It all starts here®
Introduction
As South Africans we all have the Constitution of the Republic of South Africa, 1996 (Constitution) and its values in common. Not only do we
adhere to them but we also rely on them. This common ground is the ideal departure point in such a diverse context as a university or for
relevance of this guide, the NWU community. This guide takes the three constitutional values (human dignity, freedom and equality) and
draws each of the relevant human rights back to a value making human rights practical and easier to understand. The aim of this guide is to
furnish you with enough explanations and examples to better understand human rights. You and I both need to be agents of change in
South Africa striving towards a human rights culture, promoting respect and learning others about human rights. This guide aims to furnish
you with the required information to do just that.
Where do human rights come from? A brief overview
Human Rights were initially referred to as “the rights of man” until the middle of the 20th Century when Eleanor Roosevelt started to promote
the term “human rights”. Roosevelt observed, through her work at the United Nations, that “the rights of man” was experienced by many to
apply only to men. Because of this observation she promoted the use of the term “human rights” as it was more gender-equal. Human rights
are not meant to be exclusive to a certain group or class of people (Mabungizi, 2004). Accordingly, when speaking of human rights it is
generally meant to be understood as:
The rights belonging to an individual as a consequence of being a human being and for no other reason.
Human rights are rights that any and every human possess by virtue of being human. This means that these rights cannot be waived or
alienated.
What is human rights?
The Constitution consists of 243 articles which are divided into 14 chapters. The second chapter of the Constitution, the Bill of Rights,
contains a list of human rights. The Bill of Rights consists of a total of 27 articles each describing a different right for South African citizens.
When taking the scope of this guide into account some rights can be regarded as more relevant than other. Therefore we will only pay
attention to those rights relevant in the NWU Community (staff, students and stakeholders) for the purpose of this document.
Articles 9 to 14 guarantee the rights to equality, human dignity, life, freedom and security of the person as well as privacy. The traditional
freedom rights are found in articles 15, 16, 17, 18, 21 and 22 where freedom of religion, expression, association, movement and freedom of
profession are guaranteed. Article 24 gives everyone the right to an environment that is not harmful to his or her health. Article 25 endows
upon each citizen the right to property. Article 30 confers the right upon each South African to practice his or her culture and to speak his or
her language. But this may not be done in a manner which is inconsistent with the Bill of Rights (Kleyn & Viljoen, 2002).
These are the human rights most applicable for the purpose of this guide. As it can be difficult for a person with no legal background to
remember all these different rights, we have made an infographic to help you remember it. This infographic further simplifies these rights by
drawing each of them back towards one of the Constitutional values. These values are freedom, human dignity and equality and they form
the basis of democracy in South Africa. It is also important to note that these are the same values as contained in the NWU Human Rights
Policy (to which we all are bound) which will be discussed under the next point.
How is human rights applicable to you and me?
South Africa has a regime of Constitutional supremacy. This means that the Constitution of the Republic of South Africa, 1996 is the highest
authority in the country and that it is the highest form of law applicable to you and me. In section 2 of this Constitution it states that any law
or action (action by you or me or any other organ) that is not in accordance with the Constitution will be regarded as invalid and unconstitutional. Section 2 further states that all South Africans (again, you and I) are governed by it and are therefore legally bound and obliged to
adhere to the provisions therein.
As this is the highest authority in South Africa it is the ideal document to promote and protect human rights. The Bill of Rights (Chapter 2 of
the Constitution), in which all human rights are enshrined, is regarded as the cornerstone of the South African democracy (Currie & De Waal,
2001). Section 8(2) furthermore provides for the rights in the Bill of Rights to be recognised and respected in the everyday environment making human rights directly relevant to the conduct between you and me.
With regards to human rights any country would regard the ideal state as one where there is a human rights culture in place and where each
and everyone’s human rights are respected. In South Africa this definitely is the case. In article 184 (1)(a) the Constitution affirms that a
human rights culture needs to be established and respect for human rights should be promoted. This is a worthy aim and for a country to
establish this it is important for us as part of the university community to take ownership of this idea and to take measures for growing and
learning towards a human rights culture.
The North-West University has already taken ownership of this idea and have a Human Rights Policy in place to which all of us (staff and
students) are bound. This policy stipulates that all the fundamental values and rights that are in the Constitution of South Africa must be
respected and upheld in the university community. This Policy further state that these human rights should not be viewed in isolation but
must be applied as an integral part of all university practices and policies. Therefore, apart from the Bill of Rights the whole NWU community
are also bound by the Human Rights Policy of our university.
What do we believe?
We as a community of university students believe in a
learning environment based on transparency and
accountability.
