Constitutional Hill

Dignity

What shall we do about the Reverend?

Oct 21st, 2011
by Pierre De Vos.
80 comments

Reports that a Cape Town pastor has called gays and lesbians drug addicts and child molesters and said that Archbishop Emeritus Desmond Tutu will burn in hell for supporting the LGBT community will probably be welcomed by some of the more bigoted readers of this Blog. According to the Mamba Online website the Rev Oscar Peter Bougardt, a Christian Minister of the Gospel of Jesus Christ and senior pastor at Calvary H.O.P.E Ministries in Mitchells Plain (what a wonderfully Orwelian name!), launched this attack against gay and lesbian people in unsolicited e-mails to local websites catering to the gay and lesbian community.

Bougardt said that his “mission is to take out all lesbians and gays because they are a bunch of idiots who confuse our children”. The pastor also said that “their lifestyle is an abomination to God and that gays and lesbians should know that they are going to burn in hell”. Apparently the majority of us are also drug addicts and:

offer our teenagers and children drugs and alcohol and once they are drugged and drunk they are seduced and end up having sexual relation with them…. Lesbians and gays are a curse on any community. I believe that a man that sleeps with another man doesn’t deserve to be part of a healthy community and I will mobilise the masses to stop them.

Asked about his comments he said:

If I say take out homosexuals, I mean they must be removed from our communities…You interpret that I am inciting violence against homosexuals, I see it is making our people aware that their lifestyles should not be approved by any healthy community. Just as homosexuals have the right to express their views, I have the right to express mine.

When I read these statements I could not help but laugh and, I have to confess, for a moment it did cross my mind that the pastor might have been smoking or drinking the strong stuff before he made these utterances. Then I felt sad and a bit sorry for the gentleman who styles himself as a man of the cloth.

Why would he have constructed for himself such a warped, perverted and hating religion? Why the obsession with sex and drugs and child molestation? Does he himself perhaps have an issue with his sexuality or with other urges that remain unspeakable to him? After all, the biggest homophobes are often repressed homosexuals. Or is he targeting the gay and lesbian community because he wishes to exploit the prejudices of other members in the community in the hope that the donations would start flowing into his ministry?

I have no way of knowing what his motivations might be for writing to these websites. Maybe he is a sincere person with strong if somewhat bizare views. Or maybe he has been watching too many YouTube videos of Ugandan pastors and feels jealous of them for having cornered the market on hate.

Of course, it would be easy to shut up the pastor and make a few hundred thousand Rand for a gay cause or organisation. After all, the words would almost certainly constitute hate speech in terms of section 10 of the Equality Act. As those who read this Blog know, that provision states that words that could reasonably be construed as having had the intention to be hurtful towards gays and lesbians would constitute hate speech. Advocating the “taking out” of homosexuals from society, sounds like the talk of an apartheid-era hit-squad member.

If Afriforum wanted to demonstrate that it did not only have an obsession with the ANC but was really concerned about hateful rhetoric in our society, it would take the pastor to the Equality Court and get that court to order him to stop making such statements (and to stop making an utter fool of himself too, one must add). His words sound not too different from the singing of the “Kill the Boer” song by Julius Malema. But while Malema invoked the struggle tradition, the pastor will obviously invoke his right to religious freedom (and the religious tradition centred around hate and homophobia) as well as his right to make a fool of himself. (Although, I am not sure the latter right is explicitly written into the Constitution.)

Yet, I for one would not be running off to the Equality Court. While I find his words hateful and deeply obnoxious, I do not think the best way to deal with the “pastor” is to ban him from writing these letters. Far better to mock the poor man or, alternatively (if that is your kind of thing) to show Christian compassion towards this seemingly deeply damaged soul by praying for him in the hope that he will eventually manage to deal with his suspiciously obsessive attitudes towards gay men and lesbians.

Besides, as I have written before, I am almost certain that section 10 of the Equality Act is overbroad (as it includes a far broader definition of hate speech than the definition contained in section 16 of the Constitution) and is hence unconstitutional. I would therefore not want to invoke a section of the law that I believe is unconstitutional. As I criticised President Jacob Zuma for invoking an unconstitutional provision of the Judges’ Remuneration Act to try and extend the term of office of the Chief Justice, it would be rather hypocritical of me now to invoke this provision which I believe is similarly unconstitutional.

But how should relatively reasonable, logical and respectful people deal with this kind of utterance? Am I not being a bit precious by arguing against the hate speech route? I happen to be an upper middle class white man living in the suburbs and I am usually able to avoid weirdo’s who make statements like those uttered by the pastor or who would want to do physical harm to me – unlike some other gay men and lesbians who face the most vile and sometimes lethal homophobia of members of their own communities and do not have the luxury of avoiding the homophobes.

Well, my belief is that banning these kinds of words will not stop homophobia. Neither will it stop homophobic attacks on gay men and lesbians. People will still think these things and they will still say these things – just not on public platforms. Some people will also act on their fears and hatred by attacking gay men and lesbians to make themlseves feel better about their internalised self-hatred.

The only thing that will stop this kind of exploitative hatred is a change of heart on the part of those people brainwashed by religious groups to believe that other human beings supposedly created in the image of God are inherently bad or even evil. In other words, we need to demonstrate how absurdly contradictory the teachings of the more extreme religious groups are and we need to change the way people think.

The only way people will change is if those of us who are more reasonable, more compassionate, more respectful of human difference, convince enough people that these hateful views are illogical, irrational  and immoral. We will only do so by using rational arguments (and the odd bit of ridicule and mockery). When those of us who are empowered to do so stand up for ourselves and for members of our community and if we demonstrate through our words and our deeds that people like Mr Bougardt is at best a deeply damaged souls and at worst, just a populist charlatan, we will begin to win this fight.

Personally, I am going to write to Rev Bougardt (pastor.bougardt@gmail.com) and tell him the good news that it is ok to be gay and that if he has any problems with his sexuality I will be very happy to talk to him about this. After all, it is only the Christian thing to do to help another person to overcome his or her self-hatred.

Why define myself as part of an “Afrikaner” minority?

Oct 11th, 2011
by Pierre De Vos.
224 comments

There is a great paradox at play in political discussions and arguments about the manner in which “Afrikaners” and other “ethnic minorities” should position themselves and should behave in post-apartheid South Africa. This discussion has recently exploded into the open in the aftermath of judge Colin Lamont’s “Kill the Boer” judgment.

First, Adriaan Basson, Deputy Editor of City Press  wrote an open letter to Kallie Kriel, the CEO of Afriforum, about the manner in which the organisation has positioned itself as a defender of “minority Afrikaner interests”. Basson berated Kriel because:

[Y]ou see yourself firstly as part of a minority group, whose constitutional and human rights are being disregarded by the ANC. The premise of AfriForum’s campaigns is one of victimhood. You regard the Afrikaners as a group under threat, a people whose basic rights to expression, association and movement are constantly being undermined by the black majority.

Basson suggested that one should position oneself as a South African first and only then, as an afterthought perhaps, as a person who happens to be Afrikaans speaking and white. Basson seems to suggest that “Afrikaners” should not view themselves as a minority at all, but if they do, they should recognise that “Afrikaners must be one of the most powerful, wealthy and diverse minorities on the planet”. In Business Day, Steven Friedman, similarly criticised the “Kill the Boer” judgment because it reifies the white minority’s economic and cultural dominance.

“Afrikaners”, this group argue, should not claim a special status for themselves as they are relatively privileged as a group and are thriving — both economically and culturally — in democratic South Africa. There are so many other, far more pressing, political and ethical issues that people in South Africa should be concerned about — hunger, unemployment, homelessness, to name but a few. In order to make South Africa a more just and equitable place, “Afrikaners” should rather make common cause with marginalised and oppressed groups. They should change their minds and their hearts and should stop acting liking perpetual victims — stop exuding the we-can-never-forgive-blacks-for-apartheid mentality — as this mentality will just have a polarising effect on politics in South Africa.

Others, including Kriel, Wessel Ebersohn and Herman Giliomee point to the deep sense of anxiety and fear amongst many “Afrikaners” about their future in South Africa. These feelings relate to fears about the “Afrikaner’s” continued economic prosperity and the physical safety of members of this “minority” as well as an unease or even deep unhappiness regarding the loss of status of their language (Afrikaans) and their diminished political influence.

They warn against the totalising effect of an ideology that valorises “unity” and abhors difference and diversity. If I understand these arguments correctly, they are based on the premise that “Afrikaners” are indeed very different from other South Africans, because of their race, because of their language, because of their wealth (and perhaps – but this is never stated – because of their intimate involvement in the oppression of black South Africans during apartheid) and that people like Basson must be naive to think that one could be a South African first and an “Afrikaner” second.

The paradox is that many people who valorise “Afrikaner” identity in this way and see “Afrikaners” as physically or existentially threatened, also warn that one of the greatest threats to our non-racial constitutional democracy (and, by implication, to the “Afrikaner” minority) is the tendency of many black Africans in South Africa to see themselves as black first and as South Africans second. The very people who fearfully condemn the deployment of an ethnic or racialised identity by black Africans when they criticise affirmative action, claim a semi-racialised ethnic identity for themselves and argue for its preservation and protection through militant legal and political action.

Why is it acceptable for “Afrikaners” to embrace their “Afrikaner” identity and view themselves as “Afrikaners” first and South Africans second, but it is not acceptable for black South Africans to embrace their racial identity and to view themselves as Africans first and South Africans second? After all, “Afrikaners” were the main (but not only) beneficiaries of affirmative action during the last 40 years of apartheid and used their semi-racialised ethnic or cultural identity in the most devastating way to oppress the majority of South Africans. It is dishonest and conceptually treacherous to claim that this identity is somehow more benign than the racial identity that some black Africans embrace. Either identity politics itself should be problematised and its effects minimised or its should be embraced, with all the negative consequences that flow from this for a supposed “minority” identity group.

