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196 Chapter 7
differential capacities and capabilities of different species mean that, at
times, they may be subject to different treatment which is fully justified.
This will not be a violation of the principles of equality but rather an
expression of them. Thus, treatment must be related to the capacities of a
creature: It is no violation of the worth or interests of a dog to deny it the
right to vote; it would be a violation of those interests if individuals were
not prevented from kicking it and so respecting its right to bodily integrity.
Equal treatment of dolphins (and their rights to environment, property or
housing) would require we protect their aquatic environment while in
relation to elephants would mean we ensure they have sufficient space to
roam. Often, what will be required of us in relation to wild animals at least
is simply to desist from harming them rather than actively interfering in
their lives. 74 These examples simply seek to show that nondiscrimination
on grounds of species does not require the ‘same’
treatment in all cases: the treatment will depend on the nature of the
interests in question.
This section has sought to develop a number of interpretive
possibilities in the South African Constitution in light of the fundamental
‘equality principle’ that would support the extension of some of the rights
therein to non-human animals. 75 It should be clear, however, that there may
be circumstances that arise of conflict between animals of different kinds and
between animals and humans. The grund- norm of equality requires in such
cases that there be a justification for any differential treatment that limits
a right and that such a justification meet certain conditions. The next
section seeks to analyse the manner in which the Constitution can
recognise limitations on animal rights.
3 Transformative constitutionalism and the
limitation of animal rights
If, as has been argued, animals are entitled to the rights in the Bill of Rights,
then they will also be subject to its provisions concerning limitation. This
would indeed follow from the ‘equality principle’ which would naturally
74 See the discussion in Nussbaum (n 44 above) 372 - 380.
75
This discussion clearly has not sought to be exhaustive but has dealt with more general
values and rights in the Constitution that provide certain of the leading arguments for such
an extension. A notable omission is the lack of discussion of sec 24 which contains an
environmental right. Though animals could be included within the notion of the
‘environment’, the protections afforded by this section fail to distinguish between
animals and other elements of the environment such as plants, stones or creatures to be
treated as ‘things’ without interests of their own. The argument of this paper is that
animals do in fact have their own welfare and their own interests in light of which it
makes sense to recognise the principle that they should not be subject to prejudicial treatment
without good reason. The grundnorm could perhaps be used to provide an interpretation of
the environmental right that grants certain protection to animals: However, the approach I
adopt seeks to go further and recognise the potential for many rights in the Constitution to
have application beyond the human species. I have thus sought to concentrate on provisions
that would enable me to make this wider case.