An old professor of mine at the University of Pretoria once said, “Your right to swing your fist stops just short of your fellow man’s face.” A more apt description on how rights work one would not easily find. Since 1994, South Africa’s jurisprudence dealt with how our law should develop to accommodate the Bill of Rights provided in the current 1996 Constitution. In common parlance, one repeatedly hears “I have rights” and “what about my rights?” That is, indeed, the question we all should be asking. The current public discourse regarding rights in South Africa is seriously lacking, and fickle, at best.
The discourse I refer to is the common parlance and political discourse, not the jurisprudential discourse of the bench and academia. When public debates about rights arise I find that there is an underlying misinformation about how rights work and how they interplay with each other.
What I intend to do is set out how in our current public discourse, specifically in the milieu of universities, the public do not understand how rights function.
One must keep in mind what the purpose of rights is; historically, it is to limit the power of the State. We can see this in some strongly-worded clauses in the Constitution. For example, section 7(2) states that “the State must respect, protect, promote and fulfil the rights set out in the Bill of Rights”, and also in section 8(1) states that “the Bill of Rights is binding on all law, and binds the legislature, the executive and the judiciary.” Most interestingly, the Constitution also binds natural and juristic persons, in section 8(2). It is in this horizontal application of rights where our public discourse is seriously misinformed.
The problem arises when different natural or juristic persons’ rights are in conflict with each other, and the debate is even more heated when it is political and about “social justice”. What I find is that it has become the ideological norm, not only in South Africa, but in the United States and Canada, to argue away fundamental rights whilst arguing for so-called “social justice.” I have also observed that there is an absolutist mentality in these debates – that there should be chosen between the competing rights and not the reconcilable mentality which one might be naturally inclined to accept.
I will show this phenomenon with reference to two separate instances: the university fees protest and the language of education at universities.
The Fees Protest
I will not comment on the validity of the call for free tertiary education. I will, however, comment on the nature of the protest itself. The protesting students quite ardently rely on their right to protest in terms of section 17 of the Constitution, which they most undoubtedly have. The problem arose when the protesters called for the universities to be shut down until their demands have been met. Now we have the competing rights of the protestors to protest (section 17) and the right to associate (section 18) against the right of other students to freedom and security (section 12), freedom of expression – in the case of the Wits students who protested to keep the university open (section 16) – freedom of movement (section 21) due to students that are not allowed access to the universities, and lastly, the right to education (section 29).
Now, the question is how these competing interests should be weighed against each other.
Through many discussions and comments sections on social media, the absolutist mentality the protest supporters foster comes to light. The student leaders themselves say that classes cannot resume until their demands are met. One finds that there is an axiomatic presumption that the right of the students to protest automatically trumps all the other above-mentioned rights of the remaining students, for it is in the interest of a greater societal justice. One sees this in every news interview with student leaders saying, “we cannot continue with classes while we are fighting for free education.” The argument is thus, “we are using our rights to achieve a more socially just society and therefore you cannot use your rights to impede it”. This shows the absolutist mentality that says: my rights or yours, choose.
Language at Universities
Earlier in 2016 we were confronted with the #AfrikaansMustFall movement, claiming that Afrikaans education at universities must be abolished and the only medium of education must be English. Again, we had competing rights of the protesters saying we should not discriminate (section 9, the right to equality) and on the other hand students saying they have a right to education in their home language (section 29).
The backdrop of this movement was the notion that many students whose home language is not English struggle to study in English, and the Afrikaans and English home language speakers are afforded that opportunity. They, therefore, argued that Afrikaans must be scrapped and replaced with English. At first this might seem reasonable, but when one takes into account that home language education is a constitutionally-enshrined right, we enter murky waters. The equal treatment of students is a societal good (no one would argue the contrary), but the problem is the nature of the argument. Instead of arguing for the promotion of the other non-Afrikaans and non-English speaking students to have education in a language which suits them, the argument to promote “social justice” is to limit the Afrikaans minority’s rights. It shows that pursuant so-called “social justice” there is absolutely no ideological impediment in limiting others’ rights to achieve their societal goals, and that is very dangerous territory.
Yet again, we see an absolutist ultimatum, “our right to equality is in the interest of social justice and therefore your right ought not to be heeded.” I remember that on social media platforms and debates I saw personally, when an Afrikaans students stated that they too have rights, the automatic response was “Your rights can be limited.”
Both these instances show us two distinct problems that I want to address. Firstly, the idea that pursuing greater societal justice is a good enough reason to not even consider other people’s rights, and secondly, that the horizontal limitation of rights is justified if the cause they are fighting for is “socially just”.
Social Justice and Rights
Millennial thought has become synonymous with the advocacy for social justice, which itself is not a problem. The problem is the ideological arguments supporting this movement, which ultimately entails the limitation of some groups’ rights.
In Canada, a heated debate reached its peak with the trial of a local radio star, Jian Gomeshi, where he was accused of sexual assault, and was acquitted. This sparked a debate about whether or not there is a fair trial for the victims, as the State can never seem to convict these persons accused of sexual crimes. There was a contention in the mainstream media advocated by the third-wave feminists that the presumption of innocence (in South African terms, provided by section 35 of the Constitution) should be lifted in sexual assault cases and the version of the complainant must be accepted as true, and the accused must prove the contrary, if the evidence is a case of “he said, she said”. This contention is the culmination of a greater social justice movement arguing that there is a “rape culture” in Western nations. The connection is clear: In arguing for a social justice cause (fighting rape culture, in this instance), we should do away with a fundamental right and a cardinal principle of the rule of law in order to achieve social justice.