Some might argue that there is a difference as “Afrikaners” is a minority and black Africans is a majority, but as Adriaan points out, the vast majority of the members of this so called minority have done rather well in the democratic era. There has been an explosion in creativity amongst “Afrikaners”, finally freed from the shackles of Afrikaner Nationalism. Goodness, there is even a DSTV channel dedicated to Afrikaans music (some of it admittedly rather pedestrian, but some of it hard-assed, vibrant and moving).

But the fact is that identity politics is popular in South Africa because it seems to work. If one wished to resist oppression, economic exploitation and white racism, one would be wise to embrace an African identity and to advocate the implementation of special legal and political measures to “protect” or “advance” the identity group one feels one belongs to. Similarly, if, as an “Afrikaner”, one wished to harness the economic power amassed on the back of apartheid and if one wanted to be taken seriously by the ANC, one would be well-advised to show a united “Afrikaner” face to the so called “enemy”: the black majority. President Jacob Zuma has never gone out of his way to meet with progressive “Afrikaners” like Adriaan Basson, but he did join Steve Hofmeyer – that “Afrikaner” opportunist par excellance – for a braai.

Of course, if one has far more sympathy for Adriaan Basson’s view (as I do), one is not completely left off the hook. We usually talk about the past and the devastating effects of apartheid and many of us support some kind of race-based affirmative action. Yet, we claim that these identity categories (on which race-based affirmative action policies must rely and which are perpetuated by those very policies), should stop defining who we are and should be no more than one of the many distinct factors that help to paint a picture of who we are.

We like to say that there are no ethnic minorities or majorities in South Africa and that there are only temporary political majorities and minorities. We argue that we might happen to be white and Afrikaans speaking, but that this does not define who we are. We are also male or female, gay or straight, rich or not so rich, HIV positive or not, ANC supporters or DA supporters, liberals or socialists, readers of good books or watchers of Glee, rugby fanatics or kwaito bedonnerd, nature lovers and city slickers.

However, I would contend that there is a fundamental difference between the two positions. Given the fact that South Africa is a country still haunted by the economic and social effects of racial discrimination and apartheid, given that whiteness as an ideology is deeply implicated in the continued marginalisation and oppression of black South Africans and given, further, that the white minority in general and “Afrikaners” in particular benefitted enormously as a group from apartheid, it is both ethically and practically unconscionable for whites in general and “Afrikaners” in particular to define themselves as a victimised and threatened minority in order to try and retain some of the special privileges they acquired during apartheid.

On the other hand, the effects of past and ongoing racism and discrimination against black South Africans can only begin to be addressed if well-designed and targeted race-based corrective measures are enthusiastically pursued. While some of us who agree with Adriaan Basson will therefore support race-based corrective measures, we do so not because we are ideologically or emotionally wedded to the identity categories that the “Afrikaner” group seem to valorise (in other words, we are not wedded to the idea that race or ethnicity is the defining characteristic that determines our moral worth), but rather because we believe that for the moment the deployment of race is required to right the wrongs of the past.

Our end goal might be to move away from a society in which there are seemingly permanent and monolithic racial or ethnic minorities and majorities, but we understand that this goal will not be achieved if the fundamentally unjust and skewed racialised division of economic and social opportunities available to people of different races in our country are not addressed.

Like Adriaan,  I also see myself as a South African who happens to be white and Afrikaans-speaking, one who refuses to trade on his semi-racialised ethnic identity to gain special protection or retain for myself or my group special privileges. I proudly speak Afrikaans, I read Afrikaans novels and listen to Afrikaans music, I have attended the Klein Karoo Nasionale Kunstefees (and as long as I stayed away from the Huisgenoot tent – o jirre, that place is scary! - and the more macho drinking establishments, I had a great time there), but I feel I have less in common with Kallie Kriel than with Jay Naidoo, Jacob Dlamini, Dikgang Moseneke or S’busiso Zikode, the President of the  Abahlali baseMjondolo.

I do not wish to be part of an ethnic minority, some of whose members seem to be overwhelmed by a permanent sense of victimhood and grievance because of their loss of political power and influence in South Africa. Rather, my humanity is defined by how I interact with other South Africans of all races, genders, sexual orientation and classes and how I respond to the vast injustices I see around me — much of it caused by the lingering effects of a system put in place and maintained by people who proudly and chauvinistically called themselves “Afrikaners”.

Revisiting “whiteness”

Sep 30th, 2011
by Pierre De Vos.
156 comments

Earlier this week I took part in a workshop at Wits University where the timely and brave article of Samantha Vice on white shame and political humility was discussed. This is an edited version of my remarks at the workshop. Regular readers of this Blog might note that I have modified my views on Vice’s piece slightly.

The arguments put forward by Samantha Vice regarding the position of white people and whiteness in South Africa, reminds me of the intervention in 1997 of conceptual artist Kendel Geers at a right wing celebrations at Fort Klapperkop outside Pretoria.

Geers had declared the event an “art happening” but an angry spokesperson for the right wing organisations denied this, stating that their celebration was definitely not art. To which Geers responded: “They cannot un-art themselves.”

I am sure this was not the intention of Samantha Vice’s intervention, but I fear that her intervention might well be read as constituting an attempt to deal with the racial hierarchy in South Africa as yearning to “un-white” herself and others; in other words, to do the impossible, namely to live well in this strange place despite our whiteness, despite being the continued beneficiaries of privilege.

The problem seems to me that Samantha might have misdiagnosed or only partly correctly diagnosed the ethical dilemma that we have to live with, that we will continue to have to live with and that no work on the self will allow us to escape from confronting day after day, hour after hour.

As I see it, because Samantha focuses on the self, on a project of remaking oneself with an awareness of the structural privilege one embodies because of one’s race and an awareness of the habits of white privilege that ineluctably forms part of who one is, because she asks how we — as white South Africans – can live (and perhaps can even dare to hope to live well) in what she calls this strange place, given the structural privilege that we enjoy, that we live every minute of every day because we are white, she misses or ignores the broader context in which each of us live here in South Africa. This South Africa, I contend, is a strange place but perhaps not only or exactly in the way envisaged by Samantha.

If we want to engage with the question of how we can live in this strange place, I contend, we need to look at South Africa not only and exclusively as a place haunted by racism, racial discrimination and by the (admittedly pervasive) problem of whiteness. Yes our lives and our selves are haunted by race — how can it not be, given our history — but it is also haunted by many other ethical concerns. These concerns may be affected by race but not exclusively so.

We live in a country where some people live and others die because some (because of their wealth) have access to the best medical care and others (because they are poor and rely on the erratic public health system) do not. We live in a world in which some children have access to the best schooling which provide them with the life chances and opportunities denied others whose schooling is dismal. We live in a world in which some gay men and lesbians live in fear of humiliation and are raped and killed because of their sexual orientation. We live in a world where some of us has never gone hungry while others often do not know where their next meal might come from and how they might feed their children.

In the light of these injustices — yes, all haunted by the ghosts of our racialised  past but not exclusively and uniquely  following the logic of race — one must ask whether this project of working on the self — of, in essence trying to work on oneself to become a better person, a person that feels appropriate shame for being white and being part of a system that has benefited one and continues to benefit one materially and also in non-material ways by bestowing on one a certain social status and power because of the colour of one’s skin — is not essentially (despite Samantha’s pointed protestations) an essentially narcissistic and slightly self-indulgent one?

Shame, guilt and agent regret seem like a rather hopelessly inadequate responses to the very real and serious larger ethical challenges faced by any middle class person in South Africa – even when the ethical call is more acutely and insistently addressed to white South Africans? Surely this project of turning inward and of working on the self is ethically deeply problematic? Our habits of white privilege, the social capital we embody because of our white skins, and the consequences this has for our fellow South Africans is just part of the larger picture. A more nuanced understanding of the problem of trying to live an ethical life in this strange place is required.

I worry that this turning inward, this essentially self-centred project will focus too much on the self, on the WHITE self, rather than focusing on the system that produced whiteness and the racial hierarchy that is continually being perpetuated by all of us. Can one really, by turning inward, escape from the very system that produces the racial hierarchy and can one really escape from being complicit in it’s perpetuation? By turning inwards and by focusing so obsessively on ones shame and ones whiteness, is one not affirming the racial hierarchy and the very structures that produce white privilege which one needs to undermine and subvert in order to begin to address the structures that produce “whiteness” and “blackness” and continues to do so in a hierarchical manner? This is not only a personal problem but also a structural problem. How does one address whiteness without perpetuating the racial hierarchy?

 Can one even begin to escape one’s whiteness? Gesturing at Geers, I would contend that one cannot “un-white” oneself.

Samantha Vice also advocates for white people at least a partial silence and a political humility which would prevent white people from engaging in the politics of the day. White people have power. When they speak, they speak with the authority and arrogance that inevitably flows from their whiteness. Hence, says Vice, it is morally risky to speak publicly in our society if one is a white person. I have three responses to that:

First, do we not have the duty to take this risk? Is it not a bit precious — showing perhaps inadvertently too much concern for ones own ethical purity and ones status as a not so bad person — by not wanting to take risks and not wanting to make mistakes?  Is this not a move to avoid exposing oneself to ridicule, hatred, criticism, accusations of racism and arrogance, of sexism and homophobia, which might well be levelled against some of us by others who, surely, we must be careful not wish to construct as utterly powerless victims of whiteness and of what white people do and say?

Surely, despite the structural inequalities and the effects of past and ongoing racism and racial discrimination in our country, it would be highly problematic to hold that white people should be silent because this will be somehow respectful of black people and the powerlessness they experience in the face of white privilege? I do not experience black South Africans as powerless or being in need of my silence and I worry that believing that would be fundamentally patronising and disempowering towards black South Africans.

