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178 Chapter 10
sections 7(1), 36(1), and 39(1) ‘structure the way in which the tension
between rights and democracy is to be managed in South African
constitutional law.’ 75 We have argued, over the course of this
chapter, that FC section 36(1) and FC section 39(1) require a valuebased
approach to fundamental rights analysis and limitations analysis
in part because they invoke the same set of values, the same linguistic
trope, ‘an open and democratic society based upon human dignity,
equality and freedom’. However, Roux’s connection of the oftignored
FC section 7(1) to both fundamental rights interpretation (FC
section 39) and limitations analysis (FC section 36) enables us to make
four new critical points in this chapter.
First, FC section 7(1) reads: ‘The Bill of Rights is a cornerstone of
democracy in South Africa. It enshrines the rights of all people in our
country and affirms the democratic values of human dignity, equality
and freedom.’ Notice that democracy is treated as an independent
value. Notice that the values of human dignity, equality and freedom
are ‘democratic’ values. At a minimum, the language of FC section
7(1) should give pause to those interpreters of the basic law who
privilege, reflexively, the value of human dignity. One can press this
point further and argue that FC section 7(1), in fact, reverses the spin
placed by the Constitutional Court on the phrase ‘an open and
democratic society based upon human dignity, equality and freedom’.
It makes a democratic society, and not dignity, foundational.
Second, it is, we think, unnecessary to read the language of FC
section 7(1) in a manner that privileges democracy over dignity.
Indeed, FC section 7(1) and Professor Roux suggest that we should be
just as wary of such overly simplistic reductions (rights service
democracy) as we are chary of claims that rights and democracy stand
in irreconcilable tension with one another (the counter-majoritarian
dilemma). We think that it is enough to suggest, as Professor Roux
does, that FC section 7(1) delinks the phrase ‘an open and democratic
society’ from ‘human dignity, equality and freedom’. That is, whereas
the phrase ‘open and democratic society based upon human dignity,
equality and freedom’ suggests a miasma of ‘big’ ideas that, if read
jointly and severally, could exhaust the entire universe of modern
political theory, delinking the two phrases forces the reader of FC
section 36(1) and FC section 39(1) to stop and to attend — for a
moment — to the meaning, as well as the desiderata, of an ‘open and
democratic society’. Even if it does nothing else, by reading FC
section 7(1) together with FC section 36(1), we are forced to concede
that the principle of democracy is, at least, of equal weight as the
value of dignity when it comes to the justification of a limitation of a
fundamental right.
75 Roux (n 6 above) § 10.3(c).