Freedoms disappear when the loudest voices prevail

by Daniela Ellerbeck
3 July 2020

By Michael Swain, Executive Director of FOR SA

Unity in Diversity

President Nelson Mandela famously said in his inauguration speech that, “Today we are a nation at peace with itself, united in our diversity, not only proclaiming but living out the contention that South Africa belongs to all who live in it.”  South Africa’s Constitution was adopted shortly thereafter and is designed to promote a national culture which reflects a society that makes room for all and celebrates its diversity.  It sets out an over-arching legal framework within which all the institutions of society and government can function to promote the well-being of all. 

At the heart of the Constitution – the principles of which apply in many democratic societies throughout the world – lies a Bill of Rights.  This attempts to codify and protect the vital freedoms and principles which undergird our social context and our social contract.  These rights form the lens through which all aspects of social interaction and law are to be evaluated, which in turn ensures that they are a valid reflection of the society which the Constitution envisages.  All laws, whether those in common law which have been developed historically through the decisions of the judiciary, or those developed by the legislature, or the policies of the executive, may be scrutinized against the provisions of the Constitution to make sure that they pass muster.

Negative and Positive Rights

The ideal role of any democratic government is to create a context which allows people to “live and let live”, so that different groups of people with different views can live together harmoniously.  Significantly, the rights enshrined in the Constitution are a blend of “negative rights” and “positive rights”.  A “negative right” is a right not to be subjected to an action of another person or group – in other words, they oblige or permit inaction (“not to act”). A “positive right” is a right to be subjected to an action of another person or group – in other word, they oblige or permit action (“to act”).  

An example of a negative right would be the right to the ownership of property – where typically the law (and the power of the State) can be implemented to defend your right against anyone who is trying to deprive you of your legitimate ownership rights.  Another example would be your right to life – where no one has the right to take it from you or to infringe upon it to deprive you of the fullness of its legitimate enjoyment.  These rights are what are often called “inalienable”, where something is essentially self-evident since it has existed and been viewed as a fundamental freedom for centuries, if not thousands of years (and are therefore also referred to as “first generation rights”).  The State does not grant such rights; it simply recognises them. At the same time, it is important to point out that many of these rights have been hard fought for and often only secured by literal bloodshed. It is therefore equally self-evident that they need to be protected and promoted, because there are elements in every society (and indeed, in human nature itself) which sees an opportunity to benefit itself (or a particular class or subset) by limiting or even over-riding these rights. 

One of the problems we face is that the State typically (perhaps inevitably) encroaches upon and infringes these rights, often for “the greater good”. (However, “the greater good” is a nebulous concept at best, subject to change and the ideologies adhered to by those in power.)  It often does so by creating “positive rights”, whereby it grants a right for a social or political purpose which does not exist historically or naturally (and are therefore also referred to as “second or third generation rights”). An example of this would be a “right to employment” or a “right to housing” or the increasingly confusing area of “gender” rights. 

Conflict of Rights

While positive rights may be good at an aspirational level, they have the potential to become toxic when they come into conflict with other rights. This situation is often exacerbated when those who are actively pushing for the promotion of a specific “positive” right come into conflict with those who want to uphold and stand upon their “negative” right, often using the rationale of “social justice” as the standard.  The underlying viewpoint is that you should only be allowed to exercise your rights in a way that is acceptable to (what is often not even) the majority. In its worst form, it no longer amounts to “live and let live”, but “live as I want you to live” – at which point you are no longer allowed to exercise your rights free of fear and sanction.  In many cases, this outcome is the result of a highly persuasive and well organised (and sometimes well-funded) minority, which seeks the imposition of a particular viewpoint or standard of behaviour, often backed or endorsed by the power of the State.  The result is not a “win-win” for both parties, but a “winner takes all” situation, with freedom and democracy as the big loser. 

