2001 Netherlands
2003 Belgium
2005 Spain
2005 Canada
2006 South Africa
2008 Norway
2009 Sweden
2010 Portugal
2010 Iceland
2010 Argentina

When the South African Parliament, following a judgment of the Constitutional Court, legalized same-sex marriage in 2006, many people argued that it would spell the end of marriage as we know it. Some also argued that it represented a full frontal attack on marriage as an institution and that it would lead to the eventual destruction of marriage.

I never understood this argument. I have never met anyone who has said: “Well, now that gay men and lesbians can get married, I think it is time to divorce my spouse.” Neither have I heard anyone say: “Well, I was going to get married, but now that the homosexuals have spoilt it for the rest of us by organising such fabulous weddings for themselves, I have decided I will rather continue living in sin with my girlfriend.”

The argument that marriage is essentially focused on procreation also makes no sense. As the Constitutional Court pointed out, this argument – if followed to its logical conclusion – would suggest that heterosexual couples who do not plan to have children or cannot have children – either for medical reasons or because they are too old – should then also not be allowed to get married. (And, besides, many same-sex couples do procreate with the assistance of others, so the very premise of the argument is factually incorrect.)

The truth is, of course, that the movement for marriage equality is a conservative one. Its aim is to “normalise” same-sex love and desire and to demonstrate that same-sex couples can basically be just like heterosexual couples. We fall in love, we fight, we have children, we marry, we fight some more, we divorce and sometimes – just sometimes - we live happily ever after. If one is truly conservative and truly revere marriage and monogamy (which, some studies show, is a rather difficult thing to achieve in a long term relationship), one should support same-sex marriage.

But this many conservatives cannot do, because then they will have to let go of their prejudices against gay men and lesbians. And as we know too well, for many people nothing is more precious and more jealously guarded than their own prejudices.

For progressives, the issues are more complex. Obviously, given the fact that marriage still bestows on couples both the full package of legal rights as well as an elevated status in society, marriage should be open to all consenting adults. To hold otherwise would be to discriminate against a group of people for no other reason than because of the moral or religious views of a majority of citizens. It would signal that the state does not believe that the group has the same inherent human dignity than everyone else in society – which is not tenable in a constitutional state.

But marriage is also problematic because it provides special rights for those who have managed to tie the knot. Many people do not want to get married (seeing that it is still associated with patriarchy and the oppression of women) and many others cannot marry because they are the financially and/or emotionally weaker person in the relationship and their partner refuses to marry them.

This refusal is often based on emotional callousness, fear of commitment, or financial considerations. But regardless the reasons, the fact remains that the less empowered partner has no say in the decision at all. Such couples do not enjoy the same status or the same legal protection as married couples do – despite living in relationships that look very much like traditional marriages – and the vulnerable party in such a relationship is therefore not fully protected by the law.

Last year the government tabled a draft domestic partnership Bill to try and address this problem, but nothing has come of it. Perhaps with that serial divorcee and ex-body-builder, Ray McCauley, cozying up with one of the greatest believers in marriage (if not monogamy), President Jacob Zuma, it is not surprising that this Bill has not been taken forward.

The Bill, if it is ever passed, would be bad news for all those men who have girlfriends and do not marry them (either because they are already married or because they do not want to commit themselves emotionally and financially to one person) as it would create some legal rights and duties for people involved in such relationships. Men who have many girlfriends would fear such a law as they would have to start paying up. And it is not every man who wants to be the boyfriend of Khanyi Mbau (or can afford to be).

Christine is a transgendered person because she was born into the body of a man but realized that she was really a woman and is now altering her body to bring her body in line with her own deeply held view of her sexual status. She claims in court papers that she was fired as a sales representative for the company “on the grounds of her sexual status”. In the papers, she quotes from the findings of a disciplinary inquiry which justified her firing as follows:

It was also determined in discussion with management that the position is distinctly for a male employee and the applicant (Ehlers) [has] already got distinct female features that create a difficult situation…. In the end, the employer has to protect its business and may demand a certain standard of acceptability from its representatives in relation to its customers. I find myself in a difficult situation in that the employee argues that she can still function in the exact same manner as she would have as a man. The employer argues, on the contrary, that it is an international concern that has to protect its image in the market in the metal industry, which is predominantly male-orientated.

Well, this argument is not constitutionally tenable. Section 9(3) of the South African Constitution prohibits unfair discrimination on the grounds of sex, gender and sexual orientation. In the case of National Coalition for Gay and Lesbian Equality v Minister of Justice the Constitutional Court stated that the concept of “sexual orientation” as used in section 9(3) of the 1996 Constitution “must be given a generous interpretation” and thus applies equally to the orientation of persons who are “transsexual” (another, less politically correct, term for transgendered). Christine was thus obviously discriminated against on the basis of her sexual orientation.

But she was also discriminated against on the basis of her sex and/or gender as the job she was doing – as a sales representative – was explicitly reserved by the company for men only. This was not done on the basis that only men could possible do the job (as would have been the case, say, if the job entailed playing for the Springbok Rugby team), but rather on the basis that its customers would not like it if women tried to sell them the company’s products. Her employment as a sales assistant had “compromised the image” of the company in the industry.

Boy what a bigoted industry that must be!

Of course women can also sell stuff – including heavy machinery and other products usually associated with the male world (my car was sold to me by a fantastic woman called Heather) – but the company felt that the customers would not want to buy heavy machinery from a woman, especially (so it seems) not from a woman who used to be a man.

South African Airways used a similar argument after a man who had been accepted for employment as a cabin attendant by SAA, challenged a decision by SAA not to employ him when they discovered that he was HIV positive. In a beautifully written judgment by our present Chief Justice, Sandile Ngcobo, the Constitutional Court rejected this argument by SAA, stating that:

Legitimate commercial requirements are, of course, an important consideration in determining whether to employ an individual. However, we must guard against allowing stereotyping and prejudice to creep in under the guise of commercial interests. The greater interests of society require the recognition of the inherent dignity of every human being, and the elimination of all forms of discrimination. Our Constitution protects the weak, the marginalised, the socially outcast, and the victims of prejudice and stereotyping. It is only when these groups are protected that we can be secure that our own rights are protected….

