Constitutional Hill

At the Venice Biennale – An ugly, condescending scream on the wall

This past Saturday and Sunday I visited the Biennale exhibitions at the sprawling Giardini and Arsenale venues in Venice. I saw many beautiful, disturbing and shocking works of art and some wondrous, confusing and sometimes politically provocative art installations (including Isaac Julien’s continuous reading of Karl Marx’s Das Kapital in the Arena at the Giardini). But one work stopped me in my tracks: Willem Boshoff’s much talked about Racist in South Africa, at the South African Pavilion, which forms part of a group show entitled What Remains is Tomorrow.

I am neither an art critic nor an expert on contemporary art. I do regularly attend exhibitions and, in my own way, try and make sense of the things I see. I try to listen to what a particular artwork wants to tell me and I try to get to that point beyond words where an interesting or provocative work of art stirs up a complex set of feelings and continues to haunt me for days afterwards.

I don’t believe that art needs to be safe or “beautiful” – whatever that may mean. Some of my most cherished interactions with art have shocked, troubled or unnerved me.

I am relatively familiar with Boshoff’s body of work: the intricate play with words in Garden of Words, the names of plants filed away in wooden cabinets or displayed under huge glass panels; the 8 marble slabs in the inner courtyard of the Constitutional Court, entitled Prison Hacks, symbolising the time spent in prison by various political prisoners such as Nelson Mandela (9377 days), Ahmed Kathrada (9269 days), Raymond Mhlaba (9269 days) and Govan Mbeki (8548 days); and Long Shadows, on the grounds of the old awaiting-trial block at the entrance to the Constitutional Court which portrays – again in black marble – the shadows of four hopeful prisoners.

It is for this reason that Boshoff’s work was what I was most looking forward to see as I took the escalator up to the South African Pavilion at the Arsenale.

As you enter the exhibition you are met with the deafening sound emanating from two video screens, a white man on one screen and a black man on another screen delivering the same obnoxious nationalistic political speech in tandem. The point of Brett Murray’s work, I suppose, that there is no difference between the deathly rhetoric of apartheid era National Party politicians and African National Congress politicians in democratic South Africa.

It is a facile and insipid work that disregards the fact that – despite what some lazy and privileged white South Africans may think – there is a world of difference between apartheid South Africa and the democratic dispensation. In the former, nationalistic rhetoric was deployed to justify white minority rule and the political oppression and economic exploitation of the majority of citizens.

Whatever you may think of the (often deathly boring) nationalistic rhetoric of some current day politicians, they operate in a democratic system in which every adult has the right to vote, in which the rights of every citizen is constitutionally protected and those (like Murray) with access to resources can approach the courts to have their rights enforced.

It is within this context that the visitor to the South African Pavilion encounters the work by Boshoff. The work is not visually interesting – a 120cm x 120cm piece of text engraved into aluminium. The text seems to rant in despair about the state of the nation. The work begins with the line “I am proud to be labelled racist in South Africa if it means that…” and contains many statements that are either factually untrue or embody reactionary, right wing political sentiments. Sentiments, it must be said that are widely shared by many white South Africans.

“I can’t stand that more and more tourists are avoiding us like the plague.”

“I could scream in frustration when jobs are given to unqualified people.”

“I weep when villain’s rights are protected more than their victims.”

Of course, more and more tourists are not avoiding South Africa “like the plague”. The number of visitors to South Africa has increased consistently since the advent of democracy. Most tourists did, of course, avoid South Africa “like the plague” before 1994 because it was a pariah state, wracked with fear and violence, a state in which those who opposed the government were detained and held without trial, tortured and murdered.

It is true that sometimes jobs are given to unqualified people in South Africa. This happens also to be the case in most other countries in the world. George W Bush was given a place to study at Yale University because of affirmative action and later became the (disastrously bad) President of the United States, partly because of his family connections and his privilege as a white, heterosexual, man.

But in the context of the often hateful and irrational response of (some) white South Africans to the constitutionally mandated implementation of affirmative action measures, the sentence plays on the deeply embedded racist assumption that black people are unqualified and undeserving of being employed.

It is also factually untrue that the rights of villains are protected more than the rights of their victims. In South Africa rights apply equally to everyone. In any case the assumption that it is somehow morally reprehensible to protect the rights of accused persons who had not yet been convicted of any crime, is a deeply reactionary one, not to be squared with the idea that every individual possesses an inherent human dignity that must be respected and protected.

Being familiar with some of Boshoff’s other work, I wondered whether he was not trying to satirise the racism and prejudice of the average person who comments on the News24 website. Maybe he was deliberately playing the buffoon, performing a virulent form of white, male privilege in order to critique it?

I guess that is how white privilege works – you can almost always count on being given the benefit of the doubt – unlike the supposedly “unqualified” persons mentioned in the work, who will often not be afforded the same privilege.

But there was nothing in the work to hint at such a reading – only the ugly, condescending, words on the wall, unflatteringly juxtaposed with the lazy populism of Brett Murray in the next room.

Because the work was produced by a white, heterosexual, Afrikaans man at this juncture in post-apartheid South Africa, because of the overwhelming presence of these authorial identities in that room, and because of the close connotation in present day South Africa between these identities and the inability to listen to and hear when black people speak, the inability even to begin to imagine the life of the symbolic Other, the work was doomed to fail – even if its creators’ intentions had been different.

For me the work failed as art not only because it reflects an attitude of entitlement; because it inevitably reads as coming from an isolated, arrogant, place; a world in which individuals are catastrophically unable to grapple with the experiences and feelings of black South Africans. It also fails because, ultimately, it is not interesting, provocative or challenging in any way discernible to this viewer. It does not invite you to see the world afresh, to question deeply embedded beliefs or assumptions, to be shocked by a head-on destabilising attack on the status quo.

Instead it just hangs there: impotent, angry, magisterially oblivious to the power and privilege of its creator.

Dying with dignity judgment – moral views of some cannot justify infringement of rights of others

After the North Gauteng High Court ruled that (in precisely defined circumstances) a dying person is entitled to be assisted by a qualified medical doctor to end his or her life, the South African Medical Association (SAMA) warned that even if the law were to permit medical practitioners to help terminally ill patients to end their lives, the ethical rules of the Health Professions Council of SA (HPCSA) do not allow this. This raises questions about the constitutionality of the ethical rules of the HPCSA.

Several years ago my father had a massive stroke while recuperating in hospital from an operation. His heart stopped beating for 15 minutes before he was revived and placed on life support in the intensive care unit of the hospital.

He had previously said – only half jokingly – that the day it becomes impossible for him to read the newspapers us children “would have to make a plan”. For him, being able to read the newspapers was the minimum requirement for living a dignified life, one that was worth living.

After three days of anguish it became evident to us, his family, that my father would never wake up from his coma. After consultation with doctors and among ourselves, all 5 siblings agreed to have the life support machines switched off.

When the doctors switched off those machines they took a decisive step to end his life. But for this act, he might have remained biologically alive for several weeks or even months. The doctors who gave the order to switch off the machines in effect killed my father, but in terms of our law and the ethical rules of the HPCSA they were entitled to do so. I will be eternally grateful for that.

This example (also alluded to by judge Fabricius in his judgment in the case of Stransham-Ford v Minister of Justice And Correctional Services and Others) illustrates the absurdity of the ethical rules on assisted dying currently enforced by the HPCSA.

Judge Fabricius noted that logically where a doctor ends treatment for a dying patient he or she is committing murder in terms of the principle of dolus eventualis – except that this kind of assisted dying has been ruled lawful by our courts and is thus not considered to amount to a crime:

Where life sustaining or life prolonging treatment has been administered and is subsequently withdrawn, the act of withdrawal is nonetheless a commission – it remains an active and positive step taken by the medical staff directly causing the death of the patient (on a factual basis). It is accepted that such medical treatment may be refused from the outset by a terminally ill patient, in which the failure to render treatment would constitute an omission only on the part of the medical practitioner… there can be no distinction between active euthanasia and passive euthanasia in the circumstances where such argument is based on so-called ethical considerations.

The HPCSA ethical rules require that doctors ignore the best interest, as well as the sincere wishes, of the dying patient suffering emotional and physical pain. The cynic in me wonders whether these rules are in place to protect doctors from the bad publicity that they fear will result from allowing doctors to assist patients to die with dignity.

(What seems to make the ethical rules even more irrational is that doctors are allowed to end the life of a patient like my father who, for all they know, had no say in the matter and may not have wanted treatment to stop, while they are not allowed to assist a patient, capable of making the choice, to die with a dignity.)

The High Court judgment may well be appealed to the Constitutional Court.

As it stands it has the effect of developing the common law in an important and profound manner to bring it in conformity with the right of everyone to have their inherent dignity protected and respected (contained in section 10 of the Constitution) and the right of everyone to bodily and psychological integrity, which includes the right “to security in and control over their body” (protected by section 12(2)(b) of the Constitution).

Before the judgment was handed down a doctor (or any other person) who assisted a patient to die because the patient was suffering from emotional or physical agony and wished to end his or her life, would always have been guilty of either the common law crimes of murder or culpable homicide. The judgment develops the common law in that, in certain limited circumstances, it will now be lawful for a person to assist a dying patient to end his or her life.

I wonder (hopefully being too cynical again) whether concern about the status, image and even the profits of doctors or (as judge Fabricius argues) the sincerely held moral or religious convictions of a section of society, may have influenced the HPCSA stance on assisted dying. Whatever the reasons may be, the norms embodied in the Constitution (and not moral or religious views nor other concerns) must guide the development of the common law.

The ethical rules of the HPCSA must also comply with these constitutional norms. In as far as the ethical rules do not comply with the provisions of the Constitution they are invalid and of no legal effect.

