Constitutional Hill

discrimination

Silence = Death

Feb 2nd, 2012
by Pierre De Vos.
49 comments

Yesterday, more than six years and about 50 postponements later, four of the men who brutally murdered Zoliswa Nkonyana because she was a lesbian were finally sentenced to an effective fourteen years in jail. On the same day, in another part of South Africa, three men were sentenced to 25 years imprisonment by the Phalaborwa Regional Court for poaching Rhino. Decisions on the sentencing of serious criminals is not an exact science, but on its face, the difference between the relatively light sentences imposed on Nkonyana’s killers compared to the sentences imposed on the Rhino poachers, seems rather stark.

There is strong anecdotal evidence (as well as some research from South Africa and the USA), that suggests the race, the gender, the class, the HIV status, the sexual orientation or the education level of both the killer and of the victim sometimes play a role in the severity of the sentence imposed on a killer. A white farmer who kills a black labourer may sometime receive a lighter sentence than a black unemployed youth who kills a blonde young woman. A heterosexual man who kills a lesbian may sometimes receive a lighter sentence than a poor gay man who kills a rich heterosexual banker. And if one kills a tourist who lives in Europe one might well get a far heavier sentence than if one kills a poor black woman living in a rural area.

Given the serious delays in the Nkonyana case, coupled with reports of sloppy investigation and the stalling tactics used by the lawyers representing the killers, it is a bit of a miracle that the four men were indeed convicted and sentenced yesterday. From personal experience I know that not all members of the police are eager to investigate hate crimes against gay men and lesbians and often fail to investigate reports of assault against gay men, lesbians and transgendered persons. And if they do investigate the crimes they often fail to do so with the same diligence than they would investigate, say, the murder of a foreign tourist or a blond girlfriend of a rugby player.

This is not to deny that we have made progress over the past 15 years. At least the case was investigated and brought to court, the accused received a fair trial and the presiding officer was prepared to convict the killers and sentence them to jail – despite the fact that they “only” killed a black lesbian.

For example, some years ago Judge President John Hlophe allowed Christopher Moses “to get away with murder” because his victim was HIV positive. Moses had killed a gay man called, Gerhard Pretorius, and then claimed that, on the night of the murder, he and the deceased had unprotected penetrative sex for the first time. He also claimed that after the sex, Pretorius told him that he had HIV.

Moses’s defence, as stated by his psychiatrist, was that he flew into “an annihilatory rage” beyond his control. The state psychiatrist demonstrated that Moses could not have lost total control because the evidence demonstrated a sustained “complex and goal- oriented” attack. Academic critics argued that Hlophe should have found Moses guilty of murder and that he had misapplied the doctrine of criminal capacity to the case. The murderer’s personal circumstances indicated a reduced sentence would have been appropriate. Instead, Hlophe found that knowingly exposing a person to HIV was sufficient reason to murder them with an excuse of “uncontrollable rage”. He ignored the undisputed objective evidence of premeditation, including fetching two different knives to finish a murder and then setting about creating an alibi.

In any event, it is impossible to say whether the sentences imposed on Zoliswa Nkonyana’s killers would have been significantly lighter if the court had not made a ground-breaking ruling that the killing was motivated by homophobic hate and if this was not taken into account as an aggravating factor in sentencing. Section 28 of the Equality Act states that when the state proves that unfair discrimination on the grounds of race, gender or disability played a part in the commission of the offence, this must be regarded as an aggravating circumstance for purposes of sentence, but the court yesterday extended this to sexual orientation. This section does not mention sexual orientation discrimination or any other criminal attacks animated by hatred for gay men or lesbians

Interesting, while looking at this aspect of the Equality Act, I have been unable to determine whether the provisions of this part of the Equality Act (which deals with the Promotion of Equality by the State and private individuals) have indeed come into operation. My LexisNexis legal database states that the date of commencement of these sections is “still to be proclaimed”. This means that the positive obligations imposed by the Equality Act to promote equality and thus deal with the causes of prejudice and discrimination have never been put into force, which would be strange, given the professed commitment of our government to the achievement of equality.

Section 25 of the Equality Act spells out some of the positive obligations placed on the state by this Act to promote equality.

(1) The State must, where necessary with the assistance of the relevant constitutional institutions (a) develop awareness of fundamental rights in order to promote a climate of understanding, mutual respect and equality; (b) take measures to develop and implement programmes in order to promote equality; and (c) where necessary or appropriate: (i) develop action plans to address any unfair discrimination, hate speech or harassment; (ii) enact further legislation that seeks to promote equality and to establish a legislative framework in line with the objectives of this Act; (iii) develop codes of practice as contemplated in this Act in order to promote equality, and develop guidelines, including codes in respect of reasonable accommodation; (iv) provide assistance, advice and training on issues of equality; (v) develop appropriate internal mechanisms to deal with complaints of unfair discrimination, hate speech or harassment; (vi) conduct information campaigns to popularise this Act.

(2) The South African Human Rights Commission and other relevant constitutional institutions may, in addition to any other obligation, in terms of the Constitution or any law, request any other component falling within the definition of the State or any person to supply information on any measures relating to the achievement of equality including, where appropriate, on legislative and executive action and compliance with legislation, codes of practice and programmes.

(4) All Ministers must implement measures within the available resources which are aimed at the achievement of equality in their areas of responsibility by: (a) eliminating any form of unfair discrimination or the perpetuation of inequality in any law, policy or practice for which those Ministers are responsible; and (b) preparing and implementing equality plans in the prescribed manner, the contents of which must include a time frame for implementation of such plans, formulated in consultation with the Minister of Finance.

Once these sections become operational (if ever) the state will have a legal duty to take the lead in educating the public around issues such as racism, sexism, homophobia, religious intolerance (including intolerance against non-believers), and prejudices against disabled persons.

The fact that this has not happened to the degree envisaged by the Constitution (and by these seemingly inoperable provisions of the Equality Act), suggests that not all members of our government (at both national and provincial level) are fully committed to the eradication of all forms of hatred and prejudice and to the promotion of a world in which all kinds of differences between people are respected and even celebrated.

What is needed to turn the tide against prejudice and hatred based on sexual orientation (as well as race, sex, gender and disability) is political leadership from the highest level. Unless the President, the Deputy President and Ministers (as well as Premiers and MEC’s and Mayors) regularly speak out against homophobia (and other forms of prejudice) and against the violence and threats of violence that haunt especially working class, black, gay men, lesbians and other sexual minorities, attitudes will not begin to change.

Just like Helen Zille needs to speak out regularly against racism and the racial utterances of people like Steve Hofmeyer, so Jacob Zuma should speak out against the homophobic statements that are regularly made by other politicians, community leaders and religious leaders.

Until these leaders stop feeling embarrassed about the fact that we have different sexual orientations and until they stop – through their silence – from condoning the hatred and prejudice that too often spill over into violence against gay men and lesbians, attitudes will not begin to change.

A good place to start a campaign that would foster respect for difference would be in our schools. School principals need to be trained in diversity management and should only be promoted if they can demonstrate that they have taken steps to create a school environment in which racial, gender, sexual orientation and religious diversity is not only tolerated but celebrated. An environment should be created in which teachers begin to realise that they have a duty to promote the values contained in our Constitution – including the value of respect for the human dignity of everyone, regardless of his or her sexual orientation.

The truth is that most politicians are uncomfortable about sexuality issues and would rather never have to think about the fact that gay men and lesbians exist and that they are our brothers and sisters, our mothers and fathers, our sons and daughters, our comrades and colleagues. They will not speak out against injustice because they are scared that they will be viewed with suspicion (and might be suspected of being gay or lesbian themselves), so they keep quiet while people like Zoliswa Nkonyana get harassed, assaulted, raped and murdered.

White South Africans have a specific duty to speak out against racism whenever it is expressed or perpetrated by fellow whites. When they keep silent around braaivleis fires, in boardrooms, at dinner parties when somebody tells a racist joke or makes racist statements about black South Africans, they become complicit in the perpetuation of racism. Similarly, if we remain silent in the face of implicit or explicit homophobia amongst our friends we become complicit in homophobia and, ultimately, in the killing of gay men and lesbians.

How anyone can justify his or her silence in the face of racism and sexism and homophobia, I really do not know.

On race and sex and unexamined assumptions

Jan 25th, 2012
by Pierre De Vos.
61 comments

The reaction from many people to a poster released by the Democratic Alliance Youth (DASO), in which they tried to make a point about the importance of trying to achieve a non-racial society in South Africa, is rather amusing and also quite revealing.

