Constitutional Hill

Dignity

On the real immorality of our society

May 21st, 2012
by Pierre De Vos.
10 comments

There are approximately 1.7 million learners at over 5 000 schools in Limpopo. Think about this: For the last six months – almost half the academic year – the Department of Basic Education and the Limpopo Department of Education have failed to provide textbooks to these learners throughout Limpopo, violating their right to a basic education guaranteed in the Constitution.

While the learners of rich parents attending the better schools were probably assisted and while their parents probably bought their own textbooks, those who really need the textbooks are having their education sabotaged by people who could not care less. Surely this is far more obscene than one painting could ever be?

Politicians with their disgustingly large ego’s (often far larger, it seems, than their sense of pride in who they are and in their country or their sense of responsibility as elected servants of the people) and their small tolerance level for hard work have overseen this mess, while enjoying the perks of the Ministerial Handbook and while feeling important about being politicians whose dignity the rest of us are supposed to respect. Stuff the dignity of the poor! Stuff the dignity of the school children being denied a proper education! Let’s rather get into a blue light convoy and drive around Limpopo to show how important we are and to demand respect and to insists that OUR dignity be respected!

Bureaucrats have been playing Tetris on their computers, filing their nails or scheming to land more government tenders by corrupt means (or whatever those bureaucrats do instead of doing their jobs), while indecently neglecting the interests of school children who have been forced to go to school without access to textbooks.

It took Section 27, an NGO engaged in promoting social and economic rights, to approach the North Gauteng High Court to do something about this disgrace. That is why last week Judge Kollapen ordered the delivery of textbooks to schools in Limpopo and the implementation of a catch-up plan for Grade 10 learners. Judge Kollapen ordered the DBE and the Department to deliver textbooks to all schools in Limpopo by no later than 15 June 2012.

He further ordered that a catch-up plan must be formulated and a copy lodged with the court and the applicants by 8 June 2012. The catch-up plan must identify gaps in curricula and the extent to which the quality of teaching and learning has been prejudiced by the lack of textbooks. The Court ordered the Department to indicate what remedial measures will be put in place to address these problems. They are also required to lodge monthly reports with the court and the applicants on their compliance with the catch-up plan, which must be concluded by the end of this academic year. In addition, Grade 10 learners throughout the Province will benefit from the catch-up plan, which will assist them in closing the gaps in their syllabi caused by the late delivery of textbooks.

While many South Africans seem to have gotten rather upset (in a choreographed expression of moral outrage) about the supposedly inhuman, racist, degrading and humiliating painting of our President because the painting depicts – gasp! – a penis, the real inhuman, racist, degrading and humiliating neglect of our government selling the school children of Limpopo down the drain goes unremarked on. Why worry about a few million starving children when one can get cross about the Presidential willy.

I guess it would be too shameful to feel disgusted by this criminal neglect of our government, because then we would have to confront the immorality of the very system which we often condone or benefit from. We would have to confront the fact that millions of South African children are not only denied decent schooling but also grow up hungry and exposed to preventable disease and that as a society we can do something about it but that – collectively – we do not care enough to take action or to force our government to take action. Far easier to howl in anger about the depiction of a Presidential willy than to confront the real moral decay at the heart of our society, namely our collective disgust and hatred of the poor and our blind celebration of those who acquire material things and our own mad chase after money and material things that might, momentarily, make us feel as if we are worthy of the kind of respect we demand being shown to a second rate politician.

(In any case, what is so special about a man’s penis? Unless one is a patriarch who sees the penis as a symbol of male power and unless one believes a man deserves special treatment and can demand special respect merely because he happens to have a little willy, that organ is a rather silly, inconsequential and laughable appendage, not much different from the belly button or the small toe. Those who invest it with so much meaning - which includes the artist in question - are really just perpetuating male domination and a belief in male superiority by investing the phallus with an almost mystical importance – I almost wrote impotence.  How ridiculous and irrelevant.)

What kind of a country do we live in where so many people can get so angry about a painting of a silly willy, but can blithely ignore the disgusting and even criminal neglect by our government of the education system in one of the poorest provinces in South Africa? Why are we not marching to the President’s house demanding answers about the fact that a new Unicef report - yet to be released – found that 11.5million of the country’s 19 million children are living in poverty. The report states that 7 million children are living in 20% of the poorest households and shows that poor children are 17 times more likely to experience hunger and three times less likely to complete school than children from wealthier backgrounds.

Why are we not outraged at the fact that the government is sabotaging the future of hundreds of thousands if not millions of (mostly black) children (in Limpopo and elsewhere) because government officials and politicians are either too lazy, or too lacking in respect for themselves and their fellow citizens, to do their jobs properly and because those who have money and power (also those working in the private sector) are too greedy to pay more taxes and so many others are too scared of speaking out about the injustices and coprruption around us for fear of being ostracised by friends and family who continue blindly to support the ANC government?

We live in a country where the human dignity of millions of people are daily disrespected in a systematic and structural manner. What kind of dignity is it that we supposedly are so respectful of if we allow, through our silence or our greed, a situation to continue in which many South Africans are dying of hunger or go to bed at night shivering in the cold and wet under a bridge? Surely, we should all feel ashamed and disgusted that so many of our fellow citizens have very little freedom and cannot make meaningful life choices because they are unemployed, hungry and sometimes homeless? The immorality of the social and economic inequality and the depravation around us is something that should anger us all.

Surely if we are going to get angry (and we should), it should not be because of a self-righteously fake morality conjured up by patriarchs about something as utterly banal as a (not-real) depiction of a rather small part of the human anatomy? So where is the anger about the true immorality that is at the heart of this society we live in?

FW de Klerk reveals dark underbelly of white South Africa

May 11th, 2012
by Pierre De Vos.
379 comments

The interview on CNN with FW de Klerk, South Africa’s last apartheid President, has gotten many South Africans hot under the collar - and rightly so. In the interview, De Klerk refuses to admit that apartheid as a concept was immoral and wrong. Claiming that he did apologise for the “injustices wrought by apartheid”, he empahises that what he has not apologized for “is the original concept of seeking to bring justice to all South Africans through the concept of nation states (essentially creating two separate states, one black and one white)”.


He then proceeds to explain why the system of racial segregation and the subjugation of black South Africans by the white minority had “failed” in the following rather cold-hearted and unemotional manner:

But in South Africa it failed. And by the end of the ‘70’s, we had to realize, and accept and admit to ourselves that it had failed. And that is when fundamental reform started…. There are three reasons it (apartheid) failed. It failed because the whites wanted to keep too much land for themselves. It failed because we (whites and blacks) became economically integrated, and it failed because the majority of blacks said that is not how we want our rights…. I can only say in a qualified way. Inasmuch as it trampled human right, it was – and remains – and that I’ve said also publicly, morally reprehensible. But the concept of giving as the Czechs have it and the Slovaks have it, of saying that ethnic unities with one culture, with one language, can be happy and can fulfil their democratic aspirations in an own state, that is not repugnant.

