Sources of power and hope – Constitutional

The impact of dignity and equality on the South African Constitutional Revolution that dismantled apartheid and its structures.

Emeritus Justice Lourens W.H. Ackermann1

The values of dignity and equality, and their resurrection as fundamental and indefeasible rights in South Africa, played a most significant role in bringing an end to apartheid and, through the Constitution, completely dismantling apartheid and its structures. These fundamental legal values are closely linked to, and have by some been called a ‘secular analogue’ of certain fundamental Christian concepts.

I deal with:
(i) The background to the South African legal system and the constitutional revolution in 1994.
(ii) My understanding, from a lawyer’s perspective, of the theological underpinnings of dignity, equality and freedom.
(iii) The way these underpinnings have influenced the development of these concepts in law.
(iv) The cardinal importance of these principles for the South African Constitution.
(v) How it was possible, in human terms, for this constitutional revolution to have been brought about by means of peaceful negotiation.

1. The background to the South African legal system and the constitutional revolution in 1994 to demonstrate the extent of the legal revolution that has been brought about by these values through the Constitution.

The South African common law (ie non-statute law) is not, historically, Anglo-Saxon but the so-called Roman-Dutch law, introduced by the Dutch East India Company when it occupied the Cape in 1652. This Roman Dutch Law was the common law of Holland prior to the latter’s codification in the first decade of the 19th century. In the Cape and subsequently throughout the rest of Southern Africa, it continued to be applied and adapted as the common (uncodified) law. Since 1806, when the British first occupied the Cape, English law – more particularly in the fields of company law, evidence and criminal procedure – has exercised considerable influence in shaping South African law. But when difficult questions of law arise that are not closely covered by previous South African court decisions, the courts still turn to the European commentaries on Justinian’s Digest, and even to the Digest itself.

On the other hand, the constitutional law of South Africa, after unification in 1910, was modelled on that of the British Westminster system. The legislator was omni-competent and supreme (just like the British Parliament), and no supreme law or constitutionally entrenched Bill of Rights existed, against which the validity of parliamentary legislation could be tested, such as in the United States of America since the end of the 18th century or in Germany since 1949.

There was, however, one serious flaw in the way this model was introduced into South Africa. Even after the suffrage was extended to women, the vast majority of the population, namely the blacks, remained unenfranchised. By the time South Africa became a republic in 1961 the very limited suffrage that black Africans and persons of mixed racial origin – know as Coloureds – had enjoyed in the Cape Province had been removed and more than 80% of the population had no vote in Parliament. Black Africans were supposed to exercise their political rights in their so-called homelands, which constituted less than 15% of the Republic’s territory.

Prior to the constitutional revolution starting in 1994, six so-called ‘self-governing’ territories and four so-called ‘independent’ states had come into existence, pursuant to the notorious scheme of grand apartheid. These were in truth no more than puppet territories. By this time too, a presidential system had been adopted and the legislature come to be dominated by the executive. Increasing internal resistance and international isolation led to the adoption of the 1983 Tricameral Parliament which created three separate houses of Parliament for Whites, Coloureds and Indians, Blacks still being expected to exercise their political rights in their ‘homelands.’ Although trumpeted by the government spin-doctors as a power-sharing arrangement, a variety of manipulating provisions ensured that power in the Tricameral Parliament was in fact retained by the majority political party in the white house. South Africa was still in effect a white oligarchy in which whites enjoyed a form of parliamentary democracy. But by the 1980’s even the civil rights of whites were seriously infringed by the passing of draconian security legislation and the promulgation of successive states of emergency in the 1980’s. The South African Communist Party, the African National Congress (ANC) and various other liberation movements had, by this time, been banned for some time.

On 2 February 1990 President FW De Klerk announced the unbanning of the major liberation movements, the release of certain political prisoners and freer political activity. On 11 February 1990 Mr Nelson Mandela was released and on 20 December 1991 the Conference for a Democratic South Africa (CODESA) was convened. The CODESA process collapsed in mid-1992, but negotiations resumed in March 1993 at the World Trade Centre outside Johannesburg. This was made possible by the liberation movements agreeing to a constitutionally entrenched system of executive power-sharing for the first five years after the first democratic elections. Thereafter the negotiations proceeded rapidly with the interim Constitution coming into effect on 27 April 1994 and the 1996 Constitution on 4 February 1997.