HOW?
Freedom
1
Equality
equality
2
3
Everyone has the right to freedom and security, which
includes physical and psychological integrity, as well as
freedom of expression and association.
At the NWU Potchefstroom campus we deem all students equal, irrespective of race, sex, descent, colour, sexual orientation, age, disability,
religion, culture or language.
HUMAN DIGNITY
Every individual has an inherent dignity and the right to have that dignity respected and protected.
TherEforE:
ThereforE:
- Therefore we believe that no-one may be subjected to any treatment that makes him/her feel inferior.
- We regard every life as worthy of protection and create conditions for life that make living worthwhile.
- Every individual is entitled to privacy in his/her personal and student life, and his/her dignity as a
humanbeing may not be violated.
If you feel we do not meet
this please send a SMS
to the
Complaints
&
Thoughts Line
Human rights and Initiation / ontgroening
Now that human rights have been explained we can start to look more closely at a well-known challenge to upholding a human rights culture,
namely initiation (Afrikaans translation: ontgroening). In the case EB v Creecy NO (2010) a learner got elected as deputy head boy of a
prominent Afrikaans medium high school in Krugersdorp. Prior to the inauguration a so-called “team building exercise” was undertaken. This
was in reality an initiation ritual or ontgroening. The reason given for this exercise was that the exercise proposed to facilitate bonding between
the learners. The Judge in the case described this initiation that took place as follows (EB v Creecy NO, 2010):
As history has shown these kinds of orientations more often than not become a spectacle of that which would only satisfy those with a
distorted sense of ‘fun’ and ‘enjoyment’ and, for that matter, ‘bonding’. This initiation was no exception: it was marked by unruly and rowdy
behaviour probably much to the delight and amusement of the onlookers but unfortunately so, to the dismay and humiliation of the victims.
From the description given by the judge in this matter it is clear that the human dignity equality and freedom of these learners were infringed
upon by the exercise. To make it practical we can take each constitutional value and evaluate it with the given facts. These students were
humiliated therefore their human dignity were impaired. There was a group of learners in a more senior position that was in control of this
event that treated the students subjected to the exercise as different and unequal to such an extent that it impaired on their human rights (the
right to equality, for example). Lastly their right to freedom was violated especially the right to freedom and security of their person due to their
forced participation in a humiliating event.
Rev to y d me:
Very often students from a residence welcome the newcomers in such a way that they are moulded into a certain ethos or culture. This is
often done through the belief that when people suffer together they bond better. As seen in the description of the learned judge this is not
the correct way of doing things and constitutes an infringement upon someone’s human rights. Further and more specific examples will
be given under the next point and more importantly the consequences of these type of infringements will be listed.
What
What is
is the
the South
South African
African Human
Human Rights
Rights Commissions’
Commissions’ perspective
perspective
on
on infringements
infringements by
by initiation
initiation practices?
practices?
The South African Human Rights Commission is created in terms of chapter 9 of the Constitution as an organ that has the sole responsibility
to promote and uphold constitutional democracy in South Africa. The South African Human Rights Commission is of the view that the
circumstances of each incident determine the right upon which it infringes (SAHRC, 2001:13). However all initiation practices have the same
effect and that is to humiliate and subordinate a student mentally and sometimes physically as well (SAHRC, 2001:16). Often students
partake in practices or events merely because it has been a tradition for a very long time. The reality however is that we have been living in a
constitutional democracy for more than two decades and we must revisit our practices and adapt them to fit in to the current legal dispensation. This statement hold true for all practices taken from the past and to those practices planned for the future. It is therefore important to
give examples of human right infringements within the initiation context in order to empower you to steer clear of these risks and to help you
evaluate your actions even further.
Examples of human rights infringements / Examples of infringements upon human rights
In 2001 the South African Human Rights Commission initiated an investigation into initiation practises at educational institutions on request of
late Minister for Education, Prof Kadar Asmal. The minister requested this report on the grounds of various complaints received in writing and
after the tragic death of a student during one of these rituals. Some of the examples of initiation taken from the South African Human Rights
Commission report will be cited and used to illustrate infringements upon human rights (SAHRC, 2001:4-6). Other examples taken from
jurisprudence and relevant sources will also be taken in to account. This will be done by once again utilizing the three core values and
drawing the infringement back to the relevant value. The consequences of these actions will be dealt with separately after the examples. It is
noted that this guide will not provide the detail of the examples such as names and places/institutions for respect of confidentiality. The
examples are further used without prejudice.
