Race

FW de Klerk reveals dark underbelly of white South Africa

May 11th, 2012

The interview on CNN with FW de Klerk, South Africa’s last apartheid President, has gotten many South Africans hot under the collar - and rightly so. In the interview, De Klerk refuses to admit that apartheid as a concept was immoral and wrong. Claiming that he did apologise for the “injustices wrought by apartheid”, he empahises that what he has not apologized for “is the original concept of seeking to bring justice to all South Africans through the concept of nation states (essentially creating two separate states, one black and one white)”.

He then proceeds to explain why the system of racial segregation and the subjugation of black South Africans by the white minority had “failed” in the following rather cold-hearted and unemotional manner:

But in South Africa it failed. And by the end of the ‘70’s, we had to realize, and accept and admit to ourselves that it had failed. And that is when fundamental reform started…. There are three reasons it (apartheid) failed. It failed because the whites wanted to keep too much land for themselves. It failed because we (whites and blacks) became economically integrated, and it failed because the majority of blacks said that is not how we want our rights…. I can only say in a qualified way. Inasmuch as it trampled human right, it was – and remains – and that I’ve said also publicly, morally reprehensible. But the concept of giving as the Czechs have it and the Slovaks have it, of saying that ethnic unities with one culture, with one language, can be happy and can fulfil their democratic aspirations in an own state, that is not repugnant.

The attitude displayed by De Klerk is shared by many (but thankfully by no means all) white South Africans and to my mind it illustrates quite emphatically why white South Africans are still widely viewed with some scepticism by many black South Africans. It is a timely reminder that many white South Africans do not “get” race and that they do not know or, worse, do not care that they are not getting it.

What De Klerk cannot admit or what he is incapable of admitting is that apartheid was not wrong – a moral abomination – because it had “failed” or merely because the human rights of black South Africans were trampled on in order to enforce the system of white domination. It was morally reprehensible because it was born out of a profound racist attitude towards black South Africans, and its logic was based on the dehumanising belief, at best, that white people were morally, intellectually and culturally superior to black people and, at worst, that black people are not fully human and do not deserve to be treated with even a modicum of concern and respect.

Apartheid was the logical result of the ideology of racism enforced by the state and could only be implemented because white South Africans believed then (as many continue to believe today – even if they are not aware of this and will deny it) that they are infinitely superior as a group to black people as a group.

Apartheid can therefore not be compared with what has happened in the former Czechoslovakia. Neither can it be compared with the impulse in Belgium for French and Flemish speakers to want to govern themselves. In these countries, different language, cultural or ethnic groups have chosen to be goverened by those who are like them, not because of the inherent belief that they are intellectually, culturally and morally superior to another group and because of the fear and hatred towards that group. Unlike with the apartheid system, the founding belief of these societies are not that its members would be tainted, subverted or defiled if they had to mix with another group whom they believed to be inferior.

The system of apartheid was not only tainted by racism or skewed by it, leading to human rights abuses against black South Africans. Racism – the fear and hatred of black South Africans by white South Africans born out of a sense of imperious superiority – was the very reasons for the creation and enforcement of apartheid.

One of the most deeply problematic aspects of life in post-apartheid South Africa is that so many white South Africans continue to deny this fact and seem incapable of confronting their own deeply ingrained sense that as white people they are generally intellectually, culturally and morally superior to most black people – although they think that by making an exception for Nelson Mandela and Archbishop Desmond Tutu they have overcome the racism within them. Fact is: we have not dealt with our own racism, no matter how progressive we are and no matter how we claim to be non-racist. Many of us may not use the “k”-word and may express our abhorance of racism, but we cannot “unwhite” ourselves and cut ourselves loose from the racists culture and world in which we live. How could we, as racism is embedded in Western culture as a defining characteristic of that culture, a culture which helps to define who we are and where we are supposed to “belong”.

That is, perhaps, why so many white South Africans get so defensive when one talks about racism, and when one calls someone out on his or her own blatant or latent racism and why excuses are so often made for racists. Because if as white South Africans we are all morally tainted because we are white, if because being white necessarily implies that we carry within our bodies the virus of racism born out of a false sense of racial superiority, then we stop being who we think we are and we lose our sense of identity as whites who by definition are superior.

When we confront the virus of racism that pumps through our veins because we happen to be white, we have to admit that we are not superior to anyone and, in fact, we become, at least, as morally tainted as everyone else, but probably morally far inferior to black South Africans. But as the definition of whiteness implies for many white people a (often unspoken and unexamined) superiority to other racial groups, this acceptance of the fact that we are morally tainted (also) because we are white (of course, no one in the world is not tainted in some way), is literally impossible to comprehend, something that would drive one mad because, for many, it just cannot be true!

No wonder De Klerk has to insist that apartheid was wrong merely because it did not work very well. If he had to admit that the very premise of apartheid made it an evil system, he would have to confront the fact that he was part of a deeply immoral system and this would fatally undermine or even destroy his sense of self – his sense of self as an essentially good person who might (because of circumstances) have made a “few mistakes” but who remains the morally superior white person he implicitly believes himself to be.

This is perhaps also why the Democratic Alliance (DA) is finding it difficult to navigate the troubled waters of racism. Earlier today journalist Osiame Molefe tellingly tweeted: “Taking on racist models is one thing, what says the DA on apartheid denialist de Klerk.” Molefe is right, but I am not sure that the DA will be able to answer him and to respond appropriately because it would create too much tension inside the DA and that party would be at war with itself.

Fact is that the DA is between a rock and a hard place. If it really wanted to confront its image of being a party for whites, a party that arrogantly exudes the values of white superiority, it will have to confront the deeply embedded notion of white superiority that so many of its current voters (and some of its public representatives) fearfully cling to in order to retain the sense that they are essentially decent human beings. It is never easy to admit that one is not as decent as one would have liked.

What the majority of white people in the world do not understand is that it can be rather liberating to throw off the burden imposed on us by the need to feel superior to others. By admitting that it is impossible to be free from racism, given that we live in a world whose economic and social structures are based on the notion of white superiority, one is freed to begin to face up to one’s responsibilities and to begin to address the problem. If one embraces the fact that one is not special, that (like all other human beings) one is incapable of living a truly ethical life but that one has an ethical duty to continue trying to do so, it is easier to let go of the anger and the hatred (and the fear and the shame which produces the anger and the hatred) that poisons one’s life.

And now I wait for the barrage of angry posts by those who prefer to continue living in their denialist cocoon of festering anger and hatred. But whether they really hate others or themselves, only they will be able to tell.

Roundtable on Race-based admissions at UCT

May 8th, 2012

by Pierre De Vos.

2 comments

A word on identity and classification

Mar 30th, 2012

by Pierre De Vos.

64 comments

This I find strange: In South Africa a serious debate is raging about the classification of people according to their racial identities and the use of those racial categories in legal or other contexts to effect redress. Why not use class instead of race, some people say? Why do we focus on race when we have experienced the harmful effect of past racial classification in apartheid South Africa?

We are on the slippery slope to a fascist state, not unlike that of Nazi Germany, people warn darkly. According to these critics of the use of racial categories in law and in other formal settings, there is something inherently evil and dangerous about classifying people on the basis of race (or about allowing people to classify themselves in terms of their race) and about invoking those classifications to try and address the effects of past and ongoing discrimination and prejudice.

What is strange is that the state and others classify people all the time in various ways, and hardly anybody ever objects to these classifications. Most people embrace different kinds of identity classifications and rely on them to describe who we are — even when these classifications were enforced by the law in the past and have been used to oppress some and advantage others. But somehow hardly anyone ever complains about this or warns about the evils inherent in these classifications — even when these identity categories have often been used to marginalise and oppress groups of people and these categories continue to form the basis of much of the prejudice and discrimination in our society.

Whether these classifications are based on our religion, our sex or gender or our sexual orientation, most of us happily admit that we are heterosexual or homosexual, Muslim or Christian or atheist, male or female. But ask (mostly white) South Africans to classify themselves as black or white and all hell breaks lose.

