ARE RIGHTS ABSOLUTE?
By Thato Dinkwengana
Rights are said to be “entitlements (not) to perform certain actions, or (not) to be in certain states; or entitlements that others (not) perform certain actions or (not) be in certain states” [see Stanford Encyclopedia of Philosophy].
Chapter 2 of the South African Constitution outlines the bill of rights and section 7(2) states that the state must respect, protect, promote and fulfil the rights in the Bill of Rights.
Deprivation of is possible, but only in exceptional or times of emergency, however some rights are non – dismissible rights or absolute rights.
Absolute rights are rights that are guaranteed all times, and which may not be limited in any way.
Some examples of absolute rights are the following.
“Everyone is equal before the law and has the right to equal protection and benefit of the law” [see section 9 of the Constitution].
“Everyone has inherent dignity and the right to have their dignity respected and protected” [see section 10, supra].
“Everyone has a right to life” [see section 11 supra].
Cases in which these rights were discussed.
- In the case of Qwelane v Minister of Justice and constitutional Development and others 2021 (6) SA 579 (CC), the Constitution Court had to decide whether or not the article by Mr Qwalane, titled “Call me names-but gay is not okay”, violated section 10(1) of the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA) 4 of 2000, the article was said to propagate hatred and harm against homosexuals. The Constitutional Court held that of section 10(1)of the PEPUDA, is unconstitutional to the extent that it includes “hurtful” in the prohibition against hate speech .
- In the case of S v Makwanyane and Another1995 (3) SA 391, the Constitutional Court abolished the death sentence penalty, and referred to same as “cruel and unusual punishment”; this was after an exercise of weighing up of rights, ie, rights to life v other rights in the Bill of Rights such as right to equality, right to human dignity, it was said that from the right to life, other rights flow.
Non-absolute rights
These are rights which can be restricted to protect the rights of others or in the wider interest of the community.
Examples of Non-absolute rights:
“Everyone has the right, peacefully and unarmed, to assemble, to demonstrate, to picket and to present petitions” [see section 17 of the Constitution].
The aforementioned right can be limited in order to protect other rights in the Bill of Rights, a common example will be an illegal protest, wherein protesters are demolishing properties, blocking roads and attacking other persons, in this instance, the rights of the public/ non protesting persons, ie, right to human dignity, freedom of movement, etc must be protected against the protesters.
In limiting rights, section 36 (limitation clause) is utilised, and it states that “the rights in the Bill of Rights may be limited by law of general application; if it is reasonable and justifiable in an open and democratic society, based on human dignity, equality and freedom”.
This Bill of Rights is a cornerstone of democracy in South Africa. It enshrines the rights of all people in our country and affirms the democratic values of human dignity, equality and freedom, and it is the responsibility of the state to respect, protect, promote and fulfil the rights in the Bill of Rights [see section 7 for ease of reference].
