Constitutional Hill

discrimination

The freedom to be fabulous

South Africans do not all agree on the meaning of freedom. Whenever there is talk of the need to achieve economic freedom or the need to protect the freedom to be different, it becomes evident that we do not all mean the same thing when we talk about “freedom”. Maybe it is time to reflect more deeply on what we mean when we talk about freedom – before “freedom” becomes a meaningless cliché only trotted out by politicians when they want to stop us from thinking critically.

Last week President Jacob Zuma was on top form when he responded to the debate on the presidency’s budget in the National Assembly. In his speech a jovial Zuma lectured DA Parliamentary leader Mmusi Maimane, telling Maimane that he and his family were very fortunate to be living in a free South Africa, noting that this freedom was attained through the blood, sweat and tears of many selfless freedom fighters, in a liberation struggle that was led by the ANC.

We are indeed fortunate to live in a country where basic political freedoms as well as basic economic freedoms are protected in the justiciable Constitution. We are fortunate that the ANC, as the most prominent liberation movement in South Africa, ensured this expansive protection of freedom in the Constitution.

However, the gap between the promise of the Constitution and the lived reality of ordinary citizens can sometime look insurmountable. As I was once told when I spoke at a workshop in an extremely impoverished community: “We cannot eat your Constitution and your rights.”

The indisputable fact is that despite a dramatic improvement in the well being of most South Africans since the ANC came to power after the fall of apartheid, all of us are not equally free. As the Constitutional Court remarked several years ago:

We live in a society in which there are great disparities in wealth. Millions of people are living in deplorable conditions and in great poverty. There is a high level of unemployment, inadequate social security, and many do not have access to clean water or to adequate health services…. For as long as these conditions continue to exist that aspiration will have a hollow ring.

Too often politicians talk too glibly about freedom, as if it relates only to the right freely to choose those who represent us in Parliament. While this kind of freedom is of vital importance for the restoration of the full dignity of all South Africans and to protect us from the kind of tyranny that prevailed during the colonial and apartheid eras, it ignores the lack of economic freedom faced by many South Africans.

The problem of how to achieve a semblance of economic freedom as promised by the Constitution is a vast and complex topic, better left for another day.

Instead I wish to reflect on another form of freedom that too many South Africans (especially from an older generation) lose sight of or undervalue. That is the freedom to choose how you want to live your life; the freedom to be different; the freedom not to conform to how others expect you to live your life.

A trio of young men from Johannesburg (Ashwin, Lee-Ché and Rogue) who call themselves the Vintage Boys personifies this kind of freedom. (See video above.)

They revel in being different. Shopping in what looks like bargain clothing stores they create their own style by “editing” the garments. That is, they take to the garments with a pair of scissors and needle and thread and create something new. The creations that emerge are always fabulous and unique. Sometimes they challenge the traditional gender categories. Judging from the YouTube video, the outfits are never boring.

In the video clip one of the young men bemoans the fact that South Africa remains essentially a very conservative country. “Many people still carry the Apartheid with them and because they were not free, they don’t want us to be free.”

The young men rebel against traditions, also deeply entrenched traditions about how gender should be performed.

For me, Ashwin, Lee-Ché and Rogue are poster boys for a certain kind of freedom protected and promoted by the Constitution. By breaking the rules of how men are “supposed” to dress, they assert their agency as human beings and celebrate the freedom that our Constitution guarantees.

Of course, many South Africans do not have the freedom to make the kind of choices that Ashwin, Lee-Ché and Rogue can make because of economic deprivation. But that does not mean that these young men are not every bit as revolutionary as any fighter marching in their red berets to demand economic freedom.

It is by breaking the many of the societal rules (without harming anyone in the process), rules that were also enthusiastically promoted and enforced by the apartheid government, that they create their own meaning of what it means to be free. They challenge traditional stereotypes about our country and our continent through their creativity, energy and verve.

They might not be aware of this, but what these three young men are doing were foreshadowed by Justice Albie Sachs in 1998, when he wrote the following in a concurring judgment in the Constitutional Court case of National Coalition for Gay and Lesbian Equality and Another v Minister of Justice and Others:

The acknowledgment and acceptance of difference is particularly important in our country where group membership has been the basis of express advantage and disadvantage. The development of an active rather than a purely formal sense of enjoying a common citizenship depends on recognising and accepting people as they are…. What the Constitution requires is that the law and public institutions acknowledge the variability of human beings and affirm the equal respect and concern that should be shown to all as they are. At the very least, what is statistically normal ceases to be the basis for establishing what is legally normative. More broadly speaking, the scope of what is constitutionally normal is expanded to include the widest range of perspectives and to acknowledge, accommodate and accept the largest spread of difference. What becomes normal in an open society, then, is not an imposed and standardised form of behaviour that refuses to acknowledge difference, but the acceptance of the principle of difference itself, which accepts the variability of human behaviour.

For some South Africans this radical form of freedom is not easy to cope with. Radical departures from the status quo are seldom embraced by a society – especially an essentially conservative society in which great fear accompanies any form of change.

In the video the three men are shown walking down the streets of Johannesburg in their fabulous outfits while men and women on the street look on.

At one point in the video one of the onlookers being interviewed (a soberly clad older gentleman) expresses disapproval of the way the three young men are dressed because that is not the “proper” way in which an African man should dress. Ironically, he indicates that the “proper” way an African man should dress is like a boring middle class heterosexual man from Europe. But the irony is lost on the interviewee.

(I would contend that it is the same kind of attitude that led to the ban on the wearing of overalls by Economic Freedom Fighter (EFF) legislators in the Gauteng legislature.)

Ashwin, Lee-Ché and Rogue shriek with delight when they hear the man say that it is the first time that he sees someone dressed like this. “Thank you! Thank you!” they exclaim while applauding. By expressing his disapproval, the man confirms to Ashwin, Lee-Ché and Rogue that they are indeed unique and fabulous.

Of course many South Africans will not follow their example. And that, too, is their right. After all the Constitution also protects the right of people not to be rebels.

If you want to follow traditional norms and conform to rules imposed by traditional culture or imported into South Africa through the process of colonialism, this too is your right – as long as your norms and traditions do not discriminate against or marginalise others.

It is a great pity that so many South Africans begrudge others the freedom to live their lives as they please; the very freedom they themselves enjoy because they happen to conform to some or other constructed norm or tradition.

White, Afrikaans universities – when will they truly transform?

The damning independent report on the various dehumanising initiation practices that still occur at the Potchefstroom campus of North West University (NWU), and the response of many members of the Afrikaner establishment to criticism about these practices, again raise the question of whether there is a legitimate place in South Africa for a publicly funded University (or campus) that mainly serves (white) Afrikaans students.

