Journal of Philosophy, Science & Law
9, September 8, 2009
as an Element of Human Dignity in South African Case Law
Donrich W Jordaan*
* An advocate of the High
and CEO of Sylvean Biotech (Pty) Ltd.
features prominently in various international human rights instruments.
addition, human dignity is also a central concept in biolaw and bioethics –
fields that are becoming increasingly relevant as the biological revolution
dawns on mankind. But what exactly is meant by human dignity? Especially in the
fields of biolaw and bioethics, human dignity has been used to support various
divergent points of view. This apparent absence of a clear meaning creates questions
about the usefulness of this concept, and valid fears that it can easily serve
to camouflage unconvincing arguments and unarticulated
John Harris provides a colorful analogy:
to human dignity are, of course, universally attractive; they are the political
equivalents of motherhood and apple pie. Like motherhood, if not apple pie,
they are also comprehensively vague.
If human dignity is
to play any sensible role in human rights law and ethics, there is a clear need
for its authoritative interpretation. While other concepts such as freedom and
equality have received much scholarly and judicial attention in the leading constitutionalist systems of the English-speaking world, particularly
, human dignity
has largely been backstage. The reason is of course that human dignity is not explicitly mentioned in the human rights instruments of these
jurisdictions. Although the courts in these jurisdictions have acknowledged
human dignity as an implicit value in their human rights systems,
not much attention has been given to analyzing human dignity per se.
is in a unique position compared to the
above-mentioned countries: human dignity is explicitly protected in the South
African constitution and has been the subject of increased analysis by the
Since 1995, a body of human dignity case law has
gradually developed in
, which may offer an authoritative
reference source to human rights lawyers and ethicists in other jurisdictions.
This article will analyze the development of the concept ‘human dignity’ in
case law, with specific attention to the emergence of autonomy as an element of
I. The concept ‘human dignity’: a philosophical overview
Firstly, a conceptual distinction must be made between ‘human
dignity’ and ‘dignity’. As this discussion will show, various philosophical
traditions give different interpretations to dignity. Human dignity denotes a specific species of dignity that is
perceived as the objective value inherent to all humans. Other notable species of dignity in Western philosophy are 1) a
behavioral conception of dignity, which denotes the objective value that an
individual possesses based on certain behavioral qualities that are associated
with dignity, such as composure,
calmness, a noble manner, etc.;
2) an aspirational conception that denotes the objective
value that an individual possesses based on her accomplishments in life;
and 3) dignity as subjective self-value. In the broader societal context, these
species of dignity are not necessarily mutually exclusive, but can be
supplementary. One can, for instance, consistently support both the following
positions: 1) X must enjoy the same basic rights as other members of society based on her (inherent or human)
dignity; and 2) X must be accorded higher respect in social interactions based on her (aspirational) dignity as a
world-renowned scholar. However, once the context is delineated more narrowly,
such as the specific context of human rights law or biolaw, the incompatibility
of the various species of dignity increases – especially between the various
renderings of dignity as objective value.
us now consider the development of human dignity in philosophy. The
interpretation of dignity as inherent value can track its origin to the ancient
Stoic tradition. Reason is posited as
a property of all humans – slave and free alike – which enables them to know
the universe and improve themselves; this ability gives all humans dignity, which
is equated to immeasurable value. The advent of Christianity transferred the
source of humankind’s inherent worth to its belief that man was created by God
in His divine image. The Renaissance once again saw the celebration of
humankind’s free will and power of self-realization as the source of dignity,
albeit thoroughly rooted within the Christian religious worldview. As Giovanni Pico
della Mirandola energetically exclaims in his Oration on the Dignity of Man, which became the manifesto of the
Renaissance: “Oh wondrous and unsurpassable felicity of man, to whom it is
granted to have what he chooses, to be what he wills to be!” This idea was
secularized in the elaborate metaphysical system that Immanuel Kant developed
during the Enlightenment. This philosophical tradition continues to be
massively influential in our conceptual understanding of dignity in the human
rights context, namely as inherent to every human being. In contemporary human
rights law, this inherent species of dignity has become commonly denoted as human dignity. The
positioning of human dignity as a central value in any moral or legal system is
therefore a moral or legal vindication of the idea that humanness per se is valuable. Against this
philosophical background, the discussion will focus on human dignity as it has
been applied in South African law.
