Race

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

Sep 14th, 2011

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 those punting “the radical middle way” are often not heard

Aug 3rd, 2011

by Pierre De Vos.

79 comments

The response to the Eric Miyeni debacle has been depressing, to say the least. Predictably, all kinds of claims and counter-claims have been made, often dividing along racial lines with some defending the racial generalisations of Miyeni (either directly or indirectly), while others saw this as an opportunity to express their prejudices about black South Africans. It is as if the Miyeni debacle has become a Rorschach test of people’s prejudices and obsessions.

How can we understand this phenomenon?

The French philosopher and literary theorist Jean Francois Lyotard first suggested back in 1979 that one way to understand the world around us is to identify the often invisible or unquestioned “grand narratives” which are produced by specific cultures or societies to make sense of the world. In a modernist world, Lyotard argued, such narratives operate as great structuring (metaphysical) stories that are supposed to give meaning and make us understand all other events and interpretations around us.

These “grand narratives” are grand, large-scale theories and philosophies of the world, such as the progress of history, the knowability of everything by science, and the possibility of absolute freedom. Lyotard – writing from a late twentieth century Western perspective — argued that in the so called postmodern Western world people have ceased to believe that narratives of this kind are adequate to represent and contain us all. They have become alert to difference, diversity, the incompatibility of our aspirations, beliefs and desires, and for that reason postmodernity is characterised by an abundance of micro-narratives.

But it seems to me that it is still rather handy for those of us living in the so called post-colonial global South to think about the way knowledge gets produced and ordered with reference to grand narratives. Because it is impossible to make sense of all the available information we are exposed to by focusing on each event and each piece of information afresh, we tend to deal with this information overload by discarding some facts and ideas and by fitting other facts and ideas into existing grand narratives. Although many of us might not even be aware of the existence of these grand narratives, we are slaves to them, because these narratives help shape our understanding of the world and the people and events in it.

One can argue about the mechanisms through which such grand narratives are produced. One may also quibble about whether such grand narratives are actually necessary tools to help us understand the world or rather a handy mechanism through which the powerful and dominant groups in society maintain their hegemonic position and achieve the subjugation of other cultures and societies.

But it seems to me that much of the disagreements in South Africa — disagreements about race and redress, about corruption, about the origins of injustice and the ways to deal with it, about the ways in which we talk about criticism of black politicians — stem from an adherence to different grand narratives by those, on the one hand, who punt Western, liberal, race-blind, free market values and those, on the other hand, who punt a kind of race-based nationalism and the importance of redress and/or revenge.

Those of us trying to find a radical middle way between these two extremes — usually by punting the struggle for social democracy and concerns for justice, economic equality and an anti-corruption stance, married to demands for the protection of individual rights to free speech and the right to be different — have a difficult time being heard and especially listened to because our ideas cannot rely on the support of strong grand narratives.

In South Africa there are two particularly dominant but fundamentally clashing grand narratives that vie for overall dominance.

On the one hand, there is the narrative influenced by a long history of colonial domination of Africa, a narrative of “darkest Africa” and “venal natives” who “cannot be trusted”, a narrative informed by the deeply ingrained fears which have been instilled at mothers knee with dark whispers of the Mau Mau and Dingaan, a narrative that has been informed by the insecurity experienced by the once dominant colonial minority.

This is a narrative that suggests that Africa is a basket case and that most Africans are corrupt, untrustworthy and lazy. When Julius Malema is reported by City Press to have taken bribes to secure tenders, this information can easily be slotted into this grand narrative. The news merely affirms what we are all supposed to know already — even if those who embrace this narrative are now often politically too savvy actually to speak of their beliefs in such a crude manner. Instead, sophisticated adherents to this grand narrative now often speak about their fears and prejudices in code — by bemoaning “dropping standards”, by wailing about “rampant crime”, or by complaining about how corruption hampers service delivery.

Miyeni probably got irritated by this response which he saw in the exposure of Malema’s alleged corruption, but instead of writing an intelligent expose of this attitude, he veered over into hate speech and a seeming condonation of corruption.

Former President Thabo Mbeki had a very special knack at identifying and exposing this specific and seemingly dominant grand narrative which he believed most (if not all) white South Africa had engraved in their DNA. This he often did to good effect to show how those in the thralls of this narrative always seemed to manage to fit every small bit of information about South Africa’s black population into a larger story about Africa’s supposed hopelessness and the alleged venality of Africans. He was less successful in pushing back against this narrative because he was far too thin skinned and defensive, so he often abused his insights in an attempt to discredit or deflect valid criticism of himself or his government.

That is, perhaps, one of the reasons why Mbeki is still so revered by many South Africans despite him wanting to cling to power and despite his almost tragic displays of self-hate and insecurity. Although he often correctly pointed out that many South Africans (who are mostly but not exclusively white) still discard good news stories about their country and the continent and grabbed onto the negative stories to fit them into their own grand narrative, he often went too far by using this insight to try and deflect attention from uncomfortable facts.

For example, there is no crime problem in South Africa, he famously said, suggesting that those who complain about crime did so because they were racists. Given the fact that poor and black South Africans are more severely affected by violent crime than most middle class white South Africans protected by private security firms and their wealth, this move went too far and discredited his analysis to some extent.

A second grand narrative, which I have often written about and relied upon — at least partially — is the one informed by a specific understanding of our apartheid past. This narrative focuses on the injustice of the apartheid past and the dehumanising effects of the system of racial oppression which denied black South Africans access to opportunities and robbed them of their dignity. According to this grand narrative we can understand much of what is happening in South Africa with reference to race and racism. It’s a narrative informed by the stories — at first whispered to avoid persecution by the apartheid state, now loudly proclaimed by even those who had no part in the struggle — of a heroic and noble anti-apartheid struggle led by the ANC against an evil apartheid regime.

