STUDY UNIT 6: THE BILL OF RIGHTS & RELATED TOPICS

Dear Students

Below (in italics) is the outline of STUDY UNIT 6 as it appears in the Module Outline. Please note
in particular the Learning Outcomes.

“✪ There will be a short video clip (or two) on the Constitutional Court.

1. The Bill of Rights - selected fundamental rights and freedoms:

● Equality
● Human dignity
● Privacy
2. Limitation of rights
3. Africanisation, decolonisation and constitutionalisation of South African law
4. Globalisation and digitalisation of South African law

Learning outcomes:
● Understand the essence of the Bill of Rights
● Discuss the most important human rights provided for under the Bill of Rights of the
Constitution
● Understand the limitation of rights
● Understand and apply case law in the constitutional context
● Discuss Africanisation, decolonisation and constitutionalisation in in the context of South
African law and legal development
● Discuss globalisation and digitalisation in relation to South African law and legal
development”

STUDY UNIT 6: LECTURE NOTES

 Sections 9, 10 and 14 in the SA Bill of Rights.

 Extracts from Hoffmann v South African Airways 2001 1 SA 1 (CC).
 Extracts from President of the Republic of South Africa and Another v Hugo 1997 (6)
BCLR 708.
 Extracts from S v Makwanyane 1995 (3) SA 391 (CC).
 Extracts from Dawood and Another v Minister of Home Affairs and Others 2000 3 SA 936
(CC).
 Extracts from Minister of Justice and Constitutional Development and Others v Prince (Clarke
and Others Intervening); National Director of Public Prosecutions and Others v Rubin; National
Director of Public Prosecutions and Others v Acton 2019 (1) SACR 14 (CC).
 Extracts from Minister of Police and Others v Kunjana 2016 (2) SACR 473 (CC).

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 Tshepo Madlingozi, ‘Social justice in a time of neo-apartheid constitutionalism: Critiquing
the anti-black economy of recognition, incorporation and distribution’ 28 Stellenbosch Law
Review 2017 123-147.
 Meintjies-Van der Walt, L (ed) Introduction to Law: Fresh Perspectives, 3rd edition,
2019, Pearson (hereafter Fresh Perspectives). Note that the Kleyn and Viljoen textbook
does not deal adequately with this part of the work whereas the Fresh Perspectives
textbook does. The relevant pages of this textbook have been reproduced and placed on
IKAMVA.

In Study Unit 5 we discussed the notion of a constitution in general and aspects of the South African
Constitution in particular. Regarding the South African Constitution we summarised its key features
as constituting the following:
● A codified (written) constitution
● A Bill of Rights
● Inflexible
● Co-operative government: unitary but federal features – three levels of government
● Constitutional sovereignty
● Transformative

In Study Unit 6 we shall focus on:

1. the Bill of Rights and specifically the three fundamental rights below which we shall discuss
in light of selected cases.
A. Equality
B. Human dignity
C. Privacy

Thereafter we shall consider:

2. the limitations, if any, that these rights may be subjected to;
3. the Africanisation, decolonisation and constitutionalisation of South African law; and
4. the impact of globalisation and digitalisation on South African law.

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 1. THE BILL OF RIGHTS – EQUALITY, HUMAN DIGNITY and PRIVACY

A. EQUALITY – S9
 S9 of the Constitution
 Extracts from Hoffmann v South African Airways 2001 1 SA 1 (CC)

1. Understanding the notion of equality

Equality may be understood on two levels:
(i) It simply refers to the attainment of formal equality;
(ii) It refers to the attainment of substantive equality.

Thus, our first task is to understand what is meant by formal equality as opposed to
substantive equality.
(i) Formal equality
Formal equality refers to a situation where all people are afforded equal rights. On this
approach, the law is required to treat all people in similar circumstances in the same way.
Thus, there is an assumption that all people are on equal footing and therefore they must
be treated equally according to a neutral standard that does not take cognisance of any
differences that may exist. It ignores the existence of social and economic disparities
between groups and individuals.

For example, assume that there is a law that stipulates that all children have a right to
attend a public school. This law clearly treats all children equally (in a formal sense).
However, what it fails to take into account is that children with special needs, for example
blind children, may require special schools or special programmes that take their
particular circumstances into account.

Students to provide further examples of formal equality.

(ii) Substantive equality

Substantial equality (also known a real equality) is founded on the premise that in order to
attain an equal outcome, the law must accommodate special circumstances/needs. Put
another way, it means that people with special circumstances/needs must be
accommodated in order to ensure equal outcomes for all. The emphasis is on the
outcome / result / effect of the law rather on its form. To attain an equal outcome / result /
effect, the bigger picture – past, present and future – must be taken into account. Thus,
there must be an examination of the actual social and economic circumstances of groups
and individuals when laws are enacted or applied in order to ensure equality of outcome /
result / effect. (The notion of substantive equality ties in with our understanding of a
purposive approach to (constitutional) interpretation – see slide 16 of Study Unit 1 as
discussed in class).

On this approach it is in order to treat people differently and to give preference to some
over others if the outcome is to attain (substantive) equality. For example, in the context

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 of employment past exclusions and inequalities may be taken into account when hiring
people.

In National Coalition for Gay and Lesbian Equality v Minister of Justice 1999 (1) SA 6
CC para 60 – 61 the Constitutional Court said:

“Particularly in a country such as South Africa, persons belonging to certain categories

have suffered considerable unfair discrimination in the past. It I insufficient for the
Constitution merely to ensure, through its Bill of Rights, that statutory provisions
which have caused such unfair discrimination in the past are eliminated. Past unfair
discrimination frequently have ongoing negative consequences, the continuation of
which is not halted immediately when the initial causes thereof are eliminated, and
unless remedied, may continue for a substantial time and even indefinitely. Like
justice, equality delayed is equality denied…One could refer to such equality as
remedial or restitutionary equality.”
NOTE: The notion of equality as remedial or restitutionary equality will be taken up
below when we discuss the “constitutionalisation” of South African law /
transformative constitutionalism.

NOTE: The contents of this box is not examinable but you may cite the (name of the)
case as authority when writing up your own notes / in answering an assessment
questions.

Examples of legislation that seek to attain substantive equality are:

The Employment Equity Act 55 of 1998 where the purpose of the Act is reflected in the
following terms:

Purpose of this Act

2. The purpose of this Act is to achieve equity in the workplace by-
(a) promoting equal opportunity and fair treatment in employment
through the elimination of unfair discrimination; and
(b) implementing affirmative action measures to redress the
disadvantages in employment experienced by designated groups [the past] , in
order to ensure their equitable representation in all occupational categories and
levels in the workforce [the present and the future].

NOTE: The contents of this box is not examinable but you must cite the (name of the)
statute as authority when writing up your own notes / in answering an assessment
questions.

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The Broad-Based Black Economic Empowerment Act 53 of 2003 where the PREAMBLE
reads as follows:

WHEREAS under apartheid race was used to control access to South Africa’s productive resources and
access to skills [the past];
WHEREAS South Africa’s economy still excludes the vast majority of its people [the present] from
ownership of productive assets and the possession of advanced skills;
WHEREAS South Africa’s economy performs below its potential because of the low level of income earned
and generated by the majority of its people;
AND WHEREAS, unless further steps are taken to increase the effective participation of the majority of
South Africans in the economy, the stability and prosperity of the economy in the future [the future] may
be undermined to the detriment of all South Africans, irrespective of race;

AND IN ORDER TO-

● promote the achievement of the constitutional right to equality, increase broad-based
and effective participation of black people in the economy and promote a higher growth rate,
increased employment and more equitable income distribution [the present and the future]; and
● establish a national policy on broad-based black economic empowerment so as to
promote the economic unity of the nation, protect the common market, and promote equal
opportunity and equal access to government services [the present and the future].

NOTE: The contents of this box is not examinable but you must cite the (name of the) statute as authority
when writing up your own notes / in answering an assessment questions.

Laws such as the above treat people differently as long as they are linked to a proper
government purpose, e.g. the employment of a disabled person. Affirmative action such as
that proposed in these pieces of legislation does not detract from equality but rather it serves
as a means of attaining constitutional equality as understood in its substantive / remedial /
restitutionary / constitutionalism context.

2. What is the approach of our Constitution?

Let’s start with section 1 of the Constitution

Section 1 Republic of South Africa

The Republic of South Africa is one, sovereign, democratic state
founded on the following values:
(a) Human dignity, the achievement of equality and
the advancement of human rights and freedoms.

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Section 1(a) of the Constitution states that the Republic of South Africa is founded on the
principles of equality, dignity and freedom thereby placing an obligation on the State to
achieve the goal of equality (and dignity and freedom).
The notion of equality is developed in S9, the first right in the Bill of Rights. Thus, it is said
to enjoy double constitutionality as discussed and explained in Study Unit 5.

