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192 Chapter 7
individuals without any adequate justification. The South African
Constitution must thus be interpreted to avoid such a result and allow for
the worth of other creatures and their entitlement to certain fundamental
rights to be recognised. 67
2.3 Equality
Whilst the notion of human dignity may not provide an obstacle to the
recognition of animal rights, it does not actively advance the case for such
recognition. The value and right to equality can provide such a positive
case. I have in section 1 already outlined ‘the equality principle’ and the
case flowing from this for the recognition of animal rights. It is important
here to recognise that this case can be supported by some of the features of the
rich jurisprudence that the Constitutional Court has developed around the
equality right.
The first important feature of this jurisprudence is the requirement
of justification. Section 9(1) – which provides that ‘everyone is equal before
67
Metz in Woolman & Bilchitz (n 36 above) 214ff, in his response to this article, has
objected to my attempt to interpret the Constitution in this way through arguing that
such reasoning might violate obligations of compensatory justice that we have to black
Africans. I am in agreement that compensatory justice is important in South Africa and
that we need to take more account of African values and make amends for the wrongs
perpetrated in the past in relation to African culture. I take issue though with the
argument by Metz that compensatory forms of justice in South Africa require excluding
animals from being recognised as having worth or being entitled to fundamental rights
protections. First, it is important to point out that it is not only African culture that has
often ignored animal interests and arbitrarily failed to take them into account.
Discrimination against animal interests is widespread in many cultures and can be
likened to other phenomena such as patriarchy and heterosexism. If we are to respect a
culture, this does not mean adopting a static view of that culture and accepting all
features of that culture no matter how damaging to women, gay people or other
creatures. African culture must definitively be promoted but the elements of it that are
patriarchal, heterosexist and I would add ‘speciesist’ need to be shifted in light of the
new constitutional order. This is something the Constitutional Court has recognised in
the context of women’s rights in the case of Bhe v Khayelitsha Magistrate 2005 1 SA
580 (CC), where it recognised the need for customary law to develop in a dynamic
manner and to do so in a way that avoids entrenching historical patterns of
disadvantage in relation to women. Secondly, and perhaps most importantly, we should
reject the moral principle that we can compensate for wrongs done to a particular
group (black people) by perpetrating on a massive scale wrongs against another group
(non-human animals). If we assume, eg, that patriarchy has historically been a part of
African culture, Metz’s reasoning would lead us to the absurd conclusion that to
compensate black people for the wrongs done to them, we must perpetuate the wrongs
that have been done in their culture to women. Indeed, it could convincingly be
argued that groups such as women, gays and animals have claims for compensatory justice
as well in light of wrongs done in the past: Why does Metz only see compensatory justice
as applying to black people? I have sought instead to argue that transformative
constitutionalism requires that we reject the particular moral wrongs of apartheid not
only in relation to race but in relation to all groups. It is certainly not clear to me that
African culture (or any other culture) will not survive such a shift. Finally, as Metz
himself acknowledges, there is some dispute concerning the place of animals within
African culture (see his footnote 10) and thus, in light of developing scholarship in
this area, it certainly cannot be concluded that the shift I am arguing for is clearly out of
step with African moral theory (which itself is a very broad domain).