Neither public opinion nor the beliefs of the majority of doctors who belong to the HPCSA is decisive in determining whether the rights of individuals should be protected. Public opinion or the moral beliefs of the majority is not decisive in determining whether an infringement of the rights of individuals is justified. As the late Chief Justice Arthur Chaskalson wrote in S vs Makwanyane:

Public opinion may have some relevance to the enquiry but, in itself, it is no substitute for the duty vested in the Courts to interpret the Constitution and to uphold its provisions without fear or favour. If public opinion were to be decisive there would be no need for constitutional adjudication.

Unlike the ethical rules of the HPCSA, the judgment is deeply concerned about the values enshrined in the Constitution and the need to respect the inherent human dignity of every person. This is so because the “recognition and protection of human dignity is the touch stone of the new political order and is fundamental to the new Constitution”. As the judge noted, although dignity is not easy to capture in precise terms:

the concept requires us to acknowledge the value and worth of all individuals as members of society. It is the source of a person’s innate rights to freedom and to physical integrity, from which a number of other rights flow, such as the right to bodily integrity. It is my view also that persons must be regarded as recipients of rights and not objects of statutory mechanisms without any say in the matter.

Of course, every person also enjoys the right to life. However, neither the Constitution nor other laws generally impose on individuals a duty to live; a person can waive his or her right to life if he or she wishes to do so. It is thus not a criminal offence in South Africa to attempt to commit suicide. Moreover, as Justice O’Reagan had pointed out in the death penalty judgment the right to life and the right to dignity are interrelated:

the right to life was included in the Constitution not simply to enshrine the right to existence. It is not life as mere organic matter that the Constitution cherishes, but the right to human life: the right to share in the experience of humanity…. The Constitution seeks to establish a society where the individual value of each member of the community is recognised and treasured. The right to life is central to such a society. The right to life, thus understood, incorporates the right to dignity. So the rights to dignity and to life are intertwined. The right to life is more than existence, it is a right to be treated as a human being with dignity: without dignity, human life is substantially diminished. Without life, there cannot be dignity.

The notion of dignity is also closely associated with the protection of the personal autonomy of individuals. Individuals who cannot make personal life choices because such choices are circumscribed by criminal law or because their life circumstances render it difficult or impossible for them to do so, do not have their dignity fully respected.

Where the law interferes with the ability of individuals to make decisions concerning their bodily integrity and medical care it infringes on their liberty and dignity, leaving them to “endure intolerable suffering, it impinges on their security” of the person.

The irony is… that we are told from childhood to take responsibility for our lives but when faced with death we are told we may not be responsible for our own passing… One can choose one’s education, one’s career, one can decide to get married, one can live according to a lifestyle of one’s choice, one can consent to medical treatment or one can refuse it, one can have children and one can abort children, one can practice birth control, and one can die on the battlefield for one’s country. But one cannot decide how to die.

In any case, as the judge found, for many people there will be no dignity in:

Having severe pain all over one’s body; being dulled with opioid medication; being unaware of your surroundings and loved ones; being confused and dissociative; being unable to care for one’s own hygiene; dying in a hospital or hospice away from the familiarity of one’s own home; dying, at any moment, in a dissociative state unaware of one’s loved ones being there to say good bye.

It is important to note that the ruling does not force any person to end his or her life or to assist anyone else to do so. It remains a personal choice. The judgment thus confirms that the criminal law (or, I would add, the ethical rules of the HPCSA) cannot be used to enforce the moral, religious or ethical beliefs of some on everyone. However, this does not force those who hold such moral, religious or ethical beliefs to act in breach of their beliefs.

Moreover, if the Constitutional Court confirms the judgment it would be desirable for Parliament to pass legislation to establish a system with minimum safeguards in order to protect patients. In the absence of such legislation a patient would have to approach a court for permission to be legally assisted to die.

Judge Fabricius emphasised that in the absence of legislation a court will “scrupulously scrutinize the facts before it, and will determine on a case-by-case basis, whether any safeguards against abuse are sufficient”. The court will have to decide on the facts of each case whether the necessary safeguards are in place before allowing a doctor to assist a patient to die with dignity. The judgment would therefore not have an “uncontrolled ‘ripple effect’” as some people have argued.

The judgment is ground-breaking because it once again affirms that in a constitutional democracy in which the value of dignity is fundamental, the human dignity and autonomy of some may not be sacrificed in order to enforce the narrow moral or religious beliefs of a certain section of society on the population as a whole.

Religion in schools: time to decolonise our education?

It is not always easy to hold an unpopular or minority view. It is even more difficult to hold a minority view on the emotive subject of religious belief and organised religion. When you happen to be a vulnerable and impressionable child, indoctrinated by parents and subjected to relentless peer pressure, it becomes even more difficult to hold any opinion of your own on the matter. It is for this reason that the right of children not to believe in a specific God or in specific religious dogma, must be jealously protected.

The Federation of Governing Bodies of South African Schools (Fedsas) contend in court papers that it was perfectly acceptable for schools to embody a Christian ethos and to promote “Christian values” (whatever this may mean) in public schools as long as the vast majority of parents desire it.

In its papers it quotes alleged “research” done among more than 7000 learners in the six schools being taken to court for promoting Christian values and practices in these schools which shows that only 3 percent of learners stated that it was unpleasant to be part of these Christian values that is embodied in the culture of each of these schools. According to the research 95% of the primary school children canvassed are perfectly happy when Christian prayer is conducted during assembly and other public events.

Of course, this survey really canvasses the beliefs of parents and not of primary school children because young children almost always believe what their parents tell them to believe. Given the relentless pressure from parents and society at large, the notion that young children in South Africa in fact have autonomy to decide for themselves whether they believe in a God and if so, what kind of God they believe in, is a laughable fiction.

The line or reasoning advanced by Fedsas is not only problematic because it wrongly assumes that almost all children have a free choice in the matter. It is also problematic because in South Africa the religious views of the majority cannot extinguish the rights to religious freedom of a minority.

Unless Fedsas can demonstrate that religious observance at schools (both in individual classes and during mass events like assembly) is completely voluntary and that various beliefs are treated equitably in the school, it will have difficulty convincing the Constitutional Court that the public schools being taken to court are not in breach of the Constitution and the relevant section of the Schools Act.

Some South Africans wrongly believe that ours is a Constitution that demands a complete separation between religion and the state. Unlike in the United States, where the US Supreme Court (interpreting the First Amendment and following the phrase first used by Thomas Jefferson) claims that religious freedom requires a “wall of separation between church and state”, the South African Constitution recognises a limited but significant role for religion in state institutions.

(I have always been struck by the fact that the popular US formulation of the rule requiring a separation of “church” and state is so exclusionary as it completely ignores religious traditions – such as Islam and Judaism – that are not dominant in US society. In these religions synagogues and mosques – and not churches – represent the formal consecrated public spaces where a particular version of God is worshipped, but the traditional formulation completely ignores this.)

In any event, the preamble to the 1996 South African Constitution explicitly refers to a “God”, and thus concludes as follows:

May God protect our people.

Nkosi Sikelel’ iAfrika. Morena boloka setjhaba sa heso.

God seën Suid-Afrika. God bless South Africa.

Mudzimu fhatutshedza Afurika. Hosi katekisa Afrika.

Of course, the preamble to the Constitution has no legal effect and cannot be enforced, so these references to God are merely symbolic and of no legal consequence. Moreover, section 15(1) of the Constitution contains an expansive right protecting not only religious freedom, but also the freedom of conscience, thought, belief and opinion of everyone.

This means that section 15(1) equally protects the rights of those who are religious to hold their religious beliefs, to state such beliefs and to practice their religion than it protects atheists to hold their beliefs, to state that they do not believe in God and to arrange their lives accordingly.

But this is not the end of the matter. Section 15(2) of the Constitution explicitly rejects the notion that there should be a complete wall of separation between the state and religion, and thus accepts that:

[r]eligious observances may be conducted at state or state-aided institutions, provided that (a) those observances follow rules made by the appropriate public authorities; (b) they are conducted on an equitable basis; and (c) attendance at them is free and voluntary.

In the Constitutional Court judgment of S v Lawrence , S v Negal ; S v Solberg justice O’Regan emphasised that the section prohibits religious observance that would have the effect of coercing somebody (either directly or indirectly) to observe religious practices with which they do not agree or to coerce them into accepting certain religious beliefs, such as the belief that there is indeed an all-powerful God.

The requirement of free and voluntary attendance at religious ceremonies is an explicit recognition of the deep personal commitment that participation in religious ceremonies reflects and a recognition that the freedom of religion requires that the state may never require such attendance to be compulsory.

Coercion can be direct, but it can also be indirect. The state (or any state institution like a public school) cannot place its power, prestige and financial support behind a particular religious belief or behind religious belief vis-à-vis non-belief because it would result in indirect coercion on non-believers and on religious minorities to conform to the majority view.

Justice O’Regan further held that where a state institution like a school publicly observes religion “the observance of such practices must still be equitable”. Because our society possesses a rich and diverse range of religions the state (and state aided schools) cannot be permitted to act inequitably. The requirement of equity is something in addition to the requirement of voluntariness. What this requires is, at the very least, that the state (or state-aided school) act even-handedly in relation to different religions.

As O’Regan explained in her majority opinion:

The requirement of equity in the conception of freedom of religion as expressed in the … Constitution is a rejection of our history, in which Christianity was given favoured status by government in many areas of life regardless of the wide range of religions observed in our society.

This view has now explicitly been incorporated into our law as section 7 of the South African Schools Act states that:

Subject to the Constitution and any applicable provincial law, religious observances may be conducted at a public school under rules issued by the governing body if such observances are conducted on an equitable basis and attendance at them by learners and members of staff is free and voluntary.

Two important consequences flow from the legal regime in place in South Africa for the protection of freedom of religion and conscience.