This is the narrative that focuses on the past and turns away from the future. It is nurtured by a keen awareness of the past and ongoing injustice in our country. In its more extreme forms this narrative is fed by a (legitimate) grievance and the memory of past and ongoing racial prejudice and discrimination and evidence that there are pockets of fantastic wealth in the white community as well as evidence of the ease with which most white people seem to inhabit their skins and embrace their assumed privilege and superiority.

When City Press reports that Julius Malema has a secret trust fund into which corrupt businessmen pay large amounts of money in order to secure Malema’s assistance with tenders, when Afriforum then lays a charge of corruption with the police, when commentators then point out that these allegations — if true — constitute corruption and that if Malema does not sue the paper for defamation he is really admitting guilt, then those (like Miyeni) in the thralls of this second narrative often discard the possibility that Malema might be stealing from the poor. Instead they ask questions about the motives of those who exposed the alleged corruption and argue that it all forms part of a larger narrative to discredit black South Africans and to keep them under the white mans heel.

Those of us in South Africa (black and white) who think of ourselves as progressive — who believe in social justice and redress, in individual rights, in democracy, in freedom and equality, in trying to live ethical lives no matter how impossible that may seem — are perhaps trying to be postmodern in a modernist world. We want to punt many small micro-narratives and we are trying to get people to listen to and embrace the variety of stories about ourselves and our lives. We want to embrace complexity and nuance in a world that thrives on simplistic generalisations.

Like Jacob Dlamini did in his book Native Nostalgia, we want to tell stories that humanise our lives and particularise it without airbrushing away the past and ongoing injustice around us. We believe that every individual has his or her own unique story to tell and that we can learn something from listening and hearing that story. We also believe that every individual must be judged as an individual and not as a symbol or as a representative of a racial or language group. We believe that individuals have moral agency independent of their race or their other identity commitments.

We hear Judge President John Hlophe’s story and we do not see a black man being hounded by white people but a tragically flawed individual who should not have been appointed to the bench. We consider the story of Hansie Cronje and we do not see a tragic white hero who was tempted by the devil but rather a flawed and very human person who got caught by his own greed.

We view our country and its people in optimistic terms, but we also want to be hard-nosed about facts. We think that principles like honesty, truth and freedom are important. The problem is that our view is being drowned out by the other master narratives. The Eric Miyeni’s and the white racists – not morally equivalent but still two sides of a coin – hog the public debate and leave those of us who want to see the emergence of a more just South Africa – no matter whether this requires us to criticise or expose as corrupt either black or white leaders or demigods – high and dry, caught between two types of racial essentialism.

Does a respect for the human dignity of all and the possibility of moral agency (and the responsibility this entails) for every South African not require that we begin to question and expose and resist these master narratives whose proponents are leading us down a path of absolutes which rejects complexity and nuance in favour of easy but wrong answers? Maybe there is a radical middle after all and if there is, is it not time that those of us in the radical middle take back our country from the demagogues?

A vile attack on a successful black woman

Aug 1st, 2011

by Pierre De Vos.

301 comments

As readers of this Blog know, I am not a great fan of the hate speech provisions in the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA), as I think these provisions are used far too often by people who wish to shut up others with whom they do not agree. In South Africa, it has become fashionable to shout “hate speech” whenever somebody says anything one does not like.

That is why I have argued that the hate speech provisions in PEPUDA should be interpreted narrowly to try and bring it in line with the Constitution, whose hate speech provisions are far more narrowly tailored than the provisions in PEPUDA.

But when I read the opinion piece by one Eric Miyeni in The Sowetan today I immediately thought that this is the kind of hateful and deeply reactionary and sexist drivel which qualifies as hate speech. Mr Miyeni is of the race-is-destiny school of thought, the school of thought which thrives on racial generalisations and assumes that one has no individual moral agency. One IS one’s race. One has no life, no moral core, no complex emotions and beliefs that are unique to oneself — one is only one’s race.

In this world, if one points out that a person is corrupt or has said something stupid, and that person happens to be black, one is automatically a racist. In this world view black people are not really individuals at all, but merely representatives of their race. This is scary stuff as it mirrors the racism of some white people who see one corrupt black person and then make assumptions about black people as a group. Instead of rejecting racial generalisations, it embraces such generalisations.

I grew up with many such people. They enthusiastically supported apartheid and propagated the most vile and vitriolic racist beliefs about black people. For them all white (Afrikaners) were good and pure and right (except if they joined the UDF or the ANC, in which case they became communists and traitors), while all black South Africans were dirty, stupid and dangerous criminals. (Vile nonsense, I know, but beliefs that are still quite prevalent amongst some white people in South Africa – even today.) If one criticised the National Party these people also invoked the power of the mob to discipline you, just like Miyeni did in his piece. I see very little difference between the hatred and prejudice of Miyeni and the hatred and prejudice of those white racists.

Today Miyeni attacked the editor off City Press, Ferial Haffajee, in an attempt to divert attention from the very awkward questions being asked about Julius Malema and the sources of his money. Fair enough — we are all entitled to our political opinions as we live in a democracy now. But when, in doing so, one descends into the dangerous waters of racial generalisations, one probably does not deserve respect from anyone. Thus Miyeni states:

Who the devil is she anyway if not a black snake in the grass, deployed by white capital to sow discord among blacks? In the 80s she’d probably have had a burning tyre around her neck. We know where she comes from.And today we must believe that Haffajee’s utter hatred of ANC politicians is based on journalistic integrity. Quadruple crap. I am more inclined to think that people like Haffajjee, who edits City Press, are most likely to be the kind that wakes up in the morning, sees their black faces in the mirror only to feel a wave of self-hatred rising up to nauseate them.

