According to the Constitution, everyone has the prerogative to human dignity and to have that dignity respected and protected. Human dignity is one of the central and core values on which the Republic of South Africa’s Constitution is based and founded.
As it affirms human dignity as a foundational value, the South African legal system is firmly in line with the development of constitutional jurisprudence in the aftermath of apartheid.
In S v Makwanyane O’Regan J stated that:
Identifying a right to dignity is an affirmation of human beings’ inherent worth: they are entitled to be treated with respect and concern. As a result, this right serves as the foundation for many of the other rights enumerated in the Bill of Rights.
In S v Makwanyane, Chaskalson CJ echoed the above statement, saying, “The right to life and independence is the most essential of all human rights, and the basis of all other personal rights in the Bill of Rights.” We must respect these two rights over all else if we are to live in a world based on the recognition of human rights. The appreciation of human rights is on par with the principles of democracy and personal protection. Merely stated, the recognition of the importance and worth of all people as members of society, regardless of status, color, creed, faith, or tradition, is the essence of the right to human dignity. It is the basis of a person’s fundamental rights to equality and physical integrity, as well as all other constitutional rights. As a result, section 10 compels women and children to exercise their human dignity rights in much the same way that men do. As a result, reverence and security for the personal rights of female children and women necessitates their ability to choose who and with whom they marry.
In Dawood v Minister of Home Affairs, the court held that:
For many, if not most, individuals, the decision to enter into and maintain a marital partnership is a matter of defining importance, and prohibiting the formation of such a relationship if it impairs an individual’s desire to find personal fulfillment in a vital aspect of life. Legislation that restricts the right to enter a marital partnership isn’t the only one that violates the right to integrity.
The girl’s right to human dignity, as enshrined in the Bill of Rights, is evidently violated when she is thwalae’d without her consent. The right of dignity, on the other hand, could not be said to have been infringed where she was thwalae’d according to schedule and a previous contract with the suitor.
O’Regan J in Dawood v Minister of Home Affairs stated: The Constitution indeed protected the rights of persons to freely marry and to raise a family.
