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The astonishing self-denial of Sunette Bridges

Nov 4th, 2010
by Pierre De Vos.
336 comments

Sunette Bridges is probably not a household name for the vast majority of South Africans. They should count themselves lucky. Sunette Bridges is an Afrikaans singer, but I use the term “singer” rather generously here. For those who have not had the misfortune of encountering this artiste, I can only say: “Count your Blessings” (this is a pun: see next paragraph). Listening to the music of Sunette Bridges is about as gratifying as listening to the wonderful melody of a chainsaw being used by a sadist to sever your hands and feet from the rest of your body.

Some years ago Sunette’s late father, Bless Bridges (pun explained!), sold quite a lot of CDs. He was famous for gallantly dishing out satin roses to the middle-aged women who swooned about his velvety voice and his ability to yodel (alas, a dying art amongst Afrikaans singers) as well as at his rendition of that classic Afrikaans ditty Ruiter van die Windjie (roughly translated as Jockey of the little wind).

Sunette did not inherit her father’s musical talent (and that says quite a lot about her spectacular lack of talent). Unlike real artists like Amanda Strydom, Koos du Plessis and – more recently – Jan Blohm, she has also seemingly not inherited any social conscience or, come to think of it, even an ounce of decency and respect for others. She is a rabid racist but she is in deep denial of that fact.

Sunette is in “trouble” (but maybe not in as much trouble as she should be) because she has exposed herself as a typical racist on her Facebook page. These days, most racist white South Africans will speak in code. They will mask their racism by talking about how the country is going to the dogs and how “they” cannot be trusted. But Sunette is one of the old school racists who does not feel any need to hide her hatred and disgust of black people behind code phrases. As the channel24 website reports:

Singer Sunette Bridges, daughter of the Afrikaans singer Bles Bridges, has laughed off complaints about allegedly racist comments made on her Facebook profile. ”It’s absolutely pathetic that people think it’s racist,” Bridges said, after Chris du Plessis brought the comments to Beeld‘s attention.

On Tuesday afternoon Bridges posted a message to Facebook: “Of all the instruments one can use to build STRAIGHT – a spirit level, profiles, measuring tape, fishing line, square – a sjambok is the only one that works for this Greenie of mine!!! EISH!!!!! Sx.”

Thirty people indicated that they “liked” this statement. By Thursday afternoon there were also 17 comments praising Bridges for her words. ”That is, after all, the only language they’ve understood all these years. 3x hurrahs for you!” said a certain Rene Smit.

Ms Bridges evidently believes that referring to a black South African as a “Greeny; referring to this (as yet unnamed) person as if he belonged to her and was in essence a slave; and indicating that she needed to whip him with a sjambok to ensure that he did his work properly, was not racist at all. In fact, she thinks its hilarious and informative. What planet is this sorry excuse for a human being living on?

So much for the readers of this Blog who claim that hardly any white South Africans are still racists. Yeah right. Sunette and her many fans have obviously not received the memo that we now live in a democracy in which (at least) naked racism of this kind is frowned upon in polite society. This kind of thing is, of course, morally reprehensible and wrong. It is deeply dehumanising to the majority of South Africans. It is also rather counter productive as it fans the flames of racial hatred and intolerance.

Imagine Julius Malema saying such a thing about any white South African.

The outcry from white South Africans would have been harsh and prolonged. Why is there no similar outcry at the mad ravings of this untalented racist? Now is the time for all white South Africans (including the members of Afriforum and the leadership of the Democratic Alliance) to show some consistency by condemning these statement as disgusting and reprehensible. If they remain silent, we would know which side they are really on.

But more interesting and important perhaps is the question of whether the statement by Sunette Bridges is illegal. It is not illegal in South Africa to make racist statements. If it was, hundreds of thousands of South Africans would have had to be brought to court every month, as racists statements (as well as sexist and homophobic statements) are made every day by thousands of South Africans who probably preface their statements by phrases such as : “I am not a racist/sexist/homophobe, but……”

Some racists, sexists and homophobic South Africans are more sophisticated than Sunette Bridges, of course, and often say offensive things without realising that they are giving themselves away. Complimenting a black South African on her excellent command of the English language, say, or inadvertently referring to gay men and lesbians as engaging an “abnormal” sexual behaviour might be done with the best of intentions and one would seldom think that such statements – while objectionable – pass the threshold of illegality.

But what about the statement by Sunette Bridges?

Readers might recall that section 10 of the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA) prohibits any person from publishing or communicating “words based on one or more of the prohibited grounds (including race), against any person, that could reasonably be construed to demonstrate a clear intention to (a) be hurtful; (b) be harmful or to incite harm; or (c) promote or propagate hatred.”

As I have written before, I am far from convinced that this section will pass constitutional muster as it limits freedom of expression far more than is permitted by section 16 of the Bill of Rights. But as the section stands, it seems obvious that Miss Bridges will not be able to escape conviction for hate speech on the basis that she had no intention of saying something either hurtful or harmful about someone else based on that person’s race.

What one has to determine is whether her words could reasonably be construed as having the intention of being hurtful or harmful towards black people in general or her employee in particular. I don’t think it would be too difficult to show that any reasonable person would construe her statement as having the intention to be hurtful or harmful to black South Africans. Afriforum therefore has every opportunity to win this case if it complained about Bridges’ statement to the Equality Court. The DA similarly might want to show some even-handedness and take this case to the Equality Court.

Personally I am not holding my breath that this will happen, as both organisations are vying for the support of people like Sunette Bridges and  her fans. I might be wrong, of course, and Helen Zille herself might announce in her weekly newsletter that the DA is submitting a complaint to the Equality Court about this outrageous statement. If that happens, I apologise in advance for assuming that the DA had a double standard and was – in effect – condoning the racism of a white public figure which it would have condemned if the public figure was black.

Just another day in South Africa, I guess.

PS: For a demonstration of the racism in the music of Sunette Bridges, see this Youtube version of her song “Genoeg“. Warning: it will make your stomach turn.

On Woolworths and freedom of conscience

Nov 2nd, 2010
by Pierre De Vos.
65 comments

An interesting debate has been raging – especially in the Afrikaans press – about the decision of Woolworths to stop selling certain religious magazines in its stores. The retailer decided to restock the magazines after an outcry last week by fundamentalist Christians. One report suggested that Woolies decided to stop selling these magazines because of two articles in Joy! magazine, which reportedly had offended a senior Woolies executive. The articles were about the subject of “Judaizers”.

Judaizers are apparently Christians who observe certain Jewish customs, like having the Sabbath on the Saturday. The articles, written by an alleged “missionary” called Peter Hammond, described the behaviour of Judaizers as “unchristian”. Hammond is controversial because he had been accused of smuggling guns to Renamo during the civil war in Mozambique and more recently to rebels in Sudan. During the nineteen eighties there were also persistent rumours that he was working with the South African military to destabilise Mozambique.

I have no idea whether these rumours are true, but having read stuff he had written, I am of the opinion that he is a rather scary and deeply reactionary man. But that is besides the point. The larger issue centres on our understanding of section 15 of the Constitution, which guarantees for everyone the right to “freedom of conscience, religion, thought, belief and opinion”.