Students kept awake and forced to learn the names of senior students
The first example is that of a first year student complaining that she is being deprived of sleep by house committee leaders and senior
students. Students were constantly called to “meetings” during the night, forced to learn the names of senior students and to write test on
the names (SAHRC, 2001:6). According to the complaint written to the Minister this behaviour kept first year students from performing
academically. This type of traditions deprives students of their freedom. Keeping a person awake infringes upon his or her right to freedom
and security of the person, guaranteed to him or her in Section 12 of the Constitution.
Rev to y d me:
Any infringement upon human rights can lead to prosecution. If a student is kept awake or forced to do something against his or her will
and these actions constitute an infringement upon their human rights as seen in this example, the state will have a case against you and
you as an individual can be prosecuted by a court of law.
Painting students and leaving them outside of town to walk back to the residence
In February of 2001 a second year student was killed during an initiation ritual of a residence. The ritual entails that all second year students
have their hair shaven off. They are then painted all over their bodies, dropped somewhere outside of town and must then find the way back
to the residence. During this ritual one of the students got hit and killed by a car (SAHRC, 2001:6). With this set of facts there are quite a few
infringements. One can start to dissect this matter by the alteration of the appearance of the students. As a person you are constitutionally
guaranteed of the right of freedom and security of the person. Apart from the specific rights that are infringed upon the value of freedom as a
whole is disregarded. The freedom of these students is further deprived by taking them outside of town and making them walk back. The
usual defence that is cast up is one of voluntary risk acceptance. This will be discussed under the point of liability.
Rev to y d me:
Any infringement upon human rights can be prosecuted. The students in charge of actions such as these can be prosecuted by a court of
law because the action being conducted does not justify the limitation to the right of a person’s freedom.
Article 36 of the Constitution renders the possibility of the limitation of rights. This must however be seen as a balancing act between the
right that is being limited and the purpose or the cause for what this specific right is limited for.
Assault
Many of us think that assault only manifest when one person is beaten by another (i.e. physically). As a matter of fact this is only a very small
part of the offense. One can be found guilty of assault for the slightest of reasons according to the de minimis rule that is used in these types
of cases. Violence can be inflicted either directly or indirectly, both will be discussed in collaboration with relevant examples (Snyman,
2006:432).
Bumping and pushing of students
When one student is bumped or pushed around by another student for example a house committee member pushes a first year student who
doesn’t comply with his or her rules it is a direct infliction of violence upon the first year student and constitutes to the offense of assault. In the
case of Herbert (10 CTR 424) the court found the accused guilty on charges of assault for smacking the complainants cap from his head
without his permission (Snyman, 2006:433).
Hitting fellow students with a kierie, solat or any other object
Indirect infliction of violence is present when a person uses an instrument to exercise power over another person’s body for example hitting
them with something or throwing him or her with an object. Practical examples that are cited in the criminal law is when a person pulls away
the chair that another person is trying to sit on and leaves him or her to fall to the ground. Or spitting on someone or throwing them with a
glass of water or beer (Snyman, 2006:434).
Even though some of these examples would not even have injured the complainant the requirements are met to form a case of assault against
the transgressor regardless of whether the complainant was injured or not.
Rev to y d me:
When a student is bumped or pushed around, hit or thrown with an object he or she can open a case against the transgressor. This
means that you as an individual will be criminally prosecuted in your personal capacity. Depending on the charges against you a conviction of the abovementioned can constitute imprisonment and/or a suspended sentence as well as a fine. Nevertheless if found guilty you
will have a criminal record for the rest of your life.
Intimidating fellow students
Article 1(1) of the Intimidation Act (72 of 1982) tells us that a person may be liable for intimidation if he or she acts in such a manner that his or
her actions will cause another group or a person to fear for his or her own safety including the safety of his property or to fear for the safety of
others and also their property. Therefore it will be unlawful to right on the mirror of a residence something like “we want your blood” or “tomorrow you will wish you prayed more”. These type of actions have no other purpose than to intimidate and cultivate fear. This infringes upon the
right to freedom, for the student is forced to comply, adhere or attend due to intimidation and not out of his or her own choice.
Rev to y d me:
Intimidation is not determined by your view or interpretation of your own actions and also not the view or interpretation of any other senior
residents. It is determined by the perceived consequences of your actions by the person or group of persons who are allegedly experiencing the intimidation.
For a house committee member acting in official capacity the consequences and procedures will be explained in more detail under the
next point.
Examples of liability
Often the reality of being prosecuted and being held liable for our actions is forgotten. The following examples indicate the extent to which
we, as members of the NWU community, can be held liable for our actions should they infringe on rights in certain factual situations.
