Public Law Essay: Human Dignity, Equality, and South African Context

This essay examines the Constitutional Court's perspective on the relationship between human dignity and equality in the context of the protection of the constitutional right to equality in South Africa. It explores the country's approach to addressing inequality, the significance of dignity as a constitutional right, and the court's interpretation of equality based on the concept of protecting human dignity. The essay discusses key cases, including President of the Republic of South Africa v Hugo, Harksen v Lane, Prinsloo v Van der Linde, Larbi-Odam and Others v Member of the Executive Council for Education (North West Province) and Another, and Khumalo v Holomisa, to illustrate the court's reasoning. It also delves into the concept of Ubuntu and its role in promoting respect for human dignity and equality. The essay argues that human dignity has immense significance in transforming South African society and provides a framework for implementing the constitutional right to equality, focusing on the realities of poverty, divisions, and social strife. Finally, the essay highlights the potential of this approach to move beyond a shallow commitment to equality and address the real sufferings experienced due to discrimination or inequality.

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Author Note

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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 dignity1. 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 law2. 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
1 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.
2 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.

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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 society3.
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 law. 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.
3 Heath-Brown, Nick. "Universal Declaration of Human Rights." The Statesman’s Yearbook 2016: The
Politics, Cultures and Economies of the World (2015): 8-10.
4 President of the Republic of South Africa v Hugo [1997] (4) SA 1(CC)

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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.
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 Africa8. However, if such factors are taken into account, it can stated that these
5 Harksen v Lane [1998] (1) SA 1(CC)
6 Prinsloo v Van der Linde [1997] ZACC 5.
7 Larbi-Odam and Others v Member of the Executive Council for Education (North West Province) and
Another [1998] (1) SA 745 (CC)
8 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).

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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 courts10.
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
9 Khumalo v Holomisa [2002] (5) SA 401 (CC)
10 Cornell, Drucilla. Law and revolution in South Africa: UBuntu, dignity, and the struggle for constitutional
transformation. Oxford University Press, 2014.

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apparent that human dignity has immense significance in transforming the South African
society11. 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.
11Musgrave, 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).

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Bibliography
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.