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09/02/2018 08:56 SAST | Updated 09/02/2018 08:56 SAST

On Pretoria's 'White' Residences: 'All Constitutional Rights Should Be Protected'

"One cannot use one's right to exclude another."

AFP/ GETTY IMAGES
University of Pretoria residence De Goede Hoop, currently under fire for lack of transformation.

The University of Pretoria's management and SRC have banned two of its residences (Sonop and De Goede Hoop) from taking part in any of the university's traditional events this year because of a lack of transformation. De Goede Hoop, in particular, was banned from participating in varsity events for being exclusively white.

The following article was transcribed from a HuffPost interview with the Centre for Constitutional Rights' legal officer, Christine Botha.

Q: The University of Pretoria's SRC has banned two residences from participating in varsity events as a result of a lack of transformation. Is this action warranted?

A: I'd like to talk specifically about De Goede Hoop. I understand from what I've seen in media reports that there's been a CRL Rights Commission response regarding writing the Afrikaans essay in order to gain entry into the residence.

I just want to say what we do need to take into account is that De Goede Hoop is a private residence – it is not on the main campus – and it appears to be privately funded. In issues such as these, the Constitution is always a balancing act, so we have various constitutional provisions that come into play in specific matters. But what we always have to remember is that the Constitution has a horizontal application as well.

In this instance, one has the constitutional right to freedom of association; section 80 – and one also has the right to section 30 and 31 regarding language and culture - which encompasses cultural, religious and linguistic communities. Basically, these provisions provide for cultural and linguistic communities to form, join and retain their cultural and religious association.

But what is very important with these provisions is that they may not be exercised in a manner that is inconsistent with any provision of the Bill of Rights. In this specific instance, we have the right to equality, so it's always a balancing act.

They are protected, and they are entitled to practise their right to language, culture and linguistic community in this sense. However, they're not entitled to use it to exclude – and this is a very important highlight in this instance.

Q: We live in a two-decade-post-democracy South Africa – in terms of reflecting our diverse student population, should De Goede Hoop not be making the circle bigger by ensuring that they are an inclusive residence?

A: De Goede Hoop is not a university-funded residence, and it is important to take into account that it is a private residence – therefore, they are constitutionally entitled to exercise these rights. I haven't seen the admission criteria, so I'm only responding based on what has been reported in the media. Our Constitution is always about the balancing of rights, and one has the right to exercise one's culture and religion, but cannot use them to exclude [anyone].

Q: Is the SRC's decision to bar De Goede Hoop from partaking in the annual institutional events (1nSync and Rag) justified?

A: I don't know what exact facts the SRC took into account to determine this – the university has the right to [install] certain criteria – for example, "If you want to participate – we are looking for the following transformation criteria."

So the university/SRC has its prerogative, but we haven't seen on what basis they took this decision.

From the Centre for Constitutional Rights' perspective, we believe that all constitutional rights should be protected – it's not one constitutional right [taking precedence over] another – one cannot use one's rights to exclude others.

Having said that, though, we need to have an understanding of tolerance – which I think is very important in our diverse environment – and we need to ensure we do not create tensions.