The human contributions to this miracle embodied firstly, a two-stage constitution-making and transition process; secondly, agreement on a set of 34 inviolable Constitutional Principles with which the ultimate constitution had to comply; and thirdly, an arbiter in the form of the Constitutional Court. The Constitutional Court had to certify that the 1996 Constitution complied with all these 34 Constitutional Principles. Without such certification the 1996 Constitution could not come into force. The Constitutional Court, to whom this task- unique in the history of constitution-making – was entrusted, was an entirely new court established under the Interim Constitution.

These new Constitutions, breaking totally with the previous Westminster model, declared that the Constitution (and not Parliament) was from now on supreme and all law and conduct inconsistent with it invalid. The courts (with the Constitutional Court at the apex of the court structure) would decide on such inconstancy and invalidity. Both the interim and the 1996 Constitutions left the pre-1994 judicial structures, and the judicial officers holding office thereunder, intact. At the superior court level, there were no more than two or three black judges and one female judge. Considerable criticism had been leveled by, amongst others, the liberation movements against the composition and the judicial performance of the senior judiciary during the apartheid years and particularly during the various states of emergency. While these critics were, as part of the constitutional compromise, prepared to leave the existing courts intact, they were certainly not willing to entrust the task of reviewing the constitutional validity of national and provincial legislation and executive action in the first democratic South African state to the existing judiciary. For this and other reasons it was decided to introduce, at the apex of the judiciary, an entirely new court, new both in function and in composition. Thus the Constitutional Court, consisting of 11 Justices and obliged to sit en banc in all cases, came into being under the IC, and continued under the 1996 Constitution. Apart from its other exclusive constitutional jurisdiction, the Constitutional Court is the only court with the power to set aside Parliamentary statutes and those of provincial legislatures as well as any executive or administrative act on the grounds of constitutional inconsistency. I had the honour to serve on this Court from 1994 until 2004. In 1994 the Court consisted of 7 white and 4 black justices; in 2005 of 7 black and 4 white Justices.

2. The theological underpinnings of dignity and equality.

The Abrahamic religions understand human dignity as being rooted in the fact that every human being is an image and reflection of God, and therefore in essence equal with every other human being. In Genesis 1:27 it is said:

So God created man in his own image; in the image of God he created him; male and female he created them.2

This is taken further in the Christian New Testament where in Galations 3:28 it is stated:

There is no such thing as Jew and Greek, slave and freeman, male and female; for you are all one person in Jesus Christ.

Meeks3 points out that dignity, although a universally shared reality is not bestowed, is not derived from human action or status, is not a moral principle but the source of all moral principles and that human rights spring from dignity and not the other way around and that from the perspective of the biblical testimonies human rights are grounded in God’s creation of the human being in God’s image.

German theologian Jürgen Moltmann4, contending that fundamental human rights all grow out of dignity and not the other way round, explainsfundamental human rights as meaning:

[T]hose rights and duties which belong essentially to what it means to be truly human, because without their being fully acknowledged and exercised human beings cannot fulfil their original destiny of having been created in the image of God,

and points out that:

[e]conomy, society and the state have to respect this dignity and responsibility of human beings, for their role as human beings, with rights and duties, comes before any constituting of society and government . . . [h]uman beings do not exist for the sake of rule; rule, rather, exists for the sake of human beings.

He also refers,5 to the key sentence in the declaration of the Roman Synod of Bishops to the effect that:

[t]he dignity of man has its roots in the fact that every human being is an image and reflection of God. As a result of this all men are equal with one another in their essence.

The much more comprehensive reformed Theological Basis, according to Moltmann:

saw the dignity of the human in his or her being in God’s image, and unfolding this being in God’s image in its important dimensions.

Wolfgang Huber,6 the current Lutheran Bishop of Berlin, expresses it quite simply as follows:

The only way we can confront increasingly widespread violence is if we once again become aware of our responsibility to the dignity shared by all human beings.