II. Human dignity in the South African constitution
In one of its first
already singled out human dignity as the “touchstone” of the new constitutional
the cases that dealt with controversial and sensitive socio-political matters,
such as the death penalty,
termination of pregnancy,
wearing of religious symbols at public schools,
and commercial sex,
human dignity has played a vital role in the
Human dignity has a
dual function in the South African constitutional dispensation: as a
foundational value that informs the
interpretation of all other specific rights, and as a justifiable and
Human dignity as a foundational value is provided
for in three places in the Bill of Rights chapter of the Constitution:
the introductory section of the Bill of Rights,
as well as the all-important limitation
clauses of the Bill of Rights. Human dignity as an enumerated right in the Bill
of Rights is stated as follows:
has inherent dignity and the right to have their dignity respected and
In its application of
human dignity, the Constitutional Court has consistently emphasized the
interdependency and mutually reinforcing relationship between human dignity and
other enumerated rights, such as freedom,
right to life.
also important to note that human dignity is specifically only applicable to
persons in esse and not to the unborn
(as is the case in
III. The meaning of human dignity
broadest meaning, human dignity refers to the intrinsic worth of all human beings.
Beyond this frequently-used phrase, the
has not attempted to
provide a comprehensive definition of human dignity and has in fact remarked
that human dignity “is a difficult concept to capture
in precise terms.”
However, certain elements of human dignity have clearly crystallized in case
law. The first of these positivist elements is the universal and egalitarian
character of human dignity.
has at times used the typical Dworkinian formulation of “equal concern” in the
context of human dignity.
This egalitarian quality of human dignity confirms its roots in the
philosophical tradition of inherent dignity, to the logical exclusion of the
aspirational or behavioral tradition.
positivist element of human dignity relates to the protection of personality
rights, namely self-worth and reputation. At common law (which in
Roman-Dutch law), the legal concept ‘dignity’ was equated with self-esteem or
law dignity was differentiated from reputation, although the classic Roman law actio iniuriarum was common to all the
While self-worth as the common law meaning of dignity was clearly associated
with human dignity from the onset of the constitutional dispensation,
the position with reputation was less clear. After divergent judgments by the
provincial high courts on the inclusion of reputation in the ambit of the
constitutional concept ‘human dignity’,
the Constitutional Court has in Khumalo v
Holomisa unanimously indicated that human dignity includes all personality
rights, including reputation.
It is therefore clear that human dignity, or dignity in the human rights
context, includes but also transcends common law dignity.
has proposed a third positivist element of human dignity, namely autonomy.
At the time, he only cited the (celebrated) concurring opinion of Ackerman J in Ferreira v Levin to support his
analysis, in which Ackerman J only implicitly refers to autonomy.
Recent developments in South African case law have, however, clearly vindicated
autonomy as an element of human dignity, and will be analyzed below. These
legal developments concerning autonomy and human dignity cannot be analyzed in
isolation from the developments concerning autonomy and human rights in general
– the interrelation between human dignity and other human rights has already
been mentioned. We will therefore track – within the South African legal system
– the emergence of autonomy as an element of human dignity integrated with the
emergence of autonomy in general human rights case law.
IV. The rise of autonomy
The concept ‘autonomy’
originates from the Greek ‘auto’ (self) and ‘nomos’ (law), meaning to be one’s
own law. In its simplest meaning, autonomy can therefore be understood as self-determination.
In the context of individual human rights, there is considerable conceptual overlap
between autonomy and freedom.
Freedom includes both political freedom (the Roman libertas, which includes various rights concerning participation in
the political process), as well as individual or personal freedom (the right to
personal self-determination, that is, choosing and pursuing one’s own ends in
life, as exemplified in Mill’s essay On
Liberty). In its contemporary usage, autonomy generally corresponds with
the latter form of freedom, but also has a broader meaning as referring to
one’s personal psychological capacity for self-determination. One can therefore remark that a child must develop
autonomy (but not freedom) as a precondition to be an autonomous (or free)
person. In the liberal philosophical tradition, autonomy as individual freedom is
intimately associated with personal development and self-actualization, and
perceived as a precondition for well-being and self-fulfillment.
