Interpretation is a matter of law, not fact . It is not an exact science or mechanical process in which meanings are determined with clinical or arithmetical precision of join-the-dots or paint-by-numbers . Interpretation is a craft entailing giving practical meaning to a law text by applying juridical logic and integrated, sound reasoning, and relying on the aids, maxims and canons of interpretation crystallized in judicial precedent . Interpretation also does not occur in stages; it is a “unitary exercise” . An interpretation of the spirit, purport and objects of the Bill of Rights involves an interpretation of a provision in the Bill, namely, s 9(2). Thus, s 39(1) thereof is triggered . Section 39(1) introduced a new interpretive methodology onto the legal landscape of SA that is different from that which applied during its apartheid era when Parliament reigned supreme and an executive minded judiciary was geared to interpreting provisions by giving effect to parliamentary intent. The new interpretive methodology embraced by s 39 is unrelated to whatever intention those responsible for the words may have had at the time they selected them . Section 39 does not identify authorial intention as relevant to any form of interpretation, whether in relation to a statute or the Bill. Indeed, interpretation of any provision in the Constitution does not entail giving effect to its framers’ intention .
By virtue of constitutional supremacy, discussed below at para 3 1 4, the Constitution lies at the centre of the law pertaining to interpretation of all legal instruments. The Constitution contains an objective, normative legal framework . It is underpinned by a set of higher, fundamental values of an open and democratic society based on human dignity, equality and freedom. The Constitution envisages an original method of interpretation that will uncover the values immanent in a law text . The values, discussed below at para 3 1 7, are guiding principles and stimuli of constitutional and statutory interpretation . A value-based construction is referred to as teleological interpretation. This modality fosters the development of a normative constitutional jurisprudence and promotes the fullest protection of constitutional guarantees [14,15]. The enquiry into constitutional values is, thus, deeply imbricated in the judicial process .
Constitutional texts and values are integrally linked - they work hand in hand to provide the protections promised by the Constitution . Therefore, a value-laden interpretation of a law text is not a licence to ignore the language of a law text in favour of a generalised resort to constitutional values . The result of textual disrespect is not interpretation but divination . Owing to the separation of powers, a key constitutional principle, interpreters may not cross the Rubicon and engage in legislating . They must interpret in a manner that is consonant with s 39 of the Constitution . The text of the Bill remains constant until it is formally amended in the manner prescribed by the Constitution in s 74. This is a hallmark of democracy. Thus, whilst the provisions of s 39(2) are open to interpretation, no words may be read into its text that are not expressly written therein, nor may words written therein be ignored or overlooked .
As indicated above, textual respect is an important interpretive principle. Thus, every reading of s 39(2) must remain faithful to its actual wording . Interpretation may also not involve a distortion of language used but rather give words their plain, ordinary, natural, dictionary meaning . This is the meaning that they bear in common parlance or ordinary colloquial speech . This is referred to as grammatical (or textual) interpretation. However, grammar, sentence structure (syntax) and dictionary meanings are “merely principal (initial) tools rather than determinative tyrants” . When interpreting words in s 39(2), a balance must be struck between its language and its context . Interpretation does not entail excessive peering at a text “without sufficient attention to the contextual scene” . This is referred to as contextual (or systematic) interpretation.
The Constitution is an organic, living instrument whose texts are not precise mathematical formulas. Their significance and meanings are to be gathered not simply by taking the words and a dictionary but by considering their origin and the line of their growth . The Constitution effected a shift from strictly textual to contextual interpretation. In law, context is everything . Words are meaningless if read in the abstract or in isolation, or divorced from context . A word “take[s] its colour, like a chameleon, from its setting and surrounds”, even though its meaning may be clear and unambiguous [32,33]. Contextualist interpretation is not limited to the language of the text “as throwing light of a dictionary kind on the part to be interpreted” .
