v. Tshuma; S v. Ndhlovu (Zimbabwe), 234 S v. Ntsele, 343 S v. Pennington and Another, 159, 841 S v. Thebus and Another, 159, 750 S v. Vermaas; S v. Du Plessis, 263 S v. Williams and Others, 85–86, 93–96, 152, 158, 229–39, 402 Sandler v. Wholesale Supplies Ltd., 810 Santos Professional Football Club v. Igesund, 163 Satchwell v. President of the Republic of South Africa and Other, 117, 152, 153, 155, 605, 609–11, 615–16, 621, 729, 772



Savage v. Commissioner for Inland Revenue, 621 Seedat’s Executors v. The Master (Natal), 614 Shelley v. Kraemer (U.S.), 58, 137, 138 Skinner v. Shapiro (I), 810 Soering v. United Kingdom (EHRR), 475 Soobramoney v. Minister of Health, Kwazulu-Natal, 112, 167, 291–98, 418, 424 South African Broadcasting Corp. Ltd. v. National Director of Public Prosecutions, 111, 828–50 T v. United Kingdom (U.K.), 449 Thomson Newspapers (Canada), 258–59, 262–63 Trop v. Dulles (U.S.), 193, 209 Tuckers Land and Development Corporation (Pty) Ltd. v. Hovis, 863 Tyrer v. United Kingdom (EHRR), 234–35 Universal City Studios Inc and Others v. Network Video (Pty) Ltd., 840 Van der Berg v. Coopers and Lybrand Trust (Pty) Ltd. and Others, 817, 825, 943 Van der Merwe v. Road Accident Fund and Another, 97, 160, 795–806 Van Zyl v. Jonathan Ball Publishers, 112, 166 Veldman v. Director of Public Prosecutions, 978–79 Volks NO v. Robinson and Others, 80, 148, 156, 710–46, 800 Vriend v. Alberta (Canada), 334, 368 West Virginia State Board of Education v. Barnette and Others (U.S.), 186, 198 Western Cape Minister of Education v. The Governing Body of Mikro Primary School, 99, 162 Western Cape Provincial Government and Others: In re DVB Behuising (Pty) Ltd. v. North West Provincial Government and Another, 436, 689 Whitney v. California (U.S.), 956 Whittaker v. Roos and Bateman, 190

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Index

Ackermann, Justice, xiv, 11–19, 73, 77–79, 85, 95, 118, 126, 145, 149, 162, 174, 191–95, 241–42, 242–64, 265–67, 269, 271, 275, 276–85, 286–290, 316, 329, 330–45, 347–349, 352, 361–77, 412, 440, 441–50, 485–501, 504, 506, 511, 516, 533, 580–81, 586, 609, 616, 619, 628, 649, 685, 741, 780, 784, 786, 896, 952, 954, 974 adoption, 90, 559–64. See also children; family Albertyn, Cathi, and Beth Goldblatt, 26–27 apartheid, 6–7, 15, 18, 34–35, 38, 41–42, 46–47, 52–53, 66–67, 70, 73–74, 77, 90, 95, 110, 117, 122, 146, 156, 175, 215, 219, 248, 288, 305, 312, 335, 379, 415, 434, 436, 472, 576, 651, 657, 679, 680, 689, 701, 733, 759, 906–7, 939–40 Arendt, Hannah, 70–72 Balibar, Etienne, 70 Berker, Chief Justice (Namibia), 403 Berlin, Isaiah, 14, 249, 251 Birmingham, Peg, 71–72 Blackmun, Justice (U.S.), 199, 347 Bobbio, Norberto, 69 botho, 809, 813, 821–22. See also uBuntu Brandeis, Justice (U.S.), 236, 476, 956, 961

