Constitutional Hill

discrimination

News flash, folks: private discrimination IS illegal

Many South Africans still wrongly believe that they have an absolute right to discriminate against black South Africans by refusing  to provide them with access to a service because the service is rendered on their private property. A recent newspaper advertisement, offering “safe non-affirmative action” accommodation for female students of the University of the Free State, is a textbook example of this criminal behaviour.

The Rights in the South African Bill of Rights – unlike many other, more traditionally liberal, human rights texts – do not only bind the state. In certain circumstances the rights in the Bill of Rights also bind private individuals, institutions and businesses who are constitutionally required to respect the rights of everyone.

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Section 9(4) reinforces this principle in the field of discrimination law by stating that “[n]o person may unfairly discriminate directly or indirectly against anyone on one or more grounds”, including race, sex, gender, sexual orientation, religion, belief or culture.

The Constitution itself therefore places limits or the right to property as well as the right to freedom of association. As the Constitutional Court has indicated several times, the provisions of the Constitution must be read holistically, which means that section 9(4) must be read as placing an internal limitation on other rights such as the right to property and the right to freedom of association. This means the right to associate freely and the right to property is qualified by section 9(4) and these rights can only be exercised in conformity with the non-discrimination injunction contained in section 9(4) of the Bill of Rights.

The right to property has never been an unqualified right – even in the pre-Constitutional era. As is the case in all other countries – the law places drastic restrictions on the way in which a property owner can make use of his or her property in order to advance the common good or to protect the community.

That is why a property owner cannot dump toxic chemicals into a river running through his or her property, why a property owner is prohibited from making incessant noise, why a property owner has a duty to ensure that the roots of any trees on his or her property do not threaten the integrity of buildings on an adjacent property and why you cannot use the back yard of your suburban home to run a poultry farm.

Of course, a private property owner who does not offer a service to members of the public and complies with the many other legal restrictions imposed on the use of that property, remains free to act with the property as he or she wishes. There is therefore no law prohibiting a property owner from only inviting white friends to a braai or from only inviting male friends to come and watch a rugby match in his living room.

While we may make a moral judgment about a person who refuses to mix socially with members of another race, the law does not and cannot force that person to befriend members of a different race and to accommodate them in a purely social setting on his or her property.

Despite the very clear an unambiguous constitutional prohibition against unfair discrimination by private parties, some property owners still believe that they have a right to refuse to rent a room or a flat or house to somebody because that person is black or gay or Muslim.

Some business owners also wrongly believe that (an essentially unenforceable) “right of admission reserved” sign at the entrance to their restaurant, Bed and Breakfast or holiday resort allow them to refuse entrance to a potential customer because the customer is black or gay or a Rastafarian. Section 9(4) now limits the potential legal ambit of the right of admission rule.

I suspect few landlords (who are defined in the Rental Housing Act as including anyone who rents out an apartment, house, shack or a room in a house or an apartment to members of the public) know that it is a criminal offence to discriminate against potential or existing tenants. This is because many people are unaware of the content of section 4(1) of the Rental Housing Act, which states that:

In advertising a dwelling for purposes of leasing it, or in negotiating a lease with a prospective tenant, or during the term of a lease, a landlord may not unfairly discriminate against such prospective tenant or tenants, or the members of such tenant’s household or the visitors of such tenant, on one or more grounds, including race, gender, sex, pregnancy, marital status, sexual orientation, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, language and birth.

Read with section 16 of the Act, it is clear that anyone who contravenes section 4(1) is guilty of a criminal offence and liable on conviction to a fine or imprisonment not exceeding two years. As soon as a landlord offers rental accommodation to the public, he or she is bound by the Act and is prohibited from discriminating.

The situation may be different where a property owner does not advertise the rental accommodation to the public, but asks friends or relatives to share the accommodation with him or her.

This means that “Ronel” who advertised “safe non-affirmative action” accommodation for female students of the University of the Free State, runs the risk of being criminally prosecuted and being sent to jail for two years.

Tenants who rent accommodation from unscrupulous landlords can also approach the Rental Housing Tribunal in their province, who is empowered to resolve rental disputes and address any unfair practices of a landlord. In the case of unfair discrimination, the Rental Housing Tribunal is authorised to refer the matter to the police for criminal investigation.

The Rental Housing Tribunal can also make any other ruling that is just and fair in order to terminate any unfair practice, including a ruling to discontinue overcrowding; unacceptable living conditions; exploitative rentals; or lack of maintenance. Rental Housing Tribunals are, as far as I can tell, under-utilised.

Maybe it is time that more South Africans challenge unfair rental practices before the Rental Housing Tribunal. How else will things ever change?

PS: There is no one website for the Rental Housing Tribunal as they operate on a provincial/municipal basis. But I have been able to find the following contact details (which I have not had the time to check) for the respective Rental Housing Tribunals.

PROVINCE TEL NUMBER POSTAL ADDRESS PHYSICAL ADDRESS
NORTH WEST 018 384 6201018 387 6056 PO Box 3190Mbatho, 2735 2386 Robert Sobukwe DriveUnit 1, Mbatho
JHB  EAST 011 630 5035 Private Bag x79Marshall Town,2107 1066 Corner Harrison,Pritchard Street, JHB, 2000
PRETORIA 012 358 4403012 358 4299 F Room 215, Sanlam Plaza East,285 Schoeman Str, Pretoria
CENTURION 012 358 3898012 358 4299 F Room C1 1st Floor260 Basson AvenueLyttelton, Centurion
KZN 031 336 5300031 336 5226 Private Bag x 9485Durban, 4000 Toleram House 2, Aliwal StrDurban, 4000
LIMPOPO 015 294 2000015 295 8167 F Private Bag x 9485Polokwane, 0700 28 Market Str, 20th AvenuePolokwane, 0699
EASTERN CAPE 040 639 1769040 609 5198 F Private Bag 0035Bisho, 5605 4th Floor, Tyamzarshe Building,Bisho, 5605
NORTH CAPE 053 830 9455053 831 8016 F Private Bag x 5005Kimberley, 8300 9 Cecil Sussman RoadKimberley, 8301
WESTERN CAPE 021 483 9494021 483 3511 F086 010 6166 Private Bag x 9083Cape Town, 8000 Ground Floor, 27 Wale Str,Cape Town, 8000
MPUMALANGA 013 766 6200 Private Bag x 11304Nelspruit, 1200 Mpumalanga Provincial Gov.Building, 6 Gov. BoulevardRiverside Park, Nelspruit, 1200
FREE STATE 051 405 5034 PO Box 211Bloemfontein, 9300 Lebogang st Andrews StrBloemfontein, 9300

 

Tentative thoughts on reconciliation

Some South Africans are fondly remembering the late Nelson Mandela as the father of reconciliation in our country. But for many others the word “reconciliation” leaves a bitter taste on the tongue. What do we mean when we talk of “reconciliation”? Is it possible to achieve it? Is it even desirable to seek it? Maybe it’s time, after Mandela has been laid to rest so beautifully over the weekend, to start a difficult conversation around this dangerous and difficult word.

When I was around ten years old my father solemnly pressed a well-worn hardcover book into my hands. “It is time you read this,” he said. The book was called Tant Miems Fisher se Konsentrasiekamp Dagboek (“Auntie Miems Fisher’s Concentration Camp Diary”). It contained the diary written by Miems Fisher while incarcerated by the British towards the end of Anglo-Boer War. It exposed the cruelties visited upon her and other women and children in those camps, where more than 30 000 Boer women and children died.

I can’t recall his exact words, but my father implied that this is an episode of Afrikaner history we should never forget. Nor should we forgive the English for perpetrating this horror. This happened more than 70 years after the War had ended, at the time when Afrikaners were at the height of their political power, which they (I should, perhaps, rather say we) used very efficiently to dehumanise and oppress the majority of South Africa’s population.

This past week my late father (and tant Miems Fisher) was much on my mind. If my father was unable to reconcile with English South Africans more than 70 years after the Anglo-Boer War had ended, why is there an expectation that fellow South Africans should reconcile with us whites merely twenty years after the advent of democracy, when the ghost of apartheid is still haunting us and the effects of its devastation is still felt every day all around us?

Let me put my cards on the table. I have a problem with the manner in which the term “reconciliation” is often used in South Africa. In this problematic formulation, “reconciliation” is a once-off event partly made possible by Madiba, one that allows us (no, requires us) to end the conversation about our past, our role in it and our present-day responsibilities as members of a social and political community.

Instead of viewing reconciliation as a long, difficult and painful process that requires us to confront our past, it becomes an incantation invoked by some South Africans to avoid talking about the demands of justice. It is based on the assumption that reconciliation is easy, that it demands little of us (especially from those of us who benefited and continue to benefit from past and on-going injustice).

It aims to wipe the slate clean and is often invoked to silence those who ask difficult questions about what reconciliation — real reconciliation — may demand of us. It does not keep open the possibility that in the present social and economic context reconciliation may be impossible to achieve and that pursuing it may be unjust or unwise.

This narrative of reconciliation is deployed to ensure that we avoid talking about (mostly, still, race-based) inequality, of the need for redress, of the way in which our chances to achieve our full potential as a human being still to a large degree depends on who we are born as, who our parents are, where we stay, what school we went to, what financial and other benefits our parents are able to muster to boost our ability to succeed.