Prejudice can never justify unfair discrimination. This country has recently emerged from institutionalised prejudice. Our law reports are replete with cases in which prejudice was taken into consideration in denying the rights that we now take for granted. Our constitutional democracy has ushered in a new era – it is an era characterised by respect for human dignity for all human beings. In this era, prejudice and stereotyping have no place. Indeed, if as a nation we are to achieve the goal of equality that we have fashioned in our Constitution we must never tolerate prejudice, either directly or indirectly. SAA, as a state organ that has a constitutional duty to uphold the Constitution, may not avoid its constitutional duty by bowing to prejudice and stereotyping.

If Bohler Uddeholm Africa had been aware of these precedents, it would not have justified the firing of Christine on the basis that its customers wanted to deal with “real men” – which precluded them from employing women as salespersons (whether those women used to be men or not). Given that it has done so, it is almost certain to lose its case in the Labour Court.

Here, being a man was not really an inherent requirement of the job as any woman with the requisite skills could also sell the company’s products to customers. The fact that customers would prefer not to deal with a certain salesperson because that salesperson is a woman (or black, or gay or a Muslim, for that matter) was therefore always legally irrelevant and could not be used to justify the discrimination. As Justice Ngcobo said: prejudice – even the prejudice of one’s customers – cannot ever justify discrimination. “Finish and klaar,” as Jackie Selebi might or might not have said if confronted with this case.

Incidentally, South Africa has one of the most progressive pieces of legislation dealing with transgendered citizens. The Alteration of Sex Description and Sex Status Act of 2003 allows anyone whose “sexual characteristics” have been altered by surgical or other medical means (or anyone who is intersexed) to apply for a change of their sex status with the Department of Home Affairs.

The definition of sexual characteristics in the Act is extremely broad and one needs not have concluded the surgical process of altering one’s body completely from male to female or from female to male to qualify in terms of the Act to have one’s sex status hanged. As long as one has started the process of transferring from a man to a woman or from a woman to a man (and as long as the technical requirements prescribed in the Act are met), the Department of Home Affairs must issue you with a new ID book and passport recording your newly acquired sex.

This Act was necessary to protect the human dignity of transgendered and intersected individuals who previously had to endure terrible trauma when, for example, traveling to another country on a passport that still reflected your previous sexual status. By passing this law our Parliament did a great and progressive thing – not waiting for our Courts to force them to do the right thing.

Good for them. Now, Christine, give those men hell!

It has been several months since the Judge President has done anything controversial, reactionary, ethically dubious or even newsworthy. Meanwhile, Ngobeni has seemingly been too busy giving the Minister of Defense bad legal advice to call me a racist and a pervert or to utter spluttering denials about ever having been disbarred as a lawyer in the USA.

Oh, how I miss our very own Tweedledum and Tweedledee!

Of course, several legal challenges are in the pipeline to try and overturn the absurd and illogical decision on Hlophe by the Judicial Service Commission (JSC) last year, so we might still hear from Tweedledum and Tweedledee in the next few months. The JSC, as you might recall, decided to avoid any investigation of the complaint lodged by the judges of the Constitutional Court against the Judge President, because such an investigation would have forced the JSC to decide whether Hlophe or the judges of the Constitutional Court were lying through his/their teeth. If there was one thing the JSC wanted to avoid at all cost, it was discovering the truth.

Nevertheless, now that the dust has settled somewhat, it might be appropriate to reflect on why the JSC made their patently absurd and indefensible decision and why the case seemed to have split the legal community, largely along racial lines.

The first question seems the easiest to answer. A political decision was taken by the Zuma administration to protect Judge President Hlophe – perhaps because he was accused of trying to protect Zuma and he was being rewarded for his zeal and initiative in protecting the Dear Leader from criminal prosecution. (Not that it was necessary, what with the National Prosecuting Authority doing the protection.) The JSC was thus loaded with pro-Hlophe supporters by President Zuma, which enabled a majority of its members to avoid making a finding that either Hlophe or the judges of the Constitutional Court were liars.

The second question is more perplexing. Why did seemingly good people (I am not including the opportunists, charlatans and crooks who came out to bat for the Judge President) keep quiet or offered support for the Judge President? Why were they almost exclusively black, while those who insisted that the truth be determined were almost exclusively white? Why did the tactic deployed by Hlophe and his storm troops to racialise the issue (despite the fact that the overwhelming majority of accusers were black themselves) succeed so brilliantly?

I suspect the answer to this question has much to do with the lack of racial transformation of the legal profession and the consequences of a particular legal culture that exacerbate racial divisions. More than 80% of practicing advocates and attorneys are still white (and in Cape Town this percentage must surely be much higher). Moreover, lawyers (of all races – Seth Nthai hi there!) are notoriously egotistical and arrogant and ready to gossip about, and belittle, their fellow lawyers. They love to snigger about the stupidity and ignorance of colleagues and of judges and often do so in a sneering and sarcastic manner.

In the absence of a fundamental change in briefing patterns, many white attorneys still only brief white advocates with whom they grew up, went to university with or drink and play golf with. Some of these advocates are brilliant and some are rather mediocre but in a kind of reverse affirmative action the mediocrity is overlooked while the potential brilliance of young black advocates are sneered at or dismissed. This is unjust and scandalous, but because of the way in which the legal profession is structured it is not easy to change.

Let’s face it, if you are a brilliant young black lawyer starting at the Cape Bar, your chances of being briefed by anyone but the state lawyers is rather slim – unless you have demonstrated that you are a good coconut and is white in all but skin colour. Judge President Hlophe did not create the racial divisions in the legal profession – he merely skillfully exploited it for his own selfish gain.

In this kind of atmosphere, it was very easy for Judge President Hlophe and his cronies to appeal to racial solidarity or to silence some black members of the legal profession, who feared they might be associated with the racists and the anti-transformationists in the legal profession or might alienate their potentially biggest client – the state. Support for a full investigation of Hlophe was seen as support for the sneering and arrogant white lawyers who make cynical jokes about the intellect and ability of even the brightest and most brilliant black advocates and judges.

One therefore had to be exceedingly brave and strong (or perhaps foolhardy) to be a black lawyer supporting a full investigation of the serious allegations against Hlophe.

