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Does transformative constitutionalism require the recognition of animal rights? 189
as a foundation for the fundamental rights that they proclaimed. 55 The
post-World War II German Constitution also consequently included
human dignity in its very first article and provided that it shall be
‘inviolable’ and that it is the duty of all state authority to respect and protect
it. 56 South African history also saw the denial of the equal dignity of
human beings, with the whole structure of society and governance being
based upon the superiority of whites and the inferiority of black people.
This in turn led to the massive denial of rights in the case of black people
and a range of practices – such as the ‘pass laws’ – that imposed
humiliation and insult upon them. The assertion of equal dignity in the
Constitution represents a repudiation of this history and a strong
commitment to ensure that no human being may be subject to such
reprehensible treatment in future. ‘[J]ust as the Germans have promised not
to shovel people into stoves, so too have South Africans promised never
again to treat people like cattle to be packed off to Bantustans or to be
slaughtered in the middle of the night.’ 57 The Constitutional Court has in
several cases confirmed this understanding of the meaning and function of
dignity in our constitutional order. Justice O’Regan, for instance, gives
clear expression to this idea when she writes that ‘[t]he Constitution asserts
dignity to contradict our past in which human dignity for black South
Africans was routinely and cruelly denied. It asserts it to inform the future,
to invest in our democracy respect for the intrinsic worth of all human
beings.’ 58
In the light of South African history, such a statement is clearly
poignant and of crucial importance. It perhaps represents a further
central principle of the Constitution that human beings should never be
treated again in a manner that fails to respect their dignity. Yet, as we have
seen, that very history mandates a strong ‘equality principle’ in the
interpretation of our Constitution that involves not arbitrarily subjecting
any individual to prejudicial treatment. If we are not to have a normative
conflict at the heart of our Constitution, these two principles must be
reconciled with one another. It will not do simply to ban arbitrary
discrimination amongst human beings for, as has been argued in section 1
above, that would undermine the very insights of the equality principle
55 As Woolman has put it, ‘“dignity” is the flip-side of “never again”’: See ‘Dignity’ in
S Woolman et al Constitutional law of South Africa (2006) 36-4. For this reason, he claims
that it is no accident that it plays a central role in German jurisprudence.
56 Basic Law for the Federal Republic of Germany http://www.iuscomp.org/gla/
statutes/GG.htm#1.
57
Woolman (n 55 above) 36-4.
58 Dawood, Shalabi and Thomas v Minister of Home Affairs 2000 3 SA 936 (CC) para 35.