In my view, to the degree that it is possible to talk of reconciliation at all, it must be talked of as a process. I cannot speak on behalf of anyone else, but as a white South African it seems to me this idea of reconciliation is only worth pursuing (if it is worth pursuing at all) if it is going to be part of a process that disturbs and unsettles me, that makes me feel uncomfortable and reminds me of my privilege and asks difficult questions about how I must respond to it. Questions that I sometimes feel at a loss to answer.

It will also remind me of how my own response to the demands for justice will always fall short (as, I believe, us humans always all fall short of the demands that justice make on us). It is a process that might force me to consider the possibility that I am, after all, not the hero of this story. But it may be a process in which I see the possibility of becoming a fully integrated human being and not just a cardboard cutout, not just a cipher for a past that I dare not engage with.

It seems to me it is when we are disturbed, made uncomfortable, when all the easy platitudes so carefully constructed to protect us from ourselves and our history have been abandoned, that something of what makes us human is revealed to ourselves, if not always to others.

But maybe this is not a process that should be tagged with the tainted and maybe impossible demand of “reconciliation”. Reconciliation is a term that implies two sides coming together and relinquishing something: fear; suspicion; hate; anger.

For those with economic and social power it would also require another, more material, “giving up” of power. But I am not sure that it is so easy or even possible to give up one’s power. No matter what I say or do I suspect I will not be able to escape who I am, how others see me and how I am treated. I suspect it is sentimental folly to believe you can escape the consequences of the social reality of which you are a product. And how will giving up actually change the way our world remains structured in a way that continues to produce yet more injustice?

Another question comes to mind. Is it ethically responsible to expect black South Africans who continue to experience structural racism at every level of society to give up hate, anger and suspicion? This is not a question I can or wish to answer.

This means I wish to leave open the questions of whether reconciliation is possible or desirable at all in present day South Africa.

I do know that I strongly believe that white South Africans should not pursue “reconciliation” if the aim is merely to comfort us and smooth over our interactions with black South Africans. That is not reconciliation, but a form of co-optation.

I assume that these musings on “reconciliation” will make many people uncomfortable or even angry and that some will want to take me to task for writing it. How dare I, as a white person who can never know how it feels to be black in this country, write about such things? How dare I question white privilege if I still live a relatively privileged life? Am I not being, yet again, a sanctimonious little prick (as one commentator recently called me), pretending that I am better than other South Africans?

I could argue that I would welcome and celebrate any conversation that might result from an engagement by those who feel I need to be taken to task. But this, too, may be a lie. I have not always and will probably not always welcomed being disturbed and questioned and made to feel uncomfortable about who I am and how I fall short of the ideals I set for myself. But in a week that South Africans have been urged to reflect on how we, too, could take Nelson Mandela’s vision forward, maybe its time to try a bit harder.

Such conversations — if I am able to engage in them — may well make me deeply uncomfortable and unsettle me. Maybe it will also disturb some of the assumptions of others who take part in it. And (maybe far too idealistically) I believe it is when we have such disturbing and uncomfortable conversations that we may begin to get to another kind of process which, in another more ideal world, we might have been tempted to call reconciliation.

Structural racism: the invisible evil that must be addressed

The Democratic Alliance (DA) finally bit the bullet and admitted that race still matters in South Africa and that race-based redress measures remain necessary to address the effects of past racial discrimination. However, like other liberal institutions (such as the University of Cape Town), the DA sees race as a proxy for disadvantage and hope, over time, to rely on other indicators of disadvantage to effect redress. This view fails to address the structural racism deeply embedded in society and also fails to confront the continued negative effects of structural racism in South Africa.

On a recent trip to Thailand I was struck by the fact that every single model in advertisements on billboards and on television was far lighter of complexion and far more “European” looking than the average person in the street. (I deliberately use the contested, racially loaded, and deeply problematic term of “European” to allude to the often-invisible but prevalent assumptions in most societies that have been economically, culturally and socially colonised by the West that white “Europeans” are the norm against which all others are implicitly measured — and often found wanting.)

It also reminded me of a visit to India when I pored over the personal adverts for prospective spouses in the Sunday edition of Times of Indiafascinated by the fact that many of the adverts extolled the virtues of the potential marriage partner because of his or her Harvard degree, Green card, and, most importantly, “wheatish complexion”.

These anecdotal examples hint at the dominant normative assumptions about white superiority that are so deeply embedded in modern society in our globalising world that they can easily appear to be normal and natural when, in fact, they are nothing more than a manifestation of structural racism.

If you care to look with a critical eye, you quickly spot the myriad of ways in which popular culture, workplace rules and practices, academic discourses, social norms and standards, rules that validate certain types of knowledge and discount other types of (often indigenous) knowledge, and commercial advertising send out (sometimes explicit and at other times concealed) messages that normalise and even celebrate the superiority of white Western ways of being in the world.

If you happen to be white, it may be more difficult to become aware of how your view of the world and of yourself is held up as the norm and as superior to other ways of being in the world. You might find it difficult to accept that this helps to validate you and prepares you for success in the world.

This is so because when you experience the world as an insider, as someone who does not really have a race or a culture that is systematically denigrated and held up as inferior, you may not realise that you are lucky (one should say privileged) enough to have your general disposition and belief system (if not always all individual traits and actions) held up as normative, as ideal, as “just the way the world is” or “ought to be”.

You might not realise that this position of privilege grooms you for success, signals to you that success is nothing less than your due. It creates a world in which others assume that you are competent, hard-working, honest, intelligent, socially well adjusted and appropriately ambitious.

This bestows enormous privilege on all white people — regardless of their class, educational background or personal characteristics and attributes. Us white people are immensely privileged in that the monstrous actions of fellow whites are almost never imputed to us as a race. Few people would argue that white people are inherently dangerous, violent, duplicitous, greedy or dishonest because of the actions of an individual who happens to be white. When we walk into a job we are almost never required to prove ourselves and unless we fail spectacularly we are assumed to be competent and well suited for the job.

Think about this: white people are absolved of being judged collectively because Hitler killed 6 million Jews or because Stalin killed between 20 and 60 million of his countrymen and women. When a citizen of Germany, or Poland or the United Kingdom is unhappy with the actions of his or her government, you are hardly likely to hear them exclaim (thinking of the Holocaust, Bosnia and the Gulags): “this is Europe, so what can you expect?”

Political activists in Greece or Italy or France would never dream of warning that their country runs the risk of turning into another Putin’s Russia or another Bosnia. Because Putin is white, few will assume that his despotic actions sends a warning about the general disposition of white politicians all over Europe to become despotic.

Few people impute greed and dishonesty to white people as a group because Brett Kebble was a crook or because Barry Tannenbaum allegedly cheated investors out of more than R12 billion.

When the so-called Modimolle Monster was convicted of masterminding the rape of his wife and the murder of her son, no one made assumptions about the murderous nature of white people in general and started profiling middle-aged white Afrikaner men as family murderers. And when a 17-year-old white farm boy from Griquatown is charged with the murder of his younger sister and his parents, few people wring their hands and talk about the violent nature of white youth.

And despite the fact that the vast majority of white South Africans actively or passively supported and benefited from Apartheid, there is no master narrative embedded in our culture — despite tentative attempts by anti-racists to create such a narrative — that characterises white South Africans as inherently evil, prejudiced, arrogant, greedy and heartless. It’s a bit of a miracle, really, brought to you courtesy of structural racism.

Yet it is striking how often the action of one black person is explicitly or implicitly imputed to black people as a group. Despite living in an entirely different country with different dynamics, a different political economy, a different social reality, the warning often rings out that we are in danger in South Africa of turning into another Zimbabwe. And be honest, fellow white South Africans, have you ever encountered a bad driver, an unhelpful government official, an incompetent colleague and (at least for a second) thought that this is not surprising because the person happens to be black?

I would contend that because of structural racism, white people are almost always viewed as individuals who are assumed to be competent and virtuous until they prove otherwise, while black people are almost always viewed as representatives of their race who have to prove themselves to be thought of as being “as good” as their white colleagues or fellow students.

By structural racism I mean the entire system of white supremacy described in anecdotal forms above. I am not talking here of gross forms of individual racism in which a person knowingly and flagrantly displays racial prejudice. I am talking about the assumptions about white superiority and whiteness as the assumed norm of goodness and competence that is diffused and infused in all aspects of society, including our history, culture, politics, economics and our entire social fabric.

As such structural racism is the most profound and pervasive form of racism — it is not something that could possibly have disappeared in 1994 when political power was formally handed over by the white minority. Because of the way in which structural racism normalises white dominance and superiority, it entrenches and perpetuates inequalities in power, access, opportunities, and treatment. This is not necessarily done knowingly and intentionally: the power of structural racism is exactly its ability to make itself invisible. This allows its beneficiaries to deny its existence (and genuinely believing in its absence) while benefiting from it.

Structural racism is more difficult to locate in a particular institution because it involves the reinforcing effects of multiple institutions and cultural norms, past and present, continually producing new, and re-producing old forms of racism.

If you accept that structural racism still permeates our society (as I do), then it is impossible to view race as an (inexact) proxy for disadvantage. Instead, you are forced to accept that structural racism continues to operate in ways that disadvantages all black people regardless of their class, educational background or social status. You may be — as the cliché has it — the child of Patrice Motsepe, but you are still required to operate and become successful in a world in which the rules are made by and for the benefit of those who do not look like you and speak like you; for those whose experiences prepared them for success in ways that your experiences could not.