The attitude displayed by De Klerk is shared by many (but thankfully by no means all) white South Africans and to my mind it illustrates quite emphatically why white South Africans are still widely viewed with some scepticism by many black South Africans. It is a timely reminder that many white South Africans do not “get” race and that they do not know or, worse, do not care that they are not getting it.

What De Klerk cannot admit or what he is incapable of admitting is that apartheid was not wrong – a moral abomination – because it had “failed” or merely because the human rights of black South Africans were trampled on in order to enforce the system of white domination. It was morally reprehensible because it was born out of a profound racist attitude towards black South Africans, and its logic was based on the dehumanising belief, at best, that white people were morally, intellectually and culturally superior to black people and, at worst, that black people are not fully human and do not deserve to be treated with even a modicum of concern and respect.

Apartheid was the logical result of the ideology of racism enforced by the state and could only be implemented because white South Africans believed then (as many continue to believe today – even if they are not aware of this and will deny it) that they are infinitely superior as a group to black people as a group.

Apartheid can therefore not be compared with what has happened in the former Czechoslovakia. Neither can it be compared with the impulse in Belgium for French and Flemish speakers to want to govern themselves. In these countries, different language, cultural or ethnic groups have chosen to be goverened by those who are like them, not because of the inherent belief that they are intellectually, culturally and morally superior to another group and because of the fear and hatred towards that group. Unlike with the apartheid system, the founding belief of these societies are not that its members would be tainted, subverted or defiled if they had to mix with another group whom they believed to be inferior.

The system of apartheid was not only tainted by racism or skewed by it, leading to human rights abuses against black South Africans. Racism – the fear and hatred of black South Africans by white South Africans born out of a sense of imperious superiority – was the very reasons for the creation and enforcement of apartheid.

One of the most deeply problematic aspects of life in post-apartheid South Africa is that so many white South Africans continue to deny this fact and seem incapable of confronting their own deeply ingrained sense that as white people they are generally intellectually, culturally and morally superior to most black people – although they think that by making an exception for Nelson Mandela and Archbishop Desmond Tutu they have overcome the racism within them. Fact is: we have not dealt with our own racism, no matter how progressive we are and no matter how we claim to be non-racist. Many of us may not use the “k”-word and may express our abhorance of racism, but we cannot “unwhite” ourselves and cut ourselves loose from the racists culture and world in which we live. How could we, as racism is embedded in Western culture as a defining characteristic of that culture, a culture which helps to define who we are and where we are supposed to “belong”.

That is, perhaps, why so many white South Africans get so defensive when one talks about racism, and when one calls someone out on his or her own blatant or latent racism and why excuses are so often made for racists. Because if as white South Africans we are all morally tainted because we are white, if because being white necessarily implies that we carry within our bodies the virus of racism born out of a false sense of racial superiority, then we stop being who we think we are and we lose our sense of identity as whites who by definition are superior.

When we confront the virus of racism that pumps through our veins because we happen to be white, we have to admit that we are not superior to anyone and, in fact, we become, at least, as morally tainted as everyone else, but probably morally far inferior to black South Africans. But as the definition of whiteness implies for many white people a (often unspoken and unexamined) superiority to other racial groups, this acceptance of the fact that we are morally tainted (also) because we are white (of course, no one in the world is not tainted in some way), is literally impossible to comprehend, something that would drive one mad because, for many, it just cannot be true!

No wonder De Klerk has to insist that apartheid was wrong merely because it did not work very well. If he had to admit that the very premise of apartheid made it an evil system, he would have to confront the fact that he was part of a deeply immoral system and this would fatally undermine or even destroy his sense of self – his sense of self as an essentially good person who might (because of circumstances) have made a “few mistakes” but who remains the morally superior white person he implicitly believes himself to be.

This is perhaps also why the Democratic Alliance (DA) is finding it difficult to navigate the troubled waters of racism. Earlier today journalist Osiame Molefe tellingly tweeted: “Taking on racist models is one thing, what says the DA on apartheid denialist de Klerk.” Molefe is right, but I am not sure that the DA will be able to answer him and to respond appropriately because it would create too much tension inside the DA and that party would be at war with itself.

Fact is that the DA is between a rock and a hard place. If it really wanted to confront its image of being a party for whites, a party that arrogantly exudes the values of white superiority, it will have to confront the deeply embedded notion of white superiority that so many of its current voters (and some of its public representatives) fearfully cling to in order to retain the sense that they are essentially decent human beings. It is never easy to admit that one is not as decent as one would have liked.

What the majority of white people in the world do not understand is that it can be rather liberating to throw off the burden imposed on us by the need to feel superior to others. By admitting that it is impossible to be free from racism, given that we live in a world whose economic and social structures are based on the notion of white superiority, one is freed to begin to face up to one’s responsibilities and to begin to address the problem. If one embraces the fact that one is not special, that (like all other human beings) one is incapable of living a truly ethical life but that one has an ethical duty to continue trying to do so, it is easier to let go of the anger and the hatred (and the fear and the shame which produces the anger and the hatred) that poisons one’s life.

And now I wait for the barrage of angry posts by those who prefer to continue living in their denialist cocoon of festering anger and hatred. But whether they really hate others or themselves, only they will be able to tell.

A note on Afrikaners and tribalism

May 9th, 2012
by Pierre De Vos.
105 comments

I am not a tribalist and I am opposed to tribalism in all its forms, whether practiced by Zulu nationalists dancing outside a Jacob Zuma court appearance while wearing “100% Zulu boy” T-shirts or whether practiced by Afrikaner nationalists at a Volksfees at the Voortrekkermonument, singing along to Steve Hofmeyer songs and muttering under their breath about the “black government ruining South Africa and persecuting the Afrikaans language and culture”.

Tribalism has bedevilled politics in many parts of Africa, referring as it does to the possession of a strong cultural or ethnic identity that separates one member of a group from the members of another group, an identity often deployed to facilitate political mobilisation of that tribe against perceived enemies and threats. Often tribalism goes hand in hand with chauvinism, the notion that one’s own tribe is culturally, spiritually and morally superior to those who do not belong to ones tribe. Tribalism is thus obviously divisive and exclusionary and Nelson Mandela, preaching unity in diversity, warned of the dangers of tribalism in our democratic state.

Tribalism is also, on a personal level, stifling and oppressive and not easily squared with the notion of the protection of human dignity, which assumes that we all have some agency to decide for ourselves who we are and how we want to live. It assumes that because one shares certain characteristics, cultural attributes, a language or a particular kinship bond with others, one should think and behave like the group and associate with it. It demands loyalty to the group and conformity to its beliefs and its political project – no matter how obnoxious, oppressive or downright murderous that political project might be.