So, while I have been a sometimes harsh critic of Judge President Hlophe and his cronies, I would argue that the disastrous turn of events, which led to the failure of the JSC to investigate the various allegations at all, can at least partly be blamed on white lawyers who have not always shown the necessary understanding for the urgent need to transform the legal profession. Is the legal profession doing enough to change briefing patterns and to transform the legal profession? Surely not. And if they do not take drastic action on this front, the legitimacy of the legal system and of the judiciary will be further imperiled.

When a white judge makes scandalously patronizing statements about black judges or lawyers, white lawyers and judges must speak out. And when a black judge acts in a way that suggests he or she is a crook, black lawyers must insist that he or she should be fully investigated.

But at the moment this does not seem to happen as racial solidarity seems to trump everything. The more transformed the legal profession becomes, the easier it would become for the good men and women of all races to stand up and insist on the upholding of high ethical standards in the profession and in the judiciary.

When this happens, a lawyer or a judge who is accused of taking a bribe, of drinking one cup of “tea” too many, or of scandalously overcharging clients will not be able to garner support from a block of lawyers merely because he or she belongs to the same race.

Until then we will have to cope with the antics of the Tweedledums and Tweedledees of this world.

Later I discovered that some of the ideological underpinnings of the Roman Dutch common law were rather suspect, what with its radical assumptions about freedom of contract and a predisposition to favour the powerful and the propertied classes above all others. At the same time it dawned on many that, for better or worse, millions of South Africans lived much of their lives in terms of customary law.

The official view on customary law has thankfully now changed, as the status of customary law in South Africa is constitutionally entrenched. Section 211 of the Constitution provides that the institution, status and role of traditional leadership are recognised subject to the Constitution. As the Constitutional Court has made clear in the case of Alexkor v Richtersveld Community, customary law must now be regarded as equal with the common law and as an “integral part of our law” and “an independent source of norms within the legal system.” Like any other source of law, customary law has a status that requires respect. Customary law must also not be judged through the lens of the common law.

But what happens if traditional customary law rules – interpreted and applied in its proper context and not with reference to the common law – conflicts with other provisions in the Bill of Rights? This question came to mind when I read about claims by Princess NomaXhosa Sigcawu from the East Cape that she had been overlooked to lead the AmaGcaleka Kingdom and that this was unconstitutional. 

NomaXhosa said her mother, Queen Nozizwe, had been her father (King Zwelidumile Sigcawu’s) senior wife.  Because she had been a baby when he died, King Xolilizwe, her older brother from another mother, had been made king.  When King Xolilizwe died in 2006, one of his sons, Mpendulo, took the throne. The Princess claims that this move – based on the customary law rule in that community that only the oldest male heir could become King or Chief – discriminated against her on the basis of her sex or gender.

This case differs from the case of Shilubane and Others v Mwamitwa, where the Constitutional Court recognised the fact that a traditional community itself could change the rules to allow the female children of chiefs to take up the reigns, despite a previous custom that only the oldest male child could do so. This is because in the case of Princess Sigcawu, the community had not changed the custom and is resisting her attempts to become the Queen.

Commenting on the case, Chief Patekile Holomisa, Congress of Traditional Leaders of South Africa (CONTRALESA) president, said custom dictated who should be a royal leader. “Legitimacy of ubukhosi is derived from custom, not from the Constitution and the Bill of Rights,” he said, referring to kingship. “It is not automatic that a woman as the first-born is a successor. If a traditional council decides to go against the custom, the court can allow that, but we do not accept it.”

As the Constitutional Court makes clear, this view by the President of CONTRALESA is not sustainable. Several provisions in the Constitution affirm that – like common law – customary law is now subject to the Constitution and cannot contravene the Constitution. Moreover, although Courts should try and respect the right of communities that observe systems of customary law and should try and respect their right to develop their law as they wish, where a custom discriminates against women or infringes on the rights of individuals, a court had a duty to declare that custom unconstitutional and to amend it.

There is a serious debate raging in academic circles and also amongst judges on how to deal with this issue. On the one hand, courts – especially the Constitutional Court – is acutely aware that customary law has been disregarded and disrespected in the past and that courts should now recognise the fact that customary law is a living law that can change over time. It is not the rigid and inflexible system of fossilised rules, written down by white colonialists and enforced by white judges during the apartheid era, and courts should be sensitive to this and, where possible, should allow the customary law to be develop by the relevant community themselves.

On the other hand, the courts have a duty to develop customary law rules to bring them in line with the spirit, purport and object of the Bill of Rights. Where customary law rules discriminate against women, they must be developed or declared unconstitutional. As the Court said in Shilubana:

courts must be cognisant of the fact that customary law, like any other law, regulates the lives of people. The need for flexibility and the imperative to facilitate development must be balanced against the value of legal certainty, respect for vested rights, and the protection of constitutional rights.

Whether a court will show deference to customary law and wait for it to develop organically, or whether it will intervene will depend on several factors.  These factors would include:

the nature of the law in question, in particular the implications of change for constitutional and other legal rights; the process by which the alleged change has occurred or is occurring; and the vulnerability of parties affected by the law.

It is clear that a customary law rule that prohibits women from becoming traditional leaders like chiefs or queens, unfairly discriminates against women. It is based on patriarchal notions about the “proper” roles of men and women in society and is often justified on the basis that a chief or a king can only become one if he was fathered by a chief or a king. As women cannot father any children, they cannot and should not become chiefs or kings.

This view perpetuates the notion that men – because they father children – have a higher status in society than women. Although very few women will therefore directly be affected by this customary law rule (as very few women are actually the daughters of chiefs or kings), the rule would have far-reaching consequences for many women living in traditional communities exactly because it is based on patriarchal assumptions about the general subordination of women to men and because it reinforces and perpetuates this subordination.

I would therefore argue that in this case, the court should not wait for the community to develop the customary law rule to bring it in line with the requirements of gender equality, but should intervene (if asked to do so) to declare this customary law rule unconstitutional.

This is a pressing problem for another reason. There is a dirty little secret at the heart of traditional leadership which is never spoken about or acknowledged by Contralesa. The fact is that many traditional communities are controlled by Chiefs who were appointed as proxies of the apartheid government to exercise control on behalf of the apartheid state and they will not want to diminish their power and prestige by amending customary law rules to recognise gender equality. The very system of traditional leadership has been completely subverted by colonialism and apartheid and is far removed from the kind of benign system which made King Moshoeshoe such a revered leader more than hundred years ago.

