Former President FW de Klerk is said to be a lawyer. He studied law at Potchefstroom University for Christian Higher Education (they forgot to add the “Nationalist” in that name) at a time when our constitution law was based on the Westminster system and only white people were represented in Parliament.
So perhaps he should be forgiven for embarrassing himself by making uninformed, deceitful and legally just plain wrong statements about affirmative action. According to Die Burger De Klerk said that affirmative action was ‘racist’ and ‘unconstitutional’. He said those who drafted the Constitution never intended affirmative action to apply to private actions.
Affirmative action was only to be implemented in the judiciary and civil service, De Klerk said, noting Section 9(2) of the Constitution was ‘distorted’ to justify affirmative action in the business environment, civil society and cultural sphere, which he labels as ‘ridiculous’ and ‘silly’. He said the relevant part of the Constitution should be amended ‘to make affirmative action less racist’ and to ensure that it is implemented regardless of race or colour. ‘One cannot implement it in the case of somebody who is already advantaged and qualifies purely on racial grounds, can one,’ he asked.
He asked how it could possibly be that the management and workforce of the Afrikaner Christian Women’s Society could be required to represent the demographic make-up of South Africa when it served a specific audience.
Mr De Klerk should take some time off from his busy schedule gallivanting across the world as a celebrated Nobel Prize winner, and should rather spend some time re-read section 9 of our Constitution – especially sections 9(2) and 9(4). As our Constitutional Court has stated in the Van Heerden case, section 9(2) – which deals with affirmative action – should not be read as an exception to the rest of section 9 (which guarantees equal treatment for everyone regardless of race, sex, gender, sexual orientation or any other ground), but a requirement for its full achievement.
Section 9(2) – thus affirmative action – is a requirement for the achievement of equality, not an exception to it and may place a positive duty on the state to implement corrective measures to eradicate past injustice. This is because our Constitution embraces a substantive notion of equality – not a formal one – and focuses not on the equal treatment, but rather on the effects or outcomes of laws and policies to ask whether they are fair, given our history of racial oppression and the marginalisations of women and other minorities.
Section 9(4) clearly states that this unfairness test must also be applied to private individuals and organisations and required Parliament to adopt legislation to ensure the prohibition of unfair discrimination. Mr De Klerk is therefore misguided when he says affirmative action was never intended to apply in the business environment or other private relations.
One may well decry the sometimes illegal abuse of affirmative action to justify nepotism or corruption, but De Klerk does not understand that legal affirmative action as required by the Constitution and the relevant legislation places limits on affirmative action and at all times requires the application of a kind of contextual fairness test. He conflates the principle with its application – very sloppy for a supposedly clever lawyer.
I am also shocked that he suggests that the Constitution should be amended to make affirmative action “less racist”. His remarks undermine the legitimacy of a respect for the Constitutional Court. He should also be careful to advocate amendments to the substantive provisions of the Bill of Rights. Do we really want to open that can of worms? If we are going to debate amendments to the Bill of Rights, we will also have to discuss the abolition of the right to property or a fair trial, the re-introduction of the death penalty or the removal of protection for gay and lesbian members of society. Surely this is a very dangerous road to embark upon?
By using the example of the Afrikaner Christian Women’s Society he also demonstrates a lack of knowledge and understanding of the Constitution. The right to freedom of association is guaranteed in section 18 of the Constitution while section 31 guarantees for everyone the right to belong to a cultural, religious or linguistic community and to form, join and maintain organisations that reflect these interests.
Where these rights are in conflict with the equality guarantee, the latter would often trump the former. The more private the organisation I belong to and the less it intrudes on the public sphere, the more likely it is that the Constitutional Court would find that freedom of association trumps the requirement to achieve equality.
If I form a book club for Afrikaner Christian Women, for example, and the aim and effect of this book club is merely to provide a safe space for women to discuss the latest book by Maretha Maartens on the duties of a good white Christian wife, this club would not be subjected to the requirements of affirmative action. It might be different if this Book Club was really a political front for the promotion of Afrikaner economic interest and women used it to make contacts and friends to help them land government contracts in the Western Cape.
It is true that affirmative action is often abused, but this is not the fault of the Constitution or the other laws aimed at rectifying past injustice. But opponents of affirmative action argue in an a-historical manner and conflate the principle with its practice to try and win an argument that seems ethically dubious at best and reprehensible at worst.
Let us forget the past, Mr De Klerk seems to say, when we stole the land from the original inhabitants of South Africa, exploited and oppressed black people, tortured and killed them and did so in the name of Christianity and Western civilization. (As Gandhi once remarked when asked what he thought of Western civilization: “it is a good idea”.) Let us look only to the future, because that will allow us white people to keep everything we have stolen and never having to take responsibility for our disgraceful past actions. After all, we have always been right and “these people” have always been wrong.
To think the Nobel committee gave this guy a peace prize.
“To think the Nobel committee gave this guy a peace prize”
I notice some distaste for de Klerk there Prof. is this man that dismantled apartheid willingly all that evil?
Suppose I am too young to answer that question.
Forgive me but I am not a law expert, but to the points you raise in the argument. I have to take exception to your extreme unwillingness (according to previous blogs as well) to a debate on the Bill of Rights?