Ag nee man, there is no code for that,” the woman who had to sign off on my registration form told me on the day when I had to register for my third year LLB studies at Stellenbosch University in the late nineteen eighties.

I had insisted that I wanted the form changed. I was no longer a member of the NG Kerk. Instead I wanted the form to reflect that I am an atheist. The woman looked appalled. I suspected that in her eyes being an atheist was almost as bad as being a kommunis or some other kind of landsverraaier. I might as well have told her I was an ANC supporter.

“But there is no code for atheist,” she insisted. “Choose something else.”

“So you want me to lie?”

She hesitated. Lying was not approved of. It was up there with being an atheist or a landsveraaiende kommunis.

“Why don’t we just write ‘atheist’ on the form instead of writing in the code?” I suggested.

She shook her head firmly. “That is against the rules. Can’t we just write in the code for NG Kerk?”

“No, the NG Kerk supports Apartheid. I can’t be associated with them,” I said in the self-righteous and pleased-with-myself tone that comes easy to a 22-year-old white student whose head was spinning with new ideas.

“I will make a plan,” she said, primly pursing her lips.

When the registration letter came back I saw that I had been turned into a Christian Scientist. Probably the closest the woman could get to an atheist.

I was reminded of this minor, vaguely amusing, incident while reading the leaked Task Team Report into initiation practices at North West University. (The full Report can now be accessed here.)

At the time when I was studying at Stellenbosch University, the authoritarian, racist, homophobic culture (profoundly antagonistic towards those who did not fit in), was deeply alienating to those who dared to be different from the deeply embedded norm.

I mean, the University even threatened to expel all those of us who took part in a protest march to demand an end to residential Apartheid in University residences. At that march students from various residences threatened to physically attack marchers for daring to state a view that contradicted official National Party policy.

I know too well that one of the ways in which this kind of conformity was imposed was through a violent, degrading, semi-militaristic initiation programme aimed at humiliating first year students and then assimilating them into the koshuis culture.

Apparently (and quite remarkably) much the same thing continues to this day in residences on the Potchefstroom campus of NWU. While NWU claim to abhor this culture and while its rules officially prohibit it, it has turned a blind eye to it in a cynical move to placate alumni while pretending to obey the law.

Thus the NWU Council attempted to suppress large parts of the most recent Independent Report. (This Report made many of the same findings than several pervious reports, which were never acted upon, as the culture of initiation continues at the University.)

The NWU Council presumably tried to suppress the most recent Report because it yet again contains damning findings about the anti-intellectual institutional culture of intimidation and censorship at the Potchefstroom campus and of the prevalence of racism and formal and informal racial discrimination on that campus.

The Report finds that there is an atmosphere of fear and victimisation on the Potchefstroom campus, that many academics who challenged the non-existent transformation of that campus were hounded out of the University through the use of disciplinary and other mechanisms, and that many students and staff were fearful when they spoke to the task team.

According to the Report, “independent thought is often dismissed as disloyal” by those in leadership positions at the University.

As the Report wryly comments: “It cannot be right that taxpayers’ money is spent towards suppressing freedom of expression” on a University campus. How anyone could get even the semblance of a quality education in such an authoritarian atmosphere is beyond me.

The task team also found that on the Potchefstroom campus a tacit quota system applies to University residences to limit the number of black students allowed in residences. In other words, on the Potchefstroom campus they are enthusiastic about affirmative action – in favour of white students.

Those who defend the University and wish to preserve the predominantly white, Afrikaans, quasi-authoritarian ethos on the Potchefstroom campus of NWU, argue that the Constitution protects the right of a state funded University like NWU to retain its unique cultural character. Some also argue that demands for the creation of a more inclusive campus, respectful of diversity in terms of language, race, religion and sexual orientation, must be seen as a frontal attack on the constitutionally protected right to teach white Afrikaans students in Afrikaans.

These arguments cannot be sustained and lack any understanding of the South African Constitution and how it is usually interpreted by the Constitutional Court. It is ignorant of (or chooses to ignore) the fact that the provisions of the Constitution must be interpreted contextually with reference to both South Africa’s particular history of racial discrimination and oppression and to the social and economic context within which education is offered in the country.

The arguments of those who defend Potchefstroom fail to recognise that the Apartheid state severely curtailed the ability of black students to obtain a quality education while providing white students with every possible opportunity to study at any of a number of whites-only Universities. The consequences of this 100-year programme of radical affirmative action for white students have not evaporated overnight.

These arguments also ignore the fact that South African Universities are public institutions, are funded by taxpayers’ money and provide a limited number of places to an ever increasing potential pool of students.

University places are a finite resource. Where some prospective students have more and better choices of where to study than other prospective students, the former group is privileged and the latter group is being discriminated against.

An argument that there are many Universities that cater for black students can therefore not be sustained. It would be like saying because there are many Shoprite Stores it would be perfectly acceptable for Woolworths to be reserved for white shoppers only.

This means that if a University mainly caters for white or Afrikaans students, that University denies black and non-Afrikaans students the opportunity to compete on an equal footing for places at that University, which is a public asset providing a public service, funded by taxpayers.

Thus, when policies, practices and the institutional culture at a University aim to restrict access to that University to a privileged segment of the population who largely benefited from Apartheid, it constitutes unfair racial discrimination in contravention of section 9 of the Constitution.

The defenders of the uniquely white (or even the uniquely Afrikaans) culture and traditions of a campus like that of Potchefstroom fail to recognise that the historically white Universities built up their reputations and amassed their financial and academic resources over many decades during Apartheid when most South African students were prohibited from attending such institutions.

During Apartheid the state spent vast sums of taxpayers money on these institutions as part of its policy of almost exclusively promoting the education of white students.

What the supporters of Potchefstroom and the more conservative promoters of “Afrikaner culture” at places like Stellenbosch University are demanding is that the state continues to subside white privileged to the detriment of especially African students.

They might argue that there are no legal rules that prohibit an African student from attending Potchefstroom campus of NWU or from attending Stellenbosch University. But a conservative, Afrikaans, semi-authoritarian institutional culture at a university can make it very difficult for black students to succeed at that University and will often in fact be exclusionary and hence discriminatory.

This means that in the name of preserving Afrikaans as an academic language or of preserving a “traditional culture” (a culture where no one thinks anything of requiring first year students to salute senior students in a manner that looks suspiciously like a Nazi salute), access for black (especially “African”) students to these taxpayer funded national treasures will be informally restricted.