Maybe it is time to recognise that our whole system of traditional leadership as it has evolved, is deeply problematic and not really compatable with a system of democratic governance. On the one hand one is acutely aware of the need to respect the traditional beliefs and cultural practices of millions of South Africans whose way of live was so fundamentally circumscribed and for ever changed by colonialism and apartheid.

On the other hand the system of customary law and of traditional leadership has been fundamentally subverted and corrupted by the colonial authorities and the apartheid state – often (but not always) with the collusion of traditional leaders. Some Chiefs or other traditional leaders do not always act in the best interest of the community and according to rules of customary law that protect everyone in the community as a member of the community.

Such unscrupolous and unelected leaders often borrow from customary law those parts that suit them and then also rely on common law or statute law rules based on a more individualistic view of the world in order to subvert the very system of rules which organised communal living, which (it could be argued) used to operate for the benefit of all. Instead many traditional leaders now act to cement their own hold on communities and to enforce completely unacceptable and bastardised forms of customary laws on their subjects. This leads to much hardship and suffering on the part of their “subjects” and seems to be in conflict with principles of democracy and the demand for respect of the inherent human dignity of all.

Maybe it is time for the government to return to the original policies regarding traditional leadership adopted by the ANC when they were still in exile and to do away with the undemocratic and often oppressive system of traditional leadership. I suspect this will not happen, but I also suspect customary law will only be able to take its rightful place as an equal and important body of law alongside the common law – as required by the Constitution – when traditional leadership structures are fundamentally reformed and democratised. The current system is undemocratic and (often) oppressive and has no place in a Constitutional democracy. 

It was therefore not surprising when South Africa abstained from endorsing the first ever statement on Human Rights, Sexual Orientation and Gender Identity (which was backed by 66 states including six African countries) read at the United Nations General Assembly at the end of 2008.

The latest outrage came this week when the South African representative to the United Nations Human Rights Council (UNHRC), Jerry Matjila, refused to support efforts at the UN to protect gay men and lesbians against discrimination. The council was discussing a report of the Special Rapporteur on Racism, Githu Muigai, of Kenya, which said that “the identity of each individual is made up of a multitude of components, such as gender, age, nationality, profession, sexual orientation, political opinion, religious affiliation and social origin”. Replying later in the debate, Matjila said the rapporteur’s inclusion of sexual orientation “demeans the legitimate plight of the victims of racism”.

To its credit, the Democratic Alliance – via a statement issued by Kenneth Mubu, a DA MP – deplored this cowardly and reactionary position taken by the South African government and made the following telling point:

In the wake of the recent events in Malawi and Uganda, South Africa’s rejection of the inclusion of sexual orientation as a means of discrimination seems like an act of appeasement to certain African countries with poor human rights records, rather than taking the principled position, and setting an example on human rights which other African states could look to.

Mr. Matjila’s objection and the reasons given for it, display a rather shocking lack of respect for human rights and the values enshrined in our Constitution. His view also endorses a rather formalistic and very limited understanding of discrimination that cannot be squared with the expansive view regarding discrimination endorsed by our Constitution as interpreted by South African courts or by international human rights bodies and experts.

If Mr Matjila really believes that linking sexual orientation discrimination with racial discrimination demeans the victims of racial discrimination, he is obviously a bigot and a homophobe. His view can only be sustained if one believes that there is something inherently shameful or disgusting about being gay or lesbian and that the victims of racial discrimination would therefore be somehow tainted by being associated with the plight of a small and vulnerable minority persecuted in many parts of the world.

If this view is shared by the South African government and of our President, then our government has been highjacked by a group of reactionary, hateful, bigots. If it is not a view shared by our government, it has a duty to clarify its position. As it stands, it is very difficult not to conclude that the government has turned its back on gay and lesbians in South Africa and elsewhere in the world, and that it has endorsed the views espoused by religious hate-mongers and fanatics – the Sarah Palins of the USA and the Yoweri Museveni’s from Uganda, amongst them.

Do we really want our government to become bedfellows of such unsavory characters?

The stance of the South African government is also in conflict with the accepted principle – endorsed by our constitutional text as well as international human rights bodies – that discrimination on different grounds often intersect and that it can only be rooted out if this intersectionality is recognized and addressed.

Individuals are often discriminated against for more than one reason, which makes the discrimination suffered by the victim so much more egregious. A black woman, say, will often experience discrimination both because she is a women and because she is black. It is now widely accepted that a failure to recognize this fact can lead to a masking of some kinds of discrimination and can lead to the endorsement of certain types of discrimination against a vulnerable group.

This is why section 9(3) of the South African Constitution prohibits anyone from discriminating against somebody “on one or more grounds”. One can therefore allege that one has been discriminated against on several grounds, which prevents a court from turning around and saying, well, you claim to have been discriminated against because you are a woman, but you were really discriminated against because you are black, so you lose your case.

It is impossible to compartmentalize the kinds of discrimination suffered by victims (as the South African representative was trying to do) because the degree of the harm suffered by victims often depend on a multiplicity of factors. The cumulative effect of such overlapping discrimination can often be harsh or even deadly – as the family of Banyana Banyana player, Eudy Simelane – who was raped and murdered because she happened to be a black lesbian – can all too tragically attest.

The Report by the Special Rapporteur on Racism was obviously recognising this problem, but the South African representative was either too reactionary or utterly lacking in understanding of the real life nature of discrimination, to recognize or accept this. It is bitterly ironic that a representative from South Africa, a country with a long and sickening history of treating some people as second class citizens because of one or more attributes or characteristics, has displayed such ignorance about the way in which discrimination operates in real life.

It might be that Mr Matjila is a lovely and caring person with love in his heart and that he was merely saying such reactionary and ignorant things because of instructions from Pretoria. It might also be that those who sent the instructions from Pretoria are deeply committed to equality and abhor discrimination of any kind, but have decided to act in this unprincipled and immoral manner, denying the human dignity of a section of the worlds population, in order to gain some diplomatic advantage with tyrants and dictators elsewhere in Africa.