On the one side you have the lunatics (sorry Gareth!) like Connie van der Walt who wrote that if the guy in this picture was her son she would “shoot him dead like a bad dog”. On the other hand, there are those who interpret the poster as subliminally racist, either because it depicts a white and black person in an intimate pose at all, or because (slightly more plausibly) it depicts a white man and a black woman in an intimate pose.

Others have, of course, been outraged by the “disgusting pornography” of it all, given the fact that the two people in the poster appear to be naked from the waist up. (The people who pretend to be shocked by a mild poster like this, are probably not familiar with real pornography and would probably not make good classifiers at the Film and Publications Board.)

What is going on here? I believe (and I would, would I not?), these reactions demonstrate a few revealing things about our communal attitude towards race, sex and gender.

First, it seems to me that these reactions demonstrate the obvious fact that certain opponents of race-based affirmative action, who argue that we should not rely on racial categories when we devise measures to address the effects of past and on-going racial discrimination, are wrong. These critics argue that racial classifications are always morally repugnant, that it is in any case not always easy to determine what the race of a person is, that people who embrace non-racialism might not even see race at all, and that redress can be achieved without invoking such categories as people suffer disadvantage not because of their race but only because of their lack of access to financial and other resources.

I think the poster is rather clever (although DASO probably did not think about this) because no one who sees it will be able to deny that they noticed that the man and the woman in the poster look, well, “different” from each other. How we respond to it will of course depend on our deeply held (and perhaps unexamined or unknown) views on race and sex. We might see a white man once again exploiting a black women (despite the fact that the two people look more or less the same age and are both beautiful), or we might see two heterosexuals who are going to get a lot of flak from their parents, or (I confess this was my first thought) we might wonder whether the white guy is actually going to take his girlfriend home and whether he will one day marry her.

Given this obvious fact, how do people continue to assert that race has stopped mattering in South Africa and that most well-adjusted middle class (white?) people never see race anymore? How can we maintain the fiction that when a black person and a white person apply for the same job, we do not take any notice of the race of the applicants – unless we are forced to do so because of the requirements of affirmative action?

The poster reminds us that (as I have written before):

race hovers not far from the surface in private or other everyday settings: as an unspoken presence, a (wrongly) perceived absence or as a painful, confusing, liberating or oppressive reality in social, economic or other – more intimate – interactions between individuals or between groups of individuals. In South Africa we cannot escape race. We cannot escape our own race. Even when we claim that we have escaped the perceived shackles of race, we are merely confirming its presence by our stated yearning for its absence. And because of this we cannot claim that race does not matter when we talk about redress.

Second, the poster reminds us that many people (of all races) have internalised an apartheid mind-set regarding race, sex and gender and are utterly incapable of seeing intimacy between two people of different races and sexes in anything but starkly racial and gender stereotypical terms. Thus they claim that the poster reflects a racist and/or sexist mind-set because it depicts a white man (a man being the person who supposedly “is always in charge” in a sexual interaction) with a black woman (who is supposedly “always submissive” and to some extent the victim of the man’s sexual aggression).

To such people the thought never seems to have occurred that the women in the poster could be in charge (in charge emotionally, financially and/or physically) and that we cannot tell from the poster whether this is so or not. They have jumped to conclusions (based on their own internalised prejudices and stereotypical assumptions about race and gender and sex) that the woman in the poster is a meek receptor of male aggression. Maybe some have done so because the poster originated with the DA and in that context they are prepared to expect that the DA shares these racial, sexual and gender prejudices. But I would guess most did so because of their own prejudices of which they might not be aware – and not because of their view of the DA.

Lastly, the poster reminds us that many South Africans have internalised a notion of sexuality which has its origins in Judeo-Christian culture. We might call ourselves “Africans” but we often think about sex like modern day Christian missionaries. The assumption underlying the Judeo-Christian tradition is – as Susan Sontag has argued – that a person can be judged as “good” or “bad” (in other words, that a person can be judged as moral or immoral) almost exclusively based on that person’s sexual desires and/or conduct.

Sex is therefore always viewed as a “special case”. While we may not be judged for letting a man starve, we will be judged for wanting to sleep with that man. While a person (of whatever race) may therefore think of him or herself as having no racial prejudices, these prejudices might be flushed out when confronted with a poster that hints at sex between two people of different races. Seeing a black woman in the arms of a white man, the person recoils, either because the picture evokes (in the mind of the racist) unspeakable immoral couplings between the two, or because it evokes (in the mind of the person infected by colonial ideas) images of sexual exploitation of a black woman by a white man.

Leaving aside the white racists, many people would not recoil if he or she saw a picture of black man and a white woman sitting next to each other around a boardroom table. But when they see this picture, they do recoil instinctively because sex, somehow, is different. How ironic that they might then produce arguments that might sound progressive, arguments about the exploitation of black woman, while they are justifying the prejudices which they carry with them, prejudices that can be considered as one of the “special gifts” bestowed on indigenous South Africans by the colonial culture.

Which brings me to the second poster of the DA Youth depicted in this post. What, I wonder, would the reaction be to this poster of two men of different races? Would the same people who recoil at seeing a white man in an intimate situation with a black woman feel comfortable with two men of different races in an intimate situation? If they do not recoil, does this say something about how we construct woman as necessarily passive, powerless and meek? If they do recoil, do they know that their minds have been colonised by the ideas first brought to South Africa by white missionaries? I wonder…

Time to stop paying traditional leaders?

Jan 24th, 2012
by Pierre De Vos.
83 comments

Zulu monarch King Goodwill Zwelithini earlier this week reportedly criticised people who engaged in same-sex relationships, labelling them “rotten”. “Traditionally, there were no people who engaged in same sex-relationships. There was nothing like that and if you do it, you must know that you are rotten. I don’t care how you feel about it. If you do it, you must know that it is wrong and you are rotten. Same sex is not acceptable,” he reportedly said.

(The Zulu Royal Household has since criticised what it called a “reckless translation” of Zwelithini’s speech – a “reckless translation” perhaps being one that exposes the “King” as being a bit slow and thus not very familiar with the history of his “subjects”. “At no stage did His Majesty condemn gay relations or same sex relations,” Prince Mbonisi Zulu said.)

I will leave aside for the moment the fact that anyone who is familiar with the academic literature would know that while the notion of “perverted homosexuality” as an identity was probably imported into Southern Africa by European missionaries, no credible historian will now deny the existence of certain kinds of same-sex intimate conduct over the past two centuries in Southern Africa – no matter how shocked the (white) missionaries might have been by this.

Besides, one cannot expect the “King” to read academic journals and popular articles on homosexuality merely because he wishes to express himself on this topic. He must be a busy man, what with having to spend the R883 161 salary he receives annually from the national government, and with having to ensure that the Zulu Royal Household budget of just more than R55-million for the 20011/12 year is spent wisely. (Apparently R34,2m is to be used over the next three years to renovate his palaces who must be in a desperate state of disrepair and this must also keep him busy.)

I would rather focus on a more interesting constitutional question, namely why on earth do we have officially recognised Kings and Queens and Chiefs in South Africa and why are we paying through our noses for their upkeep? After all, traditional leaders (including the Zulu King) are not democratically elected (they inherit their titles) and their exercise of power over between 15 to 20 million South Africans may appear utterly undemocratic. Secondly, traditional leaders are mostly men, which go against the principles of non-sexism that is entrenched in the founding values of our Constitution.

It must therefore come as a surprise that section 211(1) of the Constitution explicitly recognises the “institution, status and role of traditional leadership, according to customary law” – although this recognition is made subject to the other provisions in the Constitution.

Given the fact that most traditional leaders were co-opted by the apartheid state to help the state to control the rural population of South Africa and to administer apartheid policies, one might well have thought that ANC politicians and the supposedly “forward looking” business lobby represented at the time by the so called “reformed” National Party might have wanted to get rid of this undemocratic system of inherited and elitist leadership when they negotiated the 1996 Constitution.

Recall that during apartheid, labour bureaux regulated the supply of labour to the mines, commercial agriculture and industry. In rural villages the administration of the pass book and the running of the labour bureaux, where permits had to be annually renewed, were the responsibility of the chiefs, who charged a fee for this “privilege”.

The 1951 Bantu Authorities Act formed the lynchpin of this system of indirect control of the rural poor by the apartheid government via the system of traditional leaders. Power rested with a hierarchy of (mostly) compliant chiefs, who were made utterly dependent on the patronage of the Department of Native Affairs. Chiefs were no longer accountable to their subjects, but to the Department of Native Affairs. Their powers were increased while their legitimacy was being eroded.

