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196 Chapter 12
found ability to recognise the inherent dignity of our fellow South
Africans is meant to suggest how the extension of this right progresses
from mere duties of justice to duties of virtue that have as their aim
the qualitative perfection of humanity. 3
Despite its deep and profound resonance with South African
history, dignity is manifestly not like Auden’s valley cheese — ‘local,
but prized everywhere’. The Constitutional Court quite consciously
draws upon two exogenous sources, both a part of modern western
thought.
First, the Court traces dignity’s place in the pantheon of political
thought back to Immanuel Kant. The existing corpus of South Africa’s
dignity jurisprudence tracks, in a surprisingly direct manner, the
trajectory of Kant’s ethical thought, and, in particular, his various
formulations of the categorical imperative. The Court’s jurisprudence
turns, as we shall see, in an ever widening gyre of obligation: moving
outward from ‘the refusal to turn away’ as manifest in the death
penalty and corporal punishment judgments, to ‘the equal respect’
accorded non-traditional forms of intimate association in the gay and
lesbian rights cases, to ‘the collective responsibility for the material
conditions required for agency’ contemplated in recent socioeconomic
rights decisions.
Second, the Court recognises that the history of dignity is a history
3
Any meaningful historical account of dignity’s South African roots must take note
of other endogenous sources: first, the Roman-Dutch law of personality. See LWH
Ackermann ‘The significance of human dignity for constitutional jurisprudence’
(Lecture, Stellenbosch Law Faculty, 15 August 2005)(Manuscript on file with
author) § 6 (Personality rights include the rights to dignity.) See also J Neethling,
JM Potgieter & PJ Visser Neethling’s Law of personality (2005) 24-38; Universiteit
van Pretoria v Tommie Meyer Films (Edms) Bpk 1977 4 SA 376 381 (T); National
Media Ltd v Jooste 1996 3 SA 262 272 (A). Other authors have suggested that the
African concept of ‘ubuntu’ and dignity draw on quite similar moral intuitions.
See Y Mokgoro ‘Ubuntu and the law in South Africa’ (1998) 4 Buffalo Human
Rights Law Review 15; D Cornell ‘A call for a nuanced jurisprudence’ (2004) 19
South African Public Law 661; M Pieterse ‘“Traditional” African jurisprudence’ in
C Roederer & D Moellendorf (eds) Jurisprudence (2004) 441. See also S v
Makwanyane 1995 3 SA 391 (CC), 1995 6 BCLR 665 (CC), 1995 2 SACR 1 (CC) at
paras 224-225 (Langa J) (Ubuntu captures, conceptually, ‘a culture which places
some emphasis on communality and on the interdependence of the members of a
community. It recognises a person’s status as a human being, entitled to
unconditional respect, dignity, value and acceptance from the members of the
community such a person happens to be part of. It also entails the converse,
however. The person has a corresponding duty to give the same respect, dignity,
value and acceptance to each member of that community. More importantly, it
regulates the exercise of rights by the emphasis it lays on sharing and coresponsibility
and the mutual enjoyment of rights by all.’ (Emphasis added).)