Constitutional Hill

discrimination

About the “Boksburg Bomber” and the “entanglement of colours”

Sep 14th, 2011
by Pierre De Vos.
107 comments

This is a (slightly edited) extract from the second part of the inaugural lecture delivered by me tonight at the University of Cape Town Law Faculty. The lecture relies on many themes first developed on this Blog and also incorporates some of the words first published here. The lecture is entitled: ”The past is unpredictable: race, redress and remembrance in the South African Constitution” (playing with a statement made by Evita Bezuidenhout that: “The future is certain – it’s the past that is unpredictable”) and engages with the question of how we can deal with necessary race-based corrective measures without perpetuating racialised thinking.

It proposes that we engage more seriously and in a nuanced manner with our apartheid past and suggests that this might assist us to deal with the effects of past and ongoing racism and racial discrimination (through the use of race-based redress measures) without getting transfixed by the racial catgories we have to rely on.

Herewith the extract:

In Jacob Dlamini’s book Native Nostalgia he tells many stories about growing up during the apartheid years in Katlehong, a township located 35 km east of Johannesburg and south of Germiston (not far from Alberton where I had the dubious honour of completing my primary school education).

Of course, when I was a primary school child during the height of apartheid, it would have been unthinkable for me to spend time in Katlehong and to get to know Dlamini, his mother or his friends. It would also have been legally impossible for Dlamini to attend the same relatively good school as I did and unthinkable that he would spend time with me in my family home in Alberton as a friend to get to know me, my mother or my friends.

One of the stories Dlamini tells of his childhood in Katlehong is about how the people living in his street listened to the radio broadcast of the world heavyweight boxing title fight in which Gerrie Coetzee (who hailed from nearby Boksburg and was hence known as the Boksburg Bomber) took on a black American, and how they all cheered on homeboy Gerrie, who, after all, grew up not too far from Katlehong.

I too listened to that fight broadcast over the radio, albeit to the Afrikaans and ridiculously biased commentary of Gerhard Viviers – all from the relative privilege of our whites only suburb of Brackenhurst in Alberton. And I too cheered on the Boksburg Bomber, albeit with my shouting father who was already slurring his words after one brandy too many.

We were worlds apart: one slightly bewildered white boy, living in the privileged comfort afforded to white middle class South Africans by the system of apartheid, one black boy subjected to the humiliation wrought by the system from which I was to benefit so handsomely. Yet to tell the full and nuanced story of our respective childhoods, it would be a mistake not to acknowledge this shared experience, because it reminds us that – apart from belonging to the apartheid era race categories imposed on us – our life experiences intersected and overlapped in sometimes surprising and other times shocking ways and that our lives (and who we became) were influenced by many factors apart from our respective races.

As Achille Mbembe has stated: “There is an ‘entanglement’ of colours in South Africa… There is no black history in South Africa that doesn’t involve whiteness. The history is an entanglement of colour lines.” Recognizing this entanglement and recognizing, further, that this entanglement occurred and continues to occur against the backdrop of white economic and social dominance, might assist us to take race (and the devastating effects of past and ongoing racism) seriously while safeguarding against the perpetuation of a society in which race is seen as the only relevant factor in determining who one is and where one fits in, a society in which race is essentialised.

This engagement with our history would be incomplete if it did not note that in terms of the Population Registration Act the state ensured that we had very different life experiences, that we were deemed to be different in every way. As a middle class white boy I was accorded a certain status which allowed me (unthinkingly, I must add) to enjoy the privileges that were associated with being a member of the economic, social and political dominant racial minority.

Later, of course, I discovered that one might also belong to other identity categories; that my sexual orientation and my HIV status could change my standing in society somewhat - from being an absolute insider to a person faced with the challenges associated with these other aspects of my identity, aspects which many in our society still insist belongs on the margins. I also discovered that other aspects of my identity – my whiteness, my economic and social privilege, my academic status – could mitigate against the deeply dehumanizing effects of the prejudices associated with those aspects of my identity (sexual orientation/HIV status) that would invite marginalisation or even rejection.

The point I wish to make is that when we reflect on race-based redress measures at institutions like UCT (an institution created by whites for whites all those years ago) and when the Constitutional Court engages with the question of whether a specific race-based redress measure is constitutionally compliant, the full complexity of our past and the history of each individual who still carries this past with them – no matter how some of us might protest that the past is behind us and that we have suddenly become race-blind and stripped of the social and economic privileges our white skins might still be affording us – must not be lost sight of.

I propose that the starting point for such a nuanced approach should be to recognise that the various identity categories – including race, including sexual orientation, including gender, including HIV status – are the product of a specific history and that they cannot be used to predict how individuals who are said to slot into these categories will behave, what their attitudes will be, and who they are as individuals. When we use these categories for purposes of redress we should do so ironically and in a contingent manner.

In other words, we should never use such categories as if they are “real”, in the sense of really saying something profound or true about any human being, all while acknowledging that the categories feel real to most people and that being assumed to be a member of one of the race categories will often have very real consequences – as  was so brutally illustrated by the fact that Eudy Simelane, a member of South Africa women’s national football team and an LGBT-rights activist, was raped and murdered in her hometown of KwaThema, Springs, Gauteng in 1998 because she was a women and she was a lesbian.

Second, a more nuanced deployment of such categories in legislation, policies and regulations is required. Apart from the category of race (which for the moment we have no choice but to rely on to help address the effects of past and ongoing racism and discrimination) we may want to add other considerations – along with the race of an individual – when we decide whether an individual should be the beneficiary of a specific programme of corrective measures.

The social and economic status of the individual and his or her parents; whether an individual is part of a first, second or third generation who has obtained secondary or tertiary education and the nature of that tertiary education (if any) received by his or her parents or grandparents; whether an individual grew up in a rural area or in the city; whether the individual is monolingual or speaks several South African languages; whether an individual attended a mud school in the Eastern Cape or a posh private school in Rondebosch; whether the individual is required to study in his or her home language or in a second or third language – these factors, along with many others, could all be considered as relevant (along with the race of an individual) when decisions about redress measures are made.

There must also other ways to deal with issues of redress. Who knows? What I do know is that we need to continue having a conversation about what will work best and that when we do so we ignore a critical but serious engagement with the past at our peril. When I talk about a conversation I do not mean a shouting match in which individuals retreat into the laager of their own apartheid era racial identities and shout abuse at others who they perceive to belong to a different apartheid race category, clinging to rigid and simplistic master narratives which the ghost of our apartheid past have fixed so firmly in many of our imaginations (even if many deny this).

In having this conversation it would be helpful if we could agree that it is important to take race and the need for racially-based redress seriously while also acknowledging that in doing so there is a danger that the use of apartheid era race categories will imprison us all in an apartheid of the mind.

This we can only do if we have a real and open discussion about what race did to all of us in the past (and continues to do to us today) and engage with the issue of how we can address the effects of race in the future; if we do not take part in the discussion as perpetual victims (of racism or of so called reverse-racism), but as equal, respectful human beings with agency and a unique take on life who believe and act like people who have the pride in themselves and the power to chart a new destiny that is fair and just for all — not just for those who belong to the same racial group we happen to believe that we belong to.

Why Ramatlhodi promotes an autokratic kleptocracy

Sep 1st, 2011
by Pierre De Vos.
156 comments

It is by now trite to note that in South Africa there are very serious, some would say obscene, disparities in wealth between rich and poor, made worse by the recent economic turmoil in the world. More than a million South Africans have lost their jobs over the past two years, joining the roughly 35% of the population that are unemployed or has long since stopped looking for work at all.

Many people continue to live in informal settlements (in shacks that are often flooded and are bitterly cold in winter) and many go to bed hungry. Many cannot afford the pay-as-you-go water and electricity services ostensibly provided to them by the state – if these services are provided to them at all – while many others receive substandard health care and are forced to send their children to dysfunctional schools where teachers are often not in class to teach and where children may well have no access to libraries, laboratories or sufficient computer facilities.

Of course, if one happens to be an ANC leader – inside or outside of government – or if one is one of the captains of industry (who became rich by exploiting black workers during the apartheid era and remain rich today by donating money to the ANC), one would probably not directly be affected by this reality. After all, one will be driving around in a car (who was paid for by tax money that could have fed a starving child) costing more than a million Rand (that is, when one is not renting a fancy car for hundreds of thousands of Rand a year), or one will be living in the Mount Nelson Hotel (if one is not living in a R8 million house provided by the state). Just yesterday it was reported that the state had forked out R183 million on brand new mansions to house cabinet ministers, money that could have been used to house around 2,000 poor families.

