Constitutional Hill


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.


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.)


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.

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.

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

Tentative thoughts on reconciliation

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Structural racism: the invisible evil that must be addressed

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Some of us call this transformation.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The remembrance and forgetting of things past

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

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

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

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

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


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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