In the one corner defenders of Hammond and Joy! magazine argue that Woolies showed a contempt for their Christian faith and that the decision not to stock the religious magazines (as well as subsequent criticism of such magazines and of people like Peter Hammond) at best display intolerance towards Christianity and at worse infringe on the freedom of religion of those few Christian believers who read Joy! magazine every month to keep up to date with news about the deep and abiding faith of people like Joost van der Westhuizen and Amore Vittone.

In the other corner, there are those who argue that Woolies should not have capitulated to religious fundamentalists who insist on their right to see (but seldom to buy) these magazines while standing in the queue at Woolies. Why, they ask, did Woolies not stand up to these religious bullies? How can we be a completely free country if a handful of religious fanatics can dictate to a large retailer what goods they should and should not stock? Are we not on the slippery slope to a Christian dictatorship where Christian values and beliefs (instead of, say, Sharia Law) determines how we live our lives?

Well, the text of section 15 makes it pretty clear that the first group has nothing to complain about. Section 15 does not only guarantee the right to freedom of religion, but also the right to freedom of thought, belief and opinion. We are all entitled to think what we want, believe what we want and express any opinions that we want — as long as we do not defame somebody else or break some other constitutionally valid provision of the criminal law.

Anyone is therefore perfectly entitled to criticise religion in general or the tenets of a particular religion specifically. If I want to say that the beliefs underlying Christianity or Islam are absurd, demonstrably untrue, oppressive and deeply offensive to any conception of freedom, I am entitled to do so. Granted, blasphemy is still a criminal offense in terms of our common law, but I cannot imagine that if challenged this provision will not be declared unconstitutional. The Broadcasting Complains Commission of South Africa has already accepted that blasphemy as defined in our law will not waistband constitutional scrutiny.

Blasphemy is usually defined as the unlawful and intentional insulting or showing contempt or lack of reverence for God/Christianity/Islam. There is no equivalent law criminalising contempt for atheism because if there were the Pope, and thousands of other religious leaders would have had to be locked up long ago. Anyone who challenges the prohibition on blasphemy will therefore have every possibility of being successful as the blasphemy law infringes on the right of non-believers (or the believers of those religions whose God was not targeted) to not only privately believe what  they wish, but to state their beliefs in public.

I obviously have sympathy for the second group, but their complaint does not seem to touch directly on a constitutional issue. In a capitalist state where everyone is free to complain if a retailer stocks or does not stock certain products and is free to urge a boycott of that retailer, the pressure put on Woolies was probably not unlawful or unconstitutional. One could argue that Woolies had caved in to bigotry by deciding to stock these magazines and then one is free not to shop at Woolies because of its cowardly capitulation to right wing bigots. That is what freedom means.

But this question is rather complex.

The fact of the matter is that if one is an atheist, agnostic or if one believes in Judaism, Islam of Hindu religion one is part of a small minority in South Africa. The vast majority of South Africans claim to be Christians (which usually means they go to Church for christenings, weddings and funerals and otherwise ignore religion until they are in big trouble in which case they say a silent prayer to Jesus our Lord).

This does not mean that Christians can demand that their views be accepted by the majority. In the Pillay case, in which the Constitutional Court found that the schools code of conduct was unconstitutional because it failed to accommodate the practices of the Hindu culture and religion, the court made it clear that rules or codes which seem neutral, but which are really based on Christian values, often marginalises and oppresses minority groups and may discriminate against them.

But I suspect there is a difference between a public institution like a school or university or a workplace environment dealing with the behaviour of employees on the one hand, and a private business dealings on the other.  The former can never discriminate. The latter cannot discriminate against individuals it employs but in conducting its business it can probably take decisions that would favour one group or another without fear of being taken to the Constitutional Court.

There is a grey area here between the public and the private and it will not always be easy to decide when the religious views of some could be relied on by a private institution when it made decisions about its business practices. While the Woolies example probably does not implicate the right to freedom of conscience, other examples will be far more problematic. For example, if a Golf club decides, based on the views of its members, not to allow Muslims to join this will probably be unconstitutional (as well as an infringement of the Promotion of Equality Act). But where that same Golf club decided that its members should not play golf on a Sunday I am not sure whether one would be able to challenge this if one happened to be  Jew or an atheist.

It is always complex to deal with (and respect) the widely held superstitions of the majority while also protecting the minority from discrimination and oppression. The  line will not always be easily drawn between permissible Christian influence on the one hand and impermissible marginalisation and oppression on the other.

Why the right to privacy is like an onion

Oct 27th, 2010
by Pierre De Vos.
39 comments

Politicians like to remind us that rights are not absolute – especially when they want to pass legislation that limits the rights of ordinary citizens. However, when their own rights are at stake, then they suddenly forget that rights are not absolute and claim for themselves the absolute rights that they wish to deny the rest of us.

Thus when the freedom of the media is being discussed, politicians often remind us that this right is not absolute and that it must be balanced against other rights – especially the rights of politicians to have their dignity respected and protected and to have their privacy protected. But like the right to freedom of expression, the rights to dignity and privacy are not absolute. In fact, even before we begin to consider whether rights may be limited in terms of the limitation clause, we have to look at the context within which rights are being exercised to determine its scope and content.

The right to privacy is a perfect example of a right which does not have one scope and content regardless of context, but whose reach changes depending on the context within which it is being exercised. Section 13 of the Constitution states that: “[e]very person shall have the right to his or her personal privacy, which shall include the right not to be subject to searches of his or her person, home or property, the seizure of private possessions or the violation of private communications.”

In Bernstein v Bester the Constitutional Court stated that the concept of privacy is an amorphous and elusive one and confirmed that the scope of privacy has been closely related to the concept of identity. The right to privacy is not based on a notion of the unencumbered self, but on the notion of what is necessary to have one’s own autonomous identity. But one’s identity is multi-leveled and dependning on who one is and what activity one is engaged in the level of privacy protection will differ. The right to privacy is therefore like an onion: it has many layers and the closer one gets to the skin the less protected it is. As Ackermann stated in Berstein:

The relevance of such an integrated approach to the interpretation of the right to privacy is that this process of creating context cannot be confined to any one sphere, and specifically not to an abstract individualistic approach. The truism that no right is to be considered absolute, implies that from the outset of interpretation each right is always already limited by every other right accruing to another citizen. In the context of privacy this would mean that it is only the inner sanctum of a person, such as his/her family life, sexual preference and home environment, which is shielded from erosion by conflicting rights of the community. This implies that community rights and the rights of fellow members place a corresponding obligation on a citizen, thereby shaping the abstract notion of individualism towards identifying a concrete member of civil society. Privacy is acknowledged in the truly personal realm, but as a person moves into communal relations and activities such as business and social interaction, the scope of personal space shrinks accordingly.

In a constitutional democracy ordinary citizens have a right to vote, to receive and impart information, to be active citizens who are empowered to make autonomous decisions based on as wide an array of relevant facts about a situation as possible. This means that the privacy rights of a politician will often have to yield to the far more important rights of individuals to make indpendent and informed decisions about their elected representatives.