However, this system of co-opted traditional leadership was put under severe strain with the abolition of the pass laws in 1986 as this meant that migrant labourers no longer had to present themselves at the Chiefs office in their home village. Chiefs lost their income from registration fees and, to some extent, their control over the movements of their “subjects”. Because “disobedient” villagers could no longer be punished by withholding labour permits and travel documents and as chiefs no longer had the opportunity to collect arrears from their migrant “subjects”, chiefs often reacted by imposing new taxes to make up for the lost revenue.

One way of increasing their income (and retaining some form of control over “subjects”) was for traditional leaders to seize control over communal land and strictly regulating the use of resources (like water, grazing and fire wood) on that land, thus forcing rural poor people to pay for the “privilege” of using these communal resources. Thus the system of communal living was completely subverted in favour of traditional leaders with none of the checks and balances on the power of chiefs which existed in pre-colonial times. Another way of retaining control over “subjects” was through the role played by traditional leaders in interpreting and enforcing customary law rules in traditional courts.

No wonder the ANC, who in exile seemed rather hostile towards the system of co-opted traditional leadership (including towards King Goodwill Zwelithini who at the time was in the pocket of a Bantustan leader called Magosuthu Buthelezi), changed its mind once back in South Africa. In order to defuse the violence between supporters of Buthelezi’s IFP and ANC supporters in KwaZulu-Natal and to gain support from voters living in traditional areas under the undemocratic yoke of traditional leaders, the ANC started wooing traditional leaders.

In this process, the masterstroke of the ANC was for the national government to take over control over the purse strings. Thus Parliament adopted the Remuneration of Public Office Bearers Act in 1998 which prevented Provinces (like the then IFP controlled KwaZulu-Natal) from paying traditional leaders over and above the payment made by the national government in terms of this Act. (This move – along with the buying off of King Goodwill himself – broke the stranglehold of the IFP over traditional leaders in KwaZulu-Natal and allowed for the current resurgence of the ANC in that province in the light of President Jacob Zuma’s election as President of the ANC.)

Meanwhile the Black Administration Act was finally abolished in 2005 and left a power vacuum as it robbed traditional leaders of some of their authority. This may be why the adoption of a Traditional Courts Bill (tabled for the first time in 2008) is reportedly on the legislative agenda for 2012. The draft Bill authorises a traditional court (led not by a judge or magistrate but by a traditional leader authorised to do so by the Minister) to hear and determine civil disputes arising out of customary law and custom brought before the court where the act or omission which gave rise to the civil dispute occurred within the area of jurisdiction of the traditional court in question.

Thus, instead of speeding up the integration of customary law into mainstream law (as one of the three pillars of our legal system), this Bill will have the effect of ensuring the continued marginalisation of customary law, practiced mostly in traditional courts and seldom in High Courts, where judgements are reported and infiltrate the legal consciousness.

Although the draft Bill requires the traditional courts to respect the provisions of the Bill of Rights, it is unclear whether such safeguards will be respected and to what extent “subjects”, especially women who may depend on the goodwill of the chief to gain access to water, grazing for cattle and housing, (or other unpopular individuals like gay men and lesbians) will be prepared to challenge a decision made in such a traditional court elsewhere.

There are going to be serious constitutional problems with this Bill despite the fact that section 211(2) of the Constitution allows a traditional authority to observe a system of customary law, subject to any applicable legislation and customs. This is because section 34 of the Constitution states that everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum. This must be read with section 165(2) which states that the courts are independent and subject only to the Constitution and the law, which they must apply impartially and without fear, favour or prejudice.

Given that the Constitution subordinates traditional leadership functions and structures as well as customary law provisions and their application to other provisions in the Constitution – including the provisions of the Bill of Rights – I would guess that courts staffed by unelected hereditary chiefs will be found to be unconstitutional as they will not be independent and nor will they be likely to administer justice in an impartial manner – especially not to someone who happens to be a women or, god forbid, gay or lesbian.

They would lack independence because they would not enjoy the basic institutional guarantees required for a tribunal or court to be considered as independent. For starters, chiefs are paid by the government of the day and can also be removed as chiefs and they therefore do not have security of tenure. They would also potentially lack impartiality, as those chiefs who happen to be unwise, or are patriarchs or have been corrupted by money interests, might reasonably be perceived as being biased in one way or another.

Which brings us back to King Goodwill and his reported remarks about same-sex relationships: when we talk about transformation and the need to eradicate the vestiges of apartheid thinking, has the time not come for citizens to stop bankrolling the lavish lifestyles of Kings like Zwelithini (with his backward views) and the lifestyles of other unelected traditional leaders? Given the fact that traditional leadership has been totally transformed by the engagement with colonialism and was co-opted by the apartheid government and thus implicated in taking part in the enforcement of sometimes authoritarian controls over rural citizens, should people like King Goodwill not perhaps stop milking the taxpayer and start paying his own way like everyone else?

Get up, stand up for your rights!

Jan 5th, 2012
by Pierre De Vos.
87 comments

Most people think,
Great god will come from the skies,
Take away everything
And make everybody feel high.
But if you know what life is worth,
You will look for yours on earth:
And now you see the light,
You stand up for your rights, jah!

Get up, stand up! (jah, jah! )
Stand up for your rights! (oh-hoo! )
Get up, stand up! (get up, stand up! )
Don’t give up the fight! (life is your right! )
Get up, stand up! (so we can’t give up the fight! )
Stand up for your rights! (lord, lord! )
Get up, stand up! (keep on struggling on! )
Don’t give up the fight! (yeah! )

- Bob Marley

The more things change, the more they stay the same. It might be a new year, but we are still talking about the same things we talked about in 2011…. and 2010…. and 2009. One of the things we keep on talking about is the seemingly never ending question of whether the Premier of the Western Cape, Helen Zille, is fatally addicted to Twitter. Another, and somehow related, question we cannot seem to get away from is the question of whether Cape Town is a racist city or not. 

At the end of last year Premier Zille (who has not learnt yet that one cannot have a sensible political argument in 140 characters at a time and whose Tweets often create the impression that she lacks an appreciation of the political sensibilities and the life experiences of the vast majority of South Africans who happen not to be white and upper-middle class like herself) got involved in another spat on Twitter about alleged racism in Cape Town.

In the Mail & Guardian online Verashni Pillay wrote a beautiful piece, in which she responded quite appropriately to this spat. Writing about her time living in Cape Town she remarked:

What drove me slowly mad was how racism was an elephant in the room that you could not talk about. How white Capetonians would cringe and turn away when the topic came up, or look at you in blank confusion and ask why you were so obsessed with race. It was how, yes, there is racism everywhere in South Africa but in Cape Town it is not possible to even discuss it. And how Cape Town, with its pristine beaches, its lofty Parliament buildings and history of activism, was somehow supposed to be better than that.

Yep, my experience exactly. When my former partner was the victim of racial discrimination several years ago and we challenged the discrimination in the Equality Court, many people in Cape Town continued to argue with us that we were being “overtly sensitive” and that what we experienced were not racism at all but “something else”. (What this “something else” might be, was never made clear to me and when several years later I landed up at a party with one of the owners of the club that discriminated against my partner, the co-owner admitted that racial discrimination indeed occurred that night – on the instructions of the club owners.)

But that is not what I want to talk about in this first post of the new year. Instead, I wish to pose a different (and, perhaps, difficult) question: why is it that so many people – even middle class people who are otherwise empowered and confident – complain about experiencing racism and racial discrimination (in Cape Town and elsewhere in South Africa), but seldom challenge this discrimination in the Equality Court?

In the racist world in which we still live in South Africa, fighting to achieve a non-racial society is always going to entail a long-term struggle. If one is never prepared to stick one’s neck out and to take on the racists, the sexists, the homophobes, the ethnic chauvinists, things will never change – or they will not change as fast as they should and as fast as we are entitled to.

Some people seem to think that now that we have achieved our democracy and our freedom, there is no need to struggle against the injustices that still haunt our land. If one experiences racism or racial discrimination in Cape Town, for example, one can just give up on Cape Town and move back to Johannesburg, thus avoiding places where one suspects one will be discriminated against.