That, however, would not excuse the impugned behavior. It would be up there with the actions of Ronald Reagan and Margaret Thatcher who supported the apartheid government because of strategic reasons. The ANC rightly lambasted those leaders at the time and pointed out that history would judge those leaders harshly for their cowardice and immorality. History, similarly will judge the South African government – who used to support the rights of gay men and lesbians – harshly for trowing a vulnerable and marginalized group to the wolves. Whether it was done because of bigotry or because of pragmatic considerations, it remains shocking and unacceptable.

the bars in Hatfield, Pretoria/Tshwane, who during the world cup are selling drinks to Afrikaans speakers for R18 and to other persons for R55, however with the option for non-Afrikaans speaking South Africans to buy a loyalty card for R50 and get the same benefit. Would this not be in contravention of section 9 (4), cf. (3), of the Constitution according to which “No person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of subsection (3)” Subsection (3) mentions language.

Well, when an individual or private concern like a Bar is alleged to have discriminated against anyone else, then the easiest and most direct way to deal with the matter is to apply the provisions of the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA) – the same Act that prohibits hate speech.

Section 6 of that Act prohibits the state or any person (including a Bar) from unfairly discriminating against anyone on the basis of any prohibited ground, including race, sex, gender, disability, sexual orientation, language, social origin or culture. Any discrimination inquiry in terms of PEPUDA has two steps. First, one must determine whether there was discrimination on a prohibited (or related) ground, then, second, one must determine whether the discrimination was fair or unfair. Only unfair discrimination is unlawful.

The Act makes clear that if a non-Afrikaans speaking patron at the Bar in question can show that the Bar had imposed  any rule or practice which resulted in the withholding of a “benefit, opportunity or advantage” from any person on the basis of his or her language, that Bar would indeed have discriminated against those who were not given the benefit.

Here it is pretty obvious that the Bar charges different prices based on the language spoken by a patron. Even though non-Afrikaans speakers can buy a membership card to get the same benefits, they are still treated differently and the Bar is thus withholding some benefits or advantages from them based on their language. Given the fact that most black South Africans are not Afrikaans speakers and the rule would therefore disproportionately affect black people, the discrimination may also be found to have occurred on the basis of race. Such a Bar is thus clearly discriminating against non-Afrikaans speakers.

But not all kinds of discrimination are unfair and hence unlawful. A standard example of “fair” discrimination would be the rule that blind South Africans or South Africans younger than 18 cannot obtain a drivers license. They are clearly being discriminated against on the basis of age or disability as the law withholds the benefit of driving a car from them, but because there is a legitimate and rather important reason (namely road safety) for this discrimination, it is not considered unfair and hence is not unlawful.

Once one has shown that one has been discriminated against by the Bar – as was clearly the case here – then the Bar has the onus of proving that its discrimination was fair. Factors that can be taken into account to prove the fairness of the discrimination are:

(a) Whether the discrimination impairs or is likely to impair human dignity;
(b) the impact or likely impact of the discrimination on the complainant;
(c) the position of the complainant in society and whether he or she suffers from patterns of disadvantage or belongs to a group that suffers from such patterns of disadvantage;
(d) nature and extent of the discrimination;
(e) whether the discrimination is systemic in nature
(f) whether the discrimination has a legitimate purpose;
(g) whether and to what extent the discrimination achieves its purpose;
(h) whether there are less restrictive and less disadvantageous means to achieve the purpose;
(i) whether and to what extent the respondent has taken such steps as being reasonable in the circumstances to address the disadvantage which arises from or is related to one or more of the prohibited grounds; or accommodate diversity.

The heart of the matter is an inquiry into whether the discrimination has a legitimate and important purpose and if it has, whether this can justify the unfair discrimination, given the seriousness of the discrimination and the impact it has on those discriminated against. Is the discrimination perpetuating past patterns of discrimination or addressing such patterns of discrimination? In this case, there can be no legitimate purpose for discriminating against non-Afrikaans speakers for the following reasons.

The Bar is open to the public. It is not a cultural club where speaking Afrikaans would be a prerequisite for membership. Afrikaners is not a group that has previously been discriminated against and Afrikaners would be hard pressed to argue that because of the overwhelming animosity and hatred towards Afrikaners in Hatfield they have a right to a safe space where they will not be vilified and intimidated by a prejudiced and hateful majority.

The only reason for the rule would be to provide a benefit to one group because of either prejudice or a desire to exclude others based on their language or race (as it is rather probable that the “others” the Bar wishes to exclude would be black South Africans). The purpose of the discrimination is therefore to discriminate, and that can never be a legitimate purpose to justify discrimination.

The position might be different in a gay Bar as gays and lesbians have been previously discriminated against, form a small and vulnerable minority and have a legitimate interest to congregate in a safe space where they will feel protected from the homophobia and hatred of the majority.

So, if this is indeed happening, I am pretty sure that the Bars are unfairly discriminating against non-Afrikaners on the basis of language (and perhaps race). If one were to take any of these Bars to the equality court one will easily win one’s case. In my opinion this is not a close call at all. The discrimination is so obvious and blatant that it is clearly unlawful.

Give them hell.

Little did I realize then that one day I, too, would have to write about toilets.

However, the toilets I have to write about are not situated in the South of France, but in the Makhaza area of Khayelitsha. The DA city council had erected these toilets almost three years ago but, so they claim, they could only afford either to build one walled toilet for every 5 households or to provide each household with a toilet without the walls. When it came to light that the DA had built these toilets without walls, the city councils got a big fright because it suddenly realized how callous this looked and arranged for the toilets to be partitioned off.

The ANC Youth League in the Western Cape understood that the bare toilets were a potent symbol of neglect and even racism and could be used to mobilize voters, so its members tore down the partitions, leaving the poor residents exposed again. Asked what right they had to destroy structures when residents had agreed that the city should fix its mess, Ward 95 Development Forum leader Andile Lile said a community meeting on Sunday had decided to reject the enclosures. ”We’ve been given a mandate by the community to fight against this,” he said.

Pressed about the fact that residents had signed an agreement and had a right to choose, Lile said: “I believe in majority rule. It must be a principle position for all of us here and not for individuals. The majority does not want this and we cannot accommodate individuals who betray us.”