Of course, the (male) reporters who wrote the stories that Miyeni is upset about are not attacked. Neither are the black, male editors and columnists who often criticise the ANC and members of the tenderpreneurial black elite. Why not? Because they are not women, one assumes. Maybe Miyeni is still getting used to living in a country where women are “allowed” to succeed and where they do not have to obey the men of this world and make tea for them?

Can it be that Miyeni is a modern patriarch who cannot stand that a strong black woman is successful? So what does he do? He attacks her and hints that she should be necklaced. If ever there was a case of hate speech this is it. Recall that hate speech occurs where it can reasonably be construed that the author had the intention to be harmful or hurtful to somebody based on, amongst others, their race and sex.

Well, the hatred for Haffajee as a black and female editor who has dared to publish in her paper critical comments about another black person, oozes out of this vile piece. No reasonable person would doubt that the author had the intention to hurt Haffajee as a black woman.

The “opinion piece”, which sounds like it was written after the author might have had one or two cups of Motata tea, then proceeds with a justification for corruption — as long as the corruption is perpetrated by black businessmen (no women in sight here) and by black politicians. I quote:

The only real source of business for us is our government. Are we now being told that if we make money through government contracts, our only hope, we cannot use that money to help fellow black people who are in politics, who need private funding to function? Where then should black politicians get financial support?

Miyeni must not have heard of the Prevention and Combatting of Corrupt Activities Act, passed by the democratic Parliament in 2004, which criminalises the kind of activity he defends. If one is a “businessman” (black or otherwise) and if one bankrolls a politician who may be seen to have influence over the granting of tenders, then one is more likely than not committing a crime.

Even if one thinks about this in naked racial terms — like Miyeni does — this piece of legislation makes sense, because if such corrupt activities were not prohibited, only those black businessmen (and the businesswomen who Miyeni treats as invisible) who paid the right politician would ever get a tender. If one did not have the right connections or if one did not have the money to pay into the right trust account, one would not be able to get any tenders from the government — even if one happened to be black AND a man (women, once again, not really featuring in the world of Eric Miyeni).

So, that is why Miyeni’s rant is not only hateful and vile, but also illogical — even on its own terms. It is not a principled criticism of business practices in South Africa. It is not a principled argument for Broad Based Black Economic Empowerment. It is not about opening up the business world (dominated for so long by white interests) to all those who have been denied this opportunity under apartheid.

It is, instead, no more than a defence of a small group of well-connected tenderpreneurs who have the money and the connections to bribe politicians in order to get tenders. What about all the other hard-working men (and women) who wish to obtain tenders from the state but do not have the money and the connections to pay the bribes that Miyeni seems to support?

Well, for Miyeni they and their kind can go to hell, it seems, whether they are black or not.

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.

Reading Manuel’s letter like eating a koeksister

Mar 8th, 2011

by Pierre De Vos.

161 comments

I am sure there are some readers who are hoping that I will have a go at a certain fugitive from justice (and currently a special advisor to the Minister of Defence) who, in his familiar ad hominem style (he even cribbed from me and used the word “gangster!), launched an attack on Minister Trevor Manuel in an open letter published in several Sunday newspapers this weekend. But engaging logically and reasonably with Mr Paul Ngobeni is like trying to discuss the finer points of Friedrich Nietzsche’s concept of “The Will to Power” with someone blowing a Vuvuzela at the top of his or her lungs.

So I will give it a pass – apart, perhaps, from noting that people like Trevor Manuel must now regret their lack of courage and principle in not standing up to Ngobeni and others when they launched their vitriolic attacks on those of us who insisted that the Judicial Service Commission (JSC) investigate the serious allegations of gross misconduct against Judge President John Hlophe - speaking of chickens coming home to roost! I am tempted to ask Manuel: “Where were you during the war about the possible impeachment of John Hlophe, Trevor?”

I would like to take a slightly broader view, as it seems that the truth has been the first casualty of this “debate” sparked by the proposed amendments to the Employment Equity Act and the year old utterances of chief government spokesperson Jimmy Manyi.

The African National Congress (ANC) distanced itself from views expressed by Manyi. It issued a statement which made the following claim:

We want to categorically put on record that the remarks made by Manyi neither represent ANC nor Government policy. Based on the Freedom Charter, which espouses non-racialism as a guiding principle the ANC, together with all our people, including the coloured community, has fought for the liberation of all South Africans to live freely wherever they desire in the country. Any narrow view that coloured people are in “over supply in the Western Cape” and should, therefore, move to other parts of the country to realise their dreams of a better life, is not in keeping with the rights of all South Africans, including coloured people.

This statement does not seem to conform to the facts. At present several government departments (including the South African Police Service and the Department of Correctional Services) use national demographics in its employment equity plans. This means that Manyi’s statement – while framed in a particularly obnoxious manner - represents the policy on employment equity used by the government itself.

If one is a middle-ranked officer in the Police or in the Department of Correctional Services and if one is assumed to be “coloured” and live and work in the Western Cape, one will probably not be promoted unless one is prepared to go and work in a province where there is ”not an oversupply of coloureds”. This is a fact that is not addressed by either the ANC or by Trevor Manuel.

Now, an honest response from the ANC would have required it to say that while Manyi had spoken in a rather crude and racially provocative manner and had therefore hampered the electoral chances of the ANC in the Western Cape, his statement, in essence, did reflect the ANC government policy on employment equity. It would have required the ANC to defend the existing employment equity policy of government departments, which is aimed – at least partly – at correcting the “employment imbalances” in favour of “coloureds’” and “whites” in the Western Cape and is also designed to target the continued discrimination against “africans” in the Western Cape labour market.