In South Africa, gay men and lesbians still experience severe forms of prejudice, discrimination and (in some cases) physical violence. People harbour severe prejudices against others because they are Muslims, atheists or (in some cases) even Christians and apartheid South Africa was often decried as a Christian Nationalist State. Discrimination against women were until recently endorsed by our laws and even today sexism is rife in society, leading to discrimination and in some cases to physical harm to women.

To counter this, the Constitution (as well as the Promotion of Equality and Prevention of Unfair Discrimination Act and the Employment Equity Act) prohibits unfair discrimination against anyone based on their sexual orientation, religion or sex and gender. Our courts have said that this means that gay men and lesbians, and woman and religious minorities cannot be unfairly discriminated against and that one should take into account the specific vulnerability of these groups when deciding whether different treatment of these groups constitute fair or unfair discrimination.

However, no one ever shouts and screams blue murder because we have not yet abolished the notion of heterosexuality, of Christianity or of being a man. No one claims that the fact that the law recognises that there is such a thing as a heterosexual or a homosexual means that we are on the slippery slope to Nazism. I have not read any angry letters in the paper because the Employment Equity Act allows affirmative action for women. No one has started a campaign to encourage all people to stop classifying themselves as Christians or Jews or Muslims, as men or women.

Why do people not claim that we are on the slippery slope to Nazism because we have separate toilets for men and women, because we distinguish between men and women in affirmative action legislation, because many people still believe that it is acceptable to treat men and women differently and to ascribe different social rules for men and women?

Surely, if the logic of the absolute danger of racial classification holds, it should be inherently dangerous or even evil to continue classifying people on the basis of identity categories which were used in the past (and continues to be used at present) to perpetuate discrimination and prejudice against certain people? Does this not mean we should stop categorising people as heterosexuals and homosexuals, as men and women, as Christians, Jews, atheists or Muslims? Should we boycott the census because it asks us whether we are male or female, Christian or Muslim?

But yet we do not. There are no angry letters by Mr Bodley-Smith from Fishoek published in the local paper because legal rules and other regulations still classify people as being either men or women. DASO does not make representations to UCT because the application forms still require an applicant to UCT to state whether that applicant is a woman or a man. (I note that UCT’s application form still requires a woman to say whether she is a Mrs or a Ms, not asking of a man whether he is married or not, surely endorsing a sexist practice but yet it is hardly ever commented on.)

Could this double standard be related to the fact that those who benefit (either directly or indirectly) from the classification system based on sexual orientation, sex and gender or religious affiliations be the very people with the social capital and with the economic or political power (the same people who usually write angry letters to the newspaper) in our society? Are so many white people anxious about racial classification because they have lost the power to classify people and have lost the power to benefit from their own racial classification? There is somehow nothing scary about being classified as a Christian or as a heterosexual because Christians and heterosexuals rule the country. White people do not.

Or is something else (also) going on?

Maybe, we do not object to being classified as men or women because we all have intimate knowledge of someone of the opposite sex and the men who (to some extent at least) still control the political and economic system therefore do not harbour unspoken fears about women. If one is a man, one may live with a woman (either because she is your girlfriend or wife), or one may have fond memories of one’s mother.

The same can, of course, not be said in South Africa about people of different races. In South Africa many white people do not have intimate relationships with black people. (Being raised by a black nanny whose surname one never bothered to learn and whose house one never visited does not count.) Moreover, there might be a deeply entrenched but invisible master narrative about race that animates the fears of some white people about being classified in terms of race.

White people grow up with stories of Dingaan’s killing of Piet Retief, of the “evil” Mau Mau who supposedly murdered white settlers in Kenya. We read in the newspapers about black criminals who commit farm murders and invade the suburban homes of white people and feel under siege (even though most violent crime is committed against black South Africans living in townships). Can it be that a deep-seated and irrational fear of black people lie at the heart of this (mostly white) anxiety about racial classification?

It might well be that our world will be a better place if we can manage to become truly blind to (often constructed) differences of sexual orientation, of sex and gender, of religion and of race. But that is not going to happen anytime soon because apart from racial classification, very few people see any problem with the classification of people on the basis of their identity commitments.

Should we therefore not rather stop obsessing about the alleged “evils” of racial classification and rather accept it as a given, but deal with all classifications on the basis that these classifications say little about who we truly are as human beings? (Although these classifications can say much about our relative economic deprivation and our experience of prejudice and discrimination.) Whether somebody is a man or a woman, black or white, gay or straight, a Christian or an atheist, in itself says nothing about what kind of person he or she is or how that person will treat you. These classifications have been invented by humans to put others in boxes and/or to help them make sense of the world. They can be used for evil purposes (the Holocaust, the Rwandan genocide and apartheid being examples of this), but in and of itself these classifications are not the issue.

In others words, is the challenge not for our society to learn to live with difference (constructed or otherwise), to celebrate the differences but to accept that these differences really says nothing about us as human beings. Rather than to pretend that differences (even if these differences are of our making) do not exist, we might do well to begin to learn to manage it.

On corrective measures in the Western Cape

Feb 24th, 2012

by Pierre De Vos.

170 comments

News that the Department of Correctional Services will have to defend its employment equity policy in the Labour Court now that the matter of three aggrieved “coloured” officers has been referred to that court by the CCMA, must be welcomed. It means that our courts once and for all will be able to give guidance on the permissibility of the use of the four apartheid era race categories in affirmative action policies.

The court will also once and for all be able to deal with the “Jimmy Manyi” scenario in which a company (or in this case a government Department) uses national racial demographics in its Employment Equity Plan, even in a province (like the Western Cape or Kwa-Zulu-Natal) where the local racial demographics differ sharply from the national demographics.

The three aggrieved “coloured” officers are objecting to an instruction by the department of Correctional Services that national demographics should be used for Employment Equity targets across the country – including in the Western Cape. According to the Employment Equity targets of the Department, some 79.3% of employees should be “black Africans”, 8.8% “coloureds”, 9.3% “whites” and 2.5% “indians”. People who used to be classified as “coloured” during apartheid make up 54% of the population of the Western Cape.

Three legal issues may arise in this case. First, given the fact that the Employment Equity Act does not state in the text that Employment Equity Plans of employers should or may distinguish between “black African”, “coloured”, “indian” and “white people”, but instead speaks of the advancement of “designated groups” which include “black people”, a term that is defined as being “a generic term which means Africans, Coloureds and Indians”, the question arises whether the regulations promulgated in terms of the Act which requires employers to distinguish between different types of “black” people is legally valid or not.

I would guess (but I might be wrong) that the Constitutional Court will not have a problem with this kind of distinction in the law between different categories of “black” South Africans. Many years ago the Durban Supreme Court in the Motala case found that it was acceptable for the University of Natal to distinguish between “indian” and “african” applicants to that institution’s medical school as these groups – although both “black” – have experienced different levels of discrimination under apartheid and cannot be said at present to enjoy the same social and economic opportunities.

The Constitutional Court has also stated that questions about affirmative action need to be evaluated in the particular social economic and legal context, and that it is a situation sensitive enquiry. The context in which the Employment Equity Act Regulations should be read is one in which the lingering effects of past apartheid distinctions based on “african”, “indian” and “coloured” race categories are still felt in our society. For example, in South Africa those who belong to the group classified as “indian” during apartheid are generally far wealthier than those who used to be classified as “african”.

Second, the question arises whether the Employment Equity Act allows an employer to use national racial demographics when setting employment equity targets – even where local demographics may sharply differ from national racial demographics. At present, section 42 of the Employment Equity Act states that in determining whether a designated employer is implementing employment equity in compliance with this Act, the Director-General of Labour must take into account all other factors mentioned in section 42 which includes the “demographic profile of the national and regional economically active population” and the “pool of suitably qualified people from designated groups from which the employer may reasonably be expected to promote or appoint employees”.

It must be noted that this section does not seem to impose a direct legal duty on an employer to take into account both national and provincial demographics (or to look at the pool of suitably qualified available employees available in the region) when devising an Employment Equity Plan. This suggests that there is nothing in the Employment Equity Act that prevents the Department of Correctional Services from using national instead of provincial racial demographics when devising and implementing an employment equity plan.