Of course, your chances of success as a black person in a world in which structural racism is a defining characteristic will be far better if you happen to be middle or upper middle class, if you were at least partly “assimilated” into the dominant white norms by having attended an exclusive private school or having attended an elite University like UCT. But your life will still be a relative struggle compared to the life of a middle or upper middle class white child whose culture, world view and race is the embedded norm in the society.

Because of structural racism, race is not a proxy for disadvantage — it is always and remains a form (if not the only form) of disadvantage.

You do not address the consequences of structural racism merely by creating opportunities for black people to “assimilate” into the normative white world. Instead, you transform the society and challenge the basic meaning-giving assumptions according to which society operates and in terms of which goods, services and opportunities are distributed. In short, you attack and dismantle white privilege, which is the flip side of the coin of structural racism.

Some of us call this transformation.

For most of us whites, this prospect is both scary and threatening. We stand to lose not only our relative and unearned advantage in the world (which we enjoy solely because of the cultural, social and economic assumptions of superiority linked to our race), but also our sense of well-being, our sense of being inherently virtuous and superior, of never being judges collectively for the evils done by others who happen to be identified as white.

But the corrosive effects of structural racism poison a society, make it more difficult for people of talent to thrive merely because of their race. Structural racism makes the society less successful because it fails to harness the talents of all members of that society fully. Even white South Africans not convinced of the ethical or moral necessity of dismantling structural racism, must understand that in the long term it is in their own interest to challenge structural racism in order to ensure that our society will benefit from the full talents of all and will reach its full potential.

We recognise sex and gender as classifications, so why not race

In newspapers and on social media platforms one of the most telling and persistent responses by Democratic Alliance (DA) supporters opposed to the party’s fleeting and half-hearted support for racially based redress measures (later withdrawn on the instructions of Helen Zille), was that it was untenable for a so-called “liberal” party like the DA to support redress measures that are based on racial classification. According to these critics it is always wrong – even evil – to require people to identify themselves in racial terms and to base redress measures on these racial classifications. Yet few of these people have ever objected to being forced to classify themselves as “men” or “women” and even fewer have opposed redress measures aimed at women. Could it be that the opposition to race-based redress measures is not based on any “liberal” principles at all – but rather on self-interest and the protection of privilege?

The Department of Home Affairs forces every single South African to classify themselves as either a man or a woman – even if a person feels uncomfortable doing so and does not neatly conform to socially constructed categories of “male” or “female”.

At my University, I often have to fill in forms in which I have to tick a box to indicate whether I am “male” or “female” and down the passage, the toilets are clearly separated along sex/gender lines. Yet, the same people who object to the University requiring applicants to identify themselves in terms racial categories have never so much as uttered a word of protest against this forced classification of people according to sex and gender.

Focusing on what can appear to be arbitrary biological characteristics (sexual organs or chromosomes instead of skin colour) and making false assumptions about the ability of all humans to neatly slot themselves into the categories of “male” and “female”, few people challenge the practice of classifying people in terms of their sex or gender. Even fewer people argue that it is incompatible with liberal dogma to classify ourselves as “male” or female” or to pursue redress for women based on their sex or gender identification.

I have yet to see anyone arguing that we should avoid using the categories of sex or gender to address the effects of past and on-going sex and gender discrimination and that we should rather focus on other factors such as the class or the educational background of a particular woman when we decide whether to allow the specific woman the benefits of affirmative action. We accept that a woman must benefit from redress measures because she is a woman who has been disadvantages, among other reasons, because of the way sex or gender has been used and continues to be used to subjugate all women.

Almost all of us assume that women as a class have experienced systemic discrimination in the past and continue to experience the effects of on-going sexism and patriarchy. Most of us also assume that redress measures targeting women as a group are needed to attack the systemic and structural reasons for women’s disadvantage.

Of course, many of us now recognise that sex and gender are human inventions – ideological constructs, if you will – created to subjugate women. We understand that neither sex nor gender categories can perfectly capture the essence of any human being. We may be aware of the fact that intersexed people are forced to categorise themselves as either male or female when these categories have very little to do with how they experience the world. Yet we accept that sex and gender have real consequences and that these consequences cannot be undone without invoking the invented categories of sex and gender and relying on these categories to get to the root causes of the systemic disadvantage suffered by women in a sexist and patriarchal world.

We understand that if we had chosen to, we could have classified humans based on other irrelevant characteristics such as the texture of their hair, the size of their feet, their ability to procreate, the size of their ears or whether they were right-handed or left-handed. We could have subjugated all people with small ears or blue eyes, or all people who could not produce children, but we chose not to do so. Instead we have classified people according to other arbitrary characteristics: skin colour, sex, and sexual orientation and we have subjugated people based on the fact that they are not white, not male, not heterosexual.

The fact that these categories are invented does not mean that they are not experienced as real and have no real consequences for those who have been subjugated. You benefit and enjoy the privileges of belonging to the subjugating group because you are assumed to be superior due to the fact that you happen to have been classified as a man or as white or as heterosexual.

When sex and gender categories are relied on to subjugate women or to perpetuate harmful stereotypes about women few people argue that the problem is the very categorisation of people into sex and gender categories. Instead we distinguish between the use of sex and gender categories for benign or laudable purposes (to address the effects of past and on-going discrimination, say) and the use of these categories to subjugate women (by justifying discrimination against women, say) – even as we question the “truth” of these categories and deny that these categories can ever say anything essential and universal about those who are made to belong to one of them.

Most feminists do not shy away from being identified as women. Feminists might challenge essentialist notions about sex and gender and may point out that these categories can never tell the full truth about a single human being, but for strategic reasons will rely on sex and gender categories to resist the subjugation of “women”. Thus many feminists use the fact that they are classified as women to resist the very subjugation that the classification made possible in the first place, reminding us that classifications can be used for evil purposes, but can also be relied upon to serve as a rallying point for resistance to challenge subjugation.

Similarly, in our heteronormative world, gay men and lesbians are systematically discriminated against, yet many gay men and lesbians embrace the classification of themselves as gay or lesbian (the very classification which have been used to subjugate them) in order to resist that subjugation. The fact which the alleged “liberals” do not want to admit is that our identities as black people, as women, as gay men and lesbians empower us to resist oppression.

We take part in gay pride marches to challenge the ideology of heterosexual superiority; we demand equal rights for gay men and lesbians based on our constructed gay and lesbian identities; we challenge heterosexual privilege by pointing out how social and cultural assumptions about the superiority and normality of so called heterosexuality continues to subjugate and marginalise us.

Thankfully, I have not heard of any outrage by self-confessed “liberals”, claiming that gay pride marches are hetero-phobic or that the classification of people as either heterosexual or homosexual are inherently dangerous and in conflict with liberal principles. It would be catastrophic for the advancement of gay and lesbian equality if “liberals” suddenly started arguing (as some do regarding race) that it is illegitimate to classify ourselves as gay or lesbian and to use these classifications to resist our oppression. Suddenly our oppression would disappear and heterosexuals would have managed to make it difficult if not impossible for us to challenge our own oppression.

It is against this background that the argument by some “liberals” that it is wrong, on principled liberal grounds, ever to invoke racial categories for the purposes of attacking the effects of past and on-going racial oppression, rings hollow and false.

When we insist that redress measures should largely (but not exclusively) rely on racial categories because that is the only manner in which to address the racial subjugation black South Africans, we are told that it is inherently evil to classify people in racial terms – regardless of whether the purpose of the classification is to address the evil effects of racism or to perpetuate racial subjugation. We are told that redress measures should not address the actual causes of subjugation – the manner in which the ideology of white superiority have been used and continues to be used to subjugate black people – but should rather focus on inexact and sometimes irrelevant proxies such as class differences or differences in educational background between people regardless of race.

Why is it that so many people who are prepared to recognise the systemic and structural nature of sex and gender oppression (or even the oppression relating to sexual orientation) and would never dream of opposing the classification of people along sex, gender or sexual orientation lines and using these classifications in order to address the systemic and structural oppression of women or gay men and lesbians, suddenly get very angry when racial categories are invoked as a way of resisting racial oppression?

Could it be that the argument is no more than a self-serving attempt to entrench the status quo of white privilege? If we are not allowed to invoke the racial categories in terms of which the hierarchy of white superiority is established and maintained, how can we ever begin to address the structural and systemic reasons for the social, cultural and economic disadvantage of black South Africans? Is this sudden but selective abhorrence by some liberals to the categorisation of people according to race not merely another attempt to render invisible the mechanisms through which racial oppression is maintained and perpetuated?

Should we not rather be more principled and argue, first that all identity categories are clearly constructed and often for the purpose of subjugating the one group to the benefit of another but, second, that we must surely use such categories strategically to resist subjugation? Should we not move beyond sterile and false arguments that it is always wrong to invoke race, sex, gender or sexual orientation categories and rather point out that what renders the use of such categories problematic is the evil purpose for which they are being used? If categories such as race are used to subjugate those already marginalised and oppressed, it must be resisted. But if such categories are used to challenge the very subjugation which the categories were created to maintain, we cannot (on sound principled grounds) oppose this.

