As stated above, the Constitution making process was twofold. First, an Interim Constitution was adopted in 1993 to pave way for the adoption of a final Constitution by a democratically elected Constitutional Assembly.88 The Interim Constitution explicitly introduced the notion of values through section 35(1), read with section 35(3).89 Section 35 (1) states that:
In interpreting the provisions of this Chapter a court of law shall promote the values which underlie an open and democratic society based on freedom and equality and shall, where applicable, have regard to public international law applicable to the protection of the rights entrenched in this Chapter, and may have regard to comparable foreign case law.90
In giving effect to section 35(1), section 35(3) reads that:
In the interpretation of any law and the application and development of the common law and customary law, a court shall have due regard to the spirit, purpose and objects of this Chapter.91
However, the Interim Constitution did not articulate what the values that underlie "an open and democratic society" could be.92 Therefore, what ensued was a creative set of recommendations from a number of scholars and, the constitutional energetic endeavour
88 See Klug 2000 SAJHR 145-149.
89 Du Plessis and Corder Understanding South Africa's Transitional Bill of Rights 110-113; Van Wyk 2000 Constitution and Law IV: Developments in the Contemporary Constitutional State 19.
90 Section 35(1) of the Interim Constitution.
91 Section 35(3) of the Interim Constitution.
92 Although the Interim Constitution only recognised values in a single section, it allowed for a "broader search for and application of constitutional values". Commenting on the wording of section 35, Van Wyk 2000 Constitution and Law IV: Developments in the Contemporary Constitutional State asserts that section 35(1) "was simply understood to have a two-fold role: first, to guide the courts in interpreting the Constitution (including the Bill of Rights- and not the other way round); second, to incorporate values associated with a democratic order into the Constitution (and the Bill of Rights)".
When compared to the Interim Constitution and "judging by the number of times the word 'values' appears in it" ["One finds 'values' in the plural in the preamble and in sections 1, 7(1), 39(1), 143(2)(a), 195(1) and the heading of the section, 195(3) and 196(4)(a), (d) and (e)". Where the word "appears in singular form, the word 'value' deals with more mundane matters such as the market value of land (s 25(3)), the value of the Rand (s 224(1)), and value added tax". Sections 228(1) and 229(1) of the Constitution gave prominence to values. "In doing so, it converted the narrow formal base on which values rested in the 1993 Constitution, a single subsection directing the courts in their understanding of the Bill of Rights, to the plinth course of the whole constitutional structure". See also Du Plessis and Corder Understanding South Africa's Transitional Bill of Rights 119-120.
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to put flesh on the bone.93 Thus, even before the coming into force of the Interim Constitution, Botha94 and Erasmus95 listed possible constitutional values that could underlie "an open and democratic society". Botha96 identified national unity, equality, limited government and liberty as "values and principles" in the Interim Constitution.
Erasmus97 referred to the Interim Constitution as "basic-values-oriented". To Erasmus, the constitutional principles enumerated in schedule 4 of the Interim Constitution reflected values.98 He went on to single out constitutionalism, democracy, equality, the freedom of information, the rule of law, the separation of powers, freedom, the protection of fundamental rights, an open society and the independence of the judiciary as constitutional values.99
Like Botha, Erasmus100 also reiterates that constitutional values should always be viewed against the backdrop of our past. In Nishihara's words, constitutional values in South Africa constitute an effort to "heal the division of the past, as it reads in the preamble of the final and current Constitution".101 Nishihara proceeds to note that healing the division of the past is an import of constitutional values.102 That is to say, without constitutional values, constitutional practice faces the risk of preferring certain constitutional principles and ideologies in a biased manner. This means that such a legal system would pervert values and rights into something that legitimises injustice in furtherance of constitutional law. This would apply if, for instance, democracy as a value justifies a dictatorship founded on a one-way popular election (just like Hitler's regime which was defended and
93 Cockrell 1996 SAJHR 1.
94 Botha 1994 South African Public Law 242-243. Also see Botha The Legitimacy of Law and the Politics of Legitimacy 331-348, and in general chapter 5 of the thesis.
95 Erasmus "Limitation and Suspension" 629.
96 Botha 1994 South African Public Law 241-243.
97 Erasmus "Limitation and Suspension" 633-637.
98 Erasmus "Limitation and Suspension" 633-637, 636. See also schedule 4 of the Interim Constitution titled 'Constitutional Principles' which enumerates a lengthy set of principles that form the basis of the Interim Constitution.