It is against this background that one should read the bizarrely immoral opinion article (penned by Ngoako Ramatlhodi, ANC NEC member, chairperson of the ANC National Elections Committee and Deputy Minister of Correctional Services) and published in The Times today.  Mr Ramatlhodi probably knows that the credibility of the ANC and the government it leads is being eroded by lavish and wasteful spending on the perks of party leaders and by the constant revelations of government corruption in our media and by the Public Protector. 

It is therefore not surprising that he is now using the South African Constitution and our indpendent constitutional institutions as scapegoats to try and divert attention from the failures of the government. Our government is failing to address the most basic needs of the poor while government and party leaders live lavish lifestyles at the expense of taxpayers and of the poor, whose lives could have been improved by the money wasted on extravagant perks and the millionaire lifestyles of ANC leaders.

According to Mr Ramatlhodi the Constitution is deeply flawed because while it bestows political power on the ANC (who by virtue of divine intervention will always represent the interests of all black South Africans even when its leaders steal from the very masses it claims to represent and when these leaders misuse funds – earmarked to address the social and economic inequality in our society - to satisfy their own venal and selfish needs), it also supposedly ”immigrates” substantial power away from the legislature and the executive and vests it in the judiciary, Chapter 9 institutions and civil society movements. He bemoans the fact that the ANC ”embraced what one calls the emptying of the state” and then continues:

Apartheid forces sought to and succeeded in retaining white domination under a black government. This they achieved by emptying the legislature and executive of real political power. On the other hand, the liberation movement was overwhelmed by a desire to create a society bereft of any form of discrimination and, as a result, made fatal concessions. We thus have a Constitution that reflects the great compromise, a compromise tilted heavily in favour of forces against change.

Thus the Constitution - interpreted and applied by the judiciary, and Chapter 9 bodies such as the Public Protector - as well as civil society groups fighting for real transformation of our society have been allowed to rob the ANC of its power to govern the country through the legislature and the executive, blocking the “fundamental change” required to turn South Africa into a true kleptocracy. (Ok, I paraphrase the honourable Deputy Minister’s words slightly, but pardon me for interpreting this opinion piece as arguing for more power for the ANC to act in the interest of its leaders without having to account to anyone for how it spends and wastes our money for the benefit of the few.)  

Mr Ramatlhodi is also upset that people challenge unlawful and unconstitutional actions of the government in our courts and that they dare to take part in democratic debates by expressing views with the aim of trying to influence public opinion for the better of society. God forbid that democracy should actually lead to a situation in which the majority of South Africans might disagree with something the governing party – with its divine right to rule - might have said or done. The ANC can surely not allow democracy actually to, well, work. What would become of the cars, the houses, the tenders, the champagne, the whiskey, the farms, the trips to visit drug-dealing girlfriends in Swiss jails?

The other tactic is to challenge as many policy positions as possible in the courts, where the forces against change still hold relative hegemony. The legislature itself has not escaped the encroaching tendency of the judiciary, with debatable decisions taken by majority views, in some instances. Decisions of the Judicial Services Commission have equally been systematically subjected to judicial reviews. The process of delegitimising the commission and its decisions has been initiated through the instrument of “public opinion”.

These views are not only uninformed and demonstrably wrong; they are also callous and dangerous. Blaming the Constitution, the courts and chapter 9 institutions for the failures of the government sufficiently to change the lives of ordinary citizens who suffered under apartheid is like a man blaming an umbrella for making him wet or a white South African blaming black citizens for apartheid. 

First, it is based on the assumption that the government of the day – who currently happens to be led by the ANC – should have a free hand to do what it likes because any check on the exercise of power of the legislature and the executive would turn these branches of government into ineffectual and impotent institution. This is of course nonsense, as the majority party in Parliament can pass any law it wishes – as long as it does not infringe on the rights of the very citizens who vote for it.

Second, it assumes that a majority party will always have the best interest of the country and its people at heart, that it will never act in a selfish or corrupt manner and that it must always be trusted to respect the rights of everyone and to act in a manner that will advance the interests of those who most rely on the state for their survival and well-being. This is a truly bizarre view as governments are formed by people – and not ordinary people but politicians whose job it is to amass power and to act in their own interest while pretending to serve the public - who are not superhuman and will not act like angels unless they are forced to. 

Lastly, this assumes that the ANC government actually always acts in the interests of the poor and the marginalised – even when it spends R183 million on new houses for a few cabinet Ministers, when cabinet Ministers stay at the Mount Nelson Hotel at taxpayers’ expense, when its officials enter dubious and probably corrupt leases with well-connected businessmen and waste billions of Rand in the process, money that could have been spent on really making a difference to the lives of those South Africans who are unemployed and depend on the state for its survival and well-being.

The view of the courts expressed in the Ramatlhodi piece is also either shockingly uninformed or deliberately misleading, which is, I guess, understandable as one needs to manufacture an enemy when one is losing the trust of the electorate because one is so obviously acting in a selfish and venal manner to line one’s own pockets to enable one to live a life of luxury at the expense of the poor. If Mr Ramatlhodi had read only a few judgments of the Constitutional Court, he would have known that our highest court – far more than the legislature and the executive – has been acting as a champion of transformation and of the interests of the poor.

If it was not for that court, the government would not have been forced to provide anti-retroviral drugs to poor, mostly black, pregnant women, thus saving the lives of hundreds of thousands of (mostly black) babies – all while people like Mr Ramatlhodi kept criminally silent. How many hundreds of thousands of babies died as a result of this communal silence, Mr Ramatlhodi? He would have known that thousands of people have been protected from unlawful eviction through the intervention of that court.

He would have known that the Constitutional Court has enthusiastically endorsed affirmative action and land reform and has taken the ANC government to task for not doing anything to scrap some of the most scandalous pieces of racist apartheid era legislation. One wonders whether this oversight might have been caused by the fact that leaders were too busy to benefit from tenders and to wine and dine their friends at taxpayer’s expense at the Mount Nelson Hotel or at their government provided mansions to actually care enough to table changes to the oppressive apartheid laws in our democratic Parliament. 

He would have known that the Constitutional Court declared invalid sections of the truly shockingly named KwaZulu-Natal Slums Act adopted by the ANC government in that province because that Act tried to punish the landless or homeless poor for being landless or homeless (which is understandable, I guess, because a person like Mr Ramatlhodi would probably not want to be reminded of the landless and the homeless when he is sipping champagne in his R8 million government provided house).

He would also have known – just to be fair – that sometimes the Constitutional Court has not been as progressive in its judgments as some of us would have liked but that this have almost always been when it has endorsed government policies or pieces of legislation that are anti-poor, anti-women or anti- the marginalised and the vulnerable. Thus it found that it was ok for the government to cut off the electricity of destitute people and for the government to have pay-as-you-go electricity meters installed in the homes of Joburg residents – even if this was only done in poor areas where black South Africans live and not in rich areas where the ANC leaders and white people live.

It also found constitutionally valid a law which basically left destitute a women who had looked after her partner for more than ten years because that law only required the estate of a deceased partner to support a women if she had been legally married to her partner. That the ANC of Mr Ramatlhodi would support such a law is probably not surprising, seeing that the ANC President has now nominated a man for Chief Justice who has made the following remarks in a case in which a man was found guilty of raping a innocent and defenceless child (in the case of S v Sebaeng (CA 16/2007) [2007] ZANWHC 25 (22 June 2007) about the “shortcomings” in the victim’s evidence:

She claims that the sexual intercourse was very painful but there was clearly nothing about her to suggest that she was in any pain when she arrived home and even during her stay there at her grandmother’s home … When she arrived at her grandmother’s home, the only strange things observed and spoken about by those who saw her were the Simba chips, the R30.00 and the 9 o’clock appointment with the Appellant….

One can safely assume that [the accused] must have been mindful of her tender age and thus so careful as not to injure her private parts, except accidentally, when he penetrated her. That would explain why the child was neither sad nor crying when she returned from the shop notwithstanding the rape. In addition to the tender approach that would explain the absence of serious injuries and the absence of serious bleeding, he bought her silence and cooperation with Simba chips and the R30.00.

So, while Mr Ramatlhodi believes we should entrust our legislature and executive with unlimited powers, I do not: not this government, not a DA government not ANY government anywhere in the world. Down that road lies tyranny and oppression of the worst kind. As the ANC government of which Mr Ramatlhodi is a member has demonstrated over and over again, even where the power of a government is limited and even where the Constitution exhorts it to address the needs of the poor and vulnerable, it often acts in the interests of its own members and not that of the broader public whose interests it claims to serve.

Whether the ANC is in power or anyone else is in power, we need the very institutions that Mr Ramatlhodi attacks. These institutions – created by our Constitution – protect us from the government of the day, no matter which party might serve in government.  This is true in South Africa as it is true in the United States, France, India or Nigeria. If  it was not for institutions like our courts – interpreting and enforcing the progressive provisions of our constitution – and of the Public Protector – exposing the scandalous corruption of Ministers and of government officials - how far away would we have been from Muammar Gaddafi’s Libya?

