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Does transformative constitutionalism require the recognition of animal rights? 177
‘[f]rom the outset the country maintained a colonial heritage of racial
discrimination: In most of the country the franchise was reserved for white
males and a rigid system of economic and social segregation was
enforced.’ 15 In describing the central elements of the apartheid system, the
Court states that ‘[r]ace was the basic, all-pervading and inescapable
criterion for participation by a person in all aspects of political, economic
and social life’. 16
Mahomed J (and many of the other judges) recognised this as one of the
key facets of South African history that the Constitution was designed to take
us away from
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 institutionalised
and legitimised racism. The Constitution expresses in its preamble the need for a
‘new order … in which there is equality between ... people of all races’… The
past was redolent with statutes which assaulted the human dignity of persons
on the grounds of race and colour alone; section 10 constitutionally protects
that dignity. The past accepted, permitted, perpetuated and institutionalised
pervasive and manifestly unfair discrimination against women and persons
of colour; the Preamble, section 8 and the postamble seek to articulate an
ethos which not only rejects its rationale but unmistakenly recognises the
clear justification for the reversal of the accumulated legacy of such
discrimination. 17
It is important to analyse in a little more depth, the reasons why we regard
discrimination on grounds of race as so repugnant. Perhaps the key moral
wrong is that it separates out the treatment afforded to a person from any
morally relevant feature of their being: for instance, black people were subject to
inferior education not on the basis of any lack of ability but simply because
they were black. The system of apartheid thus enshrined into law a form of
moral arbitrariness that separated out the treatment of an individual from
their individual capacities.
As Rachels points out, ‘[f]acts about people often figure into reasons
why they may not be treated in this or that way. Adam may be ejected from
the choir because he can’t sing. Betty may be given Prozac because she
is depressed. Charles may be congratulated because he has just gotten
engaged … Notice, however, that a fact that justifies one type of treatment
may not justify a different type of treatment: unless something unusual is
14 availability of economic opportunities.’ I do not seek to deny that other factors
contributed to apartheid such as the economic motivation for cheap labour: Rather,
what I wish to assert here is that a central feature of apartheid was institutionalised
racial discrimination which, at least to some extent, was based upon an ideology of white
supremacy. See De Vos (n 13 above) 14 for a critique of construing the evils of South
African history too narrowly.
15 Ex Parte Chairperson of the Constitutional Assembly: In re Certification of the Constitution of the
Republic of South Africa, 1996 1996 4 SA 744 (CC) para 5.
16
Certification judgment (n 15 above) para 7.
17 Makwanyane (n 8 above) para 262.