The new South Africa was founded on a commitment to human rights.
Neither of the contesting nationalisms of the National Party and the African National Congress had built their politics around human rights before 1994, but a human rights centred deal was one that everyone could live with.
In a human rights culture and in a human rights legal system everyone matters. Children, prisoners, foreigners, the poor, sex workers - everyone.
Capitalism, authoritarian versions of socialism and most forms of nationalism all take the view that some people are expendable. Some can be sacrificed for the greater good.
The one great benefit of a human rights-based system is that, at least in principle, everyone has certain basic rights that cannot be expendable. No one is either above or below the law.
Our constitution is justly recognised as one of the most progressive in the world.
However, this fact sometimes leads to a certain focus on the law at the expense of the realities of social life.
And one reality of social life in South Africa is that because people have to approach the courts to secure their rights, the well off are well able to secure those rights while the poor, who cannot afford to access the courts, are simply not able to defend their rights. This is why Durban is able to engage in systematically unlawful acts towards marginal groups such as street traders, shack dwellers and foreigners.
There are two solutions to this problem.
One is for the legal aid system to be sorted out so that everyone can access competent and committed legal support. We simply cannot allow the current system, whereby access to the law is commodified, to continue. The second solution is for marginal groups to, as some groups have done so successfully, organise themselves so that they can build their strength through their numbers.
These days it is clear that what divided progressive from regressive states is not so much the language that they speak but the degree to which they accept autonomous mobilisation from below.
In Kerala in India, Port Allegro in Brazil and now also in Venezuela under Hugo Chavez and perhaps most of all in Bolivia under Evo Morales, ordinary people are actively encouraged in organising independently of the state. The same was true in Haiti during Jean-Bertrand Aristide’s period.
Mass-based public participation in the life of societies is the most effective route out of systemic marginalisation.
Because the law is commodified and autonomous grassroots organisations are often treated as more or less criminal in South Africa, vulnerable groups are not benefiting from our human rights culture. Now that that culture is under threat from people that wish to be above the law we may well find that the poor do not rally in support of it for the simple reason that they have never benefited from it. These are dangerous times.
The sight of Congolese refugees being beaten on the steps of the city hall has taken Durban to a new low.
We should recall that these are people who have fled a war in their country that has claimed more than four million lives, a war that the South African government is indirectly complicit in via its tacit support for Robert Mugabe.
We should recall also that they were made homeless in Durban by xenophobic attacks against which they received very poor protection from the authorities.
When they appealed to the city for mercy they were assaulted and then dumped in Albert Park. If a group of residents from middle-class suburbia were treated in this fashion they would have had the city authorities in court within minutes.
And they would have won the protection of the court. Our human rights system would have worked for them.
But for the marginal in our city, this was just not an option. For them human rights are mere words.
However, it is encouraging that, with the support of religious groups, refugees have recently met with street traders and shack dwellers to make common cause.
Perhaps some good may come out of this latest shock to the international image of Durban. If all the people who are not considered fully human in this city can link up their struggles there may be some hope for a future where basic human decency is at the centre of our public life. A city where it would be utterly unthinkable for the most marginal residents to be assaulted on the steps of the city hall while pleading for mercy.