However, the Department of Labour must, inter alia, look at provincial racial demographics when it evaluates the Employment Equity Plan of the Department. This suggests that the Employment Equity Act may perhaps be interpreted to imply that the achievement of “employment equity” in a workplace can only be achieved if the regional and not the national demographics are taken into account. This interpretation is somewhat strained as section 42 requires the Department of Labour to take into account both national and regional racial demographics and it is far from clear whether these provisions could be read to place a legal duty on the Department of Correctional Services to use regional and not national racial demographics in its Employment Equity Plan,

Ultimately, the court will have to decide which interpretation is correct.

One must recall that section 13, read with section 15, of the Employment Equity Act states that what employers are legally required to do is to implement affirmative action measures for people from “designated groups: in order to achieve “employment equity”. “Employment equity” is not defined in the Act but section 15 defines the scope and limits of required affirmative action measures. It states:

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

(2) Affirmative action measures implemented by a designated employer must include: (a) measures to identify and eliminate employment barriers, including unfair discrimination, which adversely affect people from designated groups; (b) measures designed to further diversity in the workplace based on equal dignity and respect of all people; (c) making reasonable accommodation for people from designated groups in order to ensure that they enjoy equal opportunities and are equitably represented in the workforce of a designated employer; (d) … measures to: (i) ensure the equitable representation of suitably qualified people from designated groups in all occupational categories and levels in the workforce; and (ii) retain and develop people from designated groups and to implement appropriate training measures, including measures in terms of an Act of Parliament providing for skills development.

The section further states that affirmative action measures will “include preferential treatment and numerical goals, but exclude quotas”. It also states that the section does not require “a designated employer to take any decision concerning an employment policy or practice that would establish an absolute barrier to the prospective or continued employment or advancement of people who are not from designated groups”.

I would suspect that these provisions, read holistically, might well be interpreted by a court to mean that the duty on employers to strive towards equitable representation of suitably qualified people from designated groups in the workforce requires them to take into account the regional and not national racial demographics when it formulates its affirmative action targets. As we know, the Department of Correctional Services’ current policy (which uses national racial demographics) in effect places an absolute barrier on the advancement of “coloured” correctional services personnel in the Western Cape – especially given the bloody-minded manner in which it is reportedly being implemented. Under the current plan, if a Western Cape officer working the Department of Correctional Services wishes to be promoted, he or she will almost always have to move to another part of the country.

Although the “coloured” personnel can, of course, apply for jobs elsewhere (where there is not – in the offensive words of Jimmy Manyi – an “oversupply of coloureds”), this requirement would place “coloured” members of the Department of Correctional Services in a very difficult position. If their roots are in the Western Cape, if their families live and work here, and if they speak predominantly Afrikaans, one of the dominant languages in the region, such employees may in effect be forced to choose either never to be promoted or to uproot themselves entirely. This may force many of them out of the service of the Department altogether.

This interpretation of the Employment Equity Act would be in line with the Constitutional Court’s jurisprudence on corrective measures as developed in the Van Heerden case, in which Deputy Chief Justice Moseneke stated that it was not constitutionally permitted to impose corrective measures on a group if those measures constituted “an abuse of power or impose such substantial and undue harm on those excluded from its benefits that our long-term constitutional goal” of achieving equality in a diverse society would be threatened. The Correctional Services Department’s policy may therefore be declared unlawful and not in line with the carefully interpreted provisions of the Employment Equity Act.

If the court found that the Act could not be interpreted in this way, I suspect it would have to declare unconstitutional the provisions in the Act which could be interpreted as allowing an employer to ignore regional racial demographics when it imposed an employment equity plan. This would be because such provisions (interpreted to allow for national demographics to be used exclusively when formulating Employment Equity Plans) would not meet the requirements for a valid corrective measures programme developed in the Van Heerden case.

Whatever happens, unless for strategic reasons the Department settles this matter to avoid a definitive judgment by the Constitutional Court on these vexing issues (something the Department would be well advised to do and which it might still do if good lawyers are advising it), the case will probably go all the way to the highest court, where that court will finally be able to put these highly contentious issues to rest by giving guidance on corrective measures that apply differently to people previously classified as “coloured”, “indian” and “african”.

The historical amnesia of Pieter Mulder

Feb 21st, 2012

by Pierre De Vos.

146 comments

Dr Pieter Mulder, Freedom Front Plus Leader and deputy minister of Agriculture, Forestry and Fisheries, last week provided South Africans with a textbook example of the kind of historical amnesia that has befallen some of my fellow white South Africans. Almost every day one has to listen to some or other fellow on the radio complaining about how black South Africans are obsessed with the past.

This complaint is usually followed by a demand that we should all stop harping on about the past (in other words, that we should pretend that apartheid never happened and that its effects do not linger on in our society) and that we should look towards the future – as if the past has absolutely nothing to do with the problems faced by our country today.

The problem is that this yearning (expressed by some white South Africans) to forget the past is not only illusory, it is also deeply dishonest and self-serving. This is because those who argue in favour of a kind of moral amnesia often have very little knowledge or understanding of the very past which they now claim we need to forget. How, I wonder, can we be asked to forget the past if we do not even know (or pretend not to know) about the injustices committed by our forefathers against black South Africans and if we have no understanding of its lingering effects?

An exhortation to forget the past is really an exhortation to rewrite the past and to invent a completely new past in which white people never oppressed black South Africans, never exploited black South Africans economically and never actually dispossessed black South Africans of land and of opportunities – including educational opportunities. This Stalinist yearning to whitewash the past and to try and make us forget about the role white people played in the exploitation and dispossession which occurred during the periods of colonialism and apartheid is dangerous and infuses some white South Africans with an undeserved (and, quite frankly, bizarre) sense of moral self-righteousness and superiority which is at the heart of the continued racisms in our country.

Mulder is only one of a long line of white settlers who wishes to rewrite the past in order to enforce and perpetuate their own sense of moral superiority and their sense of supposed victimhood. Speaking in President Zuma’s State of the Nation debate with a chutzpa that is breath-taking, Mulder ignored the past 300 years of colonialism and apartheid to try and make a point about land ownership and dispossession in South Africa, stating that:

Sir, Africans in particular never in the past lived in the whole of South Africa. The Bantoe- speaking people moved from the equator down while the white people moved from the Cape up to meet each other at the Kei River. There is sufficient proof that there were no Bantoe-speaking people in the Western Cape and North-western Cape. These parts form 40% of South Africa’s land surface.

He “forgot” to mention, amongst others, the long process of colonialism and concomitant land dispossession, which culminated in the Glen Grey Act of 1894 and the Natives Land Act of 1913.

The Glen Grey Act, as Davenport pointed out, “was designed to set a pattern of African land-holding throughout the Cape African reserves”. It imposed a labour tax on Africans which was aimed at forcing Xhosa men off their land and into employment on commercial farms or in industry. It further “excluded property ownership altogether as a voting qualification for blacks who held under Glen Grey title”.

Even worse was the Natives Land Act which was passed in 1913 by the Union Parliament as part of its first efforts to formalise land dispossession of Africans and to lay the groundwork for full racial segregation which culminated in the adoption of apartheid policies. The Natives Land Act included a “Schedule of Native Areas,” incorporating all the African reserves that had been established in the various provinces prior to 1913. The Act carefully delineated the boundaries of these reserved areas. The schedule brought under the coverage of the Act about 22 million acres of land (just over 7 per cent of South African territory) within the four provinces of the Union.

As Feinberg has pointed out, the creation of a schedule, defining the boundaries of the African reserves by national law, was a very important part of the Act. The most important provision of the Act stated that Africans could no longer buy, lease, or in any other manner acquire land outside a scheduled area, except by acquiring that land from another African, and Europeans were prohibited from buying or leasing land from an African. Only Africans could buy land within the scheduled areas. Although the territory covered by these schedules were increased in 1936, the effects of this Act on landownership by Africans was devastating.

From 1913 to 1991 black South Africans, were therefore denied the right to acquire land in most parts of South Africa. Feinberg sums up the effects of this Act as follows:

The long term results were worse than anyone anticipated. Rapid population growth among Africans and soil erosion in the reserves (partly due to over-grazing) seriously undermined African agriculture. And, after 1948, the reserves became the cornerstone of a key part of the apartheid system, the homelands.

