Download this publication - PULP

184 Chapter 7
whether a foetus is a beneficiary of the protections of the Bill of Rights,
though the one existing case that addressed the question denied that a
foetus would be entitled to such protections. 42 In general, to whom then
do the protections of the Bill of Rights apply? Could ‘everyone’ include
non-human animals?
Using the fundamental grundnorm identified in the first section of this
article suggests an answer to this question: We must avoid arbitrarily
excluding anyone from the protections afforded by fundamental rights. As
such, ‘everyone’ in the Bill of Rights should be interpreted in the context of
each right and be inclusive of every individual with the fundamental
interests necessary to be capable of benefiting from a particular right and
needing its protection. Given that non-human animals have fundamental
interests which require protection, this interpretation provides an opening
to enable them to be beneficiaries of the entitlements afforded by the Bill
of Rights.
It is important to clarify that not all rights will be of application to
animals and some will only apply to a partial degree. This is an important
point and, significantly, applies to human beings and other legal entities as
well. Section 8(4) provides a useful illustration of this point in relation to
the rights of a company which it provides must vary with the nature of
the entity concerned: thus a company may need certain rights to privacy
or to property, 43 but it cannot really have a right not to be tortured or the
right to vote. Though there is no similar provision applying to natural
persons, it is clear that such a provision must be inferred: Whilst infants
may have a right to freedom and security of the person, they cannot claim
political rights which are meaningless to them. Similarly, rights to freedom
of religion and to trade and occupation do not generally apply to them given
their lack of capacity to exercise such rights. In the same way that infants
do not have the right to vote or to trade, it would be meaningless for
a chimpanzee to be granted such rights. 44 However, the right to be free
from all forms of violence, and the right not to be tortured are critically
important both for infants and for chimpanzees. Similarly, many animals
may also require certain rights to live in a habitat appropriate to their
needs (a variant of the right to property), the right not to be deprived of
the means of living (at least certain negative protections for socioeconomic
rights for wild animals), and the autonomy to live lives that are
good in their own terms without undue human interference (certain
freedom rights would thus be applicable to them). Thus, it is clear that
42
See Christian Lawyers Association of SA v Minister of Health 1998 4 SA 1113 (T).
43 See, eg, Investigating Directorate: Serious Economic Offences v Hyundai Motor Distributors
2001 1 SA 545 (CC); First National Bank of SA Ltd t/a Wesbank v Commissioner, South
African Revenue Service; First National Bank of SA Ltd t/a Wesbank v Minister of Finance
2002 4 SA 768 (CC).
44 There is simply no interest in these beings having the right to vote and consequently
there is no right: ‘Nothing is blighted when a rabbit is deprived of the right to vote, or a
worm of the free exercise of religion’ (M Nussbaum Frontiers of justice (2006) 361).