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Using Ubuntu to recognise animal rights

- Dr Sheena Swemmer

[Column] Under the SA Constitution, animals do not enjoy the same rights as humans. But Ubuntu principles can change that, writes Dr Sheena Swemmer.

In 2020, the National Council of Societies for the Prevention of Cruelty to Animals approached the High Court in Grahamstown for an urgent interdict to stop the export of 40 000 – 80 000 sheep across the ocean for slaughter at their destination in the Middle East.

The NSPCA argued that shipping live sheep across the equator is a form of severe cruelty and would never meet welfare standards as set out in the Animals Protection Act 71 of 1962. Due to the high temperatures on board these carriers and the sheep’s inability to thermoregulate, many die in transit due to circulatory and respiratory failure. Some also perish from being trampled in overcrowded conditions, and others die from being exposed to ammonia in urea, which is allowed to accumulate during the voyage without being hosed away.

Ultimately, the Court permitted the transportation of the sheep, a finding it came to after weighing the economic benefits to the exporting company and farmers in the Eastern Cape of live export, against what it saw as ‘manageable’ animal welfare issues.

I argue that until animals are granted the enjoyment of certain rights under the South African Constitution, they will continue to endure gross mistreatment by humans despite laws to protect their interests. This is because the Constitutional rights enjoyed by humans easily trump those of animals, as they carry more legal significance than other privileges or entitlements created in law.

For example, and in the instance of the above case, the rights of humans to work and carry out business or trade were a critical factor, ultimately overriding the animals’ welfare interests. Yet, if animals had rights entrenched in the same way as humans, it would be more difficult to limit those rights.

Animal rights | Curiosity 17: #Democracy ©

Entrenching animal rights

The courts have not interpreted the rights set out in the Constitution to apply directly to animals. Even rights in respect to an environment, of which animals are deemed to form part, only applies directly to human interests. The provision states that “everyone has the right to have the environment protected, for the benefit of present and future generations” – with courts interpreting “everyone” to only include humans.

Given that judges predominantly adopt an anthropocentric interpretation – that is, they consider human beings the most significant entities in the Universe – when giving content to rights in the Constitution, a mandatory framework which endorses, emphasises and guides judges into recognising animal rights must be applied to the interpretation process.  

Section 39 of the Constitution provides the interpretative techniques that judges must adopt when interpreting what a right means or to whom it applies. The Section states that when a court interprets a right, it must “promote the values that underlie an open and democratic society based on human dignity, equality and freedom”.

Section 1 of the Constitution sets out the values, which, for example, include human dignity, equality, the advancement of human rights and freedoms, non-racialism, non-sexism, and the supremacy of the Constitution and the rule of law.

Adjudication by Ubuntu

In the first Constitutional Court case, S v Makwanyane (which declared the death penalty unconstitutional), the court explicitly acknowledged Ubuntu as a value, although it was not referred to as a value in the Constitution itself.

Ubuntu is a moral theory that includes animals as bearers of moral status, which means having a right to have your interests realised and protected because you have value. All those individuals who share a common value will also have their interests equally realised and protected. In the case of Ubuntu, the ability to belong to a community is valuable.

A famous maxim for describing is that “I am because we are”, highlighting individuals' connectedness and interdependence. For many theorists, including myself, being part of a community is not dependent on your being a human. Instead, being part of a community is dependent on individuals having the potential to interact with other members in a cooperative and caring way.

If animals form part of the community, then they, too, have value under and would have a claim to the protection of their interests. In terms of Section 39 and the findings of the Constitutional Court, Ubuntu is one of the values or tools that must be used to interpret rights. If Ubuntu is to be truly reflected within the interpretation of the rights in the Constitution, then animals also will have a claim to certain rights that protect their interests.

Many animal species work cooperatively and show a sense of care and empathy for others. For example, Asian elephants live in closely bonded, family-centric units and display a wide range of other-directed, often cooperative behaviour. Studies also show that mice indicate greater empathy for their ‘cage mates’ than towards strange mice, thus having a form of affinity for their community.

Equalising animal and human needs

The court has endorsed Ubuntu as a value and thus an interpretive tool many times, including recently in King N.O. v De Jager. In this case, the Constitutional Court said, “[t]his Court has affirmed Ubuntu as a principle in our law which should inform all forms of adjudication. At the heart of Ubuntu is the idea that a society based on human dignity must take care of its most vulnerable members and leave no one behind. It emphasises the adage that none of us are free until all of us are free”.

When faced with the inherently inhumane conditions associated with the live export of sheep, a court correctly applying a Section 39 interpretation of rights would be required to include Ubuntu in their approach and consider animals’ and their human counterparts’ interests equally. The balancing exercise would then take place where the animal and human needs have equal weight, in which case the animals would have a stronger basis in law to compete with human interests.

  • Dr Sheena Swemmer currently works at the Centre for Applied Legal Studies at Wits, where she is the Head of the Gender Justice Programme. She is both a researcher and a practising human rights attorney. Her research focuses on violence against women, children and animals, and the law.
  • This article first appeared in Curiosity, a research magazine produced byWits Communications and the Research Office.
  • Read more in the 17th issue, themed: #Democracy, we turn to our academics and professional staff for their research, perspectives and commentary on both the progress and shortcomings in our democracy, and democracies elsewhere.