Has fundamental rights failed in South Africa? – UJ law expert, Prof David Bilchitz

​​​​​​​​​​Professorial Inaugural address: David Bilchitz

In May 2016, South African will celebrate 20 years of its final constitution. The Constitution contains a range of fundamental rights which are often seen to promise a large amount to the people of this country: relief from grinding poverty, decent education and personal safety. Yet, there is a stark difference between these ideals and the reality facing many in the country. ​​​​

Are rights really impotent to address the severe challenges of our time facing South Africa (and, by extension, many other constitutional democracies)? According to David Bilchitz, a human rights and constitutional law Professor and Director at the South African Institute for Advanced Constitutional, Public, Human Rights and International Law (SAIFAC), a leading South African research centre within the Faculty of Law at the University of Johannesburg (UJ), answering this question requires understanding what rights in fact are and what they aim to achieve.

Prof Bilchitz will examine whether fundamental rights can bridge the ​divide between ideal justice and the South African reality when he delivers his inaugural address in the Council Chambers, Madibeng Building, Auckland Park Kingsway Campus on Thursday, 15 October 2015.

Prof Bilchitz attempts to understand better the nature of fundamental rights by exploring the notion that they should be conceived of as a ‘bridge’ between morality and law, theory and practice. Fundamental rights, he argues, are best understood as moral ideals which create a strong pressure for legal institutionalization. As such, the notion contains within it a pressing demand for the change of existing social conditions and an attendance to the institutional structures necessary to bring that about.

“These ideas have important implications for the manner in which courts approach the adjudication of rights,” says Prof Bilchitz. Understanding the moral and legal aspects of fundamental rights norms essentially requires a two-stage structure to the adjudication of fundamental rights. “The first stage involves ascertaining what protections in an ideal society these entitlements should afford; the second stage requires a consideration of the concrete empirical circumstances of a society and the conflicts between entitlements which limit the possibility of achieving the full realisation of rights,” he elaborates.

Prof Bilchitz considers the implications of these theoretical ideas for a number of concrete fields of the law. In relation to socio-economic rights (rights to food, housing, health-care), he argues that courts (and other branches of government) must consider not only what can feasibly be attained now but also focus on removing the obstacles to attaining a greater level of realization of these rights in the future. “The constraints on the achievement of these rights must be analysed carefully by courts and often involve a lack of financial resources or of governmental capacity to provide these goods. In their orders, courts should creatively attempt to address these obstacles. In so doing, they will both recognise the limitations of the present as well as the need to take concrete action to improve the status quo in the direction of what ideal justice requires,” he says.

The same holds true in areas where discriminatory attitudes and treatment remain. Religious associations, for instance, that retain discriminatory provisions towards women and LGBT people, should not be allowed to undermine the equal citizenship of these groups through their doctrines and courts must be careful that, in respecting the freedom of these groupings to believe and practice, they do not entrench an unfair status quo.

Prof Bilchitz stresses that the bridging idea requires thinking about how to extend the protection of fundamental rights to groups who deserve such rights but are not properly protected. One of the radical features of fundamental rights has been to reject the arbitrary restriction of fundamental rights to particular groups without any good reason to do so. He contends that such reasoning should result in the preparedness to extend the protection of rights to animals and the recognition of a minimum level of protection for them against serious abuse.

He maintains that the understanding of rights as bridging concepts between morality and law, challenges legislators, judges and academics to improve on the mechanisms that can enable the transition of rights in the bill of rights from the realm of the ideal concepts to real-life implementation. “The gap between the bill of rights and the reality of many South Africans should not leave us defeated: it is rather a call to action to all segments of our society, all branches of government to leave no stone unturned to bring this vision into reality. It is not time to give up upon the noble ideals and principles which animate the constitution but rather, with renewed vigour, to ass​ess how to remove the current obstacles to their realization,” he says.

Prof Bilchitz’s Bio

Can Fundamental Rights Bridge the Divide Between Ideal Justice and the South African Reality?

Professorial Inaugural address, Prof David Bilchitz

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