Ubuntu and the Right to Dignity Flashcards
How do we argue using dignity infringement?
1st: establish what dignity has been defined as or what it has included by looking at and knowing case law well.
- Don’t just make own broad argument, use arguments and reasoning from the case law covered.
- For example, the right to dignity includes the protection of family life (Dawood).
What does the CSA say about dignity?
s10: Everyone has inherent dignity and the right to have their dignity respected and protected.
- SO, dignity is a normative value system (i.e., principle we shape our laws around etc.)
- The affirmation of [inherent] human dignity as a foundational value of the constitutional order places our legal order firmly in line with the development of constitutionalism in the aftermath
How does Ferreira v Levin define Dignity?
“it has an intrinsic constitutional value of its own.” it is likewise the foundation of many of the other rights that are specifically entrenched
How does Dawood define Dignity?
“The value of dignity in our constitutional framework cannot therefore be doubted. The Constitution asserts dignity to contradict our past in which human dignity for black South Africans was routinely and cruelly denied….Human dignity therefore informs constitutional adjudication and interpretation at a range of levels.”
- a justiciable and enforceable right in the CSA
What have the courts neglected in their development of dignity as a principle
Equality and freedom as substantive rights
What is a critique of dignity in South African Law?
- very focused on the individual, there is no account for the role of the group.
- as a result, failure to address group disadvantage
What are the core ideas of Ubuntu?
- Recognition of humanity of all
- Concern with the group solidarity and communality
- Reciprocal obligations to each other
What are the 5 dimensions of dignity?
- Not to be treated as a means to an end, but an end in and of itself
- Equal concern and respect
- Self-Actualisation
- Respect for people’s agency
- Collective Dignity
What does the first dimension of dignity entail?
Not to be treated as a means to an end, but an end in and of itself:
“The value of the individual is safeguarded in our jurisprudence. Every person should be treated as an end in herself and not as a means to an end only. This is what blunt utilitarianism would allow.” (para 173)
- SAPS v Solidarity obo Barnard
What does the second dimension of dignity entail?
Equal Concern and Respect:
- protects from degradation, stigmatisation, and devaluation
- “The message is the Gays and Lesbians lack the inherent humanity to have their families and family lives in such same-sex relationships respected or protected. It serves in addition to perpetuate and reinforce existing prejudices and stereotypes. … This discrimination … is severe because no concern, let alone anything approaching equal concern, is shown for the particular sexual orientation of gays and lesbians.”
National Coalition 1 (p54)
What does the third dimension of dignity entail?
Self-Actualisation:
To develop one’s humanity to the fullest extent.
- “Human dignity cannot be fully valued or respected unless individuals are able to develop their humanity, their “humanness” to the full extent of its potential. Each human being is uniquely talented. Part of the dignity of every human being is the fact and awareness of this uniqueness. An individual’s human dignity cannot be fully respected or valued unless the individual is permitted to develop his or her unique talents optimally.”
Ferreira v Levin
What does the fourth dimension of dignity entail?
Respect for people’s agency:
i.e., respect for people’s agency and their ability to make choices about their own lives.
- “The lockout and family separation rules limit the applicants’ right to dignity. The lockout rule limits the right to dignity because it is cruel, condescending and degrading. It forces the applicants out onto the streets during the day with no place whatsoever to call their own and to rest. As a result, people seek refuge on the street while they wait for the Shelter to re-open. The lockout rule also disproportionately affects people who work the night shift and sleep during the day. They have nowhere to rest and get ready for the next shift. For them in particular the Shelter is no shelter at all. The lockout rule also treats people like children. It undercuts the ability of the applicants to make plans and to make use of their time as they see fit. Clearly, the implication is that the applicants cannot manage their own affairs and have to be shepherded to and fro.”
Dladla p48.
What is the fifth dimension of dignity?
Collective dignity:
Closely linked to ubuntu
- “It is not only the dignity of the poor that is assailed when homeless people are driven from pillar to post in a desperate quest for a place where they and their families can rest their heads. Our society as a whole is demeaned when state action intensifies rather than mitigates their marginalisation.”
PE Municipality v various occupiers p18 - “Thus, PIE expressly requires the court to infuse elements of grace and compassion into the formal structures of the law. It is called upon to balance competing interests in a principled way and promote the constitutional vision of a caring society based on good neighbourliness and shared concern. The Constitution and PIE confirm that we are not islands unto ourselves. The spirit of ubuntu, part of the deep cultural heritage of the majority of the population, suffuses the whole constitutional order. It combines individual rights with a communitarian philosophy. It is a unifying motif of the Bill of Rights, which is nothing if not a structured, institutionalised and operational declaration in our evolving new society of the need for human interdependence, respect and concern.”
Para 37.
