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Cathi Albertyn & Beth Goldblatt 235
The latter view has been partly borne out by the Court’s recent
development of the concept of dignity to include a more systemic
understanding of individual and group-based material inequalities. 12
This development has been explicit in relation to socio-economic
rights, where the Court has linked dignity (together with freedom and
equality) to the achievement of basic needs. 13 In Khosa v Minister of
Social Development, 14 the equality analysis was bolstered by the
concurrent presence of the right to adequate social assistance. Here
the Khosa Court found the exclusion of permanent residents from
social assistance to be ‘intentional, statutorily sanctioned unequal
treatment’ that affected the material and social well-being of the
applicants. The Court noted that ‘decisions about the allocation of
public benefits represent the extent to which poor people are treated
as equal members of society’. Where they are excluded from such
benefits, the applicants were forced into ‘relationships of
dependency upon families, friends and community’, ‘relegated to the
margins of society’ and ‘cast in the role of supplicants’. 15 In Khosa,
the exacerbation of material disadvantage, even destitution,
reflected an absence of equal concern and respect. This absence was
not merely a concern of the state, but of society as a whole.
However, the Constitutional Court has connected the value of
dignity and the commitment to equal concern and respect to the idea
of group-based material disadvantage in only a small number of
cases. 16 It has, however, found an absence of ‘equal concern and
respect’ and a denial of self-worth in relation to laws that result in
12
This approach was, arguably, implicit in cases such as National Coalition for Gay
and Lesbian Equality & Another v Minister of Justice & Others 1999 1 SA 6 (CC),
1998 12 BCLR 1517 (CC) para 24 and Hoffmann v South African Airways 2001 1 SA
1 (CC), 2000 11 BCLR 1211 (CC) para 38. However there have also been notable
exceptions to this trend, see Jordan & Others v The State (Sex Workers Education
and Advocacy Task Force & Others as Amici Curiae) 2002 6 SA 642 (CC), 2002 11
BCLR 1117 (CC).
13 Government of the Republic of South Africa & Others v Grootboom & Others 2001
1 SA 46 (CC), 2000 11 BCLR 1169 (CC) para 23: ‘There can be no doubt that human
dignity, freedom and equality, the foundational values of our society, are denied
those who have not food, clothing and shelter’. At para 44, the Court states: ‘A
society must seek to ensure that the basic necessities of life are provided to all if
it is to be a society based on human dignity, freedom and equality’. See also A
Chaskalson ‘The third Bram Fischer lecture: Human dignity as a foundational
value of our constitutional order’ (2000) 16 South African Journal on Human
Rights 193 203.
14 2004 6 SA 505 (CC), 2004 6 BCLR 569 (CC).
15 n 14 above, paras 74, 76, 77.
16
See C Albertyn & B Goldblatt ‘Equality’ in Woolman et al (n 5 above) 35-10—35-
12, available at www.westlaw.com.