Of course, by the time the Land Act was passed, the dispossession of land had almost been complete. Feinberg again:

Before 1910 just under two million Africans lived in reserves, some of which were overcrowded. They lived in these reserves because, during the last third of the nineteenth century, Africans were conquered by Europeans who took control of a large proportion of African land, leaving only remnants for the survivors. Over half (1,149,438) of the Africans living in reserves were in the Cape Province. Africans could purchase land in the Cape, Natal, and, after 1905, the Transvaal (as a result of a court decision). The number of Africans buying land in the Transvaal was very slowly increasing after 1905. However, Africans owned a mere 2,104,300 acres in the Union, and this land was occupied by fewer than 124,000 people. Africans could not buy land in the Orange River Colony or in the Orange Free State, and the holdings of a few dated back to special circumstances from the nineteenth century.

It is exactly because (unlike Mulder and his cronies) the drafters of our Constitution did not suffer from historical amnesia that section 25 of the Constitution explicitly recognises the need for land reform in our country. This section allows for an expropriation of land in the public interest, and section 25(4) explicitly states that “the public interest includes the nation’s commitment to land reform, and to reforms to bring about equitable access to all South Africa’s natural resources”.

This section also places a positive duty on the state to take “reasonable legislative and other measures, within its available resources, to foster conditions which enable citizens to gain access to land on an equitable basis”, while section 25(8) could not have made this general point any clearer when it stated that:

No provision of this section may impede the state from taking legislative and other measures to achieve land, water and related reform, in order to redress the results of past racial discrimination, provided that any departure from the provisions of this section is in accordance with the provisions of section 36(1).

As I have written before, to this end the property clause therefore does not require expropriation of land in accordance with the “willing-buyer willing-seller” principle. Nor does it require the payment of market value for that land in all circumstances.

These provisions can be viewed as responding directly to the history of land dispossession of black South Africans which went hand in hand with the process of colonial conquest. Mulder’s argument, which (even if it was historically correct) hinges on a requirement to completely forget the past 300 years of land dispossession that went hand in hand with colonial conquest, is thus completely at odds with the provisions of the Constitution itself.

It is strange that a Deputy Minister in the Cabinet would make statements that so utterly disregard the provisions of the Constitution, given that it is this very same Constitution which he invokes in other contexts to try and argue for special rights for white farm owners or for what he would term “Afrikaners” (but what in reality amounts to right wing whites).

Spinning out of control

Feb 7th, 2012

by Pierre De Vos.

124 comments

When Ms Liz Hleza went to her spinning class at the Morningside Virgin Active in Sandton on 31 December last year, she reportedly got far more than she bargained for. Instead of an enjoyable spinning class, Hleza reportedly had to face the racial abuse of a fellow spinner because she did not wish to behave as the fellow spinner thought his white skin gave him the right to expect from her.

Hleza says that she was enjoying the music and kept shouting “yebo” as the instructor put them through the gruelling exercise. However, a man in front of her (who has as yet not been named, but is reportedly a lawyer), was so upset that Hleza was enjoying herself differently than he would have, that he got off his bicycle and confronted her.

I was so scared and thought he was going to hit me, he was very angry. He said I should keep quiet and kept saying this bloody k*****, you k*****. He was pointing fingers at me. He said ‘bloody c**** and that I was a selfish bitch. He also told me that I was born walking on four legs with a tail, and I should go back to the bushes where I belong and make that noise there.

Hleza says that she did not return the insult. After the class, Hleza went to the manager on duty to complain and when that manager called the two men to her office, they refused to go. The man, she said, swore at her again. “He said ‘You bloody k*****, you are a cockroach and next time I come to the gym I will bring Doom to spray you with’.” Virgin Active did not seem to take the incident particularly seriously (perhaps not wanting to upset a rich white client, or perhaps blaming the victim for not behaving like an upper middle class white person) and only reopened the case when it was reported on in the newspapers this week.

Predictably, some people dismissed the story, either by questioning the accuracy of Liz Hleza’s version of events (as if a different version of events would justify the use of any of the racist words uttered) or by arguing in one way or another that she was to blame for this racist attack on her because she behaved “inappropriately”. What has not been addressed is the question of whether Liz Hleza would be successful if she took the reported abuser (or Virgin Active, for that matter) to the Equality Court.

The Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA) was adopted in 2000 to give effect to the constitutional prohibition against unfair discrimination and to protect citizen from abuse and discrimination based on the race, sex, sexual orientation, religion, disability and a variety of other characteristics of the victim. PEPUDA also aims to make it easier for a private individual to take the state or another private individual or institution to court to challenge unfair discrimination or abuse.

It is important to note that PEPUDA does not outlaw racism per se and it does not turn every racist in South Africa into an instant criminal. (If it did, our courts would have been flooded with PEPUDA cases.) This means that if the lawyer who reportedly abused Hleza because of her race, made racists remarks during a dinner party, PEPUDA would almost certainly not have applied to him. In any case, even when a person contravenes PEPUDA, he or she does not commit a crime and does not get a criminal record if found guilty of racial discrimination or hate speech in terms of the Act. The court will make a finding that a person has acted unlawfully and will impose a relevant punishment (ordering the payment of a fine, the issuing of an apology or another appropriate corrective action).

The Act does prohibit unfair discrimination, harassment and hate speech.

It is clear that the lawyer could be found guilty of hate speech in terms of section 10 of PEPUDA if he had used even one of the racist words ascribed to him. This is because hate speech is defined rather broadly as including any verbal racial attack that could reasonably be construed to demonstrate a clear intention to be hurtful to another person. When a person calls someone else the k-word and hurls other racial abuse at the victim, it would be rather difficult to argue that this would not reasonably be capable of being construed as having the intention to be hurtful to the victim. The lawyer would therefore almost certainly be guilty of hate speech.

As I have written before (in the context of the Julius Malema’s hate speech case), I believe that this section is unconstitutional as it draws the net far too wide and infringes on the right of freedom of expression in a manner that is not justifiable by the limitation clause. Nevertheless, until the Constitutional Court confirms (or rejects) this view, one would be able to rely on section 10 of PEPUDA to bring a case against the lawyer.

Section 11 of PEPUDA also prohibits any person from subjecting another person to harassment. Harassment is defined as unwanted conduct “which is persistent or serious and demeans, humiliates or creates a hostile or intimidating environment or is calculated to induce submission by actual or threatened adverse consequences and which is related to sex, gender or sexual orientation” or any other ground such as race.

The reported conduct of the lawyer may arguably be viewed by a court as sufficiently serious to amount to harassment based on race as it would have demeaned and humiliated the victim based on her race. Whether a court will find this, is not clear.

The definition of harassment can be given either a narrow interpretation (which would exclude a once-off racial attack like the one under discussion), or it could be given a wider interpretation that would include once-off verbal attacks of a racist nature – as long as the verbal attack is of a serious nature. If the latter interpretation is preferred, it would mean that as long as the abuse was serious and as long as it could be shown to have humiliated or demeaned the other person (based on race, sex, gender, sexual orientation or another ground listed in the Constitution), the court would find that harassment occurred.

PEPUDA also prohibits unfair discrimination, stating that “discrimination” means any act or omission, including a policy, law, rule, practice, condition or situation which directly or indirectly imposes burdens, obligations or disadvantage on; or withholds benefits, opportunities or advantages from, any person on one or more of the prohibited grounds.

If one has demonstrated that one has been treated differently from somebody else based on one’s race, say, it will then be assumed by the court that one has been unfairly discriminated against. The other party can then try to rebut this presumption of unfair discrimination. The definition of discrimination provided in PEPUDA suggests that “mere” words would seldom amount to unfair discrimination, because one would have to show that the words had the result of imposing a burden or withholding an advantage from someone based on his or her race.