First, it is illegal for a state school to directly or indirectly coerce learners into observing a specific religion or any form of religion, either at public events such as assembly or in individual classrooms.

Where a school observes religion at public events it needs to provide a clear alternative for children who wish not to participate. This alternative cannot be presented in such a manner that it indirectly places pressure on a vulnerable child sensitive to peer pressure to attend the religious observance.

Where a school observes religion in classes or wishes to embody teaching with “Christian values” it would have to provide two streams of education in the form of different classes – one class catering for teaching that accords with the Christian ethos and one class completely free from such views and values. A school that unashamedly promotes a Christian ethos and provides no clear and equitable alternative is acting unconstitutionally and illegally.

Second, even where a school has rules in place to ensure that children are neither directly or indirectly coerced into observing religion at public events or in classes, it would still have a duty to treat various forms of belief equitably. This does not mean such beliefs have to be treated in exactly the same manner, but it does mean that a school is prohibited from exclusively advancing the beliefs or teaching of one specific religion or of religion vis-à-vis non-religion.

I suspect very few state schools at present comply with the Constitution and the law because there has been no systematic attempt to dismantle the underlying Christian nationalist ethos that permeated the apartheid education system.

If we are going to decolonise not only our Universities but also our schools, it is time that schools and school governing bodies comply with the Constitution and the law.

Odidi against xenophobia and homophobia

This video aims to shock us into taking responsibility for Hate Crime; specifically anti-lesbian and xenophobic hate crimes. It features my friend Odidi Mfenyana, singing Billy Holiday’s siren protest song Strange Fruit. Although the song originally referred to the grotesque lynching of blacks in the United States, this version aims to prevent us becoming habituated and de-sensitized to the occurrence of violent hate crimes in South Africa. “Strange Fruit” is intended to cause a measure of discomfort and to call us to action.

Xenophobic statement: Is King Zwelithini guilty of hate speech?

Durban is being engulfed in Afrophobic/xenophobic violence after King Goodwill Zwelithini in a speech delivered in March fanned the hatred and envy among some South Africans towards black foreigners living in our country. Is the King guilty of hate speech and if so, what can be done to hold him accountable for his dangerous and reckless utterances?

Many people have forgotten that until the mid-nineteen nineties most liberation leaders viewed King Goodwill Zwelithini as an apartheid stooge aligned with the then National Party government’s Bantustan policy. In the eyes of progressive activists and organisations, his close relationship with Inkatha (which, at the time, was involved in a bloody proxy war with the ANC and the UDF, funded by apartheid securocrats) had turned him into someone widely viewed as a sell-out, as someone opposed to the ANC-led liberation of South Africa.

But in 1994 democracy came to South Africa and the ANC was elected into government. In a tactically brilliant move the national government took over the payment of traditional leaders to prevent the Inkatha controlled provincial government in KwaZulu-Natal from exerting control over the King and other traditional leaders aligned with Inkatha.

(Of course, before 1994 traditional leaders were paid by the apartheid state. After the passing of the Bantu Authorities Act in 1951, they became administrative agents of the apartheid state in the areas designated as “homelands” and many traditional leaders who refused to do the apartheid regime’s dirty work, were ousted by the National Party government.)

With the help of further skilful negotiations – facilitated by President Jacob Zuma – King Zwelithini (perhaps with one eye to his financial well-being?) became “non-aligned” almost overnight. This contributed immensely to the peace process in KwaZulu-Natal and helped to bring the bloody war that was still raging between Inkatha and the ANC in that province to an end.

When you turn the clock forward to March 2015 and listen to King Zwelithini’s speech to the Pongolo community, you still hear the sentiments of the same conservative patriarch who, before 1994, had aligned himself closely with Inkatha, an ethnic-based organisation that vehemently opposed the (then) progressive pan-Africanist policies of the ANC. In his disastrous, ignorant and (it must be said) bigoted speech in March the King said (see video above):

[W]e talk of people [South Africans] who do not want to listen, who do not want to work, who are thieves, child rapists and house breakers…. When foreigners look at them, they will say let us exploit the nation of idiots. As I speak you find their unsightly goods hanging all over our shops, they dirty our streets. We cannot even recognise which shop is which, there are foreigners everywhere. I know it is hard for other politicians to challenge this because they are after their votes. Please forgive me but this is my responsibility, I must talk, I cannot wait for five years to say this. As King of the Zulu Nation… I will not keep quiet when our country is led by people who have no opinion. It is time to say something. I ask our government to help us to fix our own problems, help us find our own solutions. We ask foreign nationals to pack their belongings and go back to their countries (loud cheers).

The King later lambasted the media for “choosing to deliberately distort what was an innocent outcry against crime and destruction of property”. But if you listen to the audio of his speech, it is clear that the King’s words targeted all foreign nationals (although, one could argue, in the context of his words he was only referring to black foreigner nationals). The King was therefore not truthful when he later claimed his speech was a general outcry “against crime and destruction of property”.

In his speech the King identified what he perceived to be the problem (“lazy” South Africans; foreigners “dirtying our streets”) and proposed a way to “fix” the problem: To have all foreigners (whether legally documented or not, whether law-abiding or not; whether refugees fleeing wars or not) pack their belongings and go back to their own countries.

He further suggested that he was different from other politicians who are democratically elected and rely on “their votes”. Instead he was another kind of politician who did not have to rely on votes (given that he is not elected at all and has no democratic mandate to worry about). He could therefore suggest what our government leaders could not suggest or were too cowardly to suggest, namely that all black foreigners must leave South Africa and must be “assisted” to do so.

Because a traditional leader of the highest rank uttered the words, some might argue that it would be disrespectful of traditional culture and mistaken (especially for a white person like myself) to criticise the King or to suggest that he could be found guilty of hate speech in an Equality Court.

In a constitutional monarchy in which a monarch merely fulfils a symbolic and ceremonial role, this argument might have held water. But when that monarch sees himself as a politician (as King Zwelithini’s speech suggests he does) and makes highly controversial and inflammatory statements, this argument cannot possibly hold.

To argue otherwise would be to elevate King Zwelithini above all criticism and above the law. But this is not Swaziland or Jordan and we do not live in an absolute monarchy. Instead we live in a constitutional democracy in which section 1 of the Constitution enshrines the Rule of Law as one of the founding values of our democracy. This means that everyone – regardless of title or position – must be subject to the same laws and can and should be judged in terms of the same laws applied in the same manner.

Section 10 of the Promotion of Equality and Prevention of Unfair Discrimination Act (also known as the Equality Act) prohibits any person (and in legal terms the King ís a person) from publishing, propagating, advocating or communicating words directed against another person based, amongst others, on that other person’s race, sex, gender, sexual orientation or foreign nationality, if those words:

could reasonably be construed to demonstrate a clear intention to be hurtful; be harmful or to incite harm; [or] promote or propagate hatred.

Section 12 of the same Act also prohibits any person from disseminating or broadcasting any information “that could reasonably be construed or reasonably be understood to demonstrate a clear intention to unfairly discriminate against any person”.

Does the King’s Afrophobic/xenophobic statement rise to the level of hate speech as defined in the Equality Act? The Act gives effect to the anti-discrimination injunction contained in the Constitution and its meaning must be interpreted in the light of the Constitution and the values enshrined in it. As is often the case with constitutional matters, context is all-important when determining whether speech rises to the level of hate speech (something that right-winger white South Africans often fail to grasp).

What is the context in which the King made his statement? As the Constitutional Court stated in its judgment of Khosa and Others v Minister of Social Development and Others, foreigners (even those who are permanent residents and thus legally entitled to almost all the same rights as citizens) are particularly vulnerable. As Justice Mokgoro stated:

foreign citizens are a minority in all countries, and have little political muscle… [C]itizenship is a personal attribute which is difficult to change… It is also true… that in the South African context [before 1994] individuals were deprived of rights or benefits ostensibly on the basis of citizenship, but in reality in circumstances where citizenship was governed by race.”

The remarks of the King were made to members of the Pongolo community during a “moral regeneration event”. The community members can be heard cheering loudly after the King said that “foreign nationals” should “pack their belongings and go back to their countries”. Moreover the King is an important leader in the region (albeit not one with a democratic mandate) and framed his statement in terms of “necessary truths” which other politicians were too scared to utter. Lastly, the King signalled that he knew the statement was problematic as he prefaces it by stating “please forgive me”.

In terms of the Equality Act it is not necessary to demonstrate that the words of the King in fact led to (or contributed to) the Afrophobic/xenophobic attacks around Durban, attacks which have already resulted in the killing of at least 5 foreigners.

All that must be shown is that a reasonable observer would conclude – looking at the context – that the King’s words could be interpreted to have had the intention to be hurtful; be harmful or to incite harm; or to promote or propagate hatred against foreigners.

As I have argued before, section 10 of the Equality Act may be unconstitutional as it casts the net very wide and limits speech that should be constitutionally protected. But until the section is constitutionally challenged, it remains in operation.

Given the context within which the words were uttered it is difficult to avoid the conclusion that the King would be found guilty of hate speech if charged. At the very least a reasonable person may conclude that the words of the King could be construed as having had the intention of being harmful to foreigners in that it may, at the very least, have been intended to force the government to expel all (black) foreigners – whether legally residing in South Africa or not – from the country.

Perhaps progressive activists who still remember the days before 1994 when the King was viewed in many circles as an anti-ANC Bantustan leader, would be bold enough to approach the Equality Court with a view to have the King found guilty of hate speech.

If the relevant judge finds the King guilty of hate speech, said judge may even be tempted to order that the King (as punishment) forfeit all public benefits (including the R50 million contributed to his household) for a period of one or two years. After all, there are some evidence that while the King may not take kindly to criticism from politicians he may well be more willing to change his position if he believes that his financial livelihood was being threatened.