The remembrance and forgetting of things past

How we choose to remember the past says much about our present day emotional affinities and ideological commitments. When we choose to ignore awkward facts about a person’s past after they pass away, we often do so because it serves our own interests. Our partial amnesia allows us to feel virtuous about our own life choices and our emotional or other enigmatic associations with the deceased. Could that be why, in the obituaries I read about Bridget Oppenheimer over the past few days, I looked in vain for any mention of awkward facts about her life or that of her Rand Lord husband, Harry Oppenheimer?

Contestation about the past, about memory and about historical narratives are often just as much about present day struggles to impose a particular view of the world on society (a view that reflects the interests of a dominant elite), as it is about what ought to be remembered from our past. Who has the power to dictate what must be remembered and what must be swept under the carpet? Who gets to decide what we are allowed to remember and what must be forgotten? Answers to these questions say much about the relative social, economic and political power of various institutions and groups in a society.

I was reminded of this the other day when I was looking for a cell phone charger and chanced upon my old photo albums at the back of a cupboard in the spare room. These albums were carefully put together in an era when you still had to have your films developed at the chemist. As I paged through these albums I was struck by a picture of myself — lean, blond, tanned a golden brown colour, smiling shyly into the camera — reclining in a bathing costume (“kostjiem” we called it in our peculiar Afrikaans bastardisation of the English word) on a slightly tattered towel on the white sand of a beach in Mosselbay.

An intense nostalgia overpowered me; and a kind of sadness, too, for that awkward, scared, and desperately vulnerable and insecure boy who was yet to come to terms with his own sexuality, or with his tendency to hold a cold distance from those whom he thought would hurt him or reject him.

The particular picture must have been taken during the December holiday at the end of my standard nine year (grade eleven in the language of today); it must have been the unhappy holiday my younger sister and I stayed with my parents on a cousin’s farm outside Mosselbay, my parents fighting almost every day about money and about my father’s drinking.

Pierre

It must have been taken in the year that I was cajoled into remaining on my cousin’s farm for an extra two weeks after my parents went back home to Pietersburg (now Polokwane). I guess this was part of a plan hatched by my parents to “toughen me up”.

Every morning — feeling homesick and out of place – I had to drive my cousin’s bakkie (these people, I thought at the time, were really rich, owning both a Mercedes Benz and a bakkie) with large milk cans on the back to the drop off point at the small railway stop at Coopersiding. (The Police was never going to stop a seventeen year old white boy driving without a licence.)

This task at least saved me from having to go horse riding with my cousin, a possibility I dreaded as I was intensely scared of horses, of being bitten by them and falling off of them and being revealed to be a moffie by them by not being able to ride properly, like a “real” man — as my father must surely have told me.

This is the story I would like to tell myself — that I may well continue to tell myself from time to time — about that holiday back in 1980. It is the story — with its elisions and silences — that I have the luxury of continuing to tell myself as part of the process of constructing a passable identity for myself.

In South Africa there is little need for me, as a middle class white man, to think through these memories and to force myself to delve deeper. It’s a kind of luxury that my social and economic power bestows on me. I was on the beneficial side of apartheid, so I have the luxury to remember only partially.

This story I have told you, is one that could neatly fit into the dominant narratives about white people’s lives — especially the lives of “innocent” children — during apartheid. These are the stories you often find in the media and in many memoires and novels invoking the apartheid past from the perspective of a white child. In these narratives, an innocent white child describes an intensely personal interior life, somehow untainted by the horrors of the apartheid system, even as that apartheid system is experienced as being vaguely unjust by the child.

But as the nostalgia overwhelmed me while I poured over the fading picture of myself on that white beach at the age of seventeen, looking for clues of the man I became (or, perhaps, continues to become, one day at a time), I forced myself to think about that which often remains unremembered and unsaid about my own life (as it so often remains unsaid and unremembered for white people in South Africa). I experienced a sharp jolt, something like an ache — almost pleasurable in its painfulness, not unlike acute forms of nostalgia — as other memories about that holiday in Mosselbay flooded in.

That beach on which the picture was taken, I now recall, was reserved for white people only. Not that this is a memory I would be able to conjure up at all. At the time I had the luxury as a white boy to experience apartheid as normal and, if the truth be told, I cannot recall finding that whites only beach strange in any way. The evil lodged at the centre of many of our privileged lives then, to rephrase Hannah Arendt, was exactly the banal normality to us of what we experienced every day, despite being engulfed by a sea of injustice, despite living in a country in which our “normality” could not — morally at least — ever be considered to be normal.

I am also forced to remember my stubborn silence over the two weeks I spent on that farm as I watched my cousin every evening as he handed each of the farm workers their bottle of wine at the back door of the main farm house. “A kind of bribe,” he joked with me on the first night, winking and punching me playfully on the arm, this cousin of mine with his young wife and his two blond daughters. It would be many years before I could name this practice as the dopstelsel and could describe its feudal origins and harmful effects.

Although these political insights about the exploitation of black workers now come easily to me — as does the, perhaps too glib or self-righteous, condemnation of these racist practices – I wonder if I dare to call up the emotions I felt then (emotions — let me dare to go there — of fear and disgust and pity, animated by my own deeply entrenched racism) as I watched the farm workers performing their sad ritual of subjugation towards their volatile overlord, my genial cousin?

Which also raises the question of what other uncomfortable or shameful memories about those two weeks on the farm I am choosing not to dredge up or which I am choosing deliberately to withhold from the readers of this column (from myself?) in an effort to paint myself in a more sympathetic light?

I recall all this to make the point that in South Africa, especially for a white person vaguely aware of our apartheid history, the past is a complex, often painful, and even dangerous beast. That is one of the reasons, I suspect, why so many white South Africans urge us all to put the past behind us. It’s a bit like insisting on locking a once beloved but now crazy aunt away in the cellar of your house and pretending to the outside world that she is dead.

This imposed amnesia is of course not an effective way to deal with the past. The crazy aunt can be locked up in the attic, but from time to time she will let out a piercing scream, reminding both you and your visitors of the complex feelings you harbour towards her.

Given these impulses, it is not surprising that when writing about a public figure from the socially, culturally and economically dominant sector of society after his or her death there is a strong impulse among those empowered to make decisions about such things to smooth out the creases of the person’s life and to skim over the more complex and problematic aspects of their apartheid era lives.

I may be wrong, but it seems to me there is far less reticence to dig up insalubrious detail of a person’s life after they pass away if that person happens not to be a member of the upper echelons of the old establishment. For some it is far easier to say brutally honest things about the late Manto Tshabalala Msimang than about the late Harry or Bridget Oppenheimer.

Call it a form of subliminal racism; call it self-preservation; call it a combination of factors that can all be traced back to the question of who has the power to decide how we remember and what we remember about the past; call it the way in which power perpetuates and preserves itself.

I suspect there is often not a conscious decision by journalists and commentators to treat the two kinds of people differently after they pass away. Rather these things play out in accordance with a script that remains invisible — like tracks hidden just beneath the surface of the water in a Disneyland pleasure ride. It is the way power works to construct a certain reality, a knowledge about the world, based on the half-truths and silences of those who control the means of producing dominant forms of knowledge. And in our society social, cultural and economic power (but, of course, not political power) largely still reside with people who look or sound like Bridget Oppenheimer or with people who feel a strong emotional association with everything that people like Bridget Oppenheimer stood for.

Is this perhaps why most of Bridget Oppenheimer’s obituaries, while mentioning her kindness and her good deeds, failed to mention that her life and her “good deeds” were made possible by the wealth amassed by her family, who ruthlessly exploited migrant labourers on their mines and mistreated the workers who dug up the gold from these mines. Is that why these obituaries were mostly silent about the fact that for a long time she and her husband, Harry Oppenheimer, did not think that apartheid was morally wrong, and believed that separation of the races was necessary to maintain so called “white civilisation”?

There is, of course, an injustice in how power operates to erase some collective memories and amplify others. There is also a lesson there about how power is retained by those at the top of the social and economic heap.

But this smoothing out of creases in the lives of members of the dominant elite, is also, to my mind, profoundly life-denying. It seems to me there is something intensely meaningful and life affirming in moving to an understanding of yourself that goes beyond one-dimensional and clichéd narratives in which you always remain the unblemished hero of your own life.

Humans are complex and flawed creatures and this is, in its own way, beautiful. But for many South Africans the fear of confronting at least some dimensions of the less than heroic aspects of their lives, rob them of the ability to be fully human.

That, too, it seems to me, is a kind of minor tragedy.

Employment Equity: Solidarity case affirms its role in addressing effects of injustice

It will take many years to address the corrosive effects of 350 years of colonialism and Apartheid and to rectify the profoundly unfair and unequal racial distribution of resources, opportunities and privileges that persists in South Africa to this day. Constitutionally required redress measures (also sometimes wrongly called “affirmative action”) are therefore a pre-requisite for the achievement of the equality guaranteed by the Constitution – not an exception to the guarantee of equality. Constitutionally, the only question – as a recent Labour Court judgment about the use of regional demographics in employment equity plans demonstrated – is how these redress measures should be implemented.

For many middle-class South Africans, Cape Town can feel like a foreign country. When we walk into a restaurant or bar in the city centre, or attend an opening of an art exhibition or film festival, my partner will often be the only black person in the room. Although the majority of Capetonians live in sprawling Apartheid created suburbs like Gugulethu, Khayelitsha and Mitchells Plain, this majority often remains socially invisible to those who easily and uncritically rely on their Apartheid created privileges to get ahead in the world.