This kind of identity politics is by its very nature conservative and intolerant of difference (differences within the group as well as differences between the group and those who do not belong to it). Tribalists usually do not embrace the full spectrum of human possibilities as it sees identity primarily or – in extreme cases exclusively – in tribal terms. But in order to live meaningful lives it is important to embrace and celebrate the multiplicity of overlapping identities that make us who we are.

That is why I am not a great fan of “Afrikaners” (or Zulu’s for that matter) organising around their tribal identity, as if the architects of apartheid were correct and as if there are only minority groups in South Africa – all members of different tribes – who must therefore organise around their tribal identities to protect or advance their own financial and political interests.

I am a white, Afrikaans speaking South African. But I am also a gay, HIV positive, constitutional law professor; a citizen of the world who travels widely and reads the poetry of Wislawa Szymborska and Wally Serote; a rugby supporter who listens to Zahara and Ntando in my spare time; a loving brother of four sisters; an atheist who would never dream of joining the ATKV and would laugh out loud if I were ever to be confronted by the bizarre exhortations of the local NG Kerk dominee.

Although I am proudly Afrikaans speaking, I am decidedly not an “Afrikaner”. In my eyes an “Afrikaner” is a highly political concept and a problematic one at that; it is an exclusionary identity as it refers to a group of white Afrikaans speaking people who more or less share a political orientation, cultural habits and assumptions, religious beliefs and a persecution complex that would even make Judge President John Hlophe blush. By saying that I am not an Afrikaner, I am not trying to pretend that my forefathers did not enthusiastically enforce apartheid and that I am still benefiting from it as a result. But I am saying that I reject the political label of Afrikaner because it says nothing about who I am, what I think, how I behave, who I am friends with and what makes me comfortable.

So when I read in the papers that the ANC has met with a group of “Afrikaners”, purportedly conveying to the ANC the views of “Afrikaners” about what is wrong with current day South Africa, I wonder who these people are speaking for and I wonder why the ANC is humouring them. It does not help that Afrikaans groups at the meeting included all the usual suspects, the very institutions which developed and implemented and championed apartheid: the Afrikanerbond, the NG Kerk, the Voortrekker Monument, the Afrikaanse Taal en Kultuurvereniging, the Afrikaanse Taalraad and the Federation of Governing Bodies of SA Schools.

Maybe it says something about the rightward turn inside the ANC under Jacob Zuma that the ANC has deemed it important enough to meet with this tribal group and is, in effect, endorsing this kind of tribalism. Maybe it says something about the racism embedded in our society. Why is it that when rich white Afrikaans speakers complain, the ANC is prepared to send a high-powered delegation to speak to them, but when social movements like Khulumani, the Landless People’s Movement or Abahlali baseMjondolo complain, they are mostly ignored.

Maybe it says something about the power of money and the economic power of white Afrikaans speaking South Africans that the ANC jumps when the so called “Afrikaners” complain, but will never bend over backwards like this if the complaints emanate from powerless and economically vulnerable groups.

There are lots to complain about in South Africa and, goodness knows, the ANC has a lot of explaining to do. But I would prefer a non-tribalist engagement with the ANC, one that would not be made possible only because the ANC is able to neatly put me in a box as somebody who fits the political description of an “Afrikaner”. The kind of engagement I am talking about is the engagement by NGO’s and social movements, academics and civil society interest groups – and of course, by all people who know that our Constitution allows them to be active citizens (as citizens, not as members of a tribal group), to protest and engage and argue and ridicule the arrogant and the cynical holders of political power.

Some thoughts of the rise of traditional leaders

May 8th, 2012
by Pierre De Vos.
70 comments

When the Constitutional Assembly drafted the final Constitution in 1994 and 1995, it dragged its feet in finalising the provisions dealing with traditional leadership because it was not clear how such a system could be accommodated – except in a purely symbolic way – within the democratic system of government established by the Constitution. In the end, chapter 12 of the Constitution, which contains provisions regarding traditional leaders, provided for such leaders in rather wishy-washy language, stating (in section 211(1)) that “the institution, status and role of traditional leadership, according to customary law, are recognised subject to the Constitution”.

Given the fact that section 1 of the Constitution states unequivocally that the Republic of South Africa is one, sovereign, democratic state founded, inter alia, on the values of non-sexism, universal adult suffrage, and a multi-party system of democratic government to ensure accountability, responsiveness and openness, section 211 guarantees no more than a symbolic or ceremonial role for traditional leaders. This is because traditional leadership is by its nature undemocratic and not accountable, responsive or open and hence not compatible with democracy if such leadership is going to be given a governance role.

As Prof Christina Murray pointed out, the fact that traditional leadership has survived at all in the democratic era is quite remarkable. This is because – as in most other parts of Africa – South Africa’s traditional leaders were co-opted by the colonial powers to help it govern rural areas. Ugandan academic Mahmood Mamdani famously described colonial tribal rule as “rule by decentralised despots”. This was also the case in South Africa. In particular, from the early 1950s under the apartheid government, the development of legislative and administrative structures in the Bantustans saw traditional leadership used to enforce apartheid and to act as local government rulers in Bantustans and retain control over black South Africans living in rural areas.

The central government’s power of patronage (which remains to this day in the form of the payment of large “salaries” to traditional leaders) was encapsulated in the apartheid government’s power to depose and install chiefs, making the chiefs an effective tool in implementing apartheid policies. Under the corrupt apartheid system the rewards for compliance could be great. As Maloka and Gordon relate, in the Transkei, where 30 chiefs were deposed between 1955 and 1958 for resistance to the demands of the apartheid government, Kaiser Matanzima of the lesser Thembu royal house won the favour of the apartheid authorities and later became president of the Bantustan.

Murray again:

Colonial and then apartheid structures also meant that chiefs increasingly turned to the government rather than their subjects for support. Van Kessel and Van Oomen say: ‘[S]tate recognition [became] more vital for the chieftaincy than popular support. Chiefs had become civil servants, to be hired, fired, paid and, if necessary, created by the government’. Expected to deliver services with no real sources of income, they used some of apartheid’s most vicious laws to support their enterprise. For instance, under apartheid’s system of migrant labour, African men recruited from rural areas to work on the mines had to have their ‘passes’ and permits renewed annually in their home village. Chiefs administered the pass book system and ran the labour bureaux where permits were renewed – and they received a ‘registration fee’ for their efforts.

Given these facts it is surprising that traditional leaders have managed to ingratiate themselves with the African National Congress in the post-apartheid era. It did so by forming the Congress of Traditional Leaders of South Africa (CONTRALESA) in 1987, just as the uprising against the apartheid state was reaching a new intensity. Chiefs saw the writing on the wall for the apartheid system (and was also being impoverished because of the collapse of the pass law system which generated much of the Chiefs’ income) and turned to the ANC. Nevertheless, during the constitutional negotiations, gender activists and “modernists” completely outwitted and outvoted the Chiefs.