Brennan, Justice (U.S.), 175, 178, 193, 196, 197, 204, 209, 218, 234, 235, 238, 298, 491 Burger, Chief Justice (U.S.), 356, 533 Cachalia, Justice, 878 Cameron, Justice, 319, 762–65, 882 capitalism, 122, 680 categorical imperative. See Kant, Immanuel Centlivres, Chief Justice, 358 Chalskalson, Justice, 38, 86, 94, 145, 147, 174, 175–91, 199, 200, 202, 212, 216, 220, 221, 241, 242, 247, 264–68, 269, 270, 286, 287, 290, 292, 293–95, 296, 297, 397, 418, 419, 424, 473, 501, 516, 526–29, 587, 616, 627–37, 652, 685, 812, 973 children, 378–89, 678–709, 710–46; and adoption, 90, 559–64; extramarital, 692–97; and pornography, 87, 101–2, 107–8, 666–77; rights of, 49, 229–39, 390–405, 415–30, 686–88, 886–919. See also family; inheritance citizenship, 324–25, 350, 355, 436, 587, 592–603, 624–51, 774, 896 color. See race common law, 5–6, 12, 33, 56–57, 61, 85, 87, 91, 93, 99, 103–4, 107, 110, 125, 150, 153, 155, 157, 164, 166, 217, 226, 242–43, 253–56, 262, 279, 328–52, 355–56, 382, 393, 402, 404,

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

Index

440, 445, 452, 456, 460, 471, 483–501, 505, 511, 541, 548–58, 568–69, 588, 604–23, 679, 684, 687–88, 700–9, 710–46, 748–57, 758–94, 796–801, 817, 819, 826, 833, 840, 853–59, 862–63, 868, 877, 882–84, 930–65, 966–84. See also customary law constitutionalism, 52, 58, 66, 145, 225, 227, 256, 355, 445, 449, 464, 651 contracts, 710–46, 851–85 Corbett, Chief Justice, 553 Cornell, Drucilla, 76, 105, 116, 119, 154, 169 Cory, Justice (Canada), 219, 220, 368, 556 court, right of access to, 851–85 Cowen, Susie, 28 cruel and inhumane punishment. See punishment cultural identity, 97–101, 120–22, 886–919 Currie, Iain and Johann de Waal, 109–10, 911 customary law, 226, 363, 382, 434–35, 505, 588, 610, 615, 678–709, 718, 722–23, 753, 784, 913, 971 Davis, Dennis, 27–28, 67–68, 116, 119 Davis, Justice, 111, 364, 710, 712, 874 De Meyer, Judge (European Court of Human Rights), 184 de Villiers, Justice, 613, 811 Deane, Justice (Australia), 552 death penalty, xiv, 46, 74, 78, 94, 95, 117, 145, 173–228, 467–79, 624–51, 657. See also punishment, corporal defamation, 48, 87, 110–12, 165, 548–58, 807–27, 932, 958–64 degradation, 16, 18, 101, 235, 394, 398, 401–2, 666–77, 940, 971, 981, 983 deportation. See extradition Dickson, Chief Justice (Canada), 189, 296, 397 Didcott, Justice, 100, 174, 195–99 discrimination. See gender; HIV/AIDS status; race domestic violence, 804–5 dress code, in schools, 886–919

drugs, for religious use, 97, 515–36 Durig, Gunter, 44, 129 Dworkin, Ronald, 46, 69–70, 219, 297, 323 Els, Justice, 357, 451–52 Emerson, Ralph Waldo, 72 equality, substantive, 26–27, 54, 119, 131, 311, 317, 327, 338, 339, 348, 607, 622, 686, 732, 737, 749, 751 estate settlement. See inheritance European Court of Human Rights, 44, 180, 184, 185, 234, 334, 419, 449, 475, 541, 575, 978 eviction. See housing, right to expression, freedom of, 48, 50, 87–89, 107–112, 123, 149, 155, 165, 190, 451–66, 537–47, 548–58, 666–77, 807–27, 828–50, 886–919, 931–65 extradition, 179–81, 184–85, 467–79, 633–36 Fagan, Anton, 27 fair trial, 241–42, 245, 255, 263–64, 268, 270–71, 275–76, 286, 439–50, 451–66, 624–52, 828–50, 969–70 family, 121–23, 156–57, 162, 360–77, 378–89, 431–38, 480–82, 559–64, 604–23, 678–709, 710–746, 758–94, 892, 902, 915, 942 Farlam, Justice, 764–65 food, right to, 292, 294, 415–30, 602, 656, 703, 724, 755. See also socioeconomic rights Friedrich, Carl, 65–67 Gajendragadkar, Chief Justice (India), 465 Geach, Peter, and Philippa Foot, 29–32 gender, 37, 39, 49, 54, 56, 57, 90, 106, 108, 122, 137, 148, 232, 364, 409, 418, 435, 485, 496, 540, 543, 545, 551, 566, 568–91, 680, 686, 690, 693–94, 700, 705–6, 722, 723, 725, 732, 737, 741, 749, 752, 787, 789, 796–97, 804–5, 890, 897, 907, 966–84 Goldstone, Justice, 6, 27, 306, 323, 332, 339, 485–501, 516, 561, 597, 974