For Christians, the confession of the dignity and value of human beings is anchored in the insight that all human beings are created in the image of God. The Enlightenment tradition renewed this concept of human dignity by considering rational human beings as those who must never be used simply as means toward an end, but rather must be acknowledged as ends in themselves.

Regarding the difficulties surrounding dignity he observes:7

The concept of human dignity is among the most controversial in the language of ethics and politics. Yet those whose dignity has been disregarded or even trampled on know full well what human dignity means. Its meaning is established by the denial of it. Human dignity attains an indisputable obviousness from the massive government attacks on the life, liberty and integrity of innumerable human beings.

He contends8 that an elementary aspect of a universal ethic is:

the fact that I respect the dignity of the other just as much as I depend on respect from others for my own dignity. . .. In every exchange with an equal I am forced to grant the other the freedom I myself have. Consequently I can never view others as merely means: I must acknowledge them as ends in themselves – that is precisely where the dignity of persons is found.

3. The way these underpinnings have influenced the development of these concepts of dignity and equality in law.

Immanuel Kant’s secular contribution to the legal recognition of these fundamental values of dignity equality and freedom has been of inestimable importance. As political philosopher Bernard Williams points out:9

[t]he ground of the respect owed to each man thus emerges in the Kantian theory as a kind of secular analogue of the Christian conception of the respect owed to all men as equally children of God. Though secular, it is equally metaphysical: in neither case is it anything empirical about men that constitutes the ground of equal respect.

As far as autonomy or freedom is concerned Kant postulates that a person, as a rational being, is the lawgiver in the kingdom of ends, and is free with respect to all laws of nature “obeying only those which he himself gives and in accordance with which his maxims can belong to a giving of universal law (to which at the same time he subjects himself)” But the lawgiving itself, says Kant, “must for that reason have a dignity, that is, an unconditional, incomparable worth … Autonomy is therefore the ground of the dignity of human nature and of every rational nature.”10

In relation to incomparable dignity, Kant’s views are encapsulated in the following universally known two passages:

So act that you use humanity, whether in your own person or in the person of any other, always at the same time as an end, never merely as a means.11

In the kingdom of ends everything has either a price or adignity [fn Würde]. What has a price can be replaced by something else as its equivalent; what on the other hand is raised above all price and therefore admits of no equivalent has a dignity … What is related to general human inclinations and needs has a market price; but that which alone something can be an end in itself has not merely a relative worth, that is a price, but an inner worth, that is, dignity.12

In relation to equality Kant’s postulate is that:

[A] human being regarded as a persona, that is, as the subject of a morally practical reason, is exalted above any price; for as a person (homo noumenon) he is not to be valued merely as a means to the ends of others or even to his own ends, but as an end in itself, that is, he possesses a dignity (an absolute inner worth) by which he exacts respect for himself from all other rational beings in the world. He can measure himself with every other being of this kind and value himself on a footing of equality with them.13

Kant’s influence is unmistakable in the rich development of the so-called personality rights (“Persönlichkeitsrechte”, “Persoonliheidsregte”) in continental law and in modern South African law.14 The greatest development that took place in Europe in the 19th Century in the field of private law related to the protection of the products of the individual’s creative personality and the recognition of the so-called intellectual property rights (“immaterialrechten”, “droits intellectuals”), such as copyright, trademark and patent rights. This in turn gave impetus to the flowering of the personality rights, not in respect of goods located outside the individual such as the completed work of an author, but in respect of aspects of the personality itself, such as one’s body, honour, reputation, voice, image, etc. – in short, the whole panoply of personality components, which make up the human personality protected by private law.15

But the meaning of the concept of a right of personality is to be found in the fact that it ultimately lead to the identification [analytically] of a discrete category of rights, not in respect of goods located outside the individual such as the completed work of the author, but in respect of aspects of the personality itself: such as one’s body, honour, reputation, voice, image, etc. – in short, the whole panoply of personality components, which make up the human personality protected by private law.16

Before dealing more specifically with the South African human rights ad constitutional transformation, I would summarise this part of my presentation by formulating human dignity as:

a concept comprising all those aspects of the human personality that arise from human intellectual and moral capacity; which in turn separate humans from the impersonality of nature, enables them to exercise their own judgment, to have self-awareness and a sense of self-worth, to exercise self-determination, to shape themselves and nature, to develop their personalities and to strive for self-fulfilment in their lives.