This is in breach of section 9(3) of the Constitution, which does not only prohibit direct discrimination but also indirect discrimination. Indirect discrimination occurs when rules or practices that are applied to everyone nevertheless have the effect of disproportionately excluding a certain sector of society based on race, sexual orientation or language. This is what is happening at Stellenbosch University and at the Potchefstroom campus of NWU.

To counter this blindingly obvious constitutional fact, those who defend the rights of these Universities to teach in Afrikaans and to retain cultural practices and traditions that is alienating to the vast majority of taxpaying South Africans, refer to section 29(2) of the Constitution.

This section states that everyone has the right “to receive education in the official language or languages of their choice in public educational institutions”. However, this right is limited to situations “where that education is reasonably practicable”.

The problem is that where a scarce resource such as a place to study at a University is indirectly denied to the vast majority of South Africans on the basis of race, because a university adopts certain rules about the language of instruction or refuses to dismantle the exclusionary, semi-authoritarian, institutional culture on its campus, the Constitutional Court will never find that it is nevertheless “reasonably practicable” for the university to continue its discrimination.

In Head of Department: Mpumalanga Department of Education and Another v Hoërskool Ermelo and Another the Constitutional Court affirmed in the context of schooling that “the Constitution ardently demands that this social unevenness be addressed by a radical transformation of society as a whole and of public education in particular”.

But if it were at all possible to accommodate the teaching of students in their home language without limiting access to education for others (either in absolute terms or in terms of quality education) then it would be permissible.

As the Constitutional Court made clear, nothing in the Constitution prohibits Stellenbosch University or NWU from teaching some of its students in Afrikaans – as long as the university culture is totally transformed to make it welcoming to all students and as long as this will in no way exclude students who cannot understand or study in Afrikaans.

This means, first, that all classes must also be open and available to English students. Second, it means that exclusionary initiation practices must be eradicated.

As far as I can tell neither Stellenbosch nor the Potchefstroom campus of NWU comply with these basic constitutional requirements and are therefore in breach of the Constitution. The question is: how long will the rest of us who pay our taxes and subsidise these institutions tolerate this kind of discrimination?

Gay Cabinet ministers: So what’s the big deal

Several media outlets reported this week that Lynne Brown became the first openly lesbian cabinet Minister in South Africa after President Jacob Zuma appointed her as Public Enterprises Minister on Sunday. In an ideal world the sexual orientation of a Cabinet Minister – like that of any other person – would be irrelevant. But we do not live in an ideal world.

I am deeply ambivalent about the ritualised staging of confessions which require some of us to make public declarations about aspects of our lives that are deemed to be different from a deeply entrenched norm.

If you happen to be gay, lesbian or HIV positive, for example, it is widely expected that at some point you will “come out of the closet”, which is often equated with making the requisite tearful “confession” to your family and friends and, later, an endless set of often nervous but dry-eyed declarations to members of the larger community.

Sometimes your “confession” is rejected out of hand or used to vilify and further marginalise you or to discriminate against you. Sometimes the “confession” leads to genuine and heartfelt questions or encouraging comments by well-meaning friends and acquaintances.

It matters not whether those who hear the confession are sympathetic or antagonistic. What matters is that you are prodded into confessing that you are different from the desired norm, from a supposedly coveted standard of human existence.

Much like a devout Catholic who is expected to confess his or her sins to either a stern or sympathetic but always elaborately frocked priest in a confession stall, you are expected to go through the ritual that confirms your difference and inherent peculiarity.

This ritual reinforces and perpetuates deeply held assumptions about being gay or lesbian: that your life is potentially difficult or filled with struggle (in my own case this is an assumption that is spectacularly wrong); that you are either a bad person or strangely brave for being able to deal with this loaded deck of cards that fate had dealt you.

When I am required to “confess” my homosexuality or HIV positive status I am required to play a game that results in me having to confirm that heterosexuality and non-HIV status are “normal” (or at the very least, the norm).

My confession, then, both signals and reinforces my perceived “otherness”. It imbues my invented “otherness” with singular meaning and provides yet another discursive tool that can be used by others to justify my marginalisation and oppression.

That is why I now try to avoid making confessions about these aspects of my identity. Instead, if I think it would be politically important to convey this kind of information about myself (or on a personal level, if I think I need to establish a measure of intimacy with someone else) I “accidentally” drop facts into a conversation that reveal more about who I am.

Talking about rugby with a colleague or acquaintance? Easy to say that although I am not sure whether he is a good fly half, I do think Kurt Coleman is exceedingly attractive, then telling the person about that time my father took me to watch the Springboks play at Ellis Park. Talking about the coming weekend? Easy to mention my romantic dinner with Lwando, then talk about my favourite restaurants.

Complaining to a colleague about being overworked? Easy to mention my visit to the doctor to do my bi-annual blood work or how my ARVs make me dream the most wonderful but tiring dreams, then talk about my computer screen that seems to be on the blink.

In short, I tend to avoid the “confessional” style of talking about my sexual orientation or my HIV status because I fear that the language of confession tends to erase the singularity of my existence as a human being and sets up a hierarchical opposition between “normal” people and poor “abnormal” me.

In an ideal world, this would scarcely have mattered. After all, in an ideal world the only normal thing about any human being would be that none of us are truly normal.

But we do not live in an ideal world.

We live in a world in which heterosexuality is deeply embedded in our culture as both normal and desirable. Conversely, the idea that homosexuality is wrong, shameful, strange or undesirable is also deeply embedded in our culture.

Because the notion that heterosexuality is desirable is so deeply entrenched in our culture, the way it permeates and infiltrates our existence becomes invisible. People tend not to notice how heterosexuality are ceaselessly advertised and promoted (almost always as normal, pure, desirable – few people mention that Adolf Hitler was straight and nod knowingly to imply this says anything about heterosexuals as a group) while homosexuality is silenced or erased, except when it is made visible to try and affirm the belief in its abnormality.

While gay men and lesbians are often told not to “flaunt” their sexuality by, for example, telling others about who they love, who broke their hearts or who they had slept with on the weekend, heterosexuals shamelessly get to “flaunt” their sexuality every day and this is called life.

At shopping malls heterosexual couples walk hand in hand, proudly advertising their heterosexuality. At the office, colleagues out themselves as straight almost as soon as you meet them for the first time, dropping not-so-subtle hints about their husbands or wives or partners in the tearoom or at other informal gatherings.

Politicians, sports stars and actors parade their heterosexuality for all the world to see, having pictures taken at their weddings (apparently You magazine actually pays “celebrities” to have their wedding pictures published) and appearing at the opening of Parliament or a new movie or at an awards ceremony with their different-sex partner on the arm.