News that KwaZulu-Natal DA leader John Steenhuisen resigned last week over an affair with party provincial spokesperson Terry Kass-Beaumont, is a case in point. Usually the affairs of an individual should be of no concern to the public at large and should not generally be splashed on the front pages of newspapers. But – rightly or wrongly – South African voters are also influenced by rather prissy moral considerations and seem to take a dim view of marital infidelity. A case in point is the outcry which followed the revelation that President Jacob Zuam fathered a love child out of wedlock.

Personally, I do not think this should normally be relevant. Unless the private actions of the politician contradicts their public statements, I would not really care what a politician gets up to in private. But if a member of the ACPD conducts a private affair with a member of the same-sex, it would be perfectly acceptable to publish such information because the party believes gay men and lesbians are perverts whose rights should not be protected and who should be discriminated against.

Similarly, if a politician promotes safe-sex and the use of condoms and is then caught fathering a love child out of wedlock, it does speak to the double standard of that politician and publication of the private life of that politician becomes fair game. Personally I believe the newspapers went too far when it published allegations of a private affair by Kgalema Motlanthe as he had never claimed to be a sexual saint. Even if these claims were true (which they probably were not) it was no business of the electorate that he was having a girfriend.

But sadly I seem to be in a minority. Most voters do care about whether their politicians have affairs and cheat on their wifes, so the publication of private information about Mr Steenhuisen’s affair was therefore legitimate. He could not claim that his right to privacy was infringed because as a politician this right is limited by the publics right to know.

Similarly, the health records of the minister of health showing that she does not live the healthy lifestyle she claims to live, is fair game. In fact in the USA the health records of the president is made public routinely because the public’s right to know is deemed to be far more important than the president’s right to privacy.

As Paris Hilton knows all too well, the more public one live one’s life, the more you give up your privacy. So much more is this the case when one is a public representative paid by taxpayers. Pity many of our politicians do not want to accept this fundamental aspect of an open and democratic society.

Is it all the fault of Julius and the racist whites?

Oct 13th, 2010
by Pierre De Vos.
155 comments

Over the weekend I published a post about the pitfalls of the one party dominant democracy in South Africa, arguing that unless the economy collapses or alternative centres of power are established in some municipalities and some provinces the electoral dominance of the ANC (and the concomitant control over state resources that it provides) will assist the ANC to remain in power for many years to come – even if it fails to govern well and even if it does not fundamentally improve the lives of the majority of citizens.

I also pointed out that in almost all one party dominant democracies, corruption, nepotism and maladministration becomes an ever increasing problem. It is therefore in the interest of all South Africans that civil society groups and social movements are strengthened and that the space they have to operated is protected and even expanded. It is also in the interest of all South Africans (and arguably even in the interest of ANC, who will be forced to govern better) for a credible opposition party to emerge in whom at least a sizeable number of black voters will be able to put their trust. Such a party might then take control of some municipalities and provinces, breaking the ANC’s monopoly on state power and with it the ability of the ANC to monopolise state resources.

At the moment there is no such a party in South Africa. There has been many (completely misguided) predictions about the ANC disintegrating or of Cosatu or the SACP breaking away from the ANC to form a centre left party to compete with an ANC who has increasingly drifted rightwards on social issues and on issues relating to gender equality, religious freedom, political tolerance and the “national question”. Because of the power and the access to resources that comes with incumbency this is not going to happen any time soon.

That leaves us with the DA, who has managed to consolidate its support amongst conservative white and coloured voters but has not made any meaningful progress in attracting the vote of black Africans. I suspect in the medium to long term, it will not manage to do the latter. There are several reasons for this.

In a racially divided society like ours, which is still beset by racism and racial discrimination and the faultiness of race, it is never going to be easy to convince both a sizeable group of black Africans and the vast majority of white voters to vote for the same party. Given the fact that middle and upper middle class whites have benefited economically over the past 15 years (with lower taxes and far better opportunities to make money than was possible in the last 15 years of apartheid), they have little incentive to move out of their racial laager to embrace a truly non-racial ethic. Life is just about good enough to allow them to complain and moan without having to do anything that will take them out of their comfort zone.

This laager mentality has been exacerbated by very high crime levels and, even more importantly, by the perception of the majority of middle and upper middle class whites that crime is out of control, that the government is not doing anything about it and that because they are white they are under siege by black South Africans who want to steal their cars and TV’s and perhaps kill them. Around braaivleis fires – even in relatively “polite” society – these anxieties (often fuelled by an unexamined and latent racism) are often expressed in coded terms: “Have you heard ‘they’ robbed the bank, ‘they’ stabbed Mary, ‘they’ came into her house and just took the gun and the TV. This is what ‘they’ do in this new South Africa.”

Having gained so much after the fall of apartheid and thus having so much more to lose, but never having been forced to confront either the demons of their own complicity in our apartheid past or their lingering racial prejudices and sense of racial superiority, the vast majority of DA voters are in no mood to embrace non-racialism – at least not a non-racialism in which they do not call the shots and cannot dictate what is said and what is believed. (Going to Soweto, flashing around R100 notes and buying some Blue Bull good will, that kind of non-racialism they can do, because it does not really challenge the power of whites to dominate, and neither does it challenge their ” right” to say how the world is and ought to be.)

Given these realities, if the DA actually decided to take decisive (symbolic and more tangible) steps to attract black African voters, it will probably alienate the vast majority of its core constituency.

That is why the DA city council in Cape Town has just announced another process (two previous attempts were abandoned) to deal with the possible renaming of streets and other places in the city. The proposed terms of reference are rather telling. The proposal (which was not written by someone with a good grasp of language and is difficult to understand) states that names that may be considered for change if they are:

in areas, streets or places where there are no names or with existing names such as Sixth Street or First Avenue, and which provide an opportunity of names to be applied; which improve the City‟s administration and ability to deliver services or which are essential to safety and security in the community; in the case of an extraordinary event or physical development in the life of Cape Town and where it would be appropriate to remember it in a significant way.

Nothing is said about changing offensive names which celebrate the apartheid era. Maybe traditional DA voters will be too upset if the city changes street names which were named after HF Verwoerd, Oswald Pirow; JBM Hertzog or Jip de Jager. I suspect that is why the previous process was abandoned – it recommended that some offensive names (but obviously not offensive to upper middle class racist whites) be changed, so the proposals were shelved and a new process started.

It seems to me the DA is in a very difficult position. Assuming that it really wants to attract black African voters and assuming further that it has some understanding of the sensibilities of the majority of citizens who have suffered under apartheid and continue to feel economically and socially marginalised, DA leaders must know that it has to choose between the certainty of gaining 15% of the votes (mostly from white and coloured voters) on the one hand, or the chance of gaining new votes from the majority while losing a large chunk of that 15% of the votes who now vote for it because Helen Zille is “a classy lady who is giving the blacks hell”.

