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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

Open Day engulfs Bloemfontein Campus with colour, crowds and cheer
2013-05-04

 

08 May 2013
Photo: Lelanie de Wet


   Open Day YouTube video

The procession – comprising of Prof Jonathan Jansen and the Deans of all the UFS faculties – stately entered a packed Callie Human Centre on Saturday morning 4 May 2013. As everyone took their seats, all the lights were abruptly cut, leaving the hall in a stunned silence. Suddenly brilliant beams of green, blue and red lights cut through the dark, exploding into a spectacular laser show.

Open Day 2013 on the Bloemfontein Campus was officially under way.

The audience of parents and prospective students were awe-struck by a transfixing electric guitar performance, dancers lit up by LED suits, pulsing music and finally Corneil Muller singing to the accompaniment of Prof Jansen behind the piano.

Vice-Chancellor and Rector, Prof Jansen immediately made attendees from across all nine provinces, Namibia, Lesotho and several other countries feel at home and embraced by the university. During his welcoming address, Prof Jansen referred to the fact that Kovsies places the bar high when it comes to achievement. “We expect more of our students,” he said. “Passing is not important, passing wéll is important.” He stressed that at the university we teach students to be decent, to be exceptional people. “We place a high premium on being an outstanding human being.” He went on to say that our students are better than the previous generation – they do not carry the baggage of the old.

Prof Jansen also communicated the university’s commitment to developing leaders with an understanding of the world. This is why the university afford students the opportunity, amongst other things, to study abroad. Students have access to a wide variety of organisations and the privilege to have access to leaders who they can converse with. Kovsies strives to produce leaders, not only in the community, but on a global platform.

To demonstrate this last point, top Kovsie achievers joined Prof Jansen on stage to relay their stories of perseverance, courage and success. Included among these stars, were athlete Danél Prinsloo; Varsity Cup Player that Rocks 2013 Oupa Mohoje; DW Bester, a Rhodes Scholar currently studying at Oxford University in the United Kingdom; and Jurie Swart, who ranked under the top five in the 2012 International Graduate Architecture Student Design competition.

The residences pulled out all stops when it came to the presentation of their individual stalls. The gardens in front of the Main Building burst with colour, sound, dancing and laughter as the residences competed to draw the most visitors. The faculties also opened their doors for a glimpse at the exciting opportunities awaiting prospective students.

A record amount of visitors went home with the words of Rudi Buys, Dean of Student Affairs, inscribed in their minds summing up what the UFS is all about: “Where a sense of community matters more than the colour of your skin.”

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