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.
“Mandela’s ‘disadvantaged people’ have been given a race tag”,
May 16, 2007
The amazing thing about Pierre de Vos’s contribution (April 26) to the affirmative action debate is that he seeks to refute Professor David Benatar’s arguments without really engaging them. On a personal level he tries to discredit the arguments by discrediting a stereotype of the author and like-minded critics by suggesting that, when it comes to issues like affirmative action, whiteys can’t think straight.
On a more general level, just in case the irrelevance of this ad hominem argument is exposed, he denies the validity of logical reasoning, as such, for arguing meaningfully about affirmative action.
Sure, Benatar’s arguments are tight and compelling and difficult to get under. But it is not helpful to simply dismiss them together with the method of rational analysis as prejudiced and inapplicable to the debate, in favour of anecdotal evidence and superficial generalisations about opposing positions. I could not find Benatar claiming “to argue from a neutral position” or “to have access to an uncomplicated system of logic and reason, untrammelled by his own ideological commitments and racial identity” in his inaugural address.
De Vos simply projects these claims on Benatar to disqualify his arguments, without making the slightest attempt to critically analyse their soundness.
However, in case De Vos also regards such a standpoint as ideologically and racially contaminated with pretensions of “neutrality”, one could put it aside and only consider views on affirmative action held by those who are not genetically afflicted by offensive “white”/”Western” values and impulses.
In 1991, Nelson Mandela argued: “We are not … asking for hand-outs for anyone nor are we saying that just as a white skin was a passport to privilege in the past, so a black skin should be a basis of privilege in the future.”
In 1995 he added that affirmative action should be understood as “corrective action aimed at bringing previously disadvantage people to the same competitive levels as those who have been advantaged”. This has interesting implications for the issue of “weighting” by race, as raised by Benatar:
First, it does not advocate a return to racially based “job reservation”. In fact, Mandela’s formulation presupposes competition, but on a fair basis. Second, it seeks to provide such a fair basis by empowering the disempowered. It aims at raising their level of competitiveness, rather than guaranteeing a successful outcome on a racially discriminating basis by eliminating competition.
Third, it refers to the empowerment of “disadvantaged people” without giving them an exclusive racial identity.
Since Mandela’s intervention, there was not only a noticeable shift away from the more nuanced meaning of “disadvantaged people” to the blanket generic term of “black people,” but also attempts to create an exclusive Africanism which favours Africans as blacks of a special kind vis-a-vis coloured and Indian blacks.
In this regard, Franklin Sonn (2006) referred to apartheid’s distortions of concepts such as “non-racialism”, and argued that new conceptual distortions have been designed to promote a “new African nationalism … (with) undertones of black hierarchical distinctions”.
He expressed his concern about leaders who talk non-racialism but walk the path of an exclusive African nationalism which will inevitably lead to the development of a “new type of apartheid”.
On affirmative action as a means for “rectification”, Sipho Seepe is of the opinion that the supposed beneficiaries of affirmative action are negatively affected by it, since race-based empowerment policies require a victim-versus-oppressor paradigm that crushes the competitive instinct necessary for black self-empowerment.
He argues that “practice suggests that affirmative action is shaped more by the stigmatisation of whites, and protection of the new political elite, than the actual needs of the general populace”.
“In this scheme of things”, he says, “mediocre whites who sing praises to the new mandarins are preferred over competent and independent blacks”.
By simply equating inequality with race, and blaming post-apartheid inequalities on continuing white racism, the ANC does not need to critically address, as Seepe puts it, “the disastrous consequences of their application of ill-considered affirmative action policies which have led to the collapse of various administrations … and millions in funds earmarked for the poor going unspent”.
– Willem van Vuuren, Department of Political Studies, University of the
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