Constitutional Hill

discrimination

FW de Klerk reveals dark underbelly of white South Africa

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

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


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Some thoughts of the rise of traditional leaders

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

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

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

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

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

Murray again:

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

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

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

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

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

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

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

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

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

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

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

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

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

Roundtable on Race-based admissions at UCT

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

Affirming their own moral inferiority

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

A word on identity and classification

Mar 30th, 2012
by Pierre De Vos.
64 comments

This I find strange: In South Africa a serious debate is raging about the classification of people according to their racial identities and the use of those racial categories in legal or other contexts to effect redress. Why not use class instead of race, some people say? Why do we focus on race when we have experienced the harmful effect of past racial classification in apartheid South Africa?

We are on the slippery slope to a fascist state, not unlike that of Nazi Germany, people warn darkly. According to these critics of the use of racial categories in law and in other formal settings, there is something inherently evil and dangerous about classifying people on the basis of race (or about allowing people to classify themselves in terms of their race) and about invoking those classifications to try and address the effects of past and ongoing discrimination and prejudice.

What is strange is that the state and others classify people all the time in various ways, and hardly anybody ever objects to these classifications. Most people embrace different kinds of identity classifications and rely on them to describe who we are — even when these classifications were enforced by the law in the past and have been used to oppress some and advantage others. But somehow hardly anyone ever complains about this or warns about the evils inherent in these classifications — even when these identity categories have often been used to marginalise and oppress groups of people and these categories continue to form the basis of much of the prejudice and discrimination in our society.

Whether these classifications are based on our religion, our sex or gender or our sexual orientation, most of us happily admit that we are heterosexual or homosexual, Muslim or Christian or atheist, male or female. But ask (mostly white) South Africans to classify themselves as black or white and all hell breaks lose.

In South Africa, gay men and lesbians still experience severe forms of prejudice, discrimination and (in some cases) physical violence. People harbour severe prejudices against others because they are Muslims, atheists or (in some cases) even Christians and apartheid South Africa was often decried as a Christian Nationalist State. Discrimination against women were until recently endorsed by our laws and even today sexism is rife in society, leading to discrimination and in some cases to physical harm to women.

To counter this, the Constitution (as well as the Promotion of Equality and Prevention of Unfair Discrimination Act and the Employment Equity Act) prohibits unfair discrimination against anyone based on their sexual orientation, religion or sex and gender. Our courts have said that this means that gay men and lesbians, and woman and religious minorities cannot be unfairly discriminated against and that one should take into account the specific vulnerability of these groups when deciding whether different treatment of these groups constitute fair or unfair discrimination.

However, no one ever shouts and screams blue murder because we have not yet abolished the notion of heterosexuality, of Christianity or of being a man. No one claims that the fact that the law recognises that there is such a thing as a heterosexual or a homosexual means that we are on the slippery slope to Nazism. I have not read any angry letters in the paper because the Employment Equity Act allows affirmative action for women. No one has started a campaign to encourage all people to stop classifying themselves as Christians or Jews or Muslims, as men or women.

Why do people not claim that we are on the slippery slope to Nazism because we have separate toilets for men and women, because we distinguish between men and women in affirmative action legislation, because many people still believe that it is acceptable to treat men and women differently and to ascribe different social rules for men and women?

Surely, if the logic of the absolute danger of racial classification holds, it should be inherently dangerous or even evil to continue classifying people on the basis of identity categories which were used in the past (and continues to be used at present) to perpetuate discrimination and prejudice against certain people? Does this not mean we should stop categorising people as heterosexuals and homosexuals, as men and women, as Christians, Jews, atheists or Muslims? Should we boycott the census because it asks us whether we are male or female, Christian or Muslim?

But yet we do not. There are no angry letters by Mr Bodley-Smith from Fishoek published in the local paper because legal rules and other regulations still classify people as being either men or women. DASO does not make representations to UCT because the application forms still require an applicant to UCT to state whether that applicant is a woman or a man. (I note that UCT’s application form still requires a woman to say whether she is a Mrs or a Ms, not asking of a man whether he is married or not, surely endorsing a sexist practice but yet it is hardly ever commented on.)

Could this double standard be related to the fact that those who benefit (either directly or indirectly) from the classification system based on sexual orientation, sex and gender or religious affiliations be the very people with the social capital and with the economic or political power (the same people who usually write angry letters to the newspaper) in our society? Are so many white people anxious about racial classification because they have lost the power to classify people and have lost the power to benefit from their own racial classification? There is somehow nothing scary about being classified as a Christian or as a heterosexual because Christians and heterosexuals rule the country. White people do not.