Don’t get me wrong: I am not claiming everyone who votes for the DA has these attitudes. I am, however, claiming that a large proportion of DA voters have not yet confronted the issue of racism head-on.

I might be wrong, but it is against this background that I think one should interpret the rather perplexing and seemingly counter-productive response of the DA-led city council (seemingly remote controlled by Helen Zille) to the Makhaza toilet scandal. If it wanted to salvage the situation and if it really was serious about sending a signal to black African voters that it was a credible alternative to the ANC, the city would have apologised immediately and would have admitted that it had made a terrible mistake.

It would have sent someone to try and find open toilets provided by an ANC municipality and would have taken pictures of this which it would have distributed to the media. Then it would have found the money somewhere (maybe that R4 million just allocated to baboon monitoring in leafy suburbs) and would have built proper toilets for the residents, inviting ETV and the SABC to film every move. Helen Zille would then have arrived to apologise again in person and would have told the residents (but really the TV cameras) that the DA has just demonstrated not only that it really cares but that it is also fundamentally different and better than the ANC.

Then it would have announced a comprehensive plan (with time lines and completion dates) to provide every household in Cape Town with a proper toilet. Zille would have made speeches about the need for rich residents to contribute more to help to make the lives of poor residents better so that we can all live in peace and can make sure that Julius and his thugs do not gain any influence in our city.

But I guess this would have not played well with many of the DA’s core constituency. Once the ANC Youth League had gotten involved, an apology would have been perceived as a sop to Julius Malema and would have been like a red rag to a bull for any self-respecting ex-Nat who now supports Helen Zille enthusiastically and donates money and time to the party. The Youth League was very clever by breaking down those makeshift partitions: it made it impossible for the DA to do the right thing without losing its fire-and-brimstone take-no-prisoners image amongst right wing white voters. Julius had once again been the tactical winner.

As I see it the Makhaza toilet saga demonstrates rather well why the DA will not increase its votes amongst black African voters. When forced to choose, it will choose to pander to the prejudices and fears of white voters, rather than doing the risky (but right) thing by going for the vote of the majority.

So, that leaves my hope with Cosatu and the social movements. Not that I believe Cosatu will break away from the ANC or leave the Alliance anytime soon. Not, even, that I agree with everything that Cosatu does or what it stands for (after all, it acts in the interest of workers – meaning people with jobs – so it cannot really accept any measures that would assist the 40% of he population that are unemployed). But in the absence of a credible opposition, the opposition provided by Cosatu INSIDE the ANC seems far more effective than anything the whining, professional victims, in the DA can muster.

Freedom of speech for Afriforum?

Oct 7th, 2010
by Pierre De Vos.
57 comments

Most people will agree (as will our courts, I suspect) that when you invite someone to a braai at your home and that person abuses your hospitality by drinking too much beer and getting obnoxiously drunk, then insulting the guests and loudly professing his support for Kaizer Chiefs and the Blue Bulls (as opposed to Ajax and Western Province), you will have every right to ask that person to leave.

The person kicked out of your house would not be able to claim that she had a right to freedom of expression, guaranteed in section 16(1) of the Constitution, and that you were therefore infringing this right by censoring what she was allowed to say at the braai.  However, if that same person went to the train station and forcefully expressed her support for the Blue Bulls at the entrance to that building (even if it was Cape Town station), the police would probably not have a right to remove her if she did not break any other law. After all, she has a right freely to express and share her views with the world (even if these views were misguided or offensive to some).

And Parliament – indignant about the alleged murder committed by Bees Roux – would definitly not be able to pass a law prohibiting anyone from expressing their support for the Blue Bulls in public. (Parliament would also be very stupid to do so because one would probably have a full scale rebellion in Tswane – sorry, Pretori-a-a-a-a , a.k.a. “Snor City” – if such a law was ever passed.)

So what’s the difference between these three situations. It is clear that the legislature and the executive are bound by the provisions of the Bill of Rights – including the right to freedom of expression – which can only be limited by a law of general application that complies with the requirements of the limitations clause.

The position regarding private individuals and organisations is a bit more complex. Section 8 of the Constitution states that a provision of the Bill of Rights binds private individuals (which would include home owners) but only “if and to the extent that it is applicable, taking into account the nature of the right and the nature of the duty imposed by that right”.

The Constitutional Court has not yet provided a clear and definitive analysis on when exactly private individuals would be bound by any of the rights in the Bill of Rights. In any case, this will depend on the particular right and the obligation this right places on others, so one rule could not be made to apply to all the rights in the Bill of Rights.

In this context, the question of whether the two members of AfriForum Youth, who were  kicked out of Loftus by security guards during a Blue Bulls and WP game because they displayed a banner with the words “Sies Absa, ons eis meriete!” (“No go Absa, we demand merit”), is an interesting one.

I suspect the two men would not be succesful if they approached a court claiming that the owners of Loftus had infringed on their right to freedom of expression. The right to freedom of expression could, of course, apply horisontally and could bind private individuals and institutions in certain circumstances.

But the more private the occasion the less succesful one would be in claiming an infringement of one’s rights where one is not allowed to express one’s opinion. If one has to pay to get in to a venue the organisers of the event would probably have less of a duty to respect your freedom of expression than if one attended a public gathering or event that was open to all.

Loftus is a private establishment. One must pay to enter Loftus to attend a Rugby game and once inside one can be expected to behave in a way that conforms to what the owners of Loftus (and their sponsors) require. Unfurling a banner in support of a rival bank or a banner attacking one of the sponsors would obviously not please the owners and hence where they remove the culprits (as they did here) they would have reason to argue that the right to freedom of expression would not be binding on them. 

Whether a private establishment has the right to limit one’s freedom of expression will depend on the place, the message and the context. If this was an event held on Church Square, where no fee was charged and where the public at large was invited, it would probably be more difficult to justify a limitation on freedm of expression. 

I am thinking of the World Cup, where it would have been easier to justify the Fifa rules that prohibited individuals from making political statements inside the stadiums than at the Fan Parks, which were open to the public and which did not charge anyone to enter.

The guys from Afriforum could, of course, have unfurled their banner outside Loftus to make their point. The space outside the Stadium is a far more public space and as long as they do not break any other law I cannot see how the owners of Loftus or the South African Rugby Board cld have prevented them from communicating in this way with those who were going to attend the game.

This also reminds us that the right to freedom of expression was not taken awayin this case. It was limited in the sense that the two Afriforum guys could not take their message inside the stadium. This is another reason why I suspect these guys would have little luck in challenging the actions of the people who threw them out of the stadium.

In the US jurisprudence a question that arises often is whether one should have a right to distribute pamphlets and unfurl banners at shopping centers and malls as part of one’s right to free speech. I have no idea how our courts will come out on this question. Shopping Centres are clearly private property but one does not need to pay to get inside and they are open to the public at large so one could argue that expressing one’s views in a non-disruptive way at a shopping centre should be protected by section 16.