This is the world we live in: relentlessly advertising and promoting heterosexuality; relentlessly making the rest of us invisible.

One way of being in the world (one man and one woman in love to the exclusion of all others) is valorised, incessantly promoted and rather optimistically and disingenuously lauded as an ideal that every person should strive for in order to attain eternal or at least temporary happiness.

Other ways of being in the world are vilified or erased through embarrassed or enforced silence, or “othered” by well-meaning people who insist on telling you that they have no problem with homosexuality – thus affirming that they think there is potentially something profoundly disturbing or at least strange about two men or two women loving each other, something that they are broad-minded enough not to have a problem with.

It is exactly because we live in this far from perfect world that it matters profoundly when an openly lesbian politician is appointed to an influential Cabinet position. I am not suggesting that Minister Brown herself should make a big deal out of it.

Because of my ambivalence about the politics of “confession”, of coming out, anything she says on the subject would have the potential to be counter-productive.

But when openly gay or lesbian individuals (or people living with HIV, for that matter) happen to be powerful politicians, sports stars, actors or other influential individuals like judges or business leaders, they become potential role models to others who might have internalised widespread societal prejudices and might previously have believed that being gay, lesbian is somehow shameful, something to hide from others.

Moreover, because such individuals have a distinctive presence in public life and are strongly associated with the characteristics that made them well known (their acting talent, their political acumen, their sporting prowess), people who would usually obsess about their sexual orientation might begin to look past this one aspect of their lives and see more of the whole person there.

When gay men, lesbians or bisexuals are appointed to important positions it also signals to the wider society that there is in fact nothing abnormal, shameful, surprising or undesirable about people who happen to love differently from themselves.

For these reasons I think it is more than noteworthy that Minister Brown has been identified as a lesbian. In another world, a world in which a person’s sexuality (whether he or she is gay, lesbian, bisexual or heterosexual) would be of no interest or importance to anyone in society, it would have been silly to take note of and report on this fact.

In the world we live in, it is far from it.

Why EFF election challenge will not fly

This week the North Gauteng High Court dismissed an urgent application by the Economic Freedom Fighters (EFF) to remove (or greatly reduce) the requirement for political parties to pay a sizeable deposit before they could contest the election. This requirement limits the number of political parties who are entitled to contest the election and thus potentially limits the right of individuals to vote for the party of their choice. Constitutionally the question is whether such a limitation is justifiable or not.

There are currently more than 200 political parties registered on the Independent Electoral Commission’s database. Many of these registered political parties are not credible entities, have little political support and have absolutely no chance of gaining seats in the National Assembly. It would make elections almost impossible to administer if all these parties were allowed to take part in the election.

In the previous national election only 26 of the parties contested the election. This is partly due to the fact that the Electoral Act at the time required a political party to pay a deposit of R180,000 to appear on the national ballot paper and R40,000 to appear on the ballot paper for the election to a provincial legislature. (This has now been raised to R200, 000 and R45,000 respectively.)

In 2009, only half of the parties on the ballot paper obtained any seats in the National Assembly (NA). Nine of the parties whose names appeared on the national ballot paper (and had thus been able to pay the R180,000 deposit) could not even muster 10,000 votes. Thirteen of the parties lost their deposits while the other thirteen parties had their deposits refunded in terms of section 106 of the Electoral Act, because they had obtained at least one seat in the legislature.

The right to vote is guaranteed in section 19 of the Constitution. In August and Another v Electoral Commission and Others the Constitutional Court emphasised the importance of the right to vote – especially in the South African context in which the vast majority of citizens were denied the right to vote until 1994. In that judgment, Sachs J remarked that:

the universality of the franchise is important not only for nationhood and democracy. The vote of each and every citizen is a badge of dignity and of personhood. Quite literally, it says that everybody counts.

The court remarked that given our history, it would carefully scrutinise any law that placed limitations on the exercise of the right to vote and that such limitations should not be easily countenanced.

It is important to remember that in South Africa at national and provincial level only political parties can contest elections. Political parties – and not individual voters nor individual candidates representing a political party – are required to pay a deposit to contest an election. The fact that some or many of the supporters of a political party may be poor, is therefore not directly relevant when deciding whether the deposit requirement limits the right to vote.

(The situation would have been dramatically different if individual candidates had been required to pay deposits before they could stand in elections as this would have had a clear and obviously unconstitutional discriminatory effect on poor potential candidates for elected office who often would not have been able to pay the requisite deposit.)

In national and provincial elections in South Africa, the question is whether the deposit requirement will preclude a political party with any electoral support from contesting an election. For example, if the deposit requirement had in fact prevented the EFF from registering for the election because the EFF did not have the funds to pay the various deposits, this would have constituted a catastrophic infringement on the right to vote of a sizeable section of the electorate.

I am almost certain that if the deposit had been set so high that a credible party such as the EFF had been unable to afford the deposits, it would have constituted an unconstitutional limitation on the right to vote. This is because a legal provision that in fact disbars a credible political party form taking part in the election would almost certainly be unconstitutional.

That was not the case with the EFF. Nor was it ever likely to be the case. This is so because it is difficult to imagine that any credible political party in South Africa with a good chance of gaining several seats in the NA would not be able to afford to pay the (refundable) deposit required by the Act.

Even smaller political parties require substantial funds to run election campaigns. While large parties like the ANC may spend more than R100 million on the election campaign, even insurgent parties like the EFF will have to spend several million Rand on an election campaign to stand a chance of receiving a sizeable portion of the vote.

Arguably, the more funds a political party has at its disposal, the more effective the campaign it can run. This place new entrants to the political scene at a disadvantage because they do not qualify for election funding as they do not have any seats in the legislature. Moreover, if a party emerges in South Africa one day that is unable to attract any private funding (because of their pro-poor policies or because of their perceived incorruptibility), that party will also be at a distinct disadvantage to compete fairly in the election.

But it is unlikely that even such a party of principle with substantial support will be so cash-strapped that it will ever be unable to pay the refundable deposit to allow it to contest the election.

Nevertheless, this does not mean that the deposit requirement does not limit the right to vote as it is conceivable – if unlikely – that a political party who could garner enough support to gain at least one seat in the NA may not be able to pay the required deposits.

As the deposit requirement limits the right to vote (although the extent of the limitation may be less dramatic than it would at first appear) the question then arises whether this limitation would be justifiable in terms of the limitation clause found in section 36 of the Constitution.

