Dignity is an important term in our constitutionally democratic society.

Not only is it included as a fundamental human right in the Bill of Rights1 but it is also a central societal value that the Constitution attempts to enforce and promote. This essay will critically discuss if the virginity testing of Thulani is a reasonable and justifiable limitation of her rights contained in the Bill of Rights2, with particular reference to her right to dignity, after which I will apply the limitations clause to the scenario while weighing up different arguments and taking different factors into account, making use of the legal rules contained in the limitations clause. The purpose of the limitations clause bears in mind that the rights contained in the Bill of Rights are not absolute; they may be limited if the circumstances call for it. The Constitutional Court has held that the rights in the Bill of Rights can only be limited if the objective of the limitation is to reinforce the values of the Constitution, and when a right is alleged to be infringed the enquiry into this infringement must be transparent3. The test contained in Section 36 must allow for frank consideration of the public good. The limitations clause creates the test that determines the extent to which the branches of government may construct laws and society may act in limiting constitutionally protected rights. The Constitutional Court has emphasised the importance of the right to dignity in our constitutional scheme:
The rights to equality and dignity are of the most valuable of rights in any open and democratic state. They assume special importance in South Africa because of our past history of inequality and hurtful discrimination on grounds that include race and gender.4

The basic difference between the constitutional value of dignity and the constitutional right to inherent dignity is that the value of dignity cannot be enforced in court, while the right to dignity may be. Section 1 of the Constitution describes the values and principles on which our society are founded, therefore limitations of fundamental
1 2

Chapter 2 of the Constitution of the Republic of South Africa. Section 36 of the Constitution of the Republic of South Africa. 3 Bhe and Others v Magistrate, Khayelitsha, and Others 2005 (1) SA 580 (CC). 4 Bhe (2005) para 71. In this regard see also S v Makwanyane 1995 (6) BCLR 665 (CC) para 144, and President of the Republic of South Africa and Another v Hugo (CCT11/96) [1997] ZACC 4; 1997 (6) BCLR 708; 1997 (4) SA 1;; 2011 (7) BCLR 651 (CC) (18 April 1997) para 41.

human rights must be suitable and acceptable in our constitutional society. In fact, our courts consider the value of dignity to be a central constitutional value that impacts the interpretation of the other rights contained in the Bill of Rights5. The limitations clause provides for a two-stage investigation. The first stage must determine whether the limitation is given life through a law of general application, while the second stage questions whether the purpose of the limitation is just in an open and democratic society based on freedom, human dignity and equality. The first stage requires that the limitation of the right be authorised by the Constitution, legislation, case law, the common law, or Customary law; this is due to the important legal principle that rules and laws be stated in a clear and accessible manner6. In the enquiry into the reasonableness and justifiability of a limitation of a right one must consider the nature of the right, the importance of the purpose of the limitation, the nature and extent of the limitation, the relation between the limitation and its purpose, and less restrictive means to achieve the purpose. Thus the limitations clause calls for balance and proportionality. Virginity testing is a degrading invasion of a womans body, which could lead to intense embarrassment and stigmatisation by the community. A persons sexuality is an intensely private thing and virginity of profound significance. In my opinion this practise constitutes a violation of human dignity. The nature of Thulanis right which would be violated by virginity testing, ie her right to dignity, is discussed in more detail above; suffice to say that it is a right that must be zealously protected because of our history of discrimination and marginalisation in which countless thousands of non-white South Africans suffered gross violations of their dignity. Therefore it is a right that cannot easily be limited by law. Supporters of the practise of virginity testing claim that it is the best way to stop unwanted pregnancies and the spread of HIV/Aids. Aids is indeed a serious problem in todays society; many people die from the disease every day. Unwanted pregnancies are also a serious issue facing society. Whether virginity testing is the best way to combat these problems is seriously doubtful, however there can be no
5 6

Makwanyane (1995) para 95 and para 327. Dawood and Another v Minister of Home Affairs and Others 2000 (8) BCLR 837 (CC) para 47.

doubt that the issues the supporters of virginity testing are attempting to address are indeed important and meaningful. The method used to test a womans virginity involves a close inspection of her vagina and hymen, which violates her dignity in a most severe way. Any persons genitalia are of profound privacy and sometimes embarrassment to them. Having some strange doctor poke around in there, sometimes in unsanitary conditions, is hardly an ideal situation. Our Constitution does indeed provide for the right to practise ones culture, however this right cannot be exercised in a manner inconsistent with any provision of the Bill of Rights7. A limitation cannot be imposed if it does not contribute towards achieving its purpose. In other words, there has to be a rational connection between the limitation and its purpose. To my mind, there can be no rational connection between the practise of virginity testing and halting the spread of HIV/Aids and unwanted pregnancies. Virginity testing will not stop the unprotected sexual intercourse that leads to STDs and pregnancy. There are many theories of combating HIV/Aids, some better than others. Sexual education programmes, free condom distribution, and Aids awareness rallies are all less restrictive and more effective means of achieving the purpose than the practise of virginity testing. Considering the nature and importance of the right and the extent of its limitation, in relation to the purpose, importance and effect of the practise causing the limitation, and whether there are less restrictive means to achieve the purpose8, I must conclude that the practise of virginity testing is not a reasonable or justifiable limitation of Thulanis rights contained in the Bill of Rights, in particular her right to dignity.

7 8

Section 31 of the Constitution of the Republic of South Africa. For a comprehensive explanation and application of the limitations clause, see Dawood (200) para 4051.

ETIENNE OLIVIER 2745136 CONSTITUTIONAL LAW 202 ASSIGNMENT 3 MONDAY PERIOD 5 TIMOTHY

BIBLIOGRAPHY
CASES: Bhe and Others v Magistrate, Khayelitsha, and Others 2005 (1) SA 580 (CC). Dawood and Another v Minister of Home Affairs and Others 2000 (8) BCLR 837 (CC). President of the Republic of South Africa and Another v Hugo (CCT11/96) [1997] ZACC 4; 1997 (6) BCLR 708; 1997 (4) SA 1;; 2011 (7) BCLR 651 (CC) (18 April 1997). S v Makwanyane 1995 (6) BCLR 665 (CC).

LEGISLATION: - The Constitution of the Republic of South Africa.