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.
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
Affirmative action (revisited)
Some readers have taken me to task for my post on affirmative action. They argue that I have not addressed the main point made by David Benatar in his paper on affirmative action. As Gerrit Brand, book editor of Die Burger, writes:
[Benatar’s] point is that when people are favoured for certain positions on the grounds of their race, it follows that the best candidate may in certain cases not be appointed simply because he or she has the wrong skin colour – which seems morally questionable.
The complaint seems to be that when we use race as a deciding factor in, say, the appointment of staff, it is ethically unacceptable because it is unfair to those (“better qualified”) white candidates excluded because of their race.
The point that I implicitly made in my post, was that it is not ethically responsible to talk about fairness and unfairness in an a-contextual manner, as if these concepts themselves are self-evident and neutral.
Why should it be self-evident that it is morally wrong to appoint people from a racial group who – as a group – continue to be victims of a culture steeped in racial prejudice? The unfairness is only self-evident from the vantage point of the dominant “western” or “white” culture – and exactly because that culture provides the “universal norms and standards” according to which fairness must be measured.
Many factors (apart from race) may explicitly or implicitly be deemed relevant for deciding who the best candidate for the job might be. But why are these factors hardly ever seen as deeply unfair to those who do not comply with them?
How many white people were appointed in the past to positions because they happen to have read the books deemed important or relevant, happen to know the cricket scores deemed relevant, happen to have attended a school or university deemed to be appropriate or happen to know the right people or speak the right home language? How many times are people appointed because – as Margaret Thatcher used to say – “ they are one of us”?
By using race as a criterion for appointment one would merely be making explicit what was always implicit in the selection of candidates – namely that criteria for selection are very seldom if ever completely “objective”. Because race – unlike many of the implicit criteria – disadvantages the powerful, the use of race as a criterion, unlike other criteria that implicitly would favour whites, is viewed as unfair.
I am therefore pleading for a contextual approach to fairness, which not only allows but actually requires race to be taken into account in order to achieve a more fair system of appointment. This is the kind of fairness embraced by
