Section 39 of the Constitution: Interpreting the Bill of Rights

Area of Law: Constitutional Law
Reading Time: 14 minutes

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🎯 What is Section 39?

Section 39 is the interpretation clause of the Bill of Rights — it tells courts how to interpret rights.

Why it matters:

• Rights often abstract (e.g., "dignity," "equality")
• Courts need guidance on how to give them meaning
• Section 39 mandates specific interpretive approach
• Transformative — promotes change, not status quo

Location: Chapter 2 (Bill of Rights) — immediately after all the rights (Sections 7-38)

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📖 The Full Text of Section 39

Section 39(1): Interpretation of Bill of Rights

(1) When interpreting the Bill of Rights, a court, tribunal or forum—

(a) must promote the values that underlie an open and democratic society based on human dignity, equality and freedom;

(b) must consider international law;

(c) may consider foreign law.

Section 39(2): Development of Law

(2) 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.

Section 39(3): Limitation of Rights

(3) The Bill of Rights does not deny 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.

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📖 Breaking Down Section 39(1)

Three Mandatory and Persuasive Sources

(a) Values: MUST Promote Democratic Values

The core values:

1. Human dignity (Section 10)
2. Equality (Section 9)
3. Freedom (various sections)

What "promote" means:

• Not just protect values — actively advance them
• Interpretation should expand rights, not restrict
• Transformative constitutionalism

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Key Case: S v Makwanyane (1995)

Facts: Challenge to death penalty

Issue: Does death penalty violate Sections 10 (dignity) and 11 (life)?

Court's use of Section 39(1)(a):

Chaskalson P:

"The values of human dignity, equality and freedom are not just aspirations. They are the foundational values of our Constitution."

Held:

• Death penalty violates dignity (reduces person to object to be eliminated)
• Violates equality (applied discriminatorily under apartheid)
• Interpretation guided by Section 39(1)(a) values

Result: Death penalty unconstitutional

Principle: Section 39(1)(a) requires generous, purposive interpretation that promotes dignity, equality, freedom.

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Key Case: Dawood v Minister of Home Affairs (2000)

Facts: Immigration Act separated spouses (foreign spouse couldn't apply for permit from within SA)

Issue: Does this violate dignity and family rights?

Court's use of Section 39(1)(a):

O'Regan J:

"Section 39(1) requires that rights be interpreted generously and purposively. Dignity includes the right to family life."

Held:

• Separation of spouses violates dignity (Section 10)
• Violates right to family life (implicit in dignity)
• Immigration Act unconstitutional

Principle: Section 39(1)(a) allows courts to recognize new rights flowing from foundational values.

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(b) International Law: MUST Consider

What is "international law"?

1. Treaties South Africa has ratified (e.g., ICCPR, ICESCR, African Charter)
2. Customary international law (universally accepted norms)
3. Soft law (UN declarations, resolutions — persuasive)

"Must consider" ≠ "must follow":

• Courts obliged to look at international law
• But not bound by it
• Can depart if good reason

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Key Case: S v Makwanyane (1995)

International law considered:

• UN International Covenant on Civil and Political Rights (ICCPR)
• UN resolutions on death penalty
• European Convention on Human Rights
• American Convention on Human Rights

Court's reasoning:

• Global trend: abolition of death penalty
• International consensus: death penalty violates dignity
• SA should align with international human rights standards

Effect: International law reinforced finding that death penalty unconstitutional.

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Key Case: Government of RSA v Grootboom (2001)

Facts: Homeless people seeking housing

Issue: What does Section 26 (housing) require?

International law considered:

• ICESCR Article 11 (right to adequate housing)
• General Comment 3 of UN Committee on Economic, Social and Cultural Rights
• International standards on "progressive realization"

Court held:

• International law guides interpretation of socio-economic rights
• "Reasonable measures" must include provision for those in desperate need
• State programme unreasonable — failed to provide for crisis relief

Principle: International law helps give content to abstract rights.

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Key Case: Glenister v President of RSA (2011)

Facts: Disbanding of Scorpions (anti-corruption unit)

Issue: Does Constitution require independent anti-corruption body?

International law considered:

• UN Convention Against Corruption (UNCAC)
• African Union Convention on Preventing and Combating Corruption
• Both require "independent" anti-corruption mechanisms

Court held:

• SA ratified UNCAC — obliged to maintain independent body
• Section 39(1)(b) requires consideration of treaty obligations
• New unit (DPCI) not sufficiently independent

Principle: International treaty obligations inform constitutional interpretation.