B. The role of autonomy
In the first
five years since the inception of the Constitutional Court (1995-1999) the term
‘autonomy’ was used in association with several enumerated constitutional
rights and values, including human dignity,
However, the nature of the
relationship between autonomy and these rights and values was still inexact and
vague at this stage. The only reference in case law during this period that
sketches the nature of the relationship between human dignity and autonomy in
clearer terms – namely of autonomy being an element of human dignity – is the implicit reference to autonomy in Ferreira on which Haysom based his
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.
connection that Haysom drew between personal development and autonomy depends
on and therefore implies adherence to the liberal philosophical tradition that
perceives autonomy as a causally necessary condition for the achievement of the
individual’s own good through personal development or self-realization.
Given this philosophical foundation, Haysom’s implicit reasoning is therefore a
simple syllogism: 1) Personal development is an element of human dignity (as
per Ferreira); 2) autonomy is
integral to personal development; 3) therefore autonomy must also be an element
of human dignity.
In the same
concurring opinion of Ackermann J in Ferreira,
autonomy is also associated with another core concept of the South African
Constitution, namely the open society – the concept ‘open society’ is central
in both the limitation and interpretation clauses of the Bill of Rights.
Again, the term ’autonomy’ is not used, but instead concepts such as ‘personal
development’ and ‘own conception of the good life’ that are associated with
"open society" . . . 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".
footnote to this paragraph, Ackermann J approvingly quotes Popper from his magnum opus The Open Society and its Enemies in which Popper refers to an open
society as "the society in which individuals are confronted with personal
decisions" that is contrasted with the "closed society" or
"the magical or tribal or collectivist society". Since the concept of
an open society suggests autonomy, and the open society is a core concept in
the Constitution, autonomy is established as a general constitutional value.
Ackermann J’s concurring opinion in Ferreira represents an important step in the emergence of autonomy in South African
human rights law in general and as an element of human dignity in particular,
the absence of the explicit use of the term ‘autonomy’ in these paragraphs,
however, renders it tentative in nature.
period 2000-2004, autonomy was placed center stage in S v
case that tested the constitutionality of the legal prohibition of commercial
sex. Counsel for the applicants argued that the rights to human dignity,
freedom and privacy should be clustered together under the global concept of
autonomy. Underlying this argument is clearly the idea that autonomy is at the
core of all three these rights. The applicants’ argument was dealt with in the
concurring opinion of Sachs and O’Regan JJ.
The Court did not specifically comment on the relationship between autonomy and
the relevant rights, but rejected applicants’ argument on the grounds that
positing an independent right to autonomy would neither be “useful” for the purposes of constitutional analysis, nor would it
be “appropriate” to base constitutional analysis on a right not expressly
included within the Constitution. By rejecting the applicants’ argument purely
on these formal grounds and not addressing the underlying substantive claim that
autonomy is at the core of the rights to human dignity, freedom and privacy,
the judgment can be interpreted as an implicit confirmation of this substantive claim.
In 2007, this implicit
confirmation was made explicit by O’Regan J in her dissenting opinion in NM v Smith.
This case dealt with the unauthorized publication of the identities of three
HIV-positive women in the biography of a high-profile politician. The three
women were successful in claiming damages for infringement on their privacy,
dignity and psychological integrity. It should be noted that the dissent
primarily relates to the majority’s finding on the
facts and not the interpretation of constitutional rights.
O’Regan J clearly posits autonomy as a constitutional value that
underlies human dignity, freedom and privacy:
all these constitutional rights [human dignity, privacy and freedom] is the
constitutional celebration of the possibility of morally autonomous human
beings independently able to form opinions and act on them…Our Constitution
seeks to assert and promote the autonomy of individuals…
Finally, a majority
opinion of the
that explicitly confirms autonomy as a core element of human dignity was
realized in Barkhuizen v Napier
coincidentally delivered on the same day as the NM judgment. Barkhuizen concerns the constitutionality of a time limitation clause in a short-term
insurance policy that prevents an insured claimant from instituting legal
action if summons is not served on the insurance company within the time limit
set out in the clause. Although it has been contended that such a clause is
unconstitutional in that it violates the right to approach a court for redress,
the Court upheld the principle of pacta
sunt servanda (agreements must be honored) as an embodiment of the
constitutional values of human dignity and freedom. The majority per Ngcobo J
specifically deals with autonomy and states unequivocally that autonomy “is the
very essence of freedom and a vital part of dignity.”
