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ROUNDTABLE
From wickedness to equality: The moral
transformation of South African law
Arthur Chaskalson*
Apartheid is frequently taken as an example of a “wicked system of law.”1 This
was the system in which I practiced law for some forty years. Now, apartheid
has collapsed. South Africa has become a democratic constitutional state in
which the Constitution is the supreme law, and I am a member of South
Africa’s first Constitutional Court. How does one describe the difference
between then and now? And where does one start in attempting to deal with
Professor Ronald Dworkin’s theories in the context of South African law.
In this article, I will focus on two issues: first, why Professor Dworkin’s writings
were of value to lawyers and judges practicing in a wicked legal system, and
second, why, in the context of the South African Constitution, his theory of
equality provides a basis for addressing the legacies of the past and for the
development of a new jurisprudence dealing with socioeconomic rights.
Racial discrimination had long been a feature of South African law. It was,
however, institutionalized by apartheid into a powerful ideology, described by
Dr. H. F. Verwoerd, one of its architects, as
compris[ing] a whole multiplicity of phenomena. It comprises the political sphere; it is necessary in the social sphere; it is aimed at . . . church
matters; it is relevant to every sphere of life. Even within the economic
sphere it is not just a question of numbers. What is of more importance
there is whether one maintains the colour bar or not.2
Apartheid, which caused great poverty and suffering, privileged whites and marginalized blacks in all aspects of life. It was entrenched in the law and enforced
through the law in ways that lacked even the pretense of the separate but equal
doctrine that influenced law in the United States prior to the decision in Brown v.
Board of Education.3 White supremacy, ordained by law, was maintained
* Chief Justice of South Africa. I would like to thank Steven Budlender for his assistance in the preparation
of this article.
1
The most detailed discussion of this is probably to be found in DAVID DYZENHAUS, HARD CASES IN WICKED
LEGAL SYSTEMS: SOUTH AFRICAN LAW IN THE PERSPECTIVE OF LEGAL PHILOSOPHY (Oxford Univ. Press 1991).
2
T. R. H. DAVENPORT, SOUTH AFRICA: A MODERN HISTORY 270 (Univ. of Toronto Press 1978).
3
347 U.S. 483 (1954). In South Africa, the Reservation of Separate Amenities Act 49 of 1953
sanctioned the provision of separate facilities for different races and expressly precluded courts
© Oxford University Press and New York University School of Law 2003,
I.CON, Volume 1, Number 4, 2003, pp. 590–609
590
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through an intricate network of security laws that imposed severe constraints
on freedom of expression, freedom of assembly, freedom of association, freedom to form political parties, and freedom of movement. These laws sanctioned detention without trial and holding detainees in solitary confinement.
This led, in turn, to the torture of prisoners and deaths in detention. Statutory
offenses were created in which the burden of proof was shifted to the accused
person. Complex statutes and regulations, geared to the use of administrative
discretion, were enacted so as to provide the levers of bureaucratic control
necessary for the implementation of apartheid policies.4 The wickedness of
this system cannot reasonably be disputed.5 How relevant are Dworkin’s
theories in such a system? What would Hercules have done if he had been a
South African judge between 1948 and 1994, when apartheid formally came
to an end?
1.
Apartheid was introduced some eighteen years before Dworkin’s first essay,
“The Model of Rules”6 was published and almost thirty years before the publication of Taking Rights Seriously.7 By then, South African courts were set in
their ways and in their approach to the interpretation of apartheid laws.
The doctrine of parliamentary supremacy prevailed. That doctrine, however,
lacked any validity in the South African setting, for parliament was not a
parliament of all the people. It was a parliament of the whites in which blacks,
from declaring such action invalid on the grounds that the separate facilities were not equal. The
act was passed in response to a judgment of the Appellate Division in Rex v. Adburahman, 1950 (3)
SALR 134 (AD), which held that the court had a duty to declare invalid any practice that, in the
absence of the authority of an act of parliament, resulted in partial and unequal treatment to a
substantial degree.
4
A detailed account of the early stages of apartheid law and the role of the courts in enforcing
apartheid is given by JOHN DUGARD, HUMAN RIGHTS AND THE SOUTH AFRICAN LEGAL ORDER (Princeton
Univ. Press 1978); ANTHONY S. MATHEWS, LAW, ORDER AND LIBERTY IN SOUTH AFRICA (Univ. of
California Press 1971); and ALBIE SACHS, JUSTICE IN SOUTH AFRICA (Univ. of California Press 1973).
Later studies include STEPHEN ELLMANN, IN A TIME OF TROUBLE: LAW AND LIBERTY IN SOUTH AFRICA’S STATE
OF EMERGENCY (Oxford Univ. Press 1992) and DAVID DYZENHAUS, JUDGING THE JUDGES, JUDGING OURSELVES:
TRUTH, RECONCILIATION AND THE APARTHEID LEGAL ORDER (Northwestern Univ. Press 1998).
5
I have spoken about the practice of law under apartheid and since on a number of occasions, and
in this article I draw on what I have said previously. Some of the speeches have been published. See,
e.g., Arthur Chaskalson, The Judicial Role in the Development of Human Rights: Judges under the New
South African Constitution, in THE STRUGGLE FOR SIMPLICITY IN THE LAW: ESSAYS FOR LORD COOKE OF
THORNDON 257 (Butterworths 1997); Arthur Chaskalson, Human Dignity as a Foundational Value of
our Constitutional Order, 16 S. AFR. J. HUM. RTS. 193 (2000); and Arthur Chaskalson, Judicial Review
in Post-Apartheid South Africa, in JUDICIAL REVIEW (Schrage ed., 2002).
6
Ronald Dworkin, The Model of Rules, 35 U. CHI. L. REV. 14 (1967).
7
RONALD DWORKIN, TAKING RIGHTS SERIOUSLY (Harvard Univ. Press 1977).
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who made up about 80 percent of the population, had no say. Yet its laws were
binding on all of us and not open to challenge in the courts.8
Courts accepted that parliament could make laws that, expressly or by
necessary implication, sanctioned discrimination and the deprivation of
rights. The only question for consideration in such cases was whether, on a
proper construction of the statute, such express or implied permission existed.