Steve Hofmeyr at the KKNK: why the idea of false equivalences is destructive and wrong

The idea that fairness and justice requires identical treatment of all people in equivalent situations regardless the context or the relative power of the persons or institutions involved, is attractive to many powerful and privileged people with vague and undefined liberal inclinations. The problem is that the idea is destructive, illiberal and deeply unfair.

On Monday morning at the Klein Karoo Nasionale Kunstefees (KKNK) in Oudtshoorn – the “N”, here, is as vital as the “R” in Proes street or the “N” in Pniel – I was involved in a discussion on the right to freedom of expression and on whether the KKNK was correct not to invite racists like Steve Hofmeyr to the festival or to provide them with another platform.

The discussion was both frustrating and revealing. Frustrating because not all the speakers avoided the trap of self-indulgence and narcissism. Revealing because it soon became clear that a sizeable number of audience members were unhappy with the decision of the KKNK management not to provide Hofmeyr and other racists with a platform to perform and to take part in debates.

Now, it might well be that some of the speakers at the debate were yearning for the presence of Steve because he dares to express the racist fears and prejudices that they themselves harbour but are too scared, hypocritical or polite to express (at least in public).

On at least two occasions during my three-day stay at the festival, I encountered the most shocking and brutal forms of racism from festival-goers. I suspect that these bruising encounters (I was confronted by the use of the “K” word and an expressed desire to recreate exclusive “whites” only spaces) framed – for me, at least – the discussion I was involved in. (It was, perhaps, of some consolation that one of the encounters revealed such a catastrophic inability to reason, that it made me wonder whether the person was not in need of strong anti-psychotic medication.)

Because I have lived in South Africa for most of my life and am excruciatingly aware of my own continuing struggle to rid myself of the racism, the sexism, the homophobia and the HIV prejudice that still stalk the land like an incurable disease, I have to admit that I usually assume the worst of the (“white”) strangers that approach me in public places.

I try to wear the cynicism about my own kind as a form of armour to protect myself against the hatred and bigotry that sometimes seems to saturate our society, just like the stench of shit saturates the air around those portable toilets in Khayelitsha.

All “white” South Africans might not always realise it, but at least sometimes the horrid actions or words of fellow “white” people are imputed to all “whites” – just as racist logic have always demanded (and still does) that the inexcusable actions or words of one “black” person be imputed to all “black” people.

When I thus encounter fellow “whites” who exhibit some sensitivity about racism and even a tentative willingness to confront their own prejudice and that of others, I often feel pathetically relieved and grateful.

And it does happen – imperfectly; often haltingly and with confused earnestness; sometimes in a disastrously self-righteous and self-congratulatory manner – but some “white” South Africans do try to grapple with the fact that 350 years of colonial conquest and apartheid have deformed our society and, at best, turned us into strangely disconnected beings.

This willingness of “white” people to try and confront race and racism is often reflected in a certain alertness to the way power determines how a specific instance of the politics of race plays out. This happens when us “white” people – not ever having been on the receiving end of structural racism and thus not forced every single day to live with its horrors – nevertheless attempt to get to a place (a place we probably can’t ever get to), where we will constantly be aware of how black people experience the structural violence of racism that surrounds us and that we are often implicated in.

It reminds me of the attitude towards shit captured in a poem of Antjie Krog. In the poem Krog describes the horror of a visit to a filthy toilet while menstruating, with her handbag clenched between her teeth and her blood-red tampon (folded into bank deposit slips) clutched in her hand.

pis ek rillend verstard effens hurkend/ tussen my bene deur/ in ‘n toiletbak tot in die helfte opgehoop/ met minstens vier verskillende kleure kak/ elke senupunt van weersin orent om mal te word/ as maar net ‘n enkele druppel op teen my sou spat. (I piss shuddering, rigid, half squatting/ between my legs/ into a toilet bowl heaped halfway full/ with at least four different colours of shit/ every nerve-ending of aversion alert to go mad/ if even a single drop would splash against me.)

In the debate at the KKNK I argued that if we want to judge the correctness of the decision by the festival management not to provide Hofmeyr with a platform, we must take into account the disparities in power between different people and institutions and the different effects divergent forms of expression have on different human beings formed by different experiences.

We should not insist that as a matter of principle the right to freedom of expression requires us to treat all forms of speech in exactly the same manner. Neither is it conceptually tenable to believe that all decisions to censure a person for what he or she says should be viewed as equally problematic.

Context matters.

And who wields power and how much power that person or institution wields will have a significant influence on whether we decide whether the limitation placed on freedom of expression is constitutionally and ethically acceptable or not.

The test is one in which different interests must be balanced against each other in complex ways. The more drastic the limit on free expression, the more skeptical we should be of that limitation. In contrast, the more drastic the effect of that expression on the human dignity of others, the easier it would be to justify limiting the expression. The number of permutations is infinite and in each case we have to balance all the interests in a manner that protects both the freedom and the dignity of all people.

The state and its institutions have the power to incarcerate and (as we have seen at Marikana) to kill its citizens. The state consequently has enormous power to silence different, controversial or unpopular forms of expression. The spectre of the abuse of state power to limit expression in order to advance narrow political, sectarian or economic interests is high. I am therefore very hesitant to endorse state censorship of expression. In my view, the power of the state should only be used to limit the most extreme forms of hate speech.

In different contexts different individuals and private institutions do not have the same power to circumscribe forms of expression that are hateful, unpopular, strange or that threaten the commercial interests of individuals or companies.

If a private individual decides not to invite Steve Hofmeyr to dinner because of his racist views or because he sings Die Stem, it would have no effect on Steve or those who think like him or support him.

If a large company refuses to sponsor a festival where Hofmeyr performs, it will have a more drastic (but not absolute) impact on his freedom of expression. Seeing that he would still be able to attend other festivals, organise his own concerts (in Orania and elsewhere) or to take to his Blog or Twitter to express his bigotry and – indirectly – that of his supporters, the limitation on his freedom of expression is not absolute.

But from both a constitutional and ethical point of view, this is not the only factor to consider. The nature of the expression and the nature of its effect on others must also be considered. Now, from an ethical point of view I would contend that it is undesirable for an arts festival catering to a diverse audience to refuse to host artists or to disallow the performance of plays merely because the material may offend certain sections of the public.

This is so, first, because it would make it more difficult for others to see the performances or plays and second, because festival-goers should ideally have a choice to buy tickets and to attend the plays or performances it chooses, based on their tastes and values. But, thirdly and most importantly, the offensive words or ideas do not call into question the basic humanity of anyone, nor does it disrespect the inherent human dignity of anyone.

Performances and plays that offend the sensibilities of some do not undermine the constitutional injunction to respect the inherent human dignity of all. In fact, one could argue that censoring such performances and plays would in fact infringe on the dignity of individuals, because it would treat people as empty vessels with no agency of their own. Individuals are treated as passive bystanders in whose interest decisions should be made in the name of “good taste” or “respectability”, which will be decided on by a few gatekeepers who may well bend to the wishes of large corporate sponsors who might wish to censor any radical critique of corporate greed or complicity in exploitation.

In most cases the specific worldview, political orientation, religious views, other values and cultural assumptions of individuals will mediate their response to the work of an “artist” (I use the latter term generously to include the concerts of Hofmneyr).

A very religious person may be extremely offended by an artist like Jack Parow who swears heavily on stage. A homophobic bigot may find two men or two women kissing on stage disgusting or disturbingly erotic. A progressive person may find a play based on an Ayn Rand novel offensive because of the message of selfishness or the lack of empathy for the vulnerable people reflected in the play.

In fact, at the KKNK several conservative theatregoers walked out of an Afrikaans adaptation of Anton Chekhov’s The Seagull because they were disgusted with the use of swearwords like “naai” and “fok”. (Personally I loved the play, but I believe those who walked out had every right to do so.)

The examples I provide above centres on reasonable disagreement about our values and about how best we can live an ethical or meaningful life. Such reasonable disagreements are the lifeblood of a democracy.

Freedom of expression must be protected exactly to allow this reasonable disagreement to flourish (even in the form of irrational outrage and the expression of disgust). A space in which many ideas (also ideas that are unpopular or that offend the majority) can be expressed, safeguards the freedom of individuals to choose for themselves what to think and feel and how to live their lives. In a democracy it is not desirable that the management of an arts festival (committed to constitutional values) decides on behalf of festival-goers about matters of taste and decorum.

But I contend that the matter is different when we deal with a performer who incessantly makes racist, sexist or homophobic statements and denies the basic humanity of others or where a play uncritically endorses and perpetuates racism, sexism and homophobia.

In an open democracy racism, sexism and homophobia cannot form part of a debate in which reasonable disagreement remains in play.

When we begin to treat the question of whether some people are fully human (and thus deserving of respect and concern regardless of their race, their sex or their sexual orientation) as part of a reasonable debate (and when those who contend that some people do not, hold considerable social and economic power), we legitimise the racism, sexism and homophobia and create an atmosphere in which the denial of the basic humanity of people who are on the constant receiving end of bigotry are legitimised.

We send a signal that it is not shameful, nor a basic attack on the humanity of fellow citizens, to question their right to exist equally and in full dignity with others. We claim the right to treat individuals not as humans but as things over which we may exert godlike authority. We create a space in which it becomes acceptable to deny others the sense of well-being and self-respect that we demand for ourselves. We endorse, either directly, or through omission, the attack on their humanity and in the process we dehumanise ourselves.

When we do not signal that we consider the racist, sexist or homophobic views objectionable, we create the impression in the minds of many festival-goers (and the wider community they belong to) that their hatred and bigotry and their refusal to recognise the full humanity of black South Africans is a reasonable, even noble, response to what they perceive to be the confusing and threatening world they live in.

Forms of racist, sexist and homophobic speech are thus fundamentally different from other forms of expression which we disagree with or that make us uncomfortable.

