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214 Chapter 12
the Constitutional Court permitted a Berlian understanding of
negative liberty to slip into the Court’s equality jurisprudence
through the backdoor of dignity. 61 The Ferreira Court rejected
Justice Ackermann’s view that IC section 11(1) and FC section 12(1)
required that ‘freedom’ and ‘security of the person’ should be read
disjunctively and that IC section 11(1) and FC section 12(1) contained
a robust freedom right. 62 However, in a number of cases decided
shortly after Ferreira, the Court appeared to accept Justice
Ackermann’s contention that there exists an inextricable link
between dignity and the need for individual freedom from state
intervention. In Hugo, the Court places ‘dignity ... at the heart of
individual rights in a free and democratic society.’ 63 In National
Coalition for Gay and Lesbian Equality v Minister of Justice, the Court
states that ‘it is clear that the constitutional protection of dignity
requires us to acknowledge the value and the worth of all individuals
as members of society.’ 64 Thus, over the course of several cases and
the space of a couple of years, individual freedom qua negative
liberty becomes the foundation for dignity, and dignity, in turn,
becomes the basis for equality.
One can accept the truth of the proposition that the
Constitutional Court accepted the link between dignity and the need
for individual freedom from state intervention without accepting the
proposition that dignity is only about the need for individual freedom
from state intervention. For example, Amartya Sen ties his notion of
‘development as freedom’ to the provision of a basic basket of goods
— both real and figurative — that enable human beings to develop
those ‘capabilities’ necessary for each individual to achieve those
ends that each has reason to value. 65 Sen contends that dignity and
freedom and equality, rightly understood, are meant neither to
achieve definitive outcomes nor to prescribe a univocal understanding
of the good. 66 What these covalent values do require is a level of
61 D Davis ‘Equality: The majesty of legoland jurisprudence’ (1999) 116 South
African Law Journal 398.
62 Ferreira (n 20 above).
63 Hugo (n 17 above) para 41.
64 n 21 above, para 28.
65 61
See D Davis Sen (n‘Equality: 33 above); The A Sen majesty Inequality of legoland re-examined jurisprudence’ (1992). (1999) 116 South
66 Sen African asks Law us Journal to take 398. account, in any theory of distributive justice, of how the
62
heterogeneity Ferreira (n 20 above). amongst individuals (both within societies and across societies)
63
shapes Hugo (n the 16 meaning above) para of primary 41. goods and incomes. For example, the meaning of a
64
primary n 21 above, political para good 28. like freedom of assembly will have demonstrably different
65
meanings See Sen (n for 33 a above); prson who A Sen is Inequality ambulatory re-examined and for a person (1992). who is not ambulatory,
66
but such housebound. primary goods Similarly, as income the or civil utility liberties of an into income the capability of R200 ‘to 000 choose will a have life
demonstrably one has reason different to value’ value — or for in a simpler person who terms, is ambulatory the ability and to pursue for a person one’s own who
is ends. not ambulatory, Sen (n 27 above) but housebound. 75. The virtue At a of minimum, Sen’s approach says Sen, is that quoting it recognises Adam Smith, (a)
our the heterogeneity primary concern of capacity ought to that be providing people possess individuals by virtue with of those biology, necessities custom, or of
life class; that (b) will, the in heterogeneity fact, give them of ‘“the critical ability functions to appear — from in public nourishment without shame”.’ to civic
Sen participation (n 27 above) — that 73 quoting may be required A Smith The to live wealth a life of one nations has reason (1776) to RH value; Campbell and (c) &
AS the Skinner heterogeneity (ed) (1976) of 469-471. capabilities That, that in just people a few will well-chosen possess words, — different sounds
very combinations much like of South more African basic functions discourse — on which dignity. will, Sen in contends turn, enable that them best to
measure pursue different of equality visions or freedom of the good. or dignity is the ability of individuals to convert