I have modelled this on the classic German concept propounded by Prof Günter Dürig in the 1950’s:

Jeder Mensch ist Mensch kraft seines Geistes, der ihn abhet von der unpersönlichen Natur und ihn aus eigner Entscheidung dazu befähigt, seiner selbst bewußt zu werden, sich selbst zu bestimmen und sich und die Umwelt zu gestalten.17

I have somewhat broadened his exposition by introducing the human desire for self-fulfilment; as well as the individual’s own sense of self-worth, as an aspect of human personality. As far as the concept of self-worth is concerned, when a person is dealt with in a demeaning way, by someone in the exercise of power – whether public or private – even the observer can experience the impairment of the victim’s sense of self-worth.

4. The cardinal importance of these principles for the South African Constitution.

I don’t want to trivialise the sins of apartheid by a glib and superficial analysis of them. But what – in my opinion – lay at the heart of apartheid pathology, quite apart from the murder, torture and other physical brutality that it eventually led to, was the extensive and sustained attempt to deny to the majority of the South African population the right of self-identification and self-determination. The fact that the apartheid laws did not ultimately achieve their ends and that the greater majority of black South Africans claimed their freedom and exerted their moral agency does not detract from the indignity and trauma inflicted. The apartheid state not only denied to black South Africans all meaningful participation in the political process, but tried generally to legislate the lives of its people on the sole criterion of race or ethnic origin. Who you were, where you could live, what schools and universities you could attend, what you could do and aspire to, and with whom you could form intimate personal relationships was determined for you by the state, or at least the state directed all its power at achieving this end. The state did its best to deny to blacks that which is definitional to being human, namely the ability to understand or at least define oneself through ones own powers and to act freely as a moral agent pursuant to such understanding or self-definition. Blacks were treated as means to and end and hardly ever as an end in themselves; an almost complete reversal of the imperative concept of priceless inner worth and dignity, freedom and equality. Archbishop emeritus Desmond Tutu has pointed to the system’s absurdity: “Apartheid claimed that what imbued anyone with worth was actually a biological irrelevance – the colour of one’s skin . . .”.18

When one compares this situation with what has been achieved under the post 1994 South African Constitutions, the change can with justification be termed revolutionary. The rights and inherent values of dignity, equality and freedom lie at the heart of the South African Constitution and enjoy the highest entrenchment in the 1996 Constitution, requiring for their amendment a supporting vote of at least 75% of the members of the National Assembly and of at least six out of nine provinces in the National Council of Provinces.19

The inherent values of human dignity, equality and freedom are emphasised and reinforced throughout Chapter 2 of the 1966 Constitution, comprising sections 7 to 39, which chapter constitutes the Bill of Rights. It is significant that section 10 first proclaims that “everyone has inherent dignity” before entrenching the right of “everyone … to have their dignity respected and protected.” This underscores, in my view, the recognition by the Constitution that human dignity is not merely a protected and entrenched right, but that the concept of human dignity is definitional to what it means to be a human, that all humans have inherent dignity as an attribute independent of and antecedent to any constitutional protection thereof. It is, I would argue, accepted as a categorical constitutional imperative. The concept of dignity also plays, more indirectly and more technically, a vital role in the way fundamental rights are to be applied and the Constitution is to shape all other law.

Section 9, entrenching equality, first proclaims in subsection (1) thereof that “everyone is equal before the law” before entrenching the right “to equal protection and benefit of the law.”

Section 12, which entrenches the right to freedom and security of the person in a variety of ways, inter alia provides that “Everyone has the right … not to be deprived of freedom arbitrarily or without just cause.” The Constitutional Court has held that this right not only has a procedural component but a substantive one as well. This means that a person who is, for example, charged with a crime is not only entitled to fair process, which includes a fair hearing. The conduct criminalised must itself be of such a nature that it warrants criminalisation and upon conviction thereof, the deprivation of the accused’s freedom. The legislature is not free to criminalise, on pain of imprisonment, whatever conduct it pleases. The constitutional validity of the offence itself is subject to judicial scrutiny as to whether it constitutes “just cause” for the deprivation of liberty.

