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Does transformative constitutionalism require the recognition of animal rights? 179
of law requires that public power must not be exercised arbitrarily or manifest
‘naked preferences’. 24
The second element of the Constitution that most clearly expresses the
grundnorm in question is the founding value of ‘achieving equality’
(section 1(a) of the Constitution) and, perhaps, most importantly the right to
equality in section 9 of the Bill of Rights. It is no accident that equality is
the first right enumerated there and the context of South African history
provides a clear understanding as to why this was so. The equality right
begins in section 9(1) with a requirement that ‘everyone is equal before the
law and has the right to the protection and benefit of the law’. Section 9(2)
allows for differential treatment such as affirmative action that is designed
to ensure that previously disadvantaged groups are able to achieve equality
given their unequal starting points. Section 9(3) prohibits unfair discrimination
by the state on a number of grounds that include race, sex, sexual
orientation, age, religion, and several others. Section 9(4) prohibits unfair
discrimination by individuals on those same grounds. 25 Importantly, the
grounds upon which unfair discrimination is prohibited are not exhaustive
and other grounds can be added. 26 The Constitutional Court has, for
instance, recognised that non-citizens may also not be subject to unfair
discrimination. 27 This is important in that it involves a rejection of the idea
that unfair discrimination may only occur on particular specified grounds:
rather, there is an affirmation and confirmation of the grundnorm I have
identified, which is that the Constitution sets itself against all forms of
arbitrary discrimination against individuals.
1.3 Arbitrariness and non-human animals
If all forms of arbitrary discrimination are proscribed by the
Constitution, the question then arises as to whether this applies only to
human beings or between human beings and other species as well. In
particular, the question arises whether failing to recognise that non-human
animals have fundamental rights constitutes a form of unfair discrimination
against them. In other words, can the grundnorm I have identified and that
24 See Pharmaceutical Manufacturers Association of SA: In Re Ex Parte President of the Republic
of South Africa 2000 2 SA 674 (CC) and Prinsloo v Van Der Linde 1997 3 SA 1012 (CC).
Ackermann J said in Makwanyane (n 8 above) para 156 the following: ‘[W]e have moved
from a past characterised by much which was arbitrary and unequal in the operation of
the law to a present and a future in a constitutional state where state action must be such
that it is capable of being analysed and justified rationally. The idea of the constitutional
state presupposes a system whose operation can be rationally tested against or in
terms of the law. Arbitrariness, by its very nature, is dissonant with these core concepts
of our new constitutional order.’
25 Sec 9(5) contains a presumption that discrimination is unfair on any of the listed grounds
unless proved to be fair.
26 See Albertyn & Goldblatt (n 14 above) 35 - 48.
27 Larbi-Odam v Member of the Executive Council for Education 1998 1 SA 745 (CC); and Khosa
v Minister of Social Development; Mahlaule v Minister of Social Development 2004 6 SA 505
(CC).