I see no harm in debating Chapter 2. Or for that matter any other section of the Constitution.
Let us for a second take the second amendment to the American constitution, which gives American citizens the right to bear arms, now this was relevant at the time their constitution was drafted, but obviously it is not relevant in a modern peaceful society.
Same goes for South Africa’s Bill of Rights; these might be relevant according to the times it was put down, but 5, 10, 50, 100, 200 years from now? Who knows?
Prof, the way I see it, the constitution should be a fluid document that changes with the times. Provisions and rights continually updated and debated.
Secondly, de Klerk is not one of my heroes and certainly I see your argument that his argument is legally flawed, I bet he is enjoying this bit of political spot light.
BUT, the opinion that AA is racist is one that I 100% agree with.
I am not saying there should be a scheme to give advantage to previously disadvantaged people, but what I am saying is that the obsession with race is racist by definition.
Why can there not be a system that favours those from a specific social class? This way one is achieving social levelling without basing it on race.
A poor white person that didn’t have access to university or decent schooling should have as much access to “BEE” deals as a poor black person of the same social class.
But a rich black person that went to private school and the best universities should also have the less access to BEE deals just as a white person that went to private school and the best universities.
Prof,
How I wish everyone, especially those in the FF+ and DA, can understand and appreciate the distinction that you are drawing between AA as a policy envisaged in the Constitution and other EE legislation on the one hand, and the manner in which this policy is actually implemented in practice.
When one listens to these people you’d swear that nepotism is an evil that is exclusively reserved for AA….of course we know that nepotism and all those bad things happen even in countries where there is no AA and therefore it is wrong to blame nepotism on AA.
There is definitely a misperception amongst people that AA automatically precludes whites (especially males) from being appointed, which would then make it categorically unfair and racist.
However, there have been several court decisions that have disproven this theory, one of which is McInnes v Technikon Natal, where the appointment of a black male over a white women was found to be patently unfair for several reasons, including (but not limited to) the fact that the appointment had not been done in keeping with the Affirmative Action policies of the institution.
There was also a case last year in Pietermaritzburg (I can’t remember the case name) where a white male doctor was not appointed, in favour of a black doctor. The appointment was deemed unfair as it had not been done in line with the hospital’s AA policies.
My point is that there are rules and procedures governing AA and not a blanket ban on the hiring of whites. Once people understand this and realise that they are entitled to check into the fairness of appointments and insist on their rights when they have been unfairly discriminated against, perhaps only then will people start to relax about the issue.
“Samantha // May 21, 2009 at 5:00 pm
There is definitely a misperception amongst people that AA automatically precludes whites (especially males) from being appointed, which would then make it categorically unfair and racist.”
yeah right!!!
The last time somebody told me that, I applied for a UK visa as it is a blatant lie.
Dear Pierre,
I agree that affirmative action is not unconstitutional. I am also aware that you have dealt with AA in previous blog posts. But I would like an answer to the more specific question which George Gildenhuys seems to be asking: Why is race a better proxy for disadvantage than disadvantage itself? There are many ways in which life deals people a bad hand. Apartheid is just one. Why address disadvantage only when it is a result of apartheid? Furthermore, it seems to me that those preferring race-based affirmative action face a double-edged sword: If AA works, then using a race-based proxy for it becomes less and less appropriate over time; but if it doesn’t work, then we shouldn’t be using it anyway. To me it seems inescapable that race must be dropped as a proxy for disadvantage, for these and other reasons.
@ George Gildenhuys,
AA is only applicable to certain designated employers, such as organs of state, municipalities and companies who employee more than 50 employees.
Again, AA policies must be in place and must be adhered to for them to implemented. In line with this, they must stick to guidelines such as the inherent requirements of a job and the qualifications of the individuals.
Where I do take issue with the Profs comments are where AA should be applied outside of this spectrum. In line with his arguments, associations such as the Black Lawyers Association and Black Journalists Association are unconstitutional, as they are not merely bodies that get together to discuss “the latest book”, but actually attempt to exert influence on our government and the sectors in which they operate. If there where “white” organisations such as these, there would be a hue and cry and everyone would be shouting about prejudice, racism and unconstitutionalism. If De Klerk’s statement with regard to the application of AA in the private sector are so patently incorrect, then how does the Prof justify “black” organisations?
The actual point is that s9(1) and 9(3) are nicely drafted. Real equality provisions. But then s9(2) makes a farce of s9(1) and(3) – at least as interpreted by the ANC cadres deployed, according to the wishes of Luthuli House {by way of the ANC packed composition of the JSC} to the CC.
Or, actually, by the so called CC, as a CC that decides or implies that a Constitution (properly so meant to be by the drafters) is a “transformative” constitution, does not deserve to be called a CC. Not in the origional, pure, Western (USA) sense.
Then its a Trojan Horse – out jumps socialism.
Then it does not fulfill its intended role of protection of minorities. It does not restrain the tyranny of the majority { which is the essence of a constitution properly so called}. Because it interprets the so called constitutions’ equality provision against the minority – in favour of oppression.
Then it becomes constitutionally sanctioned oppression, with no safeguards for minorities.
Then such “constitution” and such CC becomes instruments of oppression.
The AA discussion has been brought up on this blog before, and I thought it was rather a good one – I was even agreeing with Ozone (and he with me) on many points!