Section 9 Equality

(1)Everyone is equal before the law and has the right to equal protection and benefit of the law.

(2)Equality includes the full and equal enjoyment of all rights and freedoms. To promote the
achievement of equality, legislative and other measures designed to protect or advance persons or
categories of persons, disadvantaged by unfair discrimination may be taken.

(3)The state may not unfairly discriminate directly or indirectly against anyone on one or more
grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour,
sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.

(4)No person may unfairly discriminate directly or indirectly against anyone on one or more
grounds in terms of subsection (3). National legislation must be enacted to prevent or prohibit
unfair discrimination.

(5)Discrimination on one or more of the grounds listed in subsection (3) is unfair unless it is
established that the discrimination is fair.

S9 not only protects the right to equality, it also guarantees everyone equal protection and
benefit of the law and the right not to be unfairly discriminated against. Equality is explained
as including “the full and equal treatment enjoyment of all rights and freedoms” – ss(2).
The right to equality as contained in s1(a) and s(9) must be understand against in the
historical context of discrimination and dispossession both before and during Apartheid
South Africa and legacy of Apartheid that still casts its shadow over the land. (We have dealt
with these aspects on numerous occasions during our contact lectures.) Thus, this leads one to
conclude that the notion of equality and its protection in our Bill of Rights go beyond a desire
to attain equality in a formal context.
That the Bill of Rights envisages substantive equality is patently evident from the fact that the
section authorises the State to take “legislative and other measures designed to protect or
advance persons, or categories of persons, disadvantaged by unfair discrimination” in order to
foster the attainment of equality – ss(2). In addition, s9 places a positive obligation on the
State so as to ensure that everyone fully and equally enjoys all rights and freedoms and to
guard against unfair discrimination– ss4. (The notion of unfair discrimination is discussed in
point 3 below.) Further evidence that substantive equality is at the core of the Constitution is
the fact that equality is grouped with human dignity and freedom, not only as a value in

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section 1, but also at numerous other points in the Bill of Rights – see, e.g, s7(1); s36(1),
s39(1). The notions of human dignity (discussed below) and equality both also require an
approach that takes cognisance of the past, the present and the future when viewed on their
own and also when applied in the context of the law and legal system.
In terms of s9, affirmative action programmes and other measures of differentiation pass
constitutional muster if they1:
(i) target persons or categories of persons who have suffered discrimination –ss2;
(ii) are meant to protect and advance the cause of such persons –ss1;
(iii) promote the attainment of equality – ss4.

3. What constitutes unfair discrimination?

(i) The Constitution
The Constitution prohibits both the state (ss(3)) and individuals (ss(4)) from
unfairly discriminating, directly or indirectly (discussed in (ii) below), on a
range of specified grounds (ss(3)), including race, gender, sex, marital status etc.

The grounds listed in ss(3) (listed/specific) grounds” ARE NOT A CLOSED

LIST. Other grounds (unlisted/unspecified grounds) may also be considered, if
they are analogous (comparable) to the listed grounds.

(a) Discrimination on listed grounds

Discrimination on one of the listed grounds will amount to unfair
discrimination unless the discrimination is fair

Case study of discrimination on a listed ground:

 President of the Republic of South Africa and Another v Hugo 1997 (6)
BCLR 708 (see paragraphs 1-4; 33; 47-48; 76; 115)

On 27 June 1994 President Mandela granted a special reduction of sentence to

certain categories of prisoners: All female prisoners with children under the
age of 12 years were to be pardoned by the President in terms of the
Presidential Act 17 of 1994.

Hugo was a male prisoner and the father of a 12-year-old child. He challenged
the Presidential Act and contended that the Act discriminately unfairly against
male prisoners with children under the age of 12 years. Sex is a listed ground
in terms of s 9(3) but “children under the age of 12” was not but the
Constitutional Court confirmed that because the Presidential Act discriminated
against a male prisoner (sex was is listed ground s9(3)) the discrimination was

1 See Minister of Finance v Van Heerden 2004 (6) SA 121 (CC) paras 32, 36 and 37.

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 presumed to be unfair and the President had the burden to prove that the
discrimination was not unfair but fair. The President argued that he could not
release the male prisoners as well because this would have led to a large
number of male prisoners who would have gained release.

The Court contended that although the Act did constitute a disadvantaged to
male prisoners it did not restrict their rights and obligations in a permanent
way. Also, The Presidential Act did not intend to release all prisoners but only
females, which was seen as an act of mercy by the President. The
discrimination was deemed to be fair and the application by Hugo was
unsuccessful.

(b) Discrimination on unlisted grounds

Discrimination in terms of an unlisted ground will be unfair if the ground is (i)
analogous to one of the listed ground, and, if (ii) the discrimination impairs
the human dignity of the complainant or results in other serious
impairment.2

Case study of discrimination on an unlisted ground:

(i) Analogous grounds: Larbi-Odam and Others v Member of the Executive

Council for Education (North-West Province) and Another 1998 (1) SA 745
(CC) (paragraphs 19-20; 23-25)

In the Larbi-Odam case a provincial regulation required that all permanent

teachers in RSA had to be South African citizens. Thus non-citizens could not
be appointed to permanent teaching posts. The Court held that the rule
discriminated against non-citizens who wanted to become permanent
teachers. The Court had to determine whether the differentiation amounted to
unfair discrimination because the ground of citizenship was not listed in terms
of s9(3). The Court held that this discrimination against non-citizens was
unfair. The reasons for the Court’s decision was primarily based on the
analogous fact that foreigners are already a vulnerable group in our society
and passing a rule that excludes professional non-citizens from becoming
permanent teachers only increases this vulnerable position.

(ii) Impairment of human dignity or other serious impairment:

 Hoffmann v South African Airways 2001 1 SA 1 (CC) (discussed below).
Discrimination in terms of an unlisted ground will be considered unfair
discrimination if the discrimination affects the human dignity of the
complainant or any other serious impairment, In Hoffmann v South African
Airways 2001 1 SA 1 (CC), paragraph 27 the Court said:

2 Le Roux v Dey 2011 (3) SA 274 (CC) para 185.

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 “At the heart of the prohibition of unfair discrimination is the
recognition that under our Constitution all human beings, regardless of
their position in society, must be accorded equal dignity. That dignity
is impaired when a person is unfairly discriminated against. The
determining factor regarding the unfairness of the discrimination
is its impact on the person discriminated against. Relevant
considerations in this regard include the position of the victim of the
discrimination in society, the purpose sought to be achieved by the
discrimination, the extent to which the rights or interests of the victim
of the discrimination have been affected, and whether the
discrimination has impaired the human dignity of the victim”

At issue in this case was the South African Airways’ policy of not employing
HIV-positive persons as cabin attendants. The legal question was whether the
policy constituted unfair discrimination. (Hoffmann was HIV-positive and
SAA did not want to appoint him) [See paragraphs 5-8].

It was contended that his HIV-positive status constituted a disability and the
he was, therefore, discriminated against on the grounds of his disability –
disability being one of the grounds listed in s9(3).

The argument that HIV-positive status constitutes a disability is a

controversial one and one which the Court preferred not to address. Instead,
the Court decided the issue on the basis that HIV-status is an analogous
ground [para. 40]. The Court reasoned that his dignity had been impaired in
that he was disqualified from the job purely on the basis of his HIV-positive
status without any consideration being given to his ability to perform the
work. (The Court also said that HIV-positive persons are stigmatised in
society and to deny them work purely on the basis of their status would be to
further stigmatise them.)

(ii) Direct and Indirect Discrimination

This prohibition (against both direct and indirect discrimination) serves to ensure
that ALL possible forms of discrimination on both the listed or analogous grounds
is prohibited.

(a) Direct discrimination

This occurs when the treatment is clearly different/discriminatory. For example, a
law that prohibits people who wear spectacles from attending school.

(b) Indirect discrimination

The treatment is not obviously different. Here the test is whether the purpose or
effect of the law is discriminatory. For example, a law that says that persons

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 wishing to become police officers must be at least 1.8 meters in height. Whilst this
may on the face of it be non-discriminatory, in its effect it is because women will
be disproportionately affected in that women generally are shorter than men.

Sometimes laws may be completely neutral or non-discriminatory, both in its

content and effect, but may be administered unfairly. For example, a law that
stipulates that only people with 20/20 vision may become police officers. Whilst
this law is on the face of it neutral both in content and effect, it would be
discriminatory if applied/administered unfairly. Thus, it would be applied unfairly
if all persons wearing spectacles are automatically excluded (without being tested
to see whether they have 20/20 vision whilst wearing spectacles).

