The Value of Freedom in Interpreting Socio-Economic Rights
| Jurisdiction | South Africa |
| Date | 15 August 2019 |
| Published date | 15 August 2019 |
| Pages | 149-176 |
| Author | Sandra Liebenberg |
The Value of Freedom in Interpreting
Socio-Economic Rights
SANDRA LIEBENBERG*
University of Stellenbosch
He had never thought of his life as different from any other; he had never
experienced the slightest doubt about his personal sovereignty; never
imagined himself to be dealing with anything other than the full range of
human choice. But if it were true that his life had somehow been moulded by
acts of power of which he was unaware – then it would follow that he had
never acted of his own volition; never had a moment of true self-
consciousness. Everything he had ever assumed about himself was a lie, an
illusion. And if this were so, how was he to find himself now?
1
I INTRODUCTION
Freedom is one of the foundational constitutional values in the 1996
Constitution.
2
When interpreting the Bill of Rights, a court must
‘promote’ this value along with the other two foundational values of
human dignity and equality.
3
These values also serve as the lodestar in
guiding the interpretation of legislation, the development of the
common law and customary law,
4
as well as for assessing the justifiability
of limitations to the rights in the Bill of Rights.
5
In Ferreira v Levin NO,
6
Justice Ackermann gave a detailed exposition
of the theoretical dimensions of freedom as a constitutional right and
value. He notes that, like dignity, freedom is ‘the foundation of many
* H F Oppenheimer Chair of Human Rights Law, Department of Public Law,
Stellenbosch University. This article is dedicated to LaurieAckermann who founded and was
the first incumbent of this Chair. I have been fortunate to enjoy the benefit of Laurie’s
friendship and lively interest in my work, and am grateful for his on-going support and
encouragement. I also wish to thank my colleague, Dr Geo Quinot, for stimulating my interest
in the interrelationship between administrative justice rights and socio-economic rights, and
for many discussions on this theme. The article is based on a research project supported by a
grant from the National Research Foundation (NRF). Any opinion, findings and conclusions
or recommendations expressed in this material are those of the author and therefore the NRF
does not accept any liability in regard thereto.
1
A Ghosh The Glass Palace (2000) at 431.
2
Sections 1(a) and 7(1) of the Constitution of the Republic of South Africa, 1996.
3
Section 39(1).
4
Section 39(2) provides that: ‘When interpreting any legislation, and when developing the
common law or customary law, every court, tribunal or forum must promote the spirit,
purport and objects of the Bill of Rights.’
5
According to s 36(1) of the Constitution, limitations to rights are evaluated according to
the criteria of reasonableness and justifiability ‘in an open and democratic society based on
human dignity, equality and freedom.’
6
Ferreira v Levin NO and Others and Vryenhoek and Others v Powell NO and Others 1996 (1)
SA 984 (CC) (hereafter ‘Ferreira’).
149
2008 Acta Juridica 149
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other rights that are specifically entrenched’.
7
He proceeds to examine
the theoretical underpinnings of the value of freedom drawing primarily
on the work of the philosopher Isaiah Berlin.
8
Thereafter he considers
the implications of this theoretical conception of freedom for the
interpretation of the ‘freedom’ rights specifically entrenched,
9
as well as
the ‘residual freedom rights’ which he derives from s 11(1) of the interim
Constitution, the right to ‘freedom and security of the person’.
10
Although the majority did not agree with Ackermann J’s broadly
formulated, residual rights to freedom, the detailed substantive reasoning
he applied in developing an argument for the recognition of such rights
illustrates the crucial significance of the foundational constitutional values
in the interpretation of the Bill of Rights. His judgment takes seriously
the constitutional injunction to courts and other bodies involved in
constitutional interpretation to promote the values of human dignity,
equality and freedom when interpreting the Bill of Rights. His enduring
legacy to our constitutional jurisprudence will, I believe, be his
contribution to substantive legal reasoning in which the ethical and
philosophical dimensions informing the interpretation of the Bill of
Rights are openly explored and thereby rendered transparent for broader
dialogue and contestation. This type of substantive and transparent form
of reasoning lies at the heart of transformative adjudication.
11
This article examines the value of freedom in the context of the
interpretation of the socio-economic rights entrenched in the 1996
Constitution. In particular, I explore conceptions of freedom that
resonate with the transformative aspirations of the South African
Constitution. I also examine how freedom can explicate and enrich
various dimensions of our existing jurisprudence on socio-economic
rights. However, I do not contend that freedom is the only value that
justifies or has important implications for the interpretation of socio-
economic rights. Human dignity and equality, as well as other important
7
Ibid para 49. Ackermann J cites (at n 34) Isaiah Berlin’sstatement that: ‘(T)hose who have
ever valued liberty for its own sake believed that to be free to choose, and not to be chosen for,
is an inalienable ingredient in what makes human beings human.’
8
See ‘Two concepts of liberty’in I Berlin Four Essays on Liberty (1969).
9
These are freedom of religion and belief, expression, assembly, demonstration and
petition, association and movement entrenched in ss 14–18 as well as the political rights in s 21
of the interim Constitution (Constitution of the Republic of South Africa Act 200 of 1993).
See Ferreira (n 6) paras 55–6.
10
Ferreira (n 6) paras 54, 57–69.
11
Karl Klare observes that formalist legal reasoning, which entails a reliance on the formal
authority of a rule or doctrine without examining its underlying substantive justification,
operates to mystify the choices that judges make in their interpretative work, and reduces the
transparency of the legal process (K Klare ‘Legal culture and transformative constitutionalism’
(1998) 14 SAJHR 146 at 171). See also P Langa ‘Transformative constitutionalism’(2006) 17
Stell LR 351 at 356–57; J Froneman ‘Legal reasoning and legal culture: Our ‘‘vision’’ of law’
(2005) 16 Stell LR 3at17.
150 DIGNITY,FREEDOM AND THE POST-APARTHEID LEGAL ORDER
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