“We are going to destroy everything and make the city ungovernable,” ANCYL Dullah Omar regional secretary Loyiso Nkohle said on Tuesday in response to the toilet saga. ”We are calling on all youth to do this [vandalise the city], especially those living in informal settlements.”

To me this disgusting saga can be viewed as a metaphor for so much that is wrong with our politics and our society.

First, the DA city council has a lot to answer for. A city that spends millions of Rands every year on trimming the hedges and raking and gathering the leaves in the streets of leafy white suburbs (not to mention the billions spent on the World Cup Stadium and the park next to it) and then claims it has no money to provide poor black residents with one of the most basic and relatively cheap amenities required to live a life with even a semblance of human dignity, is not a city that cares about all its citizens.

It is not as if the city had to choose between building proper toilets and keeping the water purification system going, the streets free of pot holes and the street lights working. Cape Town is not Johannesburg: the streetlights work, the roads are well maintained and, at least where the tourists go, it is relatively clean. It had enough money for all these things and to provide the residents of rich suburbs with extra services they really do not need. I used to live in a quiet cul-de-sac in Sea Point and spent some Saturday mornings raking the leaves on the pavement before the house and depositing it in black bags. Many other residents did not do so as they waited for the city council workers to come and rake their leaves for them, the lazy sods.

How can one morally justify this kind of skewed spending priorities? Surely, the city has better things to spend its money on (like building proper toilets for poor residents) than doing something I can do myself rather easily? If its officials had really thought long and hard about its priorities and had taken the needs of the residents of Khayelitsha at least as seriously as the needs of the rich voters in the suburbs, it would not have wasted their money like this.

Officials and city council politicians will probably claim that they have always provided this service and that white residents expect their pavements to be cleaned up, but that would only expose the callousness of their position. In the past the white suburbs received better services than the suburbs where black people live because white people were thought of as fully human while black people were only, at best, viewed as second class citizens deserving second class services.

A city council that really cared for all its inhabitants equally would have thought long and hard about its priorities, would have ignored the spending patterns of the past and the complaints of some spoilt rich folks and would have prioritized properly so that everyone could be provided with at least the basic services that would help all citizens to live a life of some dignity and respect.

Not that the lot of the Youth League are any better. How callous can one be? Destroying the very partitions that would have given the long suffering residents a semblance of dignity – and all for short term party political gain –  is about as despicable an act as one can get. And then to justify this action by invoking democracy is just plain scary.

Majority rule does not mean one has the right to destroy other people’s property. It does not mean one can tell others whether to accept the belated corrective measures from the city council or not. The Youth League members are really saying that as an individual living in Khayelitsha one has no rights as far as they are concerned. If the Youth League or those aligned to it decides you will jump, then you jump and you will sing viva majority rule and wave your ANC flag while you do so. This is not democracy. It is tyranny and fascism.

How can we build a society in which people will begin to take responsibility for their actions – a vibrant democratic society in which people can become active citizens who can stand up for themselves – if scared and disempowered residents are terrorized by lawless and semi-literate thugs who believe the interests of the party they belong to or are associated with should trump the interests of the people that the party pretends to serve?

This is an all-round depressing and rather upsetting turn of events. It almost makes one yearn for the South of France.

The statement comes in the wake of the rape and murder of many lesbians in South Africans over the past few years. This includes the gang rape and brutal killing of Eudy Simelane, former star of South Africa’s Banyana Banyana national female football squad. Simelane was found in a creek in a park in Kwa Thema, on the outskirts of Johannesburg and had been brutally beaten before being stabbed 25 times in the face, chest and legs. As well as being one of South Africa’s best-known female footballers, Simelane was a voracious equality rights campaigner and one of the first women to live openly as a lesbian in Kwa Thema.

Our Constitution prohibits discrimination against gay men and lesbians and over the past 16 years the judges of the Constitutional Court (bless their souls) have steadily extended the same rights accorded to heterosexuals and their relationships to gay men and lesbians and our relationships. In fact, same-sex couples have slightly more rights than heterosexual couples because some of the rights enjoyed by same-sex married couples were extended to non-married same-sex couples before the passing of the Civil Union Act. These rights did not automatically fall away when marriage rights were extended to same-sex couples.

Despite this wonderful legal protection, many gay men, lesbians and trangendered South Africans live in fear. We can be ridiculed, attacked, or even killed merely because we are different from the “ideal citizen” postulated by our colonial masters. This homophobia stems from fear, ignorance and a misplaced endorsement of patriarchy and the perverted morality of right-wing religious groups.

As Susan Sontag remarked, the traditional Judeo-Christian view of morality (thankfully not shared by all Christians), centres almost exclusively on sex and sexual acts. To be viewed as moral within this tradition is either to abstain from sex (as Priests are supposed to do but clearly often do not) or to contain sexual thoughts and acts within the “safe” confines of a patriarchal heterosexual marriage – to be whispered and sniggered about but never to be admitted in polite company.

A world in which poverty, homelessness, hunger and racial discrimination thrives while we live in mansions in Sandton and wear R250 00 watches is viewed as regrettable, but it is not seen as a morally perverse world in serious need of change. We drive, without another thought, past a hungry child begging on a street corner but shout out in horror when we hear that child is selling his or her body to make ends meet. It is said, after all, that the poor will always be with us. But, alas far too many people think that gay men and lesbians can be “corrected” through therapy or – in extreme cases – rape. 

According to this extremely perverted notion of morality, if two consenting adult men or women love each other and have sex with one another, this becomes a perversion that threatens the very existence of Christian morality (the so called “moral fabric” of our society) and is seen as far more problematic than the social and economic deprivation that robs people of their dignity and sometimes their lives. (On a lighter note, I have always wondered what this “moral fabric” might be and have speculated that maybe it is the fabric used to make wedding dresses from.)

Ironically this deeply entrenched Western view of sex and morality was brought to Africa by missionaries and imperialists and has been embraced all over Africa by new rulers and citizens. Often wrongly claiming that a more permissive view on sexuality is “un-African”, many Africans embrace the very homophobia that was imported to Africa by our colonial masters. Those who hold this view do not realise that their minds have been colonised by the imperialists and that they are merely endorsing the kind of hateful views put in their heads by our erstwhile oppressors.