All such forms of discrimination are prohibited.

(iii) The test for discrimination - The Harksen-test

In Harksen v Lane NO 1998 (1) SA 300 (CC), the Constitutional Court set out
the test for determining whether section 9 of the Constitution has been
contravened

The “Harksen-test” [paragraph 53] as it became known, broadly involves the

following four inquiries/stages:

1. Is the treatment different?

The question here is whether the provision or conduct in question
differentiates between people or categories of people? In other words, is there
some sort of different treatment? E.g. awarding benefits to some and not to
others.

If differentiation is present, the test proceeds.

2. Rational link?
This stage investigates whether s9(1) has been violated. The question here is
whether the differentiation in question is rationally connected to a legitimate
government purpose – For example, in Minister of Finance v van Heerden
2004 (6) SA 121 (CC) held [paragraph 133] that affirmative action was
regarded as fair discrimination since the differentiation in question
(differentiation between white and black people in terms of employment
opportunities) was connected to a legitimate government purpose, that is, to
give black people employment opportunities as provided for in s9(2)

If there is no rational relationship, the law or conduct in question amounts to a

violation of s 9(1).

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 If there is a rational relationship, it is still necessary to determine whether,
despite such rationality, the differentiation nevertheless amounts to unfair
discrimination.

3. Does Differentiation Amount to Unfair Discrimination?

A two stage analysis is followed to determine whether the differentiation
amounts to unfair discrimination:

3.1 Does the differentiation amount to discrimination?

3.2 Is the discrimination unfair?

3.1 Does the Differentiation Amount to Discrimination?

If the differentiation is on a listed ground - Section 9(3), then
discrimination is established.

If differentiation is not on a listed ground, then the discrimination will

depend on whether (i) it is on an analogous ground and (ii) if it affects the
human dignity of the complainant or causes any other serious impairment.

3.2 Is the Discrimination Unfair?

If discrimination is based on a listed ground, the discrimination is unfair. If
discrimination is on an analogous ground (not based on a listed ground)
the complainant will be required to prove unfairness. The fairness of
discrimination is to be determined by the following three factors:
(i) the position of the complainant in the society and whether the
complainant has suffered in the past;
(ii) the nature of the provision and the purpose sought by it;
(iii) the extent to which the discrimination has affected the rights of
the complainant (has human dignity been affected?) – see
Larbi-Odam and others v MEC for Education (North-West
Province) and another 1996 (12) BCLR 1612 (B).

4. Is the Unfair Discrimination Justifiable?

If the discrimination is found to be unfair then a determination will have to be
made as to whether the provision can be justified under the limitation clause
(Section 36).

EXERCISE
Stacey Singh is a Grade 9 student at Durban High. She decides to have her nose pierced and
get a nose stud. This is in accordance with the Hindu culture which women in her family have
followed for years. However, Stacey is told by the school that she has to remove the nose
stud because it is not in line with school policy. Stacey is devastated. She approaches you for
legal advice, saying she feels victimised. Advise Stacey whether she is being unfairly
discriminated against. In your answer refer to case law.

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B. HUMAN DIGNITY
 S10 of the Constitution
 Extracts from Dawood and Another v Minister of Home Affairs and Others 2000 3 SA 936
(CC)
 S v Makwanyane 1995 (3) SA 391 (CC)

1. Introduction

Section 10 Human Dignity

Everyone has inherent dignity and the right to have
their dignity respected and protected.

Like the right to equality, the right to human dignity enjoys double constitutionality
(discussed and explained in Study Unit 5). It is recognised as a foundational value in s1(a)
and as a right in s10.

Carmichele v Minister of Safety and Security 2001 (4) SA 938 (CC) para 56, described
human dignity as a central value of the ‘objective, normative value system’ by the
Constitution. In S v Makwanyane 1995 (3) SA 391 (CC) para 329, it was characterised as a
benchmark value in the constitutional and political order.

In Dawood and Another v Minister of Home Affairs and Others 2000 (3) SA 936 (CC); 2000
(8) BCLR 837 (CC) at para. 35, the Court said:

“The value of dignity in our Constitutional framework cannot . . . be doubted. The Constitution
asserts dignity to contradict our past in which human dignity for black South Africans was
routinely and cruelly denied. It asserts it too to inform the future, to invest in our democracy
respect for the intrinsic worth of all human beings. Human dignity therefore informs
constitutional adjudication and interpretation at a range of levels.”

Thus, it is clear that human dignity has a pre-eminent status in the new South African
Constitutional and political order.

(Note also that this reaffirms the notion that the Constitutional values (and the Constitution as
a whole) serves to promote substantive equality – see the discussion in para. A1(ii) –
substantive equality – above. It also feeds into the fact that the Constitution is a
transformative one / the notion of constitutionalism that will be discussed in point 3 below
under the heading of the Africanisation, decolonisation and constitutionalisation of South
African law.)

Henceforth, we shall:
(i) attempt a definition of human dignity; and thereafter engage in a discussion of:
(ii) dignity as a value;

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 (iii) dignity as a right;
(iv) dignity in the context of punishment with specific reference to the
Makwanyane case;
(v) dignity and family life with specific reference to the Dawood case.

2. Definition
It is not possible to offer a comprehensive definition of human dignity. This is because it
embraces so many values and has application in practically every aspect of human existence,
be it political or socio-economic.

Though it may be difficult to define, one may conclude that human dignity is a concept that
recognises the inherent value/worth of all human beings.

3. Human Dignity as a value

Human dignity is one of the three core values of the Constitution (the other two being
equality and freedom) – see s1(a) and s7(1). As such, it serves as founding value of our
constitutional order and informs the interpretation of others right in the Bill of Rights.
It (along with the other two) serves a pivotal role in two crucial provisions in the Bill of
Rights:
(i) Section 36 is a singularly important provision as it provides for the limitation of
the rights in the Bill of Rights. Section 36(1) specifically provides for human
dignity (along with the other two) to be taken into account in an analysis of any
such limitation. In simple terms it means that the limitation must be tested against
how it would affect the dignity of the person(s) in question. Thus, it has central
importance in the limitation analysis.
(ii) Section 39 is equally important in that it provides guidance on the interpretation of
the Bill of Rights. Section 39(1) makes it incumbent on any forum (including
courts) to promote the value of dignity (along with the other two) when
interpreting the Bill of Rights. Thus, it in this context, it plays a cardinal role in
the determination of the constitutionality of a law.

The conclusion is that human dignity, as a value (along with the other two), is of cardinal
importance in any matter relating to the provisions in the Bill of Rights, both individually and
collectively.
4. Human dignity as a right
The Constitutional Court has held that the right to human dignity and the right to life are
the most important rights in the Bill of Rights. In S v Makwanyane, The Constitutional
Court explained that:

“The rights to life and dignity are the most important of all human rights, and the source of all other
personal rights…

By committing ourselves to a society founded on the recognition of human rights we are required to
value these two rights above all others. And this must be demonstrated by the State in everything that
it does, including the way it punishes criminals”
.
Per Chaskalson P at para. 144 13
These rights are the basic source of all other personal rights. For example, the right of
individuals to be treated equally and the prohibition of slavery flow from the fact that all
persons possess human dignity in equal measure.

In addition, as an enforceable right, the right to human dignity can be directly enforced. It
applies where specific rights (e.g. right to life, privacy, religion etc.) that give content to the
concept of human dignity are not applicable. As examples, one may consider the following
landmark cases where human dignity served as the foundation of the judgments:
(i) S v Williams 1995 (3) SA 632 (CC) (caning of juveniles - cruel, inhuman or
degrading punishment);
(ii) S v Makwanyane 1995 (3) SA 391 (CC) (death penalty - cruel, inhuman or
degrading punishment);
(iii) National Coalition for Gay and Lesbian Equality v Minister of Justice 1999 (1)
SA 6 (CC) (sodomy – the value and worth of individuals: stigma, insecurity and
vulnerability);
(iv) Dawood v Minister of Home Affairs 2000 (3) SA 936 (CC) (family life imperilled
by legislation).

Note: It is not necessary to remember these judgments for purposes of tests and
examinations except where they are dealt with in full in this set of notes.

5. Case studies
The right to human dignity came to the fore, inter alia, in:
(i)  S v Makwanyane 1995 (3) SA 391 (CC) – in context of punishment;
(ii)  Dawood v Minister of Home Affairs 2000 (3) SA 936 (CC) – in the context of
family life.

(i)  S v Makwanyane 1995 (3) SA 391 (CC) – punishment

S v Makwanyane was one of the first cases heard by the Constitutional Court
(under the 1993 Constitution). The Court laid down the principle that all forms of
state-sanctioned punishment must be consistent with the Constitution (this is in
line with the injunction contained in s39 as discussed above).