Instead of living like truly free and equal citizens who confidently assert their right to be treated with equal dignity and respect on every square centimetre of land in South Africa - whether in Cape Town, in Pofadder or in Polokwane – some people still avoid confronting the racists, the sexists, the homophobes, and never try to force them to change. Some people do not seem to think that one must first get mad and then get even by making these racists pay for their actions, actions which affront the human dignity of others.

This can – theoretically, at least – be done quite easily. The Promotion of Equality and Prevention of Unfair Discrimination Act designates most Magistrates Courts as Equality Courts and one can approach any such court when one believes one has been discriminated against. The clerk of the Equality Court will then assist one to ensure that the case is brought before the Equality Court (in terms of section 20 of the Act).

Although not all clerks of the Equality Court are as well trained as they should be and although it can be difficult to get hold of these clerks (perhaps because they are required to deal with so few cases each year and are assigned other duties), a little prodding and nagging would usually do the trick. One does not need to engage the services of a lawyer in order to win an Equality Court case and the clerk of the court is supposed to assist any claimant to ensure that one’s documents are prepared properly  and papers are served on the alleged discriminator.

The form that must be completed is also available on the internet (see here) and is easy to fill in. The Act also assists the complainant by stating that as long as one has made out a prima facie case of discrimination the onus shifts to the other party who will have to convince the court that no unfair discrimination took place. This is so because discrimination is notoriously difficult to prove as those who discriminate will always have another reason for the different treatment (“there is a private function”, “only members are allowed”, “the flat has already been rented out”, “the dress code was not complied with”, “there is a waiting list for housing opportunities”).

To circumvent this problem one only has to show that a policy, law, rule, practice, condition or situation directly or indirectly imposed burdens, obligations or disadvantage on; or withheld benefits, opportunities or advantages from, a person on one or more of the prohibited grounds, including race, sex, gender, language, ethnicity and sexual orientation.

In other words once one has shown that one was treated differently than others in some way and that one of the differences between oneself and those treated differently was one’s race, sex, gender or sexual orientation, one has provided prima facie proof of discrimination and the discriminator will then have to justify this discrimination by showing that it was not unfair. This will not be easy to do.

And if one wins the case, the Equality Court is given wide powers to make an appropriate order which may include:

  • an order making a settlement between the parties to the proceedings an order of court; an order for the payment of any damages in respect of any proven financial loss, including future loss, or in respect of impairment of dignity, pain and suffering or emotional and psychological suffering, as a result of the unfair discrimination, hate speech or harassment in question; 
  • after hearing the views of the parties or, in the absence of the respondent, the views of the complainant in the matter, an order for the payment of damages in the form of an award to an appropriate body or organisation;
  • an order restraining unfair discriminatory practices or directing that specific steps be taken to stop the unfair discrimination, hate speech or harassment;
  • an order for the implementation of special measures to address the unfair discrimination; an order directing the reasonable accommodation of a group or class of persons by the respondent; 
  • an order that an unconditional apology be made;
  • an order requiring the respondent to undergo an audit of specific policies or practices as determined by the court: an appropriate order of a deterrent nature, including the recommendation to the appropriate authority, to suspend or revoke the licence of a person.

Yet, few South Africans ever approach the Equality Courts for assistance. Why there should be such a discrepancy between the large number of acts of discrimination experienced by South Africans, on the one hand, and the number of cases brought to Equality Courts on the other, is difficult to explain.

Can it be that some of us have been so brainwashed by apartheid that we do not all believe that we have a right never, ever, to be discriminated against? Have we been made to accept the fact that discrimination against us will occur and that it is best not to make a fuss and just to “move on”? Are too many of us afraid that the economically and socially dominant racists will brand us as overtly sensitive or as people who are “playing the race card”?

The law does not always serve ordinary people well. Sometime, instead of helping us to achieve justice the law may perpetuate injustice. But the Equality Act is a powerful tool to help every individual in South Africa who has experienced discrimination to reclaim their dignity and to achieve a semblance of justice. It is time that more South Africans stand up for what is right and use this law as it was intended to be used.

The (moral) Wasteland

Nov 21st, 2011
by Pierre De Vos.
114 comments

Over the past few days I have been thinking again about The Reader (Der Vorleser), a novel by German law professor and judge Bernhard Schlink, published in Germany in 1995. The Reader is a parable of sorts, as it deals with the difficulties the post-war German generation have had in comprehending the Holocaust. How should modern Germans deal with the knowledge that their parent’s generation perpetrated (or acquiesed in the perpetration of) the Holocaust?

In this novel, the struggle of the post-war generation to come to terms with the past, and its difficulties in deciding how it should view the generation that took part in, or witnessed, the atrocities committed by the Nazi regime is problematised and the complexity (or perhaps impossibility) of the task, is explored.

Michael – the young “reader” of the title – who had an affair with a much older woman called Hannah many years after the war (a woman who is later implicated in Holocaust atrocities), finds it impossible to imagine what Hannah was like “back then”.  He feels a difficult identification with the victims of Hannah’s deeds when he learns that Hannah often picked one prisoner to read to her, as she chose him later on, only to send that girl to Auschwitz and the gas chamber after several months. Did she do it to make the last months of the condemned more bearable? Or to keep her secret safe? Michael’s inability to both condemn and understand springs from this. He asks himself and the reader:

What should our second generation have done, what should it do with the knowledge of the horrors of the extermination of the Jews? We should not believe we can comprehend the incomprehensible, we may not compare the incomparable, we may not inquire because to make the horrors an object of inquiry is to make the horrors an object of discussion, even if the horrors themselves are not questioned, instead of accepting them as something in the face of which we can only fall silent in revulsion, shame and guilt. Should we only fall silent in revulsion, shame and guilt? To what purpose?

I have been thinking about this novel because of a broedertwis (a friend joked that it was actually a sustertwis) raging on the pages of Rapport newspaper between myself and those (including an English novelist called Dr. Marie Heese) who argue that one of the most egregious injustices is being perpetrated at the University of Stellenbosch because some classes are now being conducted in both Afrikaans and English (alternating between the two in the same class).

I responded (rather sharply) to an assertion by Dr Heese that she was “die bliksem in” (“bloody outraged”) about my previous writings on this topic, arguing that this sudden moral outrage is rather rich, coming from a person who supported apartheid and never expressed any moral outrage about the oppression, legalised racial discrimination, torture and murder perpetrated by the apartheid regime in order to sustain a system, imposed in the name of the preservation of white Afrikaners, and branded a crime against humanity by the United Nations. This women, I said, knew nothing about justice, honesty and plain common decency. (Ironically, in the same issue of Rapport Dr Heese offered a partial defence of Bantu Education - which she enthusiastically took part in — rather underlining the point I was making about her immoral, apologist, view of apartheid.)

Elsewhere in that august paper Pieter Malan (one of its editors) took exception: “Met wie praat jy, professor? Ek kom uit ’n ordentlike huis. Ek laat my nie so behandel nie.” (“Who are you talking to, Professor? I come from a decent family. I do not allow myself to be treated in this manner.”) While admitting that we should not close our eyes to the “faults” of our parents, Malan argued that Afrikaners have a lot to be proud of: the industrialisation of the country, creating the best infrastructure on the African content and building Afrikaans into a fully fledged academic language (albeit not one in which Dr Heese wishes to publish her novels) were all achievements of Afrikaners who now face a grave threat to their future because their children (even those who fight for Afrikaans at Stellenbosch) choose to write their post graduate dissertations in English and dream of living in Sydney or London.

Which brings me back to The Reader.

What does it mean to come from a “decent” Afrikaans family? Can one credibly call that family “decent if its members actively or passively participated in the perpetuation of a crime against humanity? How should we deal with the “faults” of our parents — if those faults include the enthusiastic support for the systematic dehumanisation, denigration, oppression and (at times) torture and murder of fellow citizens — all based on the belief in the racial superiority of whites?

Is it morally defensible (and factually correct) to argue that Afrikaners created the modern capitalist state in South Africa and to suggest that this is something to be proud of? What does it say about the nature of the moral universe inhabited by these children of apartheid, when some of them express moral outrage about the manner in which Afrikaans is treated (although this treatment complies with the provisions in the Constitution), but have consistently failed to express similar moral outrage about the injustices related to our apartheid past in which their parents were implicated, or the injustices of hunger, homelessness and inequality that haunts present day South Africa?

