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human rights because it is premised, in part, on the simplistic argument that
‘If you don’t protect this right, then other rights will be violated’ and the
exaggerated concept of ‘unlimited freedoms’ — which in fact can be limited.
A starting point would be the Constitution25 which explicitly protects
freedom of expression 26 (and art 27 as a popular form of such expression).
Admittedly, the Constitution fails to answer and leaves for our consideration,
the age-old question: where do we draw the line? Is there even such a line to
be drawn? It seems diversity, transformative constitutionalism and ethics
within a law faculty tentatively offer answers to this question. From the
viewpoint of a country struggling with its past and its future, it is correctly
disconcerting to see lawyers and human rights activists refusing to embrace
the virtue of tolerance simply because they were not consulted, or they are
not comfortable. Heyns is correct to point out that the delicate area of
balancing different rights and competing interests demands a measure of
circumspection — but at what cost?
Heyns’s assertion, which I juxtapose with Van Marle’s statement in the
first paragraph of this part can be sustained to some extent. In a debate such
as this we would need to establish whether and where and how the problem
of freedom of expression comes in. To do this we must ask whose freedom
of expression was genuinely infringed. Unfortunate as the response to her
artworks may have been, Diane Victor did not suffer a violation of her
freedom of expression. The only time artistic creativity is stifled and
freedom of expression suppressed is if the particular art piece is completely
censored or destroyed simply because it does not conform to the prevailing
culture, or viewpoint in a given society. What occurred in the faculty was
more a struggle in preference and choice. The Dean — at the time — also did
not necessarily suffer a violation of his freedom of expression, because he
willingly engaged with faculty members in the discussions which culminated
in the removal of the artworks from their various venues in the law building.
The Centre can also not rely on this argument/defence (of freedom of
expression) because what are Diane Victor’s pictures portraying which is
different to or cannot be corroborated with any critical analysis of human
rights especially in conflict-ridden, post-war or crime-laden countries?
Besides, to favour the freedom of expression of a part (the Centre) to portray
a certain image of itself over the freedom of expression of the whole
(Faculty) to represent a collective philosophy is also a flawed argument.
25 Constitution of the Republic of South Africa, 1996 (‘RSA Constitution’).
26 RSA Constitution (n 25 above) s 16.
27 RSA Constitution (n 25 above) s 16 (c) expressly provides for ‘artistic creativity’.