However, as PEPUDA is not a particularly well drafted Act, there seems to be a contradiction between this definition of discrimination (contained in section 1 of the Act) and the provisions of section 7 of PEPUDA which purports to provide illustrations of the kinds of actions that would constitute discrimination. Section 7 states that:

no person may unfairly discriminate against any person on the ground of race, including: (a) the dissemination of any propaganda or idea, which propounds the racial superiority or inferiority of any person, including incitement to, or participation in, any form of racial violence; (b) the engagement in any activity which is intended to promote, or has the effect of promoting, exclusivity, based on race; (c) the exclusion of persons of a particular race group under any rule or practice that appears to be legitimate but which is actually aimed at maintaining exclusive control by a particular race group; (d) the provision or continued provision of inferior services to any racial group, compared to those of another racial group; (e) the denial of access to opportunities, including access to services or contractual opportunities for rendering services for consideration, or failing to take steps to reasonably accommodate the needs of such persons.

While the reported abuse of Hleza by the lawyer would probably not fall within the general definition of unfair discrimination in PEPUDA, his reported actions may well fall within the ambit of the examples provided for in section 7 of the Act. This is because he expressed views that promote the idea of the racial inferiority of black people. Given the fact that hate speech is already outlawed by section 10 of PEPUDA, I am not sure whether a court will interpret the unfair discrimination provisions in such a broad manner to include racial abuse. If I am correct, this would mean that the lawyer may well not be found guilty of unfair discrimination if brought before an Equality Court.

However, regardless of whether one follows the stricter definition of discrimination provided in the definitions section of PEPUDA or whether one follows the provisions of section 7, the Virgin Active gym might well be found guilty of unfair discrimination.

If Virgin Active did not protect Ms Hleza from the reported racial invective of the lawyer and if it had failed to deal decisively with the matter (by, for example, suspending the lawyers membership and banning him from their gyms), this omission on the part of Virgin Active may well be viewed as constituting unfair discrimination as its inaction would have assisted in creating an environment in which Ms Hleza would have felt that she could not attend the gym or at least not the spinning class at times when she felt like it.

Such an interpretation would make sense as it would place a special burden on businesses to protect individuals against the racism of other clients. Such a burden would attack the problem of racial discrimination in a more systematic and comprehensive manner. Instead of “merely” punishing the individual racist, the Act (interpreted as proposed) would place a positive duty on powerful corporations and businesses to deal with racism amongst its clients. As businesses have far more power to deal with such matters effectively than individual clients who suffer racist abuse, this interpretation might well make the provisions of the Act more effective.

Meanwhile we await word from Virgin Active to see whether the publicity might have shamed it into taking this reported incident as seriously as it deserves. If it does not, Hleza might well want to take both the abuser and Virgin Active to the Equality Court.

On race and sex and unexamined assumptions

Jan 25th, 2012

by Pierre De Vos.

62 comments

The reaction from many people to a poster released by the Democratic Alliance Youth (DASO), in which they tried to make a point about the importance of trying to achieve a non-racial society in South Africa, is rather amusing and also quite revealing.

On the one side you have the lunatics (sorry Gareth!) like Connie van der Walt who wrote that if the guy in this picture was her son she would “shoot him dead like a bad dog”. On the other hand, there are those who interpret the poster as subliminally racist, either because it depicts a white and black person in an intimate pose at all, or because (slightly more plausibly) it depicts a white man and a black woman in an intimate pose.

Others have, of course, been outraged by the “disgusting pornography” of it all, given the fact that the two people in the poster appear to be naked from the waist up. (The people who pretend to be shocked by a mild poster like this, are probably not familiar with real pornography and would probably not make good classifiers at the Film and Publications Board.)

What is going on here? I believe (and I would, would I not?), these reactions demonstrate a few revealing things about our communal attitude towards race, sex and gender.

First, it seems to me that these reactions demonstrate the obvious fact that certain opponents of race-based affirmative action, who argue that we should not rely on racial categories when we devise measures to address the effects of past and on-going racial discrimination, are wrong. These critics argue that racial classifications are always morally repugnant, that it is in any case not always easy to determine what the race of a person is, that people who embrace non-racialism might not even see race at all, and that redress can be achieved without invoking such categories as people suffer disadvantage not because of their race but only because of their lack of access to financial and other resources.

I think the poster is rather clever (although DASO probably did not think about this) because no one who sees it will be able to deny that they noticed that the man and the woman in the poster look, well, “different” from each other. How we respond to it will of course depend on our deeply held (and perhaps unexamined or unknown) views on race and sex. We might see a white man once again exploiting a black women (despite the fact that the two people look more or less the same age and are both beautiful), or we might see two heterosexuals who are going to get a lot of flak from their parents, or (I confess this was my first thought) we might wonder whether the white guy is actually going to take his girlfriend home and whether he will one day marry her.

Given this obvious fact, how do people continue to assert that race has stopped mattering in South Africa and that most well-adjusted middle class (white?) people never see race anymore? How can we maintain the fiction that when a black person and a white person apply for the same job, we do not take any notice of the race of the applicants – unless we are forced to do so because of the requirements of affirmative action?

The poster reminds us that (as I have written before):

race hovers not far from the surface in private or other everyday settings: as an unspoken presence, a (wrongly) perceived absence or as a painful, confusing, liberating or oppressive reality in social, economic or other – more intimate – interactions between individuals or between groups of individuals. In South Africa we cannot escape race. We cannot escape our own race. Even when we claim that we have escaped the perceived shackles of race, we are merely confirming its presence by our stated yearning for its absence. And because of this we cannot claim that race does not matter when we talk about redress.

Second, the poster reminds us that many people (of all races) have internalised an apartheid mind-set regarding race, sex and gender and are utterly incapable of seeing intimacy between two people of different races and sexes in anything but starkly racial and gender stereotypical terms. Thus they claim that the poster reflects a racist and/or sexist mind-set because it depicts a white man (a man being the person who supposedly “is always in charge” in a sexual interaction) with a black woman (who is supposedly “always submissive” and to some extent the victim of the man’s sexual aggression).

To such people the thought never seems to have occurred that the women in the poster could be in charge (in charge emotionally, financially and/or physically) and that we cannot tell from the poster whether this is so or not. They have jumped to conclusions (based on their own internalised prejudices and stereotypical assumptions about race and gender and sex) that the woman in the poster is a meek receptor of male aggression. Maybe some have done so because the poster originated with the DA and in that context they are prepared to expect that the DA shares these racial, sexual and gender prejudices. But I would guess most did so because of their own prejudices of which they might not be aware – and not because of their view of the DA.

Lastly, the poster reminds us that many South Africans have internalised a notion of sexuality which has its origins in Judeo-Christian culture. We might call ourselves “Africans” but we often think about sex like modern day Christian missionaries. The assumption underlying the Judeo-Christian tradition is – as Susan Sontag has argued – that a person can be judged as “good” or “bad” (in other words, that a person can be judged as moral or immoral) almost exclusively based on that person’s sexual desires and/or conduct.

Sex is therefore always viewed as a “special case”. While we may not be judged for letting a man starve, we will be judged for wanting to sleep with that man. While a person (of whatever race) may therefore think of him or herself as having no racial prejudices, these prejudices might be flushed out when confronted with a poster that hints at sex between two people of different races. Seeing a black woman in the arms of a white man, the person recoils, either because the picture evokes (in the mind of the racist) unspeakable immoral couplings between the two, or because it evokes (in the mind of the person infected by colonial ideas) images of sexual exploitation of a black woman by a white man.

Leaving aside the white racists, many people would not recoil if he or she saw a picture of black man and a white woman sitting next to each other around a boardroom table. But when they see this picture, they do recoil instinctively because sex, somehow, is different. How ironic that they might then produce arguments that might sound progressive, arguments about the exploitation of black woman, while they are justifying the prejudices which they carry with them, prejudices that can be considered as one of the “special gifts” bestowed on indigenous South Africans by the colonial culture.

Which brings me to the second poster of the DA Youth depicted in this post. What, I wonder, would the reaction be to this poster of two men of different races? Would the same people who recoil at seeing a white man in an intimate situation with a black woman feel comfortable with two men of different races in an intimate situation? If they do not recoil, does this say something about how we construct woman as necessarily passive, powerless and meek? If they do recoil, do they know that their minds have been colonised by the ideas first brought to South Africa by white missionaries? I wonder…

Get up, stand up for your rights!

Jan 5th, 2012

by Pierre De Vos.

