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182 Chapter 7
capacity to have rights in their own right. 37 Though some protections are given
to animals through the Animal Protection Act, legal scholars have been
divided as to whether these protections confer rights on animals. 38 The
grundnorm of interpretation argued for in this section means that the
Constitution must be interpreted so as to ensure that no individual is
subjected to differential (and prejudicial) treatment without any adequate
justification. In light of this fundamental principle and, if the Constitution is not
to be a fundamentally flawed and inconsistent document, it must be read in
such a way so as not arbitrarily to discriminate against non-human animals.
The next section seeks to employ the underlying grundnorm to explore the
interpretive possibilities within the Constitution for granting animals the
protections they deserve.
2 Interpretive possibilities in the Constitution for
extending rights protection to non-human animals
2.1 Applying the Bill of Rights to non-human animals
The provisions of the Constitution that would be of greatest importance to
non-human animals are contained within the Bill of Rights. Fundamental
36 history and the Constitution. There has been a very short history of a just democratic
order in South Africa and a long history of law rooted in injustice. Indeed, there are only
15 years of jurisprudence thus far by the Constitutional Court and no cases by that court
on the question of the rights of non-human animals. In this light, the ‘fit’ requirement has
to be understood differently to systems in which there is a long history of constitutional
democracy and jurisprudence. In this context, it would in many ways be linked to the
‘value’ requirement but require a connection to the transformative purposes of the
Constitution: A decision will ‘fit’ with the recent history of the legal system if it gives
expression to the moral principles required to transform South African society from its
apartheid past. Secondly, I would contend that the interpretive approach I have adopted
does in fact meet the requirements of formal justice in South Africa: Indeed, it gives
concrete expression to and is fully consistent with a key transformative ideal of the
Constitution. Hence, I have sought to root my approach in South African history and
the moral lessons we can draw from it that provided the catalyst for the new
constitutional order. The test of an interpretation with ‘integrity’ is not whether the
implications in question are accepted by everyone in society nor whether they
reproduce the status quo: what is crucial is whether it faithfully constructs the
Constitution in light of the underlying principles of the new Constitutional order itself. I
have sought to show why a perhaps surprising conclusion for some about non-human
animals flows from the deep purposes of the new constitutional order itself. In this
sense, my interpretation seeks to exemplify the virtues of both ‘fit’ and ‘value’ as
explicated by Dworkin. Indeed, he states in Law’s empire (1986) 228 that ‘[w]hen a judge
declares that a particular principle is instinct in law, he reports not a simple-minded claim
about the motives of past statesmen, a claim a wise cynic can easily refute, but an
interpretive proposal: that the principle both fits and justifies some complex part of
legal practice, that it provides an attractive way to see, in the structure of that
practice, the consistency of principle integrity requires’. This article seeks to argue that
a recognition of animal rights and non-discrimination on grounds of species in the
Constitution represents, in the context of South African history and constitutional
practice, the realisation of ‘the consistency of principle integrity requires’.
37 J Sinclair ‘Introduction’ in Van Heerden et al Boberg’s law of persons and the family (1999) 5.
38
I have sought to canvass this debate in D Bilchitz ‘Moving beyond arbitrariness: The
legal personhood and dignity of non-human animals’ (2009) 25 SAJHR 38 43 - 50.