The “opinion” of Mr Ramatlhodi is no more than an argument in favour of an autocratic kleptocracy in which a few well-connected party leaders and businessmen would live an obscenely opulent life, while the rest of us wouldl try to survive in a world that would be nasty, brutish and probably far too short.  

A shallow argument not entirely based on the facts

Aug 24th, 2011
by Pierre De Vos.
64 comments

The FW de Klerk Foundation’s Executive Director, Dave Steward, has responded to a previous post on this Blog in which I argued that the imposition of a wealth tax would probably be constitutionally valid and criticised the Foundation for stating that our Constitution prohibits laws that distinguish between people based on race. In the interest of open and frank debate I posted the reply in the Seminar Room and I invite readers to study this response.

Unfortunately the response is not as rigorous and informed as it could have been. But the debate will not be taken further if I did not show the Foundation the curtesy of engaging with its response, something I am happy to do below.

The Foundation admits that it based its original response “on a face value reading of the [relevant sections of the] Constitution” and not on the interpretation of those provisions by our Constitutional Court, which is the body that definitively interprets the provisions of the Constitution. This was, of course, an oversight by the Foundation as the provisions of the Constitution can only properly be understood with reference to the binding interpretation of the relevant provisions by the Constitutional Court. Relying on an ostensible “face value reading” of the provisions of the Constitution is a rather risky exercise as one then assumes that one’s own supposedly common sense interpretation trumps the authoritative interpretation provided by our highest court.

The Foundation then proceeds to make the following statement:

The judgment [in the Van Heerden case], written by Deputy Chief Justice Moseneke is, indeed, singularly devoid of any concern for the constitutional rights of the white people. He goes through a number of judicial contortions to exclude the right of white citizens to protection against unfair discrimination in Section 9(3). He comes up with the remarkable idea that all and any discrimination against whites in terms of 9(2) is fair provided only that it is not so egregious that it would threaten the long-term achievement of equality.

This statement is surprising and, I have to say, in my opinion not entirely in line with the facts.

First, the claim that the judgment shows no concern for the constitutional rights of white people is impossible to square with the judgment of Deputy Chief Justice Moseneke. As anyone familiar with the judgment would know, Moseneke’s judgment does display concern for the rights of white people – although the concern might arguably not meet the special standard expected by the FW de Klerk Foundation.

I would argue that justice Moseneke engages in a serious and responsible manner with the question of redress by taking the text of section 9 of the Constitution seriously and by trying to balance the constitutional demand for racial redress with the constitutional demand to respect and protect the rights of everyone – including, obviously, white South Africans. The Foundation might feel aggrieved that this balance was not struck differently, but implicitly claiming that no balance was struck at all is at best misleading and at worse an outright falsehood.

Justice Moseneke makes the entirely uncontroversial point (quoting from the Bato Star judgment written by former Chief Justice Sandile Ngcobo) that:

In this fundamental way, our Constitution differs from other constitutions which assume that all are equal and in so doing simply entrench existing inequalities. 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.

As all the judgments in the Van Heerden case make clear, this will sometimes require the imposition of race-based corrective measures. I think the judgment of justice Yvonne Mokgoro (agreeing with justice Moseneke) expresses this idea most crisply:

Another aspect of section 9(2) is that it allows a person or categories of people to be advanced. This is important because of the nature of the unfair discrimination that was perpetrated by apartheid. The approach of apartheid was to categorise people and attach consequences to those categories. No relevance was attached to the circumstances of individuals. Advantages or disadvantages were metered out according to one’s membership of a group. Recognising this, section 9(2) allows for measures to be enacted which target whole categories of persons. Therefore a person or groups of persons are advanced on the basis of membership of a group. The importance of this is that it is unnecessary for the state to show that each individual member of a group that was targeted by past unfair discrimination was in fact individually unfairly discriminated against when enacting a measure under section 9(2). It is sufficient for a person to be a member of a group previously targeted by the apartheid state for unfair discrimination in order to benefit from a provision enacted in terms of section 9(2).

No one can surely deny that black people were previously targeted by the apartheid state for unfair discrimination. This means that race based measures aimed at addressing the effects of these apartheid policies will be permissible and will, indeed, sometime be required. But this is not the end of the enquiry, as justice Moseneke made clear that the measures that are aimed at redressing the effects of past racial discrimination and which are aimed at black South Africans may not be abused. Courts must therefore also consider the rights and interests of those not targeted to benefit from the redress (in others words, the very white people whose rights the Foundation wrongly claims justice Moseneke is not concerned about).

This must be done by focusing on the effect of the corrective measures on the group that is not benefiting from the redress measures. As Justice Moseneke stated in the judgment:

However, it is also clear that the long-term goal of our society is a non-racial, non-sexist society in which each person will be recognised and treated as a human being of equal worth and dignity. Central to this vision is the recognition that ours is a diverse society, comprised of people of different races, different language groups, different religions and both sexes. This diversity, and our equality as citizens within it, is something our Constitution celebrates and protects. In assessing therefore whether a measure will in the long-term promote equality, we must bear in mind this constitutional vision. In particular, a measure should not constitute an abuse of power or impose such substantial and undue harm on those excluded from its benefits that our long-term constitutional goal would be threatened.

Although the FW de Klerk Foundation may argue – wrongly in my view – that Justice Moseneke’s judgment fails to show sufficient concern for the rights of white people, the claim that it shows no concern is therefore clearly false. One hopes that a retraction in this regard will be forthcoming. The interpretation provided by Moseneke does not strip white people of their rights. Where, to use an extreme example, Parliament passed legislation that prohibits all employers from promoting white candidates for the next 20 years, such a provision would clearly be unconstitutional as it would impose an undue burden on white South Africans.

My view is that a one-off tax aimed at redress would not impose such an undue burden. The almost negligible effect of the imposition of such a tax is neatly illustrated if one recalls that wealthy Germans (initially almost exclusively living in Western parts of Germany) have been paying a solidarity tax of up to 5.5% since 1991 in order to finance the reconstruction of East Germany. This money is directly transferred to states in the Eastern parts of Germany. It disproportionately affect West Germans, but so far I have not read anything suggesting that Germans living in the Western part of their country are rioting or are arguing that the tax demeans them or undermines respect for their human rights. That may be why the German Constitutional Court has also declined to hear a petition from a lower court on this matter.

The Moseneke judgment is therefore clearly in line with the views of Sachs, quoted approvingly by the Foundation, that to “allow section 9(2) to be interpreted in a way which says: provided the measure affecting the advantaged persons (whites, men, heterosexuals, English-speakers) is designed to advance the disadvantaged, the former can be treated in an abusive or oppressive way that offends their dignity and tells them and the world that they are of lesser worth than the disadvantaged.” Moseneke does not interpret section 9(2) in that way – that is why Sachs concurred in the judgment of Moseneke.

Second, the idea that it might be acceptable for one group (in this case whites) to be treated differently from another group (in this case blacks) in order to achieve the realisation of substantive equality is not remarkable at all. The Supreme Court of Canada as well as courts in many other constitutional democracies embrace this idea. Apart from the US Supreme Court – who is working with a text that is more than a hundred years old – there are very few courts in modern constitutional democracies who do not embrace the substantive notion of equality postulated by Moseneke, Mokgoro, Sachs and Ngcobo (and indeed endorsed by all the other judges of the Constitutional Court) in the Van Heerden judgment.

The notion is also accepted in international law, as a quick perusal of the International Convention on the Elimination of All Forms of Racial Discrimination, the Convention on the Elimination of All Forms of Discrimination Against Women, the jurisprudence of the UN Human Rights Committee, the UN Committee on Economic Social and Cultural Rights and many other quasi-judicial convention bodies required to interpret international human rights treaties will attest.

Anyone familiar with academic writing in the field of equality law will also know that this idea is not remarkable at all and that it is widely embraced and discussed by legal academics and philosophers. A quick perusal of the South African Journal for Human Rights (SAJHR) would have revealed to the Foundation that academics from all over South Africa, as well as academics from other (far from radical) universities such as Oxford, have recently published admirable articles about this concept. Probably the most famous and influential living legal philosopher (and by no means a radical ivory tower academic), Rondald Dworkin, has also written admiringly about this idea.

Now, the FW de Klerk Foundation may want to argue that the conventional wisdom on equality law is wrong and that we should rather turn the intellectual clock back 50 years and embrace a formal notion of equality. Or it may want to make more nuanced arguments – as Prof Henk Botha of Stellenbosch has done in an admirable and thoughtful article published in the SAJHR – about the paradox at the heart of modern equality law, namely that in order to remedy discrimination and redress disadvantage, we have to invoke broad social categories and identities (such as race) which are themselves implicated in relations of inequality and subordination.