If I make a mistake, if I talk and my words are seeped in whiteness or the arrogance that is associated with white structural privilege, I know that I will be told so in no uncertain terms by others — and rightly so. And is this not a better way to work on the self? By engaging with the world, with fellow South Africans, by doing so in a manner that is fully aware of ones privilege, by taking the risks, by getting it wrong and reflecting on why one got it wrong and trying again and by demonstrating in word and deed that one is not the font of all wisdom? Is this not how we even begin to embark on a journey of becoming full and equal citizens in this country? Will the silence, then, not be a whitely silence? Silence can appear like a cop out, like and avoidance of the burden of having to take decisions and taking risks, and for taking responsibility for one’s whiteness and for inevitably getting it wrong and taking responsibility for the effects of structural privilege and for doing something about it?

Second, is silence not — whether one intends it to be seen in that way or not — already an attempt  at achieving a kind of inappropriate moral purity, a moral purity that a white person cannot achieve but that our whiteness and the ideology of whiteness has ingrained in us as being our due, as the natural state of being a white person? By being silent, does one nor rather narcissistically hold oneself up as, once again, better. As someone who deserves special consideration because of this noble attempt at goodness?

Third, this silence says Vice should go hand in hand with private acts of justice. But injustice is not only or even primarily about personal relationships and the injustices that result from our inability to interact with others in a responsible and ethically appropriate way. It is about structural problems, about the way in which our capitalist, radicalised, world and our society is organised and the failure of all of us — including our politicians — to take the steps that would begin to dismantle these structures that produce and perpetuate inequality, poverty, marginalization and oppression.

In conclusion, I wonder if this project does not assume  or take for granted the impossibility of being anything else but the sum total of ones racial identity? Does it not reinforce the logic of the apartheid constructed racial hierarchy, assuming that one is only and always exclusively white or black and that this is the sum total of our world and it’s ethical and other problems? But I am also a neighbour called on to show hospitality to my neighbour — even when that neighbour is a foreigner and it is impossible to show real hospitality — a lover, a teacher, an HIV positive middle class man, an Afrikaner who opposes Afriforum, a gay man who might well develop a crush on Julius Malema (if only he lost a few kilograms).

If we ask how we can live in this strange place, then each of us must remember that we — like everybody else in our society — is more than just representatives of our race. We cannot escape the ethical consequences of living in a deeply racist and unjust society and we must take responsibility for this and live with this. A personal project that turns inwards cannot and will not change this.

On Heritage Day

Sep 23rd, 2011
by Pierre De Vos.
104 comments

For some strange reason or another Heritage Day (which we celebrate tomorrow) has turned into national braai day. Maybe it is because South Africans often do not remember the same past and find it difficult to imagine a shared heritage. Some sing that song while others dream of life in England (or, these days, Perth).

Maybe one day, when more white South Africans become capable of imagining the lives and histories of their fellow South Africans who happen not to be white, we will be able to begin to imagine a shared heritage. But this will only happen when more white South Africans realise that their assumption that the world they inhabit is the only legitimate world, that the world they take for granted is the norm to which others must adopt, and that their views and culture are normative and natural, are quite problematic.

In any case, I though the cartoon by Jeremy Nel in The New Age today was quite funny. Happy Heritage Day.

About the “Boksburg Bomber” and the “entanglement of colours”

Sep 14th, 2011
by Pierre De Vos.
107 comments

This is a (slightly edited) extract from the second part of the inaugural lecture delivered by me tonight at the University of Cape Town Law Faculty. The lecture relies on many themes first developed on this Blog and also incorporates some of the words first published here. The lecture is entitled: ”The past is unpredictable: race, redress and remembrance in the South African Constitution” (playing with a statement made by Evita Bezuidenhout that: “The future is certain – it’s the past that is unpredictable”) and engages with the question of how we can deal with necessary race-based corrective measures without perpetuating racialised thinking.

It proposes that we engage more seriously and in a nuanced manner with our apartheid past and suggests that this might assist us to deal with the effects of past and ongoing racism and racial discrimination (through the use of race-based redress measures) without getting transfixed by the racial catgories we have to rely on.

Herewith the extract:

In Jacob Dlamini’s book Native Nostalgia he tells many stories about growing up during the apartheid years in Katlehong, a township located 35 km east of Johannesburg and south of Germiston (not far from Alberton where I had the dubious honour of completing my primary school education).

Of course, when I was a primary school child during the height of apartheid, it would have been unthinkable for me to spend time in Katlehong and to get to know Dlamini, his mother or his friends. It would also have been legally impossible for Dlamini to attend the same relatively good school as I did and unthinkable that he would spend time with me in my family home in Alberton as a friend to get to know me, my mother or my friends.

One of the stories Dlamini tells of his childhood in Katlehong is about how the people living in his street listened to the radio broadcast of the world heavyweight boxing title fight in which Gerrie Coetzee (who hailed from nearby Boksburg and was hence known as the Boksburg Bomber) took on a black American, and how they all cheered on homeboy Gerrie, who, after all, grew up not too far from Katlehong.

I too listened to that fight broadcast over the radio, albeit to the Afrikaans and ridiculously biased commentary of Gerhard Viviers – all from the relative privilege of our whites only suburb of Brackenhurst in Alberton. And I too cheered on the Boksburg Bomber, albeit with my shouting father who was already slurring his words after one brandy too many.

We were worlds apart: one slightly bewildered white boy, living in the privileged comfort afforded to white middle class South Africans by the system of apartheid, one black boy subjected to the humiliation wrought by the system from which I was to benefit so handsomely. Yet to tell the full and nuanced story of our respective childhoods, it would be a mistake not to acknowledge this shared experience, because it reminds us that – apart from belonging to the apartheid era race categories imposed on us – our life experiences intersected and overlapped in sometimes surprising and other times shocking ways and that our lives (and who we became) were influenced by many factors apart from our respective races.

As Achille Mbembe has stated: “There is an ‘entanglement’ of colours in South Africa… There is no black history in South Africa that doesn’t involve whiteness. The history is an entanglement of colour lines.” Recognizing this entanglement and recognizing, further, that this entanglement occurred and continues to occur against the backdrop of white economic and social dominance, might assist us to take race (and the devastating effects of past and ongoing racism) seriously while safeguarding against the perpetuation of a society in which race is seen as the only relevant factor in determining who one is and where one fits in, a society in which race is essentialised.

This engagement with our history would be incomplete if it did not note that in terms of the Population Registration Act the state ensured that we had very different life experiences, that we were deemed to be different in every way. As a middle class white boy I was accorded a certain status which allowed me (unthinkingly, I must add) to enjoy the privileges that were associated with being a member of the economic, social and political dominant racial minority.

Later, of course, I discovered that one might also belong to other identity categories; that my sexual orientation and my HIV status could change my standing in society somewhat - from being an absolute insider to a person faced with the challenges associated with these other aspects of my identity, aspects which many in our society still insist belongs on the margins. I also discovered that other aspects of my identity – my whiteness, my economic and social privilege, my academic status – could mitigate against the deeply dehumanizing effects of the prejudices associated with those aspects of my identity (sexual orientation/HIV status) that would invite marginalisation or even rejection.

The point I wish to make is that when we reflect on race-based redress measures at institutions like UCT (an institution created by whites for whites all those years ago) and when the Constitutional Court engages with the question of whether a specific race-based redress measure is constitutionally compliant, the full complexity of our past and the history of each individual who still carries this past with them – no matter how some of us might protest that the past is behind us and that we have suddenly become race-blind and stripped of the social and economic privileges our white skins might still be affording us – must not be lost sight of.

I propose that the starting point for such a nuanced approach should be to recognise that the various identity categories – including race, including sexual orientation, including gender, including HIV status – are the product of a specific history and that they cannot be used to predict how individuals who are said to slot into these categories will behave, what their attitudes will be, and who they are as individuals. When we use these categories for purposes of redress we should do so ironically and in a contingent manner.

In other words, we should never use such categories as if they are “real”, in the sense of really saying something profound or true about any human being, all while acknowledging that the categories feel real to most people and that being assumed to be a member of one of the race categories will often have very real consequences – as  was so brutally illustrated by the fact that Eudy Simelane, a member of South Africa women’s national football team and an LGBT-rights activist, was raped and murdered in her hometown of KwaThema, Springs, Gauteng in 1998 because she was a women and she was a lesbian.

Second, a more nuanced deployment of such categories in legislation, policies and regulations is required. Apart from the category of race (which for the moment we have no choice but to rely on to help address the effects of past and ongoing racism and discrimination) we may want to add other considerations – along with the race of an individual – when we decide whether an individual should be the beneficiary of a specific programme of corrective measures.

The social and economic status of the individual and his or her parents; whether an individual is part of a first, second or third generation who has obtained secondary or tertiary education and the nature of that tertiary education (if any) received by his or her parents or grandparents; whether an individual grew up in a rural area or in the city; whether the individual is monolingual or speaks several South African languages; whether an individual attended a mud school in the Eastern Cape or a posh private school in Rondebosch; whether the individual is required to study in his or her home language or in a second or third language – these factors, along with many others, could all be considered as relevant (along with the race of an individual) when decisions about redress measures are made.

There must also other ways to deal with issues of redress. Who knows? What I do know is that we need to continue having a conversation about what will work best and that when we do so we ignore a critical but serious engagement with the past at our peril. When I talk about a conversation I do not mean a shouting match in which individuals retreat into the laager of their own apartheid era racial identities and shout abuse at others who they perceive to belong to a different apartheid race category, clinging to rigid and simplistic master narratives which the ghost of our apartheid past have fixed so firmly in many of our imaginations (even if many deny this).

In having this conversation it would be helpful if we could agree that it is important to take race and the need for racially-based redress seriously while also acknowledging that in doing so there is a danger that the use of apartheid era race categories will imprison us all in an apartheid of the mind.

