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Does transformative constitutionalism require the recognition of animal rights? 193
law’ – has been interpreted to require that when any differentiation between
individuals or groups occurs in law, there must be a rational connection
between the differentiation and a legitimate government purpose. 68 Thus,
this requires consideration of the purpose of a provision, whether it is
legitimate and whether the differentiation furthers the purpose. For
animals this can itself provide some protection for, in many cases, there is
very little thought given to differentiations in treatment that occur in
relation to non-human animals and whether they are rationally connected
to a legitimate purpose or not.
The Court’s jurisprudence also contains another key feature of
importance in this context in its analysis of what constitutes unfair
discrimination in section 9(3). The Court states that ‘in the final analysis it
is the impact of the discrimination on the complainant that is the
determining factor regarding the unfairness of the discrimination’. 69 In
determining impact, the Constitutional Court outlines three important
factors: first, the position of the complainant in society, and whether they
have suffered as a result of past patterns of disadvantage; secondly, the
nature of the provision or power and the purpose sought to be achieved;
and finally, the extent to which the discrimination affects the rights and
interests of the complainant and whether it has led to an impairment of their
fundamental human dignity or constitutes an impairment of a comparably
serious nature. 70
Importantly, discrimination against non-human animals often has a
dire impact on them. Their interests are routinely ignored and they are
treated as mere inputs into an industrial process. 71 The factors outlined by
the Constitutional Court are also useful in assessing impact in relation to
animals. Indeed, they have been treated in detrimental ways since time
immemorial. Legal regulation and practices have historically been designed
largely around the human benefits to be obtained from exploiting them
without a consideration of their own interests and needs. Animals are also
profoundly vulnerable and human beings have the potential to determine
whether they are able to lead decent lives or in fact live at all.
68
Harksen v Lane 1998 1 SA 300 (CC) para 42.
69 Harksen v Lane (n 68 above) para 49.
70 Harksen v Lane (n 68 above) para 50.
71
The South African Nobel laureate for literature, JM Coetzee, accurately captured the
oppressive use of animals in modern factory farming when he compared it to the
destruction of humans in the holocaust and stated the following: ‘What a terrible crime
to treat human beings like cattle – if we had only known beforehand. But our cry should
more accurately have been: what a terrible crime to treat human beings like units in an
industrial process. And that cry should have had a postscript: What a terrible crime –
come to think of it, a crime against nature – to treat any living being like a unit in an
industrial process.’ This article ‘Exposing the beast: Factory farming must be called to
the slaughterhouse’ can be found at http://www.smh.com.au/news/opinion/exposingthe-beast-factory-farming-must-be-called-to-theslaughterhouse/2007/02/21/11717338
46249.html.