I am always surprised by how unaware many privileged people are about how bizarre and morally disturbing this is. Given the fact that talents and abilities are equally distributed in the population at large, the fact that the middle-class spaces in Cape Town remain dominated by those who benefited from Apartheid (or continue to benefit from it as the children of Apartheid beneficiaries or the beneficiaries of whiteness), says much about the way in which deeply entrenched patterns of racial discrimination continues to reproduce a class of privileged white South Africans.

This is not a world in which talk of equal rights trips easily off the tongue. There can be no serious talk of equality and non-discrimination in a world in which racial discrimination is structurally built into the system and skews the way in which privileges and opportunities are distributed – mostly along racial lines.

It is in this context that arguments about the supposed “reverse racism” of redress measures can sound ludicrous and embarrassingly self-serving. In Solidarity and Others v Department of Correctional Services and Others, Solidarity and Others v Department of Correctional Services and Others, lawyers for Solidarity advanced just such an argument.

Wisely, Solidarity did not challenge the constitutionality of the relevant provisions of the Employment Equity Act (EEA). Such a challenge would certainly have failed, given the Constitutional Court jurisprudence on redress measures and not even Solidarity and its lawyer, Martin Brassey, were foolish enough to pursue that line of reasoning.

Instead Solidarity, in effect, attempted to sneak a challenge to the principle of redress measures in by the back door, arguing that any redress measures aimed at addressing the effects of past injustice and breaking the cycle of racially-determined disadvantage created by Apartheid, would be unfair and would not comply with the requirements of the EEA.

In terms of this argument, we have to ignore the past 350 years of racial discrimination and dispossession. We must disregard the manner in which privilege, accumulated over 350 years, remains deeply entrenched along racial lines and are carried over from parents to children through distribution of accumulated financial wealth to children, better schooling opportunities provided to children and the inheritance of social capital associated with being white and part of the socially dominant group in society.

For obvious reasons, the Labour Court rejected this argument. Pointing out that the Constitutional Court has found that redress measures are a prerequisite for the achievement of substantive equality, the court affirmed that the Employment Equity Act (EEA) itself mandated the imposition of redress measures in the workplace.

The restitutionary measures required by the EEA do not, as Solidarity argued, amount to equal opportunity for designated groups to compete “with the prime beneficiaries of past systemic and institutionalised discrimination”. After all, no one argued in the case that a level playing field had been reached for the enjoyment of these equal opportunities. In any case “no such submission would withstand scrutiny”. Referring to Census 2011, the court quoted the following analysis to illustrate the persistent inequality in our society:

The labour absorption rate among black African men was 40,8% compared with 75,7% among white men, while the LFPR among black African women was 28,8% compared with 62,5% among white women…In terms of the other population groups, the labour absorption rate among men in the coloured population group was 52,0% and among women in that group it was 42,3% Among the Indian/Asian population group, the absorption rate was 64,9% among men and 43,9% among women.

In short, the judgment once again affirmed that redress measures are not discriminatory. Redress measures are not a form of “reverse discrimination”, instead they are a prerequisite for the achievement of equality – something which we have not yet achieved and will not achieve for some time to come. It is exactly the absence of redress measures that would be discriminatory as this would perpetuate 350 years of racial privilege and would allow the status quo to continue.

These views are uncontroversial and only the uninformed and the anti-constitutionalists hold otherwise. However, the one interesting point raised by the judgment related to the question of whether the Department of Correctional Services (DCS) could make exclusive use of national racial demographics when it set numerical employment equity targets in the Department, when the racial demographics differ sharply from province to province. On this point the Labour Court found that the DCS employment equity plan fell short.

It is important to note that this judgment only relates to an interpretation of the EEA and does not deal with redress policies and plans (such as admissions policies of Universities) not regulated by the Act. Because of the unique wording of the Act, the court found that the failure of the DCS to take cognisance of the regional racial demographics in the Western Cape – where more than 50% of the population belongs to a group which during Apartheid was designated as “coloured” – rendered its Employment Equity Policy invalid.

Section 15 of the Act (read with section 6(2)) explicitly mandates “affirmative action” measures in the employment context. These measures are defined as:

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.

Section 42 of the Act further allows both the demographic profile of the national and regional economically active population to be taken into account when measuring compliance with the employment equity provisions of the Act.

The Labour Court found that, having regard to the Codes of Good Practice promulgated in terms of the Act, both regional and national demographics must be taken into account when devising and implementing an “affirmative action” policy in the workplace. The judgment thus strikes a balance between the need to address the different effects Apartheid had on groups differently defined and treated by the Apartheid state, while not ignoring the disadvantage suffered by black people not defined as “African”:

I stress that the fact that national demographics must factor into all employment equity plans provides for a safeguard recognising that is was the African majority in this country that were most severely impacted by the policies of Apartheid. However, that regional demographics must be also considered, asserts the right of all who comprise black persons in terms of the EEA to benefit from the restitutionary measures created by the EEA, and derived from the right to substantive equality under our Constitution.

All black South Africans were discriminated against during Apartheid and racism still negatively affects all black South Africans. It might not affect everyone in exactly the same manner, but an Employment Equity Policy had to recognise that continuing harmful effects of past (and on-going) racial discrimination. Besides:

The necessity of restitutionary measures is part and parcel of a healing process… [I]t was the policy of successive white minority governments in our country to ‘divide and rule’ black South Africans, a policy which was long founded in British colonial policy. The Constitution’s injunction to heal the divisions of the past cannot contemplate law or conduct which add salt to the wounds caused by the divide and rule policy of by-gone eras.

The judgment is less of a victory for Solidarity than widely reported in the media. It affirmed the importance and legal validity of employment equity measures and also accepted that groups who used to be defined differently in terms of Apartheid race categories, still often have different opportunities because of the varying degrees of past and on-going racial discrimination. The principle is not in issue: only the manner in which it is being implemented is.

The emotionally charged Hlophe case, revisited

It has become very difficult to have a rational discussion about either the legal issues or the issues of principle underlying the way in which the complaint lodged collectively by judges of the Constitutional Court against Judge President John Hlophe are being dealt with. Emotions are running so high among both vehement critics and ardent supporters of Hlophe that both sides seem to believe their opponents hold bizarre and even shockingly immoral views damaging to the judiciary and to the country. The truth probably lies somewhere between these two extreme views.

When Constitutional Court Justices Chris Jafta and Bess Nkabinde testified under oath before a Judicial Service Commission (JSC) hearing in 2008, they both denied that undue or inappropriate pressure from other judges of the Constitutional Court coerced them into being part of a collective complaint lodged by the Constitutional Court against Judge President John Hlophe.

At the time these denials seemed strange if not completely implausible. This is so because after the Constitutional Court announced that it was laying a complaint against Hlophe because of his alleged improper attempt to try and influence judges to rule in favour of President Jacob Zuma in a case dealing with the validity of search and seizure warrants on Zuma’s properties and those of his attorneys, the two judges issued a remarkable joint statement.

In this statement they recorded that they “have not lodged a complaint and do not intend to lodge one.” They placed on record further that they had told other judges of the Constitutional Court “on a number occasions” that “we were not intending to lodge a complaint and neither we were willing to make statements about the matter.”

For some as yet unexplained reason the judges changed their mind and endorsed the joint compliant of the Constitutional Court. At the time, giving the two judges the benefit of the doubt, it appeared to me as if they did this because they realised that if indeed an improper approach was made to them to try and influence a judgment of the Constitutional Court, this was by no means a private matter only affecting them, but a matter of the highest public importance potentially affecting the legitimacy of the Constitutional Court and of the judicial system as a whole.

Their testimony before the JSC at the time said as much. Thus Jafta told the JSC:

Once it had been explained clearly, the distinction between, on the one hand the interest of an individual judge, and the integrity of the institution on the other hand, we were willing to participate in the complaint at that level so as to protect the integrity of the Constitutional Court.

When Nkabinde was asked why she did not want to be an individual complainant against Hlophe she said:

Mr Commissioner, I think in retrospect, one could have done that. This thing happened at the time when one was busy doing all sorts of things. My mind was not clear at the time as to really what is the right thing to do, and given that complexity, I didn’t see it very clearly.

When asked if she was a willing participant in the collective complaint of all the Constitutional Court justices she told the JSC: “Oh yes, I didn’t have a problem.”

But last week the two justices once again seemed to change their minds. They were again reluctant to testify, the integrity of the Constitutional Court seemingly no longer of concern to them. The justices raised a defence that they are not obliged to subject themselves to the new proceedings (ordered by the Supreme Court of Appeal (SCA)) as the proceedings is a nullity because the relevant regulatory framework upon which the proceedings are predicated is a nullity. They intend to take the decision to reject their argument on review, suggestion that they are now extremely reluctant to testify.

From the outside, and without access to all the facts, this new U-turn seems truly bizarre. I cannot see how this serves either the interest of the Constitutional Court or the interest of the two justices (nor, I would add, the interests of Judge President Hlophe). Their present course of action cannot possibly be squared with their testimony given to the JSC under oath in 2008. Does this mean they lied under oath to the JSC back in 2008? Or does this mean they did not lie in 2008, but that they have decided to that it was not worth it for them to try and protect the integrity of the Constitutional Court by testifying at a hearing because of the political pressure brought to bear on them?

This exposes the judges to questions about their own integrity. There may be other reasons for their many U-turns, but in the absence of a full and plausible explanation from the two justices, they run the risk of appearing to be either spineless and weak or unprincipled and perhaps dishonest.

