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176 Chapter 7
which is S v Makwanyane. 8 The majority judgment of Chaskalson P
recognises the importance of adopting a ‘purposive and generous’
approach to interpretation that ‘gives expression to the underlying values of
the Constitution’. 9 Such an interpretation must construe rights 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 chapter three of which it is part’. 10 These
statements were confirmed by a number of judges: 11 Mokgoro J, for instance,
stated that constitutional interpretation requires reference to ‘a system of
values extraneous to the constitutional text itself, where these principles
constitute the historical context in which the text was adopted and which help
to explain the meaning of the text’. 12
The interpretive method of the court thus suggests the importance of
history in construing the value-based choices that judges are to make when
interpreting the Constitution. What is necessary, at a minimum, is to provide
some substantive understanding of the nature of the injustices of the past. In
so doing, we come to understand what moral and political failures must be
avoided in the future.
Understanding the nature of the injustices of the past is a complex task
and can be prone to over-simplification. 13 I thus do not seek in this article
to provide an exhaustive analysis thereof. However, I wish to focus on
a particularly egregious element of South African history – something I
would suggest is relatively uncontroversial – and then seek to draw out a
central moral principle that must guide constitutional interpretation in the
future. The application of this principle to non-human animals will then be
considered.
1.2 Apartheid and the grundnorm of non-arbitrariness
One of the key features of South African history has been a denial of
equal treatment to black people who were treated in an inferior manner
simply because of their race. 14 Indeed, in providing some historical context
to the adoption of the Constitution, the Constitutional Court has stated that
8
1995 3 SA 391 (CC).
9 Makwanyane (n 8 above) para 9.
10 Makwanyane (n 8 above) para 10. The case dealt with the interim Constitution and
hence reference is made to chapter three. The Bill of Rights is chapter two in the final
Constitution.
11 See, eg, the famous dictum by Mahomed at para 262 and O’Regan’s statement at para
332 that the values of the Constitution are ‘not those that have informed the past’.
12 Makwanyane (n 8 above) para 302.
13 This is compellingly pointed out in P de Vos ‘A bridge too far? History as context in the
interpretation of the South African constitution’ (2001) SAJHR 1 - 33.
14 C Albertyn & B Goldblatt ‘Equality’ in Woolman et al Constitutional law of South
Africa 35-3 characterise this as follows: ‘Under colonialism and apartheid, the colour of
one’s skin determined whether one could vote or access quality education, where one
could own land or live, the services and amenities one could enjoy, and the nature and