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Index Grundnorm, 6–7, 9–10, 72, 74–76, 83, 85, 88, 175, 379. See also ideal Gubbay, Chief Justice (Zimbabwe), 196, 199, 205, 219, 220, 234, 456 Gutmann, Amy, 69 Habermas, Jürgen, 69–71 hate speech, 84, 108–9, 537–47. See also expression, freedom of health care, 49, 61, 112, 291–98, 420, 424, 427, 429, 656, 938 Heath, Justice, 971 Heher, Justice, 328, 340, 342, 265 Heidegger, Martin, 71 Henkin, Louis, 44, 56–57 HIV/AIDS status: and discrimination, 48, 80, 153, 406–14; and privacy, 930–65 homosexuality, 16, 74, 90, 99, 105, 117–19, 127, 156, 328–52, 360–77, 559–64, 586, 758–94, 983 horizontal application, 10–11, 17, 19, 21, 48, 55–58, 399, 554–55 housing, right to, 49, 61, 82, 113, 115–16, 141, 415–30, 653–65, 920–29. See also socio-economic rights Iacobucci, Justice (Canada), 261–62, 368, 488, 974 ideal, xiii–xiv, 4–19, 66, 72, 75–76, 85, 105, 112, 116 126, 130, 144, 167, 175, 196, 213, 215, 220, 296–97, 329, 476 Ignatieff, Michael, 69 immigration, 51, 90, 106, 114, 117, 378–89, 480–82, 592–603, 770–84: of same-sex partners, 360–77 indigenous law. See customary law inheritance, 431–38, 604–23, 678–709, 710–46, 795–806 integrity, 221, 235, 241, 257, 265, 268–69, 279–80, 287, 395, 404–5, 445, 451–66, 521, 552, 580, 777, 799, 801, 803, 805, 807–27, 930–65, 971–73, 981 international law, 65, 67, 96, 174, 200, 214, 225–26, 233, 419–22, 496, 561, 583, 615, 624–52, 656–57, 687, 708, 752, 768, 778, 782–83, 912, 978



Jackson, Justice (U.S.), 186, 198 Joffe, Justice, 552 jurisdiction, of South African Constitution, 467–79, 624–51. See also international law juveniles. See children Kant, Immanuel, xii, 7–11, 13–18, 25, 30–32, 42, 45–46, 68–71, 73–78, 82, 95, 113, 116, 126, 133, 144–47, 149, 250 Kelsen, Hans, 3, 4, 7, 43 Kentridge, Justice, 174, 176, 199–200, 217, 253, 254, 295, 488, 619, 977 kingdom of ends. See Kant, Immanuel Kondile, Justice, 887, 980 Kriegler, Justice, 107, 174, 200–1, 247, 340, 343, 452, 453–63, 501, 516, 526–29, 541, 685, 749 La Forest, Justice (Canada), 262, 263 Langa, Justice, 17, 46, 100–1, 108, 149, 174, 175, 201–5, 231–39, 300–17, 318, 321, 326, 327, 340, 402, 493, 503, 504–14, 538, 539–48, 576, 606, 616, 667–77, 680, 681–99, 703, 808, 819, 829–39, 846, 884–85, 887, 888–906, 908, 912, 914, 916, 918, 931, 945–50, 967, 981–84 lesbian, gay, bisexual, transgender (LGBT). See homosexuality L’Heureux-Dubé, Justice (Canada), 28 liability, 274–90, 467–79, 483–501, 747–57, 857, 867–68, 878, 880, 930–65 Liebenberg, Justice, 393 life, right to, 13, 173–228, 247, 255, 257, 293–98, 467–79, 486, 491, 520, 644, 673, 685, 925, 939. See also death penalty Madala, Justice, 174, 175, 205–6, 295–96, 501, 610, 689, 772, 808, 819, 931, 932–45, 946, 951, 959, 964, 980 Madlanga, Justice, 501, 516 Mahomed, Justice, 174, 175, 207–13, 223, 403, 608, 609, 617, 657, 686, 773 marginalization. See gender; HIV/AIDS status; race