In terms of section 36, we have to look at the purpose of the law that imposes a limit on the right, ask what interests are being served by the limitation and how important these interests are. We then have to look at the interest of those whose right is being limited and ask how severe the limitation on their rights might be. We must then balance these interests against one another by asking whether the limitation could be viewed as reasonable and justifiable in an open and democratic society based on dignity, equality and freedom.

The deposit requirement clearly serves an important purpose. It provides an easy to administer and difficult to manipulate procedure to ensure that there are not too many frivolous and unserious political parties on the ballot paper. It also provides absolute legal certainty to political parties about whether they qualify to be on the ballot paper.

In the absence of such a measure the ballot paper may well be several metres long, making the process of voting more cumbersome and slow and potentially disadvantaging illiterate voters who may have to ask for assistance to find the party of their choice on the paper (thus ensuring that their vote would not be secret). Such a ballot paper containing the details of more than 200 parties would also be very difficult to count and would greatly increase the time needed to count the vote. It would also increase the possibility of mistakes being made during the counting process.

There are, of course, other mechanisms available to ensure that only the names of credible parties appear on the ballot. The law could, for example, require each political party to submit a list of names of registered voters (anything from 10,000 to 50,000 names have been mentioned by the EFF) to demonstrate support for the party.

However, this mechanism is administratively onerous and time-consuming as each name will have to be checked by IEC officials to ensure its authenticity and to prevent fraud. This mechanism also provides for far less legal certainty and is therefore more open to manipulation. For example, a rogue IEC official may apply an overly formalistic standard when verifying all the names on the list with the aim of disqualifying many of the names to prevent the political party from qualifying to take part in the election.

Given the advantages of the deposit system, given the fact that it is not likely to prevent any credible political party from competing in an elections, and given the disadvantages of other systems that could be used to prevent frivolous parties from contesting the election, I suspect that the court would almost certainly find that if the system indeed presents a limitation on the right to vote, that this limitation is justifiable in terms of the limitations clause in the Bill of Rights.

Of course, I have no idea on what basis the IEC set the deposits at the rates it did. It might be that a lower deposit would have been equally effective. But because of separation of powers concerns (in the absence of incontestable data) I doubt very much whether any court would intervene and would replace its own view of what a reasonable deposit amount is – unless the deposit were so high that it would indeed have the effect of disqualifying one or more credible parties with a real chance of obtaining seats in the NA.

PS: The High Court did not decide the EFF case on these principles. Intstead it decided that the matter was not urgent, presumably because the deposit requirement had been in place for many years.

Uganda: why quiet diplomacy is a devastating betrayal of gay men and lesbians on the continent

In recent months both Uganda and Nigeria passed legislation that, in effect, criminalises a sizeable section of its population. The legislation aims to use the criminal law to punish fellow citizens who experience same-sex sexual and emotional desire for fellow consenting adults or who act on such feelings. The South African government claims it is dealing with this threat to the liberty and lives of our African brothers and sisters through “quiet diplomacy”. Here is why this “quiet” approach is deeply hurtful and potentially devastating to many gay men and lesbians in South Africa and elsewhere on our continent.

When large numbers of gay men first started dying of Aids-related illnesses in New York and San Francisco in 1981, the right-wing Republican, Ronald Reagan, was President of the United States of America.

At first, neither President Reagan, nor anyone in his administration took the disease or the fight for life-saving treatment seriously. At the first press conference where an administration official was asked about HIV and Aids (at the time it was often called the “gay disease”), the spokesperson denied knowing anything about it. When he then “joked” that he himself did not have Aids (the joke apparently being that he was not gay), journalists laughed uproariously.

It took Ronald Reagan until 1987 to speak about Aids in public. He only did so after a sustained campaign by ACT-UP, the radical group of mostly gay men and lesbians (many of them dying of Aids-related illnesses), who invaded the US stock exchange and engaged in other forms of civil disobedience to get the government and large pharmaceutical companies to begin to take drastic action on the disease that would eventually kill more than 300,000 gay men in the USA before triple therapy brought some relief.

Death

The famous (and tragically accurate) slogan which spurred members of ACT-UP on to ever more urgent activism to save their own lives and the lives of their comrades was: SILENCE = DEATH.

The absolute silence of politicians like Reagan around HIV and Aids in the USA was, of course, directly related to the fact that in the USA at the time, the disease was associated with sex between men and therefore with gay men more particularly.

This silence was informed by prejudice, shame and embarrassment about same-sex love and same-sex sexual desire. This made it difficult for politicians to even mention the disease, let alone to take action to prevent its spread and to find a cure. (Even Ed Koch, who during this period was the closeted gay mayor of New York, remained silent about Aids.) Despite the fact that there is nothing shameful about consensual same-sex desire (just as there is nothing shameful about different-sex desire), the politicians remained silent, despite the fact that speaking up would have saved hundreds of thousands of lives.

When we are embarrassed, ashamed or disgusted by something or someone, we often choose to remain silent about that person and what he or she has done. This silence protects us from having to confront our own complicated and cowardly feelings and allows us not to feel complicit when members of an unpopular group are discriminated against, physically attacked, raped or murdered.

It also distances us from the person or act we are judging and ensures that we will not be “tainted” that with which we are ashamed, embarrassed or disgusted.

But when we remain silent about the prejudices some people harbour and express about others (for example, if I say nothing when another white person makes a racist statement in my presence) and the often deadly consequences of those prejudices, when we refuse to name the horror of it, when we hide behind euphemisms and generalisations, we are implicated in that prejudice and its perpetuation.

When we are told as gay men and lesbians that we should not “flaunt” our sexual orientation (when the “flaunting” of heterosexuality permeates our society and culture), it sends a signal that the majority believes that who we are as human beings is inherently shameful. It tells us that we must be disgusted with ourselves and must hate ourselves because of who we love and who we have sex with. We are told that we belong in the closet where we will not prick the conscience of those whose silence help to make our oppression possible.

Because gay men and lesbians are a marginalised minority and because the bigotry against us stems from fear, shame and disgust – including the fear, shame and disgust internalised by gay men and lesbians by the silence of others – silence is an extremely effective weapon in the social control and oppression of gay men and lesbians.

“The closet” is a powerful mechanism through which gay men and lesbians are silenced “out of existence”. In societies where hatred and fear of gay men and lesbians are deeply embedded in political practices and religious beliefs, otherwise sympathetic heterosexuals will often maintain a silence about homophobia or will use other rhetorical devices to distance themselves from those who experience same-sex desire in order to escape what they perceive to be the shame and the so called “taint” of homosexuality.