The U-turns are particularly strange in the light of the damning (but contested) evidence given by the two Justices against Hlophe at the original JSC hearing.

When the two judges in 2008 proceeded to give evidence before the JSC under oath they made claims which, if true, would show that Hlophe had tried to influence them in an inappropriate manner. Jafta testified under oath that Hlophe had told him that Zuma was innocent, that he was wrongly prosecuted; and “sesithembele kinina” (we are relying on you, you are our last hope). Hlophe denied (again under oath) that he ever uttered these words.

Nkabinde similarly testified that Hlophe had told her there was no case against Zuma “that he has connections with the minister” whom he advises, that he has a mandate and that he “had a list of names from intelligence containing names of people involved in the arms deal who may lose their jobs. Once again Hlophe denied many of these allegations.

If these allegations are true and if the denials issued by Hlophe are not accepted by the Judicial Conduct Tribunal, then it would be difficult not to conclude that an impeachable offence was committed by Hlophe. It would amount to a shocking attempt to influence the highest court in the land in order to protect the President from criminal prosecution. It would constitute an attack on the constitution and as it would amount to an attempt to subvert the highest law of the land. The JSC (in a pre-Zuma guise) found as much.

After all, if a judge of one court – claiming to have political connections and a mandate to protect a politician – approaches judges of a higher court in an attempt to influence their judgment in order to try and protect the President of the country from criminal prosecution, it would strike at the heart of the integrity of the legal system. It is difficult to shy away from this stark conclusion.

I would think that for many lawyers who have experienced the systemic racism in the legal profession and in our wider society, it would be emotionally very difficult to accept this conclusion. This would be so, not because they do not believe in the importance of safeguarding the integrity of the Constitutional Court or of the judiciary, but because the carefully cultivated image of Hlophe as a champion for racial transformation, as the one black judge who had been brave enough to challenge racism in the legal profession head-on, is difficult to square with allegations of this magnitude. How can a champion of redress and justice also be a man of rank dishonesty who lacks even the basic integrity required for a sitting judge?

After all, after it emerged that Judge Hlophe had been paid money by an insurance company with a rather unsteady reputation before finally granting that company permission to sue a fellow judges (after the company increased the payments), he authored a report on racism in the Western Cape legal fraternity and the judiciary which he sent to the then Chief Justice. And is it not the oldest trick in the book to try and discredit those who speak out about racism and in favour of transformation by starting to question their credibility and integrity? Did Prof Malegapuru William Makgoba not face this very same tactic when he started challenging the racism of white liberals at Wits?

But regardless of these political dynamics which have (understandably, in my opinion) brought much sympathy and also fervent support for Judge President Hlophe, and regardless of the various technical legal arguments raised in the case, I believe some facts cannot be avoided.

Fact one: given the directly conflicting testimony given under oath at the previous JSC hearing, either Hlophe is a liar or Jafta and Nkabinde are liars. Fact two: a judge who lies under oath cannot and should not be allowed to serve on any court. Fact three: the allegations made by Jafta and Nkabinde, if true, constitute an impeachable offence.

Fact four: unless the appropriate body (whether the Judicial Conduct tribunal or the JSC) makes a finding on which version of events must be believed, the credibility of all three these judges would be fatally compromised. Fact five: unless there is a full hearing in which all parties can give evidence and can be cross-examined, we will never know whether pressure was brought to bear on Jafta and Nkabinde to testify against Hlophe and neither will we know if they were improperly influenced NOT to testify against Hlophe.

One or more people lied. But the person or persons who lied is not an ordinary grubby politician and the lie is not a little white lie about having one drink too many at an office Christmas party. It is in the interest of every litigant who appears before our courts – from the indigent person resisting an unlawful eviction for his or her shack, to the President of the country – that the integrity of judges should be beyond reproach. Once a belief starts taking hold that judges cannot be trusted to make decisions impartially – without being influenced by politicians who trade in power or private business parties who trade in bribes – the legal system ceases to serve the interests of the most vulnerable and marginalised and start serving only the interests of the well-connected and the rich.

It is for this reason that it, surely, cannot be in anyone’s interest not to go ahead with a full hearing in which a credible body would, once and for all, decide where the truth lies. Given the fact that some of the usual suspects (who also resist transformation of the judiciary) have lined up against Judge President Hlophe, it might be tempting for some of us to try and sweep this whole sorry saga under the carpet, to let sleeping dogs lie and to hope that whatever happened in this case was an aberration that would not permanently taint the integrity of the judiciary.

Over this past week I myself flirted with this idea. But the facts keep getting in the way. As the Supreme Court of Appeal (SCA) remarked when it set aside the decision of the JSC not to decide whether it was Hlophe or the two reluctant complainants who had been lying:

It is alleged that a very high ranking judge, the head of one of the biggest divisions of the high court, attempted to influence two of the judges of another court to decide a matter in a particular way. The allegation was considered to be so serious as to constitute gross misconduct which if established may justify the removal of the judge from office. It cannot be in the interests of the judiciary, the legal system, the country or the public to sweep the allegation under the carpet because it is being denied by the accused judge, or because an investigation will be expensive, or because the matter has continued for a long time.

I am fearful of the damage this Conduct Tribunal will do to the reputations if all concerned. What if Justices Nkabinde and Jafta had completely overreacted to the approach by Hlophe and if they had embellished their testimony before the JSC? In that event, Hlophe would have been wrongly persecuted and the two judges would have perjured themselves and would certainly have to face a Judicial Conduct Tribunal of their own for their rank dishonesty. What if they were originally pressured to testify? What if they were now improperly pressurednot to testify?

But what is the alternative? Should we ignore the elephant in the room and pretend that nothing went very badly wrong in this case? It seems to me, no matter how painful and potentially damaging to some of those involved in this case, the only responsible course of action is to have an exhaustive and credible process to find exactly where the truth lies. Anything else will leave a festering sore at the heart of our judiciary.

When a joke is not a joke

There are not many people who would happily agree that they are humourless. (Idols judge Randall Abrahams may be one of the few people who, in public, at least, pretend to be humourless.) This is why people who unthinkingly perpetuate racist, sexist or homophobic stereotypes often defend themselves by depicting their critics as humourless.

Comedy can be squeezed from the most shocking and bleak events. Earlier this year the Cape Town Holocaust Centre hosted a play, The Timekeepers, about a flamboyant gay German and a conservative elderly Jew befriending each other while working together repairing watches for the Nazi’s. On the night I attended the performance, the audience at first responded uncomfortably to the humour in the play. Like others in the audience, I too at first shifted around uncomfortably. Can we really laugh about these things, I wondered? But as the actors skilfully won us over (with the help of a clever script), the laughter became louder and more sustained. Humour, in this case, became a powerful weapon to affirm the humanity of the victims of Nazi atrocities.

But humour (or what is presented as humour) can sometimes be used by the economically, culturally and socially dominant as a vehicle to endorse harmful stereotypes and to promote prejudices (often invisible to them) about groups who are less powerful and influential in our culture. It can also be used to assert control over what we may and may not think and say.

In such cases the unstated aim of the supposed humour is often to re-enforce the idea that the prejudices and stereotypical assumptions on which the “joke” are based are normal or natural and therefore entirely harmless. “This,” implies the person who makes the so called joke, “is just the way the world is and if you do not find it funny you are a dour and self-righteous prig, one that is too stupid or too lacking in joie de vivre to laugh at yourself and at your own oppression.”

If you happen to not be part of the economically, socially and culturally dominant group, you will probably find it hard to mask your own prejudices by silencing others with the defence that you were merely joking when you expressed these prejudices. You just do not have the power to dictate what is funny and what is not funny. Your view of the world is not the dominant view, so if you tried to assert your dominance by dictating what should be regarded as funny and what is not, you will only dig a deeper hole.

However, those whose prejudices, irrational beliefs, interests and assumptions form the basis for how the world is structured and how knowledge is produced and legitimated, often hold immense sway in society. Because of this dominance they often manage to control the discourse and to make their own prejudices, irrational beliefs, interests and assumptions appear normal and inevitable.

For such people, invoking a supposed superior sense of humour is therefore an excellent strategy to delegitimize those who challenge their prejudices, irrational beliefs and unexamined assumptions. One way to do this is to decry others who criticise you as humourless and to justify your sexism, racism or homophobia on the basis that you were “only” making a joke.

On the one hand this “it’s only a joke” defence is a powerful tool in the hands of those who benefit the most from the normalisation and entrenchment of cultural prejudices and stereotypes. It helps to assert their power to decide what all of us are legitimately allowed to think and feel and when we are allowed to laugh and when we are not. On the other hand, it reassures everyone who holds the view that these stereotypical beliefs and prejudices are true and therefore not stereotypes or prejudices at all, and are worthy of jokes.

This phenomenon was recently on display in an article published on the front page of the Cape Times, a Western Cape publication presenting itself as a serious newspaper. The article, reporting on the results of a household survey, stated: “If you want a tidy house for the rest of your life, never make a Western Cape woman your wife.” This was obviously a play on the 1963 song by Jimmy Soul entitled: “If you wanna be happy for the rest of your life, never make a pretty woman your wife”.