A balance will have to be struck in each case between the interests of the owner of the private shopping centre (open to the public) and the baroader interest of the community who has a right to be informed about how their fellow citizens feel and what they might be upset about. Personally, I would lean in favour of the protection of free speech and would argue that as long as one  is not disruptive, one should be allowed to have some kind of respectful protest at a shopping centre.

The owners of shopping centres will probably disagree. But in the end this is an issue that our courts will have to deal with. Maybe those Afriforum guys can do something worthwhile for a change and take the case to court so that we can get clarity on the issue.

Advancing the Constitution through social and economic rights

Sep 18th, 2010
by Pierre De Vos.
52 comments

A Constitution, it is sometmes said, is no more than a piece of paper. Constitutions can be amended or, in extreme cases, can be ignored by the state and other powerful interest groups in society: by big corporations and fat cat capitalists, by tenderpreneurs with political connections, by police officers or members of the military, by the prosecuting authority or by government Ministers.

But this can only happen if the citizens allow it to happen.

Yet, a progressive Constitution can also become a powerful symbolic and practical document that can play a pivotal role in ensuring the establishment of a more fair society in which the legal rules do not always allow the powerful and well connected to trample on the rights and interest of ordinary citizens, a society that genuinely concerns itself with social and economic justice.

As Chief Justice Sandile Ngcobo reminded us this week when he delivered the first Claude Leon Foundation public lecture on Constitutional Governance, an independent judiciary, trusted by the citizens, has a pivotal role to play in safeguarding a Constitution.

[I]t is important to recognise that the independence and impartiality of the judiciary are not private rights of judges.  They are human rights of citizens. … It follows that the public has a powerful interest in effective and just courts.  In particular, the people have an interest in assessing whether courts operate without fear, favour or prejudice, as our Constitution requires, and whether they do so efficiently given the substantial public and private resources that are invested in the judicial system.

When citizens trust the judiciary and has confidence in it, when that judiciary demonstrates that it has not been captured by politicians and that it does not serve merely to protect the private interests of the rich and powerful, it becomes easier for ordinary citizens to defend that judiciary and to insist that it remains independent and impartial.

If ordinary citizens do not trust and hence are not prepared to defend the judiciary, a Constitution can indeed become merely a piece of paper that can be easily ignored, amended or, in extreme cases, suspended to serve the interests of a small elite.

The launch this past week of the Council for the Advancement of the South African Constitution (CASAC) reminds us that one way of advancing constitutional governance and protecting the Constitution is for civil society to take action through words and deeds to demonstrate to citizens why the Constitution matters to all of us – whether we are white or black, rich or poor, ANC members or die-hard DA supporters (even Blue Bull supporters, come to think of it, but that is pushing it slightly).

In a speech at the launch of CASAC at Liliesleaf farm, Dr Sipho Pityana made this point and indicated that CASAC understands that the Constitution can only remain a living document that is revered and that will be protected by an active citizenry if it can be demonstrated to all that the progressive South African constitution, vigilantly enforced by an independent judiciary, can make a difference to the lives of ordinary South Africans. That is why CASAC has decided to prioritise litigation and other actions that would help to enforce social and economic rights.

In a country like South Africa, in which there are vast discrepancies in wealth and circumstance between rich and poor and in which many people might feel that a Constitution is really a document for the rich and well connected that has very little to do with their own lives, social and economic rights litigation can help both to address the immediate needs of the vast majority of citizens and to demonstrate the importance of safeguarding the Constitution against attacks by powerful rightwing forces.

But this kind of litigation cannot be undertaken by one organisation alone.

Other members of civil society, working with lawyers who have a comprehensive knowledge and a deep understanding of the context within which social and economic rights litigation must occur, has an important role to play. At present there are far too many lawyers in South Africa who do not have a sufficiently firm grasp of the challenges and opportunities presented by the social and economic rights provisions in our Bill of Rights.

This is a complex area of our law that requires lawyers to think somewhat differently about the law and about the way in which litigation can be used strategically to make a real difference in the lives of ordinary South Africans.

But help is at hand. One of the founding members of CASAC (full disclosure: I am also one of the founding members of CASAC), Prof Sandy Liebenberg, recently published a magisterial book entitled Socio-economic Rights: adjudicating under a transformative constitution that will surely become the standard work in this field.

For civil society organisers, social movement leaders, lawyers who wish to come to grips with the complex area of the law (and the socio-legal context within which social and economic rights litigation takes place), or for lawyers who have already litigated constitutional cases and need a reference work to assist in the preparation of cases, this book will become indespensible.

This is not a dry textbook that merely describes the various legal developments in the field of social and economic rights litigation. It also provides a comprehensive analysis of the Constitutional Court’s jurisprudence on social and econmic rights and provides suggestions – at the same time practical and conceptually innovative – about how this jurisprudence can be “worked”, how the boundaries of social and economic rights litigation can be expanded, and how such litigation can be used strategically to advance the rights of ordinary citizens.

The Constitutional Court has been critizised by some of us academics because of what we percieve as its timid conceptualisation of the social and economic rights obligations entrenched in the Bill of Rights. Because the Court focuses so strongly on the question of whether the state has acted reasonably in realising the social and economic rights, some have argued that these rights cannot really make a big difference to the lives of ordinary citizens – something that is needed to help legitimise the Constitution.

Prof Liebenberg argues quite convincingly that the existing reasonableness review standard employed by our courts can be given a substantive content – especially in cases where access to housing, health care, water, electricity and food are denied to individuals and one can show that this denial has a discriminatory effect. If one links the social and economic rights arguments to arguments about equality and non-discrimination, what might have appeared as process rights with little real “bite” suddenly become powerful tools that can be used by lawyers to vindicate the rights of the very people whose trust in the Constitution might help to ensure its survival.

The chapter on social and economic rights in the area of private law will also come as an eye opener to lawyers who specialise in property law or contract law and who believe that their area of law has very little to do with  social and economic rights. When some of us talk about the transformative constitutionalism, we also have in mind that the arguments presented here would be used by lawyers and would find favour with judges to ensure that traditional common law rules which often favour the powerful and rich are transformed to make the law more just and fair (a concept that might by scoffed at by more traditional lawyers who do not always wish to think about the link – or disconnection – between law and justice).

So this is a bit of a plug: Anyone interested in our Constitution and what it can do to make South Africa a more fair and just society – even non-lawyers – and any lawyer who wants to get up to speed with the exciting and important aspect of our Constitution, should go out and buy Prof Liebenberg’s book. It will be money well-spent.

  • “Socio-Economic Rights: adjudicating under a transformative constitution” is published by Juta.

Cutting and pasting judicial decisions

Sep 3rd, 2010
by Pierre De Vos.
154 comments

In a speech delivered in 2008, Supreme Court of Appeal Judge Carole Lewis implicitly questioned the appointment of some black and female judges to the various courts in South Africa since 1994. She argued in a speech  that the JSC has become dominated by politicians after the adoption of the final Constitution in 1996 and that “there is a perception now that political fealty is a more assured path to appointment as a judge than ability”, then continues:

I am advised that the work of dealing with the motion rolls in the large courts falls on the shoulders of the few with the experience to manage it – and that the consequences of that are not only unpleasant for those too heavily burdened but detrimental to litigants…. Suffice it to say that the time has come to accept that the judiciary has over 14 years been radically transformed in terms of race, and that it is the duty now of the heads of court to ensure that judicial education is ongoing and that new appointments are made only because of skill and experience and not solely because of race, and especially not political fealty.