Sadly the Foundation did not do any of the above, but instead relied on “common sense”, which sometimes is another word for the shared prejudices and blind-spots of an insular group of privileged but out of touch individuals trying to protect their own interests. The response of the Foundation therefore represents a lost opportunity to engage in an informed and considered manner with the difficult questions around race, redress and equality. Maybe it might want to take another stab at it and produce a more thoughtful and intellectually honest and rigorous argument. I would again be happy to publish it on this Blog in the interest of vigorous and hopefully informed debate.

Where are you going to stand, my fellow white South Africans?

Aug 15th, 2011
by Pierre De Vos.
492 comments

One of the things I most admire about Archbishop Desmond Tutu is that he is an equal opportunities offender. A few years ago he offended then President Thabo Mbeki for saying that there was a lack of debate inside the ANC, given that it was verboten to talk about succession inside the ANC or to question the President’s views on any number of topics without expecting some serious, flame-throwing, nuclear slap-down in return. Mbeki then, as was his wont, wrote a rather sarcastic letter in response, which I would summarise (only somewhat in jest) as telling the Arch: “You know f#k-all, and I know everything”.

Now the former Truth and Reconciliation Commission (TRC) chairperson and Archbishop has caused another stir by dusting off a recommendation of the TRC which proposed the imposition of a “prosperity tax” to raise money for redress. Addressing an audience in Stellenbosch, the former Archbishop stated that white people should campaign for the imposition of such a tax as reconciliation gesture. He explained that although today’s white population was not necessarily directly involved in apartheid, they nevertheless derived benefits from an unjust system through opportunities, lifestyles and access to services. “South Africa is infamous as one of the worst examples of inequality between the rich and poor,” he said.

The FW de Klerk Foundation, doing what it does best, jumped to defend the economic interests of white people and shot down this idea. In doing so, it made statements that are so obviously wrong — as a matter of Constitutional Law - it made me wonder whether the Foundation is not being advised by the Chief State Law Advisor or by those clever lawyers who told the President that section 8(a) of the Judges’ Remuneration and Conditions of Employment Act is constitutional. The Foundation, predictably but depressingly, rejected the idea of a reparations tax imposed on white South Africans and then made the following quite astonishing set of claims:

One of the principles [on which the post-apartheid society is based] is non-racialism and the idea that we should no longer adopt laws that are aimed at one or another racial group. It would accordingly be unconstitutional to impose a wealth tax only on one of South Africa’s racial groups. It would require the reintroduction of racial classification and of many of the other demeaning racial distinctions that were associated with apartheid. It would also be unfair. Would whites who opposed apartheid be expected to pay the same as those who supported it? Would there be different tax scales for whites who supported the ANC, the DP and the old National Party? And what about the many blacks who held well-paid positions in homeland governments? To be constitutional, a wealth tax would have to be applied to all South Africans regardless of their race.

As any second year Constitutional Law student (as well as any regular reader of this Blog) knows, the statement on the unconstitutionality of a wealth tax imposed on white South Africans is pure nonsense. Maybe the folks at the FW de Klerk Foundation have been reading too many of Ken Owens’ letters in Business Day and forgot to read either the text of the Constitution or the applicable Constitutional Court judgment on affirmative action. If they had read section 9(2) of the Constitution as well as the judgment in Minister of Finance v Van Heerden they would surely have avoided embarrassing themselves by making false statements about South African (as opposed to American) Constitutional Law.

In that judgment the Constitutional Court, (in a judgment written by Deputy Chief Justice Dikgang Moseneke) held that equality is something that must still be achieved in South Africa and that section 9 of the Constitution places a duty on all organs of state ”to protect and promote the achievement of equality” by implementing corrective measures that target groups disadvantaged by past discrimination. We cannot merely pretend we now live in a non-racial society and therefore ban all references to race in our law because if we do we will merely be entrenching white privilege — which is what the FW de Klerk Foundation’s position essentially boils down to.

The Court pointed out that “when our Constitution took root a decade ago our society was deeply divided, vastly unequal and uncaring of human worth”. Many of these “stark social and economic disparities” (much of it linked to a person’s race) will persist for a long to come. According to the Constitutional Court, corrective measures which target specific race groups are therefore constitutionally valid and in many cases even constitutionally required in order to “start a credible and abiding process of reparation for past exclusion, dispossession, and indignity within the discipline of our constitutional framework”.

The implementation of race-based measures (like the imposition of a once-off wealth tax on white South Africans to advance reconciliation and make token reparation for the wrongs of the past) is therefore not an exception to the general guarantee of equality or to a general endorsement of non-racialism. Such measures are not “reverse discrimination” or “positive discrimination” but are rather “integral to the reach of our equality protection”.

For race-based corrective measures to comply with the constitution, one must ask whether “an overwhelming majority of members of the favoured class are persons designated as disadvantaged by unfair exclusion” and whether the measures “constitute an abuse of power or impose such substantial and undue harm on those excluded from its benefits that our long-term constitutional goal [of the achievement of equality] would be threatened”.

In the Van Heerden case the Constitutional Court had to decide whether a Parliamentary pension scheme, which — for a period of five years — provided better benefits to parliamentarians who first joined parliament in 1994, was constitutionally valid.  Mr Van Heerden, an old apartheid era parliamentarian, complained that the scheme discriminated against whites because the vast majority of new parliamentarians in 1994 were black and those who served before 1994 were mostly white. The court rejected this argument, pointing out that Mr Van Heerden was still going to be far better off in terms of his pension than any parliamentarian who entered parliament in 1994 for the first time.

One question was whether the affirmative action scheme might not comply with section 9(2) because some white people also first joined parliament in 1994 and was benefiting from the scheme. Moseneke stated that as long as the overwhelming majority of those targeted are from the disadvantaged group (or, by implication and conversely, as long as the overwhelming majority of those disadvantaged are from the former or continuing privileged group) the scheme would meet the criteria for a valid scheme. So while placing a wealth tax on all people earning a certain amount would be constitutionally valid, so would a tax only aimed at white South Africans who earned a certain amount every year.

A once-off wealth tax imposed on white South Africans who earn more than a certain amount as a small gesture towards reconciliation and redress would almost certainly pass the Van Heerden threshold because whether one supported apartheid or struggled against it, one invariably benefited from it if one is a white South African (whether born before or after 1994). If I had been born black and poor, I almost certainly would not have gone to University and I would almost certainly never have been a Law Professor at UCT, earning quite a nice salary, thank you.

This does not make me feel guilty, but it does make me feel humble and aware of the injustices of the past which I benefited from. It also spurs me on to do my small bit (no matter how small) for reconciliation and redress, not out of a misplaced sense of moral superiority (how can I be morally superior if I am just another human being with my own faults, petty and probably unexamined prejudices and any number of other foibles), but this is the only way I can make sense of living as a white person in this strange place in which our apartheid past lingers like a bad smell — despite all the denials of many who benefited from it.

The fact that some whites were too lazy or stupid to get rich during the days when affirmative action only benefited white people, is of course irrelevant for this argument. (Of course today we still get affirmative action for whites in the form of rules that require children to live in the area which serves as the feeding area of certain schools who happen to be well resourced and well run or the rules of schools which say that if one’s parents or siblings went to that school one would get special treatment in admission to that school.)

But not only is a wealth tax on white South Africans who earn a minimum amount of money constitutionally valid. It is also an important and welcome idea that must be supported by all right-thinking South Africans with even a smidgen of a conscience or common sense. (By saying this I am not claiming to be better than, or morally superior to, anyone else – I am merely suggesting that whether for reasons of conscience or for pragmatic reasons, it is the right thing to do.)

Why not impose such a tax of — say — 2% or 3% of one’s annual income for a period of a year or two and then divert that tax into a special fund, administered by a respected panel of experts with the brief of funding and administering projects that would begin to address the shockingly bad facilities at many government schools frequented by the poorest of our citizens — a state of affairs indisputable caused by apartheid.

How many school libraries could be built with that money? How many fully stocked laboratories could be built with that money? How many soccer fields and pavilions could be erected with that money? How many new computer labs with internet access could be provided to students who now can only dream of having access to computers and the internet? To avoid the argument, offered by some white people, that such a scheme would be a waste of money ”because ‘they’ (always wondered who ’they’ were and if ‘they’ included white businessmen who rake in obscene bonuses paid out of the profits made possible by exploiting workers) will only steal the money”,  the money could be administered separately by a well-respected panel or independent institution, headed by Mamphele Ramphele, for example.