After reading the article, I jotted down an email to the editors pointing out the sexist and patriarchal stereotypes being perpetuated in this introduction. In a puerile response the editors basically said: “It’s a joke, get over it.” (Translation: “Shut up you humourless cow. How very dare you tell us that we harbour any prejudices”.) This kind of response often reflects unadulterated hubris on the part of the person who made the “joke”. It also often reflects the unquestioning belief of those who use the joke defence that they are the final arbiters of what is funny and what is not.

People whose world view is dominant and who benefit from the way in which society is structured and how “knowledge” is produced, often resort to the joke defence in an attempt to re-assert what they believe is their unquestioning right to control the discourse, and thus to control what those who are not like them are allowed to think and feel.

The joke defence is not unlike the retort often used against people who criticise racist statements and actions by white people. When you call out somebody on his or her racism you are often told that you are “over sensitive” or that you should stop playing the “race card”. Those who use the race card defence do so in order to silence others who dare to complain of racism and racial discrimination. It is used to re-assert the right of the culturally dominant group to be the final arbiters on what constitutes racism and what not.

Decrying others for using the race card, therefore, often amounts to no more than an attempt to re-assert cultural white baasskap. It is often aimed at taking back control of the situation in order to shield the racists from criticism and exposure. It is often no more than an obvious attempt to deploy the power of “whiteness” to dictate what may and may not be spoken about.

Those who invoke the race card defence to try and silence those who criticise racism are really saying: “have the right to decide what is racism, but you ­– the possible victim – never do. In my own mind I am, after all, die baas van die plaas.

People who complain that others “play the race card” often contradict themselves and play the race card themselves when white people are criticised, or when the notion of whiteness is exposed and critiqued. According to this bizarre view, only those who complain about the racism of white people can ever play the race card. According to this belief, white people who complain about racial prejudices in black people are merely using their power to decide what is racist. Apparently they never play the race card because they are the ultimate arbiters of what constitute racism. It is a textbook example of how white privilege is deployed in our discourse.

Similarly the defence that a clearly sexist article was just a joke (albeit one that relied on a harmful stereotype about the appropriate role of women in heterosexual relationships) relies on the power of patriarchy. It asserts the right of the editors (either men or, if not men, then women who accept the oppressive gendered nature of relationships much like hostages with Stockholm Syndrome sometimes accept the authority of their capturers) to decide what is funny and what is not. The article in the Cape Times obviously normalizes patriarchal and oppressive gender roles. It is based on the assumption that women do the housework and men marry women partly to enslave them into doing their housework for them.

In our society housework has a low status and where it is done for pay, the remuneration is low. (In excessively gendered relationships such work is often done for free.) Many men still expect women to do the housework and work hard to maintain the traditional exploitative gendered structure of intimate relationships. Men who help with housework are often ridiculed as hen-pecked and depicted as feminized and therefore less worthy of respect, as less powerful. (This is an indispensable source of hilarity for some sexist comedians.)

Many women in South Africa still find themselves in such exploitative relationships in which strict gender roles are enforced, sometimes through violence or the threat of violence and sometimes through the power of “tradition” and societal expectations policed or promoted by the kinds of people who seem to be editing the Cape Times. The article in the Cape Times took this state of affairs for granted, as if this was the most normal thing in the world, and made fun of it. The “joke” was not aimed at challenging the idea that housework should be done by women or to critique the way in which gender roles are used to exploit women to do work for little or no reward. The “joke” was based on the assumption that we all agree that it is perfectly normal and acceptable that wives do the housework while their husbands edit newspapers.

When they were caught out, they had to re-assert their power by invoking the joke defence. This is all about power. Who has the power to decide what is sexist? And what is a joke? A first step in challenge this insidious working of patriarchal power is to unmask it, even at the risk of being called humourless by those who wish to protect their own power.

Qwelane: still a homophobe, but his challenge to hate speech clause is sound

Jon Qwelane, South Africa’s Ambassador to Uganda (that bastion of respect for the human dignity of all), is a self-confessed homophobe. He also used to be a spectacularly unaccomplished columnist. His Sunday missives often read like the first draft of a stag party speech written in a bar on the back of a cigarette box. But he must have a talent for constitutional law, because his contention that the hate speech clause in the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA) is unconstitutional, is sound.

In 2011, former Sunday Sun columnist, Jon Qwelane, was found guilty of hate speech for contravening section 10 of PEPUDA. The Court found that an article he wrote (as well as an accompanying cartoon) propagated hatred and harm against gay men and lesbians and ordered him to apologise unconditionally and to pay a R100,000 fine to the Human Rights Commission.

In the article Qwelane fumed against “gays” and “lesbians”, stating in apparent horror: “nowadays; (sic) you regularly see men kissing other men in public, walking holding hands and shamelessly flaunting what are misleadingly termed their ‘lifestyle’ and ‘sexual preferences’”. He concluded:

I do pray that some day (sic) a bunch of politicians with their heads affixed firmly to their necks will muster the balls to rewrite the constitution of this country, to excise those sections which give licence to men ‘marrying’ other men, and ditto women. Otherwise, at this rate, how soon before some idiot demands to ‘marry’ an animal, and argues that this constitution ‘allows’ it?

I assume when Qwelane referred to men kissing other men in public he was not referring to Premier League Football players regularly celebrating the scoring of a goal by hugging, kissing each other and flaunting their joy at “scoring” with such gay abandon. Neither am I sure why flaunting one’s love for another adult human being in public would horrify anybody – unless it stimulates delightful longings in them that they would rather like to repress.

I regularly see heterosexual couples kissing and holding hands in public and shamelessly flaunting their so called heterosexual “lifestyles” and it does not bother me at all. Really, it does not. (I may have issues with the way in which some heterosexual suburban couples decorate their houses – I mean, really, a braai inside the house – but after serious soul searching I have concluded that this horror I have of suburban kitsch is not enough to warrant support for discrimination against all heterosexuals.)

I assume my broad-mindedness stems at least partly from the fact that I have no secret yearnings (suppressed by religiously instilled self-hatred) to engage in a so called heterosexual lifestyle myself. I am relatively ambitious, so I obviously do not aspire to the heterosexual lifestyle (I tend to aim a bit higher) but I firmly support equal rights for all heterosexuals.

Neither do I believe just because the constitution prohibits the law from discriminating against heterosexuals and allows them to marry that one of these days an idiot heterosexual would demand to marry an animal (of a different sex, I would assume). This is because – unlike Qwelane – I do not associate sexual intimacy with having my way with a goat. Call me old fashioned or unadventurous, but usually when I think of sex I imagine this to be between two human beings. Qwelane must have a more fertile imagination.

Qwelane has been stalling ever since he was found guilty of hate speech, but last week he announced that he was challenging the constitutionality of the relevant PEPUDA provisions.

Contrary to popular belief, the Constitution does not prohibit hate speech. Section 16(1) of the Constitution allows “everyone” (even homophobes like Qwelane) the right to enjoy freedom of expression. However, section 16(2) excludes certain forms of speech from protection and thus allows the legislature to limit these excluded forms of speech. Section 16(2)(c) – sometimes referred to as the hate speech exclusion – thus states that advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm, is not protected by section 16(1).

It would therefore be impossible to challenge the constitutionality of any legislative provision that mirrors the wording of section 16(2)(c). But PEPUDA goes much further than section 16(2)(c) and imposes a far more drastic limitation on freedom of expression than that allowed by section 16(2)(c).

Section 10 of PEPUDA states that a person may not “publish, propagate, advocate or communicate” words against any person based on prohibited grounds such as race, sex, gender, disability, sexual orientation and religion “that could reasonably be construed to demonstrate a clear intention to be hurtful; be harmful or to incite harm; promote or propagate hatred”.

Although bona fide engagement in artistic creativity, academic and scientific inquiry and fair and accurate reporting in the public interest are excluded from this prohibition, it would still include many forms of expression, including much of what is written in opinion pieces in newspapers and on blogs as well as much of what is preached in religious institutions. The provision may well therefore be overbroad and unconstitutional – just as Qwelane argues.

Unlike the exclusionary provision in the Constitution, section 10 does not require the speech to constitute “incitement to cause harm”. All that is required is that a reasonable person must believe that the speech had the intention to be hurtful to a designated group. Unlike the exclusionary provision in the Constitution, section 10 does not only deal with speech based on race, gender, ethnicity or gender. It limits potentially hurtful speech based on all 16 grounds listed in section 9 of the Constitution, as well as all similar grounds. These include sexual orientation, age, marital status and disability.

Section 10 does not require the aggrieved party actually to show that the person who engaged in the speech had the intention to be hurtful or to harm anyone. Neither that the speech actually incited or caused harm. All he or she will have to show is that a reasonable person, looking at the context within which the words were spoken, would have construed the person who uttered the words as having such an intention.

Of course, the age-old problem about how we decide what a reasonable person would have thought when it seems impossible in a diverse society like ours to postulate a single universal standard of reasonableness, will raise its head in each case. Are we going to rely, yet again, on the view of the so-called reasonable, middle-class, white, heterosexual man when we must decide what a reasonable person would have thought – as the courts explicitly did until recently and often still do implicitly?

A criticism levelled against the judgment in the Julius Malema hate speech case in which he was found guilty of hate speech on the basis of race when he sang “Awudubula (i) bhulu… Dubula amabhunu baya raypha”, is exactly that the judge used such a reasonable white man standard in concluding the words constituted hate speech.