The guiding value of human dignity has been fully recognised in the Constitutional Court’s judgments. The epilogue to the interim Constitution read in part as follows:

This Constitution provides a historic bridge between the past of a deeply divided society characterised by strife, conflict, untold suffering and injustice, and a future founded on the recognition of human rights, democracy and peaceful co-existence and development for all South Africans, irrespective of colour, race, class belief or sex.
….The adoption of this Constitution lays the secure foundation for the people of South Africa to transcend the divisions and strife of the past, which generated gross violations of human rights, the transgression of humanitarian principles in violent conflicts and a legacy of hatred, fear, guilt and revenge. These can now be addressed on the basis that there is a need for understanding but not for vengeance, a need for reparation but not for retaliation, a need for ubuntu but not for victimisation.”

Ubuntu20 is a black African expression usually translated as meaning ‘a human being is a human being because of other human beings.’

In S v Makwayane21, the case in which the Constitutional Court declared the death penalty to be unconstitutional, the importance of dignity for the new constitutional order was emphasised in several of the concurring judgments. The present Chief Justice, Justice Pius Langa, referred to aspects of the concept of ubuntu in the following terms:

[Ubuntu] recognises a person’s status as a human being, entitled to unconditional respect, dignity, value and acceptance from members of the community such person happens to be part of.22

So did Justice Yvonne Mokgoro, pleading for

… the need to revive the value of human dignity in South Africa, and in turn re-define and recognise the right to and protection of human dignity as a right concomitant to life itself and inherent in all human beings. … [L]ife and dignity are like two sides of the same coin. The concept of ubuntu embodies them both.23

Justice Catharine O’Regan expressed herself as follows:

The importance of dignity as a founding value of the new Constitution cannot be overemphasised. Recognising a right to dignity is an acknowledgment of the intrinsic worth of human beings: human beings are entitled to be treated as worthy of respect and concern. This right is therefore the foundation of many other rights that are specifically entrenched. … Respect for the dignity of all human beings is particularly important in South Africa. For apartheid was a denial of a common humanity. The new Constitution rejects this past and affirms the equal worth of all South Africans. Thus recognition of and protection of human dignity is the touchstone of the new political order and is fundamental to the new Constitution … ”it is the dignity and importance of the individual which is the essence and cornerstone of democratic government”.24

In its very first judgment on unfair discrimination the Court, in Prinsloo v Van der Linde,25 highlighted human dignity as a key criterion for determining when differentiation amounted to unfair discrimination under the Constitution’s equality clause.26 It held that:

“At the heart of the prohibition of unfair discrimination likes a recognition that the purpose of our new constitutional and democratic order is the establishment of a society in which all human beings will be accorded equal dignity and respect regardless of their membership of particular groups,27

and that:

inherent human dignity is at the heart of individual rights in a free and democratic society. … Equality … means nothing if it does not represent a commitment to recognizing each person’s equal worth as a human being, regardless of individual differences.28

On this basis the Court held that differentiation in treatment amounted to unfair discrimination if the impact of such differentiation adversely affected the human dignity of those differentiated against, since all persons enjoy equal dignity.29 This view has subsequently been consistently endorsed. The Court’s approach emerges even more clearly in the following passage from the Prinsloo judgment:

We are emerging from a period of our history during which the humanity of the majority of the inhabitants of this country was denied. They were treated as not having inherent worth; as objects whose identities could be arbitrarily defined by those in power rather than as persons of infinite worth. In short they were denied recognition of their inherent dignity.30

This approach has been consistently endorsed by the Court in its judgment on unfair discrimination on the grounds of sex, marital status, sexual orientation and HIV/AIDS.31

Perhaps the clearest endorsement of the Kantian concept of dignity emerges from the following observations of the Constitutional Court in theDodo case:32