These are not easy questions to answer. It is emotionally and intellectually challenging even to begin to contemplate the past in an honest and fearless manner. After all, none of us wish to think of ourselves as being morally tainted because of what our parents did (or, yes Dr Heese, because of what we did or allowed to be done). How can we judge our parents when they loved us (even when they hated fellow black South Africans and enthusiastically supported or took part in their oppression), when we fondly recall how — as toddlers — our parents lulled us to sleep at night by humming the well-known Afrikaans lullaby, Siembamba? Siembamba/ mama se kindjie/ Siembamba, Mama se kindjie/ draai sy nek om/ gooi him in die sloot/ trap op sy kop/ dan is hy dood (“Siembamba/ mothers child/ Siembamba/ mothers child/ break his neck/ dump him in a ditch/ step on his head/ then he’ll be dead”.)

No wonder so many of us find it impossible to begin to comprehend the incomprehensible horror of apartheid and the complicity of our parents in this horror. No wonder we shy away from any but the most flippant acknowledgment of the “faults” of our parents and then cover this up by extolling the virtues of a regime that supposedly “created” the current infrastructure and the modern capitalist (albeit a bifurcated) state which was rigged disproportionately to benefit whites. (No matter that the infrastructure was paid for with the taxes generated by white-owned mining companies and businesses who made exorbitant profits because they could rely on the cheap migrant labour that was an inherent part of the apartheid system. No matter that the infrastructure was partly built with the hands of black men paid a pittance because of the racist employment policies embedded in the legal system.)

No wonder so many seem to find it impossible to reflect seriously on what our parents actually were like “back then”, what they were actually thinking and saying and doing while they rode on the “Whites Only” buses and bought stamps at the “Whites Only” counter of the post offices, when they euphorically cheered on DF Malan or HF Verwoerd and JB Vorster and PW Botha (all Chancellors of Stellenbosch University) at National Party or Republic Day rallies while these leaders extolled the virtues of apartheid and argued that black South Africans were essentially sub-humans who did not deserve to be treated equally with whites who, after all, had a duty to protect white civilisation against the black hordes? No wonder those of us who grew up in the apartheid era (and maybe supported it by getting involved in the Bantu education system), prefer to believe that we only meant well — although some “mistakes” were admittedly made.

Yes, in order to preserve our sanity and our sense of ourselves as basically decent and “innocent” people, we might believe that we have no choice but to maintain that we come from “decent” families. We might believe that we have no choice but to insist that nobody treat us as if we are morally tainted. We dare not admit that we lack the moral decency to target our outrage at the real injustices of past and present day South Africa and not at the failure of institutions like the University of Stellenbosch unconstitutionally to preserve the white privileges obtained through the exploitation of black South Africans.

I am not being flippant when I say these are emotionally and intellectually complex and difficult issues to deal with. No person wishes to be told that his father or mother was a moral degenerate and few of us would agree with such a proposition if we could find any way to deny or reinterpret the facts on which such a charge was based. If one lives in a country that underwent a managed transition, a country in which the oppressors were never fully defeated or exposed and humiliated, in which a Truth and Reconciliation Commission granted amnesty to the perpetrators of gross human rights violations and in which there was never an acknowledgment that the evil of apartheid was not perpetrated by a few “bad apples” like Eugene de Kock, but by every person who benefited from the system yet supported or acquiesced in it, this task of at least acknowledging the impossibility of facing up to the past honestly and fully becomes very difficult.

Most of us Afrikaners (and many white English speakers too) live in a moral wasteland: most feel that we must either deny the past and our complicity in it (or at the very least re-write that past to erase our complicity in it), or we must acknowledge the full horror of that past, which seems to mean that we would lose our very humanity, our ability to be human beings with an inherent human dignity with moral agency and the right to express our views on present day injustices in our country.

Some of us try to find another way. We grapple with the impossibility of squaring our love for our parents and our family (and the langue we all speak) — all implicated in the horrors of the past — with attempts to imagine how it was “back then”; what our parents said and believed and did to maintaining a system branded a crime against humanity, all because they loved us and wanted to provide us with a better life, even when this was at the expense of the humanity (and sometimes the lives) of the majority of South Africans.

To square these things is impossible. To stop trying is immoral.

PS: I borrowed some of the information about The Reader for this piece  from Wikipedia. See: http://en.wikipedia.org/wiki/The_Reader

Why historical context still matters in South Africa

Nov 16th, 2011
by Pierre De Vos.
103 comments

How should South Africans deal with our troubled past? When we discuss matters such as land reform, race-based affirmative action, or the so called right of students to be taught in Afrikaans, what is the historical lens through which we should view our past? What role should we accord the past (however conceptualised) when we interpret the Constitution? And what does it say about our ethical commitment to social justice and fairness when we choose a particular lens through which to view our past?

The South African Constitution is different from many other Constitutions as it is said to be historically self-conscious. How we view the past and how we frame current human rights and other constitutional issues with reference to our past, will play a role in how we interpret and apply the provisions in the Constitution. Justice Ishmael Mahommed provided a tentative answer to these question when he stated in S v Makwanyane, that the Constitution:

retains from the past only what is defensible and represents a decisive break from, and a ringing rejection of, that part of the past which is disgracefully racist, authoritarian, insular, and repressive and a vigorous identification of and commitment to a democratic, universalistic, caring and aspirationally egalitarian ethos, expressly articulated in the Constitution. The contrast between the past which it repudiates and the future to which it seeks to commit the nation is stark and dramatic. The past institutionalized and legitimized racism. The Constitution expresses in its preamble the need for a “new order … in which there is equality between … people of all races”.

As I have written before, not all South Africans have a shared understanding of our past and the injustices highlighted by Justice Mahommed in his Makwanyane judgment. Much of the disagreement about Afrikaans at Stellenbosch, about race-based affirmative action and about land reform and property rights, arise because of these often unspoken or unacknowledged differences in the way we conceptualise our past.

Although most South Africans would now profess to repudiate the racism and authoritarianism of the pre-democracy era, they vehemently disagree about the significance of this past for understanding present-day ethical and legal questions. The historical lens through which we view ethical and rights-based legal issues also differ and influence the way in which we view our own position vis-a-vis the rights in the Constitution and our ethical commitment to fellow South Africans.

Some South Africans argue that 1994 represented a clean break with the past. In 1994, so they say, we drew a line through the past and this allowed us to dump and bury all the moral baggage which some of us acquired because we remained silent about the injustices around us or because we actively supported or took part in perpetrating these injustices and enjoyed the fruits of this injustice. Apartheid was terribly wrong, they say, but that is all in the past now. We need to look forward and must forget what happened because we have made a clean break in 1994. Those who harp on about the past are merely trying to take white South Africans on a guilt trip in order to justify the current or possible future exploitation of whites (the very category whose existence they also now deny) and the denial of their rights which are now enshrined in the Constitution.

Closely related to (and sometimes overlapping with) the above is the view about our past based on the notion of moral equivalence. According to this view the past must be seen through the eyes of the white settlers. It allows for an interpretation of our past by relying on the justificatory lens of the cold war and the “fight against communism”, or on the colonialist lens according to which the “white mans burden” required whites to retain political and economic control of South Africa in order to “civilise” the country, build up its infrastructure and “prepare” black South Africans for the democracy which finally arrived in 1994.

This group argues that although racial discrimination was not very nice, white South Africans really had very little choice but to advance their own economic and social interests because the liberation movements were primitive communists who would have killed all whites in their beds had black South Africans been “allowed” to vote. In as much as there was a struggle, the oppressor and the oppressed were morally equivalent – both doing bad things to advance their respective causes. Because both sides did bad things for essentially good reasons, it is morally imperative that we forget about the past and move on. This would mean that we accept that the perpetrators of apartheid were just as much the victims of the human rights abuses of the liberation movements in particular and black South Africans in general as the oppressed were victims of apartheid.

The historical context out of which democratic South Africa was born is therefore irrelevant. So, when we discuss the question of language at Stellenbosch University, it is not acceptable to take into account the fact that the National Party promoted a form of Afrikaner Nationalism in the name of imposing Afrikaans as the dominant language on all South Africans, or that apartheid Premiers – from DF Malan to PW Botha – served as Chancellors of Stellenbosch University, or that most of the parents who now agitate for the right of their children not to have to listen to any lecturer speaking English in a class voted for the National Party, enthusiastically discriminated against black South Africans and sometimes took part in the killing and torture of black South Africans in the name of preserving the white “civilisation” with Afrikaans at the top of the dung heap.

The members of yet another group have turned into historical nihilists. Some people, they argue, always do bad things to other people if they have the opportunity to do so to advance their own economic or social interests. One cannot merely focus on South Africa’s recent colonial and apartheid past because that would single out one group (white South Africans) for moral opprobrium when oppression and exploitation can be traced back all the way to the Garden of Eden.