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(c) Foreign Law: MAY Consider

Difference from international law:

• International law = treaties, customary norms (Section 39(1)(b) — must consider)
• Foreign law = laws of other countries (Section 39(1)(c) — may consider)

Why foreign law persuasive?

• Common problems across democracies
• Learn from others' experiences
• Universal human rights principles

Not binding:

• Courts may consider
• Useful where foreign jurisdiction faced similar issue
• SA context always paramount

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Key Case: S v Makwanyane (1995)

Foreign law considered:

• USA — death penalty cases (Furman v Georgia, Gregg v Georgia)
• Canada — Charter cases on cruel and unusual punishment
• Germany — Constitutional Court on dignity
• India — Supreme Court on death penalty
• Zimbabwe, Tanzania, Hungary — constitutional courts

Court's approach:

• Considered 15+ foreign jurisdictions
• Noted global trend away from death penalty
• Used foreign law as persuasive authority

Chaskalson P:

"We can derive assistance from foreign case law. But we are constrained by our own constitutional text and values."

Principle: Foreign law is a persuasive source, not binding.

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Key Case: National Coalition for Gay and Lesbian Equality v Minister of Justice (1999)

Facts: Challenge to sodomy law criminalizing gay sex

Foreign law considered:

• USA — Lawrence v Texas (struck down sodomy laws)
• Canada — Charter equality cases
• European Court of Human Rights — Dudgeon v UK (privacy and sexual orientation)

Court held:

• Sodomy law violates equality (unfair discrimination on sexual orientation)
• Violates dignity and privacy
• Foreign law showed international consensus

Principle: Foreign law helps identify emerging human rights norms.

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📖 Section 39(2): Development Mandate

Applying to ALL Law

Section 39(2):

"When interpreting any legislation, and when developing the common law or customary law, every court... must promote the spirit, purport and objects of the Bill of Rights."

Scope:

• Any legislation — not just Bills of Rights cases
• Common law — courts must develop it (e.g., delict, contract)
• Customary law — must align with Bill of Rights
• All courts — Magistrates' to Constitutional Court

Effect: Bill of Rights has horizontal and vertical application.

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Key Case: Carmichele v Minister of Safety and Security (2001)

Facts:

• Woman attacked by man police released
• Sued police for failure to protect
• Common law: no general duty to protect

Issue: Does common law need development?

Court's use of Section 39(2):

Ackermann and Goldstone JJ:

"Section 39(2) makes it clear that the Bill of Rights applies not only vertically (state vs individual) but also horizontally (individual vs individual) through the development of common law."

Held:

• Common law must be developed to align with constitutional values (dignity, equality, freedom)
• Police owe duty of care to protect against foreseeable harm
• Failure to develop common law violates Section 39(2)

Principle: Courts have obligation to develop common law — not optional.

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Key Case: Barkhuizen v Napier (2007)

Facts: Insurance contract had time-bar clause (claim within 90 days or forfeit)

Issue: Can courts refuse to enforce unfair contract terms?

Court's use of Section 39(2):

Ngcobo J:

"Section 39(2) requires courts to develop common law of contract to give effect to constitutional values. Pacta sunt servanda (agreements must be kept) remains important, but not absolute."

Held:

• Common law freedom of contract must be balanced with constitutional values
• Courts may refuse to enforce contract terms that violate public policy (dignity, equality)
• Time-bar clause not unconstitutional on facts, but principle established

Principle: Even private contracts subject to constitutional values via Section 39(2).

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Key Case: Investigating Directorate: Serious Economic Offences v Hyundai (2001)

Facts: Section 417 of Companies Act compelled answers (potentially self-incriminating)

Issue: Does this violate Section 35(3)(j) (privilege against self-incrimination)?

Court's use of Section 39(2):

Langa DP:

"Section 39(2) requires that when interpreting legislation, courts must promote the Bill of Rights. Where two interpretations possible, choose the one consistent with rights."

Held:

• Section 417 can be interpreted to allow privilege against self-incrimination
• Avoid interpretation that violates Bill of Rights
• Statute saved by constitutional interpretation

Principle: Reading down statutes to comply with Constitution (Section 39(2) mandate).