If it did not, the discrimination or deprivation of rights would be invalid. The
difference between “liberal” and “conservative” judges, in the application of
this principle, depended on the reading of the statute and the interpretation of
what it sanctioned.
In 1983, Dworkin’s theory of adjudication was given prominence by
Professor Raymond Wacks of the University of Natal in Durban. He delivered
a public lecture in which he argued that the South African legal order was
“quintessentially unjust,” and that judges who shared this view and were concerned about the moral dilemma of having to apply apartheid laws should
resign. In his speech, he referred extensively to Taking Rights Seriously, seeking
support there for his conclusion. This speech gave rise to a heated debate in the
press and to a formal reply by Professor John Dugard.9 The debate captures the
tension inherent in the role of a judge under apartheid. This tension was similar, in some respects, to what was experienced by judges holding office in
southern U.S. states in the Jim Crow era. It was, possibly, more acute in South
Africa because there was no constitution that limited the power of the state,
and, as the laws became harsher and more repressive, there may have been
less scope for a moral reading of the law.
Although apartheid was pervasive and affected all aspects of life, there were
still areas of the law in which moral judges had an important role to play. This
was particularly so in matters regulated by the common law; it was also the
case in the application of most of the criminal law, the law of contract and
tort, and in commercial law, even where the subject matter was regulated by
statute. These judges had a role to play, as well, in the manner in which they
interpreted and applied apartheid laws. The question, however, is whether this
was of any value in the apartheid state.
In Taking Rights Seriously, Dworkin accepted that a judge seeking to do what
is morally right faces a conflict when called upon to apply an unjust law. If the
8
Section 59 of the 1961 Constitution (Act 32 of 1961) provided that “[n]o court of law shall be
competent to enquire into or to pronounce upon the validity of any Act passed by Parliament.”
S. AFR. CONST. (1961) § 59. This section gave effect to the common law doctrine of parliamentary
supremacy that South African courts had always applied.
9
John Dugard was, at that time, probably the preeminent academic voice in South Africa in
support of judges adopting a liberal approach to the adjudication of apartheid laws. See Raymond
Wacks, Judges and Injustice, 101 S. AFR. L.J. 266 (1984) [hereinafter Judges and Injustice];
John Dugard, Should Judges Resign?—A Reply to Professor Wacks, 101 S. AFR. L.J. 286 (1984);
Raymond Wacks, Judging Judges: A Brief Rejoinder to Professor Dugard, 101 S. AFR. L.J. 295 (1984)
[hereinafter Judging Judges].
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institutional right, as found in a statute, for instance, clearly conflicts with
moral rights, there is a dilemma:
The institutional right provides a genuine reason, the importance of
which will vary with the general justice or wickedness of the system as a
whole, for a decision one way, but certain considerations of morality
present an important reason against it. If the judge decides that the reasons supplied by background moral rights are so strong that he has a
moral duty to do what he can to support these rights, then it may be that
he must lie, because he cannot be of help unless he is understood as
saying, in his official role, that the legal rights are different from what
he believes they are. He could of course avoid lying by resigning, which
will ordinarily be of very little help, or by staying in office and hoping,
against odds, that his appeal based on moral grounds will have the same
practical effect as a lie would. 10
Dworkin did not make the lie part of his jurisprudential theory. Instead,
he thought that the conflict between the institutional right and morality must
be reported accurately, “leaving to the judge both the difficult moral decision
he must then make and the lie he may be forced to tell.”11
This dilemma is reflected in the judgment of a South African judge who had
to determine whether or not a case before him on review had been conducted
in accordance with justice:
The trouble is that it was not. It may have been in accordance with the
legislation, and because what appears in the legislation is the law, in
accordance with that too. But it can hardly be said to have been “in
accordance with justice.” Parliament has the power to pass the statutes
it likes, and there is nothing the Courts can do about that. The result is
law. But it is not always the same as justice. The only way that
Parliament can ever make legislation just is by making just legislation.12
He then examined the law and reached a conclusion that did not involve a lie:
“[t]he proceedings were therefore contrary not only to justice, but to the Act as
well, with the result that, on this occasion at least, it is possible to apply the Act
and to do justice simultaneously.”13 This, however, was often not possible.
Wacks argued that the institutional history of South Africa was one of
10
See DWORKIN, TAKING RIGHTS SERIOUSLY, supra note 7, at 326–27.
11
Id.
12
In Re Dube, 1979 (3) SALR 820 (N) at 821 (opinion of Justice John Didcott). This brief judgment of less than two pages is a good example of the way in which a judge is able to bring to the
surface the moral issues in a case and, ultimately, find a solution that, for this case at any rate, was
“consistent with justice.” It is well worth reading.
13
Id. at 822.
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discrimination that had endured for centuries prior to apartheid and was
deeply entrenched in the law. He referred to judgments upholding laws enforcing segregation as “text book examples of Hercules in action”14 and took issue
with those South African academics who argued that South African judges
could and should rely on principles and precedents of the common law to
adopt a liberal interpretation of apartheid statutes. He acknowledged that
there were some judges who, within the narrow confines permitted to them by
apartheid laws, could dispense justice, but he argued that this could not
“redeem the system’s essential injustice.” In such a situation, judges had but
three choices: “to protest, to lie or to resign.”15 In his view, protest would bear
little fruit, the severe constraints on the jurisdiction of courts left little scope
for the judicial lie, and there was, accordingly, “no compelling alternative to
resignation.”16
It is true that South African courts were called upon to enforce apartheid
laws and did so routinely. Many judges found support for this in positivism, and
the distinction it makes between law as it is and law as it ought to be. They contended that if an apartheid statute was clear, the judge’s duty was to enforce it,
and, if not, there were rules of interpretation the judge had to follow in finding
the answer. In their view, the moral responsibility for the law rested with the
parliament that made the law and not with the judge who applied it.17 This
somewhat crude distinction between law and morality also seeped into the
approach of some judges to adjudication in matters other than apartheid laws.