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

Index

marriage, 16, 84, 90, 97, 99, 117, 119, 148, 156–57, 360–77, 378–89, 480–82, 559–64, 604–23, 710–46, 758–94, 795–806 Marshall, Justice (U.S.), 206, 221, 350, 356 McCreath, Justice, 93 McLachlin, Justice (Canada), 739 Mill, John Stuart, 69 minors. See children Mojapelo, Justice, 93 Mokgoro, Justice, 47, 100, 101, 106, 112, 113, 115, 160, 166, 174, 175, 213–16, 269–70, 287, 288, 501, 516, 593–600, 601, 616, 626, 654–65, 685, 711, 720–29, 808, 809, 816, 818, 819, 822, 823, 825, 829, 845–47, 945, 980 morality, 56, 80, 197, 213, 257, 351, 568–91, 614, 638, 658, 666–77, 710–46, 878 Moseneke, Justice, 97, 150, 616–23, 750, 796–806, 808, 809, 810, 816–19, 823, 825, 829, 839–45, 847, 848, 852, 865–68, 945, 980 Ncgobo, Justice, 122–23, 160, 517 Nkabinde, Justice, 808, 945, 967, 968–80, 981–83 offensive materials. See expression, freedom of O’Regan, Justice, 5–6, 13–14, 28, 47, 83, 84, 100, 110, 117, 160, 174, 216– 28, 247, 248, 285–90, 308, 322, 324, 330, 343, 373, 379, 380–89, 549–58, 566, 567, 571–91, 616, 626, 630, 644–50, 652, 711, 713, 720–29, 741, 748–57, 759, 760, 791–94, 808, 819, 887, 906–19, 931, 945, 946–48, 951–62, 980 partnership, domestic. See also family; marriage Plato, 68 polygamy, 614, 616, 746. See also family; marriage pornography. See children; expression, freedom of

Post, Robert, 69 Powell, Justice (U.S.), 186, 197 primogeniture. See inheritance prisoners rights, 173–228, 353–59 privacy, 11, 16–18, 48, 56–57, 84–85, 87, 89, 100–1, 107–8, 110, 112, 144, 149, 159, 162–63, 246, 253, 274–90, 328–52, 502–14, 515–36, 548–58, 568–91, 666–77, 930–65, 981–82 profession, freedom of, 87–88, 102, 105, 363, 521, 649 prostitution, 104–6, 148, 330, 347, 568–91, 674 punishment, corporal, 74, 78, 87, 93–98, 117, 120, 151, 160, 179, 229–39, 390–405. See also death penalty race, 10–11, 15, 29, 31–34, 46, 49, 53, 58, 60, 109, 136, 139–40, 165, 207, 215, 217, 227, 232, 301, 305, 308, 309, 314, 318–19, 320, 325–26, 333, 335, 350, 364, 368, 432–33, 436–37, 485, 541, 543, 573, 576, 606, 613–14, 616, 686–90, 699, 722–23, 725, 732, 740, 774, 776, 778, 780, 782, 853, 890, 906–8, 914 rape. See sexual assault Rawls, John, 46, 76, 82, 116, 149, 169 Rechtsstaat, 4–5, 13, 15, 46, 75, 126, 192, 271 religious freedom, 68, 96–100, 108, 120, 153, 161, 390–405, 515–36, 537–47, 604–23, 779–83. See also expression, freedom of reproductive rights, 89, 93 restorative justice, 809, 813, 821 revolution: constitutional, 11, 33–43; full, 3–4; legal, 3; negative, 65–66; substantive, xii, 4, 10, 12, 15, 18–19 Roman-Dutch law, 33, 144, 158, 694, 811, 822, 874, 971 Rousseau, Jean-Jacques, 70 Roux, Justice, 765 Sachs, Justice, 6, 19, 79, 84, 91, 112, 148, 155, 158, 174, 222–28, 270–73, 279, 286, 289, 290, 295, 296–98, 300, 305, 306, 317–27, 329, 345–52, 354, 355–59, 366, 392–405, 432–38,