She also argued that in order to safeguard the independence of the judiciary “appointments to the bench must be made by having regard primarily to merit – skill and experience. Political loyalty and race must cease to be the criteria for appointment by the JSC” and that “politicians should take lessons in constitutionalism and realize that they are not above the law”. The implicit link between a lack of  ”skill” and the race or gender of a judge was (rightly, in my view) condemned at the time. 

A remarkable judgment handed down yesterday by the Constitutional Court in Stuttafords Stores (Pty) Ltd and Others v Salt of the Earth Creations (Pty) Ltd and Others suggests that Lewis might have had a point. However, in this case the perceived problems had nothing to do with either race or gender – at least not in the manner in which Lewis used those terms in her speech. 

The Appellants (Stuttafords and Others) in this case approached the Constitutional Court to challenge the decision by (now retired) judge Dion Basson to recuse himself from any matter dealing with the parties involved after he handed down judgment in favour of the Salt. The recusal application was based on the contention that the main judgment by Basson “exhibited little or no sign of any original or independent application and reasoning, that it essentially copied the written heads of argument of Salt’s counsel and, consequently, created a perception of bias in favour of Salt”. 

For various reasons that are not relevant here, the Constitutional Court decided that it was not in the interest of justice to hear the appeal. It carefully pointed out that it was not making any finding on whether there would be grounds to ask for the recusal of a judge where he or she basically copied the written heads of argument of one of the parties and presented it as his or her judgment. The Court nevertheless felt that it was necessary to comment on the remarkable case and implicitly – in its ever polite and indirect way – rebuked the now retired judge for his conduct.

As the Constitutional Court noted, the original judgment was remarkable for various reasons. The judgment by Basson J consists of approximately 1890 lines of typing of which, apart from a summary of the relief sought and the terms of the order, only approximately 32 lines are the judge’s original writing.

The rest consists of words taken exactly from Salt’s counsel’s heads of argument, sometimes even without taking out phrases like “it is submitted” and emotive comments on The Gap and Stuttaford’s contentions and actions. There is no direct independent reference in the main judgment to The Gap and Stuttaford’s heads of argument, except for references carried over from Salt’s heads of argument.

If this had not been a judgment by a court of law but an academic article or a newspaper column someone might have suggested – rather less kindly than the Constitutional Court – that this was a case of plagiarism. The Constitutional Court was more circumspect, but did comment on this remarkable turn of events (to say the least) in the following manner:

While some reliance on and invocation of counsel’s heads of argument may not be improper, it would have been better if the judgment had been in the judge’s own word. 

“The true test of a correct decision is when one is able to formulate convincing reasons (and reasons which convince oneself) justifying it. And there is no better discipline for a judge than writing (or giving orally) such reasons. It is only when one does so that it becomes clear whether all the necessary links in a chain of reasoning are present; whether inferences drawn . . . are properly drawn; whether the relevant principles of law are what you thought them to be; whether or not counsel’s argument is as well founded as it appeared to be at the hearing (or the converse); and so on.

“. . . The very act of having to summarize in one’s own words what a witness has said, or what is stated in an affidavit or what a document says or provides, is in itself a very good discipline and is conducive to a better and more accurate understanding of the case.”These remarks were made by a former Chief Justice, Corbett CJ, in an address at the first orientation course for new judges under the new constitutional dispensation.” 

These remarks were made by a former Chief Justice, Corbett CJ, in an address at the first orientation course for new judges under the new constitutional dispensation.  We have deliberately refrained from dealing with case law on the issue whether the extensive use of counsel’s heads could lead to a perception of bias, because it is not a question we need to decide here. Suffice to state, however, that if these wise words are heeded by judges the necessity of deciding the issue in the future should not arise.

To my knowledge this is the first time the Constitutional Court comments in such an negative manner on a judgment handed down by a High Court judge. This suggests that the case in issue is an exception and that the vast majority of judges do indeed write their judgements in their own words (even if many of them also do borrow from the written heads of argument of one or the other side).

I hesitate to note that judge Basson is white, but sadly we live in South Africa where race permeates every aspect of our lives and this fact will be noted by many – even if some people will not comment on it it public. I note the race of the judge not because I believe it is important or that it demonstrates that all white judges are somehow unworthy of serving on the bench, but because I wonder what would have happened if the judge in question was black? How would the majority of white members of the legal profession have responded (at least in private – around braaivleis fires and in tea rooms in law firms and drinks events of colleagues at the Bar)? Would they have seen this as confirmation of the alleged “problems” with transformation highlighted by Lewis JA?

I venture to suggests that quite a few (but thank goodness far from all) lawyers would have seen the case in those terms, as it would have confirmed their worst suspicions about the alleged inferiority and unsuitability of black appointees to the bench, suspicions that are at least some times based not on facts but on racial prejudice.

Or would they – as most of them will surely now correctly do – have seen this as an isolated case related to a specific judge whose race had absolutely nothing to do with the fact that for some bizarre reason or another (or because of personal reasons that we do not know about) he had decided to cut and paste the heads of arguments of one of the parties and serve it up as his own judgment?

Just wondering.

The Windows of Heaven (and your wallets) are open!

Aug 27th, 2010
by Pierre De Vos.
144 comments

One of the (many) reasons why I am not a fascist or a Stalinist is because I am rather worried that people might begin to think that I am a repressed and self-hating homosexual who is trying to hide his true self by embracing rightwing Christian fundamentalism. If I ever wavered in my commitment to remain a constitutional democrat and if I ever feared that I would fall into the arms of dangerous spin merchants, there will always be people like Mr Errol Naidoo (who is the director of an outfit called the “Family Policy Unit”) to keep me on the straight and narrow (no pun intended).

Errol2

Mr Naidoo (see picture on the left), who has the suave charm of a Verimark infomercial presenter and the fading good looks of a celebrity contestant on Fear Factor, is a busy man. (I must confess, if we were both a bit younger and if he had been a bit more careful about his diet, I might have lusted after his body – if not his mind.)

In an email addressed to his fans entitled, “The Windows of Heaven are Open!, he informs all who wish to listen of his latest exciting escapades and thoughts (I use the latter term rather generously, of course). He informs us that he had spent an “exhilarating” two days in the Kruger National Park with his wife, Arlene (whom he refers to with suspicious regularity). “Being up close and personal with God’s awesome creation – in their natural habitat – is an experience Arlene and I will long remember,” he enthuses.

(Why he had to go to the Kruger Park – instead, say, of going to the local Shoprite in Brackenfell or to an HIV clinic in Khayelitsha – to get close to God’s awesome creation is unclear. I guess the folks who demonstrate their sincere commitment to God by donating buckets full of money to his outfit do not begrudge him this little extravagance. After all, people are dirty, troublesome, sinners who have a tendency to make fun of you, while wild animals never talk back and live in the Kruger Park – which is rather more glamorous than Brackenfell.)