Where do we draw the line, they ask? Why should we focus on the evils of apartheid when other groups throughout history have exploited and oppressed their opponents? All that matters is the here and now, because if we look back we will only see a series of really unsavoury actions by various groups and we will never be able to make decisive judgements about who the “good guys” and the “bad guys” were.

I differ from the views outlined above. The starting point for any ethical engagement with our country’s past must surely be an acknowledgement of the particularly egregious nature of colonialism and the system of apartheid which logically followed from it. This is an ideological and ethical stance based on the assumption that the particularly unjust social and economic conditions we are confronted with in democratic South Africa can be directly attributed to the colonial conquest of South Africa by white settlers and the merciless economic exploitation of black South Africans and the (often violent) imposition of a European-based culture, religion and languages. This had (and continues to have) a devastating effect on the dignity of indigenous people and on the moral and economic well-being of all South Africans.

This stance is based on the idea that we have a duty to respond to the immediate world around us and that our immediate past which have directly shaped (and misshaped) our world must be responded to, carefully, sincerely and honestly. We cannot sweep the past 100 years under the carpet because these event shaped our world and created much of the injustice we live with now.

When Afrikaners ignore our recent history and claim to have become victims of a terrible injustice because some of their children can no longer enjoy the privilege (not available to the majority of previously oppressed South Africans) to study exclusively in their own language at an institution bankrolled by the democratic state, I see a terrible moral failure at the heart of their argument because of their unwillingness to respond to the immediate past and to face up to it.

Their lack of historical perspective and their failure to appreciate that — given our colonial and apartheid history — the agitation for a dominantly Afrikaans University (instead of a truly inclusive multilingual institution) represents a moral failure on their part. As what they demand would perpetuate the privileges they obtained through exploitation and a dehumanising policy of apartheid, this position is (in my view) deeply immoral — no matter how earnest and sincere the intensions of the agitators.

Of course, this set of assumptions and the lens through which I initially view such controversies is my starting point, but it is not my end point — and this complicates my argument. There are many other lenses through which one could view our past and many of them would be valid. One could embrace a class analysis and note how apartheid functioned for a long time as a handy tool through which cheap unskilled labour were produced to fuel the capitalist machine. Or one could note the gendered nature of much of the exploitation and oppression that occurred in the past and which lingers to this day in the form of patriarchy. One could adopt a “queer” reading of our past and focus on the way in which colonial missionaries, in cahoots with African traditionalists and patriarchs of every stripe, have managed to impose a heteronormative world view on society which (even today) results in the most despicable forms of discrimination and violence agains gay men and lesbians.

Because the hegemonic power of the denialists discourse is so strong, there is a tendency (also on my part) to avoid talking about these complex matters. A hegemonic discourse (denying the relevance of our immediate past) can best be confronted by presenting a counter-hegemonic discourse (noting the moral failure of the oppressor through the lens of colonialism and apartheid). The difficult task is to start by looking at our world through the lens of colonialism and apartheid, but not to get stuck there, to add nuance to our understanding of the world we live in and to confront injustice — also when it is perpetrated in the name of an anti-colonialist and anti-apartheid struggle.

When one engages with an issue such as whether some have a “right” to be taught in Afrikaans, it is difficult to present a nuanced argument because the denial by the taalbulle of the ethical universe which have shaped our world and continues to shape it. The denial of the importance of context and history and of its influence on ethical (and therefore also human rights) issues in present day South Africa forces one to confront and expose the immorality of their position in stark terms, leading to a simplified engagement with the past.

How do we move forward? What the taalbulle do not understand is that a more nuanced engagement with our past, based on the basic premise that the very existence of Stellenbosch University as a dominantly Afrikaans institution, was made possible by a system that oppressed the majority of South Africans. After accepting this, we can have a real discussion about the future. One cannot take the milk out of a cup of coffee and cannot undo the effects of colonialism and apartheid (that is why we cannot all just stop speaking English, or Afrikaans for that matter). But one can try to engage with these issues in a pragmatic and slightly less self-righteous way. Those who do, might find that it is possible to reach compromise solutions.

You strike a pig, you strike a Broederbonder

Nov 14th, 2011
by Pierre De Vos.
132 comments

Die Afrikanerbond is an organisation who (much like Communist Parties in Eastern Europe after the fall of Communism) opportuinistically changed its name – it used to be called the Broederbond - perhaps because during the apartheid years the Broederbond was a reviled secret organisation to which one had to belong in order to get ahead in politics (the National Party sort of politics, that is), the civil service or the education system. It also helped for a company to have a member of the Broederbond on its Board of Directors because that made it far easier to score tenders from the apartheid government.

It worked a bit like Black Economic Empowerment does these days, except it was all done in secret and people who belonged to the Broederbond were not allowed to tell anyone – even their wives (only men could join) – about their membership. They had to invent “Rapportreiers vergaderings” or Bible study classes or come up with other lies to keep their dirty little secret from their Vroue Landbou Unie and the Jong Dames Dinamiek wives. It was an organisation based on lies and deceit. I do not know whether they had a secret handshake or whether they were required to tickle each other in unspeakable places to demonstrate their allegiance to the cause, but I do know that the Broederbond was not a friend of open, transparent and accountable government.

The Broederbond was often seen as the group that provided the intellectual support for the apartheid policies of the National Party. This might sound like a misnomer – a bit like saying an organisation provided the Nazi’s with democratic credentials – but apparently the leaders of the Broederbond were slightly less dim-witted than the ordinary National Party faithful and the leaders who could make rousing speeches about the Rooi Gevaar and the Swart Gevaar but were seldom the sharpest tool in the shed.

Becoming a leader of the Broederbond bestowed on one untold political influence and prestige. If one were then also a leader in the Dutch Reform Church – which was widely known as the National Party at prayer – one had truly made it in the world of apartheid hit squads, a world of torture and murder and corruption. Come to think of it, it operated a bit like the Limpopo Government does under Premier Cassel Mathale: a secret organisation with political connections and influence that bestows prestige, untold wealth and influence over tenders and government policy on those who had been admitted to that august organisation.

The Afrikanerbond has fallen on hard times, what with their former patron the National Party long dead and a former leader, Marthinus van Schalwyk, now warming the ANC benches. But they emerged from their slumber to issue a statement about the Julius Malema disciplinary hearing in order to try and help revive Mr Malema’s political fortunes – by criticising him. (After all, being criticised by these guys is a bit like being savaged by a dead sheep. It’s like being criticised by former members of the Gestapo: can’t do one’s credibility too much harm amongst any reasonable, justice loving South Africans.)

They were very upset about the fact that the ANC disciplinary committee had not found Mr Malema guilty of the “very serious charge” of racism. Channelling PW Botha and Adriaan Vlok of the 1980ties the Broederbond… er … I mean Afrikanerbond fumed as follows:

With reference to the white population of South Africa, Mr Malema said: “We must take the land without paying. They took our land without paying. Once we agree they stole our land, we can agree they are criminals and must be treated as such,” he said to cheers from a crowd of about 3 000 people at the Galeshewe stadium, just outside Kimberley. IOL News – 9 May 2011….  Mr Malema’s inflammatory statements about minorities, calls for the nationalisation of land, banks and mines, and even subversive revolutionary talk are indicative of the momentum of the National Democratic Revolution, within certain factions in the ANC. Our concern is that Mr Malema propagates an anarchistic form of revolution. The ANC’s flirtation with revolution can have unintended consequences for a country such as South Africa.

Now, I do not believe that all land should be taken from white South Africans without paying for it. After all, the Constitution allows for an orderly land-redistribution plan (which does NOT require the implementation of the ridiculous willing-buyer willing-seller policy). Taking land that essentially belongs to the banks who had provided the mortgage to the buyer without paying for it will probably not be very good for the economy.

Most white South Africans who now own land bought the land (mostly with the assistance from a bank mortgage) from other white people who might or might not have stolen the land themselves. That is why our Constitution – in a delicate balancing act – requires orderly land redistribution but does not allow for expropriation without any compensation.

Although most white people did not steal anybody’s land and bought any land they might own on credit, this does not mean they did not benefit from the colonial and apartheid policies on land theft. Most white people – unlike most black South Africans – could obtain loans from banks, who would often not give credit to black South Africans in the past. They could buy land cheaply because fewer people (essentially only white South Africans) were chasing more land (essentially 80% of the land in the country), driving down prices in a system of supply and demand.