AA in it’s current form IS reverse racism, whichever way you look at it. Regardless of the spirit or letter of the Constitution, AA in South Africa is racist, because of the way it is implemented. As somebody who observed the inner workings of government departments (most specifically health and education) during my time in SA, there is absolutely no other way to describe it.
The idea of redressing the past has long fallen by the wayside as our new BEElite have discovered that it is much more beneficial for them to “keep it in the family”, all the while forcing government departments to continue appointing people to meet quota targets in order to claim some semblance of legitimacy for the notion. Meanwhile, there are black children at schools like Hilton, Michaelhouse, Bosch etc etc who have no need for any sort of “affirmation”, while there are non-black kids who’s families can barely put food on the table. I’ll reserve comment on the non-black kids, but let me tell you – I do not believe that black children who have the luxury of an education at school’s costing hundreds of thousands of Rands a year should benefit in the slightest from AA. Yet they will, if they so choose.
My take on AA has always been that it’s primary push should be at education and health levels – accessible affordable health care and accessible quality education. If people have access to those two things, they will be able to empower themselves, and the animosity around AA would mostly dissipate I think.
As for FW, the man’s comments are partly in line with my thinking, although I don’t know if he should’ve delved into the Constitution on this one – the type of AA envisaged in the Constitution has, in my opinion, been all but left in the dust in favour of implementing a much more self-serving system which reqards incompetence and inefficiency, and costs millions much while benefitting few.
So hypothetically speaking, I could form the Rastafarian CEO Society and decide to only hire Rastafarians in the companies of those CEOs, and it won’t be in conflict with the Constitution? I’d be discrimination against potential employers based on their religion, because I’d be showing any non-Rastafarians the door, but in this case the discrimination is fair because I have freedom of association.
I could show Mlungus to the door at the Black Journalists Forum because of their skin colour, but in this case too it is fair discrimination.
I could give black candidates lower entry requirements to get into medical school than other candidates, based only on skin colour (ie racial discrimination), but it would be completely constitutional because it is fair discrimination.
However, if I were a woman and premier of a province, I cannot hire pale males for a provincial cabinet if I were a woman, despite no evidence that the process had any bias or discrimination. Despite hiring plenty of other able candidates of various genders or racial backgrounds for various other positions within the party..
Personally, I think the BEE and AA clauses in the Constitution are in conflict with the idea of having one Constitution that applies across the board. Section 9 says everyone is equal, except where “discrimination is fair”. The bullshit detector is in the red. I’m with FW on this one.
…shame on Ozone et al for saying Prof is ” counter revolutionary” !!…brother you are spot on! I fail to understand how people quickly forget WHITE WOMEN & PEOPLE (white, black, oranje) WITH DISABILITIES among designated groups needing to be affairmed! …anyone remembers?….I guess they are all BLACK then!…who can be defined/classified as black anyway? Cos I m some what light brown, why cant I be called white?…In fact, from tonight I declare myself white-Ja!-I am a White Maan van vandag af! No toyi toying for me anymore!
“We, the People of South Africa, declare for all our country and the world to know:
that South Africa belongs to all who live in it, black and white”:
The opening words of the Freedom Charter adopted 54 years ago.
“We, the people of South Africa….Believe that South Africa belongs to all who live in it, united in our diversity”:
The preamble to the Constitution of the non-racial democratic South Africa adopted 13 years ago.
Racial guilt for past wrongs?
Our national vision is declared to be forward looking.
Let us try to realise it.
@ Prof,
The Nobel Peace Prize FW was awarded was for his role in the “peaceful” transition of our country. I don’t think there was a test on “know your Constitution” which he had to pass before receiving it!!
Professor, you “Know your Constitution” lectures are very cute. You deploy the device quite effectively against those whose interpretation does not square with yours.
The problem is that the Constitution is not like an alphabet, or a treatise on grammar, or a mathematical equation. As you have so often argued, it is a “political” text through and through.
So, when you offer helpful little teach-ins on the Constitution to people like Vavi, Zille, and De Klerk, you are actually giving them short courses in political theory and ethics, are you not?
If so, why should they listen to you?
De Klerk’s assessment of AA as “unconstitutional” is doubtless over the top, as de Vos points out. One has to realise that the Constitution is supreme, and therefore it is a law unto itself. Consequently, if the Constitution says that a certain kind of discrimination is fair, then that kind of discrimination becomes legally fair, regardless of any moral analysis of it.
The Constitution takes care of this very neatly, to the admiration of some, and the amusement of others. Via the Bill of Rights, it states: “Discrimination on one or more of the grounds listed in subsection (3) is unfair unless it is established that the discrimination is fair.”
The “rationale” behind this outwardly ridiculous statement is ably stated by the Prof: “This is because our Constitution … focuses not on the equal treatment, but rather on the effects or outcomes of laws and policies to ask whether they are fair, given our history of racial oppression …”
Ah, so after the failure of Outcomes Based Education, we are still going to persist with an Outcomes Based legal system!
The big problem here is that those in power can forever claim that discrimination remains fair until the desired outcome is achieved. Even if it is never to be achieved because it isn’t achievable.
