Freedom and the Dignity of Citizens

• Jurisdiction: South Africa
• Published date: 15 August 2019
• Citation: 2008 Acta Juridica 112
• Pages: 112-148
• Author: François du Bois
• Date: 15 August 2019

Freedom and the Dignity of Citizens

FRANÇOIS DU BOIS*

University of Nottingham

I INTRODUCTION

One of the most striking features of South Africa’s constitutional

vocabulary is that ‘dignity’ enjoys considerably more prominence than

‘freedom’. To be sure, the Constitution itself, and therefore also court

decisions and legal treatises, list an impressive number of freedoms.

However, whereas legal discourse emphasises that the role of human

dignity is not conf‌ined to the express constitutional right in which it

features but suffuses the Bill of Rights as a whole as a – indeed, as the –

constitutional value,

1

individual freedom remains tied to its specif‌ic

manifestations and is given a restrictive interpretation.

2

This sits uneasily with the constitutional text. Not only does freedom

appear more frequently and more prominently in the Bill of Rights than

dignity,

3

but the general provisions of the Constitution, which buttress

assertions of the foundational force of dignity, give equal prominence to

freedom. Thus the limitation-of-rights-provision requires any limitation

of a constitutional right to be ‘reasonable and justif‌iable in an open and

democratic society based on human dignity, equality and freedom’,

4

and

courts are enjoined to ‘promote the values that underlie an open and

democratic society based on human dignity, equality and freedom’ when

interpreting the Bill of Rights.

5

The comparatively modest role of

freedom is therefore by no means the consequence of the inevitable

moulding of legal discourse by legal texts; it ref‌lects a choice.

This choice can be traced back to the Constitutional Court’s decision

in Ferreira v Levin,

6

where Justice Ackermann’s distillation of a ‘residual

freedom right’ from the text of the interim Constitution was rebuffed by

* Associate Professor and Reader in Law, University of Nottingham.

1

‘[R]ecognition and protection of human dignity is the touchstone of the new political

order and is fundamental to the new Constitution.’Per O’Regan J in S v Makwanyane 1995 (3)

SA 391 (CC) para 329. The pervasive role of dignity is typically expressed by saying that it is

not merely the object of a constitutional right but also a constitutional value. See generally,

S Woolman ‘Dignity’in S Woolman et al (eds) Constitutional Law of South Africa 2 ed (Original

Service 2006) Ch 36 at 36:17–36:62.

2

See generally,M Bishop & S Woolman ‘Freedom and Security of the Person’ in Woolman

et al (n 1) Ch 40.

3

See ss 12 (freedom and security of the person), 15 (freedom of religion, belief and

opinion), 16 (freedom of expression), 18 (freedom of association), 19(1) (freedom to make

political choices), 21 (freedom of movement), and 22 (freedom of trade, occupation and

profession) of the Constitution of the Republic of South Africa, 1996 (‘Constitution’).

4

Constitution, s 36 (Emphasis added).

5

Constitution, s 39 (Emphasis added).

6

Ferreira v Levin NO & Others; Vryehoek& Others v Powell NO & Others 1996 (1) SA 984 (CC).

112

2008 Acta Juridica 112

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the rest of the Bench.

7

As conceived by Ackermann, this right would

have been a broad one, entitling ‘individuals not to have ‘‘obstacles to

possible choices and activities’’placed in their way by . . . the State’

8

and

serving to mop up any such obstacles that the enumerated specif‌ic

freedom rights failed to catch.

9

It would cover, he suggested, matters

‘such as an unqualif‌ied prohibition against the possession of any f‌ire-arm,

the possession of liquor in any form, the playing of sport on Sunday, and

the proscription of various activities or where or when they may be

carried out . . . which might be diff‌icult to challenge under [other]

provisions’ of the Bill of Rights.

10

Ackermann therefore proposed

recognizing nothing less than a general constitutional right to individual

freedom of action reaching all corners of governmental activity. If his

proposal had been accepted, freedom would by now have been as central

a constitutional concept as dignity. But the rest of the Court demurred.

Ackermann had to use some ingenuity (or, as he put it, ‘a broad and

generous interpretation’)

11

in order to extract such a sweeping right from

the rather bald stipulation that ‘[e]very person shall have the right to

freedom and security of the person which shall include the right not to be

detained without trial’.

