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The Constitutional Court's understanding of the relation between the values of human dignity and equality

law

Discuss about the Values Of Human Dignity And Equality.

Constitutional Court’s understanding of the relation between the values of human dignity and equality in the context of the protection of the constitutional right to equality

Inequality persists to be one of the most exigent issues on the agenda of human rights globally. The reason behind the failure to examine the inequality is the formal approach towards the issue which has failed to eradicate the social and economic equality embedded in the in the society. South Africa is in the process of implementing different approach to seek equality, which addresses the issues related to the apartheid legacy and the socio-economic inequality that is prevalent in the South African society. In order to achieve the same, the Constitution of the country rejected formal equality to develop comprehensive interpretation of equality, which is based on the concept of protection of human dignity[1]. The value of dignity may be considered as the foundation stone of the Constitution and for the rights safeguarded by it. This essay purports to assess the perspective of the Constitutional court about the relationship between the human dignity value and equality as a protected right in the constitution.

South Africa has become one of the nations that have recently adopted dignity as a constitutional right, which is of supreme value, which shall provide the means to adopt the constitutional interpretation. This dignity-based jurisprudence of South Africa’s Constitutional Court has initiated a lively debate e with respect to the relations of human dignity with other values, in particular, equality and the capacity of dignity to constrain constitutional decision-making. As the Constitutional Court of south Africa is in the process of interpreting equality based on the concept of “protection of human dignity”, it has been criticized that human dignity is not enough determinate to provide a steady base for equality law[2]. It shall promote an distinctive idea of equality as well. However, if the fundamental developments in the South African Constitution are taken into account, it can be observed that the perception of dignity is deeply embedded in an age-old tradition that is capable of reinforcing an approach towards equality that shall avert excessive individualism and identifies the relationship between the need of the community and individual.

The article set out in the Universal Declaration of Human Rights [UDHR] that “human beings are born free and equal in dignity and rights” have given  equality paramount importance in the international human rights agenda almost 20 years ago. Despite being incorporated into several constitutions and other legal instruments, inequality remains disguisedly entrenched in every society[3].

South Africa's adoption of human dignity as a constitutional right

According to (2014), the equality jurisprudence of the Constitutional court in South Africa is worth mentioning. This is because the South African perception can be differentiated firstly by its resilient support of equality as an independent concept and, secondly, by the use of the concept of human dignity that will provide a detailed conception of equality. The fundamental role of human dignity in the interpretation of constitutionally protected right to equality has been recognized in President of the Republic of South Africa v Hugo [1997][4]. In this case, it was stipulated that main purpose of prohibition of unfair discrimination is to recognize that the democratic order and constitution of the country symbolizes founding of a society in which every human beings shall be treated with respect and equal dignity irrespective of their membership in particular groups.


The transformative role of the South African Constitution in 1996 purported to create an innovative order, based on equality which has been clearly stipulated in the Constitution under article 9 and has been referred to as well as supported by the Constitutional courts of the country. The section states that every person is equal before the law and has equal rights to receive protection and benefits of the . The citizens are entitled to equal enjoyment of rights and freedoms and every person must safeguard persons subjected to unfair discrimination. Further, the state is prohibited from committing discrimination against any person on the grounds of race, gender, marital status, ethnic or religion, sex, religion, culture, birth and language.

In the leading case, Harksen v Lane [1998][5], the Constitutional Court provided a detailed inclusive framework for determining claims with respect to the several provisions of equality. The obligation to provide a firm interpretation of equality extends to the “non-discrimination clause”, which formed the basis of developing equality jurisprudence, which further clearly expressed the role played by human dignity. In Prinsloo v Van der Linde [1997][6], the Constitutional Court upheld the importance of the role of human dignity in the context of equality jurisprudence. Unfair discrimination primarily implies that exhibiting different treatment to persons in a way that prejudices the fundamental dignity of such persons as human beings who are inherently entitled to equal dignity. Musgrave (2015) argues that this is the point where there no specific legal principles or doctrines instead the court emphasizes on the destruction of dignity. Unfair discrimination refers to the demarcation in treatment that affects the dignity of the individuals.