With or without apartheid, the black majority of this country was poor to start with, and is destined to remain poor. There are a whole host of reasons for this, none of them political. But for the black elite, it is most convenient indeed. As long as the majority remain poor – and they will – their poverty can be used as an excuse for the retention of the Affirmative Action. that benefits the elite.
I see only one gap, and it is probably the same one that led de Klerk to make his remark (and is also stated in various forms by other contributors to this page). That is, the definition of who is eligible to benefit from AA.
The law permits discrimination in favour of PDI’s – Previously Disadvantaged Individuals, and therefore allows discrimination against historically privileged individuals (some form of acronym is much needed here!)
This is very noble. But then the law falls on its Dickensian ass by failing to clarify its terminology. What is meant by the terms “previously” and “historically?” Do they mean last year, the last decade, the last century, or the last three centuries?
What does “disadvantaged” actually mean? Does it refer to the fact that certain people, who could have done better, were prevented from doing so? Or does it simply mean that you are black, and it is therefore presumed that you would automatically have been a rocket scientist or driven a Porsche were it not for apartheid?
And what does “privileged” mean? Does it mean that you were an idiot, who would have been well-nigh unemployable if the Nats hadn’t given you a job on the railways? Or does it simply mean that you are white, so it is assumed that, sans apartheid, you would also have had to live in a township house with seven children on a labourer’s wage?
I think that a challenge in the Constitutional Court, seeking proper definition of these terms, would be very appropriate. Because, as long as the term PDI refers only to skin colour, gender or disability, people who are not disadvantaged at all will be able to take unfair advantage of it.
This “transformative constitution” { vide2004(6) SA 121 CC at 172G and 2004(5) SA 545 CPD at 569D } ( terminology that oh so accidentally aligns it with the policies of the ANC) shuld be retermed a facilitative constitution.
It facilitates inequality, blatant racial discrimination and the creation of first and second class citizens, according to skin colour.
And then they want ordinary people to “respect” it…..
Maybe the appellation farcilitative “Constitution” would be more apt.
Oh man, white people are funny. Clearly none of the people criticising Pierre’s post have the faintest understanding of s9 or the concept of substantive equality. They’re just thumping the table, reasserting “I don’t like affirmative action, therefore it is unconstitutional” over and over again.
Exactly like the pro-Zumans failure to understand the presumption of innocence. I guess when self-interest is involved, the readers of this blog get a constitutional blind spot.
The Big Slipper – “The AA discussion has been brought up on this blog before, and I thought it was rather a good one – I was even agreeing with Ozone (and he with me) on many points!”
Spuy has asked the question in another blog below, with me responding in ridicule, do you perhaps lnow what happened to O3Blue? We hear very little from him nowadays.
Henri // May 22, 2009 at 7:53 am
i believe youve hit on a good point here.
I think your being too polite I would call it a restitutionary discrimination constitution.
AA action needs to be on a time limit the need for state intervention in the economy in order to assist historically disadvantaged groups will need to eventually disappear. Otherwise your constitution remains just that a restitutionary discrimination constitution and is no different to apartheid
The problem still to overcome i feel does ethnicity belong to the political bosom or should it be treated as an aspect of identity ? because I feel the only thing that belongs in the political bosom is poverity and not ethnic identity.
to add som comment (sorry for the Afrikaans):
http://jv.news24.com/Beeld/Suid-Afrika/0,,3-975_2520496,00.html
I believe affirmative action is absolutely necessary to remedy some of the imbalances of the past. That being said, I (as a layman, non-white citizen) take issue with affirmative action in its current form.
If we are ever to achieve the dream of being a more balanced society the obvious solution (my opinion) would be class based criteria. This however is impossible given the current state of the home affairs department, as such a system would require a well functioning home affairs department with systems that is integrated to that of SARS. Employers could use the economic status of the household and individual as part of the selection criteria.
This above solution is of course a pipe dream but until their is a viable alternative I don’t think we have much of a choice but to stick with AA in it’s current form.
Prof, I knew you were exeptionally intellegent, but I didn’t know that you were more intelligent than the Nobel commitee.
Prof, an interesting subject you have touched on.
People seem to forget that (1) inferior education (bantu education) was provided to oppressed people; (2) blacks had to get ministerial permission to study in the former white universities and black universities had limited scientific and/or technical degrees which made graduates teachers than doctors and engineers; (3) technical jobs were reserved for whites even when balck were skilled. It was never classed based discrimination. Perhaps, it is worth remembering that.
On theother, AA as it is does not discriminate as many seem to believe. Neither does it automatically exclude white males. The legislation is clear and the courts have interpreted in correctly. Those who often complain about AA have not read the legislation and cases to understand AA. Remember legislation and common law are the sources of law in our country.
It might be worthwhile for some to do more research in this subject before they make their arguments, lest they want their level of intellect questioned.
For those who throw their hands in dispair when faced with what they perceive as discrimination, are rather cowards. What they should be doing is fight their cases in court. In doing so they will leave the country with rich legacy of common law. That would enrich our law.
Prof, I am still waiting to draw from your fountain of wisdom.
AA and BEE are termed fair discrimination. They are policies of discrimination, in theory and in practice. This is why the constitution had to make the distinction between fair and unfair discrimination in section 9. This is part of why the then NP representatives walked out of the process of writing the constitution – they could not see eye to eye with what the ANC had in mind. In hindsight, I think that was a mistake. They should’ve stuck to their guns.
