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Does transformative constitutionalism require the recognition of animal rights? 183
rights provide protection for an individual’s most basic interests: 39 If
animals are excluded from having such protections, they become
vulnerable to severe abuse. Immediately, the question that arises in this
context is whether or not the Bill of Rights applies to non-human animals.
Section 8 directly addresses the application of the Bill of Rights. In
relation to those who have duties imposed by the Bill of Rights, the
section is clear: Section 8(1) provides that the Bill of Rights is binding on
all organs of state; section 8(2) provides that the Bill of Rights is in fact
binding upon natural and juristic persons to the extent it is applicable to
them. Yet, in relation to the beneficiaries of the entitlements in the Bill of
Rights, there is a noticeable gap in the text. Section 8(4) provides that ‘[a]
juristic person is entitled to the rights in the Bill of Rights to the extent
required by the nature of the rights and the nature of that juristic person’.
Thus, the Bill of Rights expressly applies to juristic persons: Yet, it would
be absurd to suggest that the fundamental rights contained therein were
primarily designed to protect such entities as companies and nongovernmental
organisations. There is thus a clear omission in the
application clause of the Bill of Rights, in that it does not define who, in
general, are the beneficiaries of the rights contained therein.
Since there are no general provisions in this regard, it is necessary
to interpret the Constitution to determine the beneficiaries of the rights
contained therein. In doing so, it is necessary to consider this question in the
context of each right. Certain rights are clearly demarcated as being
restricted to certain beneficiaries: For instance, political rights are
conferred only on citizens (section 19). The same is true of citizenship
rights (section 20) and freedom of trade rights (section 22). Certain of the
labour rights are restricted to employers, workers and trade unions
respectively (sections 23(2) to 23(4)); children’s rights are only applicable to
children (section 28), and the rights in section 35 are of application only to
those who are arrested, detained and accused. The remaining rights in the
Bill of Rights are phrased such that they benefit ‘everyone’: For instance,
‘everyone has the right to life’ (section 11). This phrasing of the rights
replaced the use of the term ‘every person’ in the interim Constitution.
Whilst Woolman attributes this change to the move towards more natural
locutions in the final Constitution, he recognises that the extension of this
term is ‘fuzzy’. 40 This means that it is important to interpret what lies within
the extension of this term. There is some case law that has sought to fill out
who is included within the category of ‘everyone’. Non-citizens of South
Africa have, for instance, been recognised as beneficiaries of certain rights
in the Bill of Rights. 41 There is no definitive decision concerning
39
For the relationship between fundamental interests and fundamental rights, see
40
D Bilchitz Poverty and fundamental rights (2007) 47 - 74.
S Woolman ‘Application’ in S Woolman et al Constitutional law of South Africa (2006) 31 -
41
35.
See (n 27 above).