Contextualist interpretation of s 39(2) entails ascribing meaning to its words according to, inter alia, legal traditions and the linguistic usages thereof . This requires consideration of the relevant and admissible context of its text. That context is influenced by various factors. These include (i) The actual words used in s 39(2) and its interplay with other provisions in the Constitution “which may reveal the purpose of the interpreted section” , (ii) “The consequences in relation to justice and convenience of adopting one view rather than another” , and (iii) Extraneous indiciae . The latter includes evolving standards and the normative framework of the Constitution, the aims of an open and democratic society, the relevant social, economic, historical and institutional factors, the mischief aimed at, and the state of the law existing at the time of the interpretation [39-42]. These factors are dealt with below because they assist in shedding light on the meaning of the phrase in s 39(2) forming the subject of this article.
When interpreting the relevant text in s 39(2), effect must be given to a meaning thereof that is reconcilable with the Constitution’s underlying aims. This is referred to as purposive interpretation, a process that gives effect to a meaning that best advances the fulfilment of the Constitution’s broader aims and underlying objectives (discussed below at para 3 1 2) . Effect must not be given to a meaning that would stultify the operation of the Constitution or the attainment of its aims . Purpose “plays an important role in establishing a context that clarifies the scope and intended effect of a law” . Purpose is, however, distinguishable from mischief . Constitutional provisions are to be interpreted broadly, liberally and purposively so that the Constitution can “play a creative and dynamic role in the expression and the achievement of the ideals and aspirations of the nation” . To construe s 39(2) widely requires consideration of, inter alia, the standards, values, spirit, ethos and tenor of the Constitution:  they must transcend and suffuse the interpretive process . Purposive interpretation, thus, enables the phrase forming the subject of this article to be construed in accordance with its transformative potential.
Historical background of the Constitution and Bill of Rights
As stated above, contextualist interpretation of a constitutional text in s 39(2) requires that consideration be given to SA’s legal and institutional history. This is a useful starting point. South Africa is a Rechtsstaatthat, in relative terms, is a fledgling democracy born on Freedom Day, 27 April 1994 . Democracy was preceded by apartheid, a repressive political order declared to be a crime against humanity . Apartheid was geared to social engineering through a brutal, violent onslaught on human rights that created a system of ‘racial oligarchy’ and privilege for a White minority, and disadvantage for the Black majority [52,53]. The apartheid regime lacked a human rights culture. Apartheid laws stripped Blacks of their humanity, deprived them of freedom in all its manifestations, and their dignity ‘was routinely and cruelly denied’ [54,55]. Apartheid institutionalised manifestly unjust discrimination . Its fault lines - a deeply divided, vastly unequal citizenship with segregated property, political and socio-economic rights - ‘generated gross violations of human rights, the transgression of humanitarian principles in violent conflicts and a legacy of hatred, fear, guilt and revenge’ . The edifice of apartheid is a ‘fundamental “mischief” to be remedied’ through the Constitution, a ‘promissory note’ of a better future for all. This is a relevant consideration in contextualist interpretation [58,59].
Apartheid created class cleavages between the economically marginalised Black communities, and the rest of society. Apartheid left a deeply polarised society in its wake that continues to suffer from deep disparities in wealth, as well as various social and economic ills (such as unemployment, inadequate social security, and a lack of access to quality basic and further education). Under apartheid, many Blacks lived in undignified, deplorable conditions. They aspired to a life with dignity, equality and freedom. These are human rights that are part of the core moral code common to all democratic societies. Human rights are inviolable, inalienable, universal claims necessary to grant every human being a decent life . It is against this historical background that SA’s sui generis interim (1993) and final (1996) Constitutions were penned.
Objectives of the Constitution
The Constitution of the Republic of South Africa, 1993 ushered in a new system of governance. It transformed SA from rule by parliament to a representative democracy . Its architects crafted universally accepted principles that laid the foundation upon which the text of the final Constitution is built . On 4 February 1997, the final (1996) Constitution superseded the interim (1993) Constitution. These instruments pioneered change in all facets of life including, social, economic, political, cultural and legal. Equality pervades and defines the ethos and spirit on which the Constitution is premised . The constitutional architecture is both ‘backward- and forward-looking’ . Whilst it seeks to redress the injustices of apartheid that divided society in SA into disparate classes, it also seeks to nurture SA into becoming a just and equal society for future generations. Thus, the spirit of transformation pervades the constitutional project. This project entails a lengthy process of transition from a diverse society based on inequality, division, injustice and exclusion from the democratic process to one respecting the dignity of all, placing a premium on human rights and freedoms, and embracing a representative, participatory process of governance . The reconfiguration of SA fashioned along these lines is enunciated in the Constitution’s Preamble as an objective to ‘build a united and democratic South Africa able to take its rightful place as a sovereign state in the family of nations’.