Thus the tepid endorsement of traditional leaders in Chapter 12 of the Constitution as well as several provisions in the Bill of Rights which made clear that cultural rights as well as customary law would henceforth be subject to the discipline of the other provisions of the Bill of Rights – including section 9 which prohibits unfair discrimination on any ground – including sex, gender and sexual orientation.

These provisions were unsuccessfully challenged by CONTRALESA during the certification of the 1996 Constitution by the Constitutional Court. In that judgment the Court made the following statement about the difficulties of marrying a system of traditional leadership with democracy:

In a purely republican democracy, in which no differentiation of status on grounds of birth is recognised, no constitutional space exists for the official recognition of any traditional leaders, let alone a monarch. Similarly, absent an express authorisation for the recognition of indigenous law, the principle of equality before the law … could be read as presupposing a single and undifferentiated legal regime for all South Africans with no scope for the application of customary law – hence the need for expressly articulated CPs [Constitutional Principles] recognising a degree of cultural pluralism with legal and cultural, but not necessarily governmental, consequences.

But despite the incompatibility of undemocratic traditional leadership with a constitutional democracy, some elements of traditional leadership and customary law were retained. This attempt to accommodate the chieftaincy – despite its tainted past as enforcers of apartheid – was animated by both emotional as well as a practical considerations.

Given the colonial encounter and the devastation it wrought on Africans, traditional leaders have been able – despite their dark, collaborationist past – to promote themselves as symbols of the dignity of African communities and cultures – supposedly untainted by colonialism. Although it is, of course, not possible to return to a pre-colonial era in which traditional leaders, applying customary law untainted by the ravages of capitalism and the greed and dishonesty that always accompanies it, there is a strong yearning – sometimes expressed and sometimes unspoken and unexamined – for such a symbolic return to a different way of life which would signal some kind of rejection of colonialism and European imposed structures and legal regimes.

Second, millions of South Africans still live under a system of customary law, which often provides an easy and cheap mechanism to resolve disputes. Given the fact that many rural citizens are not able to gain access to magistrates courts because such courts are far away from where they live and because they lack resources to make effective use of such courts, and given the fact that, culturally, the common law or the legislation passed by Parliament do not always speak to the ways they live, organise their lives or their attitudes towards those in their community, customary law still thrives in some parts of South Africa.

It is against this background that traditional leaders (who are the main interpreters and enforcers of customary law) are making a political comeback. But because many aspects of customary law are incompatible with the Constitution, given that traditional leaders are not democratically chosen and are in no way independent (as they are paid and can be removed by the government) and given, further, the fact that many traditional leaders have been corrupted by money and greed, there are serious problems with the system relied on by so many people living in rural areas. While the system works relatively well in some places, in others it has been abandoned.

It is therefore curious that with the Traditional Courts Bill, the government is seeking to re-impose a fundamentally undemocratic system that is incompatible with the separation of powers and an independent judiciary – even on those communities who have rejected it. Why our democratic government would propose to pass a law that would potentially bolster the autocratic powers of unelected Chiefs remains difficult to fathom.

Perhaps the answer lies in naked electoral politics. The move therefore might have much to do with the perception among some ANC leaders (which might not be true) that by cosying up to Chiefs the ANC will be gaining more votes in rural areas. It presupposes that Chiefs are universally popular – which they are not – and that rural people by and large will not or cannot think for themselves and will allow themselves to be told how to vote by their respective Chiefs.

Where Chiefs are wise and benevolent and where loyalty to a Chiefs is strong, a Chief might well have an important influence on his “subjects”, but in other areas it is far from clear that support for the ANC by corrupted and unpopular Chiefs will translate into a mass vote for the ANC.

In any event, the Traditional Courts Bill in its current form is clearly incompatible with the Constitution and even if it is passed it will never stand the test of constitutionality. Why some in the ANC therefore seem to be hell-bent on passing this law – despite the dubious gains – remains a mystery.

Roundtable on Race-based admissions at UCT

May 8th, 2012
by Pierre De Vos.
2 comments

Affirming their own moral inferiority

May 3rd, 2012
by Pierre De Vos.
178 comments

The Congress of Traditional Leaders of South Africa (Contralesa) styles itself as “the sole and authentic representative of the progressive traditional leadership of South Africa” because it is aligned to the ANC. The organisation aims to promote and protect traditional leadership, traditional customs and practices and the heritage of the 18 million South Africans who live under the authority of traditional leaders.

However, perusing their website, one cannot help but wonder whether Contralesa (pictured below) is not also spurred on by the far less noble goal of self-enrichment. Contralesa thus complains that traditional leaders are being discriminated against:

Traditional leaders of all ranks, i.e. kings, inkosi (chiefs) and inkosana (headmen), are, like politicians in government, public office bearers.  They are entitled to be remunerated in a manner commensurate with their responsibilities and status. The truth, however, is that in this regard traditional  leaders are discriminated against. The best that they receive is a basic salary without the concomitant allowances such as medical aid, motor vehicle  allowances, pension benefits, etc. Due to lack of uniformity in the manner in which provincial governments treat the institution, some traditional  leaders have been provided with motor vehicles, while others have not. Needless to say, this gives rise to resentment and annoyance on the part of  those who do not get this form of support.

Kings and Queens currently earn over R900 000 a year, while other traditional leaders earn between R180 00 and R650 000 a year. Not being provided with a free vehicle at taxpayers expense must therefore cause serious financial hardship for traditional leaders, but not to the extent that they are not prepared to engage in robust engagement about important issues of the day (other than the salaries and benefits paid to them by the taxpayer).

Last year The House of Traditional Leaders, packed with the members of Contralesa, submitted a proposal to the Constitutional Review Committee of the National Assembly to amend section 9 of the Constitution. This Committee, set up in terms of section 45 of the Constitution, has to review the Constitution annually, but in the past 17 years they have rejected every single proposal made to it for the amendment of the Constitution out of hand. The Committee is chaired by Nkosi Sango Patekile Holomisa, who also happens to be the President of Contralesa.

At this year’s committee sittings, most proposals were again dismissed, but not the proposals to change the property clauses and those concerning the abolition of the prohibition to discriminate against gay men and lesbians. The House of Traditional Leaders suggested a redrafting of the Bill of Rights so that it would in future be legal to discriminate unfairly against gay men, lesbians and other sexual minorities, and the Review Committee decided to refer this matter (along with the proposed amendments to the property clause) the political parties represented in the National Assembly for discussion and consideration.

This means that the various Parliamentary caucuses of political parties represented in Parliament will soon have to decide whether they support unfair discrimination against people they might believe are not like them, or whether they will affirm their commitment to non-discrimination and the respect for the human dignity of all South Africans, the very bedrock on which the Bill of Rights in the South African Constitution is founded.