The problem is, of course, that some white people — out of shame or ignorance or maybe a bit of both — do not want to admit that white South Africans almost all benefited from apartheid vis-à-vis black South Africans. (I have always thought that many of those who attack me and charge that I am ashamed of being white, are projecting their own sense of suppressed racial shame onto me.)

Some benefited directly through affirmative action for whites which reserved most government and many private sector jobs for whites and boosted the education of white children by spending vastly disproportionate amounts of money on the education of white children. Others benefited indirectly, by living in a society where cheap black labour was always available to look after children and clean the toilets of even relatively poor whites or by being born white to parents who benefited from apartheid and could therefore provide a better life for their children.

Before we all accept this obvious fact, show a willingness to face up to it and begin to do something about it, and resist the temptation to want to sweep it all under the carpet because of embarrassment, misplaced anger or ignorance, we are never going to be able to embark on the true road to reconciliation. Insisting on reconciliation based on a denial of the past is not doing us any good. Such a “reconciliation” is no more than an attempt to rewrite the past in order to try and ensure that the laughable but very deeply entrenched notion so central to white identity — the idea of white moral superiority — remains intact.

I am dreaming of a world in which the notion of moral superiority based on race has no place. In this world — in which every human being has an inherent moral worth but (perhaps influenced here, against my will, by my Calvinist upbringing) where human beings are never perfect — making claims about the moral superiority OR inferiority of an individual based on their race is so absurd and immoral that anyone making such a claim, defending such a claim or implicitly relying on such an assumption has forfeited the right to be taken seriously. And in yours? Where are you going to stand in this war of ideas, my fellow white South Africans?

Time for litigation on education?

Jun 30th, 2011
by Pierre De Vos.
80 comments

A report that a countrywide assessment of grade 3 and grade 6 pupils has revealed shockingly low levels of literacy and numeracy amongst South African school children comes as no surprise. Given the fact that vast disparities remain between the conditions in most township and rural schools on the one hand and most suburban schools on the other and given the fact that many teachers remain underqualified and demotivated, the assessment merely confirmed what we already knew, namely that our education system is in deep crisis.

According to the report, the national average performance in grade 3 for literacy was 35%, and 28% for numeracy.  The Western Cape scored the highest with 43% for literacy and 36% for numeracy. Mpumalanga came last with pupils scoring an average 27% and 19% respectively.

Does this mean that our government is in breach of its constitutional duty – guaranteed in section 29(1)(a) of the Constitution – to provide everyone with at least basic education?

As I pointed out before, the Constitutional Court has not yet had the opportunity to provide a definitive interpretation of the scope and content of the obligations placed on the state by section 29(1)(a). However, in Governing Body of the Juma Musjid Primary School and Others v Essay and Others the Constitutional Court – in a judgment handed down earlier this year and authored by Justice Bess Nkabinde – discussed the content of this right in the context of an application to evict a public school conducted on private property.

Justice Nkabinde pointed out that the right to “a basic education” under section 29(1)(a) – unlike some of the other socio-economic rights – “is immediately realisable” as there is no internal limitation requiring that the right be “progressively realised” within “available resources” subject to “reasonable legislative measures”.  The right to a basic education in section 29(1)(a) may be limited only in terms of a law of general application which is “reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom”.

But what are the obligations of the state to ensure that it provides basic education immediately to everyone? Because this case dealt with the eviction of a school from private property and not with the question of whether the unequal provision of often substandard education breached section 29(1)(a), the Constitutional Court did not expressly answer this question. However, it did make the following pertinent remarks about the right to education:

The significance of education, in particular basic education for individual and societal development in our democratic dispensation in the light of the legacy of apartheid, cannot be overlooked. The inadequacy of schooling facilities, particularly for many blacks was entrenched by the formal institution of apartheid, after 1948, when segregation even in education and schools in South Africa was codified. Today, the lasting effects of the educational segregation of apartheid are discernible in the systemic problems of inadequate facilities and the discrepancy in the level of basic education for the majority of learners….

Indeed, basic education is an important socio-economic right directed, among other things, at promoting and developing a child’s personality, talents and mental and physical abilities to his or her fullest potential. Basic education also provides a foundation for a child’s lifetime learning and work opportunities. To this end, access to school – an important component of the right to a basic education guaranteed to everyone by section 29(1)(a) of the Constitution – is a necessary condition for the achievement of this right.

As I read it, this passage reminds us that the provision of basic education to all is closely linked to the protection of the human dignity of every child. Children who are not provided with a basic minimum standard of education will probably never reach their full potential and will not have the opportunities provided to those children who were provided with access to basic education in better resourced and functioning schools.

This right – so it seems to me – becomes more potent when it is linked to the right to equality and non-discrimination (guaranteed in section 9 of the Constitution), which our courts have argued is also closely linked to the protection of the human dignity of all. Where the state provides shockingly unequal education to children and when this inequality is largely based on the race of the children, the state may well be failing to meet its commitments in terms of section 29(1), read with the obligations imposed by section 9 of the Bill of Rights.

Maybe the time has come to approach the Constitutional Court to challenge the failure of the state to take adequate measures that will begin to address the vastly unqequal education experience of children in South Africa.

As the Constitutional Court pointed out, the Minister of Basic Education and the various MEC’s of basic education have “a positive obligation in terms of the Constitution to ‘respect, protect, promote and fulfill the rights in the Bill of Rights’”.” Where it can be demonstrated that the Minister or MEC’s had not taken decisive steps to address the inequality in our education system and may have been at best indifferent to the problem and at worst may have made the situation worse, a breach of the Constitution would surely be found to have occurred.

In the Juma Masjid case, the Constitutional Court found that the MEC for basic education had not complied with these constitutional obligations as she had failed to pay the private landowners on which the school was situated  the arrear rentals and maintenance expenses incurred by those owners. In the affidavit before the High Court in this case, the MEC pointed out that she is acutely aware of the state’s constitutional obligations and undertook to pay all outstanding rentals and any amount payable in respect of expenditure incurred in maintaining the building, provided that certain legal requirements were met. As Justice Nkabinde remarked – perhaps in exasperation – “[t]hese undertakings came to naught”.

The Constitutional Court also pointed out that the authorities had a constitutional duty to place relevant evidence, including a plan setting out the details of how she was going to provide alternative education to the affected learners, before the Court, something she had failed to do. The Court endorsed the view expressed by the judge in the High Court judgment that:

It is unacceptable for the State to fail to put up relevant information and more importantly to take steps to comply with its constitutional obligations where a dispute pertains to the relevant State department’s performance of its constitutional mandate.  Much time and effort has been wasted due to, it seems, the [MEC’s] failure to deal decisively with the issue of the continued occupation by the school of the property on terms mutually acceptable . . . .  If the parties could not agree on mutually acceptable terms, then the [Department] should have taken steps a long time ago to make alternative arrangements, but to at least deal with the issue.  If that was done in accordance with the provisions of the Act with proper regard to the department’s constitutional mandate, then the need for the present application would probably never have arisen.

The Constitutional Court therefore found that the MEC was in breach of her constitutional duties.

In the light of the shocking results of the assessment report, the Minister and MEC’s surely have a duty to explain what steps are being taken to improve the situation in order to address the unconstitutional inequality in the provision of education to our children. More pertinently, the Minister and MEC’s have to explain what the department is doing to address the vast disparities in the standard of education of mostly white suburban kids and mostly black township and rural kids. What plans are in place and how are they being implemented?

Are steps being taken to lure better qualified and better paid teachers to these schools and if not why not? Are steps being taken to improve the qualifications and the performance of underqualified and underperforming teachers and if not why not? Why are there still 900 schools without toilets? Why do many children – usually in the poorest parts of the country – often do not have access to textbooks?

It would be revealing to see whether the assessment report indicates which schools and which areas have the best and the worst literacy and numeracy results? I would bet that the schools serving the poorest sections of the community, schools with the worst infrastructure and the worst paid teachers, and schools with governance problems and lack of leadership, would probably have produced the worst results. The question is what is going to be done to address this. Mere hand-wringing will no longer do. While it has much to answer for, merely passing the buck by blaming Sadtu, will also not suffice.

Surely we cannot continue with the present system where most white kids and those black kids whose parents can afford the school fees get a relatively decent education while the poorest kids get an education that is so inadequate that it would not meet the minimum requirements for the provision of basic education? Perhaps it is time for civil society to begin gathering evidence about these failures, to begin a campaign to mobilise parents and children in support of equal education and to put pressure on the government with threats of constitutional litigation and – as a last resort – actual constitutional litigation.

The NGO Equal Education seems to be doing good work in this regard, but it seems to me it needs to begin thinking of launching constitutional litigation as part of its mobilisation effort to ensure that all children in South Africa get access to at least basic education. Courts cannot fix our education system. But we have seen that threats of litigation and actual litigation can spur on the lethargic politicians and bureaucrats to do what they are constitutionally obliged to do.