Because such forms of racist speech potentially have far more devastating effects on the well-being of “black” South Africans (whom “white” South Africans systematically oppressed and attempted to rob of their humanity over 350 years), a decision by the KKNK not to provide a platform for a person lauded in certain circles partly because he proudly engages in racist speech is not only permissible but, I would argue, an ethical  (if not a legal) imperative.

The story of the runaway date

This is a presentation I gave earlier this week at a conference in Stellenbosch on Slow Violence, the idea that unspectacular life circumstances can also have a devastating effect.

I know where this particular narrative must end. More or less. But where should it begin? I am not sure what kind of detail I must include in the narrative and what would better be left in the private domain. How brave am I?

The story could begin with the man, a greying, middle aged constitutional law professor who often comments in the media on current affairs and the law, receiving a message from B on Gaydar, a popular gay male dating and sexual hook-up site. B writes that he is a young lawyer who loves movies and fashion. He suggests an email correspondence with a view to meet “for a date, the old fashioned way”.

The man studies B’s profile picture for clues of his personality. He thinks B is sexy – in a nerdish kind of way. Or maybe he only decides this later, after their first date. In the picture B’s head is clean-shaven. Delicate hands peek out from the sleeves of the well-tailored black jacket. (On their first date the man would approvingly note that B’s nails had been carefully painted black. Trust him to hook up with probably the only camp, coloured, Goth on Gaydar.) B’s smooth olive skin radiates health. But it is the eyes, partly obscured by thick-rimmed glasses, that convinces the man to take a chance – despite his apprehension. Huge eyes. Slightly watery and a little bit sad. Kind eyes, the man assumes. It is the eyes that reveal that at least some of B’s forbears arrived in South Africa from South East Asia centuries ago, perhaps as slaves. “Slaves”. The word sticks in the man’s throat, a reminder of what his kind is capable of doing.

The man spends hours composing the emails he exchanges with B. He strives for a light, witty, but intellectually clever tone. He keeps the polite boasting to a minimum, but hopes he comes across as erudite and informed, yet attuned to popular culture and not over serious. About the calamity, the man, says nothing. B agrees to a “date”. They will go to “On Broadway” to watch a revue performance of scantily clad men singing about love and love lost. The man is nervous. He has never been on a real first date with any man in his life before. In the past he has always first slept with a man and then decided afterwards whether he would see him again. But now it’s become more complicated. The date goes well. They drink moderate amounts of wine – not enough to get drunk, but enough to get over the first awkwardness. Did they drink white wine or red wine? Several years later, the man cannot remember these details. The man is just tipsy enough not to pull away when his knee touches that of B under the table. B is a little giggly when the man drops him off outside his flat in Vredehoek. They kiss hurriedly – like teenagers on a fist date – and this too, goes well. A second date is on the cards.

Having gotten this far, I am not sure how to proceed with my story. It is still a problem of where to start, of how to structure my story, of what to reveal and what to keep to myself. Do I even remember these events relatively accurately? Do I have to stick to the facts – as if this is a legal document? Or can I lie to get to another kind of truth? How do I present my case to you, my jury, without sounding too self-indulgent or narcissistic? How do I elicit a sympathetic verdict and why do I care? How do I write a story without it sounding like an article published in the South African Law Journal – which, let’s face it, is not really a publication read for laughs.

Only the most formalistic lawyer will deny the fact that legal “cases are decided not only on their legal merits but on the artfulness of an attorney’s narrative” presented to the court. Does life not imitate the law in this regard? I recall reading an article by Robert Cover – not his famous article which starts with such a bang: “Legal interpretation takes place in a field of pain and death.” – no, not that one, but rather another article published in the Harvard Law Review about narrative, meaning and the law in which Cover wrote:

“We constantly create and maintain a world of right and wrong, of lawful and unlawful, of valid and void. … No set of legal institutions or prescriptions exists apart from the narratives that locate it and give it meaning. For every constitution there is an epic, for each decalogue a scripture. Once understood in the context of the narratives that give it meaning, law becomes not merely a system of rules to be observed, but a world in which we live.”

The story could also begin at an altogether safer, more familiar, place. The man is standing in front of a class of 250 students at the University of Western Cape. He is teaching students about the right of gays and lesbians not be discriminated against, protected in the South Africa’s Bill of Rights. This happens several years before he went on a date with B, during an altogether happier time.

A short chubby woman with protruding teeth – one of the talkers in the class who, many years later, would bombard the man with a string of Facebook messages, asks whether you can reconcile the Constitution and the Bible. “The Bible is mos a mess about gay rights,” she laughs. Whatever happened to this student? In the Facebook messages the man later receives the former student suggests that she had lost her job as part of an unnamed conspiracy aimed at her because she has become a reborn Christian. “I know you will find this strange but God speaks to me in visions,” she writes on Facebook.

But that is far into the future. In class, the man proceeds with some delicacy. The majority of students do not support the prohibition of discrimination against gays and lesbians. “So you want to discriminate against me,” the man laughs. “If I did not know you better I would feel offended.” He flashes a smile. “And let me tell you, my boyfriend is not going to like this.” A snigger runs through the class. Another smartly dressed woman with long braids – the one who approached him early in the year, wetted her middle finger and tried to rub off the beauty spot from his left cheek – speaks up. “If the law prohibits discrimination it does not prevent anyone here from believing what they want to believe.”

“Let me ask a different question,” the man laughs. “Is it acceptable to discriminate against someone because, for whatever reason, you do not like that person?” A murmur runs through the class. A man with rosy cheeks and a goatee pipes up: “If you fail me because you don’t like me I will really be pissed off.” Everybody laughs. Nothing like some swearing in class to liven things up. It is time for the quote from the Constitutional Court judgment in Hoffmann v SAA. It is the case of the SAA who claimed it could not appoint Mr Hoffmann as an air steward because he was HIV positive and because their clients would not fly with SAA if it employed HIV positive staff. The man loves the quote. He tells the students it encapsulates all that is good about South Africa’s Constitutional Court and, for once, he says it without any irony.

“We must guard against allowing stereotyping and prejudice to creep in under the guise of commercial interests…. Prejudice can never justify unfair discrimination. This country has recently emerged from institutionalised prejudice. Our law reports are replete with cases in which prejudice was taken into consideration in denying the rights that we now take for granted. Our constitutional democracy has ushered in a new era – it is an era characterised by respect for human dignity for all human beings. In this era, prejudice and stereotyping have no place. Indeed, if as a nation we are to achieve the goal of equality that we have fashioned in our Constitution we must never tolerate prejudice, either directly or indirectly.”

I am stuck again. I used to quote that passage from the Hoffmann case so easily and with so much joy and pride. Now it sounds a bit cheesy. I open the Safari browser on my laptop and start searching Google Scholar and the Taylor and Francis electronic database for academic papers and books on how to tell a story of shame and loss and internalised stigma. During this search I chance upon Jerome Bruner’s book Making Stories: Law, Literature and Life. Bruner also writes about the way in which the law – like our lives – is about the telling of stories, about arranging facts in a manner that appeals to a judge (or, in the US context, a jury). A storyteller – like a lawyer presenting a case – needs to decide what to include and what to leave out. But what strikes me with some force is the following passage from his book: “Stories are surely not innocent: they always have a message, most often so well concealed the teller knows not what axe he may be grinding.” Is this story, then, about an axe I still have to grind with B? Or is it really about my fury at M, who, in the months before he left me, could not look me in the eye when we had sex? Or – dare I ask this? – is this story really about the axe I still have to grind with myself?

The story could also begin on a Sunday morning on a sunny day in January – 18 months before the man met B – in the front room of the house the man shares with M in Sea Point. The man nervously wipes the sleep from his eyes. Or maybe he is just fidgeting with his hands because he is anxious about what is to come. The smell of shit from his most recent bout of diarrhoea lingers on his fingertips. He wonders whether M can smell the shit from where he is perched on the armrest of the chair nearest the door, ready to flee to freedom. M, the man’s partner of 9 years, is uneasily fidgeting with his cell phone. He is wearing the yellow and green havianas the man brought back from a recent trip to South America. M has the habit of placing his hand in front of his mouth when he laughs in order to hide his protruding teeth. A few years before on their way to Grahamstown for the Arts festival a petrol attendant in Graaf Reinette told M that he looked like the Brazilian soccer star Ronaldinjo – although he did not call him Ronaldinjo but tandjies. M is not in the mood to laugh this morning. His left leg bops up and down as he speaks. “I can’t go on like this,” M says “because of what you have done to me. Because of everything”. A classic case of: it’s not me, it’s you. M stares out of the window towards the frangipani tree in full bloom, studiously avoiding eye contact. Maybe he is not staring at the frangipani tree but at something else. In any case, M is definitely not looking the man in the eye when he speaks. At least M is embarrassed. But probably not because he had to reach for a cliché to finally say the words which for the past three months have been hovering in the air, just this side of being spoken. There are no tears. The man jumps up from the couch and rushes past M. “Sorry,” he says, then dashes to the toilet to deal with another bout of diarrhoea.

Only several months later M would tell him about the love letters M wrote three years previously to a communal friend living in London. And it would be another year before M would phone him on a bright morning on new years day, teary and incoherent, and confess that he, M, had told his friends the previous night while he was high on too much acid and cocaine that he had never loved the man and that the nine year relationship was one more of convenience than emotional commitment. But when exactly was it that the gas heater M demanded for himself during the break-up exploded, gutting M’s new apartment in the ensuing fire? And when did the man’s oldest friend, hearing of M’s calamity, joke that the fire was to be expected “Dit wys jou net”, (It just goes to show) “Want God slaap mos nie” (Because God does not sleep).