Such an honest response from the ANC would have allowed for a serious debate about the aims of employment equity and the use of apartheid era race categories in achieving those aims. It would also have opened up the space to discuss the ethical, economic and political calculations behind the specific view of employment equity embraced by the ANC government.

It would have allowed some of us to ask whether people like Manyi and Malema are not merely parasites of transformation (as Nic Boraine argues) who are “emphasising and nurturing an exclusive African racial identity because it benefits their imperative to extract a rent out of the economy”. This might have allowed for a deeper reflection on how we can address the very real need for racial redress without empowering the opportunistic “parasites of transformation” who are abusing the concept for personal enrichment and advancement.

Unfortunately the ANC was too cowardly and dishonest to defend its policy or to admit that it is open to abuse by unscrupulous and greedy racial nationalists. One understands why the ANC has shied away from such a debate. While it is on the moral high ground when it argues for the absolute necessity of racial redress in employment and other contexts, it might have been difficult for the ANC to have to admit that other factors – apart from the very real and important need for racial redress – play a role in its stance on employment equity. It would have had to argue that it was essential for the ANC to embrace the particular manifestation of affirmative action in order to ensure its continued electoral dominance and the support of the emerging black middle class.

Now they are running away from the argument, ceding the ground to those who do not only oppose the “parasites of transformation”, but also to those who oppose any kind of transformation whatsoever. This, it seems to me, represents a moral failure on the part of the ANC. The ANC needs to defend the imperatives of transformation and needs to put forward cogent and reasoned arguments for why its particular brand of employment equity is a moral and practical necessity. If it fails to do so, the likes of Solidarity and Afriforum will win the argument by default. If one believes that affirmative action is a moral necessity (as I happen to do), then one needs to say so and provide reasons for that view.

Which brings me to the open letter written by Minister Trevor Manuel. Although it was satisfying to read the attack by Manuel on Manyi, the satisfaction did not last. Reading that letter was a bit like eating a koeksister (as opposed to a koesister) – it was sweet and delicious at first, but left one with a sickly aftertaste.

The problem is that there is a fundamental dishonesty at the heart of the letter. Manuel has been part of the government since 1994. He has endorsed cabinet decisions – including a decision to use national demographics when enforcing government employment equity targets and a decision to support the amendments to the Employment Equity Act. It is a bit rich that Minister Manuel is now finally expressing his dismay at Manyi when Manyi was merely articulating government policy approved by the cabinet of which Manuel is a member.

In writing the letter, Manuel has also failed to respect the principle of collective cabinet responsibility. In his letter he wrote:

Now, in the light of the utterances you made when you were the DG of the Department of Labour, and given the fact that the amendments to the Employment Equity Act were drafted during your tenure, I have a sense that your racism has infiltrated the highest echelons of government. Count me among those who, in spite of my position, will ensure that parliament acts in the letter and spirit of our constitution when it adopts amendments to the act.

Well, those amendments were approved by the cabinet of which Manuel is a very senior member. If he had argued against the amendments in cabinet and his arguments were defeated, he had two options open to him. He could either have resigned in protest – which would have made him that rare thing: a principled politician – or he could have chosen to observe the principle of collective cabinet responsibility which would have required him to say nothing in public.

As a cabinet minister in a Westminster system one cannot pick and choose which policies endorsed by the cabinet one wishes to support and which ones one wishes to oppose in public. Once cabinet has spoken, one has a constitutional duty to abide by the decision of cabinet. If one cannot live with a decision by cabinet – as Manuel suggests is the case regarding the amendments to the Employment Equity Act – one has a duty to resign.

But of course if one resigns one loses much of one’s power and status as well as the perks that go with a cabinet appointment. No wonder Manuel chose the easier but morally less admirable way of dealing with the issue.

A rethink on race?

Mar 2nd, 2011

by Pierre De Vos.

104 comments

In the 1980s the Weekly Mail (which later became the Mail & Guardian) every week published a column called “Apartheid Barometer” which catalogued the most absurd and insulting official excesses of the apartheid government. (The unofficial excesses – such as the killing and torturing of apartheid opponents – could, of course, not easily be documented, given the secrecy around these ostensibly illegal acts and given the censorship enforced by the apartheid state.)

This column provided information about which documents and books had been found to be “undesirable” by the rather sinister Censor Board in the previous week. ANC pamphlets, items which contained displays of dagga leaves, books and movies which contained soft and hardcore pornography and items “calculated to stimulate lust” like dildo’s and vibrators all made their appearance on the list.

The most obscene section of the Apartheid Barometer contained information about the racial reclassification of citizens. Every week we read that so many “africans” had been reclassified as “coloured”; so many “coloureds” had been reclassified as “indians”; so many “whites” had been reclassified as “coloureds”. (These terms were amended from time to time: at first “africans” were classified as “bantus”.) Of course, the list hardly ever contained any mention of any “whites” being reclassified as “coloureds”, “indians” or “africans” because “whites” were privileged and no “white” person in his or her right mind would have wanted to stop being a “white” person.

Population_registration_certificate_South_Africa_1988 This was all done in terms of the Population Registration Act 30 of 1950. The Act required every South African to be classified in terms of race and these apartheid race categories included “african”, “white”, “coloured”, “other coloured” or “indian”.

The Act was amended often to try and make it more difficult to reclassify anyone as “white”, but the definitions used at one time included the following:

White person is one who is in appearance obviously white — and not generally accepted as Coloured – or who is generally accepted as White – and is not obviously Non-White, provided that a person shall not be classified as a White person if one of his natural parents has been classified as a Coloured person or a Bantu…”

“A Bantu is a person who is, or is generally accepted as, a member of any aboriginal race or tribe of Africa…”

“A Coloured is a person who is not a White person or a Bantu…”

Although this Act was finally abolished in 1991, the effects of this legally enforced racial system has not disappeared. How could it? After 300 years of racial social engineering, which was aimed at privileging “whites” vis-a-vis “other race groups” and of securing white privilege and social and economic domination, abolishing the legislation on which this racial hierarchy was built would not happen overnight. To some extent we all still suffer from this apartheid racial hangover.