System Failures

This problem can be further exacerbated when the checks and balances, which are built into a democratic society, fail to function as intended.  These typically take the form of the three major legal spheres in a society, each of which has limitations in terms of its operation.  In South Africa, we have a duly elected Legislature whose composition and laws (supposedly) reflect those of the majority of the population; an Executive function in the form of an elected “President”, with limited and defined powers and prerogatives, and an independent Judiciary, with an open court system where all matters of law can be reviewed and interpreted. 

Breakdowns typically occur when these structures fail to operate within their limited spheres.  Recent examples of this in South Africa have included the so-called “spanking case”, where the apex Constitutional Court declared that the historic defence for parents (to a criminal charge of assaulting a minor) of “moderate and reasonable chastisement”, was unconstitutional.  In taking this decision, the Court did not simply interpret the law – it made the law and removed the typical public interaction and debate from the more democratic legislative process.  In so doing, it over-rode historically recognised parental rights and also religious rights, since many parents believe that some form of loving physical correction is necessary for raising their children according to their value systems.  It did so despite the fact that the vast majority believed that they should have the right to do so and, as a result, effectively criminalised thousands of loving and caring parents who have the best interests of their children at heart.

A further, recent challenge has come in the form of a lawsuit filed by the South African Human Rights Commission (SAHRC) against the Beloftebos wedding venue.  In this case, the SAHRC (which is an institution of State mandated to protect and promote all equality and human rights contained in the Constitution) has chosen to use its resources to represent the interests of one equality right (sexual orientation) over other equality rights (freedom of religion, conscience and belief), despite the fact that the Constitutional Court has already ruled that there is no hierarchy of rights.  This is an example of where the “greater good” is determined by the ideologies (i.e. belief systems) which those in power at the SAHRC subscribe to, and this is now being used to limit the “negative” and inalienable right of religious freedom.

The SAHRC opened this case three years after the owners of the venue declined to organise and facilitate a “same-sex” wedding because of their sincerely (and widely) held belief that marriage is a covenant relationship between a man and a woman and is symbolic of the relationship between Christ (the Groom) and His Church (the Bride).  The Beloftebos owners maintain and affirm that everyone is welcome at their venue and that they happily serve all people, but they do not believe that they (or anyone one else) should be forced to celebrate every type of event or to perform every type of service.  They had no intention of deliberately offending the couple in question and explained that they would decline (and have declined) other types of event which are contrary to their faith convictions, like a polygamous wedding ceremony, a Halloween party or a trance party. 

This case is of universal concern since it is a freedom issue – the freedom to work and even to operate your private business according to your conscience and religious / moral convictions. Beloftebos is not the only wedding venue in South Africa. Indeed, it is not even the only wedding venue in the Western Cape Province, or in the Gansbaai area for that matter. The wedding industry is an area of business where a plurality of venue options and service providers abound. A couple has many different options available to them to choose from for their special day, yet, by preferring one equality right at the expense of others, the SAHRC is insisting that all businesses should be forced, at the expense of the convictions and consciences of those employed by it, to accept all types of business.


If the SAHRC succeeds – and Beloftebos is forced to host every type of event – then this same standard will apply to every other sector of South African business.  The problem in both these examples (and there are many more) is that views of the few are being imposed on the majority. Where this happens, cracks inevitably appear and freedoms begin to disappear.  This is particularly concerning where the views of either a vocal minority or a narrow majority are imposed upon everyone else.  As such, it is imperative that these freedoms are vigorously defended and these rights are protected and promoted.  Should we fail to do so, the dream of a united yet diverse society which belongs to all who live in it, will dissolve into a distant aspiration – to the ultimate detriment of everyone.

Michael was raised in England, graduating from the University of Bristol with an honours degree in Law before immigrating to South Africa in 1983. He has been a successful businessman as well as having spent over 30 years in ministry in South Africa, Europe and the USA. He serves as the Executive Director of Freedom of Religion South Africa (FOR SA).

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