Download this publication - PULP

Does transformative constitutionalism require the recognition of animal rights? 187
temperament of judges for change and the degree to which they are
prepared to shift the traditional categories of the common law. 51
It could be objected that the following textual provision in the
Constitution suggests difficulties for the view that the term ‘everyone’ in the
Constitution could include non-human animals. For section 7(1) of the
Constitution provides that the Bill of Rights ‘is a cornerstone of democracy in
South Africa. It enshrines the rights of all people in our country and affirms
the democratic values of human dignity, equality and freedom.’ A plain
language reading of this provision, it could be argued, suggests that it is
only ‘people’ who are entitled to the protections contained in the Bill of
Rights.
In response, it is important to recognise the significant impact the
‘purposive’ and ‘contextual’ interpretive method can have on the
interpretation of a provision in the Constitution. 52 The seemingly plain
reading of a provision is not determinative and may in fact be modified by
such an approach. Section 7(1) itself expresses a commitment to the values
of human dignity, equality and freedom. I will consider some of these
values further below but, importantly, this provision itself and these values
can be seen at least partially to be an expression of the grundnorm which
requires that no individual be subjected to arbitrary treatment. As has been
argued, this would require the inclusion of non-human animals in the
category of rights-bearers. This means that the statement ‘enshrining the
rights of all people’ in our country must be interpreted to allow for this
possibility. Two interpretive strategies can be adopted: First, if ‘people’ is
taken to refer to human beings alone, it can be argued that this provision
does not seek to exclude consideration of whether other beings are also
entitled to the rights in the Bill of Rights. The provision in question is an
introductory provision and can simply be understood to indicate the shift
the Constitution has brought about from a past where the rights of all
people were not adequately protected to a situation in which they are
afforded such protections. The term ‘everyone’ in the Bill of Rights would
thus apply to a broader class of individuals than simply ‘people’ and could
thus include animals. Secondly, a more radical interpretation would follow
the reasoning outlined above and contend that the extension of the term
51 Given the judicial culture of minimalism in South Africa, I have sought to outline the
possibilities such that judges could choose an approach that they regard as involving the
least interference with the common law position. It must though be borne in mind that the
Constitution does mandate being prepared to transform the common law.
52 For a famous example of courts going beyond what appeared to be the plain meaning
of a text, see S v Mhlungu 1995 3 SA 867 (CC). This case has generated much academic
debate: See, eg, A Fagan ‘In defence of the obvious – ordinary meaning and the
identification of constitutional rules’ (1996) 12 SAJHR 545 - 570; E Fagan ‘The
longest erratum note in history’ (1996) 12 SAJHR 79 - 89. D Davis ‘The twist of
language and the two Fagans: Please sir may I have more literalism’ (1996) 12 SAJHR
504 - 512; E Fagan ‘The ordinary meaning of language – a response to Professor
Davis’ (1997) 13 SAJHR 174 - 177; D Davis ‘Of closure, the death of ideology and
academic sand castles – a reply to Dr Fagan’ (1997) 13 SAJHR 178 - 180.