The question whether it was immoral to accept appointment as a judge in
South Africa or to continue to act as a judge as the laws became increasingly
repressive is not as straightforward as Wacks made it out to be. Despite the
attitude of the positivists, it cannot be said that there was no scope for moral
decisions or that moral judges were powerless in the face of apartheid.
As Dugard pointed out, principles of equality and liberty immanent in RomanDutch law formed part of South African common law. The common law
doctrine of statutory interpretation required statutes to be interpreted, where
possible, consistently with such principles. Thus, there was room for moral
decisions in the development and application of the common law, in the interpretation and application of statutes not directly affected by apartheid, and
even, though to a limited extent, in the interpretation and application of
apartheid laws.
14
Wacks, Judges and Injustice, supra note 9, at 274.
15
Id. at 282.
16
Id.
17
In 1967, then–chief justice L. C. Steyn made a speech in which he said that judges ought not to
criticize laws passed by the legislature. For criticism of this attitude and of Steyn’s approach to
adjudication, see Edwin Cameron, Legal Chauvinism, Executive Mindedness and Justice—L.C. Steyn’s
Impact on South African Law, 99 S. AFR. L.J. 38 (1982).
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There was a small but vigorous human rights bar within South Africa that
continually brought issues pertaining to apartheid laws before the courts and
demanded decisions regarding them. Although their powers were curtailed, the
courts remained an independent source of authority within the white power
structure and an important institution within which infringement of rights
could be challenged. Challenges were brought and not infrequently succeeded.
Wacks’s contention was that the best justification of wicked laws was to be
found in the wicked principles on which such laws were based.18 This was
rejected by other academics, and, in particular, by Etienne Mureinik who, like
Dugard, argued that apartheid formed only one component of the ancient and
multifaceted South African legal system. South African judges
almost always take it for granted that every racial distinction requires
statutory justification, usually express. In the absence of such, they
enforce contracts, and remedy delicts, and strike down administrative
decisions, and administer companies, and protect property, and enforce
statutory duties, and apply rules of court, on the unquestioned premise
that the race of the parties before them is irrelevant. Routinely they
affirm conceptions of the equal treatment of individuals which are quite
discordant with the theory underlying apartheid statutes; whether
consciously, such as when they strike down by-laws and regulations for
partial and unequal treatment, or unconsciously, such, perhaps, as
when they apply the doctrine of precedent.19
This way of proceeding, says Mureinik, was consistent with Dworkin’s theory
of constructive interpretation, which aspires to make adjudication the best
that it can be. It is based on principle and recognizes only principles that satisfy
some minimum threshold of moral appeal. To be sure, apartheid statutes were
either capricious exercises of power or based on the principle that blacks were
less worthy of concern than whites, a principle that did not meet the moral
threshold requirement, and “justifie[d] nothing.” Nonetheless, although the
political system based on apartheid was illegitimate and provided no justification for the exercise of political power, this did not mean that participants
should withdraw from the legal system. There were sufficient “sub-moralities”
in the system to make it preferable for conscientious lawyers to contest the
legitimacy of the system, while legitimately continuing to participate in it and
attempting to “make of the law the best it can be made.” He concluded that
Dworkin’s theory of constructive interpretation “offers richly instructive
guidance to a conscientious participant” in the South African legal order.20
18
Wacks, Judges and Injustice, supra note 9, at 278.
19
Etienne Mureinik, Dworkin and Apartheid, in ESSAYS ON LAW AND SOCIAL PRACTICE IN SOUTH AFRICA
207–8 (Hugh Corder ed., Juta 1988).
20
Id. at 214.
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Of course, conscientious participation was not the only choice. There was
the option of going into exile, or of remaining in South Africa but abandoning
the practice of law and joining the underground resistance. The latter is what
Nelson Mandela did, after having been active as a lawyer for a number of
years. The same course was later followed by Bram Fischer, Q.C., who, charged
with offenses under the Suppression of Communism Act,21 decided to go
underground rather than to participate in the trial. In a letter to the court, he
said that he could “no longer serve justice in the way I have attempted to do
during the past thirty years. I can only do it in the way I have now chosen.”22
He made his decision, he said,
[o]nly because I believe that it is the duty of every true opponent of this
Government to remain in this country and to oppose its monstrous
policy of apartheid with every means in his power. That is what I shall do
for as long as I can. . . . Cruel, discriminatory laws multiply each year,
bitterness and hatred of the Government and its laws are growing daily.
No outlet for this hatred is permitted because political rights have been
removed. National organisations have been outlawed and leaders, not in
gaol, have been banned from speaking and meeting. People are hounded
by the Pass Laws and by Group Area controls. Torture by solitary confinement, and worse, has been legalised by an elected parliament—
surely an event unique in history. . . . Unless this whole intolerable system
is changed radically and rapidly, disaster must follow. Appalling bloodshed and civil war will become inevitable because, as long as there is
oppression of a majority, such oppression will be fought with increasing
hatred . . . these are my reasons for absenting myself from Court.”23
But, as Mureinik points out, joining the armed struggle against apartheid
involved moral and political choices. The fact that this option existed did not
necessarily invalidate a choice to participate in the legal system on the basis he
advocated.
In political trials, those charged almost without exception turned to lawyers
to defend them. Some defendants used the trial as a forum to assert that their
conduct, though contrary to apartheid law, was a legitimate response to
oppression. This was the approach adopted by Mandela and some of his coaccused at their 1963 trial where, in effect, they put apartheid on trial and
attracted great national and international publicity. At the time of their arrest,
it was widely forecast that all would be convicted and sentenced to death.
This did not happen—instead, two of the accused were acquitted, and those
21
Act 44 of 1950.
22
STEPHEN CLINGMAN, BRAM FISCHER: AFRIKANER REVOLUTIONARY 355–56 (Univ. of Massachusetts
Press 1998).
23
Id.
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convicted were sentenced to life imprisonment. If the judge had been dishonest, if there had been no legal representation, if the accused had been tried
and convicted in a matter of days, they would almost certainly have been
sentenced to death, and the history of our country would have been quite
different from what it has been.