In any case, most black South Africans were not allowed to buy property in more than 80% of the country “owned” (or, putting it differently, “stolen”) by whites. And when a sweet deal came up which allowed Broederbond types to acquire land cheaply, black South Africans could not benefit from this. So thirty years ago when all those lovely cottages at Clifton (now selling for a cool R20 million) was sold for R25000 each, no black person benefited from that cosy arrangement.

Ok, the Oppenheimers and those who own De Beers might have stolen some land and some people might still own land which was originally stolen by their forefathers and mothers, but most of us living in cities never stole any land. This does not mean that many of us might not have acquired the land cheaply because we were members of the Broederbond and were tipped off about economic development plans or because we could exploit the apartheid policies of the state to our benefit (as many Broederbonders so handsomely did).

But if we interpret Mr Malema’s statement as meaning that much of the land now mostly in the hands of whites were originally stolen by (admittedly other) whites from the indigenous population of South Africa, Malema is not that far off the mark. Saying this does not make one a racist.  Although Mr Malema has made other remarks demonstrating racial prejudices that are not reconcilable with the values and rights enshrined in the Constitution, this statement – although provocative and over the top – is by far not the worst.

But one would understand why the Beroederbond types would become uncomfortable about such a statement: it contains a kernel of truth that exposes the lie that whites – even those who murdered and tortured and oppressed black South Africans - have always hogged the moral high ground and that the ANC is the real villain of past, present and future South Africa. Mr Malema, for all his terrible bombast and populism, has hit a nerve with this statement. He has thrown a rock into a bush and the pig hiding in that bush (our dear Afrikanerbond) is now squealing in pain. Let them squeal.

Why the taalbulle will destroy Afrikaans

Nov 8th, 2011
by Pierre De Vos.
187 comments

I am a bit nervous to raise the topic. People get very, very cross when one says the “wrong” thing about it. A bit like Gareth Van Onselen when one criticises Helen Zille. (Remember Gareth, that self-righteous guy from the DA who now writes a self-righteous column in Business Day chock full of his own pedestrian prejudices? Sadly, I have not had a call from him for ages. He must be too busy crafting his 150 word gems for the newspaper to engage in friendly little chats in which he tries to convince me that white is black and black is white and that I am lying by insisting on the opposite.)

In any case, they phone you and (without knowing you from a bar of soap) start insulting you and tell you what a useless excuse for a human being you are. They might even pour a cup of tea over your head or assault you — but only if you are lucky. If you are unlucky, well, you guessed it, they will force you to watch recordings of Steve Hofmeyer performing at Huisgenoot Skouspel, or some such event. They complain bitterly about how they have been persecuted since 1994 (usually calling from next to the swimming pool at their house or from a brand new top of the range car masquerading as a truck). They call you a self-hating Afrikaner and a communist (or, worse, an ANC lackey) and a useful idiot (not knowing that they are quoting Joseph Stalin).

And all this because you might have suggested that the Afrikaans taalstryders making a living out of whipping up anxiety and fear about the demise of the Afrikaans language are at best opportunistic exploiters making a fast buck out of the fear and misery of others and at worst just pining for the good old days of apartheid when they were in power and could stuff up the country all by themselves.

But here goes. On Sunday, the main headline in Rapport (the Afrikaans version of the Sunday Times - only far more, you know, white, and with more headlines about Rugby and about NG Kerk infighting about the existence of the devil and whether dominees should be allowed to exorcise said devil) screamed: “GEE TERUG ONS TAAL!” (Give us back our language!) It told the story of some “brave” Afrikaners who are taking on the University of Stellenbosch, allegedly because that University is not ensuring that lectures are predominantly or exclusively conducted in Afrikaans (with sign language interpreters at hand to accommodate black students).

Some lecturers want to attract the best students of all races to study at Stellenbosch (something that is not happening at the moment) and want to appoint the best lecturers to teach at the institution (as it recently did when it appointed the brilliant Prof Achille Mbembe in the Sociology Department), but this would not be possible if everyone was required to speak and lecture most of their courses in Afrikaans. They are called the verraaiers or hensoppers or bootlickers of the new elite (in private they are said to lick other parts of the anatomy of the new elite too).

Others wish to ensure that the University remains dominantly and proudly Afrikaans, which would relegate it to the status of a second or third tier parochial institution for the children of whites (including, ironically, many English speaking whites whose children attend Stellenbosch University because it remains overwhelmingly white) and a few coloured students from the platteland.  They claim the University does not need to attract black students (and it is sometimes implied that attracting black students would lower standards) because the Constitution protects language rights.

Afrikaners, they argue, have a right to their own Volkstaat-like University in pretty Stellenbosch where their children could study (and drink lots of red wine), free from the evils of affirmative action that would open up the university to black students and staff. In the eyes of this group, only Afrikaners (they are still debating whether Afrikaans speaking coloureds are Afrikaners or not) should continue to benefit from affirmative action — just as they have benefited from affirmative action for many decades after the rise of the National Party. Standards would be maintained by forging links with some of the better Universities in the Netherlands and Belgium, and embarking on joint projects about multilingualism and how to run a country without a government.

Well, at first it might appear as if this second group have a point. After all, section 6(1) of the South African Constitution states that there are eleven official languages in South Africa, namely Sepedi, Sesotho, Setswana, siSwati, Tshivenda, Xitsonga, Afrikaans, English, isiNdebele, isiXhosa and isiZulu. However, because the ANC negotiators were much better at their job than the old National Party negotiators, this section says much less than the Volkstaters would like to think.

Section 6(2) recognises the “historically diminished use and status of the indigenous languages of our people”, and places a duty on the state to take practical and positive measures to elevate the status and advance the use of these languages (somthing the state has not done at all over the past 18 years). Because Afrikaans has not been historically diminished (it was relentlessly promoted during the apartheid years and is therefore still one the most understood and spoken languages in South Africa – along with English and isiZulu – and hence does not fall within the ambit of this provision.

Moreover section 6(3) states that the national government and provincial governments may use any particular official languages for the purposes of government, taking into account usage, practicality, expense, regional circumstances and the balance of the needs and preferences of the population as a whole or in the province concerned; but the national government and each provincial government must use at least two official languages. All official languages must enjoy “parity of esteem and must be treated equitably”.

This does not mean that languages should be treated equally — the term “parity of esteem”, borrowed from the Irish Constitution with a little help from Kader Asmal, means far less than equal treatment. It means that they must be treated fairly, given the economic, political and social context. Given the systematic promotion of Afrikaans during apartheid, given the dominance of English as a world language (for the time being at least) and given the neglect of other indigenous languages over the years, these sections might well mean that other indigenous languages had to be promoted vis-a-vis Afrikaans.

If Parliament adopts the National Language Bill now before Parliament and the national government finally formulates a national language policy regarding the use of official languages for government purposes (as required by section 4 of that Bill), the taalstryders  might get a shock. Other indigenous languages might well — very legitimately — be preferred above Afrikaans in this language policy, the latter being a language who had been very much affirmed and promoted for 50 years during the apartheid rule.

Referring to Stellenbosch particularly, taalbulle argues that the right to receive education in the official language or languages of one’s choice in public educational institutions is guaranteed in section 29 of the Constitution. They fail to note that section 29(2) also states that this will only happen “where that education is reasonably practicable”.

In order to ensure the effective access to, and implementation of, this right, the state must consider all reasonable educational alternatives, including single medium institutions, taking into account: equity; practicability; and the need to redress the results of past racially discriminatory laws and practices.

Section 30 underscores this point by stating that while everyone has the right to use the language and to participate in the cultural life of their choice, these rights may not be exercised in a manner inconsistent with any provision of the Bill of Rights – including the provisions of the non-discrimination clause. Using a language policy that would exclude many black South Africans from accessing the excellent education at Stellenbosch is therefore not permitted by the Constitution as it infirnges on section 9(3) of the Constitution, read with section 30.

Where a University teaches some courses exclusively in Afrikaans, the effect of this policy would be to exclude many black South Africans from studying there and from teaching at this institution. Ironically, as long as Stellenbosch remains a University where quality education is provided and quality research is conducted (as it presently still is), the effective exclusion of black South Africans form the University through any language policy would contravene the non-discrimination clause in the Constitution. This is because the policy deprives many black South Africans from accessing a very high standard of education they might not receive at many other Universities and this disadvantages black students and staff.