The final Constitution is not a narrow ideological formulation but a solid premise upon which a broad-based system of restorative and corrective social justice is to be built . It is a codification of a common set of norms, objective values and democratic principles that are the true strands from which the fabric of a new socio-politico-legal order is woven. Since the Constitution’s underlying aims are not set out in any particular provision, they are to be distilled from that instrument read as a whole. The Constitution’s aims and objectives are reflected by inter alia: (i) The Preamble’s expression of mutual interests and common aspirations or convictions towards transformation (discussed below at para 3 1 5); (ii) The re-definition of a common, objective, normative value system, including the subjection of government (s 41) and public administration (s 195(1)) to a set of democratic values and principles (discussed below at para 3 1 7); (iii) The displacement of parliamentary sovereignty by constitutional supremacy (discussed below at para 3 1 4); (iv) The recognition of a common South African citizenship in s 3(1); (v) The entrenchment of a Bill of Rights that rejects injustice, establishes a culture of human rights and freedoms, and advances universal rights ensconced therein by imposing, in s 7(2), duties on the State to ‘respect, protect, promote and fulfil the rights’ (discussed below at para 3 1 3); (v) The creation of an independent judiciary in s 165(2) whose make-up is designed to reflect the diversity among SA’s people (ss 174(1), (2)); and (vi) The establishment of a culture of democracy in s 234. These aims give shape and substance to the Bill, advances SA’s ‘democratic hygiene’, and serve as catalysts for transformation in all its various facets .
The Constitution is part of SA’s substantive law. Its provisions are binding and enforceable on all natural and juristic persons, arms of government, organs of state, public enterprises and public institutions. The Constitution changed the context of all legal reasoning and decision-making in SA . It commands a transformed mindset and establishes the ‘never again’ principle: never again will the right of ordinary people to freedom be permitted to be taken away . Thus, under the Constitution, it will not be business as usual. The Preamble thereof records the commitment of South Africans to the fulfilment of the Constitution’s lofty goals of achieving unity in diversity, national security, peace, social and economic justice, equality, a non-racial and non-sexist society, an improved quality of life for all citizens and freeing the potential of each person . Thus, the ethos of the 1993 and 1996 Constitutions is aptly described as a - ‘historic bridge between the past of a deeply divided society characterised by strife, conflict, untold suffering and injustice, and a future founded on the recognition of human rights, democracy and peaceful co-existence and development opportunities for all South Africans, irrespective of colour, race, class, belief or sex’ .
Role of the Bill of Rights in shaping democracy in SA
The Bill of Rights in Chapter 2 of the Constitution is the embodiment of basic human rights for citizens and non-citizens alike . Section 7(1) proclaims the Bill to be ‘a cornerstone of democracy in South Africa’. Although the Bill borrows from foreign constitutions, it has a distinctly South African flavour . It entrenches a suite of independently delineated fundamental rights deserving of protection, ‘reflecting historical experience pointing to the need to be on guard in areas of special potential vulnerability and abuse’ . The Bill is inseparable from, and inextricably linked to, the rest of the Constitution with which it shares a common heritage: they are products of the same chequered history under apartheid (discussed above at 3 1 1). That history shaped the character and transformative mission of the Bill and its content . Thus, the Bill cannot be read in isolation. Its content must be viewed as integrated within its existential context in the Constitution. In the light of their shared historical origins, the spirit, purport and objects of the Bill is integrally linked with, and influenced by, that of the rest of the Constitution.