But I digress. In the email, Mr Naidoo (I make no comment about the fact that his surname sounds rather similar to an Afrikaans word often used at Stag parties) has the following to say about his wheelings and dealings with politicians and about our sacred constitutional democracy:

There appears to be a growing sense amongst Christians across the country that God is giving the Body of Christ in South Africa a “window of opportunity” to rise up & impact the nation. Despite all the negative reports in the media, many Christians believe God is supernaturally removing barriers to areas of power & authority to provide access for the influence of the Church.

I noticed this shift in attitude towards the Church since the Zuma administration came to power. My submission on gambling law reform to parliament, my partnership with the Dep Minister of Home Affairs, Malusi Gigaba to ban internet pornography, and my work to inform government about the dangers of legalised prostitution, all bear witness to a more family-friendly environment.

The liberal media also appear to recognise this shift in attitude toward family values and are openly attacking government for granting access to the “rightwing Christian fundamentalists”. Several hysterical articles appeared in the media recently criticising government for talking to “shady” Christian organisations like Family Policy Institute. Apparently, groups that disagree with homosexuality and oppose abortion, pornography etc, have no right to engage government.

Read this article by so-called constitutional expert and homosexual activist, Pierre de Vos. ‘The return of fake morality’. A similar article by Tony Weaver was published in the Cape Times. When the Mbeki administration suspended South Africa’s democratic principles in 2006, to railroad same-sex “marriage” legislation through Parliament – despite massive public opposition – people like Pierre de Vos and the pro-homosexual media were conspicuously silent! Ironically, this attitude – promoted in the media – is a violation of core constitutional freedoms…..

P.S. Please forward this to a friend

As I do not like sending spam emails, but at the same time do not want people to think that I have anything against poor Mr Naidoo, I decided to reprint the sizable section of his email above. Hey, Errol, you know what they say: “All publicity is good publicity.” (Or was that rather: “All publicity brings in the bucks?”)

However, it saddens me to note (and I do hope Mr Naidoo and his followers do not take this in the wrong way) that all that time with Gods creatures in the Kruger Park seemed to have affected Mr Naidoo’s ability to construct a rational argument. Mr Naidoo also sadly seems to have lost his memory and has forgotten that we now live in a constitutional democracy (and not in the Christian Nationalist state of the apartheid era).

He seems blissfully unaware that we now have a justiciable Bill of Rights in which the power of the state to oppress people and to discriminate against them based on their personal attributes and characteristics (like their race, sex, disability and sexual orientation) is severely limited.

In a constitutional democracy the religious views of some – and I have no reason to believe that Mr Naidoo and his lovely wife Arlene do not hold their religious views deeply and sincerely – cannot be imposed on society as a whole as this would be in fundamental breach of the rights of those who do not share these views. Sincerity and deeply held convictions do not justify unfair discrimination in a constitutional democracy.

While every person is entitled to believe what he or she wishes (one can believe, for example, that Simba the Lion King is the God Almighty, or that all homosexuals will burn in hell or, even, if one wants to stretch the point, that 300 000 believers will be whisked away to Heaven on the day of the Rapture) a person cannot get the state to force his or her beliefs down the throats of others as this would constitute a fundamental breach of our human rights. (For example, a religious group – even if it had the support of the majority – could not legitimately demand that the state ban all driving on a Sunday because the group happens to believe the Rapture would occur on a Sunday and that driving on that day would therefore cause too many accidents.)

Mr Naidoo is therefore entitled to believe that same-sex marriage is just as evil as child abuse or woman’s liberation – as the leadership of the Catholic Church seem to do, at least about woman’s liberation – but he cannot require the state to enforce that belief by banning same-sex marriage. If he wanted the state to ban same-sex marriage or to force woman to stay barefoot and pregnant in the kitchen, he is of course free to emigrate to Saudi Arabia. (I hear Iran also has lovely game parks and rather strict laws on homosexuality – although I am not sure whether they will embrace emigration by right wing Christians.)

He is free to believe what he wants, to preach what he wants and to even practice what he preaches (the latter being a rare occurrence in the overtly pious – at least in my experience). And in the unlikely event that, like many Evangelists in the USA, his animosity towards homosexuals is fueled by a secret desire to have sexual relations with members of the same sex, he is even free to divorce his wife and marry another man – although he will have to go on a diet, radically revise his beliefs, and read a few satyrical novels before I would seriously consider his marriage proposal.

The claim by Mr Naidoo that the “core constitutional freedoms” have been breached by the adoption of same-sex marriage laws can only be sustained if one believed that freedom had nothing to do with freedom at all, and hence that freedom was completely divorced from the notion that people had a right to live their lives free from hatred and discrimination. His view of “constitutional freedoms” would require one to endorse the idea that the state had a right to enforce the views of some on society as a whole.

Such a society would not be free, of course, and neither would it be a substantive democracy. In such a society the only people who would have “core constitutional freedoms” would be those who wielded power and could therefore ensure that their beliefs were enforced through the barrel of a gun and through torture (perhaps by forcing people to listen to Gospel music played backwards), imprisonment or campaigns of social vilification. Such a society would be one in which the human dignity of almost all people would be flagrantly disrespected and would be decidedly undemocratic (a bit like Texas without the big hats, the funny accents, the Hummers and the occasional election).

PS: This post must be read in the same spirit in which Umberto Eco wrote his novel, The Name of the Rose. In this novel a Fransciscan Friar discovers that Monks are being poisoned in a monastery when they read humorous books because some members of the church hierarchy believe that laughter is the antidote to fear and that if one stopped fearing one might also stop believing in God. As Wikipedia explains: “As the plot unfolds, several other people mysteriously die. The protagonists explore a labyrinthine medieval library, the subversive power of laughter, and come face to face with the Inquisition. It is left primarily to [the main protagonist] William’s enormous powers of logic and deduction to solve the mysteries of the abbey.”

Ten countries…. and counting

Jul 16th, 2010
by Pierre De Vos.
28 comments

Argentina became the tenth country (and the first in South America) to provide full marriage equality (including the right to adopt children) to same-sex couples late on Wednesday night. There are now about 250 million people worldwide living in jurisdictions which provide for marriage equity. Here is the list:

2001 Netherlands
2003 Belgium
2005 Spain
2005 Canada
2006 South Africa
2008 Norway
2009 Sweden
2010 Portugal
2010 Iceland
2010 Argentina

When the South African Parliament, following a judgment of the Constitutional Court, legalized same-sex marriage in 2006, many people argued that it would spell the end of marriage as we know it. Some also argued that it represented a full frontal attack on marriage as an institution and that it would lead to the eventual destruction of marriage.

I never understood this argument. I have never met anyone who has said: “Well, now that gay men and lesbians can get married, I think it is time to divorce my spouse.” Neither have I heard anyone say: “Well, I was going to get married, but now that the homosexuals have spoilt it for the rest of us by organising such fabulous weddings for themselves, I have decided I will rather continue living in sin with my girlfriend.”