In such societies, when others are vilified, ridiculed, discriminated against, assaulted or murdered because they are perceived not to conform to gender stereotypes or are suspected of same-sex desire or action, many supposedly “kind” and “good” people will remain silent. They will do so to protect themselves, perhaps knowing that their failure to speak up for what is right contributes to the oppression of their neighbours, colleagues and friends.

Similarly, those who experience same-sex sexual desire often impose a silence of the closet on themselves out of fear of being ridiculed, marginalised, discriminated against, assaulted, raped or even killed. There is, of course, no reason to be ashamed or disgusted with same-sex love. There is much reason to be disgusted and ashamed of the bigotry of those who, through their actions and silence, promote or acquiesce in homophobia and the often deadly consequences of such homophobia.

Sometimes absolute silence becomes politically impossible. Those who are not prepared to embrace the full humanity of fellow human beings because of prejudice or self-protection will then hide behind impersonal statements or will make hollow declarations devoid of any real compassion.

It is the absence of any words or actions that display true solidarity with the oppressed minority that is usually the dead give-away. Such statements impose a different kind of silence – even as it pretends to speak about the love that “dare not speak its name” – which can often have equally devastating effects. This silence – which hints at but never names or describes the oppression of gay men and lesbians and its often devastating effects on fellow human beings in full – is the silence of the hypocrite and the closet homophobe.

This, unfortunately, is the quality of the “half-silence” of the South African government about the horrors faced by many people who experience same-sex sexual desire in South Africa and elsewhere in the world.

According to a statement by the South African government it “takes note of the recent developments regarding the situation of Lesbians, Gays, Bisexual, Transsexual and Intersex persons (LGBTI) worldwide” and will be “seeking clarification” on these developments from many capitals around the world. Although the statement continued to say that South Africa “believes that no persons should be subjected to discrimination or violence on any ground, including on the basis of sexual orientation”, it remained silent about the situation in Uganda (and before it, Nigeria and every other country where more repressive laws aimed at discriminating against gay men and lesbians had been passed in recent years).

If South Africa did indeed engage in “quiet diplomacy” with the governments of Uganda and Nigeria (and there is no evidence to this effect) this diplomacy must have been a spectacular failure as both countries adopted repressive laws in conflict with International Human Rights standards and the jurisprudence of UN Human Rights bodies such as that of the UN Committee on Human Rights.

Millions of gay men and lesbians across our continent must yearn for an African government to break the silence about the way their plight is abused by other African governments to distract attention of serious governance problems. Unlike the hypocritical and self-righteous bleating of some Western governments on the issue, a statement by the South African government that named and condemned the homophobic bigotry of fellow African governments would have had a powerful symbolic effect.

It would have broken the silence. And as the example of ACT-UP reminds us: SILENCE=DEATH.

Instead, South Africa in effect decided to remain quiet, hiding behind vague and general language that spectacularly fails to acknowledge the true effects of the bigoted laws passed in places like Uganda. The half silence is even worse: by stating that “clarification” is needed about the oppression of fellow human beings in other parts of the continent our government is hinting that our legitimate outrage may all just be based on a misunderstanding.

For those of us who are attuned to the ways in which our oppression is made invisible through silence and negation, or through the failure to name and confront it in words and deeds, South Africa’s “quiet diplomacy”, and the failure to acknowledge our pain, humiliation and fear, feels like a deadly betrayal.

In may well be that in certain circumstances it would be strategically wise for a government to engage in “quiet diplomacy”. But because of the specific ways in which the silence of the closet create, maintain and perpetuate homophobia across the world, and because of how this silence of the closet terrorises those of us who are gay or lesbian, our government’s silence in this case feels like acquiescence with our own oppression.

Let’s talk about freedom of speech

It’s time to talk about the right to freedom of expression and the fake arguments about alleged infringements of this right, which are often advanced by those who are used to have their own opinions heard and respected, but are not used to having their arguments confronted or even ridiculed in heated debate.

In a constitutional democracy, debates, arguments and other forms of disagreement about political or social issues can often be raucous, messy, chaotic, infuriating, irrational and even upsetting.

People sometimes shout slogans at one another (SOMETIMES, IN PRINT, THEY USE CAPITAL LETTERS AND EXCLAMATION MARKS IN THE BIZARRE BELIEF IT WILL HAVE A BIGGER IMPACT!!!!!!!). People also call one another names, or – oh so very pleased with themselves and exuding the hubris far too prevalent among those who have never been Othered or systematically discriminated against – they re-state questionable ideological beliefs or demonstrably false facts as if these are absolute and incontestable truths of shattering originality.

While arguing a point, some inadvertently or even unknowingly reveal their bigotry (their racism, sexism and homophobia, their class prejudices which blame the poor for being “lazy” or suffering from a “sense of entitlement”) for the entire world to see and judge.

Sometimes, people are too lazy or angry or lacking in the ability or will to construct a counter-argument to engage in the substance of the dispute, in which case they often try to shut up an opponent by deploying mechanisms to discredit their opponent instead of trying to discredit the opponent’s arguments.

Sometimes an opponent who raises an awkward point is labelled a secret agent for the DA (if the person wishes to defend the ANC) or an ANC lackey (if the person blindly follows the DA). An opponent can also be shut up by telling him or her that he or she is “playing the race card”, or is acting like an “angry feminist” or “shrill homosexual”, or lacks a sense of humour.

Nevertheless, and quite surprisingly, important and interesting opinions and insights (on both sides of an argument) can emerge from these chaotic exchanges – despite all the noise, the empty threats and red-herrings and numerous other techniques used to end debate or avoid engaging with the substance of an argument.

I would contend that this is so because it is surprisingly difficult always to draw a bright-line boundary between ad-hominem attacks and substantive arguments.

A person who holds strong opinions and is willing to construct plausible counter-arguments may launch carefully chosen (and sometimes witty) insults to “frame” the debate and the issues or to “place” the opponent on the ideological spectrum, which assists bystanders to understand what the disagreement is about and what is at stake in the exchange.

For example, when an opponent stereotypes black people or presents arguments steeped in patriarchal views, a first step to dismantling such arguments may well be to point out that the opponent, in your view, holds racist or sexist views. By doing so you lay the groundwork for a more substantive engagement with the opponents arguments.

Of course, sometimes, the ideological views of an interlocutor would be so outrageous or morally offensive, the factual basis for their argument so obviously false, or their prejudices so disgusting, that you feel ethically compelled to name and shame the person as a racist, sexist, homophobe or somebody harbouring class prejudices.

Such a naming and shaming, in my view, is more effective if you then proceed to develop an argument explaining exactly why you have labelled a person a racist, sexist, homophobe or classist. But the naming and shaming itself fulfils a purpose over and above that of vilifying your opponent – it asserts the moral framework within which your criticism of the opponent is being made.