Or is something else (also) going on?

Maybe, we do not object to being classified as men or women because we all have intimate knowledge of someone of the opposite sex and the men who (to some extent at least) still control the political and economic system therefore do not harbour unspoken fears about women. If one is a man, one may live with a woman (either because she is your girlfriend or wife), or one may have fond memories of one’s mother.

The same can, of course, not be said in South Africa about people of different races. In South Africa many white people do not have intimate relationships with black people. (Being raised by a black nanny whose surname one never bothered to learn and whose house one never visited does not count.) Moreover, there might be a deeply entrenched but invisible master narrative about race that animates the fears of some white people about being classified in terms of race.

White people grow up with stories of Dingaan’s killing of Piet Retief, of the “evil” Mau Mau who supposedly murdered white settlers in Kenya. We read in the newspapers about black criminals who commit farm murders and invade the suburban homes of white people and feel under siege (even though most violent crime is committed against black South Africans living in townships). Can it be that a deep-seated and irrational fear of black people lie at the heart of this (mostly white) anxiety about racial classification?

It might well be that our world will be a better place if we can manage to become truly blind to (often constructed) differences of sexual orientation, of sex and gender, of religion and of race. But that is not going to happen anytime soon because apart from racial classification, very few people see any problem with the classification of people on the basis of their identity commitments.

Should we therefore not rather stop obsessing about the alleged “evils” of racial classification and rather accept it as a given, but deal with all classifications on the basis that these classifications say little about who we truly are as human beings? (Although these classifications can say much about our relative economic deprivation and our experience of prejudice and discrimination.) Whether somebody is a man or a woman, black or white, gay or straight, a Christian or an atheist, in itself says nothing about what kind of person he or she is or how that person will treat you. These classifications have been invented by humans to put others in boxes and/or to help them make sense of the world. They can be used for evil purposes (the Holocaust, the Rwandan genocide and apartheid being examples of this), but in and of itself these classifications are not the issue.

In others words, is the challenge not for our society to learn to live with difference (constructed or otherwise), to celebrate the differences but to accept that these differences really says nothing about us as human beings. Rather than to pretend that differences (even if these differences are of our making) do not exist, we might do well to begin to learn to manage it.

On corrective measures in the Western Cape

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Why the Traditional Courts Bill might be unconstitutional

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

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

Should we be conferring titles on advocates?

Feb 13th, 2012
by Pierre De Vos.
63 comments

It is often the case that the provisions of a Constitution are drafted in response to a particular set of political, social and economic circumstances. Thus, some post-independence Constitutions contain provisions that specifically respond to the colonial experience and are aimed at eradication objectionable colonial-era practices or the effects of such practices.

For example, in response to the British class system imposed on India during colonial rule and as a symbol of the Constitution’s egalitarian ambitions, section 19 of the Indian Constitution (in its Bill of Rights) prohibits the Indian state from conferring titles – except for military and academic titles – on any citizen. It also prohibits Indian citizens from accepting any title from any foreign State.

South Africa’s Constitution did not go as far as the Indian Constitution and, in this small respect, is less egalitarian than its Indian cousin. Although our Constitutional Court has found (in the Hugo case) that the Constitution had abolished the notion of Royal prerogative powers (which was inherited from the British constitutional system and used to be exercised by the State President), our Constitution does contain a set of codified powers entrusted to the President by section 84(2) of the Constitution. Many of these powers are similar to the prerogative powers previously held by the State President before 1994. However, in our constitutional dispensation there are no powers derived from the Royal prerogative which are conferred upon the President other than those enumerated in section 84(2) of the Constitution.

Section 84(2)(k) of the Constitution states the President is empowered to “confer honours” on those deserving of it. Our Constitution therefore allows the President to confer honours (like the Order of the Baobab or the Order of Luthuli) on individuals who have rendered exceptional services beyond the ordinary call of duty in a particular field or to the nation as a whole.

Last week, in the case of Mansingh v President of the RSA, the North Gauteng High Court in a judgment authored by Phatudi J, had to decide whether this section authorised the President to confer the title of Senior Counsel (also popularly known as SC or Silk) on practicing advocates. This power to confer the status of silk on advocates used to form part of the Royal prerogative powers of the head of state. Members of the Bar must apply for this “honour” and their silk status is reliant on the Bar Council approving their application. Once they become silks they can charge higher fees for their services and, so it is argued, they also obtain a higher status among their colleagues.

The crisp legal question that had to be answered in this case was whether the provision in section 84(2)(k) of the Constitution empowered the President to confer silk status on “deserving” advocates.