Bringing the argument closer to home, our own university protests show the same phenomenon. The public narrative (whether it be Rhodes, fees, or Afrikaans that must fall) is in most instances categorically calling for the infringement of other persons’ rights, to achieve it. With Rhodes it was the defacement and destruction of university property, and in the other two instances I have already explained what the problem is.
A troubling instance to which I have alluded before, was when a group of Wits students protested that the university should remain open. They were met with violence and intimation, and on YouTube, one can see a SABC report showing the Fees protestors ripping placards and intimidating those students. Both sides have the right to protest and freedom of speech, but for some reason, because the fees protest strive for social justice, they appropriate for themselves the right to limit others’ freedom of speech via intimidation.
This shows that, somehow, mainstream thought moved away from rights being non-negotiable human freedoms, to the notion that the right of every person is subject to the next social justice movement (however noble it may seem; again, I do not address the validity of the claim, but the manner in which it is promoted). It seems that the argument is that the rights of the few is not a consideration for the greater social good for the many. The socialist trend of the political left of the world, is a topic for a much broader discussion into which I will not delve. But the troubling notion is uncovered.
Mainstream thought has created the fallacious ideological impasse that to promote a just society, some civil liberties and rights needs to done away with, or to a great extent, be limited. No rational human being in the 21st century would argue that a just and fair society is not something to aspire to, but the fact that the trend of thought that promotes this notion always entails the limitation of rights in some way is what makes these movements objectionable. It is not the intention of a social movement that is the problem, it is the lack of respect for freedom and rights that delegitimizes social justice movements.
Horizontal Limitation of Rights
Now, the question is, how do our rights actually function? As stated above, the primary function of rights is the limitation of the State, but the Bill of Rights also works horizontally. Therefore, it is not only the State that must respect our rights, but also our fellow citizens. The question then is, how can our rights be limited?
Rights can be limited in two ways. Firstly, by the language of the provision itself. An excellent example of this is the right to freedom of speech (section 16), which provides the freedom, but is internally limited and does not protect hate speech and propaganda for war. Secondly, the general limitation clause (section 36) provides that rights can be limited by a law of general application which is reasonable and justifiable in an open and democratic society.
What is important to note is neither of these two methods provides for the possibility of a horizontal limitation of rights. It is furthermore noteworthy that a limitation in terms of section 36 must be “by law of general application” which can only be a law legitimately made by a legislature. Even if Parliament makes such a law, it is constitutionally-challengeable through the court system. If the State needs to takes such stringent steps to limit rights, why would social justice movements have the unchecked ability to do so? A fellow citizen cannot, pursuant to exercising his own rights, infringe on the rights of others. It is only the language of the right itself, or the State through law, that can limit your rights.
It is herein the wisdom of my old professor’s statement lies. Given the rights of students to advocate for a cause, whatever it may be, regardless of the legitimacy of such a claim, they have no right to infringe on the rights of another pursuant to that social cause.
It is a dangerous notion that a group of people, possibly with good intentions, can decide whether another group or a persons’ rights are worthy of being respected. It is even more dangerous when an undemocratically-elected leadership of a student protest has the power to decide whose rights are to be respected pursuant to the social justice objectives. If we are truly a democratic society based on the rule of law and human rights for all, this notion cannot be the dominant mainstream thought.
Justice Mandla (once a judge of the Constitutional Court) said in the judgement of S v M that “no right can due to its paramountcy be the cause of excluding another right entirely.” One right might seem more important, but it cannot be the limitation of another.
This is the fundamental problem with the public discourse on rights in South Africa. The public (or at least the voices of the public in the media) do not understand what rights truly encompass. There are always two sides to the coin, one side being you can enjoy your rights, but the flip-side is you must respect that other people should be able to enjoy their rights whether it suits your cause or not. People seem to think that they can argue that they themselves can limit rights for the greater good, but that cannot be further separated from reality.
So, whose rights are right? The answer is, unless the provision itself limits a right, or Parliament does, no right trumps another. They have to exist in peace alongside one another. And in our university protests, what does that mean? It means that the students who want to protest peacefully are allowed to do so, and those who want to go to class should be free to do the same.
The problem is that most participants in public debate do not grasp this reality. Until this changes there can be no serious discussion to find a solution to the problems we are facing. Yes, there is inequality in our society and yes, we need to address the access to education and the betterment of the economy. However, I argue that the solution lies not in limiting freedom and rights to accomplish a just society; in fact, I argue that because all people have basic rights that must be respected, makes our society more just.
The American political commentator Ben Shapiro once said; “when you qualify justice with something else like ‘social justice’, you turn it into a perversion of itself.” Justice for all is good and noble. We cannot decide which group of persons is worthy of justice pursuant to a social cause. The debate must be how we can use our rights to better society, not discard them.
Author: Johan van der Merwe is a final year law student at the University of Pretoria. He will practice law, but also pursue a master’s research degree on the topic of constitutional interpretation and the rule of law.