BESTIALITY: THE PARADOX OF THE “PARAGON OF ANIMALS” S v M 2004 1 BCLR 97 (O)

Abstract

The South African Constitution (Act 108 of 1996) represents an emphatic break with a past characterized by denial of human dignity, and commits our society to a transition to a new society characterized by a commitment to recognizing the value of human beings (O‟Regan J in Bernstein v Bester 1996 4 BCLR 449 (CC) par 148). Freedom has come. However, in a democratic society freedom can never be absolute:
“It must be exercised with due regard to the legitimate interests of other members of the society, and the countervailing claims of other constitutional values” (Chaskalson “Human Dignity as a Foundational Value of Our Constitutional Order” 2000 SAJHR 193 202).
What are we then to make of conduct which evokes disgust in others? Is the limitation of autonomy consequent upon criminalization of such conduct acceptable on constitutional grounds? Should the state be entitled to enforce prohibitions founded upon moral judgements? These issues arose for decision in the context of the crime of bestiality in the case of S v M (2004 1 BCLR 97 (O)).