I don’t think that AA and BEE are instances of fair discrimination. Especially when one looks at the result of AA and BEE, namely an immense brain drain in South Africa and a still skewed demographic in the work place, plus an even greater income gap between the poor black folk and the so-called black diamonds.
Section 36 of the constitution clearly sets out cases where the bill of rights may be limited. There are less restrictive means than AA or BEE to achieve the purpose of an equal society, therefore they aren’t constitutional policies. One way is to base appointments on merit instead of on skin colour or the dangly bits between your legs – which is exactly what the ANCYL and COSATU want Helen Zille to do.
There is no such thing as fair discrimination.
For a bunch of legal experts, a lot of you like Gildenhuys, seem to ignore the facts. Firstly, AA is a part of redress and correcting the worngs of the past. These wrongs did not only occur in govt but throughout SA society. That is part of the reason why the Jim Crow laws and ‘separate but equal’ policies of some of the US provinces (states) have not been regarded as a crime against humanity like apartheid was. You are welcome to use the PW Botha argument that those countries would have applied apartheid if Black people were in the majority like in SA, but do not cry fould when we draw conclusions about your ideological disposition.
Secondly, organisations like BLA, Black Journalists Forum, or NAFCOC are not racist! Except, like the Black Journalists Forum, when they attempted to formalise it by not allowing white people to join. The Human Rights Commission ruled very specifically on this matter. The Black in the name is there to be found in their principles and values as an organisation, but cannot be used to stop people who are not Balck from joining, as long as they believe in those principles and values.
Quite often, many on this blog try to hide behind the law to justify their racism and, indeed, the appreciation of how our country needs to transform. Sometimes, even an appointment of white Afrikaner can be an AA appointment because its other intention, besides refelcting the demographics of the country or locality, is to transform the corporate values of the institution. The University of Port Elizabeth (now Nelson Mandela) appointed an Afrikaner in the mid-90s, the person was not supportive of the apartheid regime, it was an AA appointment because the person appointed needed to change the corporate values of the institution. Similarly, one can even argue that appointing Albie Sachs was also an AA appointment.
There is nothing inherently wrong about AA. The private sector have deliberately, through their dinners and informal gatherings, deliberately misled the public, by trying to act as iof their hands are tied and that they are not appointing white persons to positions because the govt is forcing them not to. Sporting codes have done the same. I will remind people here that if Clyde Rathbone did not decide to conveniently switch allegiance to Australia, then we may not have had Bryan Habana. What would have been your position if Rathbone remained? Would you have cried quota if Habana was picked above him? And knowing full well that Habana was not a part of the U21 team that Rathbone was in. Why are you not doing the same, when Ryan Kankowski is picked above Keegan Daniels, yet Daniels was a part of the Rathbone U21 team, and Ryan was not.
The entire transformation programme is the result of redressing the past, and our redress of past is not only influenced by what happened in SA (in terms of apartheid) but also that there is global racism that influences our country. We cannot wish it away because we want to forget the inequality of history, which includes European colonialism, American-led neo-colonialism, and a dominant white prejudice. Coming to grips with that is imperative for the past to be redressed so that we can move on.
Joe Public – “What they should be doing is fight their cases in court. In doing so they will leave the country with rich legacy of common law.”
Unfortunately legal representation has become prohibitively expensive and then, one is not guaranteed to win when going to court. So, some people think they would be better off spending their money to leave the country where they know they have a better chance.
But I agree with most of your inputs. It is however an unfortunate thing that the governing party (with the backing of the Constitution) could not remedy what was wrong in apartheid (your points 1 to 3 above) in its 15 years of reign. And then we have this problem of black parents sending their kids to formerly exclusively white schools, insisting on being tutored in a foreign language (English) and sometimes even Afrikaans, while education in one’s mother tongue is cast aside as not being of pparamount importance. This results in further backwardness amongst many black children who simply cannot excell in a foreign language other than their home tongue. So, AA will be with us for quite some time to come – and, the longer it holds up, the more discriminatory it becomes, so that what we will see is reversed apartheid.
It is not easy to deal with racial priviledge and its gains in a short period. In SA, as in many other former colonies, most Blacks face certain difficulties simply because they were born Black. Most Whites inherit and gain certain priviledges simply because they were born white. Underlying that inheritance is the disparity in fortunes that has existed for centuries. And to ask anyone to neutralise/equalise or reverse that in 15 years is a sad joke. As Chris Rock laconically puts it, “no white man wants to be me….and I am rich!”
The sadder thing is that Black governments fail in many ways to ensure that the AA makes a pathological change in the development of the Black people. How do you make sure that it is sustainable?