The Bill buttresses constitutional protection by entrenching onto the legal landscape of SA a catalogue of guaranteed social, political, economic, civil and other human rights and freedoms encapsulated in s 9 to s 35. In so doing, the Bill constitutionalises certain universal rights recognised at international law . While some are ‘new’ rights in SA, others are ‘old’ rights which were denied to certain persons under apartheid . The ‘objects’ of the Bill are to be found in the fundamental rights it guarantees and the values that underlie them . The Bill also lays the ground rules for the lawful exercise of legislative and executive action affecting entrenched fundamental rights. To this end, the Bill articulates a minimum threshold that cannot be trespassed. The Bill creates an unparalleled paradigm facilitating the realisation of the Constitution’s objectives of social engineering and transformation discussed below. The Constitution and the Bill share a common conviction for remedial action aimed at redressing the legacies of past repression, political and social exclusion, inequality and dispossession . This is typified by, for example, s 25(5) that reads: ‘The state must take reasonable legislative and other measures, within its available resources, to foster conditions which enable citizens to gain access to land on an equitable basis.’ For purposes of s 39(2), when interpreting any legislation in a manner that promotes the Bill’s ‘objects’, the aforementioned objectives must be considered to the extent that they, or any of them, are legally relevant. A meaning must then be chosen which best promotes any such goal. This is part of purposive interpretation discussed above.
The Bill also seeks to ensure compliance with Art 28 of the Universal Declaration of Human Rights . In this regard, s 7(2) is instructive. It reads: ‘The state must respect, protect, promote and fulfil the rights in the Bill of Rights.’ As a concept, ‘state’ does not have a universal meaning. Its ambit must be determined within its ‘context’ . In Glenister v President of the Republic of South Africa the Court held that s 7(2) creates a duty ‘beyond a mere negative obligation not to act in a manner that would infringe or restrict a right . Rather, it entails positive duties on the State to take deliberate, reasonable measures to give effect to all of the fundamental rights in the Bill of Rights.’ This requires financial resources. The Constitution leaves it to the State to choose the means by which it will comply with its duties . Taxation is the chosen means to raise finance for governmental expenditure and human rights purposes. To ‘respect’ entails a negative duty to refrain from interfering with constitutional rights; to ‘protect’ entails a positive duty to, first, take appropriate steps to ensure that there is no unwarranted interference with the enjoyment of any constitutional right and, secondly, to provide an effective remedy against an intrusion on any such right. The State is, thus, also a guardian of rights. This is a basic tenet of a constitutional State . To ‘promote’ consists of a positive duty to advance the rights in the Bill by, for example, bringing them to a beneficiary’s attention. A fundamental right is meaningful on a practical level if its beneficiary is cognisant of the right’s existence and import. Such knowledge advances access to justice. To ‘fulfil’ imposes a positive duty to proactively develop and implement measures that will fully realise human rights. Examples are legislation enacted in accordance with a constitutional imperative (such as, Promotion of Access to Information Act and Promotion of Administrative Justice Act) [85,86].
Supremacy of the Constitution and Bill of Rights
During apartheid, law was used to enforce repression, coercion and discrimination. Under the Constitution, law is used to enforce respect for, and the protection, promotion and fulfilment of, rights. To bolster its efficacy, the Constitution proclaims its supremacy in s 2 quoted above. All law and conduct must conform to the Constitution’s strictures and prescripts. Thus, rule by the Constitution replaced Parliamentary sovereignty . Parliament ‘can no longer claim supreme power’ . It will is subservient to, and qualified by, the Constitution. This instrument, which is short on specifics and long on generalisations, outlines procedural safeguards and substantive requirements which all laws must satisfy . Non-compliance renders a law, and the process of its enactment, susceptible to nullification on review . This is part of the principle of legality, an incident of the rule of law, a founding value in s 1 . Invalidity does not operate automatically. It only follows a declaration by a court competent to grant such order . In terms of s 172(1)(a), any such declaration is made only to the extent of an inconsistency with the Constitution.
Although s 1(c) records constitutional supremacy as a founding value, it is not confined to being a mere value. Supremacy is expressed as an indisputable, inviolable rule ‘for the construction of a determinate, hierarchical relation among legal norms emanating from various, recognized sources of law’ . The unambiguous language of s 2, namely, the Constitution ‘is the supreme law’ and law or conduct inconsistent with it ‘is invalid’, proclaims constitutional supremacy as an incontrovertible fact and fundamental principle . Therefore, the Constitution is a lex fundamentalis (that is, an overarching, overriding ‘law’, superseding any other, including statutory law, common law, customary law, by-laws, regulations and rules, regardless of whether such law is of pre-constitutional vintage or enacted after the dawn of democracy).
