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20 March 2023 | Story Prof Danie Brand | Photo Supplied
Prof Danie Brand
Opinion article by Prof Danie Brand, Director of the Free State Centre for Human Rights at the University of the Free State.

Opinion article by Prof Danie Brand, Director of the Free State Centre for Human Rights at the University of the Free State
What does it mean to say one has a right to something, such as access to housing or to protest or to property? What are human rights? What do they ‘do’?

One often hears of human rights being asserted as if they give one an absolute claim to something specific and discrete, which can be enforced against anything and everyone else, irrespective of the impact on the interests (and rights) of others, as well as broader public goals or values.

Perhaps the clearest example of this was the way in which the right to ownership of land was understood under apartheid property law. Ownership then was an absolutely exclusive right: it entitled its holders to exclude everyone else without a countervailing right from their land, irrespective of circumstance or context. All a landowner had to prove before a court to obtain an eviction order if they sought to evict someone from their land, was that they had the right (owned the land) and that those they sought to evict had no countervailing right in law to be on the land. If the right was proved in this way, the remedy of exclusion through eviction followed automatically – the court had to grant the eviction order.

Constitutional right to peaceful protest

A more recent example of this view was on display in the way in which members of parliament complained about their removal from the house when they attempted to shut down the President’s State of the Nation Address through protest action. Many responded by saying their removal was unjustified because, by trying to stop the address from proceeding, they were exercising their constitutional right to peaceful protest. The assumption underlying this response is that the right to protest peacefully and unarmed entitles you to protest peacefully and unarmed in any way you see fit and regardless of the consequences for other people and for society at large.

With this view of rights, a right bestows on its holders a sphere of absolute inviolability – an abstract space within which they can do what the right entitles them to do (protest, hold property, speak, associate or whatever), subject to nothing and no-one else, with no limitations. Rights are seen as instruments through which to separate ourselves from other people and unilaterally impose our will and our interests on others. Rights operate as trumps, boundaries, conversation stoppers.

Understanding human rights

Fortunately, our constitution embodies a different vision or understanding of human rights. In various ways, our constitution makes it clear that what exactly our human rights entitle us to do, or have, or experience, is never abstractly fixed, immutable, or absolute, but must always be determined anew within context. Whenever we seek to exercise one of our human rights, its precise contours and limits must be determined in light of the circumstances prevailing at the time we seek to exercise it; the history of our country; the impact that our exercise thereof will have on the rights and interests of other people; and how our conduct in terms of the right aligns with the public interest and broader constitutional goals.

In this view of rights, our understanding of the right of ownership (which is of course not one of the human rights proclaimed in our constitution but is only indirectly protected in Section 25 of the Constitution) has been moulded into something entirely different from the apartheid conception. Landowners no longer have absolute, exclusive control over their land that simply arises from the fact that they have the right to ownership. If landowners today want to remove people occupying their land without any legal right to do so – in addition to and after proving their ownership – they must persuade a court that eviction would be just and equitable in light of all relevant circumstances (prevailing circumstances; interests of others, including the occupiers of their land; the public interest; constitutional goals) before they will succeed.

WATCH: The Power of Human Rights 




Building democracy

Likewise, if we seek to exercise our right to protest – in order to know what we would be entitled to do in terms of that right – we must consider how our protest will affect the rights and interests of others and whether that impact can be justified, and how the manner and form of our protest squares with constitutional goals such as building democracy. Equally, of course, if others object to our protest because of its impact on their rights and interest, they will have to contextualise their attempt to exercise their right to education, or academic freedom, or freedom of movement in light of our interests, the prevailing circumstances, the public interest, and constitutional goals such as fostering democracy, freedom of association, and freedom of speech.

That is, instead of rights in our constitutional order being abstract spheres of inviolability that can be exercised against others to protect or enforce our interests without consideration of context, keeping us apart, they are mechanisms to enable us to live together, to find accommodation between our disparate, perhaps conflicting, but often overlapping interests and concerns.

What is it then that our human rights do for us or entitle us to? Whenever our human rights-related interests are at stake, or if we rub up our fellow human beings with whom we cohabit the wrong way when our interests seem to clash, they entitle us to be taken equal account of. They require others (most importantly those in authority, usually the state) to include us and have concern for our interest, equal to the concern for others, in the conversation about what should happen and what we may or may not do. In this sense, rights do not keep us apart or stop conversations. Instead, they are acutely democratic mechanisms, making it possible for us to live together. ‘Only that?’, you may respond – but this is no small thing.

News Archive

Award-winning architect firm presents the 29th Sophia Gray Memorial Lecture and Exhibition
2017-09-07

  Description: Arch break Tags: Sophia Gray Memorial Lecture and Exhibition, Elphick Proome Architects, South African Institute of Architects

At the Sophia Gray Bursary Fund breakfast, were from the left:
Henry Pretorius, head of the UFS Department of Architecture,
AJ Corbett, and Boipelo Morule, third-year student
in Architecture and Prof Francis Petersen, UFS Rector
and Vice-Chancellor, 
at the UFS
Photo: Stephen Collett

The laureates of this year’s Sophia Gray Memorial Lecture were George Elphick and Nicholas Proome from the award-winning architecture firm, Elphick Proome Architects (EPA). Over the past 28 years this Durban firm has received 26 awards and its work has been published in 26 magazines.  

From bedroom to boardroom
EPA is involved in major corporate architecture as well as several residential projects. It believes that good design is produced from careful study and research combined with sound technical knowledge and artistic judgement. At the 29th Sophia Gray lecture, presented by the Department of Architecture at the University of the Free State, EPA addressed the Bloemfontein community, stating that architecture was about people, space and light. 

For EPA, architecture is the form of art with the most impact on society. “Ultimately, our architecture needs to be enjoyed and be hard to forget,” it said. 

In its three decades of practice, most of EPA’s built work has been executed in South Africa. It has also completed projects beyond South African borders, including Mozambique, Kenya, Ghana, and France. 

The lecture was followed by the opening of the 29th Sophia Gray Memorial Exhibition at Oliewenhuis Art Museum.

New PhD in Architecture with Design announced
A highlight at this year’s lecture was the announcement by Henry Pretorius, the head of the department, of a new and innovative doctoral programme, the PhD in Architecture with Design. From 2018, students with a MArch (professional) or MArch can enrol for this postgraduate qualification.

“The programme recognises the intelligence and ingenuity of design. Its primary objective is to harvest and study the implicit orientations, operations, and achievements of design, and to enlist creativity in the formation of new knowledge. The degree facilitates analytical reflection, stimulates creative action, and opens new insights into the unique logic of design,” said Pretorius.

“Although design-based research has gained international momentum in recent years, similar research has not been done in South Africa until now.”

Contribution to the Sophia Gray Bursary Fund 
During a breakfast function, the department also announced another initiative, the Sophia Gray Bursary Fund. Prof Francis Petersen, Rector and Vice-Chancellor at the UFS, said that the type of architecture in developing countries was different from places such as New York and other big cities in developed countries. For a transformed profession we need architects from different cultures and demographics in the system. The bursary fund was a fantastic starting point for this to happen. 

The Sophia Gray Bursary Fund initiative is part of a greater call to alumni and friends of the department to be actively involved in the department’s continuous development and future endeavours towards imagination, care, and excellence.
AJ Corbett, founder and director of TCN Architects in East London, made the first contribution towards the fund. 

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