Cases could also be cited in which important principles of justice were
upheld as a result of successful arguments raised concerning the interpretation and application of apartheid laws and practices and the actions of state
functionaries who had abused their powers.24 It would be wrong, however, to
see these cases as typical of the legal process under apartheid: there were many
other cases, particularly in the lower courts, in which judicial officers and
prosecutors treated accused persons shamelessly, where statutes were read
broadly to uphold apartheid rather than narrowly to exclude oppression, and
innumerable cases in which the law was clear and apartheid statutes were
enforced with the full rigor of the law.
The recent hearings of the Truth and Reconciliation Commission provided
an opportunity for reflection upon the role of judges and lawyers under
apartheid and the institutional circumstances that rendered the gross violation of human rights possible. Evidence was heard from representatives of the
organized legal professions, lawyer organizations, individual lawyers, and law
teachers. Written submissions were made by a number of judges including the
five most senior judges. The commission seems to have accepted that moral
judges were not obliged to resign. Its findings with regard to the legal sector
are, however, severe and serve as a reminder to all in the judiciary and the
profession of their role under apartheid. The legal profession is condemned for
its silence in the face of unjust laws, for its defensiveness at international gatherings, for its failure to make justice accessible to those who could not afford it,
and for its acceptance of the legality of the unjust laws. The judiciary is condemned for its willingness to uphold unjust laws without comment, and for the
readiness with which it accepted police evidence over that of accused persons.
The commission was probably influenced in this regard by policemen seeking
amnesty. These policemen acknowledged that they had committed torture and
murdered detainees. The extent of these admissions suggested that atrocities
were widespread and that the security police considered themselves beyond
the law.
There was, however, praise for what the commission described as the handful
of judges, lawyers, law teachers, and law students who did not adhere to this
pattern:
there were always a few lawyers (including judges, teachers and
students) who were prepared to break with the norm. These lawyers used
24
See RICHARD ABEL, POLITICS BY OTHER MEANS: LAW IN THE STRUGGLE AGAINST APARTHEID 1980–1994
(Routledge 1995) and ELLMANN, supra note 4.
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every opportunity to speak out publicly and within the profession
against the adoption and execution of rules of law that sanctioned
arbitrary official conduct and injustice. They explored the limits of their
forensic skills in defending those on trial for offences in terms of such
legislation, or in arguing for the invalidity of vague or unreasonable
administrative action. They worked ceaselessly to prepare the cases of
those targeted by the state, often in trying conditions and for little material reward. They advised and educated those in the community most
vulnerable to official excesses, such as the rural poor and workers,
through advice offices and religious bodies. They challenged their students to confront the relationship between law and justice and to translate their ideals into practice. They forswore the comforts of commercial
practice for the sake of the upliftment of those excluded from all forms of
power. They exercised their judicial discretion in favour of justice and liberty wherever proper and possible . . . and were influential enough to be
part of the reason why the ideal of a constitutional democracy as the
favoured form of government for a future South Africa continued to
burn brightly throughout the darkness of the apartheid era.25
There were, undoubtedly, contradictions in opposing apartheid yet participating
in the legal process. I agree, however, with the conclusion of the Truth and
Reconciliation Commission that more good than harm came from participation on such terms.26 The role of the judiciary within South Africa was a
complex one, and it would be oversimplifying to see it as no more than the
instrument of a repressive state. It enforced unjust laws—almost invariably
without protest—and in so doing helped to legitimate them within the white
community. But, at the same time, the South African state was based on structures that had legal form.27 The courts required the state and its officials to
adhere to the forms of law, and, in so doing, imposed some constraint upon the
exercise of arbitrary power. Laws could be and were changed in response
to adverse court rulings, but there were political costs to such actions, and, in
the end, there were constraints that no government and no official was willing
to risk breaking, openly.
If this restraining influence had not been there, there would have been no
control whatever over the use or abuse of power; no restraint whatever of arbitrary or extralegal action. In such a situation the most oppressed section of the
population would have been the most vulnerable. As Mureinik observed at the
25
4 Report of the Truth and Reconciliation Commission, ch. 4, ¶¶ 36–37 (1998).
26
I participated as an advocate and not as a judge. But if there had been no moral judges there
would have been little purpose in such participation.
27
There must be a minimum commitment to legality for the application of any theory of adjudication. Some unjust societies lack any semblance of such a commitment. There was, strangely, a
commitment to legality in apartheid South Africa, and that is what makes it such an unusual case.
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time of the Wacks debate, “if we argue . . . that moral judges should resign, we
can no longer pray, when we go into court as defence counsel, or even as the
accused, that we find a moral judge on the bench.”28
No general theory of adjudication can deal adequately with the dilemmas
facing lawyers and judges in wicked legal systems. Much will depend, as
Dworkin acknowledged, on the “general justice or wickedness of the
system.”29 In such circumstances, Dworkin’s insistence on a moral reading of
laws has the advantage over the positivist’s argument, which leaves hard cases
to the judge’s discretion. Although the result may be the same in most cases,
the important difference is that the positivists exclude morality from the
decision-making process, whereas Dworkin keeps it in the foreground. That is
of particular importance in unjust societies, for it forces judges to confront
moral issues and through their judgments to articulate what those issues are.
It also affords to lawyers and their clients the opportunity to raise moral issues
in cases where it is open to them to do so. It keeps alive within the legal system
moral principles to which greater effect can be given when the unjust system
collapses, as unjust systems inevitably do. Dworkin’s writings were seldom, if
ever, referred to in the judgments of the apartheid courts. He was, however,
influential in shaping the ideas of academics who challenged the conventional
approach of South African jurists to positivism. In the 1980s, the separation
of law from morality was increasingly questioned, positivist decision making
was challenged, and there was academic criticism of the failure of courts to
confront the moral issues at stake in particular cases.30 Dworkin’s influence
was such that he, more than anyone else, put moral decision making on the
agenda and kept it there. We have undoubtedly benefited from that, and this
will be apparent from what follows.
2.