But behind this legal question lies a policy question with profound political implications, namely whether it is advisable to retain a system of honours for advocates that might exclude many women and black South Africans from achieving the same professional status as the most exulted members of the Bar.

Bear in mind that members of the advocates’ profession themselves, in effect, select those advocates to be “honoured” with the status of Senior Counsel in accordance with rather vague criteria. Does this system in essence play a gatekeeper role? How many women and how many black South Africans have been “selected” to be “honoured” in this manner and which criteria were used to select them? Is it still tenable in a constitutional democracy to perpetuate a system of honours which harks back to our colonial past? Should we not rather follow the Indian example and abolish all these kinds of honours bestowed on a select group of people to bring our practices in line with the egalitarian spirit of the Constitution?

The judgment did not engage with these policy questions but focused on the meaning of section 84(2)(k). The applicant argued that the phrase “conferring honours” under section 84(2)(k) of the Constitution could not include the conferring of silk status on some advocates because it in effect resulted in the bestowing of a privilege on some people who did not earn it. Secondly, she argued for a narrow interpretation of honours to include honours for which one cannot apply but is bestowed on one by the President entirely based on a discretion exercised by him.

The court looked at the application procedure used by the Johannesburg Bar Council and noted that candidates are invited to apply for silk. The applicant must discuss his/her proposed application informally with the Leader of the Bar. The Bar council considers the application based on the candidate’s practice which should consist of good quality work. If the application succeeds, the Chairperson of the Bar discusses the recommended application(s) with the Judge President. If the Judge President approves of the application(s). He forwards the recommendation to the Minister of Justice and to the President who then formalises the appointment as silk.

As Phatudi J remarked, this process looks very different from the process followed with the conferring of normal honours like the Order of Luthuli or the Order of the Baobab:

Given these facts Phatudi J agreed with the applicant that there was a difference between a conferral of honours such as the Order of the Baobab (for which one cannot apply) and the conferring of the status of silk. The Order of the Baobab, for instance, is awarded to South African citizens for services distinguished beyond the ordinary call of duty. It is an “honour” awarded for exceptional and distinguished contribution in community service. I am reluctant to accept that the framers of our autochthonous Constitution were comfortable that the President is empowered in terms of section 84(2) (k) to confer the status of senior counsel on practising advocates.

Are the services and contributions made by practising advocates exceptional or beyond the ordinary call of duty that warrant an award of the status of senior counsel? Can an award of the status of senior counsel be equated with, for instance, Order of Luthuli or Order of the Baobab, the latter being awarded to South African citizens with distinguished service that is way above or beyond the ordinary call of duty?

If one assumes that an advocate has acted above and beyond the ordinary call of duty because he or she has charged very high fees to clients and represented them well in court, then the President might be viewed as having the constitutional authority to confer this honour of silk on them. If, however, one believes that advocates have merely done what others have done, namely to make a living as well as they could while raking in the money, then the Constitution may well be viewed as not conferring this power on the President.

Given the fact that unlike the Indian Constitution, our Constitution does not prohibit a citizen from being awarded a special title, the President might well have had the power to confer silk status on advocates if this power had been granted to him in terms of other legislation. However, there is no legislation, including the Admission of Advocates Act 74 of 1964 (Advocates Act) that empowers the President to institute, constitute and award the status of senior counsel to practising advocates or any legal practitioner who has displayed “good quality work” to the legal profession. The term “Senior Counsel” is not even defined in the Advocates Act. The term only appears in section 8A that provides that ‘[t]he President may at the request of any person appointed as a Senior Counsel of the Republic while in the service of the State, withdraw such appointment, and thereupon such person shall revert to the status which he had as an advocate immediately prior to that appointment’.

The judgment will now have to be confirmed by the Constitutional Court before it has any legal effect as it deals with an act of the President. If that court confirms the judgment, legislation may well be passed to allow the President to continue to confer this status on advocates. Such legislation might well have to contain more detailed and precise criteria for the conferral of this status to subject this practice to the disciplining power of the constitution which is supposed to establish a culture of justification – also in the legal profession.

But ironically, if the Constitutional Court confirms this judgment and no legislation is passed to allow for the continued conferral of the status of silk on advocates, those advocates who were made silk before 1994 would retain their status while those who were made silk after 1994 would lose their status. This would mean that those who obtained status of silk before 1994 would probably become even more sought after and they would be able to charge even higher fees than they currently do. Whatever happens, this judgment represents the start of the conversation about the conferral of professional titles on lawyers – not the end of that conversation.

Spinning out of control

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Silence = Death

Feb 2nd, 2012
by Pierre De Vos.
73 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.

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