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210 Chapter 12
The values enunciated in section 1 of the Constitution are of
fundamental importance. They inform and give substance to all the
provisions of the Constitution. They do not, however, give rise to
discrete and enforceable rights in themselves. This is clear not only from
the language of section 1 itself, but also from the way the Constitution is
structured and in particular the provisions of Chapter 2 which contains
the Bill of Rights. 46
Values are one thing, the NICRO Court appears to be saying, rules
another. While it is certainly true that the fundamental values
articulated in the Final Constitution will shape the rules expressed
therein, and that the rules will have a reciprocal effect with respect
to our understanding of those fundamental values, there remains a
distinction with a difference. Rights give rise to rules and to
enforceable claims. Values do not.
And so it is with dignity. The right to dignity — as a first order rule
and as a correlative right — gives rise to enforceable claims. Dignity,
as a value, does not.
The first reason that dignity is invoked more often as a value than
as a rule is that FC section 39 states that the various substantive
provisions in the Bill of Rights, and the Bill of Rights as a whole, must
be interpreted so as to ‘promote the values that underlie an open and
democratic society based on human dignity, equality and freedom.’
The second reason is that when a law is found to have infringed a
fundamental right, the question raised, FC section 36 tells us, is
whether the limitation in question ‘is reasonable and justifiable in an
open and democratic society based on human dignity, equality and
freedom.’ The third reason is that the ubiquity of dignity has led the
Court to adhere to a relatively restrictive rule regarding the use of
dignity as a first order rule: Where a court can identify the
infringement of a more specific right, FC section 10 should not be
added to the enquiry. Because some rights are understood,
immediately, to be expressions of the commitment to dignity — say,
the prohibitions on torture (FC section 12) and slavery, servitude or
forced labour (FC section 13) — and many other rights, once refracted
through the value of dignity, become expressions of the more basic
(non–justiciable) commitment to dignity — say the right to equality
and the right not to be subject to cruel, inhuman or degrading
punishment — the need for dignity to function as a rule that disposes
of cases directly is less pronounced than it might otherwise be.
In the first class of ‘dignity as value’ cases, dignity guides our
interpretation of the right and, in so doing, shapes our understanding
of the ambit of a right. In Coetzee v Comitis, the Cape High Court
46 NICRO (n 25 above).