(a) Legal question

The legal question for decision was whether the death penalty is constitutional.

(b) Decision and ratio

In a landmark decision, the majority of the Court found the death penalty to be
unconstitutional primarily because it violated the prohibition of cruel, inhuman
and degrading punishment in section 11(2) of the 1993 Constitution.

Before discussing the reasons for the judgment, it must be pointed out that the
Court recognised that imprisonment limits the human rights of prisoners,

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 including the right to dignity but the court found that the limitations are justifiable
considering the objectives of imprisonment, namely, prevention of crime and
rehabilitation.

There were four principle reasons for the Court’s decision:

(i) Sentencing is an inherently arbitrary exercise.
(ii) The death penalty does not accord with the inherent worth of human
beings and the respect that is afforded to all persons, including those guilty
of serious crime(s).
(iii) The death penalty is an irreversible form of punishment. (Note in this
context that mistakes are made in convicting innocent people. In the USA
there are several accounts of convictions, especially in death sentence
cases, being overturned. You may research this for yourselves.)
(iv) The death penalty is cruel towards convicted persons in two ways:
(a) Delay in the execution of the sentence (the “death row phenomenon”).
(b) The execution of the (death) penalty is an exercise in cruelty.

The majority of the judges held that the death penalty also violated the right to life. In
para. 111 the Court reasoned that “[e]very person” is entitled to claim the protection of
the rights enshrined in the Bill of Rights… and ‘no’ person shall be denied the protection
that they offer. Respect for life and dignity…are values of the highest order under our
Constitution. The carrying out of the death penalty would destroy these and all other
rights that the convicted person has”.

(c) A justifiable limitation?

The court also dealt with the question whether the death penalty is a justified
limitation of the right to life.

At para. 104 the Court said that “[t]he limitation of constitutional rights for a
purpose that is reasonable and necessary in a democratic society involves the
weighing up of competing values, and ultimately an assessment based on
proportionality.”

At para.146 the Court continued to say that “[r]etribution cannot be accorded the
same weight under our Constitution as the rights to life and dignity. It has not
been shown that the death sentence would be materially more effective to deter or
prevent murder than the alternative sentence of life imprisonment would be.
Taking these factors into account, as well as the elements of arbitrariness and the
possibility of error in enforcing the death penalty, the clear and convincing case
that is required to justify the death sentence as a penalty for murder, has not been
made out.”

(d) Public opinion

15
 What weight is to be attached to public opinion in favour of the death penalty?
The Court expressed the view that although majority of the population favoured
death penalty, it had to be true to its commitment to its duties as an independent
arbiter of the Constitution. It would not act merely on public opinion because the
Constitution is the supreme law.

During the course of his judgment against the constitutionality of the death
penalty, the President of the CC made the following remarks:

“I am … prepared to assume … that the majority of South Africans agree that the death sentence should
be imposed in extreme cases of murder. The question before us, however, is not what the majority of
South Africans believe a proper sentence for murder should be. It is whether the Constitution allows
the sentence. Public opinion may have some relevance to the enquiry, but in itself, it is no substitute
for the duty vested in the Courts to interpret the Constitution and to uphold its provisions without
fear or favour.”
Per Chaskalson P at para. 87

You will recall that in Study Unit 1 you learnt that the law must reflect societal values
otherwise it may lose its legitimacy. Note how the President of the CC dealt with the
public opinion issue in the quotation in the box above.

(ii) Dawood v Minister of Home Affairs 2000 (3) SA 936 (CC) – family life
The Dawood case dealt with the right to dignity in the context of marriage and
family life.

(a) The facts

The case stems from the application of certain provisions in the Aliens Control
Act 96 of 1991 which required that a foreign spouse (in this case, Ms Dawood) of
a South African citizen (Mr. Dawood), who wished to apply for an immigration
permit from within South Africa, had to be in possession of a valid temporary
residence permit.

The Act gave the officials from the Department of Home Affairs an arbitrary
discretion to decide whether a spouse would be provided with the permit required
to stay in South Africa. The Act did not provide any guidance for the exercise of
this discretion. In other words, it did not provide guidelines as to the factors to be
taken into account by the officials in deciding whether a permit should be granted
or refused.

(b) Legal question

Were the relevant provisions constitutionally unsound in that they offended the
applicants’ right to dignity?

16
 (c) Decision and ratio
The Court declared the relevant provisions in the Act to be unconstitutional in that
they offended the Applicants’ right to dignity.

In many cases where the value of human dignity is offended, the primary right
that has been violated will be a specific right such as the right to equality or
privacy (see the discussion above). In the Dawood case, there was no such
primary right except for human dignity. Though there was no specific
provision/law protecting family life, the primary right implicated was the right to
dignity – see para .

The Court reasoned that the decision to enter into a marriage relationship and to
sustain such a relationship was a matter of defining significance for many people.
To prohibit the establishment of such a relationship impaired the ability of the
individual to achieve personal fulfilment in an aspect of life that was of central
significance. The Court concluded that the impugned provisions of the Aliens Act
clearly constitute an infringement of the right to dignity – at para 37.

C. PRIVACY
Personal consumption of marijuana – see the Prince case discussed below.

 Section 14 of the Constitution

 Extracts from Minister of Justice and Constitutional Development and Others v
Prince (Clarke and Others Intervening); National Director of Public Prosecutions
and Others v Rubin; National Director of Public Prosecutions and Others v Acton
2019 (1) SACR 14 (CC).

1. Introduction

Section 14 Privacy

Everyone has the right to privacy, which includes the right not to have -

(a) their person or home searched;

(b) their property searched;
(c) their possessions seized; or
(d) the privacy of their communications infringed.

The section consists of two parts:

(i) Protection of a general right to privacy (Everyone has a right to privacy…); and
(ii) Protection of specific infringements of privacy (as listed in (a) – (d) but not
limited thereto.

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Thus, in order to prove one of the specific infringements, it must be proven that the search /
seizure / communication infringed the general right to privacy.
Note: As indicated in (ii) above, the general right to privacy is not limited to the specific
infringements enumerated in (a) – (d).

2. Definition and test for privacy

In Bernstein v Bester N 1996 (2) SA 751 (CC) [para 75] the Court concluded that a person’s
privacy encompasses only those aspects in respect of which a legitimate expectation of
privacy exists. In short, it means that privacy is what can reasonably be considered to be
private.

Thus, the test for privacy involves both a subjective and an objective enquiry. This means
that whilst there may be a subjective expectation of privacy, this subjective expectation must
be (objectively) reasonable to qualify for protection.

The Court elaborated to say that the closer we move to truly personal aspects, inner core
privacy, (e.g. sexual preference, family life, home environment etc.), the greater the
likelihood of privacy. Conversely, the further away we move from the truly personal,
business privacy (road blocks, searches of offices/office buildings) the less the likelihood of
privacy. The closer we move to inner core privacy, the stronger the chances of protection and
the further we move away the weaker the chances of protection.

“Privacy is acknowledged in the truly personal realm, but as a person moves into
communal relations and activities such as business and social interaction, the
scope of personal space shrinks
- Bernstein v Bester N 1996 (2) SA 751 (CC) para. 67

“A very high level of protection is given to the individual’s intimate personal

sphere of life and the maintenance of its basic preconditions and there is a final
untouchable sphere of human freedom that is beyond interference from any
public authority”.

- Bernstein v Bester N 1996 (2) SA 751 (CC) para. 77

NOTE: 1 The protection is not absolute. Whereas the State should not interfere
with an individual’s intimate affairs (e.g. possession of erotic material),
a person’s right to privacy may be limited even within his/her home
and despite sexual preference (e.g, possession of child pornography).
2. The protection is also to be balanced by the public’s right to the truth.

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3. Privacy and Searches and Seizures (s14(a)-(c)
The right to privacy includes the right not to have one’s person, property or home searched or
one’s possessions seized – s14(a)-(c).

Searches and seizures that invade privacy should comply with strict requirements:
(i) It must be conducted in terms of legislation;
(ii) It must serve a public purpose.;
(iii) Prior authorisation is normally required (search warrant);
(iv) There must be reasonable grounds for conducting the search (a suspicion that an offence
has been committed).

In Minister of Police and Others v Kunjana 2016 (2) SACR 473 (CC) the question was raised
whether a warrantless search of an individual’s property is constitutional.

The validity of section 11(1)(a) and (g) of the Drugs and Drug Trafficking Act 140 of 1992
(the Drugs Act) which authorised warrantless searches was at issue. The Cape Town High
Court decided that the above provisions violated the constitutional right to privacy, and in
particular section 14(a) of the Constitution. The decision was confirmed by the CC where the
Court held that the right to privacy flows from the value placed on human dignity with which
it has a close connection (para. 14).

