Different Davids vs One Goliath: A Critical Affirmation of Individuals’ and Peoples’ Self-Advocacy for the Preservation of Human Rights as Entrenched in Judicial Decisions

Abstract

It often occurs that South Africans suffer human rights violations at the hands of other South Africans. In these cases, the adjudication is generally straightforward and remedied between the two parties in a court of law. This case note, however, explores the complex human rights transgressions perpetuated by the State which are accompanied by peculiar reprehension due to the constitutional standards of appropriate conduct that the State is under in its role as protector and provider of its people. To illustrate this, the judgments of Johannes Moko v Acting Principal Malusi Secondary School, Tlou Mokgonyana and Others (CCT 297/20) [2020] ZACC 30; 2021 (4) BCLR 420 (CC); 2021 (3) SA 323 (CC) (28 December 2020) and Minister of Health and Others v Treatment Action Campaign and Others (No 2) (CCT8/02) [2002] ZACC 15; 2002 (5) SA 721; 2002 (10) BCLR 1033 (5 July 200236). The note focuses on the realisation that people have had to resort to self-advocacy against the State to garner enjoyment from their guaranteed human rights. This, in turn, manifests itself in a crack in the trust relationship between the State and the people. Despite self-advocacy lacking novelty in South African judicial culture, what does stand out is the State’s seeming ignorance of the damage to the sacred social-trust relationship upon which the credibility of the State’s government rests. Without this trust component, the author argues, the credibility of the government evaporates and, more importantly, the fabric of constitutionalism is tarnished.