Quote of the week

Regard must be had to the higher standard of conduct expected from public officials, and the number of falsehoods that have been put forward by the Public Protector in the course of the litigation.  This conduct included the numerous “misstatements”, like misrepresenting, under oath, her reliance on evidence of economic experts in drawing up the report, failing to provide a complete record, ordered and indexed, so that the contents thereof could be determined, failing to disclose material meetings and then obfuscating the reasons for them and the reasons why they had not been previously disclosed, and generally failing to provide the court with a frank and candid account of her conduct in preparing the report. The punitive aspect of the costs order therefore stands.

KHAMPEPE J and THERON J
Public Protector v South African Reserve Bank (CCT107/18) [2019] ZACC 29 (22 July 2019)
19 June 2007

Declaring "coloured/kleurling" unconstitutional?

Can one have the words “coloured/kleurling” declared unconstitutional? Somebody called me to ask, and was rather miffed when I told him that he would waste his money taking such a ridiculous claim to the Constitutional Court. In my estimation, such a claim will never fly.

“Why not,” he wanted to know, “I sit in meetings where people refer to me as a coloured or a kleurling and this is deeply hurtful to me. It is racism of the worst kind and I do not have to take it.”

I can understand why the caller does not like these words. They have the unmistakable odor of apartheid engineering about them. For some, they represent a kind of fabricated racial identity, which allowed the apartheid state to divide and rule black people.

But the Constitution cannot address the private hurts of every South African, so a plea to find the words unconstitutional will surely fail.

First, not all people who were classified as “coloured” by the apartheid state object to the use of the word or being identified as “coloured”. In fact many people embrace this identity and proudly talk about the “coloured culture” – which often look much like a certain kind of white Afrikaans culture.

(Of course, people who embrace this “coloured” identity are often Afrikaans speaking and working class, so there might be a certain class and language snobbery involved in the abhorrence of the term, but that is not relevant here.)

Second, section 16 of the Constitution protects the right to freedom of speech. Only speech that advocates hatred based on race, ethnicity, gender or religion and that constitutes incitement to cause harm – so called “hate speech” – is excluded from such protection. Use of the word “coloured” would seldom if ever be viewed as such a form of hate speech, especially given the fact that some people embrace the word and the identity it represents.

Third, the Constitution is really geared towards the protection of individuals from action by the legislature, executive or private individuals. It does not seem to me that a word can per se be unconstitutional. It is only when the word is used in a specific context and thus infringes another right, that it becomes possible to challenge its use in a Court.

So, where a newspaper or a radio station use the word regularly, one could try and make the argument that the use should be restricted because it infringes on the human dignity of others. In such a case, the right to dignity of some must be weighed against the right to free speech. Given the lack of consensus about the hurtfulness of the word, I cannot imagine a court will find in favour of the dignity interest.

But maybe there is a larger issue at stake. What do we do when others use words we find offensive or hurtful? It seems to me in a democracy based on human dignity, equality and freedom, one should object to the use of a word, argue about it, make a noise, try to convince others not to use the word. If one is successful, private “censorship” will ensue and it will become impolite or even disgraceful to use that word in public.

It strikes me as anti-democratic and out of sync with a human rights culture, to want to want to have a word declared unconstitutional. Let us argue about what the word means and why some feel it demeans them – that way we address the real issues and do not repress underlying prejudice. Repression surely is seldom a good idea.

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