Even if we wish to deny it, 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 (still) cannot escape race.

It will take a concerted legislative, educational and societal effort to dismantle this system of racial hierarchy and race-thinking. That is why the Constitution mandates affirmative action and why legislation like the Employment Equity Act and the Black Economic Empowerment Act was adopted by the ANC government.

Without these legislative measures it would have taken hundreds of years to begin to address the effects of past racial discrimination. Even today, most “white” South Africans are absurdly privileged vis-a-vis most “black” South Africans. However, there is a price to pay for these legislatively mandated corrective programmes and we have to admit that there is a huge irony and a seemingly unsolvable paradox at the heart of this effort to dismantle the effects of apartheid race thinking, which have again been highlighted by the Jimmy Manyi scandal.

While South Africa has emerged from a period in its history in which the race of every individual played a decisive role in determining their life chances, allocating social status and economic benefits on the basis of race in terms of a rigid hierarchical system according to which every person was classified by the apartheid state as either “white”, “indian”, “coloured” or “black” and allocated a social status and economic and political benefits in accordance with this race, in the post apartheid era the potency of race as a factor in the allocation of social status and economic benefit has not fundamentally been diminished in our daily lives — despite a professed commitment to non-racialism contained in the South African Constitution, the founding document of our democracy.

The problem is that when the law deploys race to address the effects of past unfair discrimination and the ongoing dominance of an ideology of white supremacy, how can this be done without merely perpetuating the very apartheid race categories and the positions of privilege and hierarchical dominance of whiteness implied by it?

The problem is complex. On the one hand, the danger is that the deployment of racial categories in the law can have the effect of perpetuating and legitimising racial categories (and the assumed dominance of whiteness inherent in the deployment of such categories). By recognising these categories and by dealing with them as if they are a given — normal, essentialist, unchanging and unchangeable — and by failing to challenge the hierarchical assumptions underlying the deployment of these categories, the law can do immense harm — even in the name of wanting to do good.

Instead of helping us to move away from a hierarchically racialised society in which racial categories continue to exhort a powerful pull on the way in which we perceive and understand the world and how we perceive and understand ourselves and our relationships with those around us, the deployment of apartheid racial categories in law can contribute to the perpetuation of the very race-based hierarchy that is the cause of the “problem of race” in our society.

On the other hand, if racial categories are not deployed in legal discourse and in the legal provisions aimed at addressing the effects of past racial discrimination and the continued dominance of an ideology of white dominance, the law may well fail to address the effects of past racial discrimination and the ongoing problem of racism and racial oppression.

If the law insists that race is (or should be) absolutely irrelevant and superfluous, and that racial categories should therefore not be relied upon by the law (even when the law is aimed addressing the effects of past and ongoing racial discrimination and racism to achieve a society that truly moves beyond race — a society that treats individuals as individual human beings of equal moral worth regardless of any constructed differences), how can the powerful effects of past and ongoing racial discrimination and racism be addressed?

Would it not be true that if we insisted that race was irrelevant and superfluous, we would be endorsing and perpetuating the fiction that the characteristics, cultural beliefs and (often unexamined and silent) norms of the dominant white group are universal and neutral? Would such a “race-blindness” in the law not impose white dominance by erasing awareness of racial identity or cultural distinctiveness, given the fact that many South Africans still experience whiteness and white cultural practices as normative, natural, and universal, and therefore invisible?

Would this not negate any understanding of racial domination in terms of cultural or symbolic practices? And if one insisted on this fiction that race as a lived reality did not exist in South Africa or that it did not matter, would one not be denying the powerful effects of a pervasive racial ideology that continues to oppress and marginalised “black” South Africans? Would such a stance not require one to ignore the lived reality of a majority of South Africans who experience race as real and as oppressive?

We have to try and move away from the crude apartheid era race categories (as my colleague Zimitri Erasmus refers to them) while recognising that the effects of past racial discrimination and the effects of ongoing racism has to be addressed urgently. People like Jimmy Manyi, Kuli Roberts and Steve Hofmeyer seem quite comfortable with using these categories and they often use them as if these categories say something essential and true about the individuals who are categorised in terms of them: “coloureds” don’t have front teeth; “whites” are all racist murderers; “indians” are all devious; “africans” are all lazy farm murderers – you all know these stereotypes.

For me the starting point should be to recognise that these categories 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. (That is why I place inverted commas around the terms when I use them: I wish to signal that I believe these terms are no more than crude and obnoxious descriptors which can never capture the full essence of each individual person supposedly described by them.)

Second, a more nuanced deployment of such categories in our law is required. Apart from these categories (which for the moment we have no choice but to rely on to help effect redress) we may want to add other factors 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 generation who has obtained secondary or tertiary education; whether an individual grew up in a rural area or in the city; whether the individual is monolingual or speaks several South African languages — these factors could all be used by our redress legislation along with race to counter the corrosive effects that the use of apartheid race categories might have on our entrenched racial assumptions and on the perpetuation of the racial hierarchy which is so well known from the apartheid days.

Maybe there are other ways to deal with these issues. Who knows? What I do know is that we need to continue having a conversation about what will work best. 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. 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 — something that Steve Biko warned us against.

What is needed — to use the dreadful cliche — is “out of the box” thinking. In other words, we need to try not to follow the example of Jimmy Manyi, Kuli Roberts or Steve Hofmeyer. 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 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 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.

Manyi was just being honest

Feb 24th, 2011

by Pierre De Vos.

