Quote of the week

Mr Zuma is no ordinary litigant. He is the former President of the Republic, who remains a public figure and continues to wield significant political influence, while acting as an example to his supporters… He has a great deal of power to incite others to similarly defy court orders because his actions and any consequences, or lack thereof, are being closely observed by the public. If his conduct is met with impunity, he will do significant damage to the rule of law. As this Court noted in Mamabolo, “[n]o one familiar with our history can be unaware of the very special need to preserve the integrity of the rule of law”. Mr Zuma is subject to the laws of the Republic. No person enjoys exclusion or exemption from the sovereignty of our laws… It would be antithetical to the value of accountability if those who once held high office are not bound by the law.

Khampepe j
Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State v Zuma and Others (CCT 52/21) [2021] ZACC 18
30 March 2012

A word on identity and classification

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

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

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

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

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

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

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

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

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

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

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

Or is something else (also) going on?

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

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

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

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

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

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

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