This judgment therefore marks an important milestone in the legal development
surrounding human dignity in South African law.
This position is
echoed in the recent judgment of MEC for
that will now be the locus classicus concerning the wearing
of cultural and religious symbols at public schools in
. In this case the
majority of the
per Langa CJ stated that an “entitlement to
respect for the unique set of ends that the individual pursues” is a “necessary
element of freedom and of dignity of any individual.”
Applying once again the classic liberal position that autonomy is a conditio sine qua non for the
individual’s pursuit of his or her “unique set of ends”, autonomy is confirmed
as a “necessary element” of human dignity.
In conclusion, we
have seen how autonomy emerged: tentatively initially, then gradually drawing
more attention, and in 2007 eventually culminating in the clear recognition of
its status and role in
’s human rights law. In particular,
the Barkhuizen judgment finally
provides clear binding authority that autonomy is an element of human dignity.
C. Defining autonomy
its authoritative role in illuminating the role of autonomy (as an element of human dignity), the Barkhuizen judgment also authoritatively provides the meaning of autonomy: the Court defines
autonomy as “the ability to regulate one’s own affairs, even to one’s own detriment.”
This definition firstly confirms that autonomy corresponds with personal
self-determination or what in philosophy is generally called personal or
individual freedom; and secondly, also implies – logically, and through the use
of the word “ability” – the personal psychological capacity for self-determination. This conceptual overlap between
autonomy and personal or individual freedom is confirmed by the Court’s
reference to autonomy as the “very essence of freedom.”
In NM, O’Regan J also provides two
descriptions of autonomy, each of which we will respectively consider. The
first NM definition describes
autonomy as “human beings choosing how to live their lives within the overall
framework of a broader community.”
The first part of this definition (human beings choosing how to live their
lives) is essentially similar to the Barkhuizen definition, while the second part (within the overall framework of a broader
community) expands on it by explicitly imbedding autonomy in its wider social
context. This socially integrated nature of autonomy has gradually been
established as an important part of the Court’s conception of autonomy, which
development deserves attention.
some concurring opinions dating from 1995 and 1996 endeavored to separate autonomy
from social interdependence in an effort to differentiate between autonomy and
freedom, the latter being posited as a socially integrated enabler of autonomy.
While freedom was posited as what
termed ‘positive freedom’ – as requiring positive state intervention – autonomy
was used to denote ‘negative freedom’. This atomistic rendering of autonomy had
cracks of incoherence, as it admitted to the socially dependent nature of at
least the development of autonomy.
turning point came in the 1998 judgment of National
Coalition of Gay and Lesbian Equality v Minister of Justice which released
autonomy from its atomistic confines into a social context, and effectively did
away with the independence-interdependence distinction between autonomy and
freedom. Sachs J’s concurring opinion is a clear statement of this position:
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...While recognising the unique worth of each person, the
Constitution does not presuppose that a holder of rights is as 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.
socially integrated conception of autonomy does not imply that autonomy can be
limited by dominant social values any more than would an atomistic conception
of autonomy; what differentiates a socially integrated conception from an
atomistic conception is that the former realizes the necessity for positive
state action to enable autonomy in its social context. Sachs J rationalizes
this approach of positive state intervention in his concurring opinion in Ferreira:
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.
In this way
the state enhances autonomy and human dignity,
and therefore fulfills its duty to promote the values of the Constitution.
This is perhaps most vividly illustrated by the series of gay rights cases, in
specifically pointed out legal and social recognition of gay and lesbian
people’s personal relationships as vital to their human dignity. This entailed
not only a negative duty on the state to refrain from interfering with personal
relationships (decriminalization of sodomy),
but also a positive duty to grant the social benefits of legal recognition of
personal relationships (for instance the legalizing of gay adoption and
The first NM definition can therefore be welcomed
as an explicit confirmation of the socially integrated nature of autonomy,
which is evidently an important consideration when interpreting and applying
autonomy. This socially integrated conception of autonomy is also perfectly
compatible with the Barkhuizen judgment, which indeed applies and protects autonomy within the highly socially
interdependent context of contractual relations.