I return to Bruner’s book on law and literature. Perhaps I can find an appropriate quote to cloak my sad and self indulgent story in a somewhat more intellectual garb. Bruner writes that “A self is probably the most impressive work of art we ever produce, surely the most intricate. For we create not only one self-making story, but many of them…. The job is to get them all into one identity, and to get them lined up over time… [It] is not only who and what we are that we want to get straight but who and what we might have been, given the constraints that memory and culture impose on us, constraints of which we are often unaware.” But a self is now conseptualised as a fragmented, ambiguous and ever changing cultural construct. Who you are is forever being created by power relationships over which you have no control. “Autobiography, then, is not a genre or a mode, but a figure of reading or understanding that occurs, to some degree, in all texts.” The self becomes a storyteller. Which is no longer a demeaning term, not someone who tells lies but who creates the self.

Every Sunday afternoon the man turns the house in Sea Point over to the estate agent while he wanders in a haze on the promenade. He returns home with only a vague memory of the afternoons. The taste of regret in his mouth. The house quiet and empty. The “For Sale” sign on the front gate telling its own story. The bare stubby branches of the frangipani tree casting melancholy shadows over the stoep. Not, it must be said, that the man would have noticed the frangipani at this stage of his life. He hardly notices anything not directly linked to his misfortune.

The man invites B for dinner at the house. B does not have a car, so the man drives to B’s flat to pick him up. B is carrying a small stylish leather bag. The man imagines it contains a toothbrush and a pair of clean underwear and socks. B is talkative. He keeps on touching the man’s arm. He throws his head back and laughs. The man pours wine, fries two pieces of steak in the kitchen while B perches on the marble counter top, his colourful socks peeking from beneath his skinny black jeans. The man pours himself another glass of wine. He only half listens to the story B is telling him. In his head he is rehearsing his speech. The man lights the candles. The blood oozes from the pink meat onto their white plates. He dishes up the salad and smiles vaguely while B starts telling a complicated story about how he went to watch the Oscar awards ceremony at a friend’s house and spilt red wine on the white sofa. The man is too preoccupied to wonder who the hell is stupid enough to serve red wine to a half drunk friend sitting on a white sofa. When B is finally silent, chewing on a piece of steak, the man takes the gap. Stuttering, his sweaty hands clutching the cutlery, he tells B that he is HIV positive. Before he can talk about ARV’s and how it saved his life, B shakes his head. Is he crying? No he is just shaking his head from side to side as if to shake off the words just spoken. “I cannot deal with this,” B says. “How can you do this to me?”

In another story, a story not more or less committed to the facts, in other words a supposedly less legal kind of narrative, he would have flicked the glass of wine (and it would have been red wine) into B’s face. Or he would have taken his plate of food and turned it over on B’s lap, B’s white pants stained bloody red by the juices from the steak. Or he would have plunged the steak knife into B’s right hand, pinning the hand to the table, blood spurting over the white tablecloth while B squeals in pain.

But in THIS story, in the narrative of what actually happened, he smiles at B and says. “I understand.” He comforts B with more empty words, careful that their hands or knees do not touch. He smiles encouragingly and nods and nods like an interviewer on a current affairs TV programme signalling interest in what her guest is saying. Eventually he drives B home. In front of B’s flat, he waits in silence as B clutches his leather bag in the hand that remains whole, unstabbed, before fleeing up the stairs of the Art Deco block of flats. Even when he drives home he is not angry with B. He dumps the half eaten bloody steaks into the rubbish bin, pours the glasses of half drunk wine into the sink, and packs away the candles. Later, after brushing his teeth, he sends B a text message. “Hope you are ok?” It is more than a year later before he sees B again.

I am not sure what the common script is for the kind of story I wish to tell. I am used to writing legal articles in which you have to spell things out, in which there must be a clear beginning, middle and an end. In my world the things I write about are supposed to be logical and to make sense. I again turn to Cover. Maybe there is help there.

The various genres of narrative – history, fiction, tragedy, comedy – are alike in their being the account of states of affairs affected by a normative force field. To live in a legal world requires that one know not only the precepts, but also their connections to possible and plausible states of affairs. It requires that one integrate not only the “is” and the “ought,” but the “is,” the “ought,” and the “what might be.” Narrative so integrates these domains. Narratives are models through which we study and experience transformations that result when a given simplified state of affairs is made to pass through the force field of a similarly simplified set of norms. The intelligibility of normative behavior inheres in the communal character of the narratives that provide the context of that behavior. Any person who lived an entirely idiosyncratic normative life would be quite mad. The part that you or I choose to play may be singular, but the fact that we can locate it in a common “script” renders it “sane” – a warrant that we share a nomos.”

It’s a year after the man last spoke to B. The man joins his friends to watch Ms Vanilla Von Teese performing her drag show at Bubbles Bar in Green Point. At the crowded bar, waiting to buy drinks for his friends from the beautiful barman whose bare lean torso is covered in glitter, B taps the man on the shoulder. “Hi,” says B, smiling sheepishly. He is wearing new glasses with modern lightweight frames. B is dressed smartly, a thin black tie matches his black jacket with thin lapels. The man nods stiffly towards B, but does not smile. Or if he smiles, so he imagines, it is not a warm and inviting smile. Then he turns back to the barman and orders drinks. To B he says nothing.

It is more than a week later that he receives a Facebook message from B. It contains only three words. “I am sorry.” If this was another story, not one hewing close to the truth, or at least close to the facts, the man would have deleted the messages without responding. Or it would have ended with the man replying with an eloquent message lecturing B about his prejudice and the ability of prejudice to devastate others. But the man knows how this story ends. It ends with him replying to the Facebook message with a one word message of his own. “Thanks!” It is only several weeks after sending that message that the man wonders for the first time why he attached a friendly exclamation mark and – for gods sake – a smiley face, to the end of that “Thanks!”

Rhodes statue – a reminder of strangeness made ordinary in democratic South Africa

The timely campaign by students demanding the removal of the statue of Cecil John Rhodes from its central position on the campus of the a University of Cape Town (UCT) raises broader questions about how South Africans should deal with its colonial and apartheid past, a past that still casts a long shadow over the country. At its heart the campaign challenges some of the (still widely held but often unspoken) assumptions about the past and about its impact on the contemporary society.

As I was taking out the rubbish earlier this week, I glanced over the bookshelf at the back door of my flat and noticed a book I had not thought of for more than 30 years. The book is a gushing biography of Apartheid prime minister John Vorster, with a picture of Vorster (his red alcoholic nose in full bloom) on the front page. The inscription on the title page states that the book was given to me as the Allied Building Society Prize for best progress in the matric year at Pietersburg Hoërskool in 1981.

I can’t recall that I ever read the book, but I do recall that receiving the prize meant a lot to the timid, insecure, boy trying to survive in the macho, all-white, aggressively racist and actively anti-intellectual environment of Pietersburg Hoërskool of 1981.

What struck me as I paged through the yellowed, dusty, pages of the book (look, a picture of Vorster taken in 1974 as Chancellor of Stellenbosch University with the all white and all male Student Council) was that I never before thought it strange or embarrassing to have been given such a book or to have it sitting on one of my bookshelves.

It is perhaps not that strange that the presence of a hagiography of a thoroughly wicked man like John Vorster on the bookshelf of a supposedly progressive, white, middle aged, Afrikaans-speaking South African like myself went unnoticed for so long.

In contemporary South Africa – with its entrenched patterns of race-based inequality, patriarchal, racial and homophobic prejudice and its oddly contradictory attitudes towards our recent past – the aberrant, the incongruous, the bizarre and the repugnant are often treated as normal or, alternatively, are completely ignored or denied.

For me the value of the campaign of the UCT students – beyond the immediate impact it may have on the pace of transformation at the University – lies in its potential to help us recognise and remember how strange and aberrant daily life in South Africa often is; to help us be more critical about the world we live in; to make us more consistently aware of the history and origins of hegemonic ideas and practices that serve to persuade some of us that the social, intellectual and economic dominance of our former colonisers are natural and self-evidently deserved.

Ultimately, it seems to me the protesters are calling on us to recognise the uncomfortable strangeness of our country, a country hovering halfway between a past from which it cannot escape and a future its citizens are too scared, filled with self-doubt or complacent to re-imagine and recreate in their own image.

The students are reminding us that if we are prepared to recognise the strangeness of our (not so) post-colonial country, if we are prepared to recognise how aberrant and (at the very least) ethically dubious it is that the former oppressors and the previously oppressed live side by side in a country in which many statues that glorify the exploits of the oppressors still have pride of place, we may begin to imagine and build a different society not held hostage by its past.

A continued awareness of the inherent strangeness of our society may help unleash the creativity, originality and energy needed to re-imagine and re-create our world. Being disturbed and unsettled (as opposed to being complacent and self-satisfied) can surely be an enemy of mediocrity.

However, because of sheer force of habit, or blinded by our privileged complacency, or forced by the dull repetition of sometimes grinding routines, twenty years after the formal legal end of apartheid too many of us fail to always notice the million little (and not so little) ways in which our world is still dominated by the values, attitudes, beliefs, practices, language, culture and intellectual judgements of those who colonised the country and oppressed and exploited the majority of its people for their material and cultural benefit.

The fact is that the lives of all of us who live in South Africa (regardless of race) remain – to some degree – entangled with our colonial and apartheid past. None of us can escape the lingering consequences of the colonial conquest of South Africa or the rest of the continent. Nor can we honestly claim that if apartheid never happened our lives would have been exactly the same as it is today.

As the campaign to remove the statue of Rhodes makes clear, we are entangled with the past partly because it still physically shapes and economically structures the environment in which we live.

For those who care to look, and for those whose circumstances and experiences make it impossible to look away, evidence of the strange and aberrant nature of our physical world abounds.

We all live in a country created and named by the colonisers and many of us live in towns or cities whose names glorify those who dispossessed and oppressed the majority of citizens. The geography of every city and town in South Africa carries the scars of our divided past. Every town and city in South Africa is essentially still organised according to the principles of apartheid town planning.

