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230 Chapter 13
paragraph. 36 This stresses the importance of expert knowledge of the
common law, and respect for the common law’s own paradigm, when
applying section 39(2).
6 Conclusion
Despite my disagreements with certain aspects of Woolman’s
approach, I can only applaud the depth and the breadth of his
endeavours and confirm from my perspective that he has clearly
demonstrated what he asserts in his conclusion: namely, that ‘the
right to dignity is neither over-used, over-cited, over-indulged,
ubiquitous or a cliché.’ It is distressing that even so distinguished an
Anglo-Saxon constitutional scholar as Prof Peter Hogg is sceptical
about the concept and the use of dignity. 37 One may well pose the
rhetorical question whether dignity is any more ‘vague and
unpredictable in its application’ than the concept of the ‘reasonable
person’ (whether in its continental guise of the ‘bonus paterfamilias’
or in its Anglo-Saxon garb of ‘the man on the Clapham omnibus.’) The
concept of ‘Menschenwürde’ (human worth) stands at the very core
of the German Basic Law and over the past nearly sixty years the
German Federal Constitutional Court has developed a body of
jurisprudence on human dignity that can, I believe, stand up to the
most rigorous critical appraisal. South Africa ignores this
jurisprudence at its peril.
36
n 34 above, para 55 reads:
This requires not only a proper appreciation of the Constitution and its
objective, normative value system, but also a proper understanding of
the common law. We have previously cautioned against overzealous
judicial reform. The proper development of the common law under
section 39(2) requires close and sensitive interaction between, on the one
hand, the High Courts and the Supreme Court of Appeal which have
particular expertise and experience in this area of the law and, on the
other hand, this Court. Not only must the common law be developed in a
way which meets the needs of section 39(2) objectives, but it must be
done in a way most appropriate for the development of the common law
within its own paradigm.
37 See Constitutional Law of Canada 3 ed, Loose-leaf (1992) § 52.7(b). Hogg
criticises the judgment of the Canadian Supreme Court in Law v Minister of
Human Resources Development [1999] 170 DLR (4th) 1, for its use of dignity as
comparator in establishing discrimination, in the following terms:
The element of human dignity that has now been injected into the s 15
jurisprudence is, in my view, vague, confusing and burdensome to
equality claimants. Although various ‘contextual factors’ were listed in
Law to assist in the task of determining whether a distinction impairs
human dignity, the factors are not very helpful and the concept of human
dignity is inherently vague and unpredictable in its application.