Siphiwe, the reason why I personally believe that race based affirmative action is necessary is because our society is deeply racist. Racism often (but, I concede, not always) transcend class and other interests. Racism is also often deeply entrenched and difficult to identify and pinpoint. I often use the example of going to dinner with my ex partner (who happen not to be white). He is an actuary and earns far more money than me. He also has a strong and vivacious personality. However, quite often the waiter or waitress presented me with the wine list and, at the end of the meal, the bill. Why? Because I am white. When asked the waiter or waitress would not be able to explain his or her decision and would protest that he or she was not racist. This racism, based on deeply entrenched but unexamined assumptions about people based on race is not only deeply offensive to black people but also often disadvantages them when they apply for jobs or otherwise compete for scarce opportunities and resources. This is especially so where the dominant culture in an institution is “white” and the prejudicial assumptions so deeply ingrained that they seem normal to everyone (and are often built into the – supposedly neutral rules, regulations and culture of the institution). Not to have affirmative action based on race is therefore deeply unfair and, in effect, sanctions discrimination.
Prof, that is exactly what I wanted to say above. Benefits of race can only be fixed by dealing with race.
Samantha, aa is also about power and rectifying past injustice. The CC would probably disagree with you that the BLA is discriminating against whites by only having black members because it would argue that it is far more difficult to justify different treatment of those who have suffered from past discrimination because of their race than against those who benefited because of their race (and one benefited even if one were born or grew up after end of apartheid because one’s parents had given one an advantage one would not have had, but for the colour of one’s skin).
Jeez, Prof. How many more times are you going to roll out that story about the waiter with his wine list and the bill? What’s the poor guy supposed to do? Should he perhaps give a wine list to the both of you, and – at the end of the meal – ask “so-o … which one of you has the deeper pocket?” before flourishing the bill?
Anon. If you research the UK, Hong Kong, US and Canada, you will find that there are public sector bodies that do take employment discrimination cases on behalf on complainants. This is something we do not have in South Africa. And unlike the countries mentioned, SA does not allow class action suite in employment disputes.
Yes, reforming education is a long process and the reforms we had did not help much. Learning in our mother tongues is a good idea but I am afraid the cost of printing book in our mother tongues and trainig teachers to teach major subjects in our mother tongue would be impractical and prohibitly expensive.
I was terrible in primary school because English was so foreign to me. However, when I started understanding it. I excelled in school.
By the way, I live and work in a foreign country, western Europe. South Africans could do better improving the country. It is tough out here. Many white people have it relatively easier in South Africa bar the perceptions and realities of crime in South Africa than in western Europe and North America. It is sometime a shame that white South Africans are know to have rather terrible political and social beliefs.
Years from now when the majority of people in public and private sector are black, I wonder what the minorities will say about AA. At the time, it might be to protect the minority rights of whites. Would whites say no to AA. After all countries like Canada and US do, to some extent have AA.
Patriotism requires of us to do what we can to improve our country; support our Government when they deserve; be out brothers’ keeper. How many can really claim to be?
Its hard to see what the alternatives are. De Klerk has lost it it seems but I suppose he gets it in the neck form his “constituency” all the time. The tales of discrimination in the name of AA. From what I hear, those in power know that AA and BEE are a disaster. Its not that the principle is wrong, its the implimentation and the perception that is created by the rampant manner in which it has been implimented in the state and certain industries. It has cuased many people to leave, the skilled whites, the young graduates we so desperately need. I think the biggest failing of the ANc gov has been education. Its the be-all and end all of uplifting the previoulsy disadvantaged…
Thanks Prof for your thoughtful reply. I take your point, but could it not be the case that race-based affirmative action actually encourages racism, all things considered? Firstly because it employs apartheid race categories and therefore entrenches people’s tendency to think along those lines, secondly because it sows general resentment among those races now being discriminated against (look no further than these comments on your blog for proof of this), and finally because it encourages the attitude that blacks haven’t achieved their positions on merit (and hence it actually reinforces that ingrained tendency of which you speak whereby people think of blacks–even those with high status–as somehow inferior). In other words, I agree that you’ve identified a problem in your comment replying to me, but is affirmative action a good way to address it? Unfortunately I think there are several reasons to think not.
Siphiwe, yes I suspect you are right that the danger of aa is that it will entrench and perpetuate the very racial categories we are trying to move away from. My (tentative) answer to this very difficult conundrum is that we must begin to talk about and “do” race differently. Race is not real. It is a construction. It does not say anything about who you are – although we have been tricked into believing that it does. I am not saying that race is not “real” in the sense that in our everyday lives we experience race as something tangible, but rather that race is a construct which can change over time. In academic language I suppose I would say something like: “We need to problematise race.” The problem is that law is often said to be about certainty and so the law uses these categories like race in an unproblematic way – as if they are fixed and really says anything (or worse, everything) about who we are as people. A more nuanced and complex approach to aa might take account of the overlapping power relations in society and might recognise that there are many different reasons why all people do not have equal opportunities to reach their full potential, race being a very important one, along with class, gender, sexual orientation etc. But how? I am still thinking about that one!
Hello Pierre
I have sent two messages, but they do not show up. Is there perahps a problem with the server? Should I connect with Anthony Baggett. I am sending this message form an |nternet Cafe and not from my own computer. If this shows up, then maybe the fault is with my computer. But how?
Ok, it seens to work now. My question is: why are gay people left out of the affirmative action narrative? You get black, women and disabled…but gay people also suffered under the old Mational Party. So? Why are we excluded?
Prof,
it’s no difference for us gals. The wine list and the bill is always presented to the gentleman. Nothing new there, just racism not sexism.
Pierre, I fear that you are still not willing to deal with the AA matter on its merits. If you have not already done so, please read Benatar’s piece in the SALJ.