The decision of the Committee not to reject this dehumanising and insulting proposal out of hand (as it has done with all other proposals over the past 17 years) suggest that Holomisa believes that it is completely reasonable to ask political parties to consider whether they support unfair discrimination against fellow South Africans and whether they believe that it is necessary to endorse the denial of the human dignity of fellow South Africans.

Given South Africa’s history, this is a shocking move. The apartheid government believed that some people were sub-human because they were black or female or gay, lesbian, transgendered or intersexed and enforced a dehumanising set of laws to give effect to this belief and to try and affirm their supposed superiority as white men. But in the very act of enforcing this kind of discrimination, they affirmed the opposite, namely their own moral inferiority.

As a direct response to this history of dehumanisation the drafters of the Constitution, endorsing the view that all human beings possess an inherent human dignity and are therefore of equal moral worth, prohibited unfair discrimination against individuals regardless of their race, sex, gender or sexual orientation.

The House of Traditional Leaders, on the other hand, seems to believe that some of us are not fully human and that it is therefore imperative that the state should be allowed unfairly to discriminate against us merely because we happen to be emotionally and erotically attracted to members of the same sex and because we do not conform to a specific notion of “normality” created and perpetuated by white, colonial missionaries, a norm ironically and tragically adopted by traditional leaders infected with the ideas of South Africa’s colonisers.

It might well be that traditional leaders are not aware that their support for unfair discriminatory measures against gay men, lesbians and other sexual minorities stem from the colonial encounter and that their fear of (and disgust towards) us stem from their internalisation of the values of the colonial master. It might also be that they are not aware that such fear and disgust often stem from an unacknowledged or unwitting anxiety about their own sexual identity.

But the drafters of our Constitution knew that equality is indivisible and that one cannot truly affirm the human dignity of all if one endorses unfair discrimination against a marginalised and oppressed minority merely because such a minority is viewed as different from oneself (or from who one believes or pretends one is).

The fact that the Committee has decided not to reject this deeply reactionary proposal out of hand, suggests that some of its members endorse inequality and prejudice and support an imposition of uniformity and the concomitant suppression of all difference. It suggests an intolerance of those who do not conform to gender or sexual stereotypes or to some other non-existing or ephemeral norm, created and perpetuated to enforce the continued dominance of patriarchy. Either that or the members of the Committee are prepared to flirt with these notions so roundly rejected by the drafters of our Constitution and by the ANC in its constitutional proposals for short term political gain.

In Minister of Justice v Coalition for Lesbian and Gay Equality Justice Albie Sachs noted that: “the success of the whole constitutional endeavour in South Africa will depend in large measure on how successfully sameness and difference are reconciled.” He continued by warning:

Equality means equal concern and respect across difference. It does not pre-suppose the elimination or suppression of difference. Respect for human rights requires the affirmation of self, not the denial of self. Equality therefore does not imply a levelling or homogenisation of behaviour but an acknowledgment and acceptance of difference. At the very least, it affirms that difference should not be the basis for exclusion, marginalisation, stigma and punishment. At best, it celebrates the vitality that difference brings to any society.

The acknowledgment and acceptance of difference is particularly important in a society like South Africa where perceived racial differences were used to oppress the majority of citizens. As Sachs pointed out:

The development of an active rather than a purely formal sense of enjoying a common citizenship depends on recognising and accepting people as they are. The concept of sexual deviance needs to be reviewed. A heterosexual norm was established, gays were labelled deviant from the norm and difference was located in them.163 What the Constitution requires is that the law and public institutions acknowledge the variability of human beings and affirm the equal respect and concern that should be shown to all as they are. At the very least, what is statistically normal ceases to be the basis for establishing what is legally normative. More broadly speaking, the scope of what is constitutionally normal is expanded to include the widest range of perspectives and to acknowledge, accommodate and accept the largest spread of difference. What becomes normal in an open society, then, is not an imposed and standardised form of behaviour that refuses to acknowledge difference, but the acceptance of the principle of difference itself, which accepts the variability of human behaviour.

Those who believe that it is reasonable to debate whether some South Africans should be afforded equal concern and respect, are likely also those who believe that the state has a right to impose a standardised form of behaviour on all of us in order to eradicate all forms of behaviour which do not conform with what a small group of pampered patriarchs believe is acceptable (or in their financial interest). This is a small group of powerful men who might well believe that all outward manifestations of love and emotional affection that do not conform to what  they believe is in their interest must be suppressed in order  to retain and expand their power over what they believe to be their subjects: younger men; all women; and homosexuals.

The proposals must still be debated, but the very fact that it will be debated is dehumanising to those of us who must now wonder whether people like Holomisa believe that we are subhuman and therefore deserve to be unfairly discriminated against, vilified and (followed to its logical extreme) eventually raped and killed. Ironically, some of us will recall the depraved immorality of the patriarchal enforcers of apartheid and will know in our hearts that by the very act of raising this issue, the members of the Committee and the House of Traditional Leaders are merely affirming their own moral inferiority.

On corrective measures in the Western Cape

Feb 24th, 2012
by Pierre De Vos.
170 comments

News that the Department of Correctional Services will have to defend its employment equity policy in the Labour Court now that the matter of three aggrieved “coloured” officers has been referred to that court by the CCMA, must be welcomed. It means that our courts once and for all will be able to give guidance on the permissibility of the use of the four apartheid era race categories in affirmative action policies.

The court will also once and for all be able to deal with the “Jimmy Manyi” scenario in which a company (or in this case a government Department) uses national racial demographics in its Employment Equity Plan, even in a province (like the Western Cape or Kwa-Zulu-Natal) where the local racial demographics differ sharply from the national demographics.

The three aggrieved “coloured” officers are objecting to an instruction by the department of Correctional Services that national demographics should be used for Employment Equity targets across the country – including in the Western Cape. According to the Employment Equity targets of the Department, some 79.3% of employees should be “black Africans”, 8.8% “coloureds”, 9.3% “whites” and 2.5% “indians”. People who used to be classified as “coloured” during apartheid make up 54% of the population of the Western Cape.

Three legal issues may arise in this case. First, given the fact that the Employment Equity Act does not state in the text that Employment Equity Plans of employers should or may distinguish between “black African”, “coloured”, “indian” and “white people”, but instead speaks of the advancement of “designated groups” which include “black people”, a term that is defined as being “a generic term which means Africans, Coloureds and Indians”, the question arises whether the regulations promulgated in terms of the Act which requires employers to distinguish between different types of “black” people is legally valid or not.

I would guess (but I might be wrong) that the Constitutional Court will not have a problem with this kind of distinction in the law between different categories of “black” South Africans. Many years ago the Durban Supreme Court in the Motala case found that it was acceptable for the University of Natal to distinguish between “indian” and “african” applicants to that institution’s medical school as these groups – although both “black” – have experienced different levels of discrimination under apartheid and cannot be said at present to enjoy the same social and economic opportunities.