Section 11(1)(a) allowed the police to conduct warrantless searches at “any time” of “any
premises, vehicle, vessel or aircraft” and “any container” in which substances or drugs are
suspected to be found.

This meant that the police could conduct warrantless searches even of private homes where
the expectation of privacy is greater, being regarded as the “inner sanctum” of a person (see
the discussion above).

Section 11(1)(g) allowed the police to seize “anything” connected with a contravention of a
provision of the Drugs Act.

The Court reasoned that the provisions did not circumscribe the powers of the police by
providing the police with sufficient guidelines to ensure that inspections, including searches
and seizures are conducted within legal limits. A warrantless search procedure implies the
absence of a warrant providing guidance as to the time, place and scope of a search – para 23.

The above led the Court to conclude that the provisions gave the police carte blanche to enter,
search and seize; there being no safeguards / guidelines to minimise the intrusion of privacy
and thus to ensure that inspections, including searches and seizures, within the limits of the
law. It is clear that wide discretionary powers must be avoided.

19
The Court further held that the limitation (by way of a warrantless search) of the right to privacy was
unjustifiable (paras 16-32) in terms of section 36 (the limitations clause). This aspect of the case
dealing with the limitations clause will be discussed in point 2 below (Limitation of Rights).

4. Privacy of Communications (s14(d))

The digital age has transformed the way we communicate (e.g. cell phone, computers etc.).

Intercepting a telephone call or “wearing a wire” are two traditional examples of obtaining
evidence in terms of communications. Such interception will be valid only if approved by a
judge.

5. Privacy – A case study

 Prince v President of the Law Society, Cape of Good Hope 1998 (8) BCLR 97 (C).
 Prince v President of the Law Society, Cape of Good Hope, and others 2000 (3) SA 845
(SCA).
 Prince v President of the Law Society, Cape of Good Hope, and others 2002 (2) SA 794
(CC).
 Prince v Minister of Constitutional Development [2017] 2 All SA 864 (WCC); 2017 (4) SA 299
(WCC).
 Extracts from Minister of Justice and Constitutional Development and Others v Prince (Clarke
and Others Intervening); National Director of Public Prosecutions and Others v Rubin; National
Director of Public Prosecutions and Others v Acton 2019 (1) SACR 14 (CC)

This section of the work will deal with the Prince cases that dealt with the issue of the
cultivation, possession and use of cannabis (dagga, marijuana). All the Prince judgments deal
with the constitutionality of the prohibition and criminalisation of the use of cannabis by
adult persons in their private dwellings.

(i) Introduction
The Drugs and Drug Trafficking Act 140 of 1992 (the Drugs Act) (Sections 4(b) and 5 (b))
read together with of the Medicines and Related Substances Control Act 101 of 1965 (the
Medicines Act) (section 22A(9)(a)(i) read with Schedule 7), prohibits and criminalises the
use, possession, purchase and cultivation of cannabis by any individual in South Africa.

(ii) The Right to Freedom of Religion challenge (the first three Prince cases)
Gareth Prince (Prince) is a practicing Rastafarian and holds a law degree from UWC. After
the Cape Law Society refused to register Prince’s contract of articles, he applied for an order
declaring the sections of the relevant sections of the Drugs Act invalid on the ground that
they violated his right to freedom of religion (s15).

Prince’s application was unsuccessful in at all three levels – the Cape High Court, the SCA
and the CC. (Prince v President of the Law Society, Cape of Good Hope 1998 (8) BCLR
976(C). Prince v President of the Law Society, Cape of Good Hope, and others 2000 (3) SA

20
845 SCA; Prince v President of the Law Society, Cape of Good Hope, and others 2002 (2)
SA 794 (CC).)

The Constitutional Court decided that Prince’s right to religion could be limited in terms of
Section 36. In deciding this, the Court noted that dagga was a drug where there was a big
illegal trade and it would be difficult for law enforcement officials to determine who is using
dagga for religious purposes or who is simply lying about their religious beliefs to escape
conviction – at paras. 129-130.

(iii) The Right to Privacy challenge (the last two Prince cases)
Prince later again challenged the constitutionality of the provisions of the Drugs Act and the
Medicines Act but this time on the grounds of his right to privacy.

The legal question was whether the provisions of the two Acts violated Prince’s right to
smoke dagga in the privacy of his own home or his private space (s14 right to privacy).

The Cape High Court in Prince v Minister of Constitutional Development [2017] 2 All SA
864 (WCC); 2017 (4) SA 299 (WCC) declared the impugned provisions to violate Prince’s
right to privacy saying that “those who wish to partake of a small quantity of cannabis in the
intimacy of their home do exercise a right to autonomy which, without clear justification does
not merit interference from the outside community or the State” – at para. 25.

The unconstitutionality applied only to the extent that the provisions prohibit the use,
possession or cultivation of cannabis by an adult person in private for personal consumption
in a private dwelling (i.e. at home).

The decision had to be confirmed by the Constitutional Court (as explained in Study Unit 3 –
see slide 10).

This happened in Minister of Justice and Constitutional Development and Others v Prince
2019 (1) SACR 14 (CC).

Prince’s core argument (para 27) was that the State should not dictate what people eat, drink,
or smoke – this constitutes an invasion of his right to privacy.

The State had to prove that the criminalisation of dagga as provided for by the various Acts
of Parliament were a reasonable and justifiable limitation of the right to privacy in terms of
s36. This, the State was unable to do.

In a unanimous judgment, the Constitutional Court agreed with the order of the High Court.
However, the court held that the right to privacy extends beyond the boundaries of the home
and removed the High Court’s limitation that the use, possession or cultivation of cannabis is
restricted to one’s “home” or “private dwelling”. Note that the Court confirmed the
requirement that use, possession or cultivation must be for private purposes.

21
The judgment effectively means that adult persons are now permitted to use, possess and
cultivate cannabis in a private place for personal consumption.

In holding that there are many other ways to fight the problems associated with the use of
cannabis as opposed to the use of criminal law, the court found that the criminalisation of
cannabis (and its history) was characterised by racism and that many indigenous South
Africans used cannabis. The court also found that the alleged harm of cannabis was not as
severe as historically argued and that it makes little sense to allow the use and possession of
alcohol and tobacco and at the same time criminalise cannabis (see e.g. para 78).

The impugned sections of the Drugs Act and the Medicines Act were declared invalid and
inconsistent with s14 (right to privacy) of the Constitution, and Parliament was given 24
months to address the constitutional defect.

The judgment means that adult individuals are now permitted to use, possess and cultivate
cannabis in private and for personal consumption only. Note that the judgment does not
sanction the use of cannabis in public or in the presence of children or non-consenting adults.

Personal use?
The amount of cannabis will be an indication whether the possession is for personal
consumption - the higher the amount, the higher the likelihood that the cannabis is not only
being used for personal consumption. The Constitutional Court left it to the legislature to
determine the permissible amount of cannabis that can be legally possessed by an adult.

==============================================

22
2. LIMITATION OF RIGHTS
 Kleyn & Viljoen Chapter, 193-196.
 Section 36 of the Constitution of the Republic of South Africa, 1996.
 S v Makwanyane 1995 (3) SA 391 (CC).
 Minister of Police and Others v Kunjana 2016 (2) SACR 473 (CC).

Section 7 Rights

(i) …
(ii) …
(iii) The rights in the Bill of Rights are subject to the limitations contained or referred to in section 36,
or elsewhere in the Bill.

Section 36 Limitation of rights

The rights in the Bill of Rights may be limited only in terms of law of general application to the extent
that the limitation is reasonable and justifiable in an open and democratic society based on human
dignity, equality and freedom, taking into account all relevant factors, including—
(a) the nature of the right;
(b) the importance of the purpose of the limitation;
(c) the nature and extent of the limitation;
(d) the relation between the limitation and its purpose; and
(e) less restrictive means to achieve the purpose.

It is self-evident that the rights in the Bill of Rights are not absolute / unlimited. Thus, the
rights in the Bill of Rights may be limited by the rights of others or by social concerns, for
example, public order, safety and health. Examples:
● The right to freedom of speech (s16) is limited in that speech may not amount to hate
speech.
● Termination of pregnancy is legal in South Africa but what about the right of the
unborn child to life (s11)? This right to life is limited.
● The right to private defence, a common law defence, allows a person under certain
circumstances to harm the attacker (even kill the attacker) to protect his/her own life.
The right to life of the attacker is thus limited.
● If a state of emergency is declared in terms of s37, some of the rights in the Bill of
rights may be suspended, but this does not include the right to life and the right to
human dignity (s 10).