173 comments

I am somewhat surprised by the response to the proposed amendments to the Employment Equity Act (EEA) which would allow the Director General to take into account only the national demographic profile of the workforce in determining whether an employer had complied with its affirmative action obligations in terms of the law. The ANC and its alliance partners have at best been disingenuous and at worse have been trying to mislead the public (that is another way of saying that they might have been lying through their teeth) when they commented on this issue.

In response to the somewhat alarmist statements of Solidarity about the proposed amendments to the EEA, ANC Chief Whip Mathole Motshekga said the “so-called research” of Solidarity was a “dangerous political game” and that it was unthinkable that the ANC would seek to disadvantage those it had liberated and sought to empower. Cosatu described the union’s claims as “inflammatory and irresponsible”.

The problem is that these statements are not based on the facts. At present government Departments – including the Police and the Department of Correctional Services – are already using the national racial demographic profile of the country when they devise and implement affirmative action policies. This is despite the fact that the Act proper does not draw a distinction between various black people in South Africa and states that “black people” [who is a designated group who may benefit from affirmative action measures] “is a generic term which means Africans, Coloureds and Indians”.

Just the other day I had a delegation of senior managers in my office complaining bitterly about the manner in which the government department for whom they work was implementing affirmative action policies in the Western Cape. I was told that coloured people in the Western Cape had little chance of being employed in the Western Cape by this Department and that “coloured” members of middle management had almost no chance of being promoted because in terms of the national racial demographic profile they were overrepresented in that Department in the Western Cape.

When a suitably qualified “african” candidate could not be found to promote in the Western Cape, the post was not filled — despite the fact that many qualified ‘coloured’ applicants had applied for the job. The National Commissioner, so I was told, had instructed that these posts had to remain unfilled until such time as a suitably qualified “african” could be found to fill it. This instruction is clearly unlawful in terms of the jurisprudence developed by our courts.

In other words, instead of implementing the necessary affirmative acton programme in a sensible and context sensitive manner as required by the law, some Departments are in effect demanding that in the Western Cape certain quotas for “africans” be filled in their Departments and are refusing to promote “coloured” applicants until these quotas are met. This is not only unlawful, but it also punishes members of a group who have experienced severe racial discrimination in the past.

It was therefore not surprising to hear what Jimmy Manyi had said a few weeks ago about this issue. He now claims to have been speaking as the head of the Black Management Forum (BMF), but in fact he was articulating the policy that is being implemented by several government departments. Said Manyi:

I think it’s very important for coloured people in this country to understand that South Africa belongs to them in totality not just the Western Cape. So this over-concentration of coloureds in the Western Cape is not working for them. They should spread in the rest of the country… so they must stop this over-concentration situation because they are in over-supply where they are so you must look into the country and see where you can meet the supply. This Employment Equity Act (EEA) is a very good act in this country.

In the interview, Manyi also said the rest of the country should be looked at to see where there was a demand for coloured workers. Now, the ANC and its alliance partners could have responded to the controversy by stating that they had made a mistake and that they would now change the policy. Politically this would have been the smartest move. Or they could have confirmed what we all know, namely that the changes would merely extend a policy already applied by government departments to private employers in order to achieve what is believed by the government to be important objectives. They could then have put forward arguments about what these objectives were and why they were so important.

One justification could be that the EEA was wrong to define black people to include “coloured” South Africans. In other words, the ANC and its alliance partners could have argued that “coloureds” were not really deemed to be black and could therefore not be lumped together with “africans” for purposes of affirmative action. This would lead to the conclusion that an employer who employed a majority of “coloureds” in the Western Cape was not really “transforming” as true transformation could only be effected if the majority of employees at all levels were “african”.

Another justification could be that “coloureds” had been less disadvantaged by apartheid and enjoyed employment preferences in the Western Cape before 1994 and hence, to undo the effects of the social engineering of the apartheid era it was necessary to implement a radical process of reverse social engineering to “normalise” South Africa. (This would be the most plausible argument – although it is not an argument I would feel comfortable making. I support an affirmative action policy that is context sensitive and sensible – not one that is bloody-minded and may be aimed at punishing some, rather than at correcting the effects of past injustice.)

However, both these justifications would have been politically suicidal. As I wrote before, it would have been like begging the majority of Western Cape voters to vote for the DA. No wonder the ANC and Cosatu chose obfuscation and a less than honest approach to deal with the existing policy applicable to government departments which it now wants to extend to private employers.

These arguments would probably also not convince a court if the current government policy were ever to be challenged in the courts. Given the fact that an affirmative action policy will be unconstitutional if it placed an undue burden on an excluded group, given that section 21 of the Constitution states that “[e]veryone has the right to freedom of movement”, and that “[e]very citizen has the right to enter, to remain in and to reside anywhere in the Republic” and, lastly, that section 22 states that every citizen has the right to choose their trade, occupation or profession freely, a policy that would in effect force large sections of the population of the Western Cape to move to other provinces in order to get employed or to be promoted could hardly be said to be constitutionally valid.

So, it was therefore necessary to pretend that no such policy existed and to embark on the rather adventurous approach to the truth. To try and turn the tables and avoid political fall-out for its policy, the ANC and Cosatu had to blame those who had pointed out the obvious negative effects of these policies on a majority of Western Cape residents by saying the statements were inflammatory. The fact that the policy itself might be inflammatory was either not considered or was deliberately ignored.

Poor Jimmy Manyi. He is now in trouble for having been honest and for having admitted that it was official government policy to get large numbers of “coloured” people in the Western Cape to move elsewhere to get employment or to get promoted. This kind of honesty is always a dangerous thing in an election year. No wonder he had to pretend that when he said these things he was not reflecting government policy but was speaking as the head of the BMF.