This fight is only going to end one way and that is with the so called verraaiers winning the argument and the fight. If the taalbulle wanted to have a shot at retaining their white privileges at Stellenbosch they should have ensured many years ago that slightly less dim-witted people negotiated on their behalf at the Constitutional Assembly.

This is not to say that ons taal will disappear. On my iPod I have music from the early days of the Afrikaans music revival (Bernoldus Niemand, Koos Kombius, Johannes Kerkorrel), from avant-garde bands like Buckfever Underground and Die Antwoord, from Jan Blohm and Karen Zoid. On my bookshelf I look at books by Marlene van Niekerk, Ingrid Winterbach, Antjie Krog, Johann de Lange, Loftus Marais and Deon Meyer. When I want to express my anger in a colourful way, I choose one of the wonderfully expressive Afrikaans phrases available to me (but is unfortunately not polite enough to repeat here).

Ag, if only the taalbulle would stop fighting for the taal things might still turn out well for Afrikaans. Because with friends like them, who needs enemies?

As things stand, they are giving Afrikaans a bad name with their selfish and jingoistic crusade. By painting themselves as victims (“met ‘n wit brood onder elke arm vasgeklem” – “with a white bread clutched under each arm” - as my mother would have said), they are creating the impression that Afrikaans is being used as a proxy to try and retain the dominant white status of Stellenbosch University. Down that road lies permanent ruin for our taal.

If you want to save ons taal, why not write a poem, a short story or even an email in beautiful Afrikaans? Teach your children to use the language well. Engage in real debates – in Afrikaans, English or another indigenous language – about the real issues that face our nation: poverty, crime, corruption, racism, discrimination, homophobia, homelessness, hunger. Stop protecting the ill-gotten privileges of the apartheid years and stop acting in ways that will give the appearance of wanting to protect these privileges. Become an ambassador for the language through words and deeds – including words and deeds that demonstrate an understanding of the horrors of our past and its effect on the lingering injustices in our country. But please, spare me the moans and groans about the need to “save” the language at Stellenbosch University.

On “Indians”, “Africans” and a lack of emotional intelligence

Oct 24th, 2011
by Pierre De Vos.
89 comments

Almost all of us have had a moment (well, probably far more than one moment) when we were asked an impossibly difficult question or were subjected to an arrogant put-down or cutting remark, but we could not think of the witty, incisive or clever retort that would have saved the day for us. Only much later — after feeling the sting of humiliation for a few minutes or hours — would we think of the clever or witty thing we could have said in response to the question or attack.

I would guess that many candidates interviewed by the Judicial Service Commission (JSC) for judicial posts must have kicked themselves after an interview for not being able to provide the killer answer to members of the JSC to deal with the often hostile questions put to him or her.

One would have thought that Judge Isaac Madondo might have had such a moment during his interview before the JSC for the position of KwaZulu-Natal Judge President and that he would subsequently have thought what he could have said to answer the particularly tricky question in a more astute manner. Sadly, he had either not reflected on the matter; or he had, but had not been able to conjure up a more palatable answer.

Judge Madondo was vying for the post along with acting Judge President of KwaZulu-Natal, Chiman Patel. During his interview Judge Madondo told the commissioners that he did not think an Indian candidate would be suitable to fill the position of Judge President. When IFP MP Koos van der Merwe asked him if it was time to appoint an Indian judge president, Madondo replied, without hesitation: “I don’t think so. We still have things to address, imbalances, all kinds of things which need more insight, which a person who is not [a black] African cannot be privy to…. We were oppressed, but not in the same way.”

Now, this was by no means a subtle, carefully thought through or endearing answer. It could easily be read as the cynical deployment of apartheid race categories in a shameless attempt to realise one’s very personal ambitions: playing the race card to get a job one would not have gotten but for the fact that one happened to be African. On its face, the statement suggests that Judge Madondo believes that Indians have not suffered as much as Zulus during the apartheid era and that this meant that a person who used to be classified as Indian during apartheid cannot become Judge President in KwaZulu-Natal today. The impression created is that the judge is a bit of a racial bigot.

Yet, his answer contains a kernel of truth which an agile mind would easily have been able to mould into a more palatable answer without shying away from the fact that our Constitution allows race to be taken into account by those who must decide on the appointment of judges.

A better answer would clearly have been that any person — no matter what his or her race — who is committed to the values enshrined in the Constitution and has the necessary legal skills and leadership abilities and enjoys the support of his or her colleagues would be suitable for appointment as Judge President. One could then have added (pretending to be humble and unambitious) that one believed that as an African with considerable legal experience and a strong commitment to access to justice, one would bring special insights and skills to the job if one were to be appointed by the JSC.

One could have continued to quote section 174(2) of the Constitution, which states that the need for the judiciary to reflect broadly the racial and gender composition of South Africa must be considered when judicial officers are appointed. Noting that race can never be the only criteria taken into account when appointments are considered and rejecting the idea that a person could be disqualified from appointment merely for being an Indian or any other race, one could nevertheless have emphasised the fact that one believed that it was important to give due weight to section 174(2).

One could have added that this did not meant that one believed that every judge was a prisoner of his or her race or gender or that one believed that all women thought the same, all Africans thought the same, or that all Indians thought the same. On the contrary, one could have said, it is racist and deeply demeaning to Africans and Indians (and to men and women) to assume that a person is no more and no less than the sum total of his or her racial or gender identity, to assume that each person has no autonomy to decide for himself or herself how to respond to a particular situation. Nevertheless, one could have added, it cannot be denied that on the whole one’s life experiences and one’s cultural background and one’s religious beliefs would often play some (but not an overarching) role in how one behaved and what kind of manager one might become.

This would have been a perfectly acceptable answer not shying away from the fact that race does and should play some role when considering appointments to the bench. However Judge Madondo did not provide this answer in his interview and neither did he provide a similar answer much later after he had had a chance to reflect on the matter.

I thought, giving the judge the benefit of the doubt, that the crudeness of his original answer and his inability to discuss the complex issue of racial transformation in the judiciary in a nuanced manner may have been excused because of the stress associated with a JSC interview. On reflection he would surely be able to conjure up the better, constitutionally valid, and more subtle answer — as we all do when we are caught out and we have time to reflect on what we might have said.

But to my surprise, this is not what happened, leaving us with the impression that the judge is not capable of producing the more subtle and constitutionally viable version of his answer. In an interview in the Sunday Times, conducted after his remarks had made headlines, the judge made an even bigger hash of the questions put to him. Here is a sample of his responses:

But you don’t think an Indian judge should be JP? No, that’s misquoted altogether.

You were asked if it was time to appoint an Indian JP and you said, “I don’t think so.” Is that what you said? Yes. I stated my reasons.

So that’s an accurate quote? It’s out of context. What I was saying, in terms of the demographics, I don’t think so. Secondly, there are a number of hardships among the people who suffered. A person from another race may not be in a position to know them in the same way as I do. That’s what I was saying. Not because he’s an Indian.

Because he’s not black? No, that’s nonsense. If someone thinks like that, it’s nonsense.

You’re saying that, as an Indian, he doesn’t have the same insight? Do you have an insight of the rural people in the villages? Do you? Unless you have an insight into the way they live and the hardship of their experience …

So should only Zulus be appointed to the bench in KZN? I don’t even want to answer that question because it doesn’t make sense at all.

Wouldn’t only Zulus have that kind of insight? No. I was not saying that. I’m talking about equal representation in terms of the demographics; I was not saying only Zulus must be appointed judges in KZN. That’s nonsense.

It is not clear why insight of rural people will make one a better Judge President. It might well add something to one’s abilities to perform well as a judge dealing with matters normally brought to court by rural people — after all, understanding the lives of those who appear before one may (but does not always) lead to decisions that are wiser and better informed. But a Judge President’s job is mostly administrative in nature and he or she will seldom if ever hear cases in which the litigants are rural village dwellers. The Judge President decides who is allocated which case and ensures the smooth running of his court, but how his African background would make him  better at this job is not immediately clear. If he had the backing of the majority of judges or of all the African judges in his division, this might have been relevant, but he does not so his race could not be relevant in this manner.

In any case the failure of the Judge to provide a credible and nuanced answer to an admittedly tricky question — not once, but twice — leaves one puzzled. Either judge Madondo has very crude views on race and racial transformation or he lacks the emotional intelligence to reflect on and revise his answers for the better. Either way, based on his responses to the JSC and the Sunday Times, it is not clear that he would make a suitable Judge President for the KwaZulu-Natal or any other division of the High Court.

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”.

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