This we can only do if we have a real and open discussion about what race did to all of us in the past (and continues to do to us today) and engage with the issue of how we can address the effects of race in the future; if we do not take part in the discussion as perpetual victims (of racism or of so called reverse-racism), but as equal, respectful human beings with agency and a unique take on life who believe and act like people who have the pride in themselves and the power to chart a new destiny that is fair and just for all — not just for those who belong to the same racial group we happen to believe that we belong to.

Malema judgment: A re-think on hate speech needed

Sep 12th, 2011
by Pierre De Vos.
218 comments

There are many interesting as well as perplexing aspects to the judgment handed down today by Justice Colin Lamont in the South Gauteng High Court in which he found that Julius Malema had engaged in hate speech when he sang the song “Awudubula (i) bhulu… Dubula amabhunu baya raypha” (translated as “shoot the Boer/farmer”, “shoot the Boers/farmers they are rapists/robbers”).

The first aspect of the judgment that struck me is the fact that this judgment gestures towards some aspects of the philosophy purportedly espoused by our new Chief Justice, Mogoeng Mogoeng. Judge Lamont invoked the notion of ubuntu (just like justice Mogoeng did in the McBride case earlier this year) to help justify the drastic limitation on the freedom of expression of all South Africans. For judge Lamont (as for justice Mogoeng), the protection of dignity and adherence to the values of ubuntu requires a radical limitation on the right to freedom of expression.

It is a drastic limitation because Judge Lamont did not only find that the singing of the song by Julius Malema in specific contexts constitutes hate speech. Instead he ordered that both Julius Malema and the ANC be interdicted and restrained from singing the song known as Dubula Ibhunu ”at any public or private meeting held by or conducted by them”. It is not clear how an organisation as such could be interdicted from singing a song as one would have imagined that the ANC (not being a person) cannot sing a song and that only members of the ANC could be interdicted in this way. I would therefore assume that the order interdicts any ANC member from singing the song — even at a private meeting or gathering of its members.

This means that if ANC members congregate at a party at which they reminisce about the struggle days and one of its members then sing this song, that person will be in contempt of this ruling and might be found guilty of contempt of court. This, in my opinion, constitutes a rather absurd and drastic infringement on the right to freedom of expression not warranted by the Equality Act — even given the broad provisions of that Act.

Judge Lamont also found that the “morality of society dictates that persons should refrain from using the words” and  ”singing the song” and seemed to suggest that anyone singing the song could well be found to have contravened the hate speech provision in the Equality Act, arguing that:

Persons who are not parties to the proceedings must be dealt with by way of structuring the order so that society knows what conduct is acceptable. Persons who are aware of the line which has been drawn by the Court are as a matter of both law and ubuntu obliged to obey it. There may be no immediate criminal sanction. Their breach of the standard set by this Court will however surely result in the appropriate proceedings under the Equality Act being taken against them. Non participants are bound by orders setting such standards. The Equality Act contemplates that they will be so bound. The orders of the Court which set the law are no different from any order of any Court which determines what the law is. The course open to a non participant who is aggrieved is to try to persuade the Court hearing his particular matter that the order of the other Court is clearly wrong.

In doing so, Judge Lamont relied on the majority judgment in the controversial Dey judgment (a judgment which Chief Justice Mogoeng – as well as Deputy Chief Justice Moseneke, it must be said — signed on to), to argue that in order to determine whether hate speech occurred one must take into account how the words would have been interpreted by various audiences. In the Dey judgment, the Court stated that:

It may be accepted that the reasonable person must be contextualised and that one is not concerned with a purely abstract exercise. One must have regard to the nature of the audience. In this case the main target was the school children at the particular school, but it also included at least teachers.

This means, according to judge Lamont, that where some South Africans (who would largely, but not exclusively, be black) would not reasonably construe the song to have had the intention to be hurtful to whites, but others (who would largely, but not exclusively, be white) would indeed do so, “each meaning must be considered and be accepted as a meaning…. If the words mean different things to different portions of society then each meaning, for the reasonable listener in each portion of society, must be considered as being the appropriate meaning”. In this way the judgment avoided dealing with a difficult legal problem, namely that the song would be viewed differently, depending on the audience. He could thus dispense with the requirement to establish how a reasonable South African (as opposed to a reasonable white or black South African) might view the impugned words.

Flowing from this is a second aspect of the judgment that might elicit adverse comment. Judge Lamont divided South Africa into the majority and a minority and suggested that minorities (defined as white South Africans or as white Afrikaners) are therefore in particular need of protection from words that could be construed as having the intention to be hurtful to that minority. Hinting that white people might well in the future be in danger of facing a genocide, Judge Lamont stated that:

It must not however be forgotten that minority groups are particularly vulnerable. It is precisely the individuals who are members of such minorities who are vulnerable to discriminatory treatment and who in a very special sense must look to the Bill of Rights for protection. The Court has a clear duty to come to the assistance of such affected people. Minorities have no legislative or executive powers and are compelled to approach the Court to protect their rights. They are particularly at risk due to the expense involved in such approaches. The fact that they are minorities and experience such difficulties frequently results in them being driven to protect their identity by invoking and enforcing within their group, customs practices and conventions which are believed to be appropriate. In addition, they are fragile in that they are readily assumed by the mass and lose their identity. A Court which hears a matter must, while balancing the rights in question take into account in the construction of what hate speech is the fact that it is directed at a minority.

This means that religious and sexual minorities, say, might be entitled to special protection in terms of this Act and that a court should take note of the sensibilities of such groups when they judge whether a reasonable homosexual or a reasonable Muslim would have viewed a specific communication as having the intention to be hurtful to them as Muslims or as homosexuals. Almost any cartoon that depicts the prophet Mohammed, say, might therefore constitute hate speech. Statements by a pastor that homosexuals are perverts that will burn in hell would also, most probably, constitute hate speech if this line of reasoning is followed. I am also fearful that if I were to call devout Christians “bigots” because of their views on homosexuality, I might be found to have had the intention (judged by these religious fundamentalists) to be hurtful to them and hence that I am guilty of hate speech.

This rather essentialistic and simplistic division of South Africans into different race groups could be viewed as problematic. Instead of dealing with South Africans as South Africans and instead of demonstrating a blindness to race (as required by opponents of affirmative action), the court relied on racial assumptions and stereotypes to justify its finding. One would assume that all the critics of race-based affirmative action would be quick to condemn this judgment on the basis that it invokes apartheid era race categories and assumes that one would have a different reaction to words depending on one’s race and/or the language that one speaks. Surely the principled DA supporters who complain about affirmative action will have to reject this judgment because of its purported unholy valorisation of race?

A third aspect of the judgment that might require a rethink by the legislature is that in terms of the extremely broad definition of hate speech contained in the Equality Act and given the facts of this case, a finding that Julius Malema had engaged in hate speech might well have been warranted on the facts before the court. It seems to me as if Judge Lamont had little option but to find that Malema had contravened the Act. Although the sweeping order made in this case was, in my opinion, not warranted by the wording of the Act, the finding against Malema might well have been warranted — given the way in which hate speech has been defined by our legislature. As Judge Lamont explained:

The message which the song conveys namely destroy the regime and “shoot the Boer” may have been acceptable while the enemy, the regime, remained the enemy of the singer. Pursuant to the agreements which established the modern, democratic South African nation and the laws which were promulgated pursuant to those agreements, the enemy has become the friend, the brother. Members of society are enjoined to embrace all citizens as their brothers. This has been dealt with more fully above in the context of the written laws and agreements. It must never be forgotten that in the spirit of ubuntu this new approach to each other must be fostered. Hence the Equality Act allows no justification on the basis of fairness for historic practices which are hurtful to the target group but loved by the other group. Such practices may not continue to be practised when it comes to hate speech. I accordingly find that Malema published and communicated words which could reasonably be construed to demonstrate an intention to be hurtful to incite harm and promote hatred against the white Afrikaans speaking community including the farmers who belongs to that group. The words accordingly constitute hate speech

As the Equality Act – passed by the democratic Parliament – does not allow a court to take into account historical practices, the defence put up by Mr Malema’s excellent legal team held no water in this case. Because the hate speech provision in the Act was drafted in such sweeping terms and because the Act only allows for exceptions in cases of “bona fide engagement in artistic creativity, academic and scientific inquiry, fair and accurate reporting in the public interest or publication of any information, advertisement or notice in accordance with section 16 of the Constitution”, the defence of the ANC that this song had to be judged in its historic context was dismissed.

The judgment therefore once again places on the table the question of whether the hate speech provision in the Equality Act is constitutionally valid or not. As I have argued before, I suspect that the hate speech provision in the Act is unconstitutional as it defines hate speech in much broader and open ended terms than section 16 of the Constitution, which merely states that “advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm” is not protected by the Constitution.

For some reason (perhaps relating to the politics of the case) Mr Malema’s lawyers did not challenge the constitutionality of the hate speech provision in the Equality Act. Whether they will try to raise this issue on appeal remains to be seen. This does not mean that the ANC dominated legislature cannot amend the legislation to bring it in line with the freedom of expression guarantees in our Constitution. In my view Parliament made a mistake when it passed these sections of the Equality Act and there is no reason why they cannot rectify the mistake without waiting for the Constitutional Court to order them to do so.

Maybe this judgment will lead to a re-think on the manner in which our law deals with cases of alleged hate speech. If it does, some good might yet come of it.