99 Erasmus "Limitation and Suspension" 633-637, 636.
100 Erasmus "Limitation and Suspension" 636.
101 Nishihara 2001 PER/PELJ 11.
102 Nishihara 2001 PER/PELJ 11.
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justified to be democratic), or if, for instance, equality as a value is recognised "by state planning which guarantees perfect equality of result, rejecting human freedom,"103 or the freedom of the judiciary to make ground-breaking pronouncements as was the case with apartheid.104
For this reason, Erasmus105 advances that a system of constitutional values requires courts
"to give concrete meaning to constitutional values in the context of specific disputes".
Cockrell106 avers that the Constitutional Court has, with vigour, given concrete meaning to constitutional values. However, this thesis contends that much needs to be done by the judiciary in discharging its role of giving content to values in environmental rights adjudication as mandated by section 35 (1) of the Interim Constitution and section 39 of the Constitution.107 In this regard, it should be noted that, although the Interim Constitution only mandated courts to "promote the values which underlie an open and democratic society", it nonetheless avoided to lucidly articulate on what these constitutional values could be.108
On this note, Van Wyk109 contends that the Interim Constitution, by its indefinite wording, has given constitution makers, writers, applicators, interpreters, commentators, and onlookers the latitude to expand on the meaning of 'values' over a conceptual backdrop strikingly distinct in assumption, emphasis, understanding, tradition and experience. Van Wyk110 proceeds to state that given the suggestions for some of the values for the Interim Constitution, the meaning of 'values' had been stretched to a point where 'values' overlapped into other words and meanings, such that they no longer met the distinct
103 Nishihara 2001 PER/PELJ 11, 12.
104 See section 17(3) of the General Laws Amendment Act.
105 Erasmus "Limitation and Suspension" 636.
106 Cockrell 1996 SAJHR 37.
107 Particularly in environmental right adjudication. See 2.6 below where I submit that the judiciary is yet to develop and give content to ESD as a constitutional value entrenched in section 24 of the Constitution.
108 See section 35 of the Interim Constitution.
109 Van Wyk 2000 Constitution and Law IV: Developments in the Contemporary Constitutional State 20.
110 Niewyk and Nicosia The Columbia Guide to the Holocaust 20.
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profile outlined in the dictionary. Van Wyk111 then refers to the Collins dictionary which defines values as a person's or society's moral standards. In this respect, it is essential to note that stretching the meaning of values in the Interim Constitution to a point where they overlap into other words could be justified by the argument that although the dictionary is a convenient and obvious starting point, it however, is not the final authority over interpretation or meaning. In other words, and as argued below, constitutional values need not have a precise or dictionary definition.
Van Wyk112 advances an interesting argument on the significance of the constitutional values in the Constitution. That is to say, the author asserts that the Constitution has perverted the concept values, although to a mild extent.113 The author begins by laying out the lofty and oft-quoted section 1 of the Constitution. For the purpose of section 1's relevance throughout this whole Chapter, it will be cited in full below:
The Republic of South Africa is one, sovereign, democratic state founded on the following values:
(a) Human dignity, the achievement of equality and the advancement of human rights and freedoms;
(b) Non-racialism and non-sexism;
(c) Supremacy of the constitution and the rule of law; and
(d) Universal adult suffrage, a national common voters’ roll, regular elections and a multiparty system of democratic government, to ensure accountability, responsiveness and openness.114
Van Wyk115 concedes that "human dignity, equality, human rights and freedoms and universal adult suffrage could be values". The author proceeds to state that his argument that endorses the aforementioned as values is not influenced by the fact that these values
111 See Van Wyk 2000 Constitution and Law IV: Developments in the Contemporary Constitutional State 20 who refers to meaning number 5 of the Collins Concise English Dictionary (2019) which defines values as "(pl.) the moral principles or accepted standards of a person or group".
112 Van Wyk 2000 Constitution and Law IV: Developments in the Contemporary Constitutional State 20.
113 Van Wyk 2000 Constitution and Law IV: Developments in the Contemporary Constitutional State 20.
114 Section 1 of the Constitution.
115 Van Wyk 2000 Constitution and Law IV: Developments in the Contemporary Constitutional State 20.
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also amount to clear rights to "human dignity",116 "equality",117 the enjoyment of
"freedoms"118 and "universal adult suffrage".119 Van Wyk120 further states that "non- racialism and non-sexism sound like typical values"; whereas, supremacy of the constitution is an unequivocal fact.121 The rule of law, Van Wyk adds, is a collection of values, norms and principles with soft edges.122 In other words, what Van Wyk123 seeks to contend is that the rule of law represents or embodies values, and can thus not be a value. Van Wyk's argument probes if the rule of law can be both a collection of values, norms and principles; and also constitutional value? This line of inquiry, however, is not part of the scope of this thesis.
