Quote of the week

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.

Khampepe J
Zuma v Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector Including Organs of State and Others (CCT 52/21) [2021] ZACC 28 (17 September 2021)
29 February 2008

Asmal’s goodbey to Parliament and the duty to speak

One of the things that struck me about the furore following revelations about the making of a racist and humiliating video by four white University of Free State students, was that no white faces were to be seen amongst those who protested these actions on the Kovsie campus.

Then I read Kader Asmal’s farewell speech from Parliament (he is soon to join us here at UWC) and was struck by the following line:

My journey began more than 60 years ago with my relationship with Albert Luthuli, and was inspired by his vision of a free, non-racial South Africa with justice and equal rights for all.

It was he who drew my attention to the struggle and indivisibility of human rights after I had seen the practices and the merciless cruelty of the Nazis in the concentration camps – inflicted on Jews, Slavs, communists, homosexuals alike – in a supposedly civilised country.

It was then that I understood the brave words of Dietrich Bonhoeffer: “Not to speak is to speak. Not to act is to act.”

Its so sad – even tragic – that so many white people do not speak now and have never spoken, not only about what happened in the Free State these past days, but also about what happened before 1994. Is that not the big problem with the project of reconciliation in South Africa: that so many white people cannot admit that what happened before 1994 was really, really bad – yes, even evil – and cannot admit that their silence was also a kind of choice with serious moral implications.

Such an admission, some would say, would serve no purpose because it would merely allow all white people to wallow in guilt and would effectively help to silence and marginalise them from the democratic discussion in South Africa.

But I have a different view. By admitting that what happened in the past was evil and by acknowledging that very few white people really “spoke up” – not merely by voting for an opposition party but by resisting the apartheid regime – and that this constituted a catastrophic moral failure, we would be lancing a boil that has been covered up by a band aid of reconciliation.

Admitting failure – even catastrophic moral failure – does not imprison but, in fact, liberates. Such an admission would help to restore the moral credibility of each white person who made it and would, indeed, give such a person more freedom to take part in the debates and struggles of the new democratic South Africa.

I personally do not believe that only people of one race or class or language or ethnic group can ever do evil or can act monstrously. “Good people” often do evil things or stupid things or selfish things. It is, to my mind, dangerous to essentialise evil and to think that only some are prone to fall prey to it. By admitting our own mistakes will allow us to see the moral ambiguity of our world and of our hearts. (Now I sound like a dominee!)

If one lives with a knowledge of the moral ambiguity of life and of human beings and understands that this ambiguity is part of the human condition, it is so much easier to be vigilant about and speak up against other forms of stupidity and selfishness and – yes, evil.

We are far too certain in South Africa about what is right and wrong. Too much certainty often leads to condemnation, rejection, prejudice and finally tyranny. I see the Constitution as a document that allows for this kind of constructive uncertainty because it is open ended and forward looking – just like Kader Asmal said in his farewell speech.

The tragedy is that 14 years after the advent of democracy those white boys at Reitz and their parents and the University authorities are still so caught up in their own certainties that they cannot see the extent of their own moral corruption. It is only when they start thinking differently about the past, become less certain about the goodness of their struggle, that they will ever learn to escape this prison of moral turpitude. (Amen brothers and sisters!)

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