Although the Constitution is a societal construct, it is not in the nature of a social contract, pact or other non-binding charter of norms and standards. Its enforceability and dominance on the socio-politico-legal landscape is engrained in its text. For example, s 8(3)(b) permits a court to develop rules of the common law to limit the operation of a fundamental right, provided the limitation is consistent with s 36 that is designed to combat the malpractice of State action unduly interfering with basic rights. The institution, status and role of traditional leaders under customary law are also recognised, but subject to the Constitution (s 211(1)). Customary international law is adopted as ‘law in the Republic unless it is inconsistent with the Constitution’ (s 232). The Constitution obliges members of the legislature (ss 48, 107), executive (ss 95, 135) and judiciary (Schedule 2 para 6) to swear or affirm faithfulness to the Constitution. Constitutional supremacy is augmented by s 165(5) that reads: ‘An order or decision issued by a court binds all persons to whom and organs of state to which it applies.’ The provisions referred to here exemplify constitutional pre-eminence which is also reflected by the societal values imposed by the Constitution against which all laws and conduct are tested for validity.
The pervasiveness of the Constitution is succinctly summed up in the dictum that ‘all law, including the common law, derives its force from the Constitution and is subject to constitutional control’ . Constitutional supremacy includes supremacy of the Bill whose dominance is recorded in s 8(1): ‘The Bill of Rights applies to all law, and binds the legislature, the executive, the judiciary and all organs of state.’ Thus, no law is beyond its radar. Its spirit, purport and objects infuse all laws. The pre-eminence of the Bill is also evident from s 39(3) recognising ‘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’. (my emphasis).
Transformational spirit and purport of the Constitution and Bill of Rights
The Constitution and the Bill facilitate the building of a ‘new’, transformed SA on the ruins of the ‘old’ apartheid SA. They are touchstones creating a programmatic scheme for their primary mission, namely, fulfilling social, political, legal, cultural, economic and institutional transformation by ‘redressing the historical imbalance caused by past unfair discrimination’ . Thus, constitutional provisions are transformative in nature and effect . The spirit of transition and transformation characterises the entire constitutional enterprise . The word ‘transformation’, ‘transformative’, ‘transformatory’ or other variation thereof does not appear in the Constitution. However, its transformative character, mission, effect and orientation are unmistakable . This is traceable in the following declaration of intent in the Preamble: ‘We therefore … 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; Lay the foundations for a democratic and open society in which government is based on the will of the people and every citizen is equally protected by law; Improve the quality of life of all citizens and free the potential of each person; and Build a united and democratic South Africa able to take its rightful place as a sovereign state in the family of nations.
Constitutional transformation does not have one, all-embracing meaning. It may also mean different things to different people. Transformation is not simply a declaration or other once-off event. It is a process of renewal, redevelopment, reconstruction, reconciliation and transition that will occur in the fullness of time over many decades. In this sense, transformation is an evolutionary process carried out in accordance with constitutional principles . Transformative constitutionalism is a value lying at the heart of the Constitution, an instrument whose intrinsic worth lies in it being meaningful in the lives of its beneficiaries . The Constitution and the Bill are roadmaps and compasses providing moral, ethical, economic, legal, social and political direction that navigate South Africans en route to a common national destiny . Inequality is an apartheid legacy scarring and eroding the dignity of those afflicted thereby . It is the bane of their existence. Achieving substantive, not formal, equality is at the epicentre of transformation in SA. It preoccupies constitutional thinking . Hence, s 9(2) envisages the empowerment of Blacks disadvantaged under apartheid . It reads: ‘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 persons or categories of persons, disadvantaged by unfair discrimination may be taken.’
Interpreting ‘an open and democratic society’
As stated above, when determining, under s 39(2), the meaning of ‘the spirit, purport and objects of the Bill of Rights’, s 39(1)(a) commands that the values underlying an open and democratic society must be promoted. This reinforces a dominant constitutional theme, namely, that the Constitution is a bridge between a past based on injustice and oppression, and a future premised on equality, pursuit of social justice and peace, and the recognition of human rights and freedoms. For interpretational purposes, the relevant values are those associated with the broad, normative concept of ‘an open and democratic society based on human dignity, equality and freedom’. This concept requires analysis, particularly because it recurs within the Bill. In terms of s 36(1), limitations of fundamental rights are valid only if they are ‘reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom’.
