All human beings are endowed with indispensable fundamental rights.1 These rights serve as protection from abuse by those yielding power. Each right is in place to attain a certain outcome. Resultantly, every right has a potential 'value element' that it aims to achieve.2 That is to say, there is a 'value' that forms the basis for the protection of each right.3 Of importance is that values "inform the interpretation of the Constitution and other law"
and prescribe "positive standards with which all law must comply in order to be valid".4 In the context of this thesis, values refer to those that are found inside the text of section 1 of the Constitution or those values found outside the text of the classically defined values in section 1 of the Constitution.5
The injunction to interpret all legal provisions in accordance with the Constitution calls for a values-based interpretation as opposed to a strict literalist interpretation that
1 Fundamental human rights have been strengthened internationally through the United Nation's (UN's) adoption of the Universal Declaration of Human Rights 1948 (herein referred to as the UDHR). In its Preamble, the UDHR states that it was drafted as "a common standard of achievement for all peoples and nations". Furthermore, the UDHR for the first time in the history of humanity set out basic civil, economic, political, social and cultural rights that every human being should enjoy. Over time, the UDHR has been widely accepted as the fundamental norms of human rights that should be respected and protected by everyone. The UDHR, together with the International Covenant on Civil and Political Rights (1966), and the International Covenant on Economic, Social and Cultural Rights (1966) are at times referred to as the International Bill of Human Rights. See generally, Humphery 1976 Wm & Mary L Rev 527-542; Darraj Milestones in Modern World History 80-88; Martin "Rights" 4617; Jayawickrama The Judicial Application of Human Rights Law 25-27.
2 Botha 1994 South African Public Law 237; Bray 2004 Perspect Educ 39.
3 Bray 2004 Perspectives in Education 39 notes that constitutional values determine the limits and nature of rights and also provides a context within which fundamental rights function.
4 United Democratic Movement V President of the Republic of South Africa 2002 11 BCLR 1179 (CC) 19.
5 Section 1 of the Constitution. See also Roederer "Founding Provisions"13-3, 13-8 who opines that the Constitution also embodies extra textual founding provisions such as "the values of Ubuntu and transformation". Sections 39 (2) of the Constitution is a further constitutional directive for a value- based interpretation.
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dominated South Africa prior to independence.6 Notable is the text in section 39 of the Constitution, which mandates courts to interpret the Bill of Rights in a manner that
"promotes the values that underlie an open and democratic society".7 Hence, as Venter8 points out, courts are often inclined to follow a value-orientated approach in the interpretation of fundamental rights. South Africa's Constitutional Court has elaborated on the framework of values underpinning the Constitution as embodying an "objective, normative value system".9
Furthermore, it should be noted that the place of values in rights could be deduced from how some rights are protected and the rationale for the protection of such rights. For instance, the 'value element' within the right to life is the recognition and "full enjoyment of human existence, without which, life would be meaningless".10 In plain language, life itself is worth protecting and it is a requirement for one to enjoy all other rights. Such an assertion is underscored in section 11 of the Constitution.11 Values, or the rationale for the protection of rights such as the right to life and many other rights reflect, to a greater extent, the principle of natural law which demands laws to be based on morality, ethics
6 Zuma paras 15-18 (hereinafter Zuma); Dugard 1971 SALJ 181.
7 Section 39 of the Constitution reads as follows: "When interpreting the Bill of Rights, a court, tribunal or forum:
(a) must promote the values that underlie an open and democratic society based on human dignity, equality and freedom;
(b) must consider international law; and (c) may consider foreign law.
(2) 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.
(3) The Bill of Rights does not deny the existence of any other rights or freedoms that are recognised or conferred by common law, customary law or legislation, to the extent that they are consistent with the Bill".
8 Venter Constitutional Comparison 140-141. See also Roederer "Founding Provisions" 13-3, 13-8.
9 Makwanyane para 9; Zuma para 15.
10 Serfontein 2015 IJAH 11-13; Serfontein 2015 PER/PELJ 2266. See also Currie and De Waal The Bill of Rights Handbook 258-260.
11 The right to life has been acknowledged as so pertinent such that the CC abolished the death penalty in Makwanyane.
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and what is right.12 Such an understanding of law is in stark contrast to strict positive law which comprises of common law or statutes that may or may not incorporate natural law.13 A prime example is that of South Africa's segregationist Apartheid policies.14 In a bid to address such segregationist laws and policies, the Constitution prescribes values such as human dignity and equality by which all laws should be based and understood.15 Values in terms of the Constitution can either take the form of textual values (values found inside the text of section 1) or extra-textual values (values found outside the text of section 1, but within the rest of the constitutional text).16 These values, apply to all laws, including environmental law. Simply put, since values establish standards for judicial interpretation.17 It is important that courts promote the values enshrined in the Constitution when dealing with environmental law disputes. In other words, there is a need for a value-based interpretation in environmental adjudication. Such a contention is based on section 39, a constitutional directive for a value-based interpretation when adjudicating on laws.18 Section 39 in this respect gives the judiciary authority to develop values based "on an open and democratic society".19
12 Dworkin Taking Rights Seriously 47, 326, 327, 340; Finnis Natural Law and Natural Rights 26-27;
Friedrich The Philosophy of Law in Historical Perspective 59; Van Blerk Jurisprudence: An Introduction 10, 20.
13 Van Blerk Jurisprudence: An Introduction 4, 5, 13; Hart The Concept of Law 140, 183; Mill Utilitarianism 70-71; Davis 2004 Acta jurid 47, 326, 327, 340.
14 See for an example, the Extension of University Education Act 45 of 1959 which prohibited "a non- white student to register at a formerly open university without the written permission of the Minister of Internal Affairs"; the Native Building Workers Act 1951 which legalised the "training of blacks in skilled labour in the construction industry, but limited the places in which they were permitted to work". Sections 15 and 19 prohibited "blacks to work in the employ of whites performing skilled labour in their homes"; the Prohibition of Mixed Marriages Act 1949 prohibited "marriages between white people and people of other races".
15 See sections 1, 2, 7 and 8 of the Constitution.
16 Kroeze 2001 Stell LR 267; Du Plessis 2005 SALJ 608.
17 Venter 2014 Tul Eur & Civ LF 91.
18 Section 39(1) of the Constitution.
19 Section 39(1) of the Constitution. An example where the courts developed values based on an open and democratic society would be the Makwanyane case. In this case, the Constitutional Court developed Ubuntu as a constitutional value. See 2.6 below.
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While the preceding Chapter introduced the study, this Chapter will argue that, to date and as far as this research could ascertain, no constitutional value has been applied with sufficient certainty in environmental rights adjudication. It is upon this averment that this Chapter explores how constitutional values were developed in South Africa in a generic conceptual manner; what they mean; their significance, if any, especially in environmental rights adjudication. Such an exposition of constitutional values is a means to determine how ESD could be developed and applied as a constitutional value by the courts in environmental rights adjudication. The rationale adopted in this Chapter is that an analysis of constitutional values provides a practical foundation upon which to probe how ESD could be used as a constitutional value in environmental rights adjudication.