It is time, now, to turn to the present legal order in South Africa. Since 1994,
South Africa has been a democratic constitutional state. How and why this
happened lie beyond the scope of this article. The change has, however, had a
profound impact on the legal system and its jurisprudence.
The new South African Constitution is a moral document. Even a cursory
reading of its provisions demonstrates this. It is the supreme law, and law or
conduct inconsistent with its provisions is invalid.31 The preamble to the
Constitution identifies constitutional goals that include establishing “a society
28
This comment was made in an article in the Sunday Tribune during the debate precipitated by
Professor Wacks’s speech and is cited by Dugard in his response to Wacks, supra note 9, at 294.
29
DWORKIN, TAKING RIGHTS SERIOUSLY, supra note 7, at 326.
30
ELLMANN, supra note 4, at 238–39.
31
S. AFR. CONST. (1996) § 2.
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based on democratic values, social justice and fundamental human rights.”
Key to this is the Bill of Rights, contained in chapter 2 of the Constitution,
which is “a cornerstone of democracy in South Africa. It enshrines the rights
of all people in our country and affirms the democratic values of human
dignity, equality and freedom.”32
One of the founding values of the South African Constitution is “the
achievement of equality.”33 For Dworkin, “equal concern” is a precondition for
political legitimacy and “without it government is only tyranny.”34 He regards
equal concern as the sovereign virtue, saying “the political process of a genuine community must express some bona fide conception of equal concern for
the interests of all members, which means that political decisions that affect
the distribution of wealth, benefits, and burdens must be consistent with equal
concern.”35
Dworkin has referred to equality as “the endangered species of political
ideals.”36 That may be the case in the United States but it is not the case in
South Africa. The equality clause includes not only a prohibition on unfair discrimination but specifically allows steps to be taken to redress past discrimination.37 One of the purposes of the equality guarantee is “to prohibit . . .
patterns of discrimination and to remedy their results.”38 It is only by doing
this that we will be able to establish a society in which “all human beings will
be accorded equal dignity and respect regardless of their membership of particular groups.”39
Dworkin is unlikely to have any quarrel with the achievement of equality as
a constitutional value nor with its being very closely linked with the value of
human dignity. He may, however, quarrel with other provisions of the
Constitution that impose positive duties on the state to address the legacies of
the past, and, he may argue that such rights raise policy considerations closer
to the political process rather than legal principles relevant to the judicial
process.40
32
S. AFR. CONST. (1996) § 7.
33
S. AFR. CONST. (1996) § 1(a).
34
RONALD DWORKIN, SOVEREIGN VIRTUE: THE THEORY AND PRACTICE OF EQUALITY 1 (Harvard Univ. Press
2000) [hereinafter SOVEREIGN VIRTUE].
35
RONALD DWORKIN, FREEDOM’S LAW: THE MORAL READING OF THE AMERICAN CONSTITUTION 25 (Harvard
Univ. Press 1996) [hereinafter FREEDOM’S LAW].
36
DWORKIN, SOVEREIGN VIRTUE, supra note 34, at 1.
37
S. AFR. CONST. (1996) § 9.
38
Brink v. Kitshoff NO, 1996 (4) SALR 197 (CC) ¶ 42.
39
President of the Republic of South Africa v. Hugo, 1997 (4) SALR 1 (CC) ¶ 41.
40
See Dworkin’s discussion of rules, principles, and policies, DWORKIN, TAKING RIGHTS SERIOUSLY,
supra note 7, at 22–28.
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Provision is made in the South African Constitution for socioeconomic
rights that require the state to take action to achieve the progressive realization
of access to housing,41 health care, food, water, social security,42 and land.43
South Africa faces great disparities in wealth, with millions of people living in
deplorable conditions and in great poverty:
There can be no doubt that human dignity, freedom and equality, the
foundational values of our society, are denied those who have no food,
clothing or shelter. Affording socio-economic rights to all people therefore enables them to enjoy the other rights enshrined in [the
Constitution]. The realisation of these rights is also key to the advancement of race and gender equality and the evolution of a society in which
men and women are equally able to achieve their full potential.44
In what follows I will look at how the Constitutional Court has foregrounded
“equal concern” in its jurisprudence, particularly in decisions dealing with
claims for socioeconomic rights.
Claims for the enforcement of these rights represent hard cases.
Governments are elected to deal with these issues, and socioeconomic rights
are at the border of the separation of powers between the judiciary and the
executive. The claims are hard not only because of the difficulty of interpreting and applying the provisions that entrench socioeconomic rights but
because of the abject living conditions of many people in our country and their
legitimate demand that these be addressed, now that apartheid is over. Should
they turn to courts if the political process fails them?
The mere fact that socioeconomic rights involve policy considerations is not
in itself sufficient reason for excluding the court’s jurisdiction. For instance, it
is plain that a policy to provide particular services to whites only, as was often
the case under apartheid, would raise an issue of principle justifying intervention by a court. Policy must be consistent with the Constitution.
At the same time, these rights are not absolute. They are justiciable and
have been carefully formulated. Take, as an example, housing rights, which
are expressed as follows: “(1) Everyone has the right to have access to adequate
housing; (2) The state must take reasonable legislative and other measures
within its available resources, to achieve the progressive realisation of
this right.”45 The rights to health care, food, water, and social security are
stated in similar terms, and the Constitutional Court has taken both the rights
41
S. AFR. CONST. (1996) § 26.
42
S. AFR. CONST. (1996) § 27.
43
S. AFR. CONST. (1996) § 25(5).
44
Government of the Republic of South Africa v. Grootboom 2001 (1) SALR 46 (CC) ¶ 23.