Constitutionally, SA is an open and democratic society premised on a trifecta of core values, namely, human dignity, equality and freedom. The precise meaning of ‘open and democratic society’ is unclear. It is undefined in the Constitution and case law probably because of the inherent difficulty in composing a comprehensive definition. The ‘notion of an open and democratic society is … not merely aspirational or decorative, it is normative, furnishing the matrix of ideals within which we work, the source from which we derive the principles and rules we apply and the final measure we use for testing the legitimacy of impugned norms and conduct’ . The society referred to is an abstract or ideal (Utopian) one and premised on active solidarity in which the basic needs of those living in it are catered for (such as, access to food, water, health care, social security and education) . In so doing, the quality of life may be improved for all, including the poor, social outcasts and vulnerable persons . Loosely explained, an ‘open society’ is an inclusive, diverse, pluralistic society whose members are tolerant, progressive minded, and accommodating of all, regardless of ethnic and social origin, sexual orientation, religious persuasion, culture, race, belief, gender, age, nationality or status . As for ‘democratic society’, a useful guide of its meaning emanates from Speiser v Randall,  namely, ‘a free society in which government is based upon the consent of an informed citizenry and is dedicated to the protection of the rights of all’. This meaning resonates with the Preamble that, as shown above, records the aim ‘to … [l]ay the foundations for a … society in which government is based on the will of the people and every citizen is equally protected by law’.
Based on the foregoing, the Constitution and the Bill ushered in a reborn society in which there is a ‘radical movement away from the previous state of the law' . The ethos of SA’s society is ‘democratic, universalistic, caring and aspirationally egalitarian’ . This is the antithesis of the closed, undemocratic, apartheid society that was racist, repressive, insular, authoritarian and wholly lacking of a human rights culture, ethos and spirit. Therefore, the Constitution displaced a culture of apartheid, authority and racism with a culture of democracy, human rights, openness and justification. This informs, in part, ‘the spirit, purport and objects of the Bill of Rights’.
Values of a democratic society based on human dignity, equality and freedom
Values are etched in the structure and design of SA’s democratic order. In accordance with the aim to break away decisively from a ‘past based on conflict, untold suffering and injustice’ and create a democratic, rights friendly society infused with justice and human rights, the Constitution establishes a unitary State subscribing to values, norms and principles that, being universal among open and democratic societies, place a premium on respect for and protection, promotion and fulfilment of human rights and freedoms . The Constitution has a cascading effect. Section 8(1) quoted above superimposes values in the vertical application of the Bill in relationships between State and non-State actors. Section 8(2) does likewise for its horizontal application in private relationships between non-State actors inter se . The Constitution in, for example, ss 195(1) and (3) distinguishes ‘values’ from ‘principles’. This dichotomy is important. Neither term is constitutionally defined. Constitutional values are general norms formulated rather broadly . Venter contends, persuasively, that ‘values’ do not connote something of ‘material worth’ but rather an abstract concept indicating a certain ‘standard or a measure of good’ which ‘set requirements for the appropriate or desired interpretation, application and operationalisation of the constitution and everything dependent thereupon’ . Thus, if a law or conduct fails to conform to the standards of a constitutional value, then it would mean that it conforms to standards of a lower, different, conflicting or extra-constitutional measure, thereby leading to unconstitutionality. In other words, constitutional values are the barometers or yardsticks against which law and conduct are tested for constitutional congruence. On the other hand, constitutional principles are, as Venter explains, those founded in, and which give expression to, a specific constitutional value. For example, the principle that law must be applied fairly and equitably is premised on the values of justice and equality.
