Constitutional Court judge Mbuyiseli Madlanga delivered the annual human rights law lecture at Stellenbosch University last week. Photo: Hennie Rudman
5 September 2018
If we refuse to impose human rights obligations on private individuals for fear of interfering with their autonomy, we risk maintaining a social and economic system that privileges mainly white people, Constitutional Court Justice Mbuyiseli Madlanga said. He was delivering the annual human rights lecture of the Chair of Human Rights Law and the Faculty of Law at Stellenbosch University last week. This is an edited extract from his speech.
Traditional or conventional thinking has always been that, because human rights were designed to curb excesses of public power, they are not suited to apply to non-state actors. I ask that we turn our gaze away from the state. I ask that we look at the human rights duties of private actors. That is, companies and, indeed, ourselves, individuals.
With all the shortcomings that South Africa may still have, we are ahead of most in the rest of the world. In international law there is still a debate whether private parties – particularly multinational corporations – ought to have human rights obligations.
While there is a process pushed by our very own government and Ecuador to draft a treaty to “regulate, in international human rights law, the activities of transnational corporations and other business enterprises”, it seems that concrete results are not going to be achieved any time soon.
It is time the dithering came to an end and concrete action was taken to make private persons bound by human rights that can appropriately be applicable to them. Some corporations, particularly multinational corporations, are so powerful that it would be folly to continue to train our sights only on the traditional target for challenges against human rights abuses – the state.
Money gives immense power. Most multinational corporations have both – money and power. Some make greater profits than the gross domestic product of many countries.
With that kind of power and reach comes the potential for abuse and tyranny.
Some of these large multinational corporations operate here in South Africa. And we have our own huge companies operating in a number of industries. Their operations too have an enormous impact on the lives of ordinary people. A few examples of the industries in which they operate are manufacturing, retail, mining and banking. Our large domestic corporations also wield a lot of power.
The second reason for bringing private persons within the binding force of human rights is about individual-to-individual interactions. We are all aware of how apartheid, even though it was state-driven, invaded intimate aspects of people’s personal lives. Despite nearly 25 years of democracy, our interactions are still poisoned by the legacy of our past. Economic power still reflects that of apartheid. To a large extent, so does social power. Concentrated economic power, within the context of our peculiar racist history and present, may and does encourage abuse. If we are to take seriously the transformative injunction of our Constitution to “improve the quality of life of all citizens and free the potential of each person”, then our private interactions cannot be left out of the reach of those human rights obligations that may appropriately be borne by private individuals.
In South Africa freedom cannot alone come down to individual autonomy and only be understood from a western liberal perspective. Freedom cannot be disassociated from liberation from our colonial and apartheid past. For the potential of all South Africans, black and white, to be truly realised, the social and economic structures of apartheid society must be undone. Only then can the majority of the country robbed of their dignity through various forms of dispossession and deprivation be considered truly free.
If we refuse to impose human rights obligations on private individuals for fear of interfering with their autonomy, we risk maintaining a social and economic system that privileges the haves, mainly white people in the South African context. By imposing certain human rights obligations on private individuals and companies, we acknowledge that our current social and economic realities have arisen out of our perverted past and cannot be sanitised.
Section 8(2) of the Constitution expressly imposes human rights obligations on private persons.
Subsection (1) provides that the Bill of Rights “applies to all law, and binds the legislature, the executive, the judiciary and all organs of state”.
Subsection (2) specifies that a “provision of the Bill of Rights binds a natural or a juristic person if, and to the extent that, it is applicable, taking into account the nature of the right and the nature of any duty imposed by the right”.
The nature of some rights makes them directly applicable to private persons. An example is the right to fair labour practices. Other rights are expressly made applicable to private persons.
But many other rights fall somewhere between. Socio-economic rights are a good example.
Textually the nature of these rights seems to suggest that they are not applicable to private parties. But that cannot be the end of the story. Section 27(3) provides that “[n]o one may be refused emergency medical treatment”. Must it be read to apply only to public hospitals and related public facilities like state ambulances? I think not. As we know, in some emergency situations, a few minutes may mean the difference between life and death. Imagine a situation where a private hospital is the only facility within a proximity beyond which the patient in need of emergency medical care would die. Can it ever be that this private hospital would be entitled to let that patient die within its property by refusing her or him access to its building? I think not.
There is now no dispute that there is a negative duty against all, including private persons, not to impair the enjoyment of socio-economic rights.
But what about so-called “positive duties”? Loosely, I would say a positive duty enjoins the duty bearer to take some action to make possible the enjoyment of the right by the right bearer. The question is: does the Bill of Rights impose positive duties on private persons?
In the Blue Moonlight case the Constitutional Court did impose a positive obligation on the owner, a company, by requiring it to continue to house unlawful occupiers who would have been rendered homeless if they were evicted immediately. The owner was told that it had to provide accommodation to the occupiers for a while. If that is not a positive obligation, I don’t know what is. The Court’s own language made plain that the owner was required to “provide” accommodation.
The minority judgment held that the Blue Moonlight order amounted to no more than the Court’s exercise of its just and equitable remedial power under the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE) and was not a recognition by the Court of an imposition of a positive obligation by the Bill of Rights.