The Constitutional Court has also stated that questions about affirmative action need to be evaluated in the particular social economic and legal context, and that it is a situation sensitive enquiry. The context in which the Employment Equity Act Regulations should be read is one in which the lingering effects of past apartheid distinctions based on “african”, “indian” and “coloured” race categories are still felt in our society. For example, in South Africa those who belong to the group classified as “indian” during apartheid are generally far wealthier than those who used to be classified as “african”.

Second, the question arises whether the Employment Equity Act allows an employer to use national racial demographics when setting employment equity targets – even where local demographics may sharply differ from national racial demographics. At present, section 42 of the Employment Equity Act states that in determining whether a designated employer is implementing employment equity in compliance with this Act, the Director-General of Labour must take into account all other factors mentioned in section 42 which includes the “demographic profile of the national and regional economically active population” and the “pool of suitably qualified people from designated groups from which the employer may reasonably be expected to promote or appoint employees”.

It must be noted that this section does not seem to impose a direct legal duty on an employer to take into account both national and provincial demographics (or to look at the pool of suitably qualified available employees available in the region) when devising an Employment Equity Plan. This suggests that there is nothing in the Employment Equity Act that prevents the Department of Correctional Services from using national instead of provincial racial demographics when devising and implementing an employment equity plan.

However, the Department of Labour must, inter alia, look at provincial racial demographics when it evaluates the Employment Equity Plan of the Department. This suggests that the Employment Equity Act may perhaps be interpreted to imply that the achievement of “employment equity” in a workplace can only be achieved if the regional and not the national demographics are taken into account. This interpretation is somewhat strained as section 42 requires the Department of Labour to take into account both national and regional racial demographics and it is far from clear whether these provisions could be read to place a legal duty on the Department of Correctional Services to use regional and not national racial demographics in its Employment Equity Plan,

Ultimately, the court will have to decide which interpretation is correct.

One must recall that section 13, read with section 15, of the Employment Equity Act states that what employers are legally required to do is to implement affirmative action measures for people from “designated groups: in order to achieve “employment equity”. “Employment equity” is not defined in the Act but section 15 defines the scope and limits of required affirmative action measures. It states:

(1) Affirmative action measures are measures designed to ensure that suitably qualified people from designated groups have equal employment opportunities and are equitably represented in all occupational categories and levels in the workforce of a designated employer.

(2) Affirmative action measures implemented by a designated employer must include: (a) measures to identify and eliminate employment barriers, including unfair discrimination, which adversely affect people from designated groups; (b) measures designed to further diversity in the workplace based on equal dignity and respect of all people; (c) making reasonable accommodation for people from designated groups in order to ensure that they enjoy equal opportunities and are equitably represented in the workforce of a designated employer; (d) … measures to: (i) ensure the equitable representation of suitably qualified people from designated groups in all occupational categories and levels in the workforce; and (ii) retain and develop people from designated groups and to implement appropriate training measures, including measures in terms of an Act of Parliament providing for skills development.

The section further states that affirmative action measures will “include preferential treatment and numerical goals, but exclude quotas”. It also states that the section does not require “a designated employer to take any decision concerning an employment policy or practice that would establish an absolute barrier to the prospective or continued employment or advancement of people who are not from designated groups”.

I would suspect that these provisions, read holistically, might well be interpreted by a court to mean that the duty on employers to strive towards equitable representation of suitably qualified people from designated groups in the workforce requires them to take into account the regional and not national racial demographics when it formulates its affirmative action targets. As we know, the Department of Correctional Services’ current policy (which uses national racial demographics) in effect places an absolute barrier on the advancement of “coloured” correctional services personnel in the Western Cape – especially given the bloody-minded manner in which it is reportedly being implemented. Under the current plan, if a Western Cape officer working the Department of Correctional Services wishes to be promoted, he or she will almost always have to move to another part of the country.

Although the “coloured” personnel can, of course, apply for jobs elsewhere (where there is not – in the offensive words of Jimmy Manyi – an “oversupply of coloureds”), this requirement would place “coloured” members of the Department of Correctional Services in a very difficult position. If their roots are in the Western Cape, if their families live and work here, and if they speak predominantly Afrikaans, one of the dominant languages in the region, such employees may in effect be forced to choose either never to be promoted or to uproot themselves entirely. This may force many of them out of the service of the Department altogether.

This interpretation of the Employment Equity Act would be in line with the Constitutional Court’s jurisprudence on corrective measures as developed in the Van Heerden case, in which Deputy Chief Justice Moseneke stated that it was not constitutionally permitted to impose corrective measures on a group if those measures constituted “an abuse of power or impose such substantial and undue harm on those excluded from its benefits that our long-term constitutional goal” of achieving equality in a diverse society would be threatened. The Correctional Services Department’s policy may therefore be declared unlawful and not in line with the carefully interpreted provisions of the Employment Equity Act.

If the court found that the Act could not be interpreted in this way, I suspect it would have to declare unconstitutional the provisions in the Act which could be interpreted as allowing an employer to ignore regional racial demographics when it imposed an employment equity plan. This would be because such provisions (interpreted to allow for national demographics to be used exclusively when formulating Employment Equity Plans) would not meet the requirements for a valid corrective measures programme developed in the Van Heerden case.

Whatever happens, unless for strategic reasons the Department settles this matter to avoid a definitive judgment by the Constitutional Court on these vexing issues (something the Department would be well advised to do and which it might still do if good lawyers are advising it), the case will probably go all the way to the highest court, where that court will finally be able to put these highly contentious issues to rest by giving guidance on corrective measures that apply differently to people previously classified as “coloured”, “indian” and “african”.

The historical amnesia of Pieter Mulder

Feb 21st, 2012
by Pierre De Vos.
146 comments

Dr Pieter Mulder, Freedom Front Plus Leader and deputy minister of Agriculture, Forestry and Fisheries, last week provided South Africans with a textbook example of the kind of historical amnesia that has befallen some of my fellow white South Africans. Almost every day one has to listen to some or other fellow on the radio complaining about how black South Africans are obsessed with the past.

This complaint is usually followed by a demand that we should all stop harping on about the past (in other words, that we should pretend that apartheid never happened and that its effects do not linger on in our society) and that we should look towards the future – as if the past has absolutely nothing to do with the problems faced by our country today.

The problem is that this yearning (expressed by some white South Africans) to forget the past is not only illusory, it is also deeply dishonest and self-serving. This is because those who argue in favour of a kind of moral amnesia often have very little knowledge or understanding of the very past which they now claim we need to forget. How, I wonder, can we be asked to forget the past if we do not even know (or pretend not to know) about the injustices committed by our forefathers against black South Africans and if we have no understanding of its lingering effects?

