As South Africa commemorates Human Rights Month, the Free State Centre for Human Rights in the Faculty of Law at the University of the Free State (UFS) hosted its first Human Rights Day Lecture on 19 March 2025.
The lecture, delivered by Prof Loot Pretorius, a renowned constitutional law scholar and a key figure in the establishment of the Free State Centre for Human Rights, took place at the Centenary Complex on the UFS’s Bloemfontein Campus. It explored the intricate relationship between courts, human rights, and democracy, offering insightful reflections on the judiciary’s role in upholding constitutional values within a democratic society.
The event was attended by key figures in the legal community, including Judge President Cagney John Musi and Deputy Judge President Martha Mbele of the Free State Division of the High Court, alongside UFS Deputy Vice-Chancellor for Academic Affairs Prof Anthea Rhoda.
Honouring a founding voice
“This is the first Human Rights Day Lecture, and because Prof Pretorius was instrumental in establishing the Centre, there could not have been a more perfect person to deliver it,” said Prof Danie Brand, Director of the Centre for Human Rights.
Prof Pretorius, whose academic journey at the UFS spans decades, has made significant contributions to constitutional law, human rights, and democracy. His lecture focused on key elements of deliberative democracy, judicial review, and constitutionalism, providing valuable perspectives on these important topics.
He examined how constitutionalism shapes democracy, not just by limiting power but by embedding deliberative principles. “Constitutionalism ensures that democratic decision-making is reasons-responsive, and thus democratically accountable,” he said.
He also stressed that courts must not settle for weak justifications when rights are limited. “The reason why a deferential rationality standard is unsuitable to bring about the degree of public justification expected of rights-limiting measures is because it relieves the state of the duty to justify its actions in two significant respects.”
Proportionality, he argued, is a stronger safeguard, as it demands a justification rooted in democratic values. “Since the context for possible justification in terms of the proportionality standard is firmly situated in the deliberative normative setting of an open and democratic society based on dignity, freedom, and equality, a justification must and can only be structured in terms that are compatible with the values underlying such a society.”
Insights on judicial complacency and democratic responsibility
After the lecture, Prof Pretorius addressed concerns about judicial complacency and the role of the courts in safeguarding democracy and human rights. He emphasised that courts must maintain independence and avoid becoming too deferential to the executive levels of government, highlighting the importance of judicial transparency.
“If courts are serious about protecting rights, the standards they use should be the kind that actually protect those rights,” he said. “One pitfall they must avoid is becoming too deferential – where they are more executive-minded than the executive itself.”
He also stressed the need for courts to explain their reasoning clearly, ensuring that their interpretations of constitutional norms align with democratic values. “It is true that constitutional norms are open-ended, but it is the courts’ job to interpret them. They must explain how they arrive at their conclusions, how their reasoning aligns with constitutional values, and how their decisions reflect the expectations of an open and democratic society.”
Human rights beyond legal frameworks
In his response to the lecture, Dr Lindani Mhlanga, a postdoctoral fellow at the Free State Centre for Human Rights, expanded on Prof Pretorius’s points, discussing the broader role of courts in democratic governance and the limits of the proportionality standard.
He highlighted the inherently political nature of judicial oversight, stating, “Judicial review is not conducted in a neutral deliberative space. Instead, it is deeply embedded in political contestation over constitutional values, democracy, and governance.”
In an interview after his lecture response, Dr Mhlanga added, “People often think of human rights as just a list of legal entitlements. But human rights are much bigger: they speak to the quality of life and the very essence of being human.”
A lasting commitment to human rights discourse
This first Human Rights Day Lecture marked the beginning of an annual tradition at the Free State Centre for Human Rights. Prof Brand confirmed that the lecture will be a key event in the Centre’s ongoing efforts to foster critical discussions on human rights.
“As the Centre for Human Rights, we need to have a strong presence during Human Rights Month and Human Rights Day,” he said. “In previous years, we hosted ad hoc events, but we felt the need for something permanent. This annual lecture will provide a space for deep, critical reflection on the issues that shape human rights in South Africa.”