45
S. AFR. CONST. (1996) § 26.
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and qualifications seriously:
[I]t is an extremely difficult task for the State to meet these obligations in
the conditions that prevail in our country. This is recognised by the
Constitution which expressly provides that the State is not obliged to go
beyond available resources to realise these rights immediately . . .
however . . . despite all these qualifications, these are rights, and the
Constitution obliges the State to give effect to them. This is an obligation
that Courts can, and in appropriate circumstances, must enforce.46
The Constitutional Court has, as yet, been required to deal with only three
cases in which direct claims have been made for the enforcement of these
rights. Two concerned access to health care47 and one access to housing.48
In Soobramoney, the Court dismissed a claim by a patient suffering from
chronic renal failure to be provided with renal dialysis without charge. The
evidence showed that renal dialysis facilities were costly and scarce. Resources
were limited, and there were guidelines that regulated the use of dialysis
machines in public hospitals by establishing priorities. Those who could be
cured—patients suffering from an acute illness that could be treated and
patients who were candidates for kidney transplants and required dialysis to
keep them alive while waiting—were given preference. Soobramoney did not
fall into this category. He was a diabetic in the final stage of chronic renal failure, suffering from ischemic heart disease and cerebrovascular disease. His life
could be prolonged by means of regular renal dialysis, but he would have to be
placed on a dialysis machine three times a week, each treatment taking about
four hours, after which a further two hours would be required to clean the
machine. The guidelines for the use of the dialysis machines were intended to
provide maximum benefit to the greatest number of patients, and no suggestion had been made that they were either unfair or unreasonable. It was held,
in dismissing the claim, that “[a] court will be slow to interfere with rational
decisions taken in good faith by the political organs and medical authorities
whose responsibility it is to deal with such matters.”49 This is a hard case, and
the judgment of the Court alludes to this: “[t]he hard and unpalatable fact
is that if the appellant were a wealthy man he would be able to procure such
treatment from private sources; he is not and has to look to the State to provide
him with treatment.”50
46
Grootboom, 2001 (1) SALR 46 (CC) ¶ 94.
47
Soobramoney v. Minister of Health, KwaZulu-Natal, 1998 (1) SALR 765 (CC) and Minister of
Health v. Treatment Action Campaign (No. 2), 2002 (5) SALR 721 (CC) [hereinafter TAC].
48
Grootboom, 2001 (1) SALR 46 (CC).
49
Soobramoney, 1998 (1) SALR 765, ¶ 29.
50
Id. ¶ 31.
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Soobramoney’s case must be seen in the context of the resources available
to the state and the needs that the health services had to meet. It involved policy considerations regarding how much of the budget should be allocated to
health care, and, of that, how much should go to primary health care and how
much to tertiary care. If treatment were to be provided to Soobramoney
because of the life-threatening diseases from which he suffered, it would also
have to be provided to all other persons similarly placed. And if this principle
were to be applied and extended to all patients requiring access to expensive
medical treatment or expensive drugs, the health budget would have to be
dramatically increased and restructured. The Court stressed that the state had
to manage its limited resources in order to address the extensive needs of millions of people, not only for access to health care but also for access to housing,
food and water, employment opportunities, and social security. It held that
there will thus be times “when this requires [the state] to adopt a holistic
approach to the larger needs of society rather than to focus on the specific needs
of particular individuals.”51 The decision is consistent with Dworkin’s views.52
Grootboom concerned the state’s housing program. This program, as
adopted for the Cape Metropolitan area, was intended to provide formal housing to people who could not afford to pay for it. This was a long-term goal, and
a comprehensive program had been formulated for this purpose. No provision
was made, however, for the immediate needs of thousands of people unable to
afford homes and who had no access to land, no roof over their heads, and
were living in intolerable conditions on vacant land from which they were
liable to be evicted. The persons concerned came from the most disadvantaged
sections of the community and would be “consigned to their fate for the foreseeable future unless some temporary measures [were created] as an integral
part of the nationwide housing programme.”53
The program thus failed to meet the obligation imposed on the state by the
Constitution because it excluded from its scope a significant segment of society
in need of access to shelter.54 This was not reasonable. “Reasonableness,” said
the Court,
must . . . be understood in the context of the Bill of Rights as a whole. The
right of access to adequate housing is entrenched because we value
human beings and want to ensure that they are afforded their basic
human needs. A society must seek to ensure that the basic necessities of
life are provided to all if it is to be a society based on human dignity, freedom and equality. To be reasonable, measures cannot leave out of
51
Id.
52
See the discussion on “Justice and the High Cost of Health” in DWORKIN, SOVEREIGN VIRTUE, supra
note 34, at 307–19.
53
Grootboom, 2001 (1) SALR 46 (CC), ¶ 65.
54
Id. ¶ 43.
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account the degree and extent of the denial of the right they endeavour to
realise. Those whose needs are the most urgent and whose ability to enjoy
all rights therefore are most in peril must not be ignored by the measures
aimed at achieving realisation of the right. Furthermore, the Constitution
requires that everyone must be treated with care and concern.55
The judgment makes clear that the applicant did not have a constitutional
right to claim shelter or housing immediately, on demand. The state was,
however, obliged “to devise and implement a coherent, co-ordinated, program
designed to meet its [constitutional] obligations.”56 It was entitled to decide
how much to allocate to housing.57 But it could not exclude from that allocation a provision for the needs of those whose needs are the greatest. Dworkin
would probably agree with this conclusion as a matter of political policy. He
would accept that the Constitution requires that all be treated with care and
concern. He would also accept that a policy “that denies any group of citizens,
however small or politically negligible, the equal resources that equal concern
would otherwise grant them” is flawed. 58
But does that entitle a court to intervene and say that the government’s policy is inconsistent with the Constitution? Dworkin may well have reservations
about this. The Constitutional Court has held, however, that this is permissible.
The Constitution requires the state to “respect, protect, promote and fulfill the
rights in the Bill of Rights.”59 The socioeconomic rights are entrenched in the Bill
of Rights. Unless the courts resort to the stratagem of declaring disputes concerning socioeconomic rights to be political questions and for that reason decline
jurisdiction, they must confront and decide the hard cases that arise when it is
alleged that the state has failed to comply with its constitutional obligations to
take reasonable measures to achieve the progressive realization of these rights.
Courts have to judge the issue of “reasonableness.” That is a legal principle
that courts are often required to apply when there is a challenge to the validity
of administrative action by the executive. In this way, policy is collapsed into
principle,60 and techniques similar to those used in administrative law can be
adopted to give effect to the constitutional standard of “reasonableness.”