An exhortation to forget the past is really an exhortation to rewrite the past and to invent a completely new past in which white people never oppressed black South Africans, never exploited black South Africans economically and never actually dispossessed black South Africans of land and of opportunities – including educational opportunities. This Stalinist yearning to whitewash the past and to try and make us forget about the role white people played in the exploitation and dispossession which occurred during the periods of colonialism and apartheid is dangerous and infuses some white South Africans with an undeserved (and, quite frankly, bizarre) sense of moral self-righteousness and superiority which is at the heart of the continued racisms in our country.

Mulder is only one of a long line of white settlers who wishes to rewrite the past in order to enforce and perpetuate their own sense of moral superiority and their sense of supposed victimhood. Speaking in President Zuma’s State of the Nation debate with a chutzpa that is breath-taking, Mulder ignored the past 300 years of colonialism and apartheid to try and make a point about land ownership and dispossession in South Africa, stating that:

Sir, Africans in particular never in the past lived in the whole of South Africa. The Bantoe- speaking people moved from the equator down while the white people moved from the Cape up to meet each other at the Kei River. There is sufficient proof that there were no Bantoe-speaking people in the Western Cape and North-western Cape. These parts form 40% of South Africa’s land surface.

He “forgot” to mention, amongst others, the long process of colonialism and concomitant land dispossession, which culminated in the Glen Grey Act of 1894 and the Natives Land Act of 1913.

The Glen Grey Act, as Davenport pointed out, “was designed to set a pattern of African land-holding throughout the Cape African reserves”. It imposed a labour tax on Africans which was aimed at forcing Xhosa men off their land and into employment on commercial farms or in industry. It further “excluded property ownership altogether as a voting qualification for blacks who held under Glen Grey title”.

Even worse was the Natives Land Act which was passed in 1913 by the Union Parliament as part of its first efforts to formalise land dispossession of Africans and to lay the groundwork for full racial segregation which culminated in the adoption of apartheid policies. The Natives Land Act included a “Schedule of Native Areas,” incorporating all the African reserves that had been established in the various provinces prior to 1913. The Act carefully delineated the boundaries of these reserved areas. The schedule brought under the coverage of the Act about 22 million acres of land (just over 7 per cent of South African territory) within the four provinces of the Union.

As Feinberg has pointed out, the creation of a schedule, defining the boundaries of the African reserves by national law, was a very important part of the Act. The most important provision of the Act stated that Africans could no longer buy, lease, or in any other manner acquire land outside a scheduled area, except by acquiring that land from another African, and Europeans were prohibited from buying or leasing land from an African. Only Africans could buy land within the scheduled areas. Although the territory covered by these schedules were increased in 1936, the effects of this Act on landownership by Africans was devastating.

From 1913 to 1991 black South Africans, were therefore denied the right to acquire land in most parts of South Africa. Feinberg sums up the effects of this Act as follows:

The long term results were worse than anyone anticipated. Rapid population growth among Africans and soil erosion in the reserves (partly due to over-grazing) seriously undermined African agriculture. And, after 1948, the reserves became the cornerstone of a key part of the apartheid system, the homelands.

Of course, by the time the Land Act was passed, the dispossession of land had almost been complete. Feinberg again:

Before 1910 just under two million Africans lived in reserves, some of which were overcrowded. They lived in these reserves because, during the last third of the nineteenth century, Africans were conquered by Europeans who took control of a large proportion of African land, leaving only remnants for the survivors. Over half (1,149,438) of the Africans living in reserves were in the Cape Province. Africans could purchase land in the Cape, Natal, and, after 1905, the Transvaal (as a result of a court decision). The number of Africans buying land in the Transvaal was very slowly increasing after 1905. However, Africans owned a mere 2,104,300 acres in the Union, and this land was occupied by fewer than 124,000 people. Africans could not buy land in the Orange River Colony or in the Orange Free State, and the holdings of a few dated back to special circumstances from the nineteenth century.

It is exactly because (unlike Mulder and his cronies) the drafters of our Constitution did not suffer from historical amnesia that section 25 of the Constitution explicitly recognises the need for land reform in our country. This section allows for an expropriation of land in the public interest, and section 25(4) explicitly states that “the public interest includes the nation’s commitment to land reform, and to reforms to bring about equitable access to all South Africa’s natural resources”.

This section also places a positive duty on the state to take “reasonable legislative and other measures, within its available resources, to foster conditions which enable citizens to gain access to land on an equitable basis”, while section 25(8) could not have made this general point any clearer when it stated that:

No provision of this section may impede the state from taking legislative and other measures to achieve land, water and related reform, in order to redress the results of past racial discrimination, provided that any departure from the provisions of this section is in accordance with the provisions of section 36(1).

As I have written before, to this end the property clause therefore does not require expropriation of land in accordance with the “willing-buyer willing-seller” principle. Nor does it require the payment of market value for that land in all circumstances.

These provisions can be viewed as responding directly to the history of land dispossession of black South Africans which went hand in hand with the process of colonial conquest. Mulder’s argument, which (even if it was historically correct) hinges on a requirement to completely forget the past 300 years of land dispossession that went hand in hand with colonial conquest, is thus completely at odds with the provisions of the Constitution itself.

It is strange that a Deputy Minister in the Cabinet would make statements that so utterly disregard the provisions of the Constitution, given that it is this very same Constitution which he invokes in other contexts to try and argue for special rights for white farm owners or for what he would term “Afrikaners” (but what in reality amounts to right wing whites).

Why the Traditional Courts Bill might be unconstitutional

Feb 15th, 2012
by Pierre De Vos.
17 comments

The Law, Race and Gender unit at UCT has produced the following video explaining why aspects of the Traditional Courts Bill tabled last month may be unconstitutional.

Spinning out of control

Feb 7th, 2012
by Pierre De Vos.
124 comments

When Ms Liz Hleza went to her spinning class at the Morningside Virgin Active in Sandton on 31 December last year, she reportedly got far more than she bargained for. Instead of an enjoyable spinning class, Hleza reportedly had to face the racial abuse of a fellow spinner because she did not wish to behave as the fellow spinner thought his white skin gave him the right to expect from her.

Hleza says that she was enjoying the music and kept shouting “yebo” as the instructor put them through the gruelling exercise. However, a man in front of her (who has as yet not been named, but is reportedly a lawyer), was so upset that Hleza was enjoying herself differently than he would have, that he got off his bicycle and confronted her.

I was so scared and thought he was going to hit me, he was very angry. He said I should keep quiet and kept saying this bloody k*****, you k*****. He was pointing fingers at me. He said ‘bloody c**** and that I was a selfish bitch. He also told me that I was born walking on four legs with a tail, and I should go back to the bushes where I belong and make that noise there.

Hleza says that she did not return the insult. After the class, Hleza went to the manager on duty to complain and when that manager called the two men to her office, they refused to go. The man, she said, swore at her again. “He said ‘You bloody k*****, you are a cockroach and next time I come to the gym I will bring Doom to spray you with’.” Virgin Active did not seem to take the incident particularly seriously (perhaps not wanting to upset a rich white client, or perhaps blaming the victim for not behaving like an upper middle class white person) and only reopened the case when it was reported on in the newspapers this week.