12

Textual changes in the ‘f‌inal’Constitution have,

however, created a more secure foundation for according freedom a

general role in constitutional adjudication. The equivalent provision now

presents the right ‘not to be deprived of freedom arbitrarily or without

cause’ as a component of the encompassing right to freedom and security

of the person that – signif‌icantly – exists alongside (and is thus seemingly

distinct from) the rights not to be detained without trial, to be free from

violence and torture, and to bodily and psychological integrity.

13

It is time for the Court to revise this stance. As I show in the next part

of this essay, the key misgiving of the majority in Ferreira – that a general

constitutional right to individual freedom of action would be at odds

with the evidently non-libertarian orientation of the South African Bill of

Rights with its express commitment to socio-economic solidarity –

evaporates once the demands of freedom are properly analysed. As

7

Although the terms freedom, liberty and autonomy are sometimes used to refer to distinct

freedom-related matters, this chapter uses them interchangeably.

8

Ibid para 54.

9

Ibid para 57.

10

Ibid para 67.

11

Ibid para 52.

12

Constitution of the Republic of South Africa Act 200 of 1993 (‘interim Constitution’),

s11.

13

See Constitution, s 12. On this reading it would be inappropriate to use the American

notion of ‘unenunemated rights’ in the analysis of this particular issue in South Africa – a

general right to freedom is plainly present in the text. Cf the more modest reach ascribed to this

right by Bishop & Woolman ‘Freedom and security of the person’ (n 2) esp at 40:32:

‘[F]reedom conduces principally to a concern about physical liberty’ (emphasis added).

113FREEDOM AND THE DIGNITY OF CITIZENS

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Ackermann insisted, ‘the right to freedom . . . must . . . not be thought to

be premised on a concept of the individual as being in heroic and

atomistic isolation from the rest of humanity, or the environment’.

14

Moreover, careful attention in the section thereafter to what such a right

can and cannot do shows that Ackermann was right to claim that

‘freedom is indispensible for the protection of dignity’.

15

A general

constitutional right to individual freedom of action not only matches the

wording of the Constitution and f‌its with its commitment to socio-

economic justice, but, most importantly, makes a distinctive contribution

to securing the ‘intrinsic worth of human beings’ that is recognised by the

constitutional guarantee of human dignity.

16

Throughout, this essay

demonstrates the power and sophistication of Justice Ackermann’s

thought. Although his own arguments in Ferreira and elsewhere do not

quite get us to the point where his proposal can see off all challenges, and

questions of political and moral philosophy have to be pursued a little

further than he has done, no more is needed than to follow the signposts

he planted for us.

II IN DEFENCE OF FREEDOM

Three objections were raised in Ferreira to Justice Ackermann’s attempt to

give freedom a more prominent constitutional role. The f‌irst concerned

the varied impacts that might f‌low from drawing the remit of

constitutional law, and hence the courts, so widely;

17

the second was

rooted in the interpretation of the text of the interim Constitution,

intimating that a ‘residual freedom right’ would distort its integrity;

18

while the third was articulated by raising the spectre of the decision in

Lochner v New York

19

– that is, by recalling an instance where freedom was

used to strike down a law designed to protect employees’ well-being –

and thus associated a general freedom right with libertarian opposition to

regulation.

20

Ackermann responded to all three concerns, but only the

third of these merits our attention here. In addition to ref‌lecting the

apprehension which appears still to animate a perceived need to keep

freedom tethered,

21

this is also the more fundamental concern. The issues

14

Ferreira (n 6) para 52.

15

Ibid para 49.

16

‘Recognising a right to dignity, is an acknowledgement of the intrinsic worth of human

beings’ – O’Regan J in S v Makwanyane (n1) para 328.

17

Both in practical terms by opening the f‌loodgates of litigation and as a matter of principle

by meddling in what should be the separate exercise of legislative powers – see Ferreira (n 6)

para 182.

18

Especially important here was the fact that the interim Constitution set an exceptionally

high threshold for the limitation of the relevant provision. See ibid paras 173–74.

19

198 US 45 (1905).

20

Ferreira (n 6) para 182.

21

See e.g. Bishop & Woolman‘Freedom and security of the person’ (n 2).

114 DIGNITY,FREEDOM AND THE POST-APARTHEID LEGAL ORDER

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