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Stu Woolman 207
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. 36
So, just as dignity denotes at least five different kinds of obligation,
so too does dignity operate within our legal system in four sundry
ways.
4.1 Dignity as a first order rule
The right to dignity rarely operates a first order rule. That is, the right
to dignity alone is rarely dispositive of a constitutional matter. The
first rule of South African dignity jurisprudence is that where a court
can identify the infringement of a more specific right, FC section 10
will (ostensibly) not add to the enquiry. That said, dignity has
operated as a first order rule in a number of important corporal
punishment and intimate association matters.
In corporal punishment or capital punishment cases such as
Williams 37 and Makwanyane, 38 the Constitutional Court has found
that the punishment reduces the individual to a mere cipher and fails
to recognise the individual as an end-in-herself. In Dawood and
Booysen, the Constitutional Court found that no other specific
substantive right would protect the co-habitation interests of the
married couples or life partners in question and that the failure to
protect such intimate associations failed to recognise both the
individual as an end-in herself and the individual as capable of selfactualisation.
39
36 Dawood (n 12 above) para 35.
37 S v Williams & Others 1995 3 SA 632 (CC), 1995 7 BCLR 861 (CC).
38
S v Makwanyane (n 3 above).
39 See Dawood (n 12 above); Booysen v Minister of Home Affairs & Another 2001 4
SA 485 (CC), 2001 7 BCLR 645 (CC). See also Daniels v Campbell 2004 5 SA 331
(CC), 2004 6 BCLR 735 (CC) (Moseneke J dissenting). High Courts have extended
the protection that FC section 10 affords intimate association beyond the
confines of marriage or life partnerships to relationships between grandparents
and grandchildren. See Petersen v Maintenance Officer, Simon’s Town 2004 2 SA
56 (C), 2004 2 BCLR 205 (C). High Courts have also deployed dignity as an
operational rule when no other right would protect the linguistic interests of a
party before the court. See S v Pienaar 2000 7 BCLR 800 (NC) para 10; Advance
Mining Hydraulics v Botes NO 2000 1 SA 815 (T), 2000 2 BCLR 119 (T) 127.