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📖 Section 39(3): Recognition of Other Rights

The "Savings Clause"

Section 39(3):

"The Bill of Rights does not deny the existence of any other rights or freedoms recognised or conferred by common law, customary law or legislation, to the extent consistent with the Bill."

What it means:

• Bill of Rights not exhaustive
• Other rights exist (common law, customary law, statute)
• BUT only if consistent with Bill of Rights

Example:

• Common law right to claim damages for defamation (dignity)
• Customary law marriage rights
• Statutory rights under Labour Relations Act

Limit: Can't claim "right" that violates Bill of Rights (e.g., can't claim common law "right" to discriminate).

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📖 The Interpretive Principles Section 39 Establishes

1. Generous and Purposive Interpretation

Not narrow/technical:

• Don't read rights restrictively
• Interpret to advance rights, not limit them

Key case: S v Zuma (1995)

• Right to fair trial interpreted generously to include procedural safeguards

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2. Transformative Constitutionalism

Principle: Constitution aims to transform society from apartheid injustice to substantive equality.

What courts must do:

• Recognize historical inequality
• Promote substantive (not just formal) equality
• Address systemic disadvantage

Key case: Minister of Finance v Van Heerden (2004)

• Affirmative action lawful because it transforms society toward equality

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3. Contextual and Flexible Approach

Not rigid formalism:

• Consider context (history, social reality)
• Balance competing rights
• Avoid mechanical application

Key case: S v Manamela (2000)

• Right to bail interpreted in context of crime levels, victim rights, public safety

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4. Ubuntu as Interpretive Value

Ubuntu = African philosophy emphasizing communal values, human dignity, interconnectedness.

Section 39(1)(a) includes ubuntu as part of "open and democratic society based on dignity."

Key case: S v Makwanyane (1995)

Mokgoro J:

"Ubuntu recognizes a person's status as a human being, entitled to unconditional respect, dignity, value and acceptance."

Effect: Ubuntu informs interpretation — balance individual rights with communal responsibility.

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💡 Study Tips for Section 39

Tip 1: Understand the Structure

Section 39 has three parts:

1. 39(1) — How to interpret Bill of Rights (values, international law, foreign law)
2. 39(2) — How to interpret all law (promote Bill of Rights)
3. 39(3) — Recognition of other rights

Exam tip: Identify which subsection applies.

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Tip 2: Master the Mandatory vs Persuasive Sources

MUST:

• Promote values (dignity, equality, freedom) — (1)(a)
• Consider international law — (1)(b)

MAY:

• Consider foreign law — (1)(c)

Exam tip: Don't say court "may" promote values or "may" consider international law — these are mandatory.

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Tip 3: Know the Leading Cases

Essential cases to memorize:

1. S v Makwanyane (1995) — death penalty, use of all three sources
2. Carmichele v Minister of Safety (2001) — Section 39(2) development of common law
3. Grootboom (2001) — international law on socio-economic rights
4. Glenister (2011) — treaty obligations and independence
5. Barkhuizen v Napier (2007) — contract law and public policy

Exam tip: Cite case name, year, and one-sentence ratio.

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Tip 4: Distinguish Section 39(2) from Section 8

Section 8 — Application of Bill of Rights (who is bound?)

Section 39(2) — Interpretation of law (how to read it?)

Common mistake: Confusing these.

Correct:

• Section 8 = Does Bill of Rights apply to this party?
• Section 39(2) = How should I interpret this law to promote Bill of Rights?

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Tip 5: Link Section 39 to Section 36 (Limitations)

Section 36 = When can rights be limited?

Section 39 = How to interpret rights?

Relationship:

• First interpret right generously (Section 39)
• Then check if limitation justified (Section 36)

Example:

1. Interpret "freedom of expression" broadly (Section 39)
2. Then ask: Is hate speech ban a justified limitation? (Section 36)

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📝 Example Essay Question

Question

"Section 39 of the Constitution requires courts to interpret the Bill of Rights generously and purposively, with reference to international law and the values of an open and democratic society. Critically discuss this statement with reference to case law." (25 marks)

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✍️ Model Answer

Introduction (3 marks)

Section 39 is the interpretation clause of the Bill of Rights, directing courts on how to give meaning to constitutional rights. It mandates a generous, purposive, and values-based approach, requiring courts to promote the values of human dignity, equality, and freedom (Section 39(1)(a)), consider international law (Section 39(1)(b)), and may consider foreign law (Section 39(1)(c)). Additionally, Section 39(2) requires courts to develop common law and customary law to align with the Bill of Rights. This essay will critically analyze the interpretive methodology Section 39 establishes, focusing on the use of international law, transformative values, and the development mandate through leading Constitutional Court cases.