Sunstein suggests that Grootboom “answers a number of questions about the
proper relationship among socioeconomic rights, constitutional law, and
55
Id. ¶ 44
56
Id. ¶ 95.
57
I do not exclude the possibility of a challenge to budgetary allocations—assuming it is possible
to argue that the state is able yet has unreasonably failed to make the necessary resources
available—but that would be a much more difficult case to establish.
58
RONALD DWORKIN, A MATTER OF PRINCIPLE 211 (Harvard Univ. Press 1985).
59
S. AFR. CONST. (1996) § 7(2).
60
See the discussion by Dworkin of rules, principles, and policies, DWORKIN, TAKING RIGHTS
SERIOUSLY, supra note 7, at 22–28.
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democratic deliberation” and shows “respect for sensible priority-setting, and
close attention to particular needs, without displacing democratic judgments
about how to set priorities.”61
Grootboom was made easier because the needs of homeless persons had
been ignored. The case would have been more difficult if the policy had made
provision for homeless people and the dispute had been over the terms of
the policy or the allocation for it in the budget. And, as Sunstein points out, the
case left many issues unresolved.
Some of these issues came to the fore in the TAC62 case, which concerned
the government’s policy on HIV-AIDS. The question was whether an antiretroviral drug, nevirapine, should be made available in public hospitals for the
treatment of children born to HIV-positive mothers. The treatment involved
the administration of a single dose of nevirapine to the mother and child at the
time of birth. This would save the lives of a significant number of infants.
It was not an expensive form of treatment. In any event, the drug had been
offered to the government for this purpose free of charge for a period of five
years, and the cost of the drug was not a factor.
The issue was complicated by the need to test the HIV status of the pregnant
mothers, to counsel those who are HIV positive, and to advise the mothers on
the choices open to them, the implications of the treatment, and the risks inherent in breast-feeding, which can lead to reinfection, and in bottle-feeding, where
access to clean water is not readily available. The government had established a
number of research and training sites at which nevirapine was made available
for the treatment of mother-to-child transmission of HIV. These sites catered to
approximately 10 percent of all births in the public sector. The research was primarily to monitor the efficacy and safety of nevirapine and to determine the
best practice to prevent mother-to-child transmission of HIV. In addition to
testing and counseling, the research sites provided formula feed to mothers who
did not breast-feed their infants. Vitamin supplements and antibiotics were
provided, and the progress of mothers and infants was carefully monitored.
The government contended that the comprehensive package of treatment
available at the research and training sites required substantial financial and
human resources and could not be provided throughout the public health sector. It doubted the efficacy of using nevirapine in circumstances where a full
package of treatment was not available, and it had certain concerns about the
safety of the drug and the possibility that its use would lead to resistance to
antiretrovirals. Most provinces, therefore, provided the drug only at research
and training sites. Doctors at other public health facilities were not permitted
to prescribe nevirapine for this purpose. This excluded the great majority of
children born in the public health sector from access to this form of treatment.
No other antiretroviral treatment was available at these institutions.
61
CASS R. SUNSTEIN, DESIGNING DEMOCRACY: WHAT CONSTITUTIONS DO 236 (Oxford Univ. Press 2001).
62
TAC, 2002 (5) SALR 721 (CC).
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The prospects of a child surviving if infected were slim. Testing and counseling facilities were available at many public hospitals and clinics outside the
research sites. There was convincing evidence that nevirapine was efficacious
for the treatment of mother-to-child transmission of HIV even if the mother
breast-fed the infant. The use of nevirapine for the treatment of motherto-child transmission of HIV was recommended by the World Health
Organization, and its use in South Africa for this purpose had been approved
by the Medicines Control Council, which was responsible for assessing
the safety of drugs. The drug was freely available for use by persons who had
sufficient resources to access the private health sector.
The government contended that the making of policy is the prerogative of
the executive and not the courts, and that courts cannot make orders that
have the effect of requiring the executive to pursue a particular policy. This
argument was rejected:
Where State policy is challenged as inconsistent with the Constitution,
Courts have to consider whether in formulating and implementing such
policy the State has given effect to its constitutional obligations. If it
should hold in any given case that the State has failed to do so, it is
obliged by the Constitution to say so. Insofar as that constitutes an intrusion into the domain of the Executive, that is an intrusion mandated by
the Constitution itself.63
The failure to provide access to effective health care for the treatment of
mother-to-child transmission of HIV to children born at public health facilities
that were not research sites was not reasonable. The provision of a single dose
of nevirapine to mother and child at the time of birth was, as far as these children were concerned, essential. Their needs were “most urgent,”64 and their
ability to enjoy all the rights to which they were entitled under the Bill of
Rights was imperiled by a rigid and inflexible policy that excluded them from
having access to nevirapine. Infants born at the research and training sites
would be given access to nevirapine, as would infants whose mothers had
access to the private health care system. The children excluded from the treatment came from the poorest sector of the community and did not have access
to health care in the private sector.
[The] government policy was an inflexible one that denied mothers and
their newborn children at public hospitals and clinics outside the research
and training sites the opportunity of receiving a single dose of Nevirapine
at the time of the birth of the child. A potentially lifesaving drug was on
offer and where testing and counselling facilities were available it could
have been administered within the available resources of the State without
63
Id. ¶ 99.
64
Id. ¶ 78.
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any known harm to mother or child. In the circumstances . . . the policy of
government insofar as it confines the use of Nevirapine to hospitals and
clinics which are research and training sites constitutes a breach of the
State’s obligations under . . . the Constitution.65
The difference between Soobramoney and TAC was that the policy governing
the use of dialysis machines was rational and not seriously challenged. It
was contended that more machines should have been provided so that lifethreatening cases could be treated. But this could not be accommodated
within the budget, and there was no direct challenge to the budget. Nor was
there any evidence to suggest that the allocation of funds to the health budget,
or the prioritizing of the use of funds, was not reasonable. In contrast, in TAC
the budget was not a material issue—the policy viewed objectively, in the light
of the evidence, was unreasonable.