But even if we could overcome this problem and could, miraculously, conjure up a completely neutral standard against which to judge what is reasonable, section 10 of PEPUDA would still potentially have a severe chilling effect on freedom of expression (as well as on freedom of religion). Much of the teaching of mainstream religious groups on homosexuality, for example, would almost certainly fall foul of the hate speech provision.

When a priest or imam targets “practicing” gay men and lesbians (as if we need any practice) in a talk and brands us as “sinners”, many so called reasonable people will surely assume that they had the intention to be hurtful to gay men and lesbians. After all, people who are hurting are more vulnerable and more likely to believe what you have to sell to them.

Much of the less sophisticated rhetoric of (some, but not all) religious leaders are aimed at putting the fear of God into people and at making them feel bad about who they are and how they live their lives in order to present some sort of Messiah as the alternative that would cure you of your fear and your (religiously-instilled) self-disgust. How can this simplistic rhetoric so often employed by religious groups not be aimed at hurting gay men and lesbians?

But should such speech be banned? I am far from certain that it should. After all, when someone peddles his or her sad and petty hatred of others because who they love, I pity the person and feel slightly embarrassed on his or her behalf. Why ban certain forms of speech just because it reveals that those who engage in it are wretched (and often lost and unthinking) fools?

Of course, some speech may pose a threat to the constitutionally mandated objective of building the non-racial and non-sexist society based on human dignity and the achievement of equality. Such speech can and should be limited in a constitutionally permissible manner – even if it falls outside the exceptions carved out in section 16(2). But such a limitation on freedom of speech cannot be overbroad.

Given the fact that section 10 clearly limits the right to free expression, that the reach of the section is extremely broad and that a more narrowly tailored provision would probably be able to serve the same important purpose of protecting our democracy against speech that hatefully incite harm against others, I suspect that Qwelane might just have gotten lucky and that his constitutional challenge will be successful.

Mogoeng v Hoffman: Better not to roll around in the mud with the pigs

The unseemly and racially charged row which has erupted after Paul Hoffman laid a complaint against chief justice Mogoeng Mogoeng at the Judicial Service Commission (JSC) for remarks the chief justice made about judicial transformation provides a textbook example of the manner in which race often colours our judgment and determines how we view a specific event. Whenever the matter of racial transformation is raised, most protagonists become blind and deaf to reason, choosing racial solidarity over rational debate and critical reflection.

In his (now infamous) address to Advocates for Transformation, chief justice Mogoeng Mogoeng delivered a spirited defence of the JSC, while also arguing for the need to change briefing patterns to help open up the legal profession to more women and black South Africans. He also pointed out – correctly in my view – that “standards” are often invoked by those who oppose transformation in a blatantly racist manner that associates high standards with white men and a lowering of standards with the opening up of the profession to women and black South Africans.

The chief justice did not say anything that many of us have not been saying and writing for ages.

Paul Hoffman of the Institute of Accountability (which I thought consisted of no more than one man and a fax machine, but whose website indicates that a gaggle of white men and women are associated with it), took umbrage at these remarks, arguing that the chief justice had brought the judiciary of South Africa and the high office which he holds into disrepute because he had descended into the arena of contestation and controversy in respect to issues which are pending in the High Court.

But upon closer inspection of the complaint against the chief justice, the real complaint is not that he forcefully (and undiplomatically) spoke about judicial transformation. After all, our judges often speak out about controversial legal issues. Just two weeks ago I lauded the late justice Pius Langa for a speech he made in Stellenbosch in favour of “transformative constitutionalism”, a highly controversial and contested concept. No one complained when Langa made this speech, perhaps because it dealt more broadly with transformation and did not directly threaten the interests of the white men who remain the largest financial beneficiaries of the legal profession.

In the past, other judges have been lauded for speaking up about the need to respect the rule of law, for example. As far as I know, no one lodged a complaint with the JSC against a judge for doing so. A senior judge even has his own TV programme in which he quizzes panellists about highly controversial political matters. Hoffman, as far as I’m aware, has not lodged a complained about any of these judges with the JSC.

One might argue that this instance is different because the issue of whether the JSC implements its section 174 mandate in a constitutionally valid manner might still come before the Constitutional Court. But this does not seem like a plausible argument, as the chief justice (as head of the JSC) would have had to recuse himself from hearing such a case in any event. He was therefore never going to hear a case dealing with the JSC, whether he said anything about its work in public or not.

This suggests that the disagreement is not about a profound matter of principle (should a judge ever comment on a controversial constitutional issues) but rather about the ideological substance of the views expressed by the chief justice. This disagreement is, of course, fuelled by self-interest and by the protection of the status quo. Judges can speak up, the attitude seems to be, as long as they say what we want them to say and do not say anything that threatens our financial and other interests.

According to Hoffman’s complaint, the remarks of the chief justice are premised on an untenable legal interpretation of section 174(2) of the Constitution, a section which requires the JSC to take into account the need for the judiciary to reflect broadly the racial and gender composition of South Africa. According to Hoffman, these remarks conflicted with the provisions of section 9 of the Constitution, which proscribes “unfair discrimination against ‘white’ male lawyers”.

This is, of course, uninformed nonsense. Whatever one may personally think of the merits of race-based redress measures (and I know the usual suspects will froth at the mouth and spew entirely uninformed nonsense about equality and discrimination after reading this column), no one with even a modicum of knowledge of the Constitutional Court jurisprudence of section 9 of the Constitution will be able to argue with a straight face that robust measures to transform the racial and gender composition of the judiciary in line with section 174 of the Constitution (read with section 9, especially section 9(2)) are constitutionally impermissible.

(Here is a dare: why doesn’t anyone tempted to comment on issues of race-based affirmative action first read and study the Constitutional Court judgment of Minister of Finance v Van Heerden? Once they have done so, I promise to engage in a reasoned and calm discussion with them on whether our Constitution endorses such forms of affirmative action.)

What the chief justice said about the transformation of the judiciary might upset some people. But it is not constitutionally controversial. Only the blind, the dishonest or those who are completely ignorant of the relevant judgments of the Constitutional Court (and of the wealth of academic literature on affirmative action written by both traditional liberal scholars like Ronald Dworkin, and by more progressive legal scholars) will claim otherwise.

The principles enunciated by the chief justice are therefore entirely uncontroversial (at least for the well informed). Of course, whether the JSC in fact always fulfils this constitutional mandate prudently and with the necessary wisdom to ensure the long-term legitimacy of the judiciary is another matter. Reasonable people can differ on this point.

Once we have all accepted that the Constitution not only allows, but requires, the JSC to pay regard to race and gender equity when it makes appointments to the bench, and that the legal profession has a special duty to advance transformation in the profession in order to safeguard the legitimacy of the judiciary (also by reviewing briefing patterns, as I have argued on numerous occasions), we could begin to have a productive debate about how the JSC should fulfil this mandate, and whether it is currently doing so in a astute and sensible manner.

By laying a complaint against the chief justice because he forcefully argued in favour of race and gender transformation of the judiciary, Hoffman muddied the waters and made it more difficult to have a real, reasoned, and level headed discussion about what the JSC is doing right, and what it is doing wrong.

This does not mean that I think the chief justice did himself any favours when he couched his valid concerns in such highly emotive language, indulged in sweeping generalisations and attacked unnamed individuals and groups. Nor was it helpful that he expressed what appear to be anti-democratic sentiments when he referred to those who disagree with him as indulging in an “illegitimate neo-political campaign” (whatever a neo-political campaign might be). In a democracy, people have a right to talk nonsense, so calling what they say illegitimate displays a rather worrying lack of respect for freedom of expression.

A wise judge always deals with specifics, not vague conspiracy theories. A wise judge – one of stature – does not insult unnamed NGO’s and commentators, but demolishes specific remarks and specific arguments made by commentators or NGOs with calmness, understatement and cold reason. He or she eschews emotional language and couches trenchant criticism in a diplomatic manner.

Such a judge understands that his or her stature as a judge grows when his or her remarks rise above the petty politics and narrow self-interest that people like Paul Hoffman wallow in. When you roll around in the mud with the pigs, you are going to get dirty. A wise judge knows this and avoids getting down with the pigs. He or she also knows that one’s stature as a judge is diminished if one appears to take criticism too personally and if one is too thin skinned.

Of course, it is not an impeachable offense for a judge to make a speech on a politically charged matter relating to the Constitution. The rule of law is a highly politically charged matter, as most Marxists will argue, but few of us would raise an eyebrow if a judge forcefully defends the rule of law in a speech before lawyers. Neither is it an impeachable offense to use emotive language when doing so. It might be unwise and counter-productive. But impeachable? Please, don’t make me laugh.

Luckily for the chief justice, the anti-transformation complaint lodged against him by Hoffman in defence of the (financial and other) interests of some white men detracted attention from the rather undiplomatic and otherwise stature-diminishing tone of the speech. Ironically, by attacking the chief justice and lodging a complaint, Hoffman enhanced the credibility of chief justice Mogoeng in the eyes of many of us. In fact, maybe justice Mogoeng should think of hiring Hoffman as his PR representative.

Such are the politics of race and redress in South Africa.

In a world in which racism is deeply entrenched and in which the power and privilege of whiteness perpetuates and defends itself aggressively, it is difficult for most of us to choose sides in favour of white privilege (read, Hoffman). That is why we choose the side of the chief justice, even as we acknowledge that he could have presented his argument in a manner that displayed more wisdom, high-mindedness and maturity.