Freedom of association in South Africa: Democratic pluralism and the interplay between collective interests and individual flourishing

Nankan, Sahara

Freedom of association in South Africa: Democratic pluralism and the interplay between collective interests and individual flourishing

Files

SWP 7 Final - South Africa.pdf(1.36 MB)

Published Version

Date

2024

Authors

Nankan, Sahara

Publisher

School of Law, University College Cork

Abstract

This article examines, as a foundational touchstone, the nature, scope and rationales that undergird the right to freedom of association in South Africa enumerated under Section 18 of the Constitution.1 It aims to inform, demystify and map the underpinnings and justifications of this right as it has been understood, interpreted and developed by (primarily though not exclusively) the Constitutional Court’s jurisprudence. This article is divided into two interlinked thematic parts. Part I outlines the development, nature and scope of the right. The socio-legal and historical development of Freedom of Association is explained within the contextual framing of interrelated core values of freedom, equality, dignity and democratic pluralism. It explores the normative content of the right including the right to associate, the right to dissociate (to join or not to join), justifiable limitations and how a distinctive wider regulatory framework supports these key elements and highlights the relationship with other rights. It further explores the applicability of international law, and how the Court draws on foreign case law to interpret Section 18 (indeed the Court since its inception has always employed a comparative lens to support its insights and interpretation of rights). Part II then surveys the jurisprudence of the Court in terms of the types of cases that have come before it which both directly or indirectly evoke and have implications for how freedom of association is respected, protected and promoted.2 This includes where the right stands in relation to other inter-dependent rights, disputes and interpretative contestations that have arisen predominately the freedom of religion, the right to language and cultural life and the right to privacy. The aim of this endeavour is therefore not to provide a critical account of the freedom as a contested concept nor is it a comprehensive critical examination of the field - rather its aim is to highlight the core rationales that lie behind associational freedom drawing from primarily adjudicative interpretations, as well as key strands of academic discourse that justices refer to, in order to shed light on its basic purposes and potential. In order to safeguard the mandate of democratic pluralism and the autonomous development of society, the pursuit of a wider group of rights to form and maintain communal relations arguably takes precedence, but this does not negate the need to protect individual freedoms also essential for the fulfilment of these aims. The interplay of individual flourishing and collective interests necessitates a constant tension calling for further refinement, coherency and interpretative consistency. This article therefore leaves plenty of room for further exploration of major themes, challenges and avenues of reflection going forward.

Keywords

Freedom of association , ECHR , European Court of Human Rights

Citation

Nankan, S. (2024) ‘Freedom of association in South Africa: Democratic pluralism and the interplay between collective interests and individual flourishing’, Societās Working Paper 07/2024 (17pp). Cork: School of Law, University College Cork.