In the midst of debates about South Africa’s celebrated constitution, a critical question emerges: What truly defines a “right”? The Constitution of the Republic of South Africa, 1996, grants citizens various rights, but the distinction between self-contained rights like life, movement, and speech and rights requiring external action is stark. The right to education and healthcare, for instance, seems to demand the time and skills of others, raising profound questions about the nature of these entitlements. As we grapple with fiscal challenges, it’s crucial to rethink the essence of rights and their consequences.
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The Nature of Rights
By Zakhele Mthembu*
South Africa is always mentioned as having the best constitution in the world. Yet our constitution, like many others globally, confuses what a right is by making the actions of others the rights, and thus entitlements, of everyone.
The Constitution of the Republic of South Africa, 1996, outlines the rights of people living within South Africa in Chapter 2. Before we proceed, one ought to ask oneself what these rights are. Intuitively we know that a ‘right’ is an entitlement of some sort. Something that is deserved. In the legal sense, a right is the latitude to do or an entitlement to a certain action.
The right to life, for instance, is an entitlement every living human being in South Africa has. The right to life exists and is manifest and enjoyed without any other person having to take any positive action. Positive action would be any action as opposed to doing nothing. Since doing nothing is an action itself, through the absence of action, it would be negative action and the opposite would be positive.
Therefore, the right to life is a right that is enjoyed by the person who has it, fully, without someone else having to take any action for its realisation. The only action required for the realisation of this right would be non-action. That is, desisting from taking the life of another. This is the same with the right to movement and speech. These rights are exercised without any need for action from another person for their exercise.
To further drive the point home: Thinking of rights as an entitlement, we see how having a right to move, live and speak freely, is intuitively just. One is born with the ability to move and speak which presume life. Moving and speaking do not require anything from anyone in terms of positive action, thus this is an entitlement that does not force anyone to do anything. Therefore, being entitled to speak and move freely is just because not only is it in line with my nature and thus is the expression of it, but it also harms no one whilst requires no positive action from anyone.
Let us now contrast these rights of which we have spoken, with other rights found in the South African constitution’s Bill of Rights. The text of the rights themselves has a seed of misunderstanding to begin with, but the interpretation of the text as cemented through various decisions of our courts, is the truly egregious part.
In South Africa we have the right to education and the right to healthcare. Thinking of rights as entitlements, this means that every South African is entitled to education and health. The next question must surely arise, from whom? The answer is from everyone else who happens to find themself within the bounds of the South African jurisdiction.
Education necessitates an educator and the time necessary to educate. Healthcare necessitates a practitioner knowledgeable in human health and time to administer care. Therefore, when we speak of the right to healthcare or education, thinking of rights as an entitlement, we are saying we are entitled to the skills of someone else (a practitioner or educator), as well as their time.
When one violates the right to life through killing someone and are found to be guilty, the corrective measure therein is to use violence/force to either deprive that person of their freedom to move freely or their right to life also, depending on your jurisdiction globally. What would be the corrective measure for the right to education? Forcing a person with the requisite skills to offer them and their time freely?
The South African courts have interpreted the right to education, to use it as an example, as necessitating positive action on the part of every South African, unlike other rights which do not require anything from anyone. This educational right requires money, taken through taxes, to compensate those whose skills and actions are considered rights.
One set of rights entitle you to nothing else outside of you, from speech to movement; they do not require any positive action from anyone. Whilst the other rights entitle you to the actions of others and the time spent doing said actions. The latter type of ‘rights’ are not rights at all and the only just entitlements, naturally, are those which do not require any action from others, unless there is an agreement creating said entitlement.
As we battle with a state that is running out of funds – but not out of things to spend the funds on – we must have a through conversation about what rights are and what they are not. Until we realise that we are not entitled to the work and time of other human beings, we will continue down this road to serfdom we are surely on.
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*Zakhele Mthembu BA Law LLB (Wits) is a legal researcher at the Free Market Foundation. The views expressed in the article are the author’s and not necessarily shared by the members of the Foundation.
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