In addition, Van Wyk124 avers that it is difficult to fathom the trio of a "national common voters' roll, regular elections and a multiparty system of democratic government" as constitutional values, save for when one reads them together with the phrase "to ensure accountability, responsiveness and openness". However, the author prefers
"accountability, responsiveness and openness" as constitutional values.125 In addition to his stimulating argument, Van Wyk poses a number of thought provoking questions; Is equality the constitutional value, or is the achievement of equality the constitutional
116 Section 10 of the Constitution states that "Everyone has inherent dignity and the right to have their dignity respected and protected".
117 Section 9(1) of the Constitution states that "Everyone is equal before the law and has the right to equal protection and benefit of the law".
118 Section 9(2) of the Constitution states that "Equality includes the full and equal enjoyment of all rights and freedoms. To promote the achievement of equality, legislative and other measures designed to protect or advance person, or categories of persons, disadvantaged by unfair discrimination may be taken".
119 Section 19(3) of the Constitution states that "Every adult citizen has the right: (a) to vote in elections for any legislative body established in terms of the Constitution, and to do so in secret…".
120 Van Wyk 2000 Constitution and Law IV: Developments in the Contemporary Constitutional State 20- 21.
121 See section 2 of the Constitution which states that "This Constitution is the supreme law of the Republic; law or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled".
122 Van Wyk 2000 Constitution and Law IV: Developments in the Contemporary Constitutional State 21.
123 Van Wyk 2000 Constitution and Law IV: Developments in the Contemporary Constitutional State 21.
124 Van Wyk 2000 Constitution and Law IV: Developments in the Contemporary Constitutional State 21.
125 Van Wyk 2000 Constitution and Law IV: Developments in the Contemporary Constitutional State 21.
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value?126 Is universal adult suffrage a constitutional "value, or that which it is intended to help assure, or both"?127 To Van Wyk,128 "the achievement of equality and the advancement of human rights and freedoms" reflects process as opposed to values.
Although Van Wyk's argument is quite interesting, this thesis posits that the advancement of human rights and freedoms or the achievement of equality could reflect constitutional values provided they can be applied as a standard of good that sets out requirements for the Constitution's desired interpretation and application.129
Section 195 of the Constitution also makes reference to constitutional values by asserting in subsection 1 that public administration must be regulated by "the democratic values and principles enshrined in the Constitution".130 When sculpted against section 1 of the Constitution, Van Wyk131 contends section 195 and the principles mentioned therein could
126 Van Wyk 2000 Constitution and Law IV: Developments in the Contemporary Constitutional State 21.
See also Albertyn and Kentridge 1994 SAJHR 149 who argue that "[e]quality is a value foundational to the Constitution of the Republic of South Africa 1993".
127 Van Wyk 2000 Constitution and Law IV: Developments in the Contemporary Constitutional State 21.
See also Venter 1998 PER/PELJ 27.
128 Van Wyk 2000 Constitution and Law IV: Developments in the Contemporary Constitutional State 21.
See also Venter 1998 PER/PELJ 27.
129 Also see Venter 2001 PER/PELJ 6; Venter Global Features of Constitutional Law 56; Venter 2014 Tul Eur & Civ LF 91 for a discussion of values as standards or measures of good.
130 Section 195 of the Constitution is titled "Basic values and principles governing public administration".
Section 195(1) particularly reads as follows: "Public administration must be governed by the democratic values and principles enshrined in the Constitution, including the following principles:
a. A high standard of professional ethics must be promoted and maintained;
b. Efficient, economic and effective use of resources must be promoted;
c. Public administration must be development-oriented;
d. Services must be provided impartially, fairly, equitably and without bias;
e. People's needs must be responded to, and the public must be encouraged to participate in policy- making;
f. Public administration must be accountable;
g. Transparency must be fostered by providing the public with timely, accessible and accurate information;
h. Good human-resource management and career-development practices, to maximise human potential, must be cultivated; and
i. Public administration must be broadly representative of the South African people, with employment and personnel management practices based on ability, objectivity, fairness, and the need to redress the imbalances of the past to achieve broad representation".