While I bemoan the fact that those who disagree with an argument often do little more than shout angry insults at opponents in an attempt to discredit them, I understand that democracy is often messy and chaotic and that this cannot be entirely avoided.

It is therefore a good idea to develop a thick skin when entering debates. It is also advisable to inform yourself about the the subject matter of debates and read up on concepts and ideas employed by others. Most importantly, it may save you much embarrassment if you develop an understanding of the way in which your own experiences (and your ignorance about the experiences of others) influence your worldview and your opinions about the world.

But it is also a good idea to remember that in a democracy we all have a voice and a right (within the limits of the law) to express our views and opinions – no matter how daft they may appear to others.

No one has an inherent right not to be labelled, ridiculed or attacked for expressing a particularly controversial or unpopular opinion or an argument that those with less social and economic power than yourself may view as bigoted or plain dumb.

Neither do the racists, sexists, homophobes or classists have a right not to be called out on their racism, sexism or homophobia or class prejudices.

Like any other person in South Africa, those who have actually experienced homophobia, racism, sexism or class prejudice have a right to take issue with a person whose views seem to be embedded in prejudice or who is blind to the ways in which racism, patriarchy, heterosexism and class elitism continue to exert a powerful influence on the way the world is structured and social status and economic benefits are distributed.

Strangely, it is often those who (as a group) are the most privileged members of our society – white, heterosexual, middle class men – who seem incapable of dealing with the rough and tumble of robust and messy debate. (Of course, I am not claiming that all or even a majority of white, middle class, heterosexual men play the victim card when they are called out on the bigotry that frequently goes hand in hand with privilege.)

Suddenly turning themselves into victims, they claim that those who call them out on their prejudices are “calling them names”, are “strident”, and are “angry” or “shrill”. Instead of constructing a coherent argument, based on their stated worldview and ideological commitments, explaining why their argument is not bigoted, they complain that they are being censored. Their opponents are branded as enemies of free speech for daring to point out what appears to be deeply embedded and (often unacknowledged) prejudice.

This is obviously nonsense.

Now it might well be that a person who is vigorously attacked for espousing racist, sexist, homophobic or class prejudices, will be able to counter the accusations by setting out a coherent explanation of what racism, sexism, homophobia or class prejudice entails and demonstrating that his views cannot plausibly be classified as such.

In doing so it will of course not be helpful merely to assert – from your position of privilege – that you just do not yourself see the prejudice and that, hence, the prejudice does not exist. It is never a good argument to tell those who actually experience racism, sexism, homophobia and class prejudice every day that their own experiences are just not true. Such an argument is no more than an attempt to assert your privilege by denying others their lived experience. More would be required.

But freedom of expression cannot thrive where people try to stop others from expressing their views merely because these views are unkind or strident, or because it casts you in a bad light.

Yes, this chaotic exchange of ideas, vigorous criticism and even the hurling of insults can be difficult to handle if you are insecure or uninformed. But it’s time we all buck-up and grow a backbone.

And how do I suggest we do that? Not by acting out your macho fantasies and intimidating those with less testosterone than ourselves. Rather by reading more, by learning more about how other people feel and think, by being more self-critical and self-reflexive.

After all, few people who are confident of their own opinions – because they know their opinions are informed by sustained critical thought (and not inherited platitudes), copious reading (and not self-referential experience), and an ability to reflect on their own lives and the views of others (and not on the prejudices of their mates shared around the braaivleis fire) – will be intimidated by criticism or even vicious attacks by others.

Why redress measures are not racist

Anybody who highlights the pervasive racism and racial discrimination still experienced by black South Africans are invariably attacked by enemies of equality who oppose legal measures to address the effects of past and on-going racism and racial discrimination. Claiming that measures aimed at addressing the effects of past and on-going racial discrimination are “racist”, some of them assert that the right to equality always requires all people to be treated the same, regardless of their race, sex, gender or sexual orientation. These arguments, I contend, are both ignorant and wrong.

Insisting on the equal treatment of all people in all circumstances is deeply unfair. Insisting on such equal treatment can also have bizarre and even dangerous consequences.

To use an uncontroversial example, most of us would be horrified if schools insisted that all boys and girls, regardless of age or sex, must play in the same rugby league. Most of us would also be horrified by a government policy requiring every child to pay R50,000 a month to be allowed to attend a government school.

People are often discriminated against on the basis of age, sex or financial status. Yet few of us would deny that the policies mentioned above (which insist on the equal treatment of children regardless of their age, sex or financial ability) are profoundly unfair.

We may point out, when pressed, that because the playing field is not equal for the children involved, an insistence on equal treatment is profoundly discriminatory. It would endanger the lives of some children. It would also exclude children from life-enhancing benefits and opportunities based on no more than the historical “accident” that some children were born later than others, or on the fact (entirely unrelated to the abilities of the particular child) that some parents are able to afford the school fees while most will not.

For this reason the principle of equality cannot be based on the requirement that all people must be treated in exactly the same manner at all times, regardless of their personal circumstances or their personal attributes and characteristics.

Unless you are wilfully ignorant of South Africa’s history, you would not be able to deny that when our Constitution was adopted our society was “deeply divided, vastly unequal and uncaring of [the] human worth” of black South Africans. Anyone who has eyes to see must also admit that these “stark social and economic disparities” persist to this day.

Given our history of racial subjugation and oppression, it is no surprise that these inequalities are racially marked (although, as the Constitutional Court has pointed out, this racial inequality often intersects with other forms of disadvantage based on sex, gender, sexual orientation and – not mentioned by the Court – the relative poverty or wealth of individuals).

In 2011 the average annual income of a “white” household was about R365,000, that of an “Indian” household R251,000, that of a “coloured” household R251,500 rand and that of an average “black” household R60,600. (See table below.)

 southafrica_income

Our Constitution responds to this undisputed reality. Unlike opponents of redress measures, who insist that we should ignore these facts and should turn a blind eye to the way in which past racial exploitation continues to affect the life-chances of the overwhelming majority of South Africans, the Constitution recognises the incontrovertible fact that all are not equal in our country. If legal rules and policies deny this reality, it will simply lead to an entrenchment of existing inequalities. As the Constitutional Court stated in the case of Minister of Finance v Van Heerden:

Our Constitution recognises that decades of systematic racial discrimination entrenched by the Apartheid legal order cannot be eliminated without positive action being taken to achieve that result. We are required to do more than that. The effects of discrimination may continue indefinitely unless there is a commitment to end it.