Many of our government offices, grand court buildings and university halls reflect the architectural traditions and tastes of a colonial culture that those who controlled these institutions until 1994 so fervently emulated and adored.

But we are also entangled with the past because everything all of us assumed, everything we believed, everything drummed into our collective consciousness over 350 years of colonial conquest and racial domination did not evaporate into thin in in 1994.

At our Universities the apartheid-era curriculum was not abolished when the old South African flag was formally lowered for the last time. Even if the regime had been violently overthrown in a revolution it would in any case have been impossible to do so.

For example, for understandable pragmatic reasons we did not ditch the common law which is a prime product of colonial conquest, serving to legitimise “white” rule with the fig leaf of legality. Today in most law schools in South Africa the common law rules are still more or less taught uncritically, without asking whether a rule advances any interests based on class, race and gender. Few lecturers analyse common law rules in terms of the ideological work they perform, or ask whether such rules help to perpetuate the unjust economic status quo or to protect and advance the economic interests of the powerful.

Many academics and university administrators still believe our places of learning and research should uncritically imitate institutions like Oxford and Cambridge – no matter how different our social and economic context may be and no matter how distinct the intellectual demands on our graduates in South Africa may be. Oxford and Cambridge are by all accounts excellent – if exceedingly conservative – academic institutions, but they operate in an environment radically different from our own.

If we study or teach at a University in South Africa most of us do so in English, the language of those who colonised our country. Whether we like it or not, at our universities we are all deeply entangled with the values, the systems of knowledge, the intellectual traditions and habits of thought that originated in Western Europe.

Given the social and economic dominance of Western powers in the globalised capitalist world, it is impossible to escape such influences. It would almost certainly be foolhardy to pretend to do so.

I am therefore not arguing that it is possible or desirable to end the entanglement with our colonial and apartheid past. Just as you cannot take milk out of a cup of coffee once it has been poured, you cannot return South Africa to a mythical, idealised place before colonialism or apartheid.

Instead I am arguing that the campaign to remove the statue of Rhodes may help us to acknowledge the inherent strangeness of our post-apartheid world and to engage with this strangeness in an honest and continuous way. It calls on us to reflect critically on what can be done to make our world less strange; what can be done to address – both materially and symbolically – the corrosive effects of colonialism and apartheid. Although we cannot entirely disentangle ourselves from our past, we can take steps to change the world we live in for the betterment of all.

In a university context it calls on us to rethink our curriculum, to rethink what we teach and how we teach it. It demands of us to be smarter and more creative, more aware of the context within which we teach, learn and do research; to ask hard questions about the inherent mediocrity that results from uncritically trying to imitate the modes of thought developed elsewhere in response to different problems.

But to do so we first have to admit that it is not possible to draw a sharp line between the apartheid past and the post-apartheid present. We have to acknowledge that this continued entanglement with our colonial and apartheid past is profoundly disturbing and ethically fraught – especially for those of us who have so handsomely benefitted from the oppression of others. And, of course, we have to be decent and honest enough to recognise the utter repugnance of a university giving pride of place to a statue that celebrates the achievements of an oppressor.

“Unparliamentary speech”? There is no such thing.

In the no confidence debate in the National Assembly this week ANC Chairperson Baleka Mbete, who sometimes also moonlights as Speaker, ruled that it was “unparliamentary” to call President Jacob Zuma a “thief”. At present there is no Parliamentary rule, nor any standing order or resolution, which prohibits or regulates “unparliamentary” statements made by an MP. The Speaker therefore had no legal authority to make the ruling and her ruling was unlawful.

In a recent judgment, the Constitutional Court reminded us (if we needed reminding) that “[p]olitical life in democratic South Africa has seldom been polite, orderly and restrained” but has rather “always been loud, rowdy and fractious”. But, said the court, “[t]hat is no bad thing. Within the boundaries the Constitution sets, it is good for democracy, good for social life and good for individuals to permit as much open and vigorous discussion of public affairs as possible”.

Such vigorous discussion will often be rude and aggressive and politicians who do not like being insulted should probably get another job. There is no place for the fainthearted in our political discourse.

In its judgment the Constitutional Court found that a text message sent by the Democratic Alliance before the previous election stating that “[t]he Nkandla report shows how Zuma stole your money to build his R246m home….” expressed an opinion that did not contravene the relevant provisions of the Electoral Act.

The judgment did not find that the claim that President Jacob Zuma is a thief was true. It is therefore not clear whether President Zuma would be able successfully to sue for defamation if he is called a thief outside Parliament. (The Constitution protects MPs from being sued for defamatory statements they make inside Parliament or in any of its committees.)

The Speaker was therefore correct to rule that the judgment did not speak directly to whether an MP can call the President a thief in Parliament. (However, to the extent that the Speaker suggested Parliament was not bound by applicable Constitutional Court judgments, she was obviously talking dangerous nonsense.)

What has to be determined is whether the rules of Parliament prohibit an MP from calling the President a thief on the ground that such a statement would be “unparliamentary”.

Neither the rules of the National Assembly nor the standing orders prohibit an MP from making prima facie defamatory statements about any individual who is not a member of the Assembly. The President is not a member of the Assembly (he ceases being a member of the Assembly when elected President) and for the purposes of this discussion is no different from any other ordinary member of the public. Even if there were a rule that prohibited an MP from calling another MP a thief (there is no such general rule), it would not apply to the President.

Section 58 of the Constitution states that Cabinet members, Deputy Ministers and members of the National Assembly have freedom of speech in the Assembly and in its committees, subject to its rules and orders. This means that MP’s can say anything about somebody in Parliament unless constitutionally valid rules or orders of the Assembly regulate or prohibit such speech. The Constitution does not allow the limitation of free expression in Parliament by a “practice”.

There is no rule that prohibits “unparliamentary” speech by an MP and so no rule that prohibits an MP from calling the President (or anyone else – including you and me) a thief. Strangely, a “practice” has developed according to which the Speaker forces MP’s to withdraw “unparliamentary” statements. As there is no fixed definition of what constitutes “unparliamentary” statements, this illegal practice grants the Speaker unfettered discretion to censor any statement by an MP she does not approve of.

But the Constitution does not allow a Speaker to limit the freedom of speech of MPs unless he or she is authorised to do so by the rules or orders of Parliament. A vague “practice” will not do. This means every time the Speaker rules that certain speech by an MP is “unparliamentary” and must be withdrawn, the speaker is unconstitutionally limiting the freedom of speech of MPs as she is invoking a “practice” that has absolutely no legal standing.

Now, the rules of Parliament could be amended in order to add a rule that would allow the Speaker to rule “unparliamentary” statements impermissible. It will depend on the content of the rule (especially whether it was formulated with sufficient precision) whether it would pass constitutional muster. Parliament could also adopt a standing order to this effect. Again, the standing order would need to comply with the Constitution. But none of these options have been followed.

This means there is no legal authority for the Speaker to rule on “unparliamentary” statements of MPs. When she rules speech “unparliamentary” she has the same legal authority to do so than, say, the legal authority I have to order South African troops to invade Lesotho. It’s a dangerous and anti-democratic nonsense inherited from the colonial Parliament. It is beyond me why the MPs of all political parties have thus far gone along with this flagrantly illegal limitation on their rights to free speech.

Now, one argument to counter this view would be that the Speaker retains a general discretion to make up rules and to invent “practices” that limit free speech. Such an argument would probably rely on rule 2, which grants the Speaker the authority to rule on “any eventuality for which these Rules do not provide”.

But this rule is not applicable to limitations on what can and cannot be said in Parliament because the rules of the National Assembly already contain extensive provisions on the regulation of speech in the National Assembly. As the rules already provide for the limitation and regulation of free speech to retain order and decorum in the House, the Speaker is not authorised by rule 2 to make up new rules or to invent new practices to limit free speech merely because the colonial masters in London may have applied a similar “practice” or “rule”.

If the rules were read differently, it would lead to absurd results as it would allow the Speaker to make any rule limiting the freedom of speech of MPs, including a general rule that no opposition MP is allowed to ever say anything in Parliament. As rule 2 does not apply, this means the Speaker cannot invoke the nonsense of “unparliamentary speech” because there is no rule or order that allows her to do so.

How do the actual rules and orders of the National Assembly limit free speech at present and why is it that these existing rules do not usually apply to statements made by MPs about the President (or about any other non-MPs)?

Rule 46 of the National Assembly prohibits MPs from talking aloud during a debate while rule 47 prohibits an MP from interrupting “another member whilst speaking, except to call attention to a point of order or a question of privilege”. Rule 50 further regulates speech by stating that the Speaker “after having called attention to the conduct of a member who persists in irrelevance or repetition of arguments, may direct the member to discontinue his or her speech”.

Rule 61 prohibits any MP (including the Speaker!) from referring to any other MP by his or her first name or names only (which is why MPs often call each other honourable member – something which, I am ashamed to say, often makes me snigger like a naughty schoolgirl).

Rule 63 prohibits an MP from using “offensive or unbecoming language” in a debate. Rule 63 does not refer to the content of the speech but rather to the form the speech takes. Calling somebody a thief or a liar or alleging that a tenderpreneur has cheated the state out of millions of Rand would not be covered by this rule, but calling a person a “little shit” or a “fuckwit” or some such offensive term would obviously contravene rule 63.

Rule 66 also prohibits an MP from reflecting upon the competence or honour of a judge of a superior court, or of the holder of an office (other than a member of the Government) whose removal from such office is dependent upon a decision of the House, except when a substantive motion to that effect is being debated. This rule obviously applies to judges and individuals such as the Public Protector or members of the South African Human Rights Commission, but does not apply to the President or other Cabinet Ministers.

