Time for Cinderella to go to the ball: Reflections on the right to freedom of scientific research

• Pages: 258-286
• Citation: (2021) 138 SALJ 258
• Published date: 19 May 2021
• Date: 19 May 2021
• Author: Thaldar, D.W.
• DOI: https://doi.org/10.47348/SALJ/v138/i2a2

258

TIME FOR CINDERELL A TO GO TO THE

BALL: REFLECTIONS ON THE R IGHT TO

FREEDOM OF SCIENTIFIC RESEARCH*

DONRICH W THALDAR†

Associate Professor, University of KwaZulu-Natal

MICHAELA STEYTLER‡

Master’s Fellow, University of KwaZulu-Nat al

Despite the fac t that the Constitution explic itly protects the right to freedom o f scientic

research, this r ight features neith er in the preamble to any l egislation, nor in any

reported ca se law. If the right to freedom of scie ntic research remain s in obscurity, South

Africa could sl ip into totalitaria n control of the scient ic enterp rise, to the detrime nt

not only of scientist s, but also of society in ge neral. The righ t to freedom of scienti c

research should play a m ore central role in polic y-making. This is n ot only because it

is an enumerated c onstitutional righ t, but also because it is i mportant in its ow n right,

as it serves pur poses that are at the c ore of our constitution al value-system: promoting

individual auton omy, facilitating the search for t ruth, and suppor ting democracy.

The right to f reedom of scientic resea rch is unique in protecting n ot only the exchange of

scientic th oughts and information, but al so in particular the physical a ctivities entailed

by scientic r esearch, such as pe rforming ex periments. T he notion that gover nment

should somehow seek to re gulate every n ew scientic de velopment is er roneous, as

freedom should be the d efault position in scien ce-related polic y, and should only be

limited by regulation i f, and to the extent that, it i s constitutionally just ied.

Human r ights – rig ht to freedom of scientic res earch – expres sion –

dig nity – li mitation

I IN TRO DUCTION

There are good rea sons to believe that the right to freedom of scientic

research1 is t he proverbial stepdaught er of the South Africa n Bill of Right s.2

First, considering that legislat ion often mentions the con stitutiona l rights

that it intends t o promote in its preamble, one might e xpect that legisla tion

* This article is partia lly based on research done for the s econd author’s LLM

degree und er supervision of the  rst author. The authors w ish to acknowledge the

support of the Nat ional Research Foundat ion (Grant 116275) and the Universit y

of KwaZulu-Nata l (Afr ican Health Re search Fla gship Gra nt). The authors also

wish to th ank Stephen Peté for his hel pful comments on t his article. A ll remain ing

errors rem ain the authors alone.

† BLC LLB MPPS (Pretoria) PhD (Cape Town) PGDip (Oxon).

‡ LLB (KwaZulu-Nat al).

1 Const itution of the Republ ic of South Africa, 1996 (‘the Constitution’),

s 16(1)(d).

2 Don rich W Jordaan ‘Science versus anti-science: The law on pre- embryo

experimentat ion’ (2007) 124 SALJ 618. The author ha s since changed hi s surname

to Tha ldar.

https://doi.org/10.47348/SALJ/v138/i2a2

(2021) 138 SALJ 258

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THE RIGH T TO FREEDOM OF SCIE NTIFIC RESE ARCH 259

https://doi.org/10.47348/SALJ/v138/i2a2

that relates to science would mention freedom of scientic research. How

many Acts are there that relate to science, one may ask? In fact, there are

plenty of them. According to its website, the Department of Science and

Innovation adm inisters 22 Acts.3 Be sides these Acts, there are also Acts

that are administered by other government departments, which contain

provisions that relate directly to scientic research. Examples are the

Patents Act 57 of 1978,4 the National Hea lth Act 61 of 2003,5 and the

Protection of Personal Inform ation Act 4 of 2013.6 Remarkably, however,

apart from the Constitution itself, not a single Act of Parliament contains

the phrase ‘freedom of scientic research’.7

Further more, has freedom of scientic research ever been analysed by

any of our court s? Remark ably, again, the answer i s no.8 One can spec ulate

as to the reason. It may be because scientists have not felt that the r ight

has been infringed upon. Or it may be due to a relucta nce on behalf of

scientists to exert their rights — or even an ignorance of their rights. The

legal prac titioners who advise scient ic bodies and indiv idual scientists may

be contributing to keeping freedom of scientic research mental ly locked

away in obscur ity. This situation is pos sibly self-perpetuat ing: as long as no-

one relies on the ri ght to freedom of scientic res earch, the right wil l never

be analysed and applied by a cour t, and no-one will have the condence to

be the rst to venture onto terra i ncognita by relying on the right.

The global COVID-19 pandemic, and in par ticula r the accusations

again st the Chinese governme nt of exercising censure ag ainst its scienti sts,9

vividly illustrates the relevance and importance of freedom of scienti c

research. Clearly, freedom of scientic research can save lives. But, the

relevance of the rig ht to freedom of scient ic research is not restricted

to the current global healthcare crisis. Whenever science-related policy

3 Department of Science a nd Technology website avai lable at https://www.dst.

gov. za, accessed on 13 July 20 20.

4 Scientic research can constitute infr ingements on p atents (ss 65–71).

According ly, although patenting is on the one hand an incent ive for conductin g

scientic r esearch, on the other hand it a lso acts as a constr aint on the freedom of

scientic research.

5 For example, r esearch on human embr yos is limited i n various ways (s 57(4));

research involving human subjects is m ade subject to ethics committee approval

(ss 71–3).

6 The processing of in formation for the purpose of research prov ides an ex cep-

tion to cert ain general prohibit ions on the processing of i nformation (e g ss 18(4)(f),

27(1)(d), 32(5)( b)).

7 According to a sea rch performed on Jutastat, 27 April 202 0.

8 According to a sea rch performed on Jutastat and on SAFLII, 27 Apr il 2020.

9 King-wa Fu & Yuner Zhu ‘Did the world overlook the media’s early

warni ng of COVID-19?’ 2020 Jou rnal of Risk Res earch 1; Vigji lenca Abazi ‘Truth

distancing? Wh istleblowi ng as remedy to censorship du ring COVI D-19’ (2020)

11 Eur opean Journal of R isk Regulation 375; Heidi J L arson ‘A lack of infor mation

can become misinformation’ (2020) 580 Nature 306.

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