The first example in S v Van der Merwe (2011). Students were held liable in their personal capacity for crimen injuria (the unlawful and
purposefully infringement upon the dignity or the privacy of another person). Students of a university exposed black staff members to various
initiation rituals in resistance to an integration policy of the university. These actions along with the calling of specific names constituted a
case of crimen injuria as the actions of these students impaired the dignity of the staff members. These students exposed themselves to a
university disciplinary hearing as well as a criminal hearing in a court of law. The students received a fine as well as a suspended prison
sentence for one year. They were also permanently suspended from the university. This means that these type of actions are considered to
be so serious that the State opens a case against you and when convicted you have a criminal record for the rest of your life. This is
applicable to all students, as you are a governed by South African law.
When looking at the position of a house committee member, there is another form of liability that is of importance. This is where someone
else or an institution can be held liable for actions taken by another individual due to the presence of a certain kind of relationship between
the two parties. For instance in some cases a university can be held liable for the actions of a house committee member.
The best illustration and the most applicable one can be found in the case of Gibbens v Williams, Muller, Wright & Mostert ingelyf and
others (1987). In this case an initiation ritual where first year students were obliged to dive into a mud bath came under scrutiny. This was
done with the approval of the houseparent and under supervision of the house committee. This initiation, ritual or tradition as it is described
in the court case formed part of the approved initiation programme for residences. This program was seen as part of the formal program for
welcoming and orientation of first years of the university. To determine whether or not a claim for damages was to succeed the court
examined the relationship between the university and a house committee member.
The first argument that came to light is one of voluntary risk acceptance. It is argued that the students partook in a ceremony of going
through a mud bath knowing what the consequences might be and also that this was not compulsory to do. The Court however were of the
opinion that:
…the circumstances that the group of first years found themselves in, where it was expected of them to play along with the whole process
of initiation and to subject themselves to the authority of the senior students, it is hardly conceivable that the plaintiff could deviate from the
order to go through the mud bath.
Taking this into account as well as the democracy of South Africa based on Human Dignity, Equality and Freedom it is not possible to argue
that a student voluntarily accepted the risk of a possible degrading action. Remember that human rights cannot be waived and also that a
defence of voluntary risk acceptance does not alienate a person from his human rights.
The court went further and determined whether or not an employer-employee relationship could be established between the university and a
house committee member. The court held, with relevant authority, that for such a relationship to exist four factors need to be present. All four
these required factors will be discussed in order for us to establish whether the university can also be held liable for my actions as a house
committee member.
1.
Contractual Agreement
Certain requirements are set out in the regulation document for residences which governs the election process and serves as a contract
between the committee member and the university. As this document is an approved university document and with acceptance of office a
house committee subject him-or herself to the authority thereof. Therefore a contractual agreement is in place.
2.
Control
The house committee is headed by the primaria or pirmari of the residence which report to the houseparent. The houseparent reports to the
Dean of Student Affairs and the Dean to the Rector of the campus. Therefore houseparent and the house committee members can be seen
as an extension of university management. Certain duties are conferred upon the house committee by the university. These duties can be
found in the koshuisreglement and therewith the relevant or required control is established.
3.
Remuneration
There will only be remuneration of some sort when certain duties are fulfilled. The fact that a house committee member gets remuneration
confirms the first and second points and reaffirms the employer-employee relationship.
4.
Dismissal
The court held that the final requirement was that it should be within the powers of the university to dismiss a house committee member. It is
clear in the disciplinary rules that this is well within the powers of the university and many examples of dismissals of house committee
members can be listed.
The ruling of the court in the said case was that the university must be held liable for all the damages that occurred under the supervision
and due to the negligence of the house committee member.
Rev to y d me:
The lesson we can learn from the courts verdict is that a house committee member can be regarded as an employee of the university.
This implies that as far as the house committee member acts in his or her official capacity the university can be held vicariously liable for
those actions. For the relevance of this guide the lesson does not stop here. We should keep in mind that because a house committee
member can be regarded as an employee of the university the university as the employer can claim all damages from the employee that
occurred due to his or her negligence, the same applies for a house parent.
Conclusion
The law forms an integral part of our everyday life as stated in the introduction we do not only adhere to it, we also rely on it. Human rights
therefore is not merely a subject or a phrase only applicable to you and me in certain circumstances. It is practical and present in everyday
life and through the examples of this guide made tangible and recognisable. It further furnishes you with the relevant information to adapt
your actions or traditions accordingly. For South Africa to become a Nation where a human rights culture is celebrated individuals such as
me and you should strive towards making the NWU Community a micro cosmos example of that culture by embracing and applying guides
such as this one.