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188 Chapter 7
‘people’ depends upon who is included within the common law categories
of ‘natural’ or ‘juristic’ persons. If these categories are extended to include
animals, then the term ‘people’ could include them as well and therefore
does not pose any obstacle to extending rights to them. 53
2.2 Dignity
One of the possible stumbling blocks in the way of an interpretation that
would apply the rights in the Bill of Rights to non-human animals could
be the way in which the value of dignity is expressed in the Constitution.
Section 1(a) speaks about the foundational value of ‘human dignity’ and
the value of ‘human dignity’ is affirmed in section 7 of the Bill of Rights.
Section 10 states that ‘[e]veryone has inherent dignity and the right to have
their dignity respected and protected’. Though the actual content of the
right does not refer specifically to human beings, the heading of the right in
the Constitution is ‘human dignity’. This would seem to imply that only
human beings are covered by the right in question. Finally, section 36(1)
provides that rights may be limited only by a law of general application in
circumstances where this would be reasonable and justifiable within an open
and democratic society based on human dignity, equality and freedom.
In all instances where dignity is mentioned in the Constitution, it
appears to be confined to human beings. This could be said to suggest
that the focus of fundamental rights provisions that centrally protect the
dignity of individuals is upon human beings. Importantly, the usage of
the term human dignity in the South African Constitution is consistent
with international human rights instruments. 54 The historical context of
these legal documents, however, provides once again a clearer
understanding of the origins and purpose of the provisions relating to
‘human dignity’.
At the international level, the Universal Declaration of Human Rights
arose in light of the holocaust in which there had been a massive denial
of the equal worth of all human beings. The Nazi regime had sought to
distinguish between different classes of humans, with only Aryans having
equal worth and all others being inferior. Such denials of equal dignity for
all led to mass murder in the case of Jews, gypsies and certain other groups
whilst justifying the enslavement of groups such as Slavs. It was against the
backdrop of this history that the human rights instruments adopted after
the World War II sought to assert the fundamental equal worth of all
human beings in order to prevent such events from happening in future and
53
This latter proposal does not accord as well with ordinary language usage, though such
54
usage is not determinative of meaning in the Constitution.
See The Universal Declaration of Human Rights http://www.un.org/Overview/
rights.html, the International Covenant on Civil and Political Rights, and the
International Covenant on Economic, Social and Cultural Rights (n 29 above).