The Constitution is underpinned by, and a repository of, interrelated, interdependent and indivisible values to which every person, official, organ of state, public enterprise, sphere of government and institution must subscribe and adhere. The values ‘are strong, explicit and clearly intended to be considered part of the very texture of the constitutional project’ . Section 1 lists the founding values,  namely, human dignity, [ 119] achievement of equality,  and the advancement of human rights and freedoms (s 1(a)); non-racialism and non-sexism (s 1(b)); constitutional supremacy and rule of law (s 1(c)); universal adult suffrage, a national common voters’ roll, regular elections and a multi-party system of democratic government in a unitary State, to ensure accountability,  responsiveness and openness (s 1(d)) . Other values of a mature society may be extrapolated by implication from the Constitution’s text, tone and structure . These include national unity, respect, justice, fairness, equity, democratic and co-operative governance, liberalism, diversity, inclusiveness, impartiality, judicial and institutional independence, constitutionalism, democracy, ubuntu, transformation, separation of powers, and social justice. These values are not a numerus clausus of grundnorms .
The constitutional values are not Holy cows (or sacred). They also do not give rise to duties. This because values are not discrete or enforceable rights, except to the extent that a value is elevated to the status of a fundamental right (such as, human dignity and equality) . Constitutional values are the building blocks of democracy. Values of the kind enumerated above are hallmarks of an open and democratic society contemplated by s 39(1)(a) . Values are broad concepts that include further dimensions reflecting the norms incorporated therein (such as, peace, public safety and order, national security, social security, public health, environmental protection, control over the exercise of power, effective protection of rights, privacy, and access to information) . These and other norms of an open and democratic society inform and give substance to constitutional provisions (such as, ‘the spirit, purport and objects of the Bill of Rights’). This is so because, first, values form the genesis of the entrenched fundamental rights. In other words, they animate every right, thereby giving them a constitutional shape and form that establish the right’s sphere of protected activity . Secondly, the values are authoritative guides that direct how State action must be exercised and the degree to which such action may curtail fundamental rights. Therefore, constitutional values are the substantive legal basis for evaluating whether a limitation of a right is reasonable and justifiable under s 36(1). In this way, the values operate as aids in defence of human rights .
Human dignity, equality and freedom are prominent values in the Constitution . They form the substratum of SA’s open and democratic society. Owing to grave human rights abuses during the apartheid era, this triad of values reflects, and facilitates the attainment of, the transformation aims of the Constitution discussed above . Since human dignity, equality and freedom are referred to in various constitutional provisions (such as, ss 1, 7(1), 36(1) and 39(1)(a)), they inform every aspect of legal reasoning and decision-making. The values in this trilogy are not mutually exclusive of each other. Each value enhances and reinforces the others . For purposes of constitutional interpretation under s 39(1)(a), the values of human dignity, equality and freedom are to be promoted as well as any other that is consonant with, or sourced from, this trifecta of constitutional values which have been labelled as ‘meta-values’, ‘foundational’, ‘dominant’, and ‘conjoined, reciprocal and covalent’ . The tag used to label this trilogy is irrelevant when their legal status is under consideration. The recurring reference to them in the Constitution does not mean that they, or any among them, are elevated to a position of primacy above any other value.
The Constitution does not delineate a formal ranking of constitutional values. Like constitutional rights, each value is equal in weighting, status and prominence. Any hierarchical ranking by courts would be susceptible to undue influence by a judicial officer’s own personal preferences and ideological bent. Hence, an abstract ranking ought to be avoided. The equal status of constitutional values gives each a comparative equal ranking for interpretational and other constitutional purposes. Therefore, no value will be superior over another so that, as a general rule, none would have to yield to another . However, if, in a particular instance, competing values are at play, then legal effect ought to be given to the value(s) whose protection is, in the specific circumstance, the one(s) which ‘most closely illuminates the constitutional scheme to which we have committed ourselves’ .