The argument that marriage is essentially focused on procreation also makes no sense. As the Constitutional Court pointed out, this argument – if followed to its logical conclusion – would suggest that heterosexual couples who do not plan to have children or cannot have children – either for medical reasons or because they are too old – should then also not be allowed to get married. (And, besides, many same-sex couples do procreate with the assistance of others, so the very premise of the argument is factually incorrect.)

The truth is, of course, that the movement for marriage equality is a conservative one. Its aim is to “normalise” same-sex love and desire and to demonstrate that same-sex couples can basically be just like heterosexual couples. We fall in love, we fight, we have children, we marry, we fight some more, we divorce and sometimes – just sometimes - we live happily ever after. If one is truly conservative and truly revere marriage and monogamy (which, some studies show, is a rather difficult thing to achieve in a long term relationship), one should support same-sex marriage.

But this many conservatives cannot do, because then they will have to let go of their prejudices against gay men and lesbians. And as we know too well, for many people nothing is more precious and more jealously guarded than their own prejudices.

For progressives, the issues are more complex. Obviously, given the fact that marriage still bestows on couples both the full package of legal rights as well as an elevated status in society, marriage should be open to all consenting adults. To hold otherwise would be to discriminate against a group of people for no other reason than because of the moral or religious views of a majority of citizens. It would signal that the state does not believe that the group has the same inherent human dignity than everyone else in society – which is not tenable in a constitutional state.

But marriage is also problematic because it provides special rights for those who have managed to tie the knot. Many people do not want to get married (seeing that it is still associated with patriarchy and the oppression of women) and many others cannot marry because they are the financially and/or emotionally weaker person in the relationship and their partner refuses to marry them.

This refusal is often based on emotional callousness, fear of commitment, or financial considerations. But regardless the reasons, the fact remains that the less empowered partner has no say in the decision at all. Such couples do not enjoy the same status or the same legal protection as married couples do – despite living in relationships that look very much like traditional marriages – and the vulnerable party in such a relationship is therefore not fully protected by the law.

Last year the government tabled a draft domestic partnership Bill to try and address this problem, but nothing has come of it. Perhaps with that serial divorcee and ex-body-builder, Ray McCauley, cozying up with one of the greatest believers in marriage (if not monogamy), President Jacob Zuma, it is not surprising that this Bill has not been taken forward.

The Bill, if it is ever passed, would be bad news for all those men who have girlfriends and do not marry them (either because they are already married or because they do not want to commit themselves emotionally and financially to one person) as it would create some legal rights and duties for people involved in such relationships. Men who have many girlfriends would fear such a law as they would have to start paying up. And it is not every man who wants to be the boyfriend of Khanyi Mbau (or can afford to be).

On Vuvuzela’s and cultural imperialism

Jun 15th, 2010
by Pierre De Vos.
141 comments

United Kingdom websites are abuzz with comments from irate football fans who complain about the blowing of the Vuvuzela during matches of the Fifa World Cup in South Africa. The vast majority of these comments call for the banning of the instrument from stadiums. Sensitive British football fans (if that is not a contradiction in terms) complain about the noise, which they claim is so loud and irritating that it becomes impossible to watch a game with the sound on the television turned up.

Africans are known for their singing and dancing, some claim, but this is now all drowned out by the incessant noise from Vuvuzela’s. The background noise to the world cup has become the sound of  a huge swarm of bees. This spoils the atmosphere of the football game as one can hardly hear the fans cheering and singing.

In any case, this would never have been allowed at any Football World Cup organized in Europe, so why allow it in South Africa? It is just plain rude to make such a racket when the whole world is watching. This is just not how things are done in Europe, where TV viewers are used to the atmosphere provided by the singing, chanting and shouting of the spectators. The Vuvuzela is spoiling the whole world cup for Europeans!

Now, I am not sure if I am watching the same television feed as the British, but the claim that the noise made by Vuvuzela’s at football games is so loud that it makes it impossible to watch the game on television with the sound turned on seems just plain ridiculous. At most it provides a background noise which might be monotonous but surely is not ear-splitting. So, why are so many people so upset?

Of course, the critics are entitled to express their dislike of the soundtrack to the 2010 World Cup. Let’s face it, that buzzing noise is not the most musical or attractive sound that human kind is capable of producing, and expressing a dislike for the Vuvuzela is therefore perfectly understandable. Personally I have come to love the whole Vuvuzela thing – especially the vibe it generates when one is there at the match oneself  - but I understand that, like olives or blue cheese, this is an acquired taste not shared by all.

But something about the tenor of all these complaints have gotten up my nose. Maybe I am overtly sensitive or maybe I am intellectualizing something that is no more than a personal preference, but I smell more than a whiff of cultural imperialism in much of the criticism of our beloved Vuvuzela.

It seems to me what underlies much of the criticism, is a set of rather problematic assumptions.

First, much of the criticism seems to assume that the norm of what should be acceptable (and therefore permissible), must be based on what happens in Europe. “This is how we do it in Europe. We know best and always have. Therefore you must follow our example like good imperial subjects to demonstrate to us that you are also civilized and up to our standards.”

This rather blinkered and prejudiced lack of respect for difference suggests that many critics of the Vuvuzela labour under a false sense of cultural superiority. They view their cultural and social beliefs and practices as the undisputed norm to which all others must conform, without any understanding of, or respect for, the multitude of ways in which different societies and people might have chosen different ways of being in the world. This is the very essence of cultural imperialism.

Second, all the talk about Africans being such good singers and dancers and complaints that viewers are missing out on this because of the Vuvuzela, plays on a racial stereotype. It is as if, having been exposed to stereotypical images of the happy dancing and singing natives, some of the critics cannot come to grips with a very different narrative of what South Africa is all about. What they want, perhaps, is for all of us to sing and dance and smile – just like the performers in Ipi Tombi and Umoja who have been entertaining the baas in theaters in the West End for many years.

Now we have the cheek not to conform to the stereotypes they have been expecting to have confirmed. Instead, we have taken to this cheap, plastic trumpet (for better or for worse) and have made it the soundtrack to the Soccer World Cup – which is really their Soccer World Cup – and thus have shown an agency and an independence of mind and spirit which we as the erstwhile colonized are not supposed to possess.

In the process, we have taken something away from them – their World Cup experience as they want it! – and made it into something slightly different. We are not playing by the rules, which dictate that we should be grateful for having been selected to host the World Cup and we should consequently make sure that we provide a World Cup experience to Europeans as close as possible to what they are used to and what they expect.

Sadly I suspect it is not much use to point out the cultural imperialism underlying some of the criticism of the Vuvuzela. If one is so deep in denial about one’s own prejudices, and so blind to the fact that one is embedded in (and to some extent a prisoner of) a particular culture, it is difficult to accept that one’s own views and normative commitments are not universal and inherently superior truths handed down by God, but merely one of many ways of making sense of the world.

Maybe it’s better to laugh and shrug one’s shoulders – while putting some extra effort into blowing your Vuvuzela as loud as possible.

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