Dworkin emphasizes that a commitment to the achievement of equality
implies a commitment to a society in which all members are equal and whose
legitimate needs are treated with equal concern. This is implicit in the equality
guarantees of the Constitution, and, in interpreting and applying the
Constitution, the Constitutional Court has been sensitive to the need to treat
everyone as equal members of society.66 This is reflected in its judgments striking down capital punishment,67 corporal punishment,68 the criminalizing of
sodomy,69 regulations of the education department that discriminate against
foreign employees,70 immigration regulations that discriminate against
unmarried heterosexual71 and homosexual couples,72 and an employment
policy discriminating against a job applicant because he was HIV positive.73
65
Id. ¶ 80.
66
See, e.g., Christian Education South Africa v. Minister of Education, 2000 (4) SALR 757 (CC), ¶
42 (“the essence of equality lies not in treating everyone in the same way, but in treating everyone
with equal concern and respect”); National Coalition for Gay and Lesbian Equality v. Minister of
Home Affairs, 2000 (2) SALR 1 (CC), ¶ 54 (“[t]he discrimination, based on sexual orientation, is
severe because no concern, let alone anything approaching equal concern, is shown for the particular sexual orientation of gays and lesbians”); and Pretoria City Council v. Walker, 1998 (2)
SALR 363 (CC), ¶ 81 (“[n]o members of a racial group should be made to feel that they are not
deserving of equal ‘concern, respect and consideration.’ ”).
67
S. v. Makwanyane, 1995 (3) SALR 391 (CC).
68
S. v. Williams, 1995 (3) SALR 632 (CC).
69
National Coalition for Gay and Lesbian Equality v. Minister of Justice, 1999 (1) SALR 6 (CC).
70
Larbi-Odam v. Member of the Executive Council for Education (North-West Province), 1998 (1)
SALR 745 (CC).
71
Dawood v. Minister of Home Affairs, 2000 (3) SALR 936 (CC).
72
National Coalition for Gay and Lesbian Equality, 2000 (2) SALR 1 (CC).
73
Hoffmann v. South African Airways, 2001 (1) SALR 1 (CC).
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The Constitution now contains an objective normative value system,74
which must permeate all aspects of the law.75 The Constitution demands a
moral reading of its provisions;76 and yet, because of our history and the constitutional change that in its effect was revolutionary, established preconstitutional law is an uncertain base for such a reading. That is not to say that
common law decisions are no longer relevant. They are, but they do not carry
the weight they did previously, since all law must now be consistent with the
Constitution’s value system, and where that is not so, the courts are obliged to
develop the law to bring it into conformity with such values.77
[T]he Constitution is not simply some kind of statutory codification of an
acceptable or legitimate past. It retains from the past only what is defensible and represents a radical and decisive break from that part of the
past which is unacceptable . . . to a constitutionally protected culture of
openness and democracy and universal human rights.78
I do not know whether Dworkin has dealt with the case of societies in transition following a fundamental break with the past. He is unlikely, however, to
dispute that the way forward in such circumstances is through the provisions
of the Constitution itself and the values that it identifies.
3. Conclusion
Comparative law has been a useful source for the development of
postapartheid law. Decisions of foreign courts and the writings of legal theorists in other countries are often referred to in arguments on constitutional
issues and in constitutional law classes at universities. Dworkin’s writings,
with their emphasis on a moral reading of the Constitution, figure prominently in this context. They have been cited by judges of the Constitutional
Court in interpreting the right to equality79 and the right of access to adequate
74
Carmichele v. Minister of Safety and Security, 2001 (4) SALR 938 (CC), ¶ 54.
75
Pharmaceutical Manufacturers Association of SA: in re ex parte President of the Republic of
South Africa, 2000 (2) SALR 674 (CC), ¶ 49.
76
The preamble and sections 1, 7, 36, and 39 of the Constitution refer explicitly to the values of
an open and democratic society based on human dignity, equality, and freedom. See S. AFR. CONST.
(1996) pmbl., §§ 1, 7, 36, and 39. These values are also implicit in other provisions of the
Constitution.
77
Carmichele, 2001 (4) SALR 938 (CC), ¶ 36.
78
Shabalala v. Attorney-General of the Transvaal, 1996 (1) SALR 725 (CC), ¶ 26.
79
Prinsloo v. Van der Linde, 1997 (3) SALR 1012 (CC), ¶ 32 and Walker, 1998 (2) SALR 363 (CC),
¶¶ 126 and 128.
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health care;80 in declaring unconstitutional the death penalty,81 the criminalization of sodomy,82 and the criminalization of the possession of pornography;83 and in upholding the constitutionality of laws governing interrogations
in the context of liquidations.84 Dworkin has also been cited by high courts in
decisions relating to abortion,85 the law of defamation,86 affirmative action,87
and gay rights.88
Ours is an unequal society, one in which past distributions affect the day-today living conditions of the great majority of our people. The foundational
values of the Constitution—the rule of law, dignity, equality, and freedom—
are foundations on which we can build our future and come to terms with our
past. They raise moral issues that can be addressed adequately only through a
moral reading of the Constitution.
80
Soobramoney, 1998 (1) SALR 765 (CC), ¶ 55.
81
Makwanyane, 1995 (3) SALR 391 (CC), ¶¶ 165 and 330.
82
National Coalition for Gay and Lesbian Equality, 1999 (1) SALR 6 (CC), ¶ 133, n.45.
83
Case v. Minister of Safety and Security, 1996 (3) SALR 617 (CC), ¶ 23, n.34, ¶ 26, n.37, and
¶ 45, n.76.
84
Bernstein v. Bester NNO, 1996 (2) SALR 751 (CC), ¶ 150, n.3.
85
Christian Lawyers Association of SA v. Minister of Health, 1998 (4) BCLR 1113 (T), at
1124–25.
86
Holomisa v. Argus Newspapers Ltd., 1996 (2) SALR 588 (W), at 608 and 610.
87
Public Servants’ Association of South Africa v. Minister of Justice and Others, 1997 (3) SALR
925 (T), at 986–87.
88
National Coalition for Gay and Lesbian Equality v. Minister of Justice, 1998 (6) BCLR 726 (W),
at 748–50.