A tale of two judges

Sep 5th, 2011
by Pierre De Vos.
150 comments

It was the best of times, it was the worst of times, it was the age of wisdom, it was the age of foolishness, it was the epoch of belief, it was the epoch of incredulity, it was the season of Light, it was the season of Darkness, it was the spring of hope, it was the winter of despair, we had everything before us, we had nothing before us, we were all going direct to heaven, we were all going direct the other way — in short, the period was so far like the present period, that some of its noisiest authorities insisted on its being received, for good or for evil, in the superlative degree of comparison only. - Charles Dickens, A Tale of Two Cities

The revealing interview of Justice Mogoeng Mogoeng by the Judicial Service Commission (JSC) this weekend and the subsequent decision of that body to rubber stamp the decision of the President, reminded me of the famous quote from The Tale of Two Cities reproduced above. We saw the best of judges and the worst of judges sparring with each other. As Xolela Mangcu wrote about this tale of two judges:

Moseneke stood as a symbol of authority and Mogoeng as a beneficiary of power. The question is which, then, will be the real leader of the Constitutional Court: authority or power? By nominating Mogoeng, President Jacob Zuma may well have taken our judiciary down a path where power trumps authority.

We also saw some ordinary citizens, perhaps expecting so little from themselves and from our system of government or deciding to go along with the decision of the President so that they would not alienate the government from which they need to receive work in future, cheering on mediocrity and power for power’s sake. We saw other citizens, animated by a belief in the core values embodied by the Constitution and the belief that as South Africans we deserve the best, who were shocked by what they saw, perhaps unrealistically yearning for authority to trump brute power in our political and legal discourse.

We saw some JSC members prepared to walk in the light of reason and to deal with the painful facts and we saw other members skulking in the darkness of unreason and emotions, displaying a remarkable lack of appreciation for the robust nature of openness and accountability in a system that is worth calling a democracy. And as is often the case when reason clashes with unreason, facts did not stand in the way of those who had no rational arguments to make.

Thus, some commentators and JSC Commissioners have questioned the bona fides of those who have asked critical questions about the suitability of the “nominee” to become Chief Justice, claiming that such people were animated by a hatred of the President and never support any decisions of the President or, worse, claiming that such people confronted the facts because they were racists. This is, of course, a lie. When justice Sandile Ngcobo was “nominated” as Chief Justice, many of us (who have asked questions about the suitability of justice Mogoeng’s appointment) enthusiastically supported the nomination of Ngcobo. Although we might have believed that Deputy Chief Justice Dikgang Moseneke was a better person for the job, we did not say so, but sang the praises of the nominee because he was clearly a man of integrity, somebody with a towering intellect, somebody whose judgments have demonstrated that he is imbued with the values of the Constitution.

In the same manner we cheered on the appointment of Deputy Chief Justice Moseneke and of Chief Justice Pius Langa – even if we had our political differences with then President Thabo Mbeki who nominated these candidates (all of whom happened to be black).

I suspect that the interview over the weekend would have been interpreted completely differently by different people, depending on their political views, their knowledge of the law and legal processes, and their ability to get past shallow emotions to a place where facts and reason reside. For the first group, justice Mogoeng might well have emerged as something of a hero, somebody wrongly vilified by nasty people with an axe to grind. After all, the nominee did not come across as the ogre depicted by Zapiro, nor as a bumbling fool, and he passionately, aggressively and sometimes bitterly defended himself against the sharp criticism levelled against his judgements and his judicial philosophy and displayed a moral flexibility much admired in politicians.

I happen to find myself in the second group who was deeply troubled by what emerged at the JSC, based not on emotions but on the facts and an analysis of the issues at hand. In this sense the interview was more revealing than expected.

Justice Mogoeng justified some of his rape judgments and the seemingly patriarchal reasoning employed by him in those judgments by claiming that he was merely following the precedent set by the Supreme Court of Appeal (SCA) to which he was bound as a judge, what I would call “the SCA made me do it” defence. He thus justified his views that women abusers who are “provoked” by the victim deserve leniency, that rapists who know the victim should also be given some leeway, and that child rapists can legitimately be described as having been “tender” to the child he raped because the injuries sustained by the child were not as horrific as in other rape cases, by claiming that this approach is in line with the law. The problem is that these views are not in line with the law as it has developed after the end of apartheid.

These justifications were revealing because they suggested a lack of knowledge of the law and a lack of knowledge and/or lack of respect for the legislature who has spoken quite forcefully on this issue. Thus, in defence of his judgment in S v Moipolai (handed down in 2004, ten years after the advent of democracy) in which Mogoeng stated that it was “highly insensitive of the Appellant firstly, to punch an 8 months pregnant woman, secondly, to punch her so hard that he caused her to fall, and thirdly to punch her because her sense of decency and privacy did not allow her to share the same bed with the father of her children and another woman”, justice Mogoeng relied on a judgment of the SCA in S v N, handed down at the height of apartheid in 1988. In that judgment the Appellate Division (as it was then called), displayed the kind of patriarchal values that was rife amongst apartheid era judges by stating that it was permissible to take into account  as a mitigating factor in sentencing in a rape case that there was an intimate relationship between the rapist and the survivor.

Of course, since 1988 the legal landscape in South Africa was supposed to have changed dramatically. This is what some of us mean when we talk about the “transformative” nature of our legal and constitutional system. We adopted a new Constitution in which the rights of women are now protected. Parliament passed sections 51 and 53 of the Criminal Law Amendment Act 105 in 1997, providing for minimum sentences to be imposed on rapists unless compelling circumstances existed to deviate from this. This was done exactly to prevent judges with patriarchal views from imposing inappropriately lenient sentences on rapist based on criteria that says more about the sexist assumptions of the judge, than on the way in which the survivor might have experienced the rape.

In 2001 the SCA made it clear that knowing the rape survivor would NOT constitute such a compelling circumstance that would allow for a reduction in the minimum sentence. (One could add that ordinarily it should be an aggravating circumstance that the rapist knew the survivor — at least for anyone imbued with the values enshrined in the Constitution – because the effect of being violated in this way by somebody one knew would be devastating for the rape survivor.)

Mogoeng’s justification for his rape judgments is therefore surprising as it suggested that our Chief Justice designate was at the time when these judgments were handed down wholly ignorant of the new legislative environment and the constitutional values embodied by the legislation. It also suggested that the nominee might have been unaware that the SCA had developed our law in this regard to bring it in line with the Constitution and the relevant legislation. Whether ignorance of legal precedent and legislation should be a disqualification for appointment as Chief Justice, I will leave for every reader to decide for him or herself.

Mogoeng’s defence of his “dissent” in the Dey case was perhaps more bizarre and therefore more damaging to his image. Apart from the fact that his defence was less than plausible, it also contained in it a serious admission. Justice Mogoeng claimed that he was given little time to decide on whether he agrees with the other judges of the Constitutional Court that it would never per se constitute defamation to call somebody gay. He did not give reasons for “dissenting” from this view, Mogoeng claimed, because he had not really had time to apply his mind to the issue at hand.

This argument — if indeed true — appears more like an admission of a dereliction of duty on the part of the nominee than as an exculpation for not providing reasons. Surely when a judge sits on the Constitutional Court and indicates that he or she disagrees with the opinion of colleagues and if he or she is then asked to provide reasons for the disagreement but refuses to provide such reasons, one would assume that the judge did apply his mind to the matter but decided for strategic or other reasons not to provide reasons for the disagreement. Can one ever indicate disagreement with others without having applied one’s mind to an issue? To me it sounds a bit like claiming to be half pregnant — not something widely accepted as possible amongst doctors or people with any knowledge of the human body. How could one possibly indicate a disagreement without having thought about why one is disagreeing? To me, at least, this explanation makes no sense and does not ring true.

When one is a judge and is required to decide where one stands on all the important issues before the court, one is required to apply one’s mind to all the issues at hand and if one disagrees with the majority judgement on any issue one is required to provide reasons for this disagreement. A failure to apply one’s mind to the issues at hand would suggest that one has failed to live up to one’s judicial oath of office and, in effect, that one has refused to do one’s job properly.

I imagine that for many non-lawyers justice Mogoeng’s defence might ring true. After all, we have all been in situations where we have been pressed for time and have not given an issue as much thought as one would have liked to. As a member of a tea club one might well have failed to form an opinion on whether the dues of members should be increased or not. But the difference is of course that most of us are not judges and are not required by the Constitution to uphold the law, to apply our minds to the issues raised by a case before us and to provide reasons for our decision.

And what happens now? I have heard talk of civil society groups challenging the constitutionality of the process followed by the JSC on the grounds that the JSC had failed to engage in proper consultation with the President on this issue as required. It is argued that this is so because the JSC had decided that it was impermissible for it to consider whether other candidates may have been more suited for the position. How can there be a meaningful exchange of ideas if the one party exchanging ideas sees its role in such narrow terms, some have asked? This is a plausible, perhaps even strong, legal argument.

However, I am not sure it would be in the interest of the judiciary or the Constitutional Court for this matter to be litigated as it might further damage the credibility of our judiciary. Long drawn out litigation may well turn into a highly politicised and partisan matter, pitting staunch defenders of the President and the candidate against those who believe the JSC must act as a check on the exercise of power by the President when he appoints a Chief Justice.

While it would be good to get some clarity about the meaning of the constitutional provision requiring that the President must consult the JSC BEFORE appointing a Chief Justice, a legal challenge will probably ultimately not change anything as it will be based on procedure and not substance and will not necessarily lead to a different outcome — given the fact that the President does have the constitutional power to appoint a Chief Justice. Would it be possible to approach a court to give clarity on this legal point without asking for the decision of the JSC or the President to be set aside? I am not a procedural lawyer, so I am not sure how to answer this question.

In any event, President Zuma will now appoint Mogoeng Mogoeng as the new Chief Justice, despite the fact that the nominee has been tainted — to some degree, at least — by the process of his appointment. (Depending one one’s view, the nominee would have been tainted either by the “vicious attacks” against and “onslaught” on him by dark forces, or tainted by the close scrutiny of his judicial views and temperament.)

