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Stu Woolman & Henk Botha 171
5.2 Dignity and democracy
5.2.1 Primacy of dignity
As we have seen above, the Constitutional Court regards human
dignity as the most important human right and constitutional value.
In the view of the Court,
Human ... dignity informs constitutional adjudication and interpretation
at a range of levels. It is a value that informs the interpretation of many,
possibly all, other rights. ... Human dignity is also a constitutional value
that is of central significance in the limitations analysis. Section 10,
however, makes it plain that dignity is not only a value fundamental to
our Constitution, it is a justiciable and enforceable right that must be
respected and protected. In many cases however, where the value of
human dignity is offended, the primary constitutional breach occasioned
may be of a more specific right such as the right to bodily integrity, the
right to equality or the right not to be subjected to slavery, servitude or
forced labour. 44
Given that both the text and the Court tell us that dignity plays a
‘central’ role in limitations analysis, two questions arise. What role
does dignity play? How central is it to our constitutional project?
The basis for the Court’s recognition of dignity as, perhaps, the
master concept in the Bill of Rights range from the direct manner in
which dignity answers the ‘problem’ of apartheid, 45 to the centrality
of dignity to the post-war constitutional tradition, 46 to the ability of
dignity to answer, in a coherent manner, the Court’s call for a transformative
jurisprudence; 47 to the place dignity occupies in Roman-
44 Dawood v Minister of Home Affairs; Shalabi v Minister of Home Affairs; Thomas v
Minister of Home Affairs 2000 3 SA 936 (CC), 2000 8 BCLR 837 (CC) para 35. For a
detailed discussion of how each of the rights in the Bill of Rights has been
refracted through the prism of human dignity, see Woolman (n 39 above).
45 See S Liebenberg ‘The value of human dignity in interpreting socio-economic
rights’ (2005) 21 South African Journal on Human Rights 1 (Respect for human
dignity requires society to respect the equal worth of the poor by marshalling its
resources to redress the conditions that perpetuate their marginalisation).
46
See L Weinrib ‘Constitutional conceptions and constitutional comparativism’ in V
Jackson & M Tushnet (eds) Defining the field of comparative constitutional law
(2002) 3. See also A Chaskalson ‘Human dignity as a foundational value of our
constitutional order’ (2000) 16 South African Journal on Human Rights 193 196
(‘The affirmation of human dignity as a foundational value of the constitutional
order places our legal order firmly in line with the development of
constitutionalism in the aftermath of the Second World War.’)
47 See Woolman (n 39 above) 36-6 — 36-19.