Begging voters to vote for the DA

Feb 21st, 2011

by Pierre De Vos.

101 comments

First let us get the facts straight: the claim by Solidarity that one million of all economically active “coloured” South Africans in the Western Cape will have to earn a living in another province, while over one million “african” South Africans would have to relocate to the Western Cape province if the proposed amendment to the Employment Equity Act were to be implemented according to the letter of the law, is alarmist and wrong.

The Employment Equity Act, which regulates “affirmative action” (I prefer the term “corrective measures”) in the workplace, does not require employers to fire existing employees in order to achieve employment equity targets. One million economically active “coloured” workers will therefore not be forced to move to other provinces to find work in the near future. Section 15 of the Act states that designated employers must take affirmative action measures which must include:

measures to identify and eliminate unfair discrimination
measures that will make 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 and measures to ensure the equitable representation of suitably qualified people from designated groups in all occupational categories and levels in the workforce.

These measures may include preferential treatment for certain groups and setting numerical goals for the attainment of targets, but cannot include quotas. This means that strict quotas, which guarantee a certain percentage of jobs for a certain race group, is not legally permissible.

In practice designated employers must draw up employment equity plans in which they set out the targets they wish to reach over a specific period in each of the work levels in the company for each of the designated race groups (which are defined in the regulations in terms of apartheid race categories as being “whites”; “coloureds”; “indians” and “africans”). At present, section 42 of the Act states that in determining whether a designated employer is implementing employment equity in compliance with this Act, the Director-General of Labour must in addition to the factors mentioned above, take into account all other factors mentioned in section 42 which includes the:

(i) demographic profile of the national and regional economically active population;
(ii) pool of suitably qualified people from designated groups from which the employer may reasonably be expected to promote or appoint employees;
(iii) economic and financial factors relevant to the sector in which the employer operates;
(iv) present and anticipated economic and financial circumstances of the employer; and
(v) the number of present and planned vacancies that exist in the various categories and levels, and the employer’s labour turnover.

This means at present the Director General must evaluate an Employment Equity Plan by taking into account all these factors. He or she cannot only take into account the demographic profile of the economically active population in a province. He or she would also have to consider whether there are sufficient numbers of suitably qualified persons of designated race groups in that province to make appointment of such persons possible.

If the Director General is of the view that the Employment Equity Plan is not being implemented in accordance with the law, he or she can then order the employer to take specific steps to ensure implementation. If the employer fails to adhere to these instructions the employer can be referred to the Labour Court who can then make far reaching orders, including the imposition of fines on employers to ensure that they begin to comply.

In practice this means that many employers will try very hard to appoint or promote individuals from groups that are underrepresented. As the Director General must take into account the regional racial demographics when considering whether a company is compliant, this means that in the Western Cape employers will comply with the Act as long as they steadily work towards reaching employment targets that would include about 55% “coloureds”, 30% “africans” and 15% “whites” at all levels of their business. This can be done through promotion and new appointments but practical considerations — such as the availability of suitably qualified employees of under-representative groups for appointment — will be taken into account and will “excuse” employers who have not managed to reach their targets.

In the public service many departments (including the police and the department of correctional services) do not take into account regional racial demographics. This makes it very difficult for a coloured persons in the Western Cape to be appointed as policemen and prison warders or to be promoted to higher ranks once appointed. It is far from clear that these policies as they are currently implemented comply with the Employment Equity Act. I suspect the proposed amendments are aimed at providing legal cover for this policy which, in effect, discriminates against black South Africans who happen to live in the Western Cape and happen to have been classified as “coloured” by the apartheid state.

The amendments to section 42 say that the Director General may, in addition to the factors stated in section 15, take into account a long list of factors including the “demographic profile of the economically active population” when deciding whether an employer is complying with the obligations udner the Act. There are two very important changes proposed here.

First, instead of having to take into account all the listed factors in section 42, the Director General may take into account one or more of the factors he or she chooses. He or she may or may not take into account the demographic profile of the economically active population. He or she may or may not take into account the pool of suitably qualified people from designated groups from which the employer may reasonably be expected to promote or appoint employees or the economic and financial factors relevant to the sector in which the employer operates. The discretion provided for the Director General is frightening and gives him or her power to manipulate a finding to target specific employers even when such employers have valid reasons for not employing or promoting more african employees.

Second, when the Director General makes this finding, he or she could focus exclusively on the national demographic profile of economically active population and tell an employer that the employer is not complying with the Act – even if the employer can show that in the Western Cape the pool of suitably qualified “african” employees from whom the employer may reasonably be able to appoint or promote people to bring the employment profile in line with the national demographic profile of the country are not sufficient to reach such goals.

I suspect the current government practice as well as this proposed amendment will be declared unconstitutional by the Constitutional Court. At the heart of the requirements for a valid affirmative action programme is the following dicta from the Constitutional Court in the case of Minister of Finance v Van Heerden:

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 a million “coloured employees will not be fired overnight as claimed by Solidarity, the new amendments, if adopted, will require – at the discretion of the Director General! – a radical and highly disruptive programme of affirmative acton that would make it almost impossible for a “coloured” person to be appointed or promoted in the Western Cape. This will place such a substantial burden on “coloured” South Africans living in the Western Cape that I would be surprised if our Constitutional Court would find this provision to be constitutionally valid.

Of course, regardless of the legal issues, as a political matter this proposal will come as a godsend to the DA in the Western Cape. It is as if the ANC is begging the majority of voters of the Western Cape to rather vote for the DA and not for it. Although the consequences of the amendments are not as dire as reported, they are still potentially pretty radical and the fact that some bright spark could have come up with this proposal without any regard for either its constitutionality or the political effects it might have and that this could then be approved by the cabinet perhaps demonstrate that the Zuma government is more clueless and rudderless than one might have thought.