Rule 67 quaintly prohibits MPs from referring to any matter on which a judicial decision is pending. This rule contains the pre-constitutional position regarding the sub judice rule, but this position has been overturned by the Supreme Court of Appeal in the Midi-Television case, so rule 67 may well be unconstitutional. Nevertheless, until it is invalidated it applies, so when Deputy President Ramaphosa refused to comment on his involvement in the signal jamming fiasco he was acting in conformity with the existing rules.

However, there is a standing order made by a former Speaker of the National Assembly, Frene Ginwala, on 17 September 1996, which reads as follows:

A member who wishes to bring any improper conduct on the part of another member to the attention of the House, should do so by way of a separate substantive motion, comprising a clearly formulated and properly substantiated charge and except upon such a substantive motion, members should not be allowed to impute improper motives to other members, or cast personal reflections on the integrity of members, or verbally abuse them in any other way.

First, it can be argued that the motion of no confidence in President Zuma indeed constituted a “substantive motion” about his conduct and therefore covers the debate conducted this week.

But even if this was not correct, the standing order quoted above did not apply to President Zuma. This is because the standing order only applies to MPs (or to the President when he is actually present in the Assembly) – not to non-MPs. Although rule 5 states that when the “President takes his or her seat in the Assembly” the rules also apply to him or her, this week (as is almost always the case when the Assembly sits) the President was not present in the Assembly, which means that the standing order quoted above could not possibly have applied to him.

Thus, as the rules stand, when the President is not in the Assembly, an MP is allowed to say the most scurrilous things about the President during any debate (regardless of whether a substantive motion to this effect had been brought) – as long as this is not done in “offensive or unbecoming” language.

When the President is not in Parliament an MP can call the President a murderer (perhaps alluding to Marikana), a thief (perhaps alluding to Schabir Shaik and/or Nkandla), a liar (perhaps alluding to his answers about Nkandla) or a weakling and lackey (perhaps alluding to the Gupta’s).

As the Constitutional Court pointed out in the case quoted above voters are generally aware that political slogans can be highly exaggerated interpretations of facts and that they come from a partisan and subjective viewpoint.

When MPs make claims about the President in Parliament ordinary voters would judge such claims accordingly. Unless the President had acted in a way to give credence to the scurrilous claims made in Parliament about him, most voters would dismiss the claims as overblown political rhetoric.

This view accords with the idea that voters (and not politicians) are ultimately in charge and ultimately judge politicians and their parties on voting day. Voters judge whether they have any reason to believe an MP when he or she uses parliamentary privilege to call the President (or anyone else) a thief.

It’s called democracy. Pity the Speaker does not seem to be a fan.

Welcome to Worcester – and apartheid 2015 style

If you are poor and black and live in South Africa (especially in a rural town), you do not enjoy the same rights that the rest of us take for granted. Sometimes state agencies – including the police – conspire to reinforce your second-class status, supposedly to protect the economic privileges of the “white” middle class, but in fact to reinforce the overall domination of “white” middle class people over “black” poor people. Welcome to apartheid, 2015 style.

If you live in the overwhelmingly “white” suburbs of Worcester in the Western Cape, you might well think of your town as idyllic. You might be one of the residents who on Sundays attend the handsome, whitewashed Dutch Reformed church (known as the “Moederkerk”), its spire prettily set against the silhouette of the Hexriver mountains.

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You might be one of those who unironically pray to the Dutch Reformed God who reportedly said that “it is easier for a camel to go through the eye of a needle, than for a rich man to enter the kingdom of God”.

Then you might stroll home from church dressed in your Sunday best, content and happy that “your” streets are being kept free of the majority of poor “black” people by the police service of the very government you despise and mock.

This is so because in Worcester the community policing forum – with the full support of the South African Police Service – introduced a “green card” system to regulate the comings and goings of poor black people in town in order to cater to the racist fears of overwhelmingly “white” residents. As Norman Jooste, who works as a gardener for one of the middle class families, explains:

Most gardeners want a card because residents don’t trust you if you don’t have one. I haven’t been asked by police for a green card, but where I went to ask by white people for work, they asked for it and if you don’t have it, they call the police. If you tell the police you do work in the area, they will go to your employer to confirm it. Those who don’t work in the area are asked to leave.

In other words, many “white” people in Worcester won’t give you a job if you do not carry the “green card” because they harbour racist fears. If you are poor and “black” and do not work in the “white” area, the police will harass you and demand that you leave the area. You are viewed as a potential criminal because you are poor and “black” merely because you are poor and “black”. You can “prove” that you do not conform to this racist stereotype, if you carry a dompas, also known as a “green card”.

Sergeant Julian Plaatjies confirmed that the cards are given to people who work or want to work in certain neighbourhoods, after a spike in break-ins and thefts. “Initially it was only for gardeners but people have approached us to extend it to domestic workers and to then call it a pink card.”

I am not making this up.

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Now, middle class “white” people who live in Worcester do not carry “green cards”. They are not assumed to be criminals involved in “break-ins and thefts” who can only prove their honesty by carrying a “green card”. Only poor “black” people are assumed to be inherently criminal and are required to carry a “green card” as a prerequisite for employment in the predominantly “white” suburbs.

This is obviously unconstitutional and illegal.

First, the practice infringes on the right to freedom of movement, which is guaranteed by section 21 of the Constitution. Section 21(3) states that “[e]very citizen has the right to enter, to remain in and to reside anywhere in, the Republic”. Where you are required to carry a “green card” in order to move freely and without fear of being harassed or branded as a criminal in public streets, while others are not required to do so, you are being denied your basic right to dignity.

The public streets do not belong to the residents of a neighbourhood – no matter what the Tim Osrin’s of the world might believe. They belong to all of us. Not the members of the policing forum, nor the police, or the members of the neighbourhood watch, or the members of a private security company are allowed to harass you or to tell you that you have to “move on” and may not walk freely through the public streets of a neighbourhood.

(Incidentally, please do ignore the traffic cones sometimes placed by companies in public streets to “reserve” parking for their clients. They have no legal right to do so as they have no right to annexe public spaces for private use.)

Second, the practice infringes on section 22 of the Constitution which states that “[e]very citizen has the right to choose their trade, occupation or profession freely.” There is no law that authorizes a policing forum to impose direct or indirect conditions on the employment of poor “black” people in a specific neighbourhood.

In fact, by requiring poor “black” people to carry a “green card” before they would be employed, “white” middle class homeowners are in breach of the provisions of the Employment Equity Act. It is not and can never legally be an inherent requirement for a job that you should carry a “green card” which turns you into a second class citizen.

What must be clear is that making the employment of poor “black” people in a neighbourhood dependent on the carrying of a green card is racist. It stereotypes poor “black” people as potential criminals.

To my knowledge, the Johannesburg Stock Exchange (JSC) has not required everyone who looks like Brett Kebble to wear a “green card” before they could enter the JSC because of fears of criminality by Kebble lookalikes (despite the fact that Kebble stole far more money from shareholders than any person in Worcester ever will). Nor has anyone required all CEO’s of large construction companies (and those who look like them – basically all balding “white” men in grey shoes) to wear “green cards”, despite the fact that these gentlemen colluded to rob taxpayers of billions of Rand in the run up to the soccer world cup.

Because it’s racist it is also discriminatory and thus in breach of the relevant provisions of the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA). PEPUDA makes clear that discrimination occurs when any policy, law, rule, practice, condition or situation directly or indirectly imposes burdens, obligations or disadvantage on; or withholds benefits, opportunities or advantages from, any person based on race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.

Here the burden to carry a green card in order to get a job and (depending on who you believe) to be able to move freely in a neighbourhood is imposed either directly because those targeted are “black”, or indirectly because they are poor but overwhelmingly or exclusively “black”.

Unfortunately, some South Africans are unaware of the jurisprudence of the South African Constitutional Court, the Kenyan Supreme Court, the Canadian Supreme Court, the European Court of Human Rights and every other major human rights institution (bar the US Supreme Court – if one can still call that court a human rights institution), and have not read the basic texts written over the past 60 years on equality law. Because they do not know that they do not have a basic knowledge of discrimination law, they cannot grasp the basic fact that a determination on whether different treatment constitutes discrimination (unfair discrimination in South African terminology) depends on power relations and context.

Mindlessly shouting slogans that were in vogue a 100 years ago (when most “Western” nations prohibited women from voting and endorsed the most egregious forms of racial discrimination), they say that any different treatment based on race is racist. It is not. What is required is to ask how the different treatment would impact on different people, given their relative social and economic power and status in society.

It is for this reason that PEPUDA – following the Constitution – does not prohibit discrimination, but unfair discrimination. In terms of section 14 several factors must be taken into account when determining whether discrimination is fair or unfair.

These factors include: whether the discrimination impairs or is likely to impair human dignity; the position of the complainant in society and whether he or she suffers from patterns of disadvantage or belongs to a group that suffers from such patterns of disadvantage; the nature and extent of the discrimination; whether the discrimination is systemic in nature; whether the discrimination has a legitimate purpose; and whether the different treatment is aimed at accommodating diversity or rather to impose or police dominant norms that exclude some from opportunities and benefits.

If you are poor and “black” you already suffer from patterns of disadvantage. (If you are middle class and “white”, you do not.) Moreover, as the Constitution Court stated in Hoffmann v SAA prejudice can never justify discrimination. Therefore, if you are poor and “black” and living in a small town in the Western Cape, and an extra burden is imposed on you in order to get a job or to move freely on the assumption that you are a potential criminal because of your race, you are being unfairly discriminated against in conflict with PEPUDA.

Sadly, some “white” residents of Worcester (as well as some “black” Police officers who have internalised the racism of the economically dominant group), will not admit to this obvious fact.

I wonder whether the dominee of the Dutch Reformed Church in Worcester will dare to tell the racists in his congregation this basic truth.