87 comments

Most people think,
Great god will come from the skies,
Take away everything
And make everybody feel high.
But if you know what life is worth,
You will look for yours on earth:
And now you see the light,
You stand up for your rights, jah!

Get up, stand up! (jah, jah! )
Stand up for your rights! (oh-hoo! )
Get up, stand up! (get up, stand up! )
Don’t give up the fight! (life is your right! )
Get up, stand up! (so we can’t give up the fight! )
Stand up for your rights! (lord, lord! )
Get up, stand up! (keep on struggling on! )
Don’t give up the fight! (yeah! )

- Bob Marley

The more things change, the more they stay the same. It might be a new year, but we are still talking about the same things we talked about in 2011…. and 2010…. and 2009. One of the things we keep on talking about is the seemingly never ending question of whether the Premier of the Western Cape, Helen Zille, is fatally addicted to Twitter. Another, and somehow related, question we cannot seem to get away from is the question of whether Cape Town is a racist city or not.

At the end of last year Premier Zille (who has not learnt yet that one cannot have a sensible political argument in 140 characters at a time and whose Tweets often create the impression that she lacks an appreciation of the political sensibilities and the life experiences of the vast majority of South Africans who happen not to be white and upper-middle class like herself) got involved in another spat on Twitter about alleged racism in Cape Town.

In the Mail & Guardian online Verashni Pillay wrote a beautiful piece, in which she responded quite appropriately to this spat. Writing about her time living in Cape Town she remarked:

What drove me slowly mad was how racism was an elephant in the room that you could not talk about. How white Capetonians would cringe and turn away when the topic came up, or look at you in blank confusion and ask why you were so obsessed with race. It was how, yes, there is racism everywhere in South Africa but in Cape Town it is not possible to even discuss it. And how Cape Town, with its pristine beaches, its lofty Parliament buildings and history of activism, was somehow supposed to be better than that.

Yep, my experience exactly. When my former partner was the victim of racial discrimination several years ago and we challenged the discrimination in the Equality Court, many people in Cape Town continued to argue with us that we were being “overtly sensitive” and that what we experienced were not racism at all but “something else”. (What this “something else” might be, was never made clear to me and when several years later I landed up at a party with one of the owners of the club that discriminated against my partner, the co-owner admitted that racial discrimination indeed occurred that night – on the instructions of the club owners.)

But that is not what I want to talk about in this first post of the new year. Instead, I wish to pose a different (and, perhaps, difficult) question: why is it that so many people – even middle class people who are otherwise empowered and confident – complain about experiencing racism and racial discrimination (in Cape Town and elsewhere in South Africa), but seldom challenge this discrimination in the Equality Court?

In the racist world in which we still live in South Africa, fighting to achieve a non-racial society is always going to entail a long-term struggle. If one is never prepared to stick one’s neck out and to take on the racists, the sexists, the homophobes, the ethnic chauvinists, things will never change – or they will not change as fast as they should and as fast as we are entitled to.

Some people seem to think that now that we have achieved our democracy and our freedom, there is no need to struggle against the injustices that still haunt our land. If one experiences racism or racial discrimination in Cape Town, for example, one can just give up on Cape Town and move back to Johannesburg, thus avoiding places where one suspects one will be discriminated against.

Instead of living like truly free and equal citizens who confidently assert their right to be treated with equal dignity and respect on every square centimetre of land in South Africa - whether in Cape Town, in Pofadder or in Polokwane – some people still avoid confronting the racists, the sexists, the homophobes, and never try to force them to change. Some people do not seem to think that one must first get mad and then get even by making these racists pay for their actions, actions which affront the human dignity of others.

This can – theoretically, at least – be done quite easily. The Promotion of Equality and Prevention of Unfair Discrimination Act designates most Magistrates Courts as Equality Courts and one can approach any such court when one believes one has been discriminated against. The clerk of the Equality Court will then assist one to ensure that the case is brought before the Equality Court (in terms of section 20 of the Act).

Although not all clerks of the Equality Court are as well trained as they should be and although it can be difficult to get hold of these clerks (perhaps because they are required to deal with so few cases each year and are assigned other duties), a little prodding and nagging would usually do the trick. One does not need to engage the services of a lawyer in order to win an Equality Court case and the clerk of the court is supposed to assist any claimant to ensure that one’s documents are prepared properly and papers are served on the alleged discriminator.

The form that must be completed is also available on the internet (see here) and is easy to fill in. The Act also assists the complainant by stating that as long as one has made out a prima facie case of discrimination the onus shifts to the other party who will have to convince the court that no unfair discrimination took place. This is so because discrimination is notoriously difficult to prove as those who discriminate will always have another reason for the different treatment (“there is a private function”, “only members are allowed”, “the flat has already been rented out”, “the dress code was not complied with”, “there is a waiting list for housing opportunities”).

To circumvent this problem one only has to show that a policy, law, rule, practice, condition or situation directly or indirectly imposed burdens, obligations or disadvantage on; or withheld benefits, opportunities or advantages from, a person on one or more of the prohibited grounds, including race, sex, gender, language, ethnicity and sexual orientation.

In other words once one has shown that one was treated differently than others in some way and that one of the differences between oneself and those treated differently was one’s race, sex, gender or sexual orientation, one has provided prima facie proof of discrimination and the discriminator will then have to justify this discrimination by showing that it was not unfair. This will not be easy to do.

And if one wins the case, the Equality Court is given wide powers to make an appropriate order which may include:

an order making a settlement between the parties to the proceedings an order of court; an order for the payment of any damages in respect of any proven financial loss, including future loss, or in respect of impairment of dignity, pain and suffering or emotional and psychological suffering, as a result of the unfair discrimination, hate speech or harassment in question;
after hearing the views of the parties or, in the absence of the respondent, the views of the complainant in the matter, an order for the payment of damages in the form of an award to an appropriate body or organisation;
an order restraining unfair discriminatory practices or directing that specific steps be taken to stop the unfair discrimination, hate speech or harassment;
an order for the implementation of special measures to address the unfair discrimination; an order directing the reasonable accommodation of a group or class of persons by the respondent;
an order that an unconditional apology be made;
an order requiring the respondent to undergo an audit of specific policies or practices as determined by the court: an appropriate order of a deterrent nature, including the recommendation to the appropriate authority, to suspend or revoke the licence of a person.

Yet, few South Africans ever approach the Equality Courts for assistance. Why there should be such a discrepancy between the large number of acts of discrimination experienced by South Africans, on the one hand, and the number of cases brought to Equality Courts on the other, is difficult to explain.

Can it be that some of us have been so brainwashed by apartheid that we do not all believe that we have a right never, ever, to be discriminated against? Have we been made to accept the fact that discrimination against us will occur and that it is best not to make a fuss and just to “move on”? Are too many of us afraid that the economically and socially dominant racists will brand us as overtly sensitive or as people who are “playing the race card”?

The law does not always serve ordinary people well. Sometime, instead of helping us to achieve justice the law may perpetuate injustice. But the Equality Act is a powerful tool to help every individual in South Africa who has experienced discrimination to reclaim their dignity and to achieve a semblance of justice. It is time that more South Africans stand up for what is right and use this law as it was intended to be used.

The (moral) Wasteland

Nov 21st, 2011

by Pierre De Vos.

115 comments

Over the past few days I have been thinking again about The Reader (Der Vorleser), a novel by German law professor and judge Bernhard Schlink, published in Germany in 1995. The Reader is a parable of sorts, as it deals with the difficulties the post-war German generation have had in comprehending the Holocaust. How should modern Germans deal with the knowledge that their parent’s generation perpetrated (or acquiesed in the perpetration of) the Holocaust?

In this novel, the struggle of the post-war generation to come to terms with the past, and its difficulties in deciding how it should view the generation that took part in, or witnessed, the atrocities committed by the Nazi regime is problematised and the complexity (or perhaps impossibility) of the task, is explored.