Let us now
turn to the second definition expounded by O’Regan J in her dissenting opinion
in NM. A few paragraphs after
providing the first definition, she also describes autonomy by quoting a
passage from Scanlon:
Scanlon described in his seminal essay on freedom of expression, an autonomous
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.”
Constitution seeks to assert and promote the autonomy of individuals in the
sense contemplated by Scanlon.
The second NM definition – the Scanlon quote – is in
a significant way a departure from the Barkhuizen definition: it idealistically insists that an autonomous individual “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…” The reality is that most of the values that
people are brought up with are seldom, if ever, the subject of rational
evaluation – most people tend to accept the core values with which they are
brought up and only spend mental energy on rationally evaluating certain life
decisions within a largely given value-context. What is important from a
liberal perspective is that an individual must have the ability to challenge any received wisdom and essentially make up
her own mind, as expressed in the Barkhuizen definition as well as more elaborately in Ackermann J’s reference to the open
society in Ferreira.
The ability to regulate one’s own affairs (or choose one’s own life) indeed
implies that one is allowed to make decisions without being (morally or
legally) obliged to rationalize such decisions – it implies that one does not need to have any rational awareness
in such regulation (or choosing). Although a statement of the ideal, the second NM definition per the Scanlon quote
is therefore not compatible with the majority position in Barkhuizen.
To conclude this
discussion on the meaning of autonomy, we will look at a remark that O’Regan J
makes in NM that may point the
direction for further legal analysis. She makes an important connection between
autonomy and the broad meaning of human dignity as inherent worth, stating that
the protection of autonomy “flows from our recognition of individual human
Though this causality is not logically apparent, it is not explained further.
Similar to the earlier references in Ferreira to personal development, the application of classic liberal political theory is
implied to complete the logic.
causality depends on at least the following two values: 1) Recognition of every
individual’s inherent value means that the individual’s own good or well-being is allocated great value; and 2) every
individual’s own good is best provided for by empowering her to take her own means of pursuing it. In the future application
and conceptual refinement of autonomy in case law, it will be essential that
these values that underlie autonomy and bind it to human dignity, be given due
consideration by the Court.
its introduction to law through the interim Bill of Rights in 1993, human
dignity has been at the centre of South African constitutional analysis. Although it was clear from the onset that
human dignity is a broader concept than common law dignity, the parameters of
this conceptual breadth were to gradually crystallize in case law: while
inherent worth and self-worth were recognized early on as elements of human
dignity, binding authority for autonomy as an element of human dignity was only
attained in 2007, following a steady increase in case law of analysis of
autonomy as concept. This conceptual clarity marks a certain coming of age of
human dignity in South African law, unlocking a wealth of philosophical works on
autonomy that can be drawn on in the future application of human dignity,
ranging from the classics such as Mill and Kant, to contemporary philosophers
such as Feinberg and Dworkin.
Epilogue: Implications for biolaw and
international stage, conceptual clarity regarding human dignity can also be
constructively applied – especially to biolaw and bioethics discourses. In this
epilogue, I will suggest some brief thoughts on the possible implications of
this conceptual clarity for biolaw and bioethics.
far-reaching and controversial aspect of the biological revolution is certainly
the possibility of human genetic engineering. In the debate about human genetic
engineering, the human dignity platform has generally been monopolized by
conservatively-leaning commentators, who generally argue either for a
comprehensive ban on such technology, or for only allowing such technology for
therapeutic purposes. However, given the analysis of human dignity in this
paper – and especially the prominent role of autonomy as an element of human
dignity – the human dignity platform can offer strong arguments to the permissive
side in the human genetic engineering debate. Consider for instance the
following argument: Human genetic engineering will enable humankind to shape
our own future on an entirely new level; we will self-determine the genetic characteristics of our species, instead
of leaving such determination to the random forces of nature. From this
perspective it can be argued that human genetic engineering radically enhances
autonomy and hence human dignity.
analysis of human dignity as autonomy also implies an important limitation on
the use of human genetic engineering. Autonomy – the ability to regulate one’s
own affairs and to choose how to live one’s live within the overall framework
of a broader community – implies that one should have a choice of a reasonable array of different life plans available to
members of one’s society. Apart from societal and other environmental factors,
a person’s genetic endowment can obviously also heavily impact on the scope and
content of the array of different life plans available to such person.
