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Does transformative constitutionalism require the recognition of animal rights? 185
applying the Bill of Rights to animals does not lead to absurdity but only to
the affording of protections for their most fundamental interests, many of
which they share with humans.
Though a reading of the term ‘everyone’ that includes animals does not
strike me as overly forced, there are certain objections that must be
responded to, if it is to be entirely persuasive. The first problem relates to the
fact that, traditionally, the common law has recognised that only ‘natural’
and ‘legal persons’ are entitled to have rights. 45 Traditionally, it has been
that all and only human beings have been recognised as being ‘natural
persons’ with non-human animals being classified as ‘things’. 46 It would
thus seem to go against established doctrine in South African common
law to allow animals in the Constitution to claim the protection of
fundamental rights where they have been classified simply as ‘things’. 47
The difficulty with this argument is that it fails to recognise the
transformative effect the South African Constitution is meant to have on
the common law. The Constitution was not meant simply to replicate the
existing law but to change it to represent the values of a new era.
Importantly, section 39(2) states that ‘[w]hen interpreting any legislation,
and when developing the common law or customary law, every court,
tribunal or forum must promote the spirit, purport and objects of the Bill of
Rights’. It is thus a duty of judicial officers to develop the common law in
light of the spirit, purport and objects of the Bill of Rights. As was argued
in section 1 of this article, one of the key principles giving content to the
‘spirit, purport and objects of the Bill of Rights’ is a commitment to
equality and non-arbitrariness. The common law must therefore be
developed in light of that commitment: If the classification of animals in
the past as ‘things’, with no rights of their own was arbitrary, then that needs
to be rectified in the new constitutional order. The Constitution can thus
be seen to require the development of the common law to include nonhuman
animals within its ambit. This could be achieved in legal doctrine
in several ways.
First, the very vagueness of the term ‘everyone’ enables rights to
be extended to animals without necessarily finding that they should be
classified as ‘persons’. This approach would simply mean that the status of
animals will have to change in the common law without recognising what
their new status would be. It may be that something in between ‘things’ and
‘persons’ would be appropriate: A category of ‘beings’ could be developed,
for instance, which includes those who are capable of having rights but not
45 D Cronje ‘Persons’ in WA Joubert et al The law of South Africa (1999) para 341.
46 Sinclair (n 37 above) 4 - 5.
47
I have sought to argue against the rationality of this classification (even without the
assistance of the Constitution) and in light of the Animal Protection Act in Bilchitz (n
38 above) 43 - 50 and 65 - 68. For some judicial support for this line of argument, see
Cameron J’s judgment in National Council of Societies for the Prevention of Cruelty to Animals
v Peter Openshaw (462/07) 2008 ZASCA 78 RSA (NSPCA).