The Human Rights Duties of Companies and other Private Actors in Africa

• Jurisdiction: South Africa
• Date: 27 May 2019
• Pages: 359-378
• Author: Mbuyiseli Madlanga
• Published date: 27 May 2019

359

THE HUMAN RIGHTS DUTIES OF COMPANIES

AND OTHER PRIVATE ACTORS IN SOUTH

AFRICA*

Mbuyiseli Madlanga

B Juris (Unitra) LLB (Rhodes) LLM (Notre Dame)

Justice of the Constitutional Court of South Africa

1 Introduction

Let me start by tha nking Professor Sand ra Liebenberg for the invitation,

and Professor Nicola Smit, the Dean of the Law Faculty, for being my host.

It is humbling and special to present t he 2018 Annual Human Rights

Lecture. It is humbling because I present it following the path of a number of

luminaries i n the human rights d iscipline who presented this lect ure before

me. It is special because this year is t he one hundredth anniversar y of the birth

of Mam’uAlbertina Sisulu and Tat’uNelson Rolihlahla Mandela who both

made immeasurable personal sacrices and were subjected to untold suffering

so that you and I can enjoy human rights i n a constitutional democracy. It is

special because this yea r is also the one hundredth an niversary of the existence

of Stellenbosch University; a university which – with ot her white universities

– were part of the symbols of the domination of the black majority by the

white minority. Black people found themselves in these u niversities only

on sufferance. The racist, segregationist policies of the successive colonial

and apartheid govern ments played themselves out in these universities.1 And

apartheid’s “logical” conclusion was the establishment of black universities

from the late 1950s.2

Many apartheid notables were educated here at Stellenbosch University:

Dr DF Malan was educated here when t his institution was still called Victor ia

College; Dr Hendrik Verwoerd was educated here; Mr Balthazar Johannes

or John, as he preferred to be called, Vorster was educated here;3 and many

* This lectu re was delivered on the occasion of t he Stellenbosch Facu lty of Law and HF Oppenheim er

Chair’s Annua l Human Rights lect ure held on 30 August 2018. The fac ulty acknowledges w ith gratitude

the sponsor ship of Webber Wentzel in associa tion with Linkla ters for this ann ual lecture ser ies.

1 See MA Beale Apa rtheid and Unive rsity Educa tion, 1948-1970 PhD disser tation, Univer sity of the

Witwatersr and (2016) 3. Here the author says:

“Nationali sts clearly believed t hat education cou ld be used to suppo rt aparth eid. Through it s university

education poli cies in the 1950s and 1960s, t he Nationalist gover nment aimed to c ontribute to th ree key

policy aims: f irst, to entrench seg regation, which would also br ing about the de facto compl iance of

academics a nd students with the et hnically segregate d university system; s econd, to defuse polit ical

opposition by cha nging the political condit ions within the universit ies and university colleges; a nd

third, on t he basis of separa te institut ions, to diffe rentiate bet ween the educat ional opport unities

for different p opulation grou ps, specifi cally favourin g Afrika ners and disa dvantaging bla ck, and

especially African, students.”

2 1.

3 See, South Af rican Histor y Online “St ellenbosch Unive rsity” (undate d) SA History tps://www.

sahistory.org.za/place/stellenbosch-university> (accessed 12-12-2018).

(2018) 29 Stell LR 359

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a member of the Afrik aner Broederbond must have been educat ed here.

Whatever else the Broederbond m ight have been a thi nk-tank for, it was most

certain ly also a think-tank for crafting a nd propping up the heinous apartheid

system.4 Dr Verwoerd was an academic here at Stellenbosch Universit y.5

The equally notorious Dr Werner Eiselen was a professor of – guess what –

“Bantology” here.6 Surely, there were many others like them. O ne can only

imagine what they taught. So, this university played a signicant role in t he

tutelage of people who later featured prom inently in the apartheid machiner y.

That said, in recent year s Stellenbosch University has made some strides

towards transform ing itself. Were it not for those strides, we would not have

had Professor Russel Botman, a black per son, as a Rector7 of this universit y.

Were it not for efforts at chipping away at the foundations of the status quo,

patriarchy and misog yny, apartheid’s cognate evils ,8 would have been barriers

to the appointment of, for example, Professor Nicola Smit, a woman, as the

Dean of the Faculty of Law, Professor Sandra Liebenberg, another woman, a s

a Distinguished P rofessor who occupies an endowed professorship as t he H F

Oppenheimer Ch air in Human Rights Law, or Professor Zsa-Zsa Boggenpoel,

as the rst black woman holder of a Cha ir in the Law Faculty – the South

African Resea rch Chair in Property Law.

I am mindful of the Centenary Restit ution Statement issued by this

university’s current Rector, Professor Wim De Villiers.9 The importance of

this statement lies i n its acknowledgement of the university’s contribution

towards the injustices of the past , the university’s unreserved apology to those

it excluded from the privilege it enjoyed, and the universit y’s commitment to

become an inclusive institut ion. This is just the begin ning. More is expected

of the university. The commitme nt reected in the Centenary Restitution

Statement must become a realit y; and the detail of what that reality will be

must be thought out careful ly, and in a manner that is itself inclusive. I trust t hat

it will take far less than anot her 100 years for more signicant tra nsformative

efforts to emerge and bea r fruit.

Traditional or conventional thinking has always been that becau se human

rights “were designed to cu rb excesses of public power, rather than to regulate

‘private’ commercial or inter personal relationships”, they are not suited to

4 See in the conte xt of this University, L Vergna ni “Revelation of Inco ming Rector’s Ties to Secre t Society

Angers Facult y” (1992) The Chronicle of Higher Ed ucation A47.

5 See A Bank “T he Berlin Mission So ciety and Germ an Linguist ic Roots of Volkekunde: The Ba ckground,

Training and H amburg Writings of Wern er Eiselen, 1899–1924” (2015) 41 Kronos 166 190.

6 189, 190 and 192.

7 At other univer sities. a Rector is cal led Vice Chancellor.

8 MA Plaatjies Van Huf fel “Patriarchy a s empire: A theolog ical reflect ion” (2011) 37 Studia Historiae

Ecclesiasticae 259.

9 This statement declares:

“Stellenbosc h University (SU) ack nowledges its ine xtricable con nection with ge nerations pa st,

present and f uture. In the 2018 Centenar y Year, SU celebrates its many succ esses and achievements .

SU simultane ously acknowledges its cont ribution towards t he injustices of the past. For t his we have

deep regret . We apologise unreserve dly to the communit ies and individuals w ho were excluded from

the histor ical privileges t hat SU enjoyed and we honou r the critica l Matie voices of the ti me who

would not be silence d. In responsibil ity towards the pre sent and futu re generations, SU c ommits itself

uncondition ally to the ideal of an in clusive world-class un iversity in and for Af rica.”

360 STELL LR 2018 3

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