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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

UFS hikers to Cape Town reflect on their journey
2014-05-26

 

For the four volunteers from the university who are currently on their way to the Cape on foot, every hour of every day is a victory.

It is three weeks since two employees from the University of the Free State (UFS), Adéle van Aswegen and Ntokozo Nkabinde, together with two other Bloemfontein residents, Nico Piedt and Ronel Warner, left Bloemfontein on fóót for the Cape, in order to highlight the problem of food insecurity among students.

On Sunday 18 May they crossed the halfway mark at Beaufort West and will conclude their journey on Tuesday 3 June in Cape Town.

This is what the hikers have to say after three weeks on the road:

Adéle van Aswegen
It isn’t only a physical journey, but rather an emotional journey you undertake. You learn what it means to be truly thankful for basic things like clothes, a place to sleep and food.

Nico Piedt
I know what it feels like to survive on only a glass of water in your stomach – a cup of weak tea if you’re lucky – for the whole day. If I can help (through the hike) to give someone a better chance in life, then it is worthwhile.

Ronel Warner
You think and grow simultaneously. As you plan every stride ahead of you, you also plan your life ahead.

Ntokozo Nkabinde
You don’t walk for yourself. You undertake this journey, maybe because you want to help someone, but this journey is actually in honour of something bigger and you just have to endure.”

These boots are made for walking ... to Cape Town (Article of 02 May 2014)
“Aren’t auntie and them hungry yet?” Country folk worried about NSH hikers (15 May 2014)

Daily updates:
(You can also follow us on @UFSweb for daily tweets)

Day 33: 2 June 2014
13:40
20 km
Sunset Beach, Cape Town

Day 32: 1 June 2014
16:05
26 km
Mervyn and Sanet Wessels, Belville

Day 31: 31 May 2014
16:31
39.6 km
Rhonell and Gavin Julain, Paarl

Day 30: 30 May 2014
14:00
16 km
Monte Rosa, Rawsonville

Day 29: 29 May 2014
13:16
31 km
The Habit, Worcester

Day 28: 28 May 2014
11:00
22.4 km
Monte Roza, De doorns

Day 27: 27 May 2014
17:00
21.1 km
Karoo Hotel

Day 26: 26 May 2014
18:27
43.3 km
Tows river

Day 25: 25 May 2014
12:18
Lord Milner Hotel, Matjiesfontein

Day 24: 24 May 2014
16:30
42 km
Laingsburg Country Lodge

Day 23: 23 May 2014
17:32
41.8 km
Vergenoeg

Day 22: 22 May 2014
16:42
43 km
Assendelft Lodge and Bush Camp, Prins Albert

Day 21: 21 May 2014
15:09
42 km
Leeu Gamka Hotel

Day 20: 20 May 2014
13:39
20 km
Alida, Springfontein

Day 19: 19 May 2014
12:31
27.6 km
Teri Moja Game Lodge

Day 18: 18 May 2014
First rest day
Nagenoeg Guesthouse, Beaufort West

Day 17: 17 May 2014
19:30
62.3 km
Nagenoeg Guesthouse, Beaufort West

Day 16: 16 May 2014
13:00
14 km
Taaibochfontein

Day 15: 15 May 2014
16:03
32 km
Travalia, Three Sisters

Day 14: 14 May 2014
18:33
43 km
Joalani Guest Farm

Day 13: 13 May 2014
17:30
33 km
Die Rondawels

Day 12: 12 May 2014
16:49
40 km
Aandrus B&B in Richmond

Day 11: 11 May 2014
39 km
Wortelfontein (Magdel and Christiaan)

Day 10: 10 May 2014
15:44
34 km
Hanover Lodge

Day 9: 09 May 2014
40.8 km
Camping between Colesberg and Hanover

Day 8: 08 May 2014
15:25
33.7 km
Colesberg, The Lighthouse Guesthouse

Day 7: 07 May 2014
15:08
23 km
Orange River Lodge

Day 6: 06 May 2014
15:57
51.06 km
Gariep Forever Resort

Day 5: 05 May 2014
12:18
28 km
Rondefontein

Day 4: 04 May 2014
15:27
35 km
Trompsburg: Fox Den

Day 3: 03 May 2014
17:30
46.74 km
Edenburg Country Lodge (Hotel)

Day 2: 02 May 2014
11:44 am
15.3 km
Tom's Place

Day 1: 01 May 2014
32 km
Leeuwberg

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