Michael – the young “reader” of the title – who had an affair with a much older woman called Hannah many years after the war (a woman who is later implicated in Holocaust atrocities), finds it impossible to imagine what Hannah was like “back then”. He feels a difficult identification with the victims of Hannah’s deeds when he learns that Hannah often picked one prisoner to read to her, as she chose him later on, only to send that girl to Auschwitz and the gas chamber after several months. Did she do it to make the last months of the condemned more bearable? Or to keep her secret safe? Michael’s inability to both condemn and understand springs from this. He asks himself and the reader:

What should our second generation have done, what should it do with the knowledge of the horrors of the extermination of the Jews? We should not believe we can comprehend the incomprehensible, we may not compare the incomparable, we may not inquire because to make the horrors an object of inquiry is to make the horrors an object of discussion, even if the horrors themselves are not questioned, instead of accepting them as something in the face of which we can only fall silent in revulsion, shame and guilt. Should we only fall silent in revulsion, shame and guilt? To what purpose?

I have been thinking about this novel because of a broedertwis (a friend joked that it was actually a sustertwis) raging on the pages of Rapport newspaper between myself and those (including an English novelist called Dr. Marie Heese) who argue that one of the most egregious injustices is being perpetrated at the University of Stellenbosch because some classes are now being conducted in both Afrikaans and English (alternating between the two in the same class).

I responded (rather sharply) to an assertion by Dr Heese that she was “die bliksem in” (“bloody outraged”) about my previous writings on this topic, arguing that this sudden moral outrage is rather rich, coming from a person who supported apartheid and never expressed any moral outrage about the oppression, legalised racial discrimination, torture and murder perpetrated by the apartheid regime in order to sustain a system, imposed in the name of the preservation of white Afrikaners, and branded a crime against humanity by the United Nations. This women, I said, knew nothing about justice, honesty and plain common decency. (Ironically, in the same issue of Rapport Dr Heese offered a partial defence of Bantu Education - which she enthusiastically took part in — rather underlining the point I was making about her immoral, apologist, view of apartheid.)

Elsewhere in that august paper Pieter Malan (one of its editors) took exception: “Met wie praat jy, professor? Ek kom uit ’n ordentlike huis. Ek laat my nie so behandel nie.” (“Who are you talking to, Professor? I come from a decent family. I do not allow myself to be treated in this manner.”) While admitting that we should not close our eyes to the “faults” of our parents, Malan argued that Afrikaners have a lot to be proud of: the industrialisation of the country, creating the best infrastructure on the African content and building Afrikaans into a fully fledged academic language (albeit not one in which Dr Heese wishes to publish her novels) were all achievements of Afrikaners who now face a grave threat to their future because their children (even those who fight for Afrikaans at Stellenbosch) choose to write their post graduate dissertations in English and dream of living in Sydney or London.

Which brings me back to The Reader.

What does it mean to come from a “decent” Afrikaans family? Can one credibly call that family “decent if its members actively or passively participated in the perpetuation of a crime against humanity? How should we deal with the “faults” of our parents — if those faults include the enthusiastic support for the systematic dehumanisation, denigration, oppression and (at times) torture and murder of fellow citizens — all based on the belief in the racial superiority of whites?

Is it morally defensible (and factually correct) to argue that Afrikaners created the modern capitalist state in South Africa and to suggest that this is something to be proud of? What does it say about the nature of the moral universe inhabited by these children of apartheid, when some of them express moral outrage about the manner in which Afrikaans is treated (although this treatment complies with the provisions in the Constitution), but have consistently failed to express similar moral outrage about the injustices related to our apartheid past in which their parents were implicated, or the injustices of hunger, homelessness and inequality that haunts present day South Africa?

These are not easy questions to answer. It is emotionally and intellectually challenging even to begin to contemplate the past in an honest and fearless manner. After all, none of us wish to think of ourselves as being morally tainted because of what our parents did (or, yes Dr Heese, because of what we did or allowed to be done). How can we judge our parents when they loved us (even when they hated fellow black South Africans and enthusiastically supported or took part in their oppression), when we fondly recall how — as toddlers — our parents lulled us to sleep at night by humming the well-known Afrikaans lullaby, Siembamba? Siembamba/ mama se kindjie/ Siembamba, Mama se kindjie/ draai sy nek om/ gooi him in die sloot/ trap op sy kop/ dan is hy dood (“Siembamba/ mothers child/ Siembamba/ mothers child/ break his neck/ dump him in a ditch/ step on his head/ then he’ll be dead”.)

No wonder so many of us find it impossible to begin to comprehend the incomprehensible horror of apartheid and the complicity of our parents in this horror. No wonder we shy away from any but the most flippant acknowledgment of the “faults” of our parents and then cover this up by extolling the virtues of a regime that supposedly “created” the current infrastructure and the modern capitalist (albeit a bifurcated) state which was rigged disproportionately to benefit whites. (No matter that the infrastructure was paid for with the taxes generated by white-owned mining companies and businesses who made exorbitant profits because they could rely on the cheap migrant labour that was an inherent part of the apartheid system. No matter that the infrastructure was partly built with the hands of black men paid a pittance because of the racist employment policies embedded in the legal system.)

No wonder so many seem to find it impossible to reflect seriously on what our parents actually were like “back then”, what they were actually thinking and saying and doing while they rode on the “Whites Only” buses and bought stamps at the “Whites Only” counter of the post offices, when they euphorically cheered on DF Malan or HF Verwoerd and JB Vorster and PW Botha (all Chancellors of Stellenbosch University) at National Party or Republic Day rallies while these leaders extolled the virtues of apartheid and argued that black South Africans were essentially sub-humans who did not deserve to be treated equally with whites who, after all, had a duty to protect white civilisation against the black hordes? No wonder those of us who grew up in the apartheid era (and maybe supported it by getting involved in the Bantu education system), prefer to believe that we only meant well — although some “mistakes” were admittedly made.

Yes, in order to preserve our sanity and our sense of ourselves as basically decent and “innocent” people, we might believe that we have no choice but to maintain that we come from “decent” families. We might believe that we have no choice but to insist that nobody treat us as if we are morally tainted. We dare not admit that we lack the moral decency to target our outrage at the real injustices of past and present day South Africa and not at the failure of institutions like the University of Stellenbosch unconstitutionally to preserve the white privileges obtained through the exploitation of black South Africans.

I am not being flippant when I say these are emotionally and intellectually complex and difficult issues to deal with. No person wishes to be told that his father or mother was a moral degenerate and few of us would agree with such a proposition if we could find any way to deny or reinterpret the facts on which such a charge was based. If one lives in a country that underwent a managed transition, a country in which the oppressors were never fully defeated or exposed and humiliated, in which a Truth and Reconciliation Commission granted amnesty to the perpetrators of gross human rights violations and in which there was never an acknowledgment that the evil of apartheid was not perpetrated by a few “bad apples” like Eugene de Kock, but by every person who benefited from the system yet supported or acquiesced in it, this task of at least acknowledging the impossibility of facing up to the past honestly and fully becomes very difficult.

Most of us Afrikaners (and many white English speakers too) live in a moral wasteland: most feel that we must either deny the past and our complicity in it (or at the very least re-write that past to erase our complicity in it), or we must acknowledge the full horror of that past, which seems to mean that we would lose our very humanity, our ability to be human beings with an inherent human dignity with moral agency and the right to express our views on present day injustices in our country.

Some of us try to find another way. We grapple with the impossibility of squaring our love for our parents and our family (and the langue we all speak) — all implicated in the horrors of the past — with attempts to imagine how it was “back then”; what our parents said and believed and did to maintaining a system branded a crime against humanity, all because they loved us and wanted to provide us with a better life, even when this was at the expense of the humanity (and sometimes the lives) of the majority of South Africans.

To square these things is impossible. To stop trying is immoral.

PS: I borrowed some of the information about The Reader for this piece from Wikipedia. See: http://en.wikipedia.org/wiki/The_Reader

Why historical context still matters in South Africa

Nov 16th, 2011

by Pierre De Vos.

103 comments

How should South Africans deal with our troubled past? When we discuss matters such as land reform, race-based affirmative action, or the so called right of students to be taught in Afrikaans, what is the historical lens through which we should view our past? What role should we accord the past (however conceptualised) when we interpret the Constitution? And what does it say about our ethical commitment to social justice and fairness when we choose a particular lens through which to view our past?