Accordingly, human genetic engineering should not be used in such a way as to
result in the reduction of this reasonable array of different life plans.
Essentially, autonomy should not be used to compromise itself; prospective
parents’ autonomy to use genetic engineering should be limited by the
prospective child’s future capacity for autonomy.
question therefore hangs above the therapy-versus-enhancement demarcation that
characterizes much of the current debate on human genetic engineering. If human
dignity is accepted as the paradigm for this debate, should the demarcation of
ethical and legal permissibility not rather be drawn between those uses of
genetic engineering that compromise the capacity for autonomy, and those that
are neutral or enhancing towards the capacity for autonomy?
The author would like to acknowledge the support of the Mercator
Foundation (through the
Humanism in the Age of Globalization
Charter of the United Nations, its constitutional instrument, commits its
members, in its preamble, to the “dignity and worth of the human person.” The
Universal Declaration of Human Rights begins, in the preamble, with the statement
that the inherent “dignity” and the “equal and inalienable rights” of all
persons are the “foundation of freedom and justice and peace.” The Universal
Declaration goes on to assert in s 1 that “[a]ll human beings are born free and
equal in dignity and rights.” The American Convention on Human Rights states in
s 11(1) that “everyone has the right to have his honor respected and his
dignity recognized.” The African Charter on Human and Peoples’ Rights states in
s 5 that “[e]very individual shall have the right to the respect of the dignity
inherent in a human being.”
Schulman. Bioethics and human dignity. Staff working paper. The President’s
Council on Bioethics.
Harris, Clones, Genes, and Human Rights, in The Genetic Revolution and Human Rights 61, 66 (Justine Burley, ed., 1999).
See for instance: (in the
238 at 273, 92 SCt 2726 (1972); (in
) R v Oakes (1986) 19 CRR 308 at
) Francis Coralie Mullen v Administrator,
(1981) 1 SCC 608 at 618-619.
website can be visited at <http://www.constitutionalcourt.org.za>.
Aurel Kolnai, Dignity, 51(197) Philosophy 251-271, 253
famously said: “Dignity does not consist in possessing honors, but in deserving
S v Makwanyane and Another (CCT3/94)
 ZACC 3; 1995 (6) BCLR 665; 1995 (3) SA 391 (6 June 1995) para 329.
Christian Lawyers Association of
& others v Minister of Health & others 1998 (4) SA 113 (T), 1998
(11) BCLR 1434 (T).
Consensual sexual conduct between adults in private has
been freed from criminal restriction, not only because sexual orientation is
specifically listed in the Bill of Rights as a characteristic that may not be
the grounds for unequal treatment, but on wider grounds of dignity and privacy
(National Coalition for Gay and
Lesbian Equality and Another v Minister of Justice and Others (CCT11/98)
 ZACC 15; 1999 (1) SA 6; 1998 (1) BCLR 1517 (9 October 1998), hereafter referred to as National Coalition I, paras 28-32, per Ackermann J for the Court;
paras 108-129, per Sachs J with whose sentiments Ackermann J associated himself
– para 78). Same-sex partners have been held to be entitled to access to statutory
health insurance schemes (Langemaat v Minister of Safety and Security 1998
(3) SA 312 (T)). The right of permanent same-sex partners to equal spousal
benefits provided in legislation has been asserted (Satchwell v President of
the Republic of South Africa 2002 (6) SA 1 (CC)). The protection and
nurturance same-sex partners can jointly offer children in need of adoption has
been put on equal footing with heterosexual couples (Du Toit v Minister of
Welfare and Population Development 2003 (2) SA 198 (CC)). The right of a
same-sex partner not giving birth to a child conceived by artificial
insemination to become the legitimate parent of the child has been confirmed (J
v Director General: Department of Home Affairs 2003 (5) SA 621 (CC)). The
equal right of same-sex partners to beneficial immigrant status has been
established (National Coalition
for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others (CCT10/99)  ZACC 17; 2000 (2) SA 1; 2000 (1) BCLR 39 (2 December 1999), hereafter referred to as National Coalition II). The common law has been developed by
extending the spouse’s action for loss of support to partners in permanent
same-sex life relationships (Du Plessis v Road Accident Fund 2004 (1) SA
359 (SCA)). Finally, same-sex partners’ right to conclude a marriage has
been established – first by the Supreme Court of Appeal (Fourie and Another v Minister of Home Affairs and Another (232/2003)  ZASCA 132 (30 November 2004), hereafter referred to as Fourie (SCA)) and subsequently by the
Constitutional Court (Minister of Home
Affairs and Another v Fourie and Another (CCT 60/04)  ZACC 19; 2006
(3) BCLR 355 (CC) (1 December 2005), hereafter referred to as Fourie (CC)).