This is why section 9(2) of the Constitution contains a so-called “affirmative action” clause, which provides for the achievement of full and equal enjoyment of all rights and freedoms and authorises legislative and other measures designed to protect or advance persons or categories of persons disadvantaged by unfair discrimination.

Our Constitution thus allows for and in some cases, requires, “remedial or restitutionary equality”. As the Constitutional Court explained in the Van Heerden case (ironically brought by a white National Party member of Parliament who complained that he was being discriminated against):

Such measures are not in themselves a deviation from, or invasive of, the right to equality guaranteed by the Constitution. They are not “reverse discrimination” or “positive discrimination”… They are integral to the reach of our equality protection. In other words, the provisions of section 9(1) and section 9(2) are complementary; both contribute to the constitutional goal of achieving equality to ensure full and equal enjoyment of all rights…. Absent a positive commitment progressively to eradicate socially constructed barriers to equality and to root out systematic or institutionalised under-privilege, the constitutional promise of equality before the law and its equal protection and benefit must, in the context of our country, ring hollow.

As I have explained before, this does not mean that redress measures will always be constitutionally valid.

First, while the Constitutional Court acknowledges that redress measures aimed at bringing about transformation “will inevitably affect some members of the society adversely, particularly those coming from the previously advantaged communities”, a measure that constitutes “an abuse of power” or imposes “such substantial and undue harm on those excluded from its benefits that our long-term constitutional goal would be threatened” would not be permissible.

Second, the Court acknowledged that in the assessing the validity of redress measures “a flexible but situation-sensitive” approach is indispensable. This is so “because of shifting patterns of hurtful discrimination and stereotypical responses in our evolving democratic society.” Once the income of the average “black” household is more or less equal to that of the average “white” household and once the racially skewed patterns of property ownership have become less glaringly unjust, race-based redress measures may well be found no longer to be constitutionally valid.

It also does not mean that there are not, in certain cases, practical and conceptual problems with the implementation of race-based redress measures. For example, the way in which the current so called Broad Based Black Economic Empowerment (BBBEE) policy is being implemented is a recipe for nepotism and corruption. BBBEE can often look suspiciously like a form of bribery aimed at moderating the economic policies of the ANC government and at opening direct channels of communication between the big companies and government leaders.

The revelations about Cyril Ramaphosa’s direct communications with several government ministers during the strike that led to the Marikana massacre clearly demonstrate the “benefits” of political connectivity that BBBEE bring to big business.

Often the policy is implemented in ways that allow the old business elite to “buy off” the new political elite by handing large amounts of shares or board positions to politically connected individuals, without benefiting the broad community and without redistributing assets and benefits to the large majority of South Africans.

Reasonable people could therefore engage in a serious debate about the correct scope and content of such redress measures. But claims that such measures are inherently “discriminatory”, that they infringes on long established human rights norms or that they are inherently unjust, are not based on either facts or any understanding of the legal landscape.

Those who oppose redress measures in principle (not having read much about anything and smugly holding on to their own ignorance) may not be aware that in the legal and philosophical discourse, the Constitutional Court’s approach to redress is neither unique nor conceptually problematic.

In fact, with the exception of some far right-wing judges on the US Supreme Court (who believe corporations have rights – just like people) I am unaware of any modern equality jurisprudence in foreign jurisdictions or in international law supporting the notion that race-base redress measures constitutes “reverse discrimination”.

Thus the lawyers and judges who staff the Committee on Human Rights, providing an authoritative interpretation of the International Covenant on Civil and Political Rights (ratified by, and binding on, 167 countries) in a General Comment on the Equality of Men and Women endorsed the notion that states have a duty to take positive measures to achieve equal empowerment of women.

Similarly, the judges and lawyers who staff the Committee on Economic, Social and Cultural Rights, providing an authoritative interpretation of the equality guarantee in the International Covenant on Economic, Social and Cultural Rights (ratified by, and binding on, 167 countries) endorsed the need for states to take affirmative action measures and explained the need for redress measures as follows:

In order to eliminate substantive discrimination, States parties may be, and in some cases are, under an obligation to adopt special measures to attenuate or suppress conditions that perpetuate discrimination. Such measures are legitimate as long as they represent reasonable, objective and proportional means to redress de facto discrimination and are discontinued when substantive equality has been sustainably achieved.

The Committee on the Elimination of All Forms of Discrimination Against Women, in its authoritative interpretation of the International Covenant on the Elimination of All Forms of Discrimination Against Women (ratified by, and binding on, 187 countries) endorsed affirmative action measures as follows:

It is not enough to guarantee women treatment that is identical to that of men. Rather, biological as well as socially and culturally constructed differences between women and men must be taken into account. Under certain circumstances, non-identical treatment of women and men will be required in order to address such differences. Pursuit of the goal of substantive equality also calls for an effective strategy aimed at overcoming underrepresentation of women and a redistribution of resources and power between men and women.

Lastly, the judges and lawyers who staff the Committee on the Elimination of All Forms of Racial Discrimination, in its authoritative interpretation of the International Convention on the Elimination of All Forms of Racial Discrimination (ratified by, and binding on, 176 countries) explicitly rejects the use of the term “positive discrimination” when dealing with race-based “affirmative action”, noting that in the context of international human rights standards, this term is a contradictio in terminis (a contradiction in terms). It then proceeded to note that such “affirmative action” measures:

include the full span of legislative, executive, administrative, budgetary and regulatory instruments, at every level in the State apparatus, as well as plans, policies, programmes and preferential regimes in areas such as employment, housing, education, culture and participation in public life for disfavoured groups, devised and implemented on the basis of such instruments.

There are, of course, some reasonably credible lawyers and philosophers who support the principle that the effects of past and on-going discrimination should be addressed by affirmative action measures, but hold that such measures should not rely on “race”. I have previously written about structural racism, which – I believe – counter these arguments by showing that in South Africa race is not a proxy for disadvantage but itself always causes disadvantage.

All I will add here is that, if you support redress measures but agree with those who oppose the use of racial categories for redress purposes, the examples provided above at the very least must remind you that your argument is neither self-evident nor widely accepted “common sense”. I despair that many people taking part in the debate (wholly ignorant of the writing and jurisprudence on equality which have developed over the past 50 years) seem to believe that it is obvious that race-based redress measures are “racist”. It is not.

My advice to those would be simple: do some basic reading on equality law and the use of racial categories in effecting redress. It may, at the very least, make you realise that the view you think is based on self-evident common sense is not nearly as obvious as you believe. It may even lead you to reflect and think.

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.

racist-UFS-ad
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.