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Stu Woolman & Michael Bishop 19
to call ‘human worth’ — but on the inner content of human dignity —
and our ability to come to grips with or to ‘fathom what [the]
uniqueness of personhood is.’ For Ackermann, such a study must
consider the teachings of the Abrahamic religions: Christianity, Islam
and Judaism. While he stresses that the Final Constitution is,
ultimately, a secular document, he argues persuasively that dignity
cannot be properly understood without reference to its spiritual
underpinnings. Nowhere else in the South African literature has this
claim been made — and we are fortunate to have one of the leading
readers of our Constitution explain to us how the role of human worth
in religious teachings enhances our secular account of this right and
this value.
Ackermann then expresses some concern over Woolman’s
definitions of dignity. He takes issue with Woolman’s location of the
demands for ‘equal concern and equal respect’ and ‘self
actualisation’ within the right to dignity. He believes them to be more
appropriately located in the right to equality (FC section 9) and the
value of freedom (FC sections 7, 36, 39). Ackermann then contends
that Woolman’s distinction between ‘first-order’ and ‘second-order’
rules evince a Hartian or positivist approach to constitutional law.
(Woolman has repeatedly denied the charge that a commitment to
‘rules’ in law — and in particular the law which emanates from the
right to dignity — necessarily commits him or anyone else to
positivism.) 34 Our Constitution, Ackermann claims, ‘cries out for a
Kelsenian approach’. According to him, only a Kelsenian approach to
the Constitution, in general, and dignity, in particular, is consistent
with the aspirational character of our basic law.
2.8 Property
The property clause of the Interim Constitution reflected a necessary,
if tenuous, compromise between the interests of white propertyowners
and the transformative goals of the ANC. The Final
Constitution alters that compromise, but still recognises the need to
weigh the imperatives of transformation against the ‘stability’ that
flows from the protection of private interests, and thus of apartheidera
economic arrangements.
The property clause itself covers a broad range of issues: from
compensation for the expropriation of property, to restitution and the
redistribution of land. This colloquy focuses primarily on deprivation
and expropriation of existing rights in land. The primary bone of
34 See S Woolman ‘Dignity’ in S Woolman et al (eds) Constitutional Law of South
Africa (2nd Edition, OS, 2005) Chapter 36 (CD track 7); S Woolman ‘The Widening
Gyre of Dignity’ in S Woolman & M Bishop (eds) Constitutional conversations
(2008) Chapter 12.