Public policy and society’s boni mores (‘good morals’) are rooted in the Constitution and infused with its values . To be valid, public policy and society’s morals must pass muster . They cannot be repugnant to the Constitution. The community’s convictions take on constitutional contours. They are ‘underpinned and informed by the norms and values’ embraced by the Constitution . Society’s moresevolve as social dynamics, values or conceptions change . However, despite ‘tectonic shifts in the attitudes and mores of society’, the Constitution’s text may only alter through a formal amendment that complies with the prescribed procedural requirements . The Constitution is a living instrument ‘capable of growth and development over time to meet new social, political and historical realities often unimagined by its framers’ . Tempora mutantur et nos mutamur in illis (‘times change and we change with them’). The flexibility and adaptability in the application of the Constitution is a pillar of its strength and durability. However, without an amendment to its text, the values therein do not change. But since the values are norms open to interpretation, their content is not static and may be developed incrementally by reference to ‘new’ or enlightened values that underlie an open and democratic society. This reflects their flexibility and dynamism . Also, it adds weight to their usefulness as tools of interpretation. As stated above, the Constitution provides for the development of the common law and customary law in accordance with ‘the spirit, purport and objects of the Bill of Rights’. Since values develop in the way indicated here, these laws can adapt in order to keep abreast with, and reflect, the changing social, moral and economic fabric of society in SA .
The foregoing discussion shows that whilst apartheid SA followed a culture of coercion, discrimination, secrecy and autocratic rule, the central features of the new legal order are constitutionalism, democracy, a justiciable Bill of Rights, an independent judiciary and state institutions, and accountable and transparent public administration. These features stem from the interim and final Constitutions transforming SA by inter alia (i) Replacing parliamentary autocracy with constitutional democracy, (ii) Substituting minority rule with majoritarianism, and (iii) Establishing a culture of rights, openness, constitutionality, democracy and justification. Accordingly, SA has a unitary system of law that is shaped by a supreme humanitarian oriented Constitution that aims to transform SA into an inclusive, egalitarian, tolerant, pluralistic society whose members uphold and foster values that are congruent with an open and democratic society based on the core values of human dignity, equality and freedom.
This article shows further that, by virtue of s 39(1)(a) read with (2) of the Constitution, constitutional values orientate interpreters to understand the purpose of a constitutional provision in a manner that, on the one hand, underscores respect for the Constitution’s transformational objectives and, on the other, promotes, protects or fulfils the fundamental rights in the Bill. Section 39(2) is not the fons et origo of the modalities applicable to statutory interpretation nor the development of common law or customary law. Section 39(2) merely indicates an outcome that, as a minimum, an interpretive exercise or legal development must satisfy in order to pass constitutional muster. That outcome is the promotion of ‘the spirit, purport and objects of the Bill of Rights’. Although this phrase expressly refers to the Bill and not the Constitution per se, this article shows that the former is an inseparable, integral part of the latter so that ‘the spirit, purport and objects of the Bill of Rights’ is infused by the spirit, purport and objects of the rest of the Constitution. Therefore, reference in s 39(2) to the ‘spirit, purport and objects of the Bill of Rights’ of necessity, and by necessary implication, includes the spirit, purport and objects of the Constitution read as a whole.
This article also reveals that the aforementioned phrase in s 39(2) which forms the subject of this article does not lend itself to easy interpretation. Hence, like the courts of SA, the author does not propose a precise or finite meaning of ‘the spirit, purport and objects of the Bill of Rights’ or the constituent elements thereof. This phrase is broad in its ambit and encompasses, inter alia, the normative standards, values, ethos and principles underlying the Constitution. In the light hereof, since values inform the Constitution’s ‘spirit’, by extension it informs the ‘spirit’ of the Bill. As shown above, that ‘spirit’ is, inter alia, freedom, equality, human dignity, justice, democracy, human rights and democratic values. This ‘spirit’ of the Bill is evident from, for example, s 7(1) proclaiming the Bill to be ‘a cornerstone of democracy’ that ‘enshrines the rights of all people in our country and affirms the democratic values of human dignity, equality and freedom’. As for the Bill’s ‘purport’, this may be gleaned from, inter alia, the declarations in ss 8(1) and (2), namely, that the Bill ‘applies to all law, and binds the legislature, the executive, the judiciary and all organs of state’, and that the Bill ‘binds a natural or a juristic person if, and to the extent that, it is applicable’. As for the Bill’s ‘objects’, these are to be found in, for example, the fundamental rights it guarantees and the values that underlie them. However, those rights do not operate as independent normative regimes isolated from each other. Their disparate textual protections are unified by the constitutional values immanent in them all. Thus, the relationship between the rights and their values is ‘osmotic rather than hermetic’ .