The South African Constitution is different from many other Constitutions as it is said to be historically self-conscious. How we view the past and how we frame current human rights and other constitutional issues with reference to our past, will play a role in how we interpret and apply the provisions in the Constitution. Justice Ishmael Mahommed provided a tentative answer to these question when he stated in S v Makwanyane, that the Constitution:

retains from the past only what is defensible and represents a decisive break from, and a ringing rejection of, that part of the past which is disgracefully racist, authoritarian, insular, and repressive and a vigorous identification of and commitment to a democratic, universalistic, caring and aspirationally egalitarian ethos, expressly articulated in the Constitution. The contrast between the past which it repudiates and the future to which it seeks to commit the nation is stark and dramatic. The past institutionalized and legitimized racism. The Constitution expresses in its preamble the need for a “new order … in which there is equality between … people of all races”.

As I have written before, not all South Africans have a shared understanding of our past and the injustices highlighted by Justice Mahommed in his Makwanyane judgment. Much of the disagreement about Afrikaans at Stellenbosch, about race-based affirmative action and about land reform and property rights, arise because of these often unspoken or unacknowledged differences in the way we conceptualise our past.

Although most South Africans would now profess to repudiate the racism and authoritarianism of the pre-democracy era, they vehemently disagree about the significance of this past for understanding present-day ethical and legal questions. The historical lens through which we view ethical and rights-based legal issues also differ and influence the way in which we view our own position vis-a-vis the rights in the Constitution and our ethical commitment to fellow South Africans.

Some South Africans argue that 1994 represented a clean break with the past. In 1994, so they say, we drew a line through the past and this allowed us to dump and bury all the moral baggage which some of us acquired because we remained silent about the injustices around us or because we actively supported or took part in perpetrating these injustices and enjoyed the fruits of this injustice. Apartheid was terribly wrong, they say, but that is all in the past now. We need to look forward and must forget what happened because we have made a clean break in 1994. Those who harp on about the past are merely trying to take white South Africans on a guilt trip in order to justify the current or possible future exploitation of whites (the very category whose existence they also now deny) and the denial of their rights which are now enshrined in the Constitution.

Closely related to (and sometimes overlapping with) the above is the view about our past based on the notion of moral equivalence. According to this view the past must be seen through the eyes of the white settlers. It allows for an interpretation of our past by relying on the justificatory lens of the cold war and the “fight against communism”, or on the colonialist lens according to which the “white mans burden” required whites to retain political and economic control of South Africa in order to “civilise” the country, build up its infrastructure and “prepare” black South Africans for the democracy which finally arrived in 1994.

This group argues that although racial discrimination was not very nice, white South Africans really had very little choice but to advance their own economic and social interests because the liberation movements were primitive communists who would have killed all whites in their beds had black South Africans been “allowed” to vote. In as much as there was a struggle, the oppressor and the oppressed were morally equivalent – both doing bad things to advance their respective causes. Because both sides did bad things for essentially good reasons, it is morally imperative that we forget about the past and move on. This would mean that we accept that the perpetrators of apartheid were just as much the victims of the human rights abuses of the liberation movements in particular and black South Africans in general as the oppressed were victims of apartheid.

The historical context out of which democratic South Africa was born is therefore irrelevant. So, when we discuss the question of language at Stellenbosch University, it is not acceptable to take into account the fact that the National Party promoted a form of Afrikaner Nationalism in the name of imposing Afrikaans as the dominant language on all South Africans, or that apartheid Premiers – from DF Malan to PW Botha – served as Chancellors of Stellenbosch University, or that most of the parents who now agitate for the right of their children not to have to listen to any lecturer speaking English in a class voted for the National Party, enthusiastically discriminated against black South Africans and sometimes took part in the killing and torture of black South Africans in the name of preserving the white “civilisation” with Afrikaans at the top of the dung heap.

The members of yet another group have turned into historical nihilists. Some people, they argue, always do bad things to other people if they have the opportunity to do so to advance their own economic or social interests. One cannot merely focus on South Africa’s recent colonial and apartheid past because that would single out one group (white South Africans) for moral opprobrium when oppression and exploitation can be traced back all the way to the Garden of Eden.

Where do we draw the line, they ask? Why should we focus on the evils of apartheid when other groups throughout history have exploited and oppressed their opponents? All that matters is the here and now, because if we look back we will only see a series of really unsavoury actions by various groups and we will never be able to make decisive judgements about who the “good guys” and the “bad guys” were.

I differ from the views outlined above. The starting point for any ethical engagement with our country’s past must surely be an acknowledgement of the particularly egregious nature of colonialism and the system of apartheid which logically followed from it. This is an ideological and ethical stance based on the assumption that the particularly unjust social and economic conditions we are confronted with in democratic South Africa can be directly attributed to the colonial conquest of South Africa by white settlers and the merciless economic exploitation of black South Africans and the (often violent) imposition of a European-based culture, religion and languages. This had (and continues to have) a devastating effect on the dignity of indigenous people and on the moral and economic well-being of all South Africans.

This stance is based on the idea that we have a duty to respond to the immediate world around us and that our immediate past which have directly shaped (and misshaped) our world must be responded to, carefully, sincerely and honestly. We cannot sweep the past 100 years under the carpet because these event shaped our world and created much of the injustice we live with now.

When Afrikaners ignore our recent history and claim to have become victims of a terrible injustice because some of their children can no longer enjoy the privilege (not available to the majority of previously oppressed South Africans) to study exclusively in their own language at an institution bankrolled by the democratic state, I see a terrible moral failure at the heart of their argument because of their unwillingness to respond to the immediate past and to face up to it.

Their lack of historical perspective and their failure to appreciate that — given our colonial and apartheid history — the agitation for a dominantly Afrikaans University (instead of a truly inclusive multilingual institution) represents a moral failure on their part. As what they demand would perpetuate the privileges they obtained through exploitation and a dehumanising policy of apartheid, this position is (in my view) deeply immoral — no matter how earnest and sincere the intensions of the agitators.

Of course, this set of assumptions and the lens through which I initially view such controversies is my starting point, but it is not my end point — and this complicates my argument. There are many other lenses through which one could view our past and many of them would be valid. One could embrace a class analysis and note how apartheid functioned for a long time as a handy tool through which cheap unskilled labour were produced to fuel the capitalist machine. Or one could note the gendered nature of much of the exploitation and oppression that occurred in the past and which lingers to this day in the form of patriarchy. One could adopt a “queer” reading of our past and focus on the way in which colonial missionaries, in cahoots with African traditionalists and patriarchs of every stripe, have managed to impose a heteronormative world view on society which (even today) results in the most despicable forms of discrimination and violence agains gay men and lesbians.

Because the hegemonic power of the denialists discourse is so strong, there is a tendency (also on my part) to avoid talking about these complex matters. A hegemonic discourse (denying the relevance of our immediate past) can best be confronted by presenting a counter-hegemonic discourse (noting the moral failure of the oppressor through the lens of colonialism and apartheid). The difficult task is to start by looking at our world through the lens of colonialism and apartheid, but not to get stuck there, to add nuance to our understanding of the world we live in and to confront injustice — also when it is perpetrated in the name of an anti-colonialist and anti-apartheid struggle.

When one engages with an issue such as whether some have a “right” to be taught in Afrikaans, it is difficult to present a nuanced argument because the denial by the taalbulle of the ethical universe which have shaped our world and continues to shape it. The denial of the importance of context and history and of its influence on ethical (and therefore also human rights) issues in present day South Africa forces one to confront and expose the immorality of their position in stark terms, leading to a simplified engagement with the past.

How do we move forward? What the taalbulle do not understand is that a more nuanced engagement with our past, based on the basic premise that the very existence of Stellenbosch University as a dominantly Afrikaans institution, was made possible by a system that oppressed the majority of South Africans. After accepting this, we can have a real discussion about the future. One cannot take the milk out of a cup of coffee and cannot undo the effects of colonialism and apartheid (that is why we cannot all just stop speaking English, or Afrikaans for that matter). But one can try to engage with these issues in a pragmatic and slightly less self-righteous way. Those who do, might find that it is possible to reach compromise solutions.

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Spinning out of control

On race and sex and unexamined assumptions

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The (moral) Wasteland

Why historical context still matters in South Africa

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