Whilst s7(3) introduces the notion of limitations, it s36 of the Constitution that provides the
boundaries for any such limitation / infringement of a right in the Bill of Rights. In other
words, s36 provides the criteria for determining whether a limitation / infringement of a right
is justified. The limitation will be constitutional and valid if it is justified in terms of the s36
criteria and will be unconstitutional and invalid if it does not meet these criteria. (Note that

23
s36(2) and s7(3) provides that the rights may be limited by other provisions in the
Constitution. We shall not consider this aspect in our module.)
1. The test / criteria in s36
The test consists of two stages:

(i) A threshold enquiry

The threshold enquiry is to determine whether the limitation is permitted / allowed /
justified by a law of general application.

Note:
(a) The limitation / infringement must be contained in a law.
(b) The law must be the common law, customary law or legislation etc; and
(c) The law must have general application. This means that the law must apply
equally to all so as to prevent arbitrary application of the law. An arbitrary
application occurs, for example, where a public official uses his / her own
discretion to target certain people or where the law is applied without there being
any rational basis for its application.

The notion of “equally to all” does not mean that a law cannot target a specific
category of persons. So, for instances the code of conduct that regulates public
broadcasters applies only to that category of persons who are public broadcasters (and
not to everyone in the country). The requirement here would be that it must apply
equally to all public broadcasters.

(ii) Is the limitation reasonable and justifiable?

If the threshold test in (i) above is met, the purpose of the limitation is considered in
light of other factors, such as those listed in (a) – (e) to establish whether the
limitation is reasonable and justifiable in an open and democratic society based on
human dignity, freedom and equality.
This means:
(a) that the purpose of the limitation / infringement / restriction must acceptable in
an open and democratic society based on the values of human dignity, equality
and freedom (in other words it must be serve a constitutionally acceptable
purpose); and
(b) the limitation / infringement / restriction must be reasonable in that it does not
limit the right in question more than is necessary in order to achieve its
purpose.

It is clear from the above that rights are not lightly limited in that even if a limitation
carries an important purpose, it must still be proven:
(a) that the limitation / infringement of the right is justified in that good reasons
exist to believe that the restriction would achieve that purpose; and
(b) that there is no other restrictive way to attain that purpose – s36(1)(e).

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 In summary, it must be shown that the law (limitation) in question:
(a) serves a constitutionally acceptable purpose; and
(b) there is sufficient proportionality between the harm done by the law
(infringement) and the benefit it is designed to achieve (the purpose). This is
the so-called “proportionality” test.

(iii) The proportionality test

We shall discuss the test with reference to:
 S v Makwanyane 1995 (3) SA 391 (CC).
 Minister of Police and Others v Kunjana 2016 (2) SACR 473 (CC).

In the Makwanyane case the Court held that the death penalty infringed the right
to life (s11), human dignity (s10), and freedom from cruel, inhuman and
degrading punishment (s12(1)(e)). The Court then had to determine whether the
death penalty constituted a reasonable and justifiable limitation of the three rights.

In the Kunjana case police officials entered the house of Ms Kunjana without a
warrant, seized illegal goods and arrested her. The Court has to decide whether the
warrantless search and seizure provisions of the Drugs Act constituted a
reasonable and justifiable limitation of her right to privacy.

Section 36(1) requires a court to consider the following factors:

(a) The nature of the right infringed (s36(1)(a))

This factor involves an enquiry into the importance of the right that has been
violated.

In the Kunjana case it concerned the right to privacy (s14).

In the Makwanyane case it concerned the right to life (s11), human dignity
(s10), and freedom from cruel, inhuman and degrading punishment (s12(1)
(e)).

(b) The importance of the purpose of the limitation (s36(1)(b))

What is the purpose of the violation (limitation), and is it an important
purpose? A purpose that does not contribute to an open and democratic society
based on the values of human dignity, equality and freedom cannot be
justifiable - the purpose must be a constitutionally acceptable one.

In Kunjana the purpose of the warrantless search and seizure operation for
drugs was to discover the evidence before it could be tampered with. This
purpose is important to curb the harmful effects of drugs and drug trafficking.

In Makwanyane the purpose of the death penalty was (i) to act as a deterrent
(ii) to prevent the recurrence of violent crime (once dead, the convicted person

25
 cannot commit any violent crimes) (iii) retribution. These purposes are
important to promote a peaceful society and to secure the safety of persons
within that society.

(c) The nature and extent of the limitation (s36(1)(c))

Is the right severely limited, or only slightly? In Makwanyane the court said
that one must not use a sledgehammer to crack a nut.

In Kunjana her right to privacy was severely violated. The Court said that the
police violated her “inner sanctum” (her home) - see the discussion in
PRIVACY, Definition and test for privacy above.

In Makwanyane the harm (the death of the person) would have grave and
irreparable effect on the rights in question. (A dead person cannot exercise
those or any rights. It is final.)

(d) The relation between the limitation and the purpose s36(1)(d))
Is there a rational causal link between the violation and its intended purpose?
Is there a good reason for the limitation / infringement?

In Kunjana there was a rational connection between the prevention of drug

offences and search and seizure operations that may include a warrantless
search. A warrantless search is sometimes required to prevent crime.

In Makwanyane there was a not a rational connection between the death

penalty and deterrence. because there was no evidence that to show it acted as
a deterrent. In other words, there was no evidence to support the claim that the
death penalty led to a reduction in violent crime.

(d) Are there less restrictive means to achieve the purpose? (s36(1)(e))
Is there any other way to achieve the purpose in a manner that does not
infringe any rights / has a less severe impact on rights?

In Kunjana s11(a) and (g) of the Drugs Act allow the police to escape the
usual rigours of obtaining a warrant. Constitutionally adequate safeguards
must exist to justify circumstances where legislation allows for warrantless
searches. Such safeguards are not found in s 11(a) and (g). The Court found
that there were less restrictive measures (e.g. above “safeguards”) to achieve
the purpose of the Drugs Act, for example, obtaining a warrant.

In Makwanyane the Court found that the goals / purposes could be achieved
by imposing a long sentence of imprisonment.

26
QUESTION: Currently, the right to freedom of movement (section 21 of the Constitution) is
curtailed in terms of the Disaster Management Act 57 of 2002. Discuss
whether this limitation is justifiable in terms of s36 of the Constitution.
3. AFRICANISATION, DECOLONISATION AND CONSTITUTIONALISM
IN SOUTH AFRICAN LAW
 Kleyn & Viljoen Chapter 5, 202-206
 Extracts from the Constitution of the Republic of South Africa, 1996 – see below
 Tshepo Madlingozi, ‘Social justice in a time of neo-apartheid constitutionalism: Critiquing
the anti-black economy of recognition, incorporation and distribution’ 28 Stellenbosch Law
Review 2017, 123-147.
 Willa Louw, ‘Africanisation: A rich environment for active learning on a global platform’
Progressio 32 (1) 2010, 42–54.

Learning outcome:
● Discuss Africanisation, decolonisation and constitutionalisation in in the context of South
African law and legal development

1. Transformative constitutionalism: A post-liberal Constitution?

 Kleyn & Viljoen Chapter 202-203

Transformation involves a marked change in nature, form and substance. There is a profound
and radical change that orients a society in a new direction which takes it to entirely different
levels.

In the context of South African’s history, the Constitution is meant to have an effect
equivalent to that of a caterpillar changing into a butterfly. Thus, the legal landscape is meant
to be infused with the values of human dignity, equality and freedom, notions which rarely
formed part of the pre-Apartheid legal landscape.

Transformative constitutionalism refers a legal culture that is based on rights and a respect
for the values of human dignity, equality and freedom, the values that pervade the
Constitution. The Constitution resembles the supreme law which is non-sexist, equal and
non-racial and is transformative in that it seeks to replace, inter alia, the sexist and race-based
policies of the Apartheid regime.
The transformative aim of the Constitution is reflected in the rights included in the Bill of
Rights, that is, the right to human dignity, privacy, life and similar rights – the so-called first
generation or political and social rights.
But the Constitution also seeks to be transformative in respect of socio-economic rights – the
so-called second generation rights (the right to freedom of trade, occupation and profession,
the right to housing; the right to health care, food, water and social security). The inclusion of
socio-economic rights is crucial in transforming South Africa’s society from one that is living
in poverty to one that can flourish economically.

27
This means that the State cannot maintain a division between itself and the individual but that
it must deliver important services like running water etc. to ensure that the socio-economic
rights of the individuals as contained in the Bill of Rights are not violated

The right to equality (s9) and the right to vote (s19) in particular give the Constitution its
post-Apartheid quality.

