As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.
Am I allowed to change my mind, I wonder, about the decision handed down by the South African Human Rights Commission (SAHRC) that the racially exclusive membership of the Forum for Black Journalists was unconstitutional? Hell, if one is not prepared to question one’s own opinions and to change one’s mind, one would be in danger of becoming very dogmatic and rigid and less likely to get to the bottom of any issue.
So here goes.
Maybe I was wrong in suggesting that the SAHRC decision was not in line with the jurisprudence of the Constitutional Court. Having carefully read through this decision again, I wonder whether the Commission’s carefully reasoned opinion might not have struck the correct balance between the right to freedom of association – guaranteed in section 18 of the Constitution – and the right not to be discriminated on the basis of race as guaranteed by section 9 of that same Constitution.
The Commission correctly points out that given the Constitutional Court jurisprudence on unfair discrimination, an exclusively black journalist’s association set up to promote opportunities for previously disadvantaged black journalists who were denied these in the past may be able to justify their exclusion of white members far easier than an exclusively white journalist’s association would if they excluded black journalists.
The Commission also correctly points out that where a group excludes someone on the basis of their race (and where that exclusion is not explicitly justified as an affirmative action measure), the exclusion will be presumed to constitute unfair discrimination and it would be for the group who wants to justify the exclusion to bring evidence to show that the exclusion was necessary to achieve an important purpose – such as the purpose to promote opportunities for previously oppressed black journalists.
But because the Commission did not rely solely on the Constitution, but also on the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA), it could also refer to the kind of factors usually only considered during the limitation clause inquiry and could argue that if there were less restrictive means to achieve the same legitimate purpose (to advance black journalists), those means should have been used instead.
My initial reaction to the decision was that the Forum for Black Journalists might have been able to win their case by showing that there was good reason to exclude white journalists and that this would be in line with what the Constitutional Court would have required. They might have shown, for example, that the Forum would operate better if white journalists were not allowed to attend because that would allow black journalists the “safe space” in which to discuss issues of mutual concern without having to worry that they would be intimidated by the presence of white journalists.
But if one adds requirements of the limitation clause as PEPUDA does – that one must show that there are no less restrictive means of achieving the laudable goal – it seems to place a heavier burden on the Forum and, says the Commission, that burden of proof was never satisfied.
Therefore as I understand it, the Commission has found that the Forum has failed to make such cogent arguments and has not shown that it was necessary to exclude the white journalists to achieve the laudable goals of the organisation. If they allowed like-minded white journalists to join who supported the goals of the organisation, would this have made it impossible for the Forum to do its work? The Forum, argues the Commission, has failed to show that it would.
This is quite a plausible argument – especially because the Commission could point to the Black Lawyers Association (BLA), who does not prohibit white lawyers form joining as long as those lawyers endorse the aims of the BLA.
Of course, whether the Constitutional Court would agree is another matter. The case does suggest how difficult it is to balance the rights of freedom of association on the one hand and the right against non-discrimination on the other, when one works with the kind of contextual analysis that the Constitutional Court works with.
For what it is worth, it seems to me as a matter of policy (if not of law) it would be wise for the Forum to open up their ranks to all like-minded journalists of whatever race in order to regain the moral high ground. If they continue to insist that they have to be racially exclusive it might well create the perception that they want to create a new kind of Broederbond type orgnanisation – a media mafia if you will – to gain an unfair advantage for their members.
It does not help that the acting head of the Forum is the political editor of His Masters Voice (otherwise known as the SABC).
So, to conclude, I am a bit confused about this case and will not want to predict how the Constitutional Court would rule if the matter is ever brought before them. Maybe that is reason enough for the Forum to stop whining and to appeal the decision – all the way to the Constitutional Court if necessary – to get clarity on this perplexing issue.BACK TO TOP