The role of human dignity in the interpretation of constitutionally protected right to equality

However, if ‘potential impairment of dignity’ is what the courts are concerned about, then what should form the basis to determine whether the grounds have fulfilled the test of dignity impairment. In the absence of precise description about the issue, small amount of applications have been dealt with by the court involving determination of the grounds. One such instance is the case of Larbi-Odam and Others v Member of the Executive Council for Education (North West Province) and Another [1998][7] where the constitutional court held that different treatment based on the ground of citizenship was sufficient to damage the fundamental human dignity of the individuals. Becker (2015) asserts that if factors like minority status, lack of control over citizenship, absence of political power of non-citizens and the history of disadvantage that was experienced by ‘black individuals’, deprived them of citizenship in apartheid legacy in South Africa[8]. However, if such factors are taken into account, it can stated that these may form criteria to determine discrimination or inequality, though the factors are not exhaustive.

In the South African context, the outcome of apartheid is substantial. Apart from the disadvantages suffered by the black individuals due to ethnic discrimination imposed under the apartheid legacy, the economic deprivation that was experienced by the individuals was equally significant. Besides, the Constitutional court had also recognized the societal inequality that resulted from apartheid regime and the harmful outcomes of considering certain groups as lesser to other groups during the apartheid regime. In Khumalo v Holomisa [2002][9], the constitutional court explained the underlying conception of dignity. The court stated that the significance of human dignity set out in the constitution is not only concerned with the sense of self-worth of individuals but it also affirms the significance of human beings in the society. The human dignity entails the importance of human beings that is commonly shared by all people along with the personal reputation of every person based upon the individual achievements.

The corresponding duty of individuals to accord respect to the other members of the society is inherent and is known as ‘Ubuntu’.  In other words, ubuntu is the African is a way of life where respect is accorded to human dignity and a person is subjected to equal treatment irrespective of the status of such person in the context of community. The sources of Ubuntu have originated from idioms and it signifies that interdependence of individuals with the other members of the community is fundamental. Ubuntu was expressly referred in the Constitution of 1933 but not in the Constitution of 1966. However, it is stated that notion is impliedly incorporated in the transformative constitution by the frequent reference to human dignity in the constitution. The concept of ubuntu signifies that respect for human dignity and equality are unconditional and core constitutional values that must be promoted by the courts[10].

From the above discussion, it can be stated that in the context of the values  based on which forms the basis for the post-apartheid South African state, it is apparent that human dignity has immense significance in transforming the South African society[11]. Although, the incorporation of human dignity into constitutions of nations is not confined to South Africa but the significance of the role of human dignity is intensified by the role allocated to human dignity in the determination of the constitutionally protected right like right to equality. The arguments presented in this essay include the dignity-based-perspective to equality developed by the Constitutional court of the nation is embedded in the form of an conventional tradition which identifies dignity of human as the basis of human rights. This formed the basis to develop a framework for implementing the constitutional right to equality that concentrates on the realities of poverty, divisions and social strife of the South African society. The lack of detailed justification to the concerns related to the relationship between dignity and equality should be elucidated. However, the potentiality of the approach, undertaken lies in the capability move ahead of a shallow commitment with equality in order to resolve the real sufferings experienced due to discrimination or inequality.

Becker, Anne, Annamagriet De Wet, and Willie Van Vollenhoven. "Human rights literacy: Moving towards rights-based education and transformative action through understandings of dignity, equality and freedom." South African Journal of Education 35.2 (2015): 01-11.

Cornell, Drucilla. Law and revolution in South Africa: UBuntu, dignity, and the struggle for constitutional transformation. Oxford University Press, 2014.

Harksen v Lane [1998] (1) SA 1(CC)

Heath-Brown, Nick. "Universal Declaration of Human Rights." The Statesman’s Yearbook 2016: The Politics, Cultures and Economies of the World (2015): 8-10.

Khumalo v Holomisa [2002] (5) SA 401 (CC)

Larbi-Odam and Others v Member of the Executive Council for Education (North West Province) and Another [1998] (1) SA 745 (CC)

Musgrave, Michael. "African Customary Law in South Africa. Post-Apartheid and Living Law Perspectives by C. Himonga and T. Nhlapo, T.,(eds.). 2015. Cape Town: Oxford University Press Southern Africa." (2016).

President of the Republic of South Africa v Hugo [1997] (4) SA 1(CC)

Pretorius, J. L. "Human Dignity: Lodestar for Equality in South Africa, L. Ackermann: book review." Stellenbosch Law Review= Stellenbosch Regstydskrif 25.3 (2014): 628-631.

Prinsloo v Van der Linde [1997] ZACC 5.

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