MEC for Education:
and Others v Pillay (CCT
51/06)  ZACC 21 (5 October 2007).
and Others (Sex Workers
Education and Advocacy Task Force and Others as Amici Curiae (CCT31/01)  ZACC 22; 2002 (6) SA 642; 2002 (11)
BCLR 1117 (9 October 2002).
2 of the Constitution of the
, Act 108
of 1996. <http://www.info.gov.za/documents/constitution/index.htm>
7 of the Constitution, which reads: “7(1) This Bill
of Rights is a cornerstone of democracy in
. It enshrines the
rights of all people in our country and affirms the democratic values of human
dignity, equality and freedom.”
s 36 of the Constitution, which reads: “36(1)
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…”
39 of the Constitution, which reads: “39(1) 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…”
10 of the Constitution.
National Coalition I para 30.
National Coalition I para 30; National Coalition II paras 41, 54; Fourie (CC) paras 50, 114, 151-152.
Christian Lawyers Association of South
Africa & others v Minister of Health & others 1998 (4) SA 113 (T),
1998 (11) BCLR 1434 (T), in which the Transvaal Provincial Division of the High
Court per McCreath J held that the Constitution does not change the common law
position of the foetus as not being a
legal persona (1443B-C, 1437C-D). The Court commented that: “One of the requirements
of the protection afforded by the nasciturus rule is that the foetus be born alive. There is no provision in the
Constitution to protect the foetus pending the fulfilment of that condition.”
Makwanyane para 328; Dawood para 35.
National Coalition I para 28.
Makwanyane para 329; National Coalition I para 28; Fourie (SCA) para 24; National Coalition II para 54; Fourie (CC) paras 50, 61; Hoffmann para 37.
National Coalition II para 54; Fourie (CC) paras 95, 112;
Cf. Nick Bostrom, Dignity and Enhancement (2007).
v Tommie Meyer Films (Edms) Bpk 1979 1
SA 441 (A) is the locus classicus on
common law dignity in South African law. Common law dignity has been defined as
“that valued and serene condition in his social and individual life which is
violated when he is, either publicly or privately, subjected by another to
offensive and degrading treatment, or when he is exposed to ill-will, ridicule,
disesteem or contempt” (S v Umfaan 1908 TS 62 67); “self-respect” (S v Holliday 1927 CPD 395 400); “right to tranquil enjoyment” (S
v Holliday 1927 CPD 395 401); “his
proper pride in himself” (S v Tanteli 1975 2 SA 772 (T) 775).
Bernstein and Others v Bester NO and Others (CCT23/95)  ZACC 2; 1996 (4) BCLR 449; 1996 (2) SA 751 (27 March 1996)
Khumalo and others v Holomisa (CCT53/01)
 ZACC 12; 2002 (5) SA 401; 2002 (8) BCLR 771 (14 June 2002) para 27.
S v Williams and others (CCT20/94)
 ZACC 6; 1995 (3) SA 632 (9 June 1995) paras 47, 77; City Council of Pretoria v Walker (CCT8/97)  ZACC 1; 1998 (2)
SA 363; 1998 (3) BCLR 257 (17 February 1998) paras 113, 132; Prince v President of the Law Society of the
Cape of Good Hope (CCT36/00)  ZACC 1; 2002 (2) SA 794; 2002 (3) BCLR
231 (25 January 2002) para 47.
Mandela v Felati (1994) 4 BCLR 1 (W); Gardener v Whitaker (1994) 5 BCLR 19
(E); Potgieter v Kilian (1995) 11
BCLR 1498 (N).
