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178 Chapter 7
going on, we could not justify giving Betty Prozac on the grounds that she
can’t sing or throwing Adam out of the choir because he has become
engaged.’ 18
One of the most fundamental moral deficiencies of apartheid was thus to
treat individuals in a prejudicial and inferior manner on the basis of
characteristics that provided no justification for such differential treatment. If
the new constitutional order is to represent a fundamental shift in this regard,
then it must set its face against this serious moral failing. Such a shift, however,
cannot only focus on discrimination on grounds of race: To do so would
reproduce the very arbitrariness that is meant to be discarded. Instead, the
focus must be on rejecting all forms of treatment which arbitrarily
discriminate against individuals. Thus, understanding the historical context in
which the Constitution occurs, suggests that there is a fundamental moral
principle or grundnorm that must guide the interpretation of the Constitution
in any transformed legal order in South Africa: ‘Do not subject any individual
to differential (and, particularly, prejudicial) treatment without any adequate
justification.’
When we consider the text of the Constitution itself, there are two key
features which appear to give expression to this grundnorm. Section 1, outlining
the founding values of the Republic, refers to the supremacy of the
Constitution and the rule of law. 19 The rule of law involves a number of
elements: One of its key facets though is a commitment to general principles
that apply across the board. Continued ad hoc, arbitrary treatment of
individuals would not be acting according to law but would be its antithesis. 20
A famous example of such a violation of the rule of law occurred in South
Africa: A law was passed by parliament to allow for the renewal of the
internment of Robert Sobukwe simply on the basis of a discretion exercised
by the Minister of Justice. 21 The clause was designed around Sobukwe and he
was the only person to have his internment extended under it. The
Constitution of South Africa deliberately sets itself against such laws
requiring that any justifiable limitation of a right can only occur through a law
of general application. 22 This requirement is rooted in the rule of law. 23 The
Constitutional Court has on several occasions confirmed the fact that the rule
18 J Rachels ‘Drawing lines’ in C Sunstein & M Nussbaum (eds) Animal rights: Current
debates and new directions (2004) 167.
19
Sec 1(c) of the Constitution.
20 See L Fuller The morality of law (1969) 46 - 49 for the argument that for law properly to
exist, it must meet certain criteria of generality. See also J Finnis Natural law and natural
rights 270 - 271.
21 General Law Amendment Act 37 of 1963.
22 Sec 36(1) of the Constitution.
23
See S Woolman & H Botha ‘Limitations’ in Woolman et al (eds) Constitutional law of South
Africa (2006) 34-47 - 34-67.