To attempt to justify any period of penal incarceration, let alone imprisonment for life as in the present case, without inquiring into the proportionality between the offence and the period of imprisonment, is to ignore, if not to deny, that which lies at the very heart of human dignity. Human beings are not commodities to which a price can be attached; they are creatures with inherent and infinite worth; they ought to be treated as ends in themselves, never merely as means to an end. Where the length of a sentence, which has been imposed because of its general deterrent effect on others, bears no relation to the gravity of the offence (in the sense defined in paragraph 37 above) the offender is being used essentially as a means to another end and the offender’s dignity assailed. So too where the reformative effect of the punishment is predominant and the offender sentenced to lengthy imprisonment, principally because he cannot be reformed in a shorter period, but the length of imprisonment bears no relationship to what the committed offence merits. Even in the absence of such features, mere disproportionality between the offence and the period of imprisonment would also tend to treat the offender as a means to an end, thereby denying the offender’s humanity.

5. How it was possible, in human terms, for this constitutional revolution to have been brought about by means of peaceful negotiation.

The answer is clearly multi-factorial. Economic decline and increasing isolation of South Africa by major international players no doubt played an important role. Yet the role of fundamental human values should not be ignored or trivialised in this regard.

The 1948 Universal Declaration of Human Rights and the United Nations Charter,33 highlight the crucial importance of protecting dignity, equality and freedom, because it has been the contemptuous disregard of these rights that have, in the words of the Universal Declaration’s preamble “resulted in barbarous acts which have outraged the conscience of mankind” and whose protection by the rule of law is essential, if humans are not “to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression.”

Repeated genocides, systematic torture and the wholesale slaughter of innocents is surely one of the darkest stains on human civilisation. One of the challenges of our times is to establish human dignity as an inviolable, universal legal and social norm.

The liberation struggle in South Africa founded its legal case on the rights enshrined in the Universal Declaration and the two International Covenants that were inspired by it. The legal justification for both the peaceful and the armed struggle was the large-scale breach by the South African state of universally accepted human rights. Equally important was the promise held out by the liberation movements that such human rights would be fully and effectively protected when they came to power in South Africa.

In addition there was the increasing realisation, at different stages and in different ways, by an increasing body of leading white South Africans, that the current political and constitutional situation was completely indefensible and could not be allowed to continue, whatever else the future might hold. Part of this realisation was the growing awareness that the political and constitutional dispensation was in material conflict with international law. I also believe that the theological struggle had a significant effect on both believers and non-believers because of the image of God arguments and their secular analogues. I know that, in my own case, my personal belief in the fact that all humans are created equal in the image of God ultimately compelled me to leave the Dutch Reformed Church; and that this belief, combined with my belief that the constitutional dispensation in South Africa was irredeemable, impelled me in 1987 to resign from the SA High Court.

I conclude, with one last, but important observation. In the light of the systemic indignity and repression that black South Africans were subject to, I am continually humbled by the kindness, friendliness and dignity that I experience from them. I believe that such success as the constitutional revolution might have achieved is due, in no small part, to their deep commitment to ‘ubuntu’: ‘a human being is a human being because of other human beings.’