I will gladly donate some of my time to help work on such a case. To the barricades and to the courts, I say!

On being white and feeling ashamed

Jun 27th, 2011
by Pierre De Vos.
156 comments

Should white people in South Africa feel ashamed about being white and about the fact that we benefited in the past because of our white skins and continue to benefit from our whiteness – even if we were born after the end of apartheid? Should white South Africans do more than acknowledge the wrongs of the past and its lingering effects and withdraw from public debate to signal our humility and shame?

In a provocative article published on Saturday in Die Burger Eusebius McKaiser, with reference to the academic work of philosopher Samantha Vice, engages with these complicated and challenging issues.

McKaiser argues – quite correctly, it seems to me – that the dominance of whiteness as an idea and as a social reality embodied with immense power (and the exploitation that is associated with this whiteness) is not something that we can claim to be past us. We are not colour blind in the new South Africa, nor can any of us be colour blind – even if we tried or even if we claimed never to see a person’s race. We still live our race and benefit from it – especially if we are white.  As McKaiser states:

One of Samantha [Vice's] significant observations is that white South Africans have unknowingly become used to an uncritical way of living in their white skins; which means they cannot even acknowledge that being white is still equated with social capital. Just like a sexist black man or a homophobic white woman may never accept that they benefited from patriarchy or heteronormativity, few white people make the effort to acknowledge that certain benefits are still wrapped up in being white. Some would even have the audacity to claim that they are the victims, the new “blacks”, of South Africa.

They will argue that the system has changed because St John’s College in Houghton now has a black head boy, new BMW’s mostly belong to black professionals and these days some people are even the victims of anti-white racism. But when the cold hard facts around poverty, inequality and unemployment are looked at from the vantage point of race, this emphasises Samantha’s honest opinion: whiteness still represents unfair advantage in the post apartheid South Africa. Whiteness is still the social norm, is still in fashion.

For McKaiser and for Samantha Vice an appropriate way for white people to deal with this reality of past and ongoing white dominance and exploitation is to feel ashamed. However, McKaiser disagrees with Vice about her contention that white people should therefore withdraw from the public space. He contends that it is the responsibility of everyone to engage as equals in the public debate. Surely, he argues, black people do not need to be protected from the opinions of white people?

Personally, while I fully endorse the analysis by the two authors about the dominance of whiteness and the ongoing benefits and privileges bestowed on all of us who happen to be white because we are white, I find the language of “shame” highly problematic.

The term “shame” – like the term “guilt” – sounds rather biblical in nature. One feels guilty and ashamed if one has sinned in the eyes of God. One then asks for forgiveness and is forgiven by God but one avoids repeating the sin because one feels ashamed at what one has done. Shame turns us into passive bystanders in our own lives and to some extent, absolve us from broader responsibility for our actions and for who we are and how we have lived and continue to live in this world and in this country of ours. 

Shame does not allow us to take responsibility for our actions in a concrete manner and to take action to deal with the injustices we find all around us. Instead, shame paralyses us and delivers us into the hands of God or some such deity who might, in time, help us to carry our burden of shame just like Jesus supposedly carried our sins for us on the cross. 

The notion of shame, for me, also runs the risk of being seen as self-indulgent and narcissistic. Shame is about focusing on the self – not on the suffering of others or the injustices which created the shame in the first place. By advocating that white South Africans should all feel ashamed, the authors might be encouraging whites obsessively to focus on themselves and their personal feelings, which are then cast as being at the centre of their universe. This, ironically, is exactly what the authors identify as the problem with whiteness – this obsessive belief that one is the centre of the world and that how one feels and what one does is what is important in the world.

Rather, I would argue in favour of the language of responsibility and reparation. All of us who are privileged in our different ways (as whites, as heterosexuals, as men, as the wealthy) should acknowledge our – sometimes admittedly, relative – privilege and should reflect critically (and with a degree of humility that does not slide into blubbering obsequiousness) on who we are and how we can take responsibility for our actions in a more ethically relevant and practically meaningful manner. 

Far more than advocating that all white people should feel ashamed, I would advocate that those of us who are white South Africans should ask the following kinds of questions: How do we deal with our whiteness and the racism associated with it; our heterosexuality and the homophobia associated with it; our maleness and the sexism associated with it? Do we live meaningful lives in which we demonstrate – through words and deeds – that we are aware of our own privileged position and do we act in ways that can be seen to help to address the effects of past and ongoing injustice in which we might be directly or indirectly implicated?

If we managed to live the kind of lives mentioned in the previous paragraph (something that is admittedly almost impossible to do 24 hours a day), it will prevent us from turning into passive but narcissistic wallowers in guilt who, in order to feel virtuously ashamed, sit in our little corners, oblivious to the everyday needs of our fellow South Africans, whose lives we might have touched if only we had overcome our shame and guilt and actually did something.

Living such lives (or at least knowing that it would be good to try) would ensure that we actually live lives of dignity as promised by our Constitution. It might allow us to do something to make our world (however large or small we wish to define it) a better and more just place – something that shame and guilt can never do.

My heart says hate speech but my head is not sure

Jun 3rd, 2011
by Pierre De Vos.
44 comments

Sometimes a case comes along that pulls one sharply in diametrically opposed directions: one’s heart in one direction and one’s head in another. Such a case is that of South Africa’s ambassador to Uganda, Jon Qwelane. Ambassador Qwelane – a former newspaper columnist and well known homophobe and bigot – this week was found guilty by an Equality Court of hate speech for writing a newspaper column in which he denigrated gay men and lesbians.

In the column – published in 2008 – Qwelane complained that “you regularly see men kissing other men in public, walking holding hands and shamefully flaunting what are misleadingly termed their ‘lifestyle’ and ’sexual preferences.’” The constitution also came under fire when he wrote that he prayed that politicians would some day have “the balls” to rewrite the constitution “to excise those sections which give license to men ‘marrying’ other men, and ditto women… Otherwise at this rate, how soon before some idiot demands to ‘marry’ an animal, and that this constitution ‘allows’ it?”

As I wrote at the time:

This is hateful stuff. Ignorant stuff. The kind of thing written by a man who is not very secure about his own sexuality. To equate homosexuality with bestiality is the kind of primary school argument used by bullies to denigrate gay men and lesbians and is not worthy of anyone with an IQ of more than 60. We all know most people who like to have sex with animals are heterosexual. (I will rather not talk about the strange morality in South Africa which abhors bestiality while seeing nothing wrong with killing and eating animals!)

David Bullard was fired from the Sunday Times for writing a far less offensive column – albeit on race and not sexual orientation. Qwelane is right, of course: wrong is wrong and being a hateful bigot is always wrong.

It was also wrong of the newspaper to publish this drivel. Maybe illegal too, but that is not the point. Even a tabloid like the Sunday Sun should show a modicum of responsibility and should not propagate hatred of gay men and lesbians. Just last month a Banyana Banyana player was murdered because she was a lesbian. This kind of column gives implicit legitimacy to such crimes and Qwelane and those in charge of the newspaper should be ashamed of themselves. They have blood on their hands – or soon will – because others will be killed in the name of this kind of hatred.

But should Qwelane have been found guilty of hate speech. I have often argued that the provisions on hate speech in the Equality Act are too broadly phrased and that section 10 of that Act which prohibits hate speech may well be unconstitutional. I have also argued consistently that when one determines whether a person can reasonably be construed as having had the intention to be hurtful to others based on their race, sex, or sexual orientation, context is everything.

Part of the context in South Africa is that of a deeply ingrained hatred of gay men and lesbians. 

A few weeks ago Noxolo Nogwaza, a 24-year-old member of an Ekurhuleni gay rights group, was stoned to death in KwaThema outside Johannesburg, apparently because she was a lesbian. She has joined a long list of lesbians – including Banyana Banyana star Eudy Simelane and Cape Town activist Zoliswa Nkonyana – who have been brutally murdered in South Africa, merely because they dared to live openly and proudly as gay men or lesbians.

It can be argued that the kinds of statements made by Qwelane in his column – widely read by those who buy tabloid newspapers – might have encouraged the criminal bigots out there to go out and rape and murder lesbians, or at least might have confirmed their prejudices and might have comforted them by affirming their views about women in general and about lesbians in particular.

And yet…. and yet….

Is the hate speech route the best route to deal with these beliefs – which are, after all, widely shared? Would it not do more good if our government actually fired Qwelane (as it should have done long ago) and if it embarked on a massive education campaign in schools and elsewhere to teach the population how to respect the human dignity of us gay men and lesbians? By making it unlawful for anyone to utter such hateful statements, are we not driving these beliefs underground – instead of addressing them head on and eventually eradicating them?