When the Minister of Arts and Culture, Lulu Xingwana, storms out of an exhibition of photographs of Zanele Muholi (see photographs above and below) in disgust because the pictures are viewed as “pornographic” she is displaying for all to see, how her mind has been colonised by her erstwhile oppressors. Xingwana, it will be recalled, said that: “Our mandate is to promote social cohesion and nation-building. I left the exhibition because it expressed the very opposite of this. It was immoral, offensive and going against nation-building.”

This nation she talks about is a nation who must be built in the image of the ertswhile white colonial oppressor: one that is filled with “pure”, heterosexual, individuals who endorse the patriarchal values of a bygone era, one in which men are men and women know their place and where the individuality and diversity of society is repressed and stamped out in order to exert a deeply oppressive social control over the desires and dreams of ordinary citizens.

What is “un-African”, of course, is not homosexuality, but homophobia. Although different communities in Africa have dealt with same-sex sexuality differently (some accommodating it through according the men and women who were “different” a special role in their societies and other repressing or ignoring such desires and impulses), the notion of “the homosexual” that could be vilified, discriminated against, harassed, raped and murdered did not exist in pre-colonial Africa. It was a concept brought to Africa and along with this concept came the inevitable homophobia now masquerading as African values and cultural traditions.

We have a long way to go to ensure that the legal rights enjoyed by gay men, lesbians and transgendered South Africans are translated into a better life of dignity and respect for all South Africans who do not conform to an outmoded and perverted notion of what is normal and acceptable. The hatred and violence experienced by many gay men and lesbians (especially those who are not rich and cannot afford to live in leafy suburbs where they go to dinner parties and gay clubs) will not disappear before we begin to free our minds of the colonialist ideas about morality.

Sadly, our politicians either remain quiet about this or through their silence or their remarks they endorse the hateful homophobia that contributes to the harassment and violence of gay men and lesbians. How many political parties will issue a statement today condemning homophobia and celebrating the rights of a significant, yet often hated and vilified, minority in South Africa?

Until our leaders speak out about homophobia, the rape and the killing will continue. And like PW Botha, they will sleep soundly at night because they obviously do not take their conscience with them to bed. Unlike Lady MacBeth there will be no blood-filled dreams of dread.

When the building was built decades earlier during the apartheid era no one had thought that a woman would ever become a judge in South Africa. Women had to stay at home and raise children and organise tea parties while their husbands did the “real work” (as if raising children is not a hell of a job – although grossly underpaid).

In 1994 South Africa only had one female judge – Leonora van den Heever – and although things look different sixteen years later, we still have a very long way to go to make the bench more representative in terms of gender. While some members of the Judicial Services Commission (JSC) sometimes ask the white male candidates whom they do not like (because they are either too conservative or too progressive) why they applied at all, given the need for racial transformation, I have yet to hear a member of the JSC asking male candidates why they had bothered to apply given the need for the gender transformation of the bench.

Franny Rabkin, in an excellent article in Business Day, points out that as of November last year of 216 permanent judges, only 49 were women. This means that less of 25% of our judges are female while more than half the judges are black (broadly speaking at least). As Rabkin points out:

A frequently heard argument is that the pool of women lawyers is just not large enough. However, a key obstacle to the appointment of more women as judges is the widespread failure to appoint women as acting judges — a key foot in the door for later permanent appointment, says Jennifer Williams of the Women’s Legal Centre, a legal advocacy body. “It is a huge obstacle ,” Williams says .

It is of course true that the JSC has indicated that having acted on the bench was one of the main criteria used by it to decide whether a candidate was suitably qualified for appointment to the bench. This raises two questions. First, should the emerging practice of the JSC to appoint only those candidates who have previously acted on the bench be dropped? Second, why is it that so few women are actually given acting appointments?

On the first question I am agnostic. An argument could be made that acting appointments are necessary because such appointments help to expose candidates to the rigours of the job and can also give an indication whether they are up to the job. On the other hand, given the fact that all but one of the Judge President’s are male and given further that some of those Judge Presidents hold deeply patriarchal views, the Judge Presidents may very well become gatekeepers who limit the opportunities for women to be elevated to the bench.

(And even where Judge President’s are female there is no guarantee that they would promote the appointment of female acting judges because in a world dominated by men, I am told, some women in powerful positions feel threatened by other successful women because they believe that there is usually only space for a few women to shine. Keeping other women out thus becomes a matter of professional survival.)

On the second question, many lawyers will point out that there are far fewer female advocates and hence that the pool of candidates from whom judges are normally appointed contains only a small pool of women. This is correct. The bigger question, however, is why this should be the case. 

If one disregards the usual sexist arguments that fewer women are emotionally or intellectually capable of withstanding the rigours and competitive atmosphere at the Bar, one is left with two other explanation. First, the patriarchal and sexist attitudes of some male advocates create a hostile environment for women lawyers who do not want to work with colleagues who make crude jokes and who patronise and objectify women.

In that world, the most successful women lawyers are often perceived to be the one’s who can “fit in” and are accepted because their male colleagues deem them to be “honorary men” (much like black professionals thrive in a racist environment by becoming “honorary whites”). I call this the Margaret Thatcher phenomenon: some women can become successful because they can demonstrate to the men around them that they are just like them and that they have the necessary balls, figuratively speaking.

Second, because advocates can only thrive if they are briefed by attorneys, the briefing patterns also play a role in depriving women of the interesting and complex work necessary for building a thriving practice. Many women advocates who go to the Bar are expected to focus on divorces and family matters and are not expected to get involved in commercial litigation. The old boys network also influences who is briefed and if one does not play golf or did not go to the right school, one may find oneself doing mundane work – if one is lucky enough to get work at all.

Of course, for black women this phenomenon is even more pronounced.  The female advocates who stick around and make a living are also deemed with suspicion by some of the more sexist attorneys and advocates who assume that they could not possibly be as good as their male counterparts. To really make a name as a women advocate, one has to be far better than the average male colleague.

Although I am not claiming that all male lawyers are sexist pigs (although some are), and although I do not wish to generalise, the lack of suitably qualified female candidates for appointment to the bench clearly shows that the legal profession still has a long way to go to rid itself of patriarchal notions of male superiority and excellence. At least black lawyers have the Black Lawyers Association (BLA) to look after their interests, but women lawyers do not have a formal institution with the same clout as the BLA that might promote the rights and interests of female lawyers.