1) SC; BA LLB LLD (hc) Stellenbosch University; MA (Oxon) Hon. Fellow Worcester College (Oxford), Emeritus Justice of the South African Constitutional Court.
2) New English Bible.
3) In Jürgen Moltmann, On Human Dignity trs. Douglass Meeks (Fortress Press,1984) x-xi.
4) Id 23.
5) Id at11.
6) Violence: The Unrelenting Assault on Human Dignity, trs. Ruth C.L. Gritsch, forw. Daniel Berrigan, S.J. (Fortress Press, Minneapolis, 1996) 9.
7) Id 10.
8) Id 28.
9) “The Idea of Equality” in P. Laslett and WG Runciman (eds) Philosophy, Politics and Society (Second Series, Basil Blackwell, Oxford 1967) 110, 116.
10) Groundwork of the Metaphysics of Morals (“Groundwork”) (AK 4: 436). All citations to Kant are to the Berlin Academy Edition (abbreviated as “AK”) by volume:page number. The English translations are those of Mary J Gregor, Immanuel Kant: Practical Philosophy (Cambridge University Press: The Cambridge Edition of the Works of Immanuel Kant, 1996) using the same method of citation.
11) Id (AK 4:429).
12) Id (AK 4:434-435].
13) The Metaphysics of Morals (AK 6: 434-435). .
14) For South Afican contributions to this development see the ground-breaking work of W.A. Joubert Grondslae van die Persoonlikheidsreg (A.A. Balkema, Cape Town/Amsterdam, 1953), and the more modern work of J. Neethling et al, Neethling’s Law of Personality (2nd. ed., LexisNexis Butterworths, Durban, 2005).
15) Joubert (1954) 10
16) My translation from the Afrikaans, emphasis in the original.
17) “All humans are human by virtue of their intellectual capacity (“kraft seine Geistes”) which serves to separate them from the impersonality of nature and enables them to exercise their own judgment, to have self-awareness, to exercise self-determination and to shape themselves and nature.” (My translation).
Günter Dürig “Der Grundrechtssatz von der Menschenwürde” in AöR 81 (1956) 117. For a discussion of Dürig’s definition see Enders Die Menschenwürde in der Verfassungsordnung Jus Publicum Band 27 (Mohr Siebeck 1997)10-13.
18) Danieli, Yael et al (eds) The Universal Declaration of Human Rights: Fifty Years and Beyond (1999, Baywood, New York) xiii.
19) Section 74(1) of the Constitution.
20) For further reading on “ubuntu” see: Steve B. Biko “Black Consciousness and the quest for a true humanity”; Mogobe B. Ramose “The Philosophy ofubuntu and ubuntu as a philosophy”; and “The ethics of ubuntu” all in P.H. Coetzee and A.P.J. Roux The African Philosophy Reader (2ed., Routledge: New York, 2003)79; 230; and 324, respectively.
21) 1995 (6) BCLR 665 (CC); 1995 (3) SA 391 (CC).
22) Id para 224.
23) Id para 311.
24) Id paras 328-30.
25) Prinsloo v Van der Linde and Another 1997 (6) BCLR 759 (CC); 1997 (3) SA 1012 (CC).
26) Section 8 in the interim Constitution and section 9 in the 1996 Constitution.
29 Id para 32.
28) Id para 32.
29) Id para 31.
30) Id para 31.
31) See for example National Coalition for Gay and Lesbian Equality and Another v The Minster of Justice and Others 1998 (12) BCLR 1517 (CC); 1999 (1) SA 6 (CC); National Coalition for Gay and Lesbian Equality and Others v Minster of Home Affairs and Others 2000 (1) BCLR 39 (CC); 2000 (2) SA 1 (CC);Hoffmann v South African Airways 2000 (11) BCLR 1211 (CC); 2001 (1) SA 1 (CC).
32) Dodo v The State, 2001 (3) SA 382 (CC); 2001 (5) BCLR 423 (CC) at para 38.
33) In the preamble to the Universal Declaration the “inherent dignity” and the equality of “all members of the human family” are singled out for mention as belonging to those values and human rights that constitute “the foundation of freedom, justice and peace in the world”, whose contemptuous disregard has “resulted in barbarous acts which have outraged the conscience of mankind” and whose protection by the rule of law is essential, if humans are not “to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression.” It is this protection of and by the rule of law in order to obviate rebellion against tyranny and oppression which Nobel Laureate Nadine Gordimer regards as the most important “ article” in the Declaration (in Yael Danieli et al (eds) The Universal Declaration of Human Rights: Fifty Years and Beyond (1999, Baywood, New York) vii, viii. Compare also articles 1(3) and 55(c) of the United Nations Charter. Article 1 of the German Basic Law (“GG”) places human dignity (“Menschenwürde”) at the centre of and determinative for the GG and its protection of fundamental rights; this constitutes a direct reaction to and an outright rejection of the totalitarianism and inhumanity of the preceding Nazi period encapsulated by the phrase “You are nothing, your ‘volk’ is everything” (“Du bist nichts, dein Volk is alles”); see, for example, KG Werneke in Bonner Kommentar zum Grundgesetz Art: 1 Abs. 1 Rn 2,3 and von Münch/Kunig Grundgesetz-Kommentar Band 1, 4. Aufl. Art. 1 Rn 6.