Examples of areas where the transformative purpose of the Constitution has been realised and
which we have dealt with in this Study Unit are listed below:
1. Choice on Termination of Pregnancy Act 92 of 1996.
2. Employment Equity Act 55 of 1998.
3. Broad-Based Black Economic Empowerment Act 53 of 2003.
4. National Coalition for Gay and Lesbian Equality v Minister of Justice 1999 (1) SA 6
(CC) - the value and worth of individuals.
5.  Hoffmann v South African Airways 2001 1 SA 1 (CC) – HIV status.
6.  S v Makwanyane 1995 (3) SA 391 (CC) – death penalty.
7.  Dawood and Another v Minister of Home Affairs and Others 2000 3 SA 936 (CC)
– family life.
8.  Minister of Justice and Constitutional Development and Others v Prince (Clarke
and Others Intervening); National Director of Public Prosecutions and Others v
Rubin; National Director of Public Prosecutions and Others v Acton 2019 (1)
SACR 14 (CC) – privacy.

2. Decolonisation v Transformative constitutionalism

 Kleyn & Viljoen Chapter 203-206.
 Tshepo Madlingozi, ‘Social justice in a time of neo-apartheid constitutionalism: Critiquing
the anti-black economy of recognition, incorporation and distribution’ 28 Stellenbosch Law
Review 2017 123-147.

(i) Introduction
Colonialism is the policy or practice of acquiring full or partial political control over another
country and occupying it with settlers so as to exploit it economically for the benefit of the
colonisers. It involves the imposition of laws, political, social and cultural norms at the
expense of that which exist and which are/were practised by the colonised.

Decolonisation refers to the process of getting rid of colonisation, or freeing a country from
being dependent on the colonisers. This requires a process of undoing the practices of the
colonisers. In the context of the law, it means confronting and challenging colonising
practices that influenced the laws and to adapt them to the local needs.

(ii) Has South African law been decolonised? (Transformation v decolonisation)

The question now arises that if we say that the Constitution is transformative and post-liberal
can we also say that it can be labelled as decolonial?

28
One could argue that the Constitution is decolonial in that it seeks to address the injustices of
the past (Apartheid laws).

However, Madlingozi argues that transformative constitutionalism and decolonisation are not
the same.

He says that the South African society was divided into non-beings (uncivilised) and beings
(civilised) when the colonisers arrived in SA. This division by the colonisers should have
been addressed by the newly elected government and the Constitution. Since the injustices of
the past especially that of a divided SA has not been addressed fully, the Constitution cannot
be labelled as decolonial.

A decolonial Constitution would be one that promotes African nationalism as advocated by

the PAC (p132). As opposed to this, the ANC’s plan was for the transition to be based on
human rights and liberalism. That meant that the ANC accepted the sovereignty and
legitimacy of the settler-created state.

Madlingozi explains on page 123 that:

‘In South Africa today…white people and the black middle class are governed
through a system of liberal democracy, and on the “other side”, patronage,
appropriation, and repression remain in politics’

‘African nationalists set as their goals national independence and the right of self-
determination of conquered people. Africanists, thus, rejected the New Africans’
programme of “interracial social incorporation” seeing it as a ploy for assimilation
and perpetual colonisation.

According to the PAC achieving national independence required a programme of

national consciousness through which Africans were to reclaim their humanity for
themselves, build a multi-ethnic African unity, destroy white supremacy, and struggle
for the dissolution of the settler-state through the restoration of the sovereignties of
subjugated kingdoms and the return of dispossessed land.

The Africanists conceived the fundamental injustice bedevilling Africans as the twin
problem of “land and status”. Unlike the ANC, the PAC’s point of departure was that
South Africa was a colony and that post-colonialism begins with the return of
“stolen” land and the destruction of “the demi-god of white supremacy”’

Thus, according to Madlingozi, Africanisation demanded a complete overhaul of the structure

of society as proposed by the PAC. Such overhaul would place Africans at the head of the
table and that would have had as its point of departure the return of ‘stolen’ land and the
destruction of white supremacy.

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Ramose, an anti-colonial scholar, points out that the move from parliamentary sovereignty to
constitutional supremacy merely consolidated historical injustices, or as Judge Sachs called
it: ‘constitutional freezing of historical injustice’ (p140).

Evidence thereof is that:

(i) Ill-gotten property (land that was taken from non-whites by white settlers) is
constitutionally protected by section 25 of the Constitution.
(ii) Though Section 25 of the Constitution provides for a land restitution programme,
it is a very painstakingly long process and compensation is a prerequisite for land
expropriation.
(iii) Over the centuries illegal obtained land became lawful in the eyes of the white
settlers, a very Eurocentric legal view. The Constitution does not challenge this
view. This Eurocentric view conflicts with Ubuntu which in this respect
commands that molato ga o bole, meaning an injustice remains an injustice until it
is rectified. That the injustice remains is evident in that fact that 26 years since the
rise of our constitutional democracy, ‘the settler (dispossessing) – native
(dispossessed)...remains.’

A question for students to ponder on: Do you think that the amendments to section 25 (land
expropriation without compensation) will address/rectify this issue?

The conclusion on the above analysis is that though the Constitution is transformative it is not
decolonial and South Africa is still a divided society.

3. Africanisation
 Willa Louw, ‘Africanisation: A rich environment for active learning on a global platform’
Progressio 32 (1) 2010 pp. 42–54.

This part of the notes is drawn from the abovementioned journal article.

Africanisation concerns a renewed focus on Africa and involves reclaiming what has been
taken from Africa and the emergence of a new sense of pride. To achieve this, it requires
African identity and culture to be defined and embraced, thereby affirming African culture
and its identity in a world community. Makgoba says it is not about excluding Europeans and
their cultures, but about affirming the African culture and its identity in a world community -
Louw at p 1.

The Sankofa Youth Movement (Louw at p 2) defines Africanisation as:

‘the embracing of our African heritage, and developing a sense of loyalty towards the
Motherland – Africa. This involves adopting and promoting African culture, putting it
on the pedestal currently occupied by the west’.

Louw states:
‘Africanisation reflects our common legacy, history and postcolonial experience.

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 Through this legacy, we have to connect with the broader African experience and
establish a curriculum that binds us together. We then confront our own sense of
Africanness, transcend our individual identity, seek our commonality, and recognise
and embrace our otherness’
A restructured higher education curriculum is therefore needed, where the African reality is
taken seriously alongside Western ideas. Higher education plays a significant role in
Africanisation as universities send thousands of new graduates into middle-class labour
positions.

Africanisation in higher education requires the following:

(i) the nation’s educational paradigms should be redesigned in an indigenous
sociocultural epistemological framework;
(ii) changes in the composition of students, the administrator bodies, the syllabus
and its content, the curricula, and the criteria that determine what excellent
research is;
(iii) universities to be African in that they should be located and rooted in an
African context and develop knowledge, skills, attitudes and values necessary
for the development of the continent;
(iv) critical scholarship from an African perspective becomes an authentic part of
the global knowledge enterprise;
(v) the African reality to be taken seriously in curriculum design, and knowledge,
skills/competencies and values should be taught holistically, from this
perspective;
(vi) indigenous knowledge should be the point of departure when designing study
material;
(vii) black academics to publish legal writings as most law text books have been
written by white academics;
(viii) study material should be student-owned study materials, where the student’s
voice is heard and where the student takes responsibility and initiative for his
or her own learning;
(ix) the growth of student responsibility, initiative, decision making and to
cultivate collaboration between students and academics, where possible.

Louw concludes by stating that:

‘Africanisation is important for the whole African community. Not only does it give
each individual who calls this continent home a sense of belonging, but it also has the
potential to unify a very diverse community with diverse cultures and values. We are
forced to turn to the past in order to create a unified future.’

A question for students to ponder on: In your opinion how can Africanisation of the law be
achieved in the South African context?

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 4. GLOBALISATION AND DIGITALISATION IN SOUTH AFRICAN LAW
 Willa Louw, ‘Africanisation: A rich environment for active learning on a global platform’
Progressio 32 (1) 2010, 42–54.
 Frank Garcia ‘Globalization and the Theory of International Law’ International Legal
Theory 11 2005, 9-26.
 Werner Schäfke-Zell and Ida Asmussen, ‘The Legal Profession in the Age of
Digitalisation: An Outline of Three Potential Transformations in Legal Education’ Utrecht
Law Review 15(1) 2019, 65-79.
 Izette Knoetze ‘Courtroom of the future –virtual courts, e-courtrooms, videoconferencing
and online dispute resolution’ De Rebus, October 2014 available at:
http://www.derebus.org.za/courtroom-future-virtual-courts-e-courtrooms-videoconferencing-
online-dispute-resolution/.