Haysom was Chief Legal Advisor to President Nelson Mandela, and is currently
Director for Political Affairs in the office of the Secretary General of the
UN. Haysom’s biographical notes can be viewed at
R.L. Haysom, Dignity, in South African Constitutional Law: The Bill of
Rights 123, 131 (M.H. Cheadle, D.M. Davis, N.R.L.
Haysom, eds., 2002).
citation refers to Ackermann J’s opinion at para 146, while it is apparent from
the context that he intend to refer to para 46. It is assumed that the ‘1’ was
a typographic error.
Feinberg, The Child’s Right to an Open Future, in Whose Child? Children’s
Rights, Parental Authority, and State Power 124-153, 140. (W. Aiken and H. LaFollette, eds., 1980).
Cf. Isaiah Berlin, Four Essays on
Liberty (1969) 131-34; Ian Carter, Positive and Negative
, in The Stanford Encyclopedia of Philosophy (Edward N. Zalta, ed., Winter 2007 Edition)
See in general John Stuart Mill, On Liberty; for a discussion in the context of the parent-child relationship, see Feinberg 143-44; for a discussion in the
context of biolaw and bioethics, see Jacob Dahl Rendtorff, Basic Principles
in Bioethics and Biolaw, paper delivered
at theTwentieth World Congress of Philosophy, in Boston,
Massachusetts, August 10-15, 1998. <http://www.bu.edu/wcp/MainBioe.htm>.
Ferreira paras 98, 107; Bernstein para 150;
footnote 18 to para 51.
Coetzee v Government of The
(CCT19/94)  ZACC
7; 1997 (4) BCLR 437; 1997 (3) SA 527 (22 September 1995) para 44; Ferreira para 251; Bernstein para 150.
Ferreira paras 98, 107; National Coalition I paras 32, 117.
Bernstein para 151; National Coalition II footnote 50 to para 41.
Ferreira para 46 per Ackermann J.
tellingly elaborates on autonomy by referring to self-actualization (at p131):
“In this sense [of respect for autonomy], the subject’s worth as a
self-actualising being must be protected.”
In S v
at para 146, Sachs J declares in his concurring judgment: “The concept of an
open society must indeed be regarded as one of the central features of the bill
his concurring opinion in Ferreira at
para 251 Sachs J uses ‘autonomy’ explicitly as an element of freedom and
and Others (Sex Workers
Education and Advocacy Task Force and Others as Amici Curiae (CCT31/01)  ZACC 22; 2002 (6) SA 642; 2002 (11)
BCLR 1117 (9 October 2002).
NM and Others v Smith and Others (CCT69/05)  ZACC 6 (4 April 2007).
125. In his concurring opinion, Langa CJ at para 92
is therefore able to associate himself with the analyses of constitutional
rights by both Madala J for the majority and by O’Regan J: “I … associate
myself with the discussions of the rights to privacy and dignity in both Madala
and O’Regan JJ’s judgments…”
Barkhuizen v Napier (CCT72/05) 
ZACC 5 (4 April 2007).
57. The Court employed the term ‘self-autonomy’,
which is an unnecessary tautology. It does not seem that the Court intended
‘self-autonomy’ to mean anything different from ‘autonomy’.
MEC for Education:
and Others v Pillay (CCT
51/06)  ZACC 21 (5 October 2007).
64 footnote omitted.
Coetzee para 44 per Sachs J
(concurring); Ferreira paras 250-51
per Sachs J (concurring); and Bernstein para
150 per O’Regan (concurring).
the quote from Nedelsky in the footnote to Ferreira para 251 per Sachs J (concurring).
National Coalition I para 117, footnote
omitted. Also see
para 82 per Sachs and O’Regan JJ (concurring) and Volks NO v Robinson and
Others (CCT12/04)  ZACC 2; 2005 (5) BCLR 446 (CC) (21 February 2005)
paras 154 and 156 per Sachs J (dissenting).
7(2) of the Constitution, which reads: “The state
must respect, protect, promote and fulfil the rights in the Bill of Rights.”
National Coalition I para 32.
National Coalition II para 54; Du Toit; Fourie (CC) para 50.
Scanlon, A Theory of Freedom of Expression, 1
Philosophy and Public Affairs 204,
The role of autonomy above.
non-liberal state may, for instance, promote (or even enforce) specific
versions of the good life because it
perceives these as protecting and advancing its citizens’ inherent worth.