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Section 39(1)(a): Values-Based Interpretation (6 marks)

Section 39(1)(a) requires courts to "promote the values that underlie an open and democratic society based on human dignity, equality and freedom." This represents a departure from apartheid-era legal positivism, mandating that interpretation be transformative — aimed at social change, not preservation of the status quo.

In S v Makwanyane (1995), the Constitutional Court declared the death penalty unconstitutional, relying heavily on Section 39(1)(a). Chaskalson P held that the death penalty violated dignity (Section 10) by reducing the offender to an object to be eliminated, and equality (Section 9) due to its historically discriminatory application. The Court emphasized that Section 39(1)(a) requires generous interpretation — rights must be read broadly to advance constitutional values, not narrowly to limit them.

Similarly, in Dawood v Minister of Home Affairs (2000), the Court extended the concept of dignity to include the right to family life, holding that immigration laws separating spouses violated Section 10. O'Regan J stated that Section 39(1) demands that courts recognize unenumerated rights flowing from foundational values. This demonstrates Section 39's dynamic nature — it allows the Bill of Rights to evolve.

Critical perspective: While values-based interpretation promotes human rights, critics argue it grants courts excessive discretion, potentially usurping legislative functions. However, the Constitutional Court has emphasized deference to Parliament on policy matters (Soobramoney, Rail Commuters), showing restraint.

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Section 39(1)(b): International Law as Mandatory Consideration (6 marks)

Section 39(1)(b) requires courts to "consider international law" when interpreting the Bill of Rights. This includes binding treaties, customary international law, and persuasive soft law (UN resolutions, General Comments).

In Government of RSA v Grootboom (2001), the Court interpreted Section 26 (housing) with reference to ICESCR Article 11 and General Comment 3 of the UN Committee on Economic, Social and Cultural Rights. The Court held that the state's housing programme was unreasonable because it failed to provide for those in desperate need — a standard derived from international law's interpretation of "progressive realization." This shows international law gives content to vague rights.

In Glenister v President (2011), the Court relied on treaty obligations under the UN Convention Against Corruption (UNCAC) and the AU Anti-Corruption Convention, which require independent anti-corruption mechanisms. The Court held that disbanding the Scorpions violated South Africa's international law commitments, interpreted through Section 39(1)(b). Moseneke DCJ emphasized that treaty obligations inform the scope of constitutional duties.

Critical perspective: "Must consider" ≠ "must follow." Courts retain discretion to depart from international law if South Africa's constitutional context demands it (S v Makwanyane: Chaskalson P noted SA is "constrained by our own text"). However, in practice, the Constitutional Court has rarely departed from international human rights standards, showing strong alignment.

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Section 39(1)(c): Foreign Law as Persuasive Authority (4 marks)

Section 39(1)(c) permits courts to "consider foreign law" — laws of other countries. This is optional (unlike international law), but extensively used.

In S v Makwanyane (1995), the Court considered jurisprudence from 15+ jurisdictions (USA, Canada, Germany, India, Hungary) on the death penalty. Chaskalson P noted that foreign law provides comparative insight but is not binding — "we can derive assistance, but are constrained by our own Constitution."

In National Coalition for Gay and Lesbian Equality v Minister of Justice (1999), the Court struck down the sodomy law, considering USA (Lawrence v Texas), Canada (Charter equality cases), and ECHR (Dudgeon v UK). Foreign law showed an emerging consensus that criminalizing homosexuality violates dignity and equality.

Critical perspective: Overreliance on foreign law risks legal transplantation without considering SA's unique socio-economic context. The Court has been criticized for citing Western jurisprudence more than African or Global South precedents (Klare, "Legal Culture and Transformative Constitutionalism").

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Section 39(2): Development of Common Law and Legislation (5 marks)

Section 39(2) requires courts to "promote the spirit, purport and objects of the Bill of Rights" when interpreting any legislation and developing common law or customary law. This extends the Bill of Rights' influence beyond public law into private law.

