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174 Chapter 7
These statements give us a sense of the mission and purpose of the
Constitution, a purpose that aims at the highest ideals for South African
society. The first part of this article considers the historical backdrop to the
Constitution and some of its key provisions to argue for at least one
fundamental principle or grundnorm 5 that can be said to underlie the manner
in which constitutional interpretation is to be effected. The principle in
question requires that there be no arbitrary discrimination against any
particular group without a justifiable reason. This principle, it shall be
argued, applies not only to questions of race but to all forms of arbitrary
discrimination including that which is based on such grounds as gender, age
and sexual orientation. When making sense of the application of this
principle, the question arises as to whether arbitrary discrimination can occur
not only between members of the human species but between different
species. It is argued that there are no good grounds to focus arbitrarily on
human beings alone and so to exclude non- human species from the
application of this grundnorm. If this is so, the question arises as to how the
Bill of Rights can be interpreted so as to extend its protections to non-human
animals in seeking to realise an ethos of non-arbitrariness.
This raises the problem that there are no express provisions granting
protection to animals despite the fact that their fundamental interests can be
severely impacted upon by human beings. If non-human animals are the
proper subjects of our moral concern, and the Constitution (and wider legal
order) provides them with no protection, then it appears that there is a grave
omission at the heart of our constitutional order. A constitutional
amendment would be the most desirable route to remedy this omission. 6
However, in the absence of such an amendment, I attempt to develop in the
second part of this article an interpretation that, in light of the fundamental
grundnorm underlying the Constitution, abjures discrimination on grounds
of species and extends the protections of the Bill of Rights to non-human
animals. First, I consider the provision governing the application of the Bill of
Rights and why the designation ‘everyone’ in certain rights can be
interpreted to include non-human animals. Secondly, I consider the value of
human dignity and whether this indicates that the Bill of Rights was
designed only to provide protections for human beings. I argue that the
historical context of the Constitution provides strong reasons why the
protection of human dignity was included as a core value: The appellation
‘human’ was not designed, however, to exclude the recognition of other forms
of dignity or worth. The fundamental grundnorm of non-discrimination would
entail that the Constitution must be taken to recognise that all sentient creatures
have worth rather than focusing only on those who belong to a particular
5 I use the notion of a grundnorm in the sense of being a fundamental principle
underlying and underpinning the very legitimacy of the constitutional order in South
Africa.
6 The current political climate would not seem favourable to such an amendment. The
interests of animals rarely make it on to the agenda of parliament and, even in
relation to environmental legislation in South Africa, tend not to take centre stage.