“How very dare you!”

Feb 17th, 2011

by Pierre De Vos.

48 comments

Minister of Higher Education, Dr Blade Nzimande, often pens what appear to be highly learned critiques of the capitalist system, neo-liberalism, liberals and the evils of imperialism. Ironically, he is also a member of the government who has imposed neo-liberal economic policies on the poor and unemployed of South Africa.

While he rails against neo-liberalism and the evils of fat-cat capitalists (and goodness knows, we need someone to rail against these selfish, greedy and selfrighteous idiots), the government he belongs to continues to implement “pay-as-you-go” policies for the provision of water and electricity to all South Africans, ensuring that many poor people will be denied access to the basic services they require to live a dignified life. He is also part of the government who yearly evicts thousands of poor people from their homes in inner cities and so called “squatter camps” – all done in the name of “progress” in an effort to impose a neo-liberal world order on South Africa and to clean up cities so that capitalists can make bigger profits.

He therefore seems like a man who knows how to deal with contradictions. Or perhaps he is just a man who has managed to ignore the contradictions around him to ensure that he retains his vast privileges as a cabinet minister – the R1.2 million cars, the VIP body guards, the fawning underlings, the free trips to Cuba.

In many ways, Minister Nzimande is a living contradictions. He is a highly learned man with a PhD who has the ability to write articles containing sophisticated (if slightly hackneyed) Marxist jargon, but he is incapable of launching even a remotely intelligent defence of the policies and performance of his Department and that of his co-Minister of basic education. Thus, confronted with serious criticism of the failing schooling system and with persistent questions about the integrity of the matric results for 2010, he did not pen an intelligent and articulate rebuttal to answer his critics and to demonstrate why their criticism was wrongheaded or illogical (as some of it might well be).

Instead, like a wounded dog, he shrieked and howled in outrage. He reminded me of Derek, a character in the hilarious Catherine Tate Show, who is clearly gay but becomes extremely offended and defensive when people assume he is gay, often exclaiming: “How very dare you!” or “The impertinence.” or ”What? Gay, dear? Who, dear? Me dear? No, dear”.

In Parliament Minister Nzimande defended the government’s education policies in the now infamous statement below:

If the Matric results are bad, this is taken as proof that this government of darkies is incapable. If the Matric pass rate goes up, it means the results have been manipulated by these darkies. The arrogant, sneering tone of this discourse, which is often racist, frankly, is aimed at undermining the confidence of our people in both our education system and government.

This statement has made the news because Nzimande used the term “darkies”. But it should have made the news because the statement was so shockingly vacuous and stupid. Does the Minister disrespect the electorate - both those who voted for the ANC and those who voted for other parties – so utterly that he could not even bother to conjure up one or two good arguments to explain why there are still serious problems with our education system? Is this really the best our Minister of Higher Education could come up with?

Oh dear, we must really be in big trouble. Where was the intellectual engagement? The lucid explanations and justifications? The plausible answers?

Now, if he had come up with a clever put down of any of his critics, one might have forgiven him for not dealing with the issues. The British are rather good at this sort of clever put down. And in politics a clever put down has its time and place.

Minister Nzimande could have emulated F. E. Smith who said about Sir Winston Churchill: “Winston had devoted the best years of his life to preparing his impromptu speeches.” Or Winston Churchill saying about prime minister Clement Attlee: “A sheep in sheep’s clothing.” Or Jonathan Aitken who, making the point that Margaret Thatcher was rather uninformed about world affairs said of her: “She probably thinks Sinai is the plural of sinus.” And my favourite put down of all times is that of Denis Healey, talking about facing a verbal attack from Geoffrey Howe: “It’s like being savaged by a dead sheep.”

Oh, if only our Ministers could show half the wit and one tenth of the intelligence of those who thought up the insults produced in the previous paragraphs. (One might argue that English is not his home language and that he could not be expected to be witty in a language other than his mother tongue, but his put downs – in Zulu – of the DA’s Lindiwe Mazibuko was even more embecilic, bemoaning the fact that she had not grown up in a township and hinting that she was a coconut.) Instead our Minister of Higher Education produced the bizarre claim that anyone who expresses concern about the low matric pass rate is a racist and that anyone questioning the dramatic rise in the matric pass rate last year is also a racist. One would have expected such “logic” from one of the pupils who had failed matric last year, not from the Minister of Higher Education.

Of course, we all know what the Minister was really saying. Like Derek in the Catherine Tate skits, his denials contained in it an admission: he was admitting that the critics had unanswerable points and that he had no intelligent or thoughtful way to defend the government’s education policies and the way these have been implemented and that he had no other way of responding to the often valid criticism (being incapable of admitting mistakes and problems) and was therefore forced to embarrass himself with this completely illogical rant.

Anyone with two brain cells knows that in South Africa in 2011 we do not have a fair education system and that the system is failing the majority of our children. If one is poor and is forced to go to a township school, one’s chances of obtaining a decent education are rather slim. If one happens to be middle or upper middle class and one’s parents can send one to a private school (as some cabinet Ministers sometimes do) or to one of the good government schools, one has a decent chance to get ahead in the world.

In effect, the system of Bantu Education is alive and well in South Africa and is being overseen by the ANC government who claims to have freed us from apartheid. Maybe that is one contradiction that is so painful and shocking that even Blade Nzimande is finding it difficult to live with it – hence the racial outburst.

Guilt and self-hate masquerading as self-righteous indignation, perhaps?

Race

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

Why those punting “the radical middle way” are often not heard

A vile attack on a successful black woman

On being white and feeling ashamed

Reading Manuel’s letter like eating a koeksister

A rethink on race?

Manyi was just being honest

Begging voters to vote for the DA

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