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206 Chapter 7
Finally, the Court in this case sought to give due consideration to the
position taken by the elected branches of government. It, however,
recognised the importance of the role that the judiciary had to play in
evaluating whether the government had in fact achieved a position that
proportionately balanced the competing interests concerned. In South
Africa, this would require the judiciary to be prepared to recognise the
applicability of constitutional rights to animals and to engage in substantive
judicial review in relation to the measures adopted by the legislature and
executive in relation to them. Importantly, as this analysis has shown,
constitutional law has the tools to enable courts to achieve a sensitive
balancing of interests through applying the tried and tested principles
contained in the limitations clause.
4 Conclusion
This paper has sought to develop the implications of transformative
constitutionalism for non-human animals. It began by outlining the
interpretive method that should be adopted for a Constitution such as that in
South Africa: The approach needs to be purposive and must consider the
historical context. In particular, that context must make clear the values
that are to be realised through the constitutional text and interpretations
that are to be avoided.
The backdrop to the Constitution showed that the new order
represented a reaction against the systematic and arbitrary denial of equal
treatment to black people simply on the basis of their race. This led to
the recognition of a fundamental grundnorm underlying the new
constitutional order which prescribes that there be no arbitrary
discrimination against any individual without a reasonable justification.
The argument was provided that discrimination on grounds of species
is just as arbitrary as any other form of discrimination. As a result, the
grundnorm of the South African Constitution should be seen as extending
to species. This would mean interpreting the Constitution so as to
prohibit discrimination on grounds of species and to recognise the
entitlement of non-human animals to equal treatment. It was necessary,
however, to find an interpretation of the Constitution that accords with
this ethos.
Part II involved developing an interpretation of the Constitution in light
of the fundamental grundnorm and its implications. The discussion sought
to demonstrate that constitutional rights could be applied quite naturally
to non-human animals give that they could be included within the
designation ‘everyone’ in the Bill of Rights. It was argued that the value of
human dignity did not provide an insurmountable barrier to the
recognition of animal rights and that animals must be recognised as
having some worth at the constitutional level. The value of equality and the
jurisprudence of the Constitutional Court was then analysed and I sought