1. Globalisation
 Willa Louw, ‘Africanisation: A rich environment for active learning on a global platform’
Progressio 32 (1) 2010, 42–54.
 Frank Garcia ‘Globalization and the Theory of International Law’ International Legal
Theory 11 2005, 9-26.

(i) Definition
Globalisation requires a State to re-examine its social structures and governance at a
global level. It requires the State to become (more) integrated in the global
community. Whilst the State still remains sovereign and still has the permanent role in
a country, that will not be its only role.

South Africa, for example, has a duty under international law to follow certain
Conventions of which it is a Member State. For example, Convention on the
Elimination of all Forms of Discrimination Against Women (CEDAW).

Thus, signing up to conventions such as these, leads to the globalisation of our law. In
the words of Garcia (at p 13):
‘Viewed from the perspective of political theory, globalization is lifting
relationships out of the strictly territorial into the "global" or metaterritorial.’

(ii) The role of globalisation

Globalisation:
(i) plays a very important role in our economy and international trade.

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 ‘The globalization of markets means that, in many cases, we are directly
profiting from the economic and social conditions in other parts of the world’
(Garcia 15).

(ii) allows States to provide valuable assistance to each other:

‘Through globalization, we increasingly find that we have the capacity to
effectively respond to the needs and concerns of others beyond our boundaries
through the transnational mobilization of information, power, capital, or
public opinion’ (Garcia 15).

For example, South Africa recently asked Cuba and China to provide us with
personal protective equipment likes masks in our fight against COVID-19.

The downside of globalisation is that it has, unfortunately, also led to

numerous armed conflicts and greed among States, where there is a continuous
fight for resources, for example, crude oil. Thus, globalisation, not only,
allows for the possibility of assisting other States, but also, provides the
opportunity to harm other States. This is also true for digitalisation – States
assist one another by using digital technology but also harm one another in the
same way – the example of Cambridge Analytica, a UK-based company that
interfered with the last elections in the USA that brought into power Trump as
the President of the country. There are also string allegations of Russian
involvement. The notion of cyber warfare whereby systems reliant on digital
technology are disabled, thus crippling the targeted state also comes to mind.

Globalisation and the internet also play a significant role in our education at
school and universities but as Louw (p 45) observes:
‘If knowledge is anchored by the way the world is, then African countries seem
to still face a dilemma in constructing local curricula, where the ideas of the
West are still considered superior’

A question for consideration is: How can this notion be challenged by our
various Education Departments?

(iii) What is the effect of globalisation on our Constitution?

● The idea of a democracy and a Constitution are western concepts and can
be described as a global concept as well.
● Most countries in the world are democratic and have a Constitution which
governs the actions of the State and protects the rights of its citizens.
● It can be argued that the Constitution of the Republic of South Africa,
1996 has a global character and is partly based on the western ideologies.
● As discussed by Madlingozi in his article on social justice, the Constitution
is transformative, but still colonial (and western, thus global).

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 ● Our Constitution, however, is flexible and can be amended to suit the
needs of the South African people

Another question for consideration is: In general, do you think globalisation has a
negative or a positive impact on our society and laws?

2. Digitalisation
 Werner Schäfke-Zell and Ida Asmussen, ‘The Legal Profession in the Age of
Digitalisation: An Outline of Three Potential Transformations in Legal Education’ Utrecht
Law Review 15(1) 2019, 65-79.
 Izette Knoetze ‘Courtroom of the future –virtual courts, e-courtrooms, videoconferencing
and online dispute resolution’ De Rebus, October 2014 available at:
http://www.derebus.org.za/courtroom-future-virtual-courts-e-courtrooms-videoconferencing-
online-dispute-resolution/

(i) Defining Digitalisation

The Oxford Dictionary defines digitalisation as:
‘the process of changing data into a digital form that can be easily read and processed by a
computer’

1. (ii) The benefits of digitalisation

● The law has been digitally transforming over the last few decades. Cases,
statutes and various other sources of the law can be accessed online. These
reduce the cost of maintaining expensive physical libraries in brick and mortar
buildings.
● Reduces the cost of litigation if witnesses are allowed to give evidence online.
It would, for example, spare the cost of flying in witnesses from other parts of
the country / world, putting them up in hotels etc.
● Environmental benefits – reduces the demands placed on the environment
– trees would be saved - books are made of trees etc.;
- offices and libraries are replaced by virtual offices and libraries which take
up physical space (land) and are built with bricks, mortar, plastics etc. all of
which degrade the environment.

(iii) The reality

However, the legal profession is currently not broadly digitalized, for example, if you
want legal advice from a lawyer you will visit him/her. Although there is also an
opportunity to meet a lawyer online, most lawyers will agree that a personal meeting
between a client and the lawyer is essential.

Courts are also not geared to receive testimony online. Thus far, despite the need for
video-linked testimony in the case of sexual offences involving children, there are not
many courts that have the requisite infrastructure for such testimony. Online

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testimony is also not preferred by most judges. This because a witness’ behaviour /
demeanour in court may play a role in a judge’s deliberations and this role may
become diminished or inconsequential in an online platform as opposed to the witness
sitting a few meters away from the judge.

Also, prosecutors and defense council prefer cross-examining a witness in person,

since an online examination will not be nearly as comprehensive as a personal
examination where behaviour or demeanour may lead to other lines of questioning to
arrive at the truth.

Contrast the position in South Africa with that in Canada where, for example,
testifying via video-conferencing in civil trials only has been active for a few decades.

That being said, Knoetze notes that ‘the future of the courts is greatly dependent on
technology and how technology can improve their functioning’.

Knoetze’s observation is extremely important especially when viewed in the context

of the current COVID 19 pandemic which has thrown the legal profession (and most
other professions) and the courts into a state of near paralysis.

Nearer to home, this online Introduction to Law lecture necessitated by the COVID 19
pandemic is a prescient example of the need to embrace digitalisation.

Schäfke-Zell and Asmussen argue that if the legal profession is digitalised then law
students will have to be prepared for these changes at universities already (p 66).

(iv) Digitalisation would entail, inter alia:

⮚ Broadcasting of high profile criminal cases such as the Oscar Pistorius case
and Henry van Breda etc.
⮚ The widespread use of DNA which occurs to a greater or lesser extent in
various jurisdictions in the world.
⮚ Cellphone tracking which occurs to a greater or lesser extent in various
jurisdictions in the world).
⮚ Online debates and discussions.
⮚ Online teaching and learning.

Can you think of any other examples?

⮚ At UWC, the Social Law Project recently introduced ‘Labour Law Online’ an
online law platform where clients can ask labour law related questions to a
virtual lawyer (PC) and then the PC generates an answer based on algorithms
(moderated and confirmed by a labour law lawyer).

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(v) Negatives of digitalisation
⮚ While videoconferencing might save money for a few, digitalising the law
profession as a whole might be a very expensive process and beyond the reach
of especially the single attorney law firms and the small to medium-sized law
firms.
⮚ Digitalisation might lead to trust issues among lawyers and clients.
⮚ Interception of digital communication.
⮚ Online theft.
⮚ Schäfke-Zell and Asmussen (p 68-69) further note that: ‘Looking at the role of
legal professionals from a functionalist perspective, lawyers manage conflicts
between individuals and groups. While this perspective considers lawyers to
manage conflicts through rationalisation and redefining conflicts as legal
problems, a society may not consider it possible to outsource this task to a
machine’.

⮚ Knoetze notes: ‘Some members of the legal profession may view these
modern communication devices as a threat; others may dismiss them as
mere gadgetry.

‘It should, however, be viewed as an opportunity for imaginative and

constructive use in furthering our goal of administering justice properly
and promptly. Digitising of the legal world will not only improve access, but
also change the way litigators practise law. It should be noted that the
legal representative and the courtroom will continue to play the lead
roles; as cases are simply too difficult for computers to handle alone .
The client needs understanding, responsiveness and advice that technology
simply cannot provide. It is evident that with these new tools, lawyers
need to work harder than ever to stay abreast of changes in the practice
of law’

In summary:
(i) digitalisation of the legal system is inevitable but requires a lot of trust from
both lawyers and clients;
(ii) it is important for the law to develop and to change in line with technology;
(iii) it remains important though for legal advice only to be given by a legal
practitioner, even if this advice is presented digitally in the future.

LEARNING OUTCOMES & SELF-EVALUATION QUESTIONS

LEARNING OUTCOMES:
● Understand the essence of the Bill of Rights.
● Understand the rights in the Bill of Rights of the Constitution and especially the three core
rights discussed above.
● Understand and apply the requirements for the limitation of the rights in the Bill of Rights.

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● Understand and apply case law in the constitutional context.
● Discuss Africanisation, decolonisation and constitutionalisation in in the context of South
African law and legal development.
● Discuss globalisation and digitalisation in relation to South African law and legal
development.

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