My fervent hope is that the new Chief Justice will be able to demonstrate through his words and deeds over the next ten years that those of us who asked critical questions about his appointment and about his values and commitment to the Constitution have been mistaken. Maybe the gruelling process may have allowed the nominee to reflect more seriously on his commitment to gender equality and the dignity of gay men and lesbians and might have brought a change of heart. Maybe he might have realised that he ought not to rely on his personal religious views — as far as they clash directly with the values enshrined in the Constitution – when he considers cases coming before his court. I, for one, will keep an open mind.

Why Ramatlhodi promotes an autokratic kleptocracy

Sep 1st, 2011
by Pierre De Vos.
156 comments

It is by now trite to note that in South Africa there are very serious, some would say obscene, disparities in wealth between rich and poor, made worse by the recent economic turmoil in the world. More than a million South Africans have lost their jobs over the past two years, joining the roughly 35% of the population that are unemployed or has long since stopped looking for work at all.

Many people continue to live in informal settlements (in shacks that are often flooded and are bitterly cold in winter) and many go to bed hungry. Many cannot afford the pay-as-you-go water and electricity services ostensibly provided to them by the state – if these services are provided to them at all – while many others receive substandard health care and are forced to send their children to dysfunctional schools where teachers are often not in class to teach and where children may well have no access to libraries, laboratories or sufficient computer facilities.

Of course, if one happens to be an ANC leader – inside or outside of government – or if one is one of the captains of industry (who became rich by exploiting black workers during the apartheid era and remain rich today by donating money to the ANC), one would probably not directly be affected by this reality. After all, one will be driving around in a car (who was paid for by tax money that could have fed a starving child) costing more than a million Rand (that is, when one is not renting a fancy car for hundreds of thousands of Rand a year), or one will be living in the Mount Nelson Hotel (if one is not living in a R8 million house provided by the state). Just yesterday it was reported that the state had forked out R183 million on brand new mansions to house cabinet ministers, money that could have been used to house around 2,000 poor families.

It is against this background that one should read the bizarrely immoral opinion article (penned by Ngoako Ramatlhodi, ANC NEC member, chairperson of the ANC National Elections Committee and Deputy Minister of Correctional Services) and published in The Times today.  Mr Ramatlhodi probably knows that the credibility of the ANC and the government it leads is being eroded by lavish and wasteful spending on the perks of party leaders and by the constant revelations of government corruption in our media and by the Public Protector. 

It is therefore not surprising that he is now using the South African Constitution and our indpendent constitutional institutions as scapegoats to try and divert attention from the failures of the government. Our government is failing to address the most basic needs of the poor while government and party leaders live lavish lifestyles at the expense of taxpayers and of the poor, whose lives could have been improved by the money wasted on extravagant perks and the millionaire lifestyles of ANC leaders.

According to Mr Ramatlhodi the Constitution is deeply flawed because while it bestows political power on the ANC (who by virtue of divine intervention will always represent the interests of all black South Africans even when its leaders steal from the very masses it claims to represent and when these leaders misuse funds – earmarked to address the social and economic inequality in our society - to satisfy their own venal and selfish needs), it also supposedly ”immigrates” substantial power away from the legislature and the executive and vests it in the judiciary, Chapter 9 institutions and civil society movements. He bemoans the fact that the ANC ”embraced what one calls the emptying of the state” and then continues:

Apartheid forces sought to and succeeded in retaining white domination under a black government. This they achieved by emptying the legislature and executive of real political power. On the other hand, the liberation movement was overwhelmed by a desire to create a society bereft of any form of discrimination and, as a result, made fatal concessions. We thus have a Constitution that reflects the great compromise, a compromise tilted heavily in favour of forces against change.

Thus the Constitution - interpreted and applied by the judiciary, and Chapter 9 bodies such as the Public Protector - as well as civil society groups fighting for real transformation of our society have been allowed to rob the ANC of its power to govern the country through the legislature and the executive, blocking the “fundamental change” required to turn South Africa into a true kleptocracy. (Ok, I paraphrase the honourable Deputy Minister’s words slightly, but pardon me for interpreting this opinion piece as arguing for more power for the ANC to act in the interest of its leaders without having to account to anyone for how it spends and wastes our money for the benefit of the few.)  

Mr Ramatlhodi is also upset that people challenge unlawful and unconstitutional actions of the government in our courts and that they dare to take part in democratic debates by expressing views with the aim of trying to influence public opinion for the better of society. God forbid that democracy should actually lead to a situation in which the majority of South Africans might disagree with something the governing party – with its divine right to rule - might have said or done. The ANC can surely not allow democracy actually to, well, work. What would become of the cars, the houses, the tenders, the champagne, the whiskey, the farms, the trips to visit drug-dealing girlfriends in Swiss jails?

The other tactic is to challenge as many policy positions as possible in the courts, where the forces against change still hold relative hegemony. The legislature itself has not escaped the encroaching tendency of the judiciary, with debatable decisions taken by majority views, in some instances. Decisions of the Judicial Services Commission have equally been systematically subjected to judicial reviews. The process of delegitimising the commission and its decisions has been initiated through the instrument of “public opinion”.

These views are not only uninformed and demonstrably wrong; they are also callous and dangerous. Blaming the Constitution, the courts and chapter 9 institutions for the failures of the government sufficiently to change the lives of ordinary citizens who suffered under apartheid is like a man blaming an umbrella for making him wet or a white South African blaming black citizens for apartheid. 

First, it is based on the assumption that the government of the day – who currently happens to be led by the ANC – should have a free hand to do what it likes because any check on the exercise of power of the legislature and the executive would turn these branches of government into ineffectual and impotent institution. This is of course nonsense, as the majority party in Parliament can pass any law it wishes – as long as it does not infringe on the rights of the very citizens who vote for it.

Second, it assumes that a majority party will always have the best interest of the country and its people at heart, that it will never act in a selfish or corrupt manner and that it must always be trusted to respect the rights of everyone and to act in a manner that will advance the interests of those who most rely on the state for their survival and well-being. This is a truly bizarre view as governments are formed by people – and not ordinary people but politicians whose job it is to amass power and to act in their own interest while pretending to serve the public - who are not superhuman and will not act like angels unless they are forced to. 

Lastly, this assumes that the ANC government actually always acts in the interests of the poor and the marginalised – even when it spends R183 million on new houses for a few cabinet Ministers, when cabinet Ministers stay at the Mount Nelson Hotel at taxpayers’ expense, when its officials enter dubious and probably corrupt leases with well-connected businessmen and waste billions of Rand in the process, money that could have been spent on really making a difference to the lives of those South Africans who are unemployed and depend on the state for its survival and well-being.

The view of the courts expressed in the Ramatlhodi piece is also either shockingly uninformed or deliberately misleading, which is, I guess, understandable as one needs to manufacture an enemy when one is losing the trust of the electorate because one is so obviously acting in a selfish and venal manner to line one’s own pockets to enable one to live a life of luxury at the expense of the poor. If Mr Ramatlhodi had read only a few judgments of the Constitutional Court, he would have known that our highest court – far more than the legislature and the executive – has been acting as a champion of transformation and of the interests of the poor.

If it was not for that court, the government would not have been forced to provide anti-retroviral drugs to poor, mostly black, pregnant women, thus saving the lives of hundreds of thousands of (mostly black) babies – all while people like Mr Ramatlhodi kept criminally silent. How many hundreds of thousands of babies died as a result of this communal silence, Mr Ramatlhodi? He would have known that thousands of people have been protected from unlawful eviction through the intervention of that court.

He would have known that the Constitutional Court has enthusiastically endorsed affirmative action and land reform and has taken the ANC government to task for not doing anything to scrap some of the most scandalous pieces of racist apartheid era legislation. One wonders whether this oversight might have been caused by the fact that leaders were too busy to benefit from tenders and to wine and dine their friends at taxpayer’s expense at the Mount Nelson Hotel or at their government provided mansions to actually care enough to table changes to the oppressive apartheid laws in our democratic Parliament. 

He would have known that the Constitutional Court declared invalid sections of the truly shockingly named KwaZulu-Natal Slums Act adopted by the ANC government in that province because that Act tried to punish the landless or homeless poor for being landless or homeless (which is understandable, I guess, because a person like Mr Ramatlhodi would probably not want to be reminded of the landless and the homeless when he is sipping champagne in his R8 million government provided house).

He would also have known – just to be fair – that sometimes the Constitutional Court has not been as progressive in its judgments as some of us would have liked but that this have almost always been when it has endorsed government policies or pieces of legislation that are anti-poor, anti-women or anti- the marginalised and the vulnerable. Thus it found that it was ok for the government to cut off the electricity of destitute people and for the government to have pay-as-you-go electricity meters installed in the homes of Joburg residents – even if this was only done in poor areas where black South Africans live and not in rich areas where the ANC leaders and white people live.

It also found constitutionally valid a law which basically left destitute a women who had looked after her partner for more than ten years because that law only required the estate of a deceased partner to support a women if she had been legally married to her partner. That the ANC of Mr Ramatlhodi would support such a law is probably not surprising, seeing that the ANC President has now nominated a man for Chief Justice who has made the following remarks in a case in which a man was found guilty of raping a innocent and defenceless child (in the case of S v Sebaeng (CA 16/2007) [2007] ZANWHC 25 (22 June 2007) about the “shortcomings” in the victim’s evidence:

She claims that the sexual intercourse was very painful but there was clearly nothing about her to suggest that she was in any pain when she arrived home and even during her stay there at her grandmother’s home … When she arrived at her grandmother’s home, the only strange things observed and spoken about by those who saw her were the Simba chips, the R30.00 and the 9 o’clock appointment with the Appellant….

One can safely assume that [the accused] must have been mindful of her tender age and thus so careful as not to injure her private parts, except accidentally, when he penetrated her. That would explain why the child was neither sad nor crying when she returned from the shop notwithstanding the rape. In addition to the tender approach that would explain the absence of serious injuries and the absence of serious bleeding, he bought her silence and cooperation with Simba chips and the R30.00.