As was the case with Julius Malema, I would probably not have brought a hate speech claim against Qwelane. Although I feel jubilant that Qwelane’s hateful bigotry has been declared hate speech (my heart talking), I remain unconvinced that the hate speech route will really address the very real and urgent problems relating to sexism and homophobia in our society (my head talking). Can one hold both of these impulses in one’s hands and remain consistent?

A positive duty to protect sexual minorities

May 4th, 2011
by Pierre De Vos.
42 comments

There is a worrying ambivalence at the heart of our government’s attitude towards the protection of the life, human dignity, right to quality and the protection of bodily integrity of sexual minorities in South Africa. Yesterday, a meeting was held between representatives from the Department of Justice (DOJ), National Prosecutors Office (NPO), Department of Social Development, crime victims empowerment groups, the South African Police Service (SAPS) and activists from organisations including Luleki Sizwe, Triangle Project, Free Gender, End Hate Crime and Rape Crisis to discuss the problem of hate crimes against lesbian, gay, bisexual and transgender people .

It is heartening to hear that the meeting went well and that it was announced afterwards that a special hate crimes task team is being set up. According to the Cape Town-based organisation Luleki Sizwe, Tuesday’s historic move shows that the government “has made a concerted effort to make [the] LGBTI community feel welcomed and heard by their government”.

This welcome development signals that some officials in government (as opposed to a majority of our most important and powerful politicians) are actually serious about preventing unfair discrimination against the LGBTI community and is willing to explore ways of promoting the achievement of equality for all members of our community.

Other signals emanating from the highest echelons of our government have, of course, been rather more worrying.

The President has made statements suggesting that gay men and lesbians deserve to be assaulted because they happen to be gay or lesbian. He has appointed a viscous, homophobic, bigot as the South African Ambassador to Uganda. Our government representative to the United Nations Human Rights Council (UNHRC), Jerry Matjila, last year refused to support efforts at the UN to protect gay men and lesbians against discrimination, saying that the rapporteur’s inclusion of sexual orientation “demeans the legitimate plight of the victims of racism”.

(The naked prejudice encapsulated by this statement becomes clear if one pauses to reflect on the — absolutely correct — outcry that would have ensued if he had said that including “race” in a report on discrimination would demean the legitimate plight of gay men and lesbians.)

Now this same Mr Matjila has been appointed as the acting Director General of the Department of International Relations and Cooperation. This suggests that some of our government Ministers reward those whose official utterances reveal a deep-seated prejudice against (and even a revulsion of) members of the LGBTI community. No wonder so many police officers seem reluctant to investigate crimes perpetrated against gays, lesbians and other sexual minorities and why the police is widely feared and reviled in the LGBTI community.

Last week Ms Noxolo Nogwaza, a 24-year-old member of an Ekurhuleni gay rights group, was stoned to death in KwaThema outside Johannesburg on April 24. As has been the case with many other such cases, members of the police appear to be extremely reluctant to even contemplate the possibility that her death was connected with her sexual orientation. Police spokesperson Tshisikhawe Ndou said investigators do not currently consider the murder a hate crime. “‘Purely’ rape, murder,” he is quoted as saying. Nogwaza’s body was found in the same township where Eudy Simelane, a former midfielder for the national women’s football side, was gang-raped and murdered in 2008.

Talking to activists and ordinary members of the gay, lesbian and transgender community, one hears horror stories about the homophobia and bigotry of police officers. I have been told by a young gay man from a township near Cape Town that he was ridiculed, laughed at an eventually chased away from the police station when he attempted to report that he had been raped by a much older man. When he refused to leave, he was threatened with arrest because: “jy is mos ‘n fokken moffie” (“you are a bloody faggot”). Meanwhile, the nine men accused of killing Zoliswa Nkonyana, a lesbian from Cape Town, have appeared in court too many times to count and the case has suffered from endless delays.

Despite yesterday’s encouraging development, there is clearly still a huge gap between how most South Africans (including many politicians, government officials and members of the Police) view gay men and lesbians and how the Constitution requires them to act towards members of this community. This is not surprising. One cannot change the hateful and bigoted attitudes of the vast majority of the South African population merely by passing a Constitution and subsequent legislation that prohibits discrimination against members of the LGBTI community.

Section 7(2) of the Constitution places a positive duty on the state to realise the rights enshrined in the Bill of Rights. In order to protect sexual minorities from unfair discrimination and in order to promote the achievement of full equality for all, the state has to do more than pass legislation. What is required is to educate and sensitise citizens to promote respect for sexual diversity.I would argue that this positive obligation requires the state to implement education programmes in schools to foster respect for members of the LGBTI community among school children. (One may also argue that workplace and other forms of affirmative action measures need to be implemented to address the systemic discrimination faced by gay men and lesbians in our society.)

It also requires the state to train government officials and members of the SAPS to treat all gay men and lesbians with dignity and respect. The Human Rights Commission as well as that useless Commission for Gender Equality also has a role to play to promote respect for the rights of sexual minorities. Perhaps because this is not a popular course of action amongst many of our leaders and because many citizens would get upset if the government and relevant Chapter 9 institutions actively promoted respect for the dignity of members of the LGBTI community, very little has been done to address the serious prejudices about sexual difference that are so prevalent amongst many members of the public.

It would, of course, be helpful if our President led the way on this and regularly made a clear and unambiguous statements about the need to respect the dignity of members of the LGBTI community. But that is probably not going to happen because it is unclear whether our President actually believes that gay men, lesbians and other sexual minorities deserve to be respected and protected. Besides, even if our President had a change of heart and now respects the equal dignity of all, this issue is not a vote-catcher and our President has not shown a willingness to say or do things that would upset too many people who form part of any of a number of factions within the ruling party.

Given this reality, the forming of a task team is perhaps as much as we might hope for at present. Meanwhile, especially poor and black women who happen to be lesbians will continue to live in fear.

Kill the boer: the ANC was against it before it was in favour of it

Apr 18th, 2011
by Pierre De Vos.
133 comments

In 2004, Senator John Kerry was ridiculed during his presidential campaign against George W Bush for explaining his stance on a Bill (to the tune of $87 billion) aimed at funding the Iraq invasion in the following terms: “I actually did vote for the $87 billion before I voted against it.”

The ANC has the same problem: it seems to have been against the chanting of the “shoot the boer” slogan, before it was in favour of it. Who knows, someday in the future — when it is not in need of detracting attention from tenderpreneurial corruption, service delivery failures, an absent and ethically challenged President, and the odd trip by a Minister to visit his drug trafficking girlfriend in a Swiss jail — it might be against the singing of the chant again.

I have written before that I believe the hate speech provision in the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA) is over-broad and hence unconstitutional.  I mean, how absurd that our law prohibits any person from saying anything that “could reasonably be construed to demonstrate a clear intention to be hurtful” to someone else on the basis of that persons race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.

According to this definition, large chunks of Spud might well constitute hate speech. Almost every comedian working in South Africa might well be found guilty of hate speech for something they routinely say at a comedy gig. This is because much of the humour might well reasonably be construed as having the intention to be hurtful to a designated group: whites; gays; jews; christians; married men; women; black people, you name it.

It is one thing to object to comedy because one thinks it is unfunny, reactionary or infused with prejudice. It is an entirely different thing to invoke the law to ban such comedy because it constitutes hate speech. It’s utterly ridiculous. The sooner this section is declared unconstitutional the better.

When we do not like somebody saying something, our best bet is to express our displeasure. If we think Alan Dershowitz is a raving bigot, surely its better to say why we think so, to argue why we think it best to distance ourselves from his pro-torture and pro-collective punishment views, than it would have been to try and prosecute Dershowitz for hate speech.

Although Dershowitz does not have a right (as he seems to think) to spread his hateful message from any platform he wishes (some of us might not wish to extend our hospitality to him and he cannot insist that we invite him to our homes or to our book clubs to talk to our family and friends), he should be free to use those platforms provided to him, to say what he pleases. Similarly, some of us might not want to encourage Julius Malema by providing him with a platform to speak, but trying to shut him up through hate speech litigation may well be counter-productive.

Strangely, Julius Malema’s lawyers are not attacking the constitutionality of the hate speech provision in their defence of Malema in the current case about whether he should be allowed to chant: “Kill the Boer”. By the way, I agree with Jan-Jan Joubert who wrote in Rapport yesterday that this case is completely counter-productive. It provides Julius Malema with a platform from which he can act as a leader of the “revolution” and can thus enhance his reputation and image. This helps us forget about the things that really make him an objectionable character, namely that he is a tenderpreneur who has mysteriously become rich while he masquerades as a man of the people who cares for the poor.

Besides, even if the court rules against him, it will only do so relating to the particular instance where he chanted the offending song (as context must be taken into account when determining whether hate speech occurred) and the court will not be able to ban Malema or the ANC from ever singing the song again in future — no matter what the context.

