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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

Statement: Visit of the Portfolio Committee on Education to the UFS
2005-02-25

The chair of the Portfolio Committee on Education (PCE) Prof Shepherd Mayatula has commended the management of the University of the Free State (UFS) for its positive approach to the incorporation of the Vista and Qwaqwa campuses.

According to a statement issued by the university’s communication section, Prof Mayatula said that while there were outstanding issues to address, a platform had been created through the visit of the portfolio committee for the UFS to find solutions.

Speaking at the end of a visit to the Bloemfontein campus of the UFS, Prof Mayatula said: “You know the issues that exist between the three campuses and you know the solutions. You don’t need recommendations from the Committee.”

Earlier today the PCE held a three-way meeting between the PCE, the management of the UFS and the Vista Task Team, representing staff and students at the Bloemfontein campus of the former Vista University .
 

The Bloemfontein campus of the former Vista University was incorporated into the UFS in January 2004.

The multi-party delegation from the PCE was led by its chairperson, Prof S Mayatula, while the delegation from the UFS was led by the Rector and Vice-Chancellor, Prof Frederick Fourie, while the Vista Task Team was lead by Mr Paseka Mokoena.

Following a presentation by the Vista Task Team and a presentation by the UFS management, other committee members also commended the UFS for the spirit in which outstanding issues were being handled.

It was indicated by portfolio committee members that other universities have far more serious problems than the UFS, and that some of these universities have also been visited by the PCE. The UFS appears to be on the road to be an important pilot case for incorporations and mergers.

The issues that were discussed during today’s meeting included the following:

  • outstanding issues in the process of incorporating the Bloemfontein campus of the former Vista University into the UFS, including:
  • staff issues and conditions of service
  • issues of student aid and pipeline students
  • governance of the UFS
  • the long term utilisation of Vista as a site

The Rector and Vice-chancellor of the UFS, Prof Fourie, expressed his appreciation for the role played by the Portfolio Committee on Education in bringing about a common understanding of the transformation issues facing the UFS.

Prof Fourie said the Portfolio Committee’s visit was a useful intervention to bring about a sense of urgency in resolving matters affecting the Vista campus as well as the Qwaqwa campus.

Issued by: Mr Anton Fisher
Director: Strategic Communication
Cell: 072-207-8334
Tel: 051-401-2749
25 February 2005

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