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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

Miss Deaf SA inspires UFS teachers with her life story
2009-11-26

Pictured from the left, are: K. Botshelo, Vickey Fourie (Miss Deaf SA) and A. Morake.

Vicki Fourie, Miss Deaf SA 2009 and Miss Deaf HESC, recently visited the University of the Free State to motivate aspiring Foundation Phase teachers by sharing her life story with them.

When Vicki was two years old, her parents found out that she couldn’t speak. Two possible explanations were that she had had an ear infection or speech problems. They took her to a specialist and after a brain scan they found out that Vicki had 97% hearing loss in both ears.

Hearing aids were required and Vicki’s father, Pastor Gerhard Fourie from the Christian Revival Church (CRC) enrolled her in a kindergarten school for deaf children, Carel Du Toit in Cape Town.

However, even though Carel Du Toit’s slogan is ‘Where Deaf Children Learn to Speak’, it was because of her mother’s efforts that Vicki is able to communicate effectively with hearing people today.

Bonita Fourie would sit with her child every single day and teach her how to pronounce words phonetically and how to read lips. It is because of that that Vicki is not dependent on sign language at all.

When she was seven years old, her parents enrolled her in an English A.C.E. school. Even though Vicki’s home language is Afrikaans, her parents decided to go against the norm by placing her in an English school (most deaf/hard of hearing people cannot learn a second language). Today Vicki is fluent in both languages.

“I used to think that my hearing aids are just a normal thing you put on, like using glasses for reading,” she said. “I still think that way. People always come up to me and say, ‘It’s amazing how easily you adapt to hearing people. You have no stumbling blocks or holdbacks.’

“To me it’s interesting because my reaction is always this: ‘God gave me this situation, and I have made the best of it. I’ve overcome it, and therefore I can go forward in life’. We were born not to survive, but to thrive. I detest the attitude of, ‘I’m a victim, so the world owes me something’. The world owes nobody anything! We can be victorious over our own circumstances. It is possible. My name’s meaning is testifies to this: “Vicki” comes from the word “Victory”. I was meant to be victorious, and not a victim.”

Vicki, who is now 20, has achieved so much in life. She did ballet, hip-hop, modern dancing, drama (she even went to America for her dramatic monologue and poetry recitation), and she has published over 70 magazine articles, nationally and internationally. Her dreams are to write books one day, become a TV presenter, and motivate and inspire people all over South Africa through public speaking.

When one hears this story, one cannot help but be surprised by her success. It makes you realize that anything is possible when you see the potential in a child, and then do everything in your power to develop it and draw it out. When you believe in the child that you are educating, that child will sense it and blossom like a flower.

“Courage isn’t a gift, it is a decision,” Vicki said. “There will always be things that try to hold you back. The key to working with any child is to be patient, patient, and patient! Teachers play a huge role in equipping children for the future. It is a big responsibility, but it can be done.”
 

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