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Index 464–66, 481, 482, 501, 516, 526, 529–36, 566, 567, 571–91, 605, 606–11, 615, 616, 651–52, 689, 690, 714, 715, 720, 721, 724, 729–46, 759, 761–91, 792, 794, 808, 809, 819–22, 823, 829, 848–50, 852, 864, 865, 867, 869–84, 905, 922, 931, 945, 946, 950, 963–65, 967, 984 Scalia, Justice (U.S.), 199 scandalizing the court, 451–66. See also expression, freedom of Schreiner, Justice, 621 search and seizure, 502–14, 580 self-incrimination, 240–74, 276, 278 Sen, Amartya, 28, 81, 118 sexual activity, 328–52, 382, 565–91 sexual assault, 91–92, 97, 157, 159, 341, 344, 483–501, 747–57, 966–84 sexual orientation, 48, 54, 117–18, 137, 156, 328–52, 360–77, 409, 485, 560, 562, 573, 581, 722, 758–94, 890, 908. See also homosexuality Skweyiya, Justice, 560, 618, 711, 712, 720, 721, 742, 772, 808, 816, 823, 945 slavery, 78, 83–84, 86, 105–6, 384, 521, 594, 673 Smalberger, Justice, 817, 943 social security, 292, 294, 415–30, 592–603. See also socio-economic rights socialism, 66 socio-economic rights, 61–63, 74, 80, 88, 112–15, 167–68, 291–98, 415–30, 480–82, 592–603, 653–65. See also food, right to; housing, right to; social security sodomy, 85, 90, 105, 117, 328–52, 364– 68, 373, 581, 586, 769, 780, 971–72 Somyalo, Justice, 501 Southwood, Justice, 507, 512 Stewart, Justice (U.S.), 196, 199, 234 Steyn, Chief Justice, 568, 789 Supreme Court of Canada, 22, 65, 109, 179, 187, 245, 334, 366–67, 372,



376, 447, 448, 631, 647, 739, 755, 899 Supreme Court of India, 181, 465 Supreme Court of the United States, 138, 178, 196, 214, 588, 899 Tipnis, Justice (India), 411 tolerance, 226, 227, 238, 401, 465, 522, 529, 534–36, 542, 586, 607–8, 614, 617, 736, 759, 773–74, 780, 817, 896, 914, 938, 944 torture. See punishment, corporal trade, freedom of, 87–88, 102–3, 105, 568–91 trafficking: narcotics, 97, 515–36; sex, 106, 568–91 transcultural jurisprudence, 75, 120–23 Traverso, Justice, 103 Truth and Reconciliation Commission, 73 uBuntu, xiii, 46–47, 123, 144, 149, 161, 175, 202, 203, 205, 206, 208, 213–15, 411, 685, 703, 809, 813, 821, 822, 858 Van den Heever, Justice, 284 Van der Westhuizen, Justice, 111, 808, 819, 945, 980 van Heerden, Justice, 380, 482, 605, 980 Wechsler, Herbert, 48, 139 welfare. See social security Westen, Peter, 23–27 Williams, Bernard, 30–32, 147 Willis, Justice, 811–12 Wood, Allen, 30, 68 Wright, Chief Justice (U.S.), 198 wrongful conduct. See liability Yacoob, Justice, 112, 141, 416, 417–30, 510, 516, 593, 616, 619, 767, 806, 808, 819, 921, 922–29, 945, 980

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ideas

Roger Berkowitz, The Gift of Science: Leibniz and the Modern Legal Tradition Jean-Luc Nancy, translated by Pascale-Anne Brault and Michael Naas, The Truth of Democracy Drucilla Cornell and Kenneth Michael Panfilio, Symbolic Forms for a New Humanity: Cultural and Racial Reconfigurations of Critical Theory Karl Shoemaker, Sanctuary and Crime in the Middle Ages, 400–1500 Michael J. Monahan, The Creolizing Subject: Race, Reason, and the Politics of Purity Drucilla Cornell and Nyoko Muvangua (eds.), uBuntu and the Law: African Ideals and Postapartheid Jurisprudence Drucilla Cornell, Stu Woolman, Sam Fuller, Jason Brickhill, Michael Bishop, and Diana Dunbar (eds.), The Dignity Jurisprudence of the Constitutional Court of South Africa: Cases and Materials, Volumes I & II Nicholas Tampio, Kantian Courage: Advancing the Enlightenment in Contemporary Political Theory