So, while Mr Ramatlhodi believes we should entrust our legislature and executive with unlimited powers, I do not: not this government, not a DA government not ANY government anywhere in the world. Down that road lies tyranny and oppression of the worst kind. As the ANC government of which Mr Ramatlhodi is a member has demonstrated over and over again, even where the power of a government is limited and even where the Constitution exhorts it to address the needs of the poor and vulnerable, it often acts in the interests of its own members and not that of the broader public whose interests it claims to serve.

Whether the ANC is in power or anyone else is in power, we need the very institutions that Mr Ramatlhodi attacks. These institutions – created by our Constitution – protect us from the government of the day, no matter which party might serve in government.  This is true in South Africa as it is true in the United States, France, India or Nigeria. If  it was not for institutions like our courts – interpreting and enforcing the progressive provisions of our constitution – and of the Public Protector – exposing the scandalous corruption of Ministers and of government officials - how far away would we have been from Muammar Gaddafi’s Libya?

The “opinion” of Mr Ramatlhodi is no more than an argument in favour of an autocratic kleptocracy in which a few well-connected party leaders and businessmen would live an obscenely opulent life, while the rest of us wouldl try to survive in a world that would be nasty, brutish and probably far too short.  

What we talk about when we talk about transformation

Aug 29th, 2011
by Pierre De Vos.
107 comments

“Transformation” has become one of the most used but least examined words in our political discourse. It is a word often bandied about by people in a way that suggests a rather narrow understanding of the word – as if transformation is about replacing reactionary middle aged white patriarchs with reactionary middle aged black patriarchs. If this is what we mean by “transformation”, then we do not understand the word as it has been developed by the Constitutional Court and academics.

We are then also demonstrating that we have a rather narrow and less than inspiring imagination and have little ambition to fundamentally change the nature of power relations in our country away from an authoritarian apartheid past to a more inclusive and egalitarian future.

This does not mean that transformation – even in the constitutional sense – is not a complex and sometimes contested term. We might not all agree on the exact nature of the end goal of transformation, but we must surely agree that transformation cannot mean a harking back to the values and beliefs held dear by those who governed the apartheid state or acted as their hand-maidens. If we were to take the notion of transformation seriously, we cannot use it to mean the opposite of what it was intended to mean.

Thus, even though Deputy Chief Justice Dikgang Moseneke once remarked that ”the meaning of transformation in juridical terms is as highly contested as it is difficult to formulate,” support for transformation must surely mean that we understand that patterns of discrimination, disadvantage and harm are still perpetuated by the way in which society was structured by and during apartheid and remains structured – to some degree – even today. No wonder that in the context of talking about a transformative constitution, former Chief Justice Pius Langa approvingly quoted the following passage dealing with the need for transformation:

[Transformation] requires a complete reconstruction of the state and society, including a redistribution of power and resources along egalitarian lines. The challenge of achieving equality within this transformation project involves the eradication of systemic forms of domination and material disadvantage based on race, gender, class and other grounds of inequality. It also entails the development of opportunities which allow people to realise their full human potential within positive social relationships.

This means that one cannot credibly support any notion of transformation while opposing equality for all social groups regardless of their race, gender, religion or sexual orientation. Belonging to an organisation which promotes hatred of individuals based on their race, gender, religion or sexual orientation or which propagates the idea that people are not as worthy of respect and concern as others because of such attributes (and hence have to be forced to change who they are as human beings to be accepted and respected by society), would mean that one cannot be viewed as a supporter of transformation. Rather one, must be viewed as being anti-transformation.

Former Chief Justice Langa also pointed out that transformation – in the constitutional sense – requires the establishment of a culture of justification, “a culture in which every exercise of power is expected to be justified; in which the leadership given by government rests on the cogency of the case offered in defence of its decisions, not the fear inspired by the force of its command. The new order must be a community built on persuasion, not coercion”.

Thus a person who fails to justify decisions – especially controversial decisions – taken as a politician or a judge, or a person who tries to silence those who disagrees with him or her by using ad hominem attacks against those critics and opponents (claiming that the opponents are yearning for apartheid, hate the President or the Premier, is plotting against the opposition, is a deployed cadre, or do not support transformation), is not a person who can be said to have embraced the ideal of transformation as embodied by the Constitution. As Chief Justice Langa said:

The Constitution demands that all decisions be capable of being substantively defended in terms of the rights and values that it enshrines. It is no longer sufficient for judges to rely on the say-so of parliament or technical readings of legislation as providing justifications for their decisions. Under a transformative constitution judges bear the ultimate responsibility to justify their decisions not only by reference to authority, but by reference to ideas and values.

Where judges, politicians and those who take part in the public discourse, fail to provide cogent reasons for their arguments, instead, thrashing their opponents on completely spurious grounds by questioning their right to speak or to be heard, then such judges, politicians and debaters are opponents of transformation – not supporters of it.

But, credible support for a transformative vision of the Constitution requires us to do even more. As Chief Justice Langa remarked, this approach to transformative constitutionalism requires us to view the law differently from the way it used to be viewed by the supporters of apartheid and by the legal conservatives who are – alas – still very much with us and among us (in University lecture halls, in law firms, at the Bar and on the Bench). This is because the transformative vision of the constitution requires an acceptance of the politics of law.

There is no longer place for assertions that the law can be kept isolated from politics. While they are not the same, they are inherently and necessarily linked. At the same time, transformative adjudication requires judges to acknowledge the effect of what has been referred to elsewhere as the ‘personal, intellectual, moral or intellectual preconceptions on their decision-making. We all enter any decision with our own baggage, both on technical legal issues and on broader social issues. While the policy under apartheid legal culture was to deny these influences on decision-making, our constitutional legal culture requires that we expressly accept and embrace the role that our own beliefs, opinions and ideas play in our decisions. This is vital if respect for court decisions is to flow from the honesty and cogency of the reasons given for them rather than the authority with which they are given.

This means that we have to accept that the beliefs, values, and history of a judge will be important for the way in which she or he does his or her job and that these factors will play a role in the interpretation and application of the Constitution and of other law.

That is why it will always be important and relevant to ask whether a judicial candidate belonged to the Broederbond or some other secret organisation; whether a candidate opposed apartheid or defended the policies of the apartheid state or of an apartheid Bantustan; whether the candidate has demonstrated a commitment to the values enshrined in the Constitution by word and deed; whether the candidate belongs to a racist, sexist or homophobic organisation; whether the prospective judicial candidate has demonstrated an appreciation of the need to persuade others through reasoned debate by providing reasons for a decision and by engaging in a measured and logical manner with opponents.

For all the above reasons the discussions on the suitability of appointing Justice Mogoeng Mogoeng as Chief Justice is important. It helps to remind us that “transformation” is not only about replacing white faces with black faces (although changing the racial and gender composition of the bench is important) - it is also about the values and beliefs; about what is best for all South Africans, for the poor, for women, for religious minorities, for gays and lesbians, for people living with HIV and people living in rural areas who are often being subjugated by patriarchal chiefs.

For those who wish to run away from the transformative vision of the Constitution and those who actively oppose transformation, the nomination of Justice Mogoeng will come as a godsend. Just to remind us why Justice Mogoeng appears to be an anti-transformation judge, here are some of the concerns raised about him:

  • The National Association of Democratic Lawyers claims that, in 1988, Mogoeng pushed for a convicted man, whose legal team did not represent him properly, to be executed in the Bophuthatswana Supreme Court and that this happened while Mogoeng was a prosecutor serving a Bantustan government;
  • The Johannesburg Bar Council criticised Mogoeng for not giving reasons for dissenting when other Constitutional Court judges ruled that a person could not be defamed by being a labelled a homosexual. This would seem to indicate a prejudicial attitude towards the gay community, the bar council said;
  • Civil society organisations such as Section27, the Lesbian and Gay Equality Project, the Sonke Gender Justice Network, the Tshwaranang Legal Advocacy Centre and the Treatment Action Campaign have lodged submission with the Judicial Service Commission (JSC) about Mogoeng’s nomination, questioning his approach to gender-based issues;
  • City Press reported that Mogoeng is a counsellor of Winners’ Chapel International, Johannesburg. The church claims to cure “deviations” such as homosexuality by prayer and counselling and this means Mogoeng is a member of an organisation that discriminates against a social group.

Now, if one sees transformation only as a race issue and if one is opposed to the restructuring of South African society along more egalitarian and humane lines, then one might well dismiss these concerns. That is why the “nomination” of Justice Mogoeng has been defended by some - usually by attacking the motives of those who have expressed these concerns, and by trying to discredit and silence those who raise concerns about the nominees transformation credentials by absurdly suggesting that raising questions is anti-transformative in itself.

For me, whether one is prepared to consider these concerns or not says much about one’s politics and whether one supports a progressive or a reactionary vision for our country. This does not mean that I am suggesting those who support justice Mogoeng’s nomination has no credibility and should have their views dismissed out of hand. I am merely claiming that they cannot pretend to be progressive or to speak in support of a progressive cause.

Many South Africans are deeply conservative or even reactionary in their politics – as regular posts by contributors to this Blog demonstrate – and it is important that their voices are heard. But when engaging in debate, they should not try and mislead the public by claiming they are progressive when, instead, they are seemingly yearning for a society that (apart from the issue of race) looks quite similar to the closed, patriarchal, socially reactionary and authoritarian society we suffered under during the apartheid era.

Meanwhile justice Mogoeng will have the opportunity to respond to the sustained criticism and to questions about his fitness to lead the South African judiciary for the next ten years when he appears before the Judicial Service Commission on Saturday. Whether he lashes out at his critics in a desperate attempt to evade scrutiny and be held accountable; whether he evades answering difficult questions by playing the court jester; or whether he commits himself to a truly transformative constitutional project will determine whether he regains some legitimacy and public confidence in his abilities or whether he completely destroys trust in himself and in the judiciary which he might be appointed to lead.

