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decision making processes that determine the ends of our community.
As Justice Sachs notes in August v Electoral Commission:
The universality of the franchise is important not only for nationhood
and democracy. The vote of each and every citizen is a badge of dignity
and of personhood. Quite literally, it says that everybody counts. 25
3.5 Dignity 5: Collective responsibility for the material
conditions for agency
The fifth and final strand of the Court’s dignity jurisprudence widens
our constitutional frame beyond individual ends and asks that we
consider what it means for South Africa to be, as Kant would put it, a
‘realm of ends’. 26 In a series of unfair discrimination and socioeconomic
rights cases, the Constitutional Court has made it clear that
our commitment to dignity does not flow entirely from, or is not
limited to, the inalienable rights of individuals. Whether it has
engaged the stigma associated with HIV/AIDS, 27 the urgent need for
shelter, 28 or the desperation associated with summary evictions, 29
the Constitutional Court has, over the past several years, repeatedly
emphasised the fact that
[i]t is not only the dignity of the poor that is assailed when homeless
people are driven from pillar to post in a desperate quest for a place
where they and their families can rest their heads. Our society as a
25 See August v Electoral Commission 1999 3 SA 1 (CC), 1999 4 BCLR 363 (CC) para
17. See also Minister of Home Affairs v National Institute for Crime Prevention
2005 3 SA 280 (CC), 2004 5 BCLR 445 (CC); New National Party of South Africa v
Government of the Republic of South Africa 1999 3 SA 191 (CC), 1999 4 BCLR 457
(CC). This commitment to dignity qua self-governance is rather straightforward in
the franchise cases. However, dignity qua self-governance is, in fact, where the
Constitutional Court falters most conspicuously. Dignity qua self-governance
ought to promote the Court’s commitment to representation reinforcing
processes — most notably where our democratic processes cannot be profitably
exploited by vulnerable minorities and out-groups. But Prince, Jordan, Robinson
and De Reuck sound cautionary notes about the extent to which the Court will
extend itself on behalf of non-traditional associations, vocations or professions. In
these cases, the Court reinforces a traditional morality supported by a majority of
South Africans and effectively undermines the efforts of these out-groups to
determine the ends of their own lives. See Prince v President, Cape Law Society &
Others 2002 2 SA 794 (CC), 2002 3 BCLR 231 (CC); S v Jordan & Others (Sex
Workers Education and Advocacy Task Force & Others as Amici Curiae) 2002 6 SA
642 (CC), 2002 11 BCLR 1117 (CC); De Reuck v Director of Public Prosecutions,
Witwatersrand Local Division 2004 1 SA 406 (CC), 2003 12 BCLR 1333 (CC); Volks
NO v Robinson 2005 5 BCLR 466 (CC).
26 See Kant (n 8 above) 51.
27
See Hoffman v South African Airways 2001 1 SA 1 (CC), 2000 11 BCLR 1211 (CC).
28 See Government of the Republic of South Africa & Others v Grootboom & Others
2001 1 SA 46 (CC), 2000 11 BCLR 1164 (CC).
29
See Occupiers of 51 Olivia Rd & Others v City of Johannesburg & Others 2008 3 SA
208 (CC).