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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

Three Kovsies receive prestigious Mandela Rhodes scholarship for 2015
2014-11-10

From the left: Lehlohonolo Mofokeng, Tumelo Morobane and Zola Valashiya
Photo: Stefan Lotter

 

The UFS continues to produce leaders and is proud to have three Mandela Rhodes scholars next year.

Lehlohonolo Mofokeng, Zola Valashiya and Tumelo Morobane all received this prestigious scholarship for 2015.

A Mandela Rhodes Scholarship provides full funding for a maximum of two years of postgraduate study. The award is open to all African citizens under the age of 30 years and recipients must study towards an honours or master’s degree at a recognised South African institution. Although there is no maximum number of awards, the scholarships are highly competitive, with fewer than 30 scholarships being awarded each year since its inception in 2005. The scholarships cover tuition, accommodation, meals, book allowance, general allowance, and travel expenses. Recipients of the Mandela Rhodes Scholarship are students with outstanding academic achievements, who also possess leadership ability, entrepreneurial skills, and a commitment to reconciliation. In addition to receiving funding for their studies, scholars also do a leadership development programme while in residence. The award is named after Nelson Mandela and Cecil Rhodes and is administered by the Mandela Rhodes Foundation, which is a partnership between the Nelson Mandela and the Rhodes Trusts.

Lehlohonolo has just finished his BEd Hons in Philosophy and Policy of Education at the UFS. He hopes to enroll for a master’s degree in Education Policy, Planning and Management at the University of Witwatersrand with his Mandela Rhodes Scholarship.

Zola is originally from Johannesburg and is completing his LLB degree at the UFS this year. He is planning to stay at the UFS in 2015 to do his LLM in Constitutional Law or International Human Rights Law.

Tumelo has a BSc Honours in Actuarial Science and will use this scholarship next year to study towards her master’s degree at the UFS.

“I chose to stay at the UFS because I am doing a great master's project with Munich Re through the UFS,” says Tumelo. 

“Furthermore, the CEO of the Mandela Foundation, Mr Sello Hatang, asked me to work with the foundation on a few projects that mostly focus on keeping the girl child in school across Africa, as well as helping with providing training and workshops on entrepreneurship to young people.

“So, I am looking forward to a very busy year ahead of me, which will be filled with so much learning, growth and making a difference,” Tumelo says.

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