The other aspect about this case that is perplexing is that the ANC is defending Malema at all. After all, the ANC used to have a different view on this song. In the case of Freedom Front v South African Human Rights Commission, which dealt with the chanting of this song at Peter Mokaba’s funeral, the ANC distanced itself from this chant. Part of the ANC’s defence in that case was that it could not be held responsible for the singing of the chant by the crowd because ANC leaders immediately put a stop to the chant once the crowd started singing it. The ANC also referred to a speech by former President Thabo Mbeki, during which he stated that “nobody, whoever, they are, has the right to call for the killing of farmers or boers….”

The SAHRC thus found that there was no evidence before it that the ANC encouraged either directly or indirectly the chanting of this slogan and that the ANC had clearly disassociated itself from this slogan. But times have changed. Now, almost ten years later, the ANC has stopped disassociating itself from this chant (maybe because Julius Malema is involved or maybe because it needs such slogans in the absence of other real governance achievements).

A bit like John Kerry, the ANC was against the chant before it was in favour of it.

I can understand that the ANC is now suddenly for this chant — even though it used to be against it. After all, it draws attention away from the important issues and help us forget that the ANC is not doing so well at governing as we had hoped (the police brutality, service delivery failures, racial discrimination, hunger, homelessness). It draws attention to the revolutionary history of the ANC, which helps to mask failures of governance. No wonder the ANC has brought out the big guns to defend the song: It is easier to defend the song (which it used to be against) than to defend its record in government.

Pity Afriforum never thought about that.

What a load of dangerous nonsense

Mar 25th, 2011
by Pierre De Vos.
95 comments

NOTE TO READERS: I wrote this piece based on information gleaned from the Lead SA Website and other documents sent to me. Primedia has pointed out (see full letter here) that although a version of the Bill of Responsibilities on the website did not include sexual orientation, other documents did. Although the original version of the document drafted by religious leaders did not include sexual orientation, I have no reason to doubt that the Lead SA campaign did intend to include it in their version and that it made an honest mistake when it published the document that excluded sexual orientation. I therefore apologise for assuming that the campaign did not intend to do so and for claiming that the campaign was homophobic. I am happy to retract the criticism of the Bill (and of Lead SA) based on this assumption. I stand by the rest of my criticism of the campaign.

When the Department of Education, 567 Cape Talk, Radio 702 and others involved in the so called “Lead SA” campaign launched a “Bill of Responsibilities for the Youth of South Africa” this week, I thought it might be a good idea. Rights carry with them responsibilities and promoting both rights and the concomitant responsibilities amongst our youth seems like a good idea.

But then I read the document and was truly appalled. How such a wrongheaded and bigoted document could have been endorsed and promoted by Lead SA and the Department of Education is beyond me. Don’t these people think? If they do, don’t they have any moral compass to guide their thoughts and actions or any notion of what democracy is all about?

Of course, given the fact that the document was drafted by a group of religious leaders, it is not surprising that it gets our Bill of Rights so wrong. The document is shot through with pious platitudes and sickly sweet but morally dubious claims. It is also overlaid with the casual but deadly serious prejudices that sadly infest many who take up leadership positions in organised religious bodies. What is surprising is that the Department of Education and radio stations that pride themselves in getting South Africa talking would endorse this nonsense.

First, the document suggests that it is perfectly fine to discriminate against gay men, lesbians and other sexual minorities. In the sections dealing with equality the document states that the right to equality places a responsibility on everyone not discriminate unfairly against anyone else “on the basis of race, gender, religion, national— ethnic- or social origin, disability, culture, language, status or appearance”. No mention is made of a duty not to discriminate against anyone on the basis of his or her sexual orientation — an obligation that flows directly from section 9(3) of the Constitution and the provisions of the Promotion of Equality and Prevention of Unfair Discrimination Act.

One cannot but conclude that this deliberate and quite glaring omission means that the Minister of Education, 567 Cape Talk, Radio 702, and the Lead SA campaign do not support the prohibition against unfair discrimination against gay youth. In effect these institutions and the Lead SA campaign are endorsing the widespread hatred and homophobia that are also prevalent amongst school children. The silence in this document on the impermissibility of discriminating against gay men, lesbians and transgender youth speaks louder than they might think about the deep prejudices underlying this document.

Given the fact that gay, lesbian and transgender youth are particularly vulnerable as they are still coming to terms with their sexuality — a sexuality they are often told by parents, by their religious leaders, by teachers and by fellow learners are perverted and sinful — it is an outrage that this document deliberately skirts the issue. Gay, lesbian and transgender youth are often relentlessly taunted and bullied by peers — which in extreme cases lead to suicide — yet this document suggests that it is perfectly acceptable to discriminate against them.

According to this deeply odious document, while one has a responsibility not to discriminate against anyone because of her race, one has no corresponding responsibility not to discriminate against anyone because of her sexual orientation. This is not what the Constitution and our law says, so it is misleading. Neither is it what any ethical human being would expect. It is, however, how many bigots — including some religious bigots — think.

How any reputable organisation could endorse this document is therefore beyond me. The fact that the Ministry of Education – who has a duty to uphold and respect the rights in the Constitution – is promoting this document, suggests that it has deliberately and flagrantly decided not to honour its constitutional obligations towards a particularly vulnerable section of society. The Ministry is therefore flouting its constitutional duties and I would argue that in promoting this document the Department is in breach of its constitutional duties to respect, protect, promote and fulfil the rights in section 9 of our Constitution.

The document is also laughably and perhaps quite dangerously anti-democratic. In a democracy, a thousand opinions are supposed to bloom. We are supposed to hold strong opinions and express those opinions — even when such opinions are not popular or even when others (including parents, religious leaders and teachers) do not agree with our opinions. This view of democracy is at the heart of what it means to live in a democracy based on the value of human dignity. In such a democracy we are assumed to have agency and to be able to decide for ourselves what we wish to believe and how we ought to behave — as long as we do not break the law.

But this document suggests that children should be seen and not heard, that they should not upset anyone and hence should not really enjoy the freedom of expression that others take for granted. Children should be passive and obedient creatures who upset no one and express no controversial opinions. What this document demands is that our children should act like passive, unresponsive, scared and obedient automatons without any zest for life, no intellectual curiosity, no belief that what they think matter. This, it seems to me, is a dangerously anti-democratic (even fascist) idea.

First, the document states that the right to human dignity means that everyone has a responsibility ”to treat people with reverence, respect and dignity and be kind, compassionate and sensitive to every human being, including greeting them warmly and speaking to them courteously”.

Well, it would be nice if people were generally polite but we have no constitutional duty to treat people with reverence and respect. In fact, I would argue that in a democracy in which we are empowered to decide for ourselves who we are, what we believe and how we want to live, we have a duty sometimes to tell people that they are talking crap and that we do not respect them. How else will they know that they are ridiculous, callous or just plain wrong?

When a religious leader endorses homophobic bigotry I for one will not treat him or her with reverence. I will tell him (because it is mostly a him) that he is harming others and that he is being a very bad person for doing so. A failure to do so would require me to act in a fundamentally unethical manner merely to promote politeness and respect for others. What nonsense.

Similarly the right to freedom of expression does not mean — as this ridiculous document asserts — that we have a duty to ensure that others are “not insulted or have their feelings hurt”. How can we engage in a vigorous exchange of ideas and how can we express ourselves freely if we can never hurt the feelings of anyone? Of course, it is a good thing to try and express one’s beliefs in a logical and rational manner and to engage with the ideas of others seriously, but this does not mean we have an obligation never to hurt the feelings of others. If that were to be the case, I could never express a view, say, that organised religion is often deeply bigoted, that god does not exist or that unbridled capitalism is an evil force in the world.

This document purports to set out a list of responsibilities that are inextricably linked to the rights in the Bill of Rights. But the document does no such thing. It reflects the pious and paternalistic attitudes and beliefs held by many in the field of organised religion. It does not reflect in any way the real responsibilities placed on us by the Bill of Rights. Unlike this document, the Bill of Rights assumes that we are individual human beings whose dignity can only be respected if others also respect our right to say what we believe and think.

In other words the document gets it exactly wrong. Where the Bill of Rights and the law demands that we do not discriminate against anyone because of their sexual orientation, this document is silent. Where the Bill of Rights demands that we should be allowed to express our views and opinions robustly, this document tells us we have a responsibility not to do so if we will hurt the feelings of anyone else. It is teaching our children the wrong things in the wrong way. It is a dangerous document concocted by people who do not like or believe in equality and democracy.

Lead SA should never have gotten involved with this reactionary and paternalistic exercise. They should be ashamed of themselves.

← Earlier Posts Newer Posts →