Actually, forget about Benatar . He is so easily dismissed as a “liberal.”
Instead, pick up Mamphela Ramphele’s ‘Laying Ghosts to Rest.”
She is not as easily dismissed. Try to engage with the substance of her arguments.
Ad Chris Mcdaniel 22/5/09 10:22
What we Eurpeans can do, in the light of this “constitutional” inequality, for the sake of our children, are:
- to teach them how the CC told them to f..k out of the country because of their European descent;
-inform them of the real gist of AA and BEE, nl to protect those who, because of innate inabilities can’t compete on a level playing field (but to use past injustices { and those were REAL!) to cloak that actual rationale in constitutional hogwash:
- to get them an internationally relevant qualification;
- then to actively, actively, actively and on a daily basis encourage, cajole and brainwash them to leave the country;
- get them passports;
- drive them to the airport.
Yeah…..
Then I can go to my grave in peace.
And in honour.
That’s the nearest I can get to kicking Jan van Riebeeck in the b..ls for landing at the southern tip of this doomed continent.
Michael, it would be more productive if you made your own arguments and stopped hiding behind the skirt of a black woman. Then we can have a real discussion, don’t you think?
Herman, good question. Section 9(2) speaks of people who have been disadvantaged by past discrimination which would include many if not all gay men and lesbians. But Parliament was a bit too homophobic to include this category in the legislation. Whether one could compel them to do through the court is another matter though.
Actually Pierre, I have cowered behind the trousers of a white man, as well as the skirt of a black women. Neither stratagem has helped me very much.
On the merits, my recollection is that we did start to have a substantive debate on this early last year. But as I remember it, you ducked and dived away from any real engagement.
First, you insisted in caricaturing Benatar’s position as being against any AA at all, in any circumstances, at every level.
Second, you took refuge in a species of radical relativism, implying that “merit” was in any event a social construction — such that the need for academic excellence and service delivery – matters to which Ramphele refers, could not properly be weighed against the demands of “transformation. “
Third, you were quite unwilling to give a straight answer to my question as to why academics who are proponents of vigorous AA across the board should not immediately tender their resignations, and reapply therefore, insisting that their applications be evaluated under the same radical AA criteria they urge should be applied to new appointments
Pierre, re your reply to me above:
My fear is that it is impossible to have a diffuse and useful notion at the same time; there will always be a tendency to simplify race and use broad and rigid categories, because our minds (and the law, as you suggest) work well with these sorts of things, and rather badly with “nuanced and complex” notions acknowledged to be mere social constructs.
Whatever the case, there can be no denying that AA in its current form uses broad and rigid racial categories. So, with respect, it seems to me that by your own logic AA is unacceptable in anything like its current form.
If I may use a remote example: When Kevin Rudd apologised to the Australian indigenous peoples for the injustices caused to them by the European settlers, I was irked. I am happy to see conciliatory gestures, but the presumption is that Mr Rudd is allowed to apologise for wrongs which he didn’t commit, on behalf of people long-dead…. Why? Because he shares the perpetrators’ skin colour.
My point is that in dealing with the racist injustices of the past we tend to reinforce the very racialism which we ought to be moving away from. For this reason I think remedies based on individuals, and on those individuals’ inherent human dignity (to couch it in legal terms), are always preferable to race-based ones.
I hope you see the point I am trying to make, even if this is a debate for another time and place.
In response to Herman:
Is it not relevant that one’s sexual orientation can be kept secret, whereas one’s race is necessarily visible? It is shameful that people should be made to hide their sexual orientation, but it does mean that, both now and in the past, discrimination isn’t quite able to get the same hold on sexual orientation that it can get on race.
Perhaps I am just ignorant of the harms inflicted on homosexuals during apartheid; if so, please inform me…. But it does seem to me that economic disadvantage on the part of homosexuals needs to be remedied, and so they are justifiably excluded from the “AA narrative”. In other contexts, though, undeniable progress has been made against this form of discrimination, for example in gay marriage.
Michael Osborne:
Where did you get hold of Benatar’s SALJ article? I tried to search their database but came up short.
Siphiwe,
2008 SALJ 274 – 306 ( vol 125 ).
If race is not real, how is it that DNA can reveal the race of a criminal?
If race is not real, then we’d have to apply the same logic in all cases. We can’t cherry pick the racial profiling we like – like the ‘fair discrimination’ of AA and BEE – and do away with the racial profiling we don’t like – like ‘slegs blankes’ public toilets and a waiter who doesn’t know who to take the bill to.
Siphiwe,
Deep trawling, state of the art judicial debating of AA can be seen in the speech of Justice Brennan in University of California vs Bakke 438 US 265 (1978). Find it through findlaw.com. ( It’s about racial quotas for admission to medical school ).
That’s real judicial excellence.
Siphiwe, your comments are most insightful.
AA presents a conundrum because it is:
(a) Abhorrent in principle – as Siphiwe shows, AA ironically depends upon the very classifications it seeks to extinguish.
(b) Conceptually very difficult – for the reasons Ron points to.
(c) Utterly indispensible – as Pierre so persuasively argues.
