The disjuncture between SA law and SA education

Perhaps I’m lying. I know that they include some human rights in the school syllabus somewhere but to simply tell children you have rights and then go on to list them is grossly inadequate. Take two prominent rights. For this example let’s say equality and freedom (as an amalgamation of various freedom related rights). In isolation, two totally cool concepts. Put them together in a jar to try stir them up and you’ll have an easier time mixing oil and water.

Recently, these complex rights antagonisms were brought to light in the Constitutional Court in relation to the language policy of Stellenbosch University, where rights relating to culture, education and equality were pitted against one another.

Add to these complexities three branches of government that work together in keeping one another in check and you unleash a really sophisticated system on a nation populated by individuals with precious little opportunity to learn how it works.

Take gay marriage, for example. Back when it was argued in the Constitutional Court on the basis of equality, the court declared that the laws of South Africa were inconsistent with the Constitution because the Marriage Act specifically indicated that marriage was between a man and a woman.

Many think that it was the court which enabled gay marriage but they would be wrong, for it was the court which merely paved the way. The court does not have the power to create such far-reaching laws (at least not permanently) because to do so would infringe on the duties and mandate of parliament. Parliament can therefore be told that their laws are wrong and under what criteria but cannot be told exactly how to fix them.

When parliament delivered its solution, we all expected a simple amendment to the Marriage Act. Instead, we got a surprise, a new piece of legislation in the form of the Civil Unions Act and a valid, yet unexpected solution to the equality problem posed by the Marriage Act. For practical purposes, people are no longer precluded from engaging in marriage by the law, so the legislature fulfilled the requirements of the Constitutional Court even though the discriminatory legislation still exists.

This may boggle the mind and may resonate with an even more recent decision of the Constitutional Court in relation to cannabis.

While there may be significant belief that dagga is now legal thanks to a court ruling, that is not the case. The law outlawing it remains in place, yet the court has determined that executing that law in particular private respects would be an unjust infringement on one’s privacy. The complexities at play are a delicate balance between the power of the court, legislature and executive in enforcing the law.

Matters relating to the sale of cannabis (still outright illegal) and how to overcome the infringement of privacy are now left to the legislature and, if they can find the creativity as they did with equal marriage to blindside us, perhaps they may retain the illegality of cannabis.

It’s therefore no wonder why there is such confusion when headlines announce that people are arrested for cannabis use or sale.

We’re often hailed as having the most progressive constitution in the world (whatever that means) and that is due, in no small part, to the interplay between 243 sections, 6 schedules and 4 annexures fit into some 170 pages.

Don’t get me wrong. I’m not arguing that South Africans are incapable of understanding the Constitution. The United States’ constitution is less than half the size of our own and they spend a lot of resources in legal education from a school level, and they still face issues of lack of understanding.

I’m also not trying to compare us to another nation. I just don’t think any complex democracy has gotten it near right enough.

What we have to accept is that it’s not as easy to simply assert, “I have a right” and expect nice things to flow from it. In most instances, and understanding the complexities above, the right you’re asserting likely has a corresponding right it will be infringing on regarding others.

But hey, this is South Africa. Since when did we really care about the rights of others when we have our own rights to look out for? It seems like a lot of effort to look over our fence and afford some rights to others.

Richard Chemaly is an entertainment attorney, radio broadcaster and lecturer of communication ethics

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