131 Van Wyk 2000 Constitution and Law IV: Developments in the Contemporary Constitutional State 21.
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instead be stated as values. He proceeds to state that when considering the merits of his argument,
one is tempted to think aloud: are some of the values in section 1 perhaps democratic principles, rather than values? Or, to push the point to some conclusion: can every reference in the Constitution to 'values' safely be read to mean (a) 'values' in the typical sense and (b) ideas and principles which are not strictly speaking values, but which bolster democracy, an open society, human dignity, freedom, equality, accountability and so on?132
Van Wyk133 immediately states that his argument is not meant to accuse "the framers of the Constitution of slipshod drafting", but is just asserting that the Constitution has in some minor way "devalued constitutional values". His final critique is that "a common voters' roll will never be a constitutional value", notwithstanding the Constitution's proclamation that it is.134 However, this thesis notes that the values enumerated and pronounced in the Constitution ought to be applied and promoted regardless of the questionable diction and choice of phrasing in the language of values. As Du Plessis135 rightly argues:
The open community of constitutional interpreters presupposes that language allows for more than one (equally) valid reading of the Constitution.
It should be noted however that, the Constitution's positive contribution to 'values' should not be overlooked as a result of Van Wyk's argument above. The Constitution not only declares values as interpretive aids,136 but also declares that constitutional values must be respected and promoted.137 Put differently, the Constitution binds all organs of state, all courts of law, all institutions of civil society, all public servants, and all groups and
132 Van Wyk 2000 Constitution and Law IV: Developments in the Contemporary Constitutional State 21.
133 Van Wyk 2000 Constitution and Law IV: Developments in the Contemporary Constitutional State 21.
134 Van Wyk 2000 Constitution and Law IV: Developments in the Contemporary Constitutional State 21- 22.
135 Du Plessis 1996 SAJHR 220.
136 Section 36 of the Constitution; Venter Constitutional Comparison 141.
137 See section 39 (2) of the Constitution which 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". The objects of the Bill of Rights can be deduced from section 1 which entrenches the values that underlie the drafting of the Constitution. See also sections 2, 7(2), 8, 39 and 195.
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persons in South Africa,138 to respect the values espoused within it. To put it simply, because the language on values espoused in the Constitution elevates it high above any legal document, all persons in South Africa are then mandated to respect the values within the Constitution.
In terms of its Preamble, the Constitution was developed to be the principal official proclamation of our goals and hopes as a nation: "we, the people of South Africa".139 Borrowing from the oft-quoted dictum of S v Acheson, the Constitution is verily envisioned to be the mirror of South Africa's soul.140 The Preamble further mandates everyone to establish a society that is founded on democratic values, and that we therefore accept the foundational constitutional values of our democratic state141 (notwithstanding the reservations propounded above on how the Constitution articulates these values). This means that everyone ought to respect the different fundamental rights enumerated in the Bill of Rights and that all persons entrusted with governing South Africa, in whatever capacity, do so in a manner that is value conscious.142
It is therefore incumbent on academics and the legal profession at large to make the Constitution relevant and applicable. Former Chief Justice, Arthur Chaskalson alludes to this in his Bram Fischer lecture.143 Although, this section of his lecture made headlines, it is worth reiterating:
The Constitution offers a vision of the future. A society in which there will be social justice and respect for human rights, a society in which the basic needs of all our people will be met, in which we will live together in harmony, showing respect and concern for one another. We are capable of realising this vision but in danger of not doing so. We seem to have temporarily lost our way. Too many of us are concerned about what we can get
138 See sections 2, 7(2), 8, 39 and 195 of the Constitution.
139 The Preamble of the Constitution reads as follows: "We, the people of South Africa… adopt this Constitution as the supreme law of the Republic so as to- Heal the divisions of the past and establish a society based on democratic values, social justice and fundamental human rights…".
140 See Mahomed AJ's oft-cited dictum in the Namibian judgment of S V Acheson 1991 NLR 1 (NmHC) 10; 1991 2 SA 805 805 813.
141 Preamble of the Constitution states that "We, the people of South Africa… adopt this Constitution as the supreme law… based on democratic values, social justice and fundamental human rights.
142 See section 195 and 196 of the Constitution.
143 Chaskalson 2000 SAJHR 205.