We make little progress in debating the topic because few of us seem to be able to grasp that all of these propositions are equally true. (Also, anyone who too emphatically articulates proposition (a) is quickly dismissed as a racist or, worse, a “liberal.”)
Pierre is adept at showing why an attempt to erase 300 years of colonialism by abruptly becoming colour-blind position is futile. At the same time, I sense he cannot bring himself to embrace proposition (a). (Although I was encouraged by his posting of yesterday, in which Pierre accepted the need to arrive at a “more nuanced and complex” position on AA.)
I venture that such a more nuanced and complex approach would start with the premise that AA is a tragic necessity. It work from there to a method that would as swiftly as possible erase historically-entrenched inequality, while not (i) prejudicing service delivery; (ii) sacrificing excellence, or (iii) reifying racial categories.
Pierre, please write a book explaining how this is to be done.
Sarah, you left out the bit about Madam getting the menu without the prices!
As for Pierre’s waiter, he saw two men – one clearly ‘previously disadvantaged’, the other ‘newly disadvantaged’. He was therefore wrong in handing Pierre the wine list. However, he acted correctly in giving the bill to Pierre – strictly in accordance with AA.
Henri:
Thanks very much. I read the Brennan judgment and was very impressed. The Benatar I can’t find online so will get a hardcopy out the library when I’m next there.
AA has not led to the development for the better (for all) in this country, from what I have seen quite the opposite. The way AA has been implemented in this country has reinforced racism rather than fading it they way it was “apparently” intended. The playing fields will never be leveled with AA/BEE etc. the way it is being implemented, and I think that is what FW meant.
AA as seen by a layman…..
Whites came to South Africa where blacks owned everything and anything…they felt the injustice of not owning anything in this precious africa and decided to reposition themselves…and they then seeked to redress the injustice of God who gave the whole country to blacks only with all its minerals and richies….many evils were done to redress this creational injustice until in 1948 a policy was formed that ensured that whites became superior and secured them opportunities by virtue of them being white….land was taken and ownership of everything in the land started skewing towards the white people…where our forefathers owned they typed for themselves ‘title deeds’ and said the paper declared it was theirs……15 years after democracy, a redress of the whitepeople’s creational redress is underway, and they are unhappy, uncomfortable…they who segregated us on account of race now cry that we must not redress past injustices on account of ‘race’; they who took away from us what was only God given to us, demand that we be not discriminatory in our dealing with past injustices. Why? i suspect because they know the gravity of race based policy since they were the first architects of such. And one more thing is that among them there is an ignorant club which on its arrogance fails to understand that RACE was everything when they took everything from us and RACE will be everything for us to get what is lawfully ours back….i am not talking about land here less i raise zanufication alarms… but i am talking about the God given right to opportunities.
Racism is like alcoholism you can only start dealing with it once you admit that it is a problem. Siphiwe I can see that you have a sense of justice about you and thats great. The problem I think is that this sense of justice comes with much naivity of the realities of history and the present. Race cannot simply be removed from AA. This delusion of class-based AA is also quite ignorant because it forgets that a white man who is part of the working class is not the same as a black man who is part of the working class. The same goes with gender. How can you implement class based AA and than forget about the inequalities between men and women.
Siphiwe you say that AA reinforces racism but you fail to understand that racist people will find any excuse to justify their racism. How silly is that. Listen here, I can say policing reinforces crime, because there is always more crime where you find more police. I can say men who dress and act like ladies reinforces my homophobia. I can carry on like this and never facing the reality of my inheriting prejudice. If white people want AA to come to an end they need to stop resisting it as they have all transformation since 1994. You want your kids to live in a peaceful Africa that accepts them as one of their regardless of race, than you need to fight to end the socio-economic injustices and inequalities your fore-father have created.
Prejudice Anonymous, thanks for your respectful and open-minded response. It’s always very helpful in a debate to brand the other side as ‘naive’, ‘ignorant’ and ‘silly’; it really does help us to understand the issues, so thanks for your maturity. Many thanks also for completely distorting my position and giving numerous non sequitur responses.
You say that ‘race cannot simply be removed from AA’, as if I was claiming otherwise. My precise point was that it can’t be, and this is an important consideration (although I never claimed that it necessarily provided a decisive reason to reject AA). We need to weigh up the costs of AA against it’s benefits, and I was identifying the racialism it entrenches as one of its costs. You’ve done nothing to further this particular enquiry.
You also suggest that I want to ‘forget about the inequalities between men and women’. I don’t recall implying this at all. Perhaps you can point out to me where I said this.
Nor is it enough to simply say that racist people will find any excuse to justify their racism. This may be true, but it doesn’t follow at all that we should therefore dismiss the racialism inherent in AA as a fabrication by racists.
Your tendency to brand anyone who disagrees with you as racist similarly does very little to advance the debate. Nobody here denies that there are very deep ‘socio-economic injustices and inequalities’ in our country and that we must do everything possible to eradicate these. But again, simply reasserting that these problems exist is not an argument for affirmative action if affirmative action isn’t a good way to address them.
You’ve utterly failed to engage with the content of any of the points I raised previously. Incidentally, your obvious inability to subdue your irritation with anyone who thinks critically about AA probably provides what I consider to be the best argument in its favour: we need race-based AA because the disenchanted majority need to feel that past injustices are being addressed and that society wants to empower them.