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Stu Woolman 211
finds that the restraint of trade provision at issue ‘strips the player of
his human dignity’ and therefore constitutes an unjustifiable
limitation of his freedom, under FC section 22, of trade, occupation
and profession. 47 In Khosa, the Constitutional Court’s conclusion that
‘the exclusion of permanent residents in need ... [from] socialsecurity
programmes’ has ‘a serious impact on [their] dignity’
supports a finding that the Social Assistance Act violates both the right
to equality and the right to social security of permanent residents. 48
In the second class of cases, dignity may be used to justify a
limitation on a right. In Khumalo v Holomisa, the Constitutional Court
twins the privacy and the dignity rights that ground the interest in a
good reputation to turn back a freedom of expression challenge to the
constitutionality of the law of defamation. 49 In De Reuck, the
Constitutional Court finds that the state’s interest in protecting the
dignity of all children justifies the limitation of the freedom of
expression that the Films and Publications Act imposes upon the
producers and the possessors of child pornography. 50 In Christian
Education, the mutually reinforcing rights of religion and culture said
to sanction corporal punishment in private schools were deemed to be
in conflict with, and ultimately subordinate to, a constellation of
rights that included dignity, equality, and freedom and security of the
person. 51
In the third class of cases, those cases in which the Bill of Rights
does not apply directly, the Court will often speak of dignity as a value
that informs the development of the common law or the
interpretation of a statute. In Carmichele v Minister of Safety and
Security, the Constitutional Court found that the value of dignity, as
well as the values that animate freedom and security of the person,
required that the duty of care imposed on the state in delictual
actions be expanded so as to ensure that the state did not permit
known and dangerous felons to imperil the lives of its citizens. 52
Similarly, in K v Minister of Safety and Security, the Constitutional
Court found that that these same values required a significant
alteration in the common law understanding of vicarious liability and
ensured that the state remained responsible for police officers, acting
under the colour of law, who abused their authority and violated the
physical integrity of the very people they are duty bound to protect. 53
In Rail Commuters, the Constitutional Court interpreted the Legal
47
2001 1 SA 1254 (C), 2001 4 BCLR 323 (C) para 34.
48 n 31 above, para 76 (my emphasis).
49 2002 5 SA 401 (CC), 2002 8 BCLR 771 (CC).
50
n 25 above, paras 62-63.
51 Christian Education South Africa v Minister of Education 1999 2 SA 83 (CC); 1998
12 BCLR 1449 (CC) para 51.
52
2001 4 SA 938 (CC), 2001 10 BCLR 995 (CC).
53 2005 6 SA 419 (CC), 2005 (9) BCLR 835 (CC).