This positive / negative duty debate came to a head recently in the Daniels matter. Now I am embarrassed because I am going to sound like those parents who unendingly and nauseatingly boast to other parents about not so great achievements by their children. That is so because, as you all know, I penned the majority judgment in Daniels. But I hope you will excuse me. This matter concerned whether Ms Daniels, an Extension of Security of Tenure Act (ESTA) occupier, could – in the face of resistance by the two respondents who were private persons – effect improvements to her home situated on the property of one of the respondents at her own expense. The proposed improvements were modest: the levelling of floors; paving part of the outside area; and installing water supply, a wash basin and ceiling inside the home and a second window. Crucially, the respondents accepted that, without the improvements, the home was not fit for human habitation. In particular, they admitted that the condition of the home constituted an infringement of Ms Daniels’s right to human dignity. But they argued that Ms Daniels was not entitled to effect the improvements. They said if the Court concluded that Ms Daniels was entitled to make the improvements, that would place a positive duty on them to ensure enjoyment by Ms Daniels of her right under section 25(6) of the Constitution. This would arise as a result of the provisions of ESTA which allows a court to order an owner to pay compensation for improvements made by an occupier upon her or his eviction. The respondents argued that, because a court may order compensation, an owner in effect finances the improvements.
The majority of the judges took the view that this positive / negative obligation debate needed to be confronted head-on. We said that there is no basis for reading section 8 (2) of the Constitution to mean that, if a right in the Bill of Rights has the effect of imposing a positive obligation, it does not bind private persons. Whether or not a right binds private persons depends on a number of factors, including the nature of the right, the history behind the right, what the right seeks to achieve, how best that can be achieved, what is the ‘potential of invasion of that right by persons other than the State or organs of state’, and, would letting private persons off the hook not negate the essential content of the right.
As much as Blue Moonlight did impose a positive obligation on a private person, it did not expressly say it was doing so. That explains why – in Daniels – the respondents thought they could argue that the Bill of Rights does not impose a positive obligation on private persons. Daniels helps put that debate to rest. Why did it take this long for this to happen? This is difficult to comprehend.
Unfair discrimination on grounds of sexual orientation and race are two facets of unfair discrimination. This subject warrants discussion not because of lack of clarity on what the Constitution decrees. It warrants discussion because unfair discrimination by private persons on the grounds listed in section 9(3) of the Constitution occurs at alarming proportions.
All I want to touch on is what perplexes me with some people’s attitudes towards same-sex relationships. Not infrequently, some justify these attitudes on the basis of their religious beliefs. I am quite mindful of the sensitivities that attach to the subject of religion and the need for a delicate balancing exercise when one deals with this subject.
That said, we often hear of the denial of services, goods or facilities to people involved in same-sex relationships by businesses that serve the public. This, on grounds of religious belief. One often wonders how far this goes. Does it deny services in all instances where religious belief is implicated? If so, how is that achieved practically? Or, does the denial of services selectively target same-sex couples? If it does, is that not thinly veiled homophobia?
Religious texts have a number of proscriptions. Take, for example, the Ten Commandments in the Bible. One says, “Thou shalt not commit adultery.” There must be weddings – and quite a number of them – between people whose unions are the result of adultery that get solemnised at venues that refuse to host same-sex weddings. This may be happening because the owners of the venues never ask questions. It is fairly easy to detect that it is a same-sex couple requiring the use of a venue. But if the denial of services to same-sex couples is genuinely founded on religious belief, the provider of the service cannot catch only the conspicuous.
Each individual has an obligation not to discriminate unfairly on any of the grounds listed in section 9(3) of the Constitution, including sexual orientation. The Constitution has consciously chosen to impose this obligation on private persons. It is an obligation that each of us must take seriously. And none must mask their personal prejudices behind religious belief.
I want to limit the discussion to a small but, in my view, important aspect. That is unconscious racism. We sometimes do not realise how our racial, social and cultural backgrounds influence our beliefs about race or our inter-racial interactions.
All too often black people are subjected to what may be well-meaning but deplorable and sickening “compliments”. “You are intelligent,” the subtext of which is that this is a surprise as intelligence was not expected of you as a black person. “You speak so well,” which again evinces surprise at a black person’s mastery of the English language, and not necessarily an acknowledgement of the person’s oratory. At times the comments may be negative. For example, not infrequently, one has heard the disdain with which some white people will correct the pronunciation of some English words by some of us black people: “It’s ‘work’, not ‘wack’”; “It’s ‘Durban’, not ‘Derban’”; and so on. Yet, if a non-English speaking Caucasian not only mispronounces most words she or he is using (which happens quite a lot, by the way), but is also butchering the English grammar, that is understandable. At face value, that is on the simple basis that she or he is not a first language English speaker. In truth, it is because she or he is Caucasian. If that were not case, our pronunciation and accents should also be acceptable. Unsurprisingly, the accent of the Caucasian second language English speaker is even complimented for sounding refreshingly exotic.
Unconscious racism is not benign. The attitudes underlying it may and do insidiously lead to unfair racial discrimination. In the face of the section 9(4) ban on unfair discrimination by private persons, there is no room for unconscious racism.
In conclusion, just as the state is unquestionably obliged to honour its human rights obligations, private persons must likewise be so obliged where the fundamental rights in issue are applicable to them.
Opinions expressed are not necessarily those of GroundUp.