Predictably, some people dismissed the story, either by questioning the accuracy of Liz Hleza’s version of events (as if a different version of events would justify the use of any of the racist words uttered) or by arguing in one way or another that she was to blame for this racist attack on her because she behaved “inappropriately”. What has not been addressed is the question of whether Liz Hleza would be successful if she took the reported abuser (or Virgin Active, for that matter) to the Equality Court.

The Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA) was adopted in 2000 to give effect to the constitutional prohibition against unfair discrimination and to protect citizen from abuse and discrimination based on the race, sex, sexual orientation, religion, disability and a variety of other characteristics of the victim. PEPUDA also aims to make it easier for a private individual to take the state or another private individual or institution to court to challenge unfair discrimination or abuse.

It is important to note that PEPUDA does not outlaw racism per se and it does not turn every racist in South Africa into an instant criminal. (If it did, our courts would have been flooded with PEPUDA cases.) This means that if the lawyer who reportedly abused Hleza because of her race, made racists remarks during a dinner party, PEPUDA would almost certainly not have applied to him. In any case, even when a person contravenes PEPUDA, he or she does not commit a crime and does not get a criminal record if found guilty of racial discrimination or hate speech in terms of the Act. The court will make a finding that a person has acted unlawfully and will impose a relevant punishment (ordering the payment of a fine, the issuing of an apology or another appropriate corrective action).

The Act does prohibit unfair discrimination, harassment and hate speech.

It is clear that the lawyer could be found guilty of hate speech in terms of section 10 of PEPUDA if he had used even one of the racist words ascribed to him. This is because hate speech is defined rather broadly as including any verbal racial attack that could reasonably be construed to demonstrate a clear intention to be hurtful to another person. When a person calls someone else the k-word and hurls other racial abuse at the victim, it would be rather difficult to argue that this would not reasonably be capable of being construed as having the intention to be hurtful to the victim. The lawyer would therefore almost certainly be guilty of hate speech.

As I have written before (in the context of the Julius Malema’s hate speech case), I believe that this section is unconstitutional as it draws the net far too wide and infringes on the right of freedom of expression in a manner that is not justifiable by the limitation clause. Nevertheless, until the Constitutional Court confirms (or rejects) this view, one would be able to rely on section 10 of PEPUDA to bring a case against the lawyer.

Section 11 of PEPUDA also prohibits any person from subjecting another person to harassment. Harassment is defined as unwanted conduct “which is persistent or serious and demeans, humiliates or creates a hostile or intimidating environment or is calculated to induce submission by actual or threatened adverse consequences and which is related to sex, gender or sexual orientation” or any other ground such as race.

The reported conduct of the lawyer may arguably be viewed by a court as sufficiently serious to amount to harassment based on race as it would have demeaned and humiliated the victim based on her race. Whether a court will find this, is not clear.

The definition of harassment can be given either a narrow interpretation (which would exclude a once-off racial attack like the one under discussion), or it could be given a wider interpretation that would include once-off verbal attacks of a racist nature – as long as the verbal attack is of a serious nature. If the latter interpretation is preferred, it would mean that as long as the abuse was serious and as long as it could be shown to have humiliated or demeaned the other person (based on race, sex, gender, sexual orientation or another ground listed in the Constitution), the court would find that harassment occurred.

PEPUDA also prohibits unfair discrimination, stating that “discrimination” means any act or omission, including a policy, law, rule, practice, condition or situation which directly or indirectly imposes burdens, obligations or disadvantage on; or withholds benefits, opportunities or advantages from, any person on one or more of the prohibited grounds.

If one has demonstrated that one has been treated differently from somebody else based on one’s race, say, it will then be assumed by the court that one has been unfairly discriminated against. The other party can then try to rebut this presumption of unfair discrimination. The definition of discrimination provided in PEPUDA suggests that “mere” words would seldom amount to unfair discrimination, because one would have to show that the words had the result of imposing a burden or withholding an advantage from someone based on his or her race.

However, as PEPUDA is not a particularly well drafted Act, there seems to be a contradiction between this definition of discrimination (contained in section 1 of the Act) and the provisions of section 7 of PEPUDA which purports to provide illustrations of the kinds of actions that would constitute discrimination. Section 7 states that:

no person may unfairly discriminate against any person on the ground of race, including: (a) the dissemination of any propaganda or idea, which propounds the racial superiority or inferiority of any person, including incitement to, or participation in, any form of racial violence; (b) the engagement in any activity which is intended to promote, or has the effect of promoting, exclusivity, based on race; (c) the exclusion of persons of a particular race group under any rule or practice that appears to be legitimate but which is actually aimed at maintaining exclusive control by a particular race group; (d) the provision or continued provision of inferior services to any racial group, compared to those of another racial group; (e) the denial of access to opportunities, including access to services or contractual opportunities for rendering services for consideration, or failing to take steps to reasonably accommodate the needs of such persons.

While the reported abuse of Hleza by the lawyer would probably not fall within the general definition of unfair discrimination in PEPUDA, his reported actions may well fall within the ambit of the examples provided for in section 7 of the Act. This is because he expressed views that promote the idea of the racial inferiority of black people. Given the fact that hate speech is already outlawed by section 10 of PEPUDA, I am not sure whether a court will interpret the unfair discrimination provisions in such a broad manner to include racial abuse. If I am correct, this would mean that the lawyer may well not be found guilty of unfair discrimination if brought before an Equality Court.

However, regardless of whether one follows the stricter definition of discrimination provided in the definitions section of PEPUDA or whether one follows the provisions of section 7, the Virgin Active gym might well be found guilty of unfair discrimination.

If Virgin Active did not protect Ms Hleza from the reported racial invective of the lawyer and if it had failed to deal decisively with the matter (by, for example, suspending the lawyers membership and banning him from their gyms), this omission on the part of Virgin Active may well be viewed as constituting unfair discrimination as its inaction would have assisted in creating an environment in which Ms Hleza would have felt that she could not attend the gym or at least not the spinning class at times when she felt like it.

Such an interpretation would make sense as it would place a special burden on businesses to protect individuals against the racism of other clients. Such a burden would attack the problem of racial discrimination in a more systematic and comprehensive manner. Instead of “merely” punishing the individual racist, the Act (interpreted as proposed) would place a positive duty on powerful corporations and businesses to deal with racism amongst its clients. As businesses have far more power to deal with such matters effectively than individual clients who suffer racist abuse, this interpretation might well make the provisions of the Act more effective.

Meanwhile we await word from Virgin Active to see whether the publicity might have shamed it into taking this reported incident as seriously as it deserves. If it does not, Hleza might well want to take both the abuser and Virgin Active to the Equality Court.

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