In Carmichele v Minister of Safety and Security (2001), the Court held that the common law delict (tort) must be developed to impose a duty on police to protect citizens from foreseeable harm. Ackermann and Goldstone JJ held that Section 39(2) is mandatory — courts must develop common law to align with dignity, equality, and freedom. This marked a shift from the restrictive common law position that police owed no general duty of care.

In Barkhuizen v Napier (2007), the Court applied Section 39(2) to contract law, holding that the common law principle of pacta sunt servanda (agreements must be kept) is subject to constitutional public policy. Ngcobo J stated that courts may refuse to enforce contract terms that violate dignity or equality, even in private contracts between individuals. This demonstrates horizontal application of the Bill of Rights through Section 39(2).

Critical perspective: Section 39(2) creates tension between legal certainty (predictable common law rules) and flexibility (courts rewriting rules). However, the Court has emphasized incremental development (Afrox Healthcare v Strydom), not wholesale replacement.

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Conclusion (1 mark)

Section 39 establishes a generous, purposive, and transformative interpretive methodology, requiring courts to promote constitutional values, consider international law, and develop the common law. Case law demonstrates robust application — from abolishing the death penalty (Makwanyane) to developing delict (Carmichele) and recognizing socio-economic rights (Grootboom). While critics warn of judicial overreach, the Constitutional Court has balanced rights promotion with institutional deference, making Section 39 the cornerstone of South Africa's transformative constitutionalism.

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[Total: 25 marks]

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💡 Essay Writing Tips for Section 39

Structure

Introduction:

• Define Section 39
• State its purpose (interpretation)
• Outline three subsections

Body:

• One paragraph per subsection (39(1)(a), (1)(b), (1)(c), (2))
• Each paragraph: state rule → cite case → explain application → critical analysis

Conclusion:

• Summarize Section 39's role
• Assess success (transformative constitutionalism)

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Key Phrases to Use

✅ "Section 39(1)(a) mandates values-based interpretation..."

✅ "The Court in Makwanyane applied Section 39(1)(b) by considering international law..."

✅ "Section 39(2) requires courts to develop common law..."

✅ "This demonstrates the transformative nature of Section 39..."

❌ Avoid: "Courts can use Section 39..." (too weak — it's mandatory)

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⚠️ Common Mistakes

❌ Confusing Section 39 with Section 36

• Section 39 = interpretation
• Section 36 = limitation

❌ Saying courts "may" promote values

• Section 39(1)(a) uses "must" — mandatory

❌ Thinking foreign law is binding

• Foreign law = persuasive only (Section 39(1)(c) says "may consider")

❌ Forgetting Section 39(2)

• Applies to all law, not just Bill of Rights

❌ Not citing cases

• Section 39 questions require case law support

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🎓 Summary

Section 39:

39(1) — Interpreting Bill of Rights:

• (a) MUST promote values (dignity, equality, freedom)
• (b) MUST consider international law
• (c) MAY consider foreign law

39(2) — Developing all law:

• Courts must promote Bill of Rights when interpreting legislation or developing common/customary law

39(3) — Savings clause:

• Other rights recognized if consistent with Bill of Rights

Key principles:

• Generous, purposive interpretation
• Transformative constitutionalism
• Ubuntu-informed
• Horizontal and vertical application

Essential cases:

• S v Makwanyane (1995) — death penalty
• Carmichele (2001) — development of delict
• Grootboom (2001) — international law + socio-economic rights
• Glenister (2011) — treaty obligations
• Barkhuizen (2007) — contract law development

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📚 Further Reading

• Klare, "Legal Culture and Transformative Constitutionalism" (1998) 14 SAJHR 146
• Currie & De Waal, The Bill of Rights Handbook (6th ed, Chapter 2)
• S v Mhlungu (1995) — early Section 39 case
• Du Plessis v De Klerk (1996) — horizontal application debate
• Investigating Directorate v Hyundai (2001) — reading down statutes
• Rautenbach, "The Interpretation of the Bill of Rights" in Constitutional Law of South Africa (2nd ed)
• Liebenberg, Socio-Economic Rights: Adjudication Under a Transformative Constitution (2010)

Next topics:

• Section 36 (Limitations Clause)
• Section 8 (Application of Bill of Rights)
• Horizontal vs vertical application
• Transformative constitutionalism theory