The justiciability of unenumerated constitutional rights is understandably controversial. Cases decided by the Supreme Court of the United States many decades ago such as Griswold v Connecticut and Roe v Wade remain contentious to this day, despite being firmly entrenched in law. In Griswold the Court held that there existed a right to privacy and in Roe a right for a woman to choose to have an abortion. Neither of these rights can be explicitly found in the American Bill of Rights. But the Ninth, Tenth, and Fourteenth Amendments to the US Constitution do allow one to construe such rights as being protected and justiciable. A similar situation seems to exist in South Africa.
In the 2021 judgment of Esau v Minister of Cooperative Governance and Traditional Affairs, the Supreme Court of Appeal dismissed most of the applicants’ arguments against government’s COVID-19 lockdown regulations and thus, on the whole, found in favour of government. But the Court did make an interesting remark per Plasket JA:
“ I accept too that regs 28(1), 28(3) and 28(4) also infringe the fundamental right to human dignity to the extent that they limit the freedom that everyone has to make their own decisions, as consumers, as to what goods they wish to purchase. These regulations also infringe the fundamental right to freedom of trade, occupation and profession – the right to ‘perform activities by means of which a livelihood is pursued’. This right is infringed in that people may only practice their chosen trade, occupation or profession to the extent permitted by the regulations.” (my emphasis, citations omitted)
The Court here is recognising, essentially, that the right to human dignity contained in section 10 of the Constitution protects “the freedom that everyone has to make their own decisions” — freedom of choice.
This is hardly the first time that freedom has been associated with dignity in South African jurisprudence. In the 1995 Constitutional Court case of Ferreira v Levin, Ackermann J remarked inter alia at para 49:
“An individual’s human dignity cannot be fully respected or valued unless the individual is permitted to develop his or her unique talents optimally. Human dignity has little value without freedom; for without freedom personal development and fulfilment are not possible. Without freedom, human dignity is little more than an abstraction. Freedom and dignity are inseparably linked. To deny people their freedom is to deny them their dignity. Although freedom is indispensable for the protection of dignity, it has an intrinsic constitutional value of its own.”
In MEC for Education: KwaZulu-Natal v Pillay, Langa CJ remarked for the Constitutional Court in 2007 at paras 63-64:
“Freedom is one of the underlying values of our Bill of Rights and courts must interpret all rights to promote the underlying values of ‘human dignity, equality and freedom’. These values are not mutually exclusive but enhance and reinforce each other. […] A necessary element of freedom and of dignity of any individual is an ‘entitlement to respect for the unique set of ends that the individual pursues.’ One of those ends is the voluntary religious and cultural practices in which we participate. That we choose voluntarily rather than through a feeling of obligation only enhances the significance of a practice to our autonomy, our identity and our dignity.” (citations omitted)
In Barkhuizen v Napier from the same year, the Constitutional Court, per Ngcobo J reiterated at para 57:
“Self-autonomy, or the ability to regulate one’s own affairs, even to one’s own detriment, is the very essence of freedom and a vital part of dignity.”
It appears to be beyond dispute that, as far as the two highest courts have been concerned since 1995 to this year — and correctly in my view — South Africans’ freedom of choice is a constitutionally-protected right, despite it not being enumerated in the Bill of Rights. Whether it is proper to be embedded in the right to dignity, rather than the right to freedom and security of the person (section 12 of the Constitution), is an academic point that is up for debate.
In other words, what fills the voids between the various enumerated rights is not a residual government power to regulate that which is not explicitly protected, but rather a residual, “catch-all” right to freedom of choice on which litigants can fall back if there is no other constitutional right to utilise as a cause of action. How this would play out in practice remains to be seen.
Indeed, the courts have been all too happy, eager even, to allow government to limit this freedom of choice — sometimes even without applying the necessary section 36(1) limitations analysis. But that the courts have accepted this phenomenon in principle, in my view, means that any legislation or regulation adopted by any sphere of government that detrimentally affects freedom of choice must be justified according to section 36(1) as a limitation on the right to human dignity. From a legal policy perspective, it is hoped that litigants bare this in mind.