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 CINDERELLA TO GO TO THE

BALL: REFLECTIONS ON THE RIGHT TO

FREEDOM OF SCIENTIFIC RESEARCH*

DONRICH W THALDAR†

Associate Professor, University of KwaZulu-Natal

MICHAELA STEYTLER‡

Master’s Fellow, University of KwaZulu-Natal

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

research, this right features neither in the preamble to any legislation, nor in any

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

Africa could slip into totalitarian control of the scientic enterprise, to the detriment

not only of scientists, but also of society in general. The right to freedom of scientic

research should play a more central role in policy-making. This is not only because it

is an enumerated constitutional right, but also because it is important in its ow n right,

as it serves purposes that are at the core of our constitutional value-system: promoting

individual autonomy, facilitating the search for truth, and supporting 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 research, such as performing experiments. The notion that government

should somehow seek to regulate every new scientic development is erroneous, as

freedom should be the default position in science-related policy, and should only be

limited by regulation if, and to the extent that, it is constitutionally justied.

Human rights – right to freedom of scientic research – expression –

dig nity – li mitation

I INTRODUCTION

There are good reasons 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 legislation often mentions the constitutional rights

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

* This article is partially based on research done for the second author’s LLM

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

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

of KwaZulu-Natal (African Health Research Flagship Grant). 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 Constitution of the Republic of South Africa, 1996 (‘the Constitution’),

s 16(1)(d).

2 Donrich 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 administers 22 Acts.3 Besides 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 Health 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

Furthermore, 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 right

has been infringed upon. Or it may be due to a reluctance 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 mentally 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 incognita by relying on the right.

The global COVID-19 pandemic, and in particular 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 right to freedom of scientic research is not restricted

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

3 Department of Science and Technology website available at https://www.dst.

gov.za, accessed on 13 July 2020.

4 Scientic research can constitute infringements on patents (ss 65–71).

Accordingly, although patenting is on the one hand an incentive for conducting

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 made 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 search performed on Jutastat, 27 April 202 0.

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

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

warning of COVID-19?’ 2020 Journal of Risk Research 1; Vigjilenca Abazi ‘Truth

distancing? Whistleblowing as remedy to censorship during COVID-19’ (2020)

11 European Journal of Risk Regulation 375; Heidi J Larson ‘A lack of information

can become misinformation’ (2020) 580 Nature 306.

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