In the light of the above it is actually surprising that almost a quarter of judges are indeed female. 

The question to be asked of the profession is what it is planning to do to address the problem of gender representation. But one may also ask female lawyers themselves why they have not orgnanised themselves into a Women’s Lawyers Association to push gender transformation in the legal profession? Is it perhaps that they are scared that they will be ostracised by their male colleagues if they do? 

The Constitution is clear: BOTH racial and gender should be considered when appointing judges to the bench. But as with race, a sufficient number of suitably qualified women candidates will only be found if the legal profession itself takes drastic action to open up the profession to more women lawyers.

Most analysts, journalists and fearful members of the white minority have interpreted these events against the backdrop of the singing of an old struggle song by Julius Malema.

But surely all this would never have been blown out of all proportion like it was, if all members of the ruling party were impeccable democrats with an abiding respect for the Constitution and the judiciary, if the Road to Ventersdorp were not littered with potholes and empty election promises, if service delivery protests were not gaining ground because of the complete collapse of local government service delivery in some areas of the country, and if some ruling party members were not deeply implicated in cronyism, corruption and abuse of power.

The hysterical reaction to the killing of Terreblanche and the antics of a little corrupt demagogue like Julius Malema would not have occurred if – 16 years after the advent of democracy and the supposed end of apartheid – all farmers had learnt to treat their workers with dignity and respect, if all white South Africans had learnt to face the unpalatable truth that they had unjustly benefited (and in some ways are continuing to benefit) in  myriads of ways from apartheid, if most members of the white minority had made serious attempts to come to terms with their own lingering (but often unspoken and undetected) racial prejudices and attitudes of racial superiority.

It is in this atmosphere of discontent about lingering racism, rampant corruption and a lack of respect for the democratic rights of ordinary citizens in which extremists could momentarily dominate the national conversation. It is time for us to take back our country from the Malema’s and the Visagies and try to think of ways to fix what is broken.

So what should come next?

The ANC and its President (who seems more worried about spin-doctoring and about spending quality time with his wives, mistresses and many children than actually running the country) should begin to face up to some unpalatable truths. It should accept that it is in power, that it is ruling the country and that it should take responsibility for what is going wrong in the South Africa. The ANC  is the ruling party and should behave like one.

It should stop pretending that it is still in exile and that the Nationalists are still in power. It should stop talking about what it will do, and actually do something for the voters who elected the ANC into office. Instead of buying fancy cars, throwing obscenely lavish parties and generally wasting our money, the ANC government could learn to be a bit more frugal with our taxes so that it could be spent to build houses and school libraries or to pay for a Basic Income Grant to assist the poorest of the poor.

Stop blaming others. Stop blaming the past. When racists exploit and abuse their workers, do something about it. When big business, school governing bodies, and other social actors resist principled and fair forms of racial and economic transformation, stop complaining – as if, as the governing party, you have no power - and do something about it. But, of course, act in a manner that is in the best interest of the country as a whole and not in the interest of a few well-connected ANC politicians, tenderpreneurs or Kebbilists, who are out to exploit BEE and transformation in a manner that will reward incompetence, laziness and greed.

Fire corrupt, lazy and unqualified officials who sit around at home when they should really be fixing the potholes, when they should be making sure our water is clean and our electricity is working, when they should be attending to the everyday needs of poor people who live in informal settlements, when they should be making sure that our school teachers arrive at work sober and on time and actually teach our children to read and write.

Strictly enforce the existing rules regarding conflicts of interests and clean up the tender processes to prevent the Kenyafication of our public finances. Expel ANC members who steal from the poor, who corruptly obtain tenders which they cannot competently, efficiently and cost-effectively honour. Try and respect the voters who have elected you into office. Stop acting as if voters are stupid and ungrateful, as if they have to be told by heartless technocrats what their real needs are and how these needs should be met. 

At the same time, white South Africans need to take a long hard look in the mirror. Very few of us supported Eugene Terreblanche and most white people would claim that they are appalled at the kind of racism displayed by the average AWB supporter. But what do we do at dinner parties, in office meetings and at rugby matches, when our fellow white South Africans say blatantly racist things, when they patronise black South Africans, when it becomes apparent that they hold black South Africans to a higher standard than they do their fellow white compatriots?

Do we speak out about such injustices and do we make common ground with our fellow citizens whose human dignity is being attacked and whose honesty and competence is being questioned explicitly or implicitly because of their race? Do we mutter under our breath or smile benignly instead of challenging the racists? Do we turn away from the social and economic injustice that lives and breathes all around us? Do we shrug our shoulders when we are confronted by the poverty and deprivation caused by apartheid and blame it all on the ANC or on black people in general? 

For example, why do so few white lawyers speak up about the need for transformation in the legal profession? Why do so many such lawyers perversely still brief less competent white  advocates merely because the advocate is white or was an old school buddy or plays golf with the partners of the firm?

Until white South Africans take a long hard look at themselves, until they stop hiding behind a smug facade of racial superiority to insulate themselves from any responsibility for the past political oppression and economic exploitation of black South Africans, how can we move forward as a country? How can we claim to be any better than Eugene Terreblanche and his followers if we ourselves – through our silence or through our often unspoken assumptions about white superiority – help to fan the flames of racial animosity?

All white South Africans need to take responsibility for the past before we as a nation can move on. This does not mean we should become cringing apologists for incompetence, laziness, corruption or abuse of power by members of the governing party or anyone else. Taking responsibility is not the same thing as accepting second class status in one’s own country. It does mean that we should accept that we have either contributed and/or are still benefiting from apartheid. It means we should show through, words and deeds, that we are prepared to do more than merely sit on the sidelines and whine and complain about the ANC-led government while trying to make as much money as we can – all the time scanning the papers for immigration opportunities.

It is probably naive to think that the killing of Terreblanche and the embarrassing antics of Malema will lead to a sudden transformation which will allow both the ANC and the government it leads and the vast majority of white South Africans to suddenly take responsibility for the part they have played and are continuing to play in the creation or perpetuation of South Africa’s problems. But one has to start somewhere, with one ANC leader or member at a time, with one white South African at a time.

It could be you. It could be me. We have to start somewhere.