Where are you going to stand, my fellow white South Africans?

Aug 15th, 2011
by Pierre De Vos.
492 comments

One of the things I most admire about Archbishop Desmond Tutu is that he is an equal opportunities offender. A few years ago he offended then President Thabo Mbeki for saying that there was a lack of debate inside the ANC, given that it was verboten to talk about succession inside the ANC or to question the President’s views on any number of topics without expecting some serious, flame-throwing, nuclear slap-down in return. Mbeki then, as was his wont, wrote a rather sarcastic letter in response, which I would summarise (only somewhat in jest) as telling the Arch: “You know f#k-all, and I know everything”.

Now the former Truth and Reconciliation Commission (TRC) chairperson and Archbishop has caused another stir by dusting off a recommendation of the TRC which proposed the imposition of a “prosperity tax” to raise money for redress. Addressing an audience in Stellenbosch, the former Archbishop stated that white people should campaign for the imposition of such a tax as reconciliation gesture. He explained that although today’s white population was not necessarily directly involved in apartheid, they nevertheless derived benefits from an unjust system through opportunities, lifestyles and access to services. “South Africa is infamous as one of the worst examples of inequality between the rich and poor,” he said.

The FW de Klerk Foundation, doing what it does best, jumped to defend the economic interests of white people and shot down this idea. In doing so, it made statements that are so obviously wrong — as a matter of Constitutional Law - it made me wonder whether the Foundation is not being advised by the Chief State Law Advisor or by those clever lawyers who told the President that section 8(a) of the Judges’ Remuneration and Conditions of Employment Act is constitutional. The Foundation, predictably but depressingly, rejected the idea of a reparations tax imposed on white South Africans and then made the following quite astonishing set of claims:

One of the principles [on which the post-apartheid society is based] is non-racialism and the idea that we should no longer adopt laws that are aimed at one or another racial group. It would accordingly be unconstitutional to impose a wealth tax only on one of South Africa’s racial groups. It would require the reintroduction of racial classification and of many of the other demeaning racial distinctions that were associated with apartheid. It would also be unfair. Would whites who opposed apartheid be expected to pay the same as those who supported it? Would there be different tax scales for whites who supported the ANC, the DP and the old National Party? And what about the many blacks who held well-paid positions in homeland governments? To be constitutional, a wealth tax would have to be applied to all South Africans regardless of their race.

As any second year Constitutional Law student (as well as any regular reader of this Blog) knows, the statement on the unconstitutionality of a wealth tax imposed on white South Africans is pure nonsense. Maybe the folks at the FW de Klerk Foundation have been reading too many of Ken Owens’ letters in Business Day and forgot to read either the text of the Constitution or the applicable Constitutional Court judgment on affirmative action. If they had read section 9(2) of the Constitution as well as the judgment in Minister of Finance v Van Heerden they would surely have avoided embarrassing themselves by making false statements about South African (as opposed to American) Constitutional Law.

In that judgment the Constitutional Court, (in a judgment written by Deputy Chief Justice Dikgang Moseneke) held that equality is something that must still be achieved in South Africa and that section 9 of the Constitution places a duty on all organs of state ”to protect and promote the achievement of equality” by implementing corrective measures that target groups disadvantaged by past discrimination. We cannot merely pretend we now live in a non-racial society and therefore ban all references to race in our law because if we do we will merely be entrenching white privilege — which is what the FW de Klerk Foundation’s position essentially boils down to.

The Court pointed out that “when our Constitution took root a decade ago our society was deeply divided, vastly unequal and uncaring of human worth”. Many of these “stark social and economic disparities” (much of it linked to a person’s race) will persist for a long to come. According to the Constitutional Court, corrective measures which target specific race groups are therefore constitutionally valid and in many cases even constitutionally required in order to “start a credible and abiding process of reparation for past exclusion, dispossession, and indignity within the discipline of our constitutional framework”.

The implementation of race-based measures (like the imposition of a once-off wealth tax on white South Africans to advance reconciliation and make token reparation for the wrongs of the past) is therefore not an exception to the general guarantee of equality or to a general endorsement of non-racialism. Such measures are not “reverse discrimination” or “positive discrimination” but are rather “integral to the reach of our equality protection”.

For race-based corrective measures to comply with the constitution, one must ask whether “an overwhelming majority of members of the favoured class are persons designated as disadvantaged by unfair exclusion” and whether the measures “constitute an abuse of power or impose such substantial and undue harm on those excluded from its benefits that our long-term constitutional goal [of the achievement of equality] would be threatened”.

In the Van Heerden case the Constitutional Court had to decide whether a Parliamentary pension scheme, which — for a period of five years — provided better benefits to parliamentarians who first joined parliament in 1994, was constitutionally valid.  Mr Van Heerden, an old apartheid era parliamentarian, complained that the scheme discriminated against whites because the vast majority of new parliamentarians in 1994 were black and those who served before 1994 were mostly white. The court rejected this argument, pointing out that Mr Van Heerden was still going to be far better off in terms of his pension than any parliamentarian who entered parliament in 1994 for the first time.

One question was whether the affirmative action scheme might not comply with section 9(2) because some white people also first joined parliament in 1994 and was benefiting from the scheme. Moseneke stated that as long as the overwhelming majority of those targeted are from the disadvantaged group (or, by implication and conversely, as long as the overwhelming majority of those disadvantaged are from the former or continuing privileged group) the scheme would meet the criteria for a valid scheme. So while placing a wealth tax on all people earning a certain amount would be constitutionally valid, so would a tax only aimed at white South Africans who earned a certain amount every year.

A once-off wealth tax imposed on white South Africans who earn more than a certain amount as a small gesture towards reconciliation and redress would almost certainly pass the Van Heerden threshold because whether one supported apartheid or struggled against it, one invariably benefited from it if one is a white South African (whether born before or after 1994). If I had been born black and poor, I almost certainly would not have gone to University and I would almost certainly never have been a Law Professor at UCT, earning quite a nice salary, thank you.

This does not make me feel guilty, but it does make me feel humble and aware of the injustices of the past which I benefited from. It also spurs me on to do my small bit (no matter how small) for reconciliation and redress, not out of a misplaced sense of moral superiority (how can I be morally superior if I am just another human being with my own faults, petty and probably unexamined prejudices and any number of other foibles), but this is the only way I can make sense of living as a white person in this strange place in which our apartheid past lingers like a bad smell — despite all the denials of many who benefited from it.

The fact that some whites were too lazy or stupid to get rich during the days when affirmative action only benefited white people, is of course irrelevant for this argument. (Of course today we still get affirmative action for whites in the form of rules that require children to live in the area which serves as the feeding area of certain schools who happen to be well resourced and well run or the rules of schools which say that if one’s parents or siblings went to that school one would get special treatment in admission to that school.)

But not only is a wealth tax on white South Africans who earn a minimum amount of money constitutionally valid. It is also an important and welcome idea that must be supported by all right-thinking South Africans with even a smidgen of a conscience or common sense. (By saying this I am not claiming to be better than, or morally superior to, anyone else – I am merely suggesting that whether for reasons of conscience or for pragmatic reasons, it is the right thing to do.)

Why not impose such a tax of — say — 2% or 3% of one’s annual income for a period of a year or two and then divert that tax into a special fund, administered by a respected panel of experts with the brief of funding and administering projects that would begin to address the shockingly bad facilities at many government schools frequented by the poorest of our citizens — a state of affairs indisputable caused by apartheid.

How many school libraries could be built with that money? How many fully stocked laboratories could be built with that money? How many soccer fields and pavilions could be erected with that money? How many new computer labs with internet access could be provided to students who now can only dream of having access to computers and the internet? To avoid the argument, offered by some white people, that such a scheme would be a waste of money ”because ‘they’ (always wondered who ’they’ were and if ‘they’ included white businessmen who rake in obscene bonuses paid out of the profits made possible by exploiting workers) will only steal the money”,  the money could be administered separately by a well-respected panel or independent institution, headed by Mamphele Ramphele, for example.

The problem is, of course, that some white people — out of shame or ignorance or maybe a bit of both — do not want to admit that white South Africans almost all benefited from apartheid vis-à-vis black South Africans. (I have always thought that many of those who attack me and charge that I am ashamed of being white, are projecting their own sense of suppressed racial shame onto me.)

Some benefited directly through affirmative action for whites which reserved most government and many private sector jobs for whites and boosted the education of white children by spending vastly disproportionate amounts of money on the education of white children. Others benefited indirectly, by living in a society where cheap black labour was always available to look after children and clean the toilets of even relatively poor whites or by being born white to parents who benefited from apartheid and could therefore provide a better life for their children.

Before we all accept this obvious fact, show a willingness to face up to it and begin to do something about it, and resist the temptation to want to sweep it all under the carpet because of embarrassment, misplaced anger or ignorance, we are never going to be able to embark on the true road to reconciliation. Insisting on reconciliation based on a denial of the past is not doing us any good. Such a “reconciliation” is no more than an attempt to rewrite the past in order to try and ensure that the laughable but very deeply entrenched notion so central to white identity — the idea of white moral superiority — remains intact.

I am dreaming of a world in which the notion of moral superiority based on race has no place. In this world — in which every human being has an inherent moral worth but (perhaps influenced here, against my will, by my Calvinist upbringing) where human beings are never perfect — making claims about the moral superiority OR inferiority of an individual based on their race is so absurd and immoral that anyone making such a claim, defending such a claim or implicitly relying on such an assumption has forfeited the right to be taken seriously. And in yours? Where are you going to stand in this war of ideas, my fellow white South Africans?

← Earlier Posts Newer Posts →