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Stu Woolman & Henk Botha 173
value that is common to the frequently conflicting imperatives of
equality and freedom.
The purpose of Ackermann’s two intuition pumps is to convince us
that the stronger the dignity interest is on one side of the equality/
freedom divide, the weaker it is likely to be on the other. In the
example of the restrictive condition, the discrimination strikes at the
heart of the dignity interests of a prospective black buyer, while only
marginally disturbing the dignity interests of the property owner. But
these — on Ackermann’s account — are easy cases. One could well
imagine cases in which there are strong dignity/equality interests and
dignity/freedom interests on both sides. Consider, for example, a
clash between the rights of women who wish to participate equally in
traditional or religious communities and the ‘autonomy’ rights of such
religious or cultural communities. 54 In such cases, the discrimination
constitutes a serious impairment of the fundamental human dignity of
women while, at the same time, the religious or cultural practice in
question is so fundamental to the worldview and customs of its
adherents that a ruling of unconstitutionality would strike at the heart
of that community’s sense of dignity. Dignity does not, in such cases,
offer a neutral or a principled way of striking a balance between
equality and freedom.
The second problem with dignity as a neutral, mediating principle
is that it assumes that a dignity-based reading of the limitations
clause adequately captures the various interests served by rights as
varied as equality, privacy and association. A number of
commentators have argued that something is likely to get lost in the
process of translating the right to equality into the language of human
dignity. 55 One of their concerns has been that a dignity-based
approach to equality focuses primarily on individual moral harm,
rather than material disadvantage and structural power. While some
forms of disadvantage can be expressed quite easily in moral terms,
others may not be so readily recognised. This difference may explain
why the transformative vision of the Constitutional Court’s
jurisprudence in the field of sexual orientation has easily outpaced its
jurisprudence on discrimination on the grounds of sex and gender.
While discrimination against gays and lesbians is usually rooted in
moral disapproval and results directly in an affront to their dignity
54 See eg Bhe & Others v Magistrate, Khayelitsha & Others 2005 1 SA 580 (CC), 2005
1 BCLR 449 (CC).
55 C Albertyn & B Goldblatt ‘Facing the challenge of transformation: difficulties in
the development of an indigenous jurisprudence of equality’ (1998) 14 South
African Journal on Human Rights 248; DM Davis ‘Equality: The majesty of
legoland jurisprudence’ (1999) 116 South African Law Journal 398; H Botha
‘Equality, dignity, and the politics of interpretation’ (2004) 19 South African
Public Law 724. But see